Potter v. City of Tontitown

• Decision Date: 04 October 2007
• Docket Number: No. 07-161.,07-161.
• Citation: 264 S.W.3d 473,371 Ark. 200
• Parties: Jay and Connie POTTER and American RV Park, Inc., Appellants, v. CITY OF TONTITOWN and Washington County Planning Board, Appellees.
• Court: Arkansas Supreme Court

264 S.W.3d 473

371 Ark. 200

Jay and Connie POTTER and American RV Park, Inc., Appellants, v.CITY OF TONTITOWN and Washington County Planning Board, Appellees.

No. 07-161.

Supreme Court of Arkansas.

October 4, 2007.

Jones Jones & Doss, PLC, by: D. Westbrook Doss, Jr., and Richard E. Walden, Fayetteville, AR, for appellants.

Davis, Wright, Clark, Butt & Carithers, PLC, by: Constance G. Clark, Mark W. Dossett, and Jeff Fletcher, Fayetteville, AR, for appelleeCity of Tontitown.

JIM GUNTER, Justice.

This appeal arises from a December 22, 2006, order of the Washington County Circuit Court denying a motion to dismiss sought by Appellants Jay and Connie Potter and American RV Park, Inc.(collectively "the Potters").The circuit court also temporarily enjoined the Potters from constructing an RV park on their property.The Potters now bring this appeal.

In December of 2005, the Potters purchased nineteen acres of land outside the city limits of Appellee, City of Tontitown(Tontitown).The Potters applied to Tontitown for a permit to construct an RV park on their property.The Potters later withdrew their application to the City of Tontitown and sought approval for the RV park from the Washington County Planning Board.On October 6, 2006, the Washington County Planning Board granted preliminary approval for the park, but stated, "[c]ity of Tontitown's jurisdiction for this project is currently under debate.If Tontitown is found to have jurisdiction for this project—all County approvals shall be null and void."At this time, the Potters began constructing their RV park.

On October 10, 2006, the Potters filed a complaint against Tontitown and others in the United States District Court for the Western District of Arkansas, alleging, among other things, that Tontitown did not have planning-area jurisdiction and that Tontitown's actions amounted to a taking of the Potters' property.The complaint sought monetary damages and an injunction to prevent Tontitown from exercising jurisdiction over the property.On October 31, 2006, the Potters filed a complaint in Washington County Circuit Court against Tontitown and the Washington County Election Commission.The Potters sought a declaration invalidating three of Tontitown's ordinances.The Potters also filed a motion for a preliminary injunction to enjoin an election scheduled for November 7, 2006, on the proposed annexation of certain property, including the Potters' nineteen acres, into the Tontitown city limits.

On November 2, 2006, the Potters filed a motion in Washington County Circuit Court to withdraw their motion for preliminary injunction.That same day, the circuit court granted their motion.On November 9, 2006, Tontitown filed an answer to the Potters' complaint as well as a counterclaim.Tontitown also filed a motion for preliminary injunction seeking a declaration that the Potters' property was within Tontitown's planning-area jurisdiction and seeking a preliminary injunction enjoining the Potters from constructing under their permit from the Washington County Planning Commission.The Potters responded to Tontitown's motion for preliminary injunction and filed a motion to dismiss on the basis of the pendency of the federal-court action.

On December 14, 2006, the Potters moved to nonsuit their complaint seeking to invalidate the three city ordinances.On December 15, 2006, the circuit court dismissed the Potters' complaint without prejudice and then conducted a hearing on the pending motions.The circuit court denied the Potters' motion to dismiss on the basis of the pending federal-court action.On December 20, 2006, the Potters filed a motion for reconsideration on the circuit court's denial of the motion to dismiss.On December 22, 2006, the circuit court reaffirmed its denial of the Potters' motions to dismiss and granted Tontitown's motion for a preliminary injunction, finding that Tontitown had a likelihood of success on the merits and would suffer irreparable harm if the injunction was not granted.The circuit court entered an order enjoining the Potters from performing any construction, improvement or other work related to the RV park on the subject property until further order of the court.On December 22, 2006, the Potters filed their notice of appeal.On April 10, 2007, the circuit court entered a judgment permanently enjoining the Potters from making improvements to their land.The Potters filed a notice of appeal to this court from that order on May 3, 2007.On September 6, 2007, we denied Tontitown's motion to supplement the record in this case.

