Thigpen v. City of El Dorado, No. CV-20-147
| Decision Date | 18 November 2020 |
| Docket Number | No. CV-20-147 |
| Citation | 2020 Ark. App. 531 |
| Parties | TOMMY LEE THIGPEN APPELLANT v. CITY OF EL DORADO, ARKANSAS APPELLEE |
| Court | Arkansas Court of Appeals |
APPEAL FROM THE UNION COUNTY CIRCUIT COURT
AFFIRMED
Appellant Tommy Lee Thigpen appeals from an order granting summary judgment in the Union County Circuit Court in favor of appellee, the City of El Dorado, Arkansas (the City). On appeal, Thigpen argues that it was reversible error for the circuit court to "grant judgment in favor of the [City] without allowing a trial on the properly pled counterclaim or the [assertion] of the affirmative defenses of set-off when there were genuine questions of fact at issue." We affirm.
A building in El Dorado, Arkansas, had been vacant for approximately ten years and was in a state of extensive disrepair. On February 4, 2018, Thigpen approached the representatives of the City and advised the City that he was considering purchasing the property and starting a restaurant in the building if the City would give him time to rehabilitate the building and bring it into code compliance. The representatives of the City agreed with Thigpen's proposition, and later that day, the mayor also agreed. On the basis of this agreement, Thigpen purchased the property on April 12, 2018. The scant evidence in the record reveals that soon thereafter, Thigpen began conversing with contractors and making plans, drawings, and financial projections for his new restaurant. According to Thigpen, work on the building started on July 9, 2018. Apparently, at some point during this time frame, the roof of the building collapsed.2 On July 12, 2018, the City issued a "Notice of Unsafe Building," which provided the following in pertinent part: "[T]his unsafe and dangerous building is ordered to be removed posthaste." At some point—the date is uncertain in the record—the City demolished the building.3 The City subsequently submitted an invoice to Thigpen in the amount of $11,496 to reimburse the City for the costs incurred in the demolition. Thigpen refused to pay the invoice, and the City commenced this litigation.
Thigpen filed an answer and counterclaim. He generally denied the allegations in the complaint. In his counterclaim, Thigpen alleged that he expended funds in an effort to renovate the building on his property to "bring the property up to compliance with the Code." He further alleged that he did so in reliance on a promise made by city officials that he would be given adequate time to rehabilