Kettelhut v. Porter

• Decision Date: 28 June 1977
• Docket Number: No. FS-75-129-C.,FS-75-129-C.
• Citation: 433 F. Supp. 295
• Parties: Clio KETTELHUT and Marvin Kettelhut, d/b/a Kettelhut Builders, Plaintiffs, v. Bill PORTER, Nelson Laster, Frank Resimont, Jack Cecil, David Pyron, Bennie Ross, Ted Young and Paul E. Wilson, Defendants.
• Court: U.S. District Court — Western District of Arkansas

433 F. Supp. 295

Clio KETTELHUT and Marvin Kettelhut, d/b/a Kettelhut Builders, Plaintiffs, v. Bill PORTER, Nelson Laster, Frank Resimont, Jack Cecil, David Pyron, Bennie Ross, Ted Young and Paul E. Wilson, Defendants.

No. FS-75-129-C.

United States District Court, W. D. Arkansas, Fort Smith Division.

June 28, 1977.

Robert S. Blatt, Fort Smith, Ark., for plaintiffs.

Edgar E. Bethell of Bethell, Callaway & Robertson, Fort Smith, Ark., for defendants.

OPINION

JOHN E. MILLER, Senior District Judge.

There is before the Court Motion of defendants for Summary Judgment filed April 4, 1977 alleging that the Complaint and Amendment thereto of plaintiffs do not raise a single material issue of fact to be heard by this court.

On April 28, 1977, plaintiffs filed a response to the Motion and alleged that the Motion is based "on an erroneous allegation on the doctrine of res judicata", and further that the issues that were resolved could have been resolved in the State Court and are not the same issues that will be heard in the present case because the City of Clarksville could not have been sued in tort in State Court nor could tort damages have been obtained in State Court against the City of Clarksville.

In order for anyone to acquire a full understanding of the facts, it is necessary for the court to refer to the pleadings in the case in the order in which they were filed.

The original complaint was filed in this court on August 27, 1975, by the plaintiffs, Clio Kettelhut and Marvin Kettelhut d/b/a Kettelhut Builders, against Bill Porter, the Mayor of the City of Clarksville, Arkansas, Nelson Laster, Frank Resimont, Jack Cecil, David Pyron, Bennie Ross and Ted Young, the duly elected, qualified and acting members of the City Council of the City of Clarksville, Arkansas; that Paul E. Wilson was the duly appointed, qualified and acting City Inspector of the City of Clarksville. All of the above mentioned defendants are citizens and residents of Johnson County and the City of Clarksville. In that complaint, the plaintiffs alleged that the plaintiffs, on or about the 29th day of December, 1960, caused the lands involved herein to be surveyed and platted into lots, blocks, streets and alleys. And after dedicating all the public ways, the City Council by Ordinance, approved and accepted same into the City as Thompson Heights Addition.

That on the 11th day of June, 1974, plaintiffs, having made application for a building permit on lot 14, 902 Olive Street, was refused the permit with the explanation that the City Council had ordered the City Inspector to issue no permits in Thompson Heights Addition.

Jurisdiction of the Court is invoked under 28 U.S.C.A. Section 1343.

On September 17, 1975, the plaintiffs filed an "Amended and Substituted Complaint" in which Complaint they reiterated the allegations in the original Complaint relative to the refusal of the City Council to allow permit for building on lot 14, 902 Olive Street, and in addition to referring to that allegation, they alleged that on the 10th day of July, 1973, plaintiffs applied for a building permit on 900, 808, and 902 Olive Street, which permits were also refused, as well as was the application on lot 14, at 902 Olive Street.

In paragraph VI of the Amended and Substituted Complaint, the plaintiffs alleged, "the plaintiffs had followed the applicable laws for subdivision development, had complied with all of the prerequisites with which they are familiar for the purpose of obtaining the necessary building permits, but the defendants willfully, knowingly, purposely and with malice, while acting under color of official authority refused to issue the requested building permits and advised plaintiffs and other prospective builders of lots from plaintiffs that no more building permits in said subdivision would be issued. That the defendants willfully, wantonly and under color of law continuously refused to issue requested building permits until plaintiffs obtained an Injunction in State Court on June 19, 1975, enjoining defendants from refusing the requested building permits. That the willful, knowing, wanton conduct on the part of the defendants constituted a taking of plaintiff's property without due process of law in violation of the Constitution of the United States. The defendants, by their conduct, while acting under color of official authority knew or should have known that their action would result in depriving the plaintiffs of a right or privilege secured by the Constitution of the United States."