For their first point on appeal, the Potters argue that the order of preliminary injunction should be overturned for failing to comply with Ark. R. Civ. P. 65(e)(2007) because the order does not contain findings that Tontitown proved a likelihood of success on the merits or that Tontitown would be irreparably harmed if an injunction was not issued.Tontitown responds, arguing that the Potters' appeal from the circuit court order granting a preliminary injunction is moot by virtue of the circuit court's later order granting a permanent injunction.Alternatively, Tontitown asserts that the circuit court's order complied with Rule 65(e) because the order incorporates by reference the reasons stated by the court from the bench.In their reply brief, the Potters argue that we should not consider the permanent injunction because the permanent injunction has not been made part of the record in this case.

I. Mootness

We will first address the mootness issue.As a general rule, appellate courts of this state will not review issues that are moot.Allison v. Lee County Election Commission,359 Ark. 388, 198 S.W.3d 113(2004).To do so would be to render advisory opinions, which we will not do.Id.Generally, a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy.Id.We have recognized two exceptions to the mootness doctrine.Id.The first one involves issues that are capable of repetition, but that evade review, and the second one concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation.Id.

In the present case, the Potters filed their notice of appeal from the preliminary injunction order on December 22, 2006.On February 19, 2007, the Potters filed the record with this court.On April 10, 2007, the circuit court entered the permanent injunction against the Potters.It was not until July 17, 2007, that Tontitown filed its motion to supplement the record with this court.On September 6, 2007, we denied Tontitown's motion to supplement the record.We will not consider a document that is not in the record.SeeBarnett v. Monumental General Insurance Co.,354 Ark. 692, 128 S.W.3d 803(2003).Therefore, we will not consider the permanent injunction, as it is not part of the record.Accordingly, we reject Tontitown's argument that the present appeal is moot.In any event, this appeal from a preliminary injunction order would be governed by an exception to the mootness doctrine.It involves issues that are capable of repetition, but that evade review upon the entry of an order denying or granting a permanent injunction.SeeAllison, supra.

II.Ark. R. Civ. P. 65(e)

We now turn to the Potters' assertion that the order granting the preliminary injunction in this case failed to comply with Rule 65(e) of the Arkansas Rules of Civil Procedure, which states:

Every order granting an injunction or restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained or mandated; and it is binding only upon the parties to the action, their officers, agents, servants, employees and attorneys and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

Id.In determining whether to issue a preliminary injunction or a temporary restraining order pursuant to Rule 65, the trial court must consider two things: (1) whether irreparable harm will result in the absence of an injunction or restraining order, and (2) whether the moving party has demonstrated a likelihood of success on the merits.Baptist Health v. Murphy,362 Ark. 506, 209 S.W.3d 360(2005)(citingThree Sisters Petroleum, Inc. v. Langley,348 Ark. 167, 72 S.W.3d 95(2002)).We review the grant of a preliminary injunction under an abuse-of-discretion standard.Id.In Baptist Health,we concluded that the circuit court failed to comply with Rule 65(e) because the order granting a preliminary injunction did not contain findings on the issue of likelihood of success on the merits, and we reversed and remanded the case to the circuit court to make findings in accordance with Rule 65(e) on that issue.

In the present case, the December 22, 2006, order states:

Based upon the pleadings, evidence presented, testimony of the witnesses and arguments of counsel, and for all the reasons stated from the bench, incorporated herein by reference, the Court finds as follows:

....

(3) The Separate DefendantsMotion for Preliminary Injunction is granted.Plaintiffs are hereby enjoined from performing any construction, improvement or any other work on the subject property which is related in any way to the RV Park until further order of this Court....

The Potters assert that this order is inadequate because it does not contain findings of likelihood of success on the merits nor findings of irreparable harm.Tontitown asserts that the order complies with Rule 65 because of the language "for all reasons stated from the bench, incorporated herein by reference...."Tontitown argues that Rule 65 does not prohibit the incorporation of a trial court's ruling by reference.Tontitown further asserts that this...