In paragraph VII the plaintiffs alleged that the conduct of the defendants was malicious, willful and wanton and in gross disregard for the plaintiffs, and the defendants were acting in bad faith and for an improper motive and that the plaintiffs are entitled to punitive damages in the amount of One Hundred Sixty Thousand and No/100 ($160,000.00) Dollars.

On October 20, 1975, the defendants filed their Answer in which they alleged that the State Court action referred to in plaintiff's Amended and Substituted Complaint was an action "involving the identical plaintiffs and defendants in this matter; that the basis for relief in these two law suits is identical; that the action in State Court was a complete and final adjudication of the rights and obligations of the parties herein with regard to the subject matter of this complaint; that the final Order issued by said State Court is and should be held res judicata to the maintenance of this action by the plaintiffs."

The defendants further state "that each and every act performed by these defendants set forth in the complaint of plaintiffs was performed by these defendants in their capacity as public officials, and each and every act was in the scope of their authority as public officials and as such these defendants are immune from liability for such actions."

In their Petition for Injunction filed October 11, 1974, many allegations contained in the Complaint heretofore referred to are repeated and then it is alleged by plaintiffs:

V.

"That the conduct on the part of the defendants constitutes the taking of plaintiffs' property without due process of law and is a violation of the Constitution of the United States and the Constitution of the State of Arkansas.

VI.

The defendants should now be enjoined from refusing to issue building permits to plaintiffs within the said Thompson Heights Addition and should be enjoined and restrained from advising prospective purchasers that no more permits for building within said addition shall be issued."

The prayer of the petition was that the defendants and each of them be enjoined from refusing to issue building permits to the plaintiffs; from advising prospective purchasers that no permits will be issued for building within the Thompson Heights Addition; and "for all of their costs herein expended, including reasonable attorney's fee for their attorneys and for all other proper and equitable relief."

The Petition for Injunction was granted after full pretrial discovery which included all of the proceedings had by the defendants in their official capacity, the contentions of plaintiffs in the complaint and all other actions relative to the refusal of the building permits and the court, after a full and complete trial in the Chancery Court on June 19, 1975 issued the Injunction.¹

It is a basic and fundamental concept of our system of justice that every man is entitled to a day in court to seek redress of his grievances against another. Coupled with and a part of this intrinsic right of access to the courts is the doctrine of res judicata, that a matter once judicially decided is finally decided.

The chief complaint of the plaintiffs is the alleged refusal of the defendants to issue building permits to the plaintiffs for the construction on certain lots located in the City of Clarksville, Arkansas. In paragraph V of the complaint, they specifically alleged that the last such instance of the defendants' refusal to issue building permits occurred on June 11, 1974 when a written request for a building permit on lot 14, 902 Olive Street, was requested and refused. If the plaintiffs were aggrieved and damaged by the action of the defendants in refusing to issue the building permit as requested, they are entitled to have their grievance and allegations determined by a court. In paragraph VI of their complaint, they brought this grievance before a court of law by filing on October 11, 1974 in the Chancery Court of Johnson County, Arkansas a Petition for Injunction against defendants which was granted (certified copy of the Injunction has heretofore been set forth as footnote No. 1). The Chancery Court had before it certified copy of the pleadings and all filings and proceedings in the present case had prior to date of decree and as heretofore stated, the court on June 19, 1975 entered a permanent Injunction against the defendants. An examination of the Petition and the Amended and Substituted complaint of plaintiffs will show that the two pleadings are in all material respects identical. The right to recover damages claimed in their complaints discloses that the real complaint was based upon the official action of the City Council and was not the result of any personal feeling of any of the members thereof against plaintiffs.

Rule 56, R.C.P. provides the procedure to be followed in presenting such Motion. In Section (c) it is provided:

"The Judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavit, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to Judgment as a matter of law."

The defendants have alleged in the Motion, "that the complaint of plaintiffs does not raise a single material issue of fact to be heard by this court and they pray that the complaint be dismissed and that they recover their costs and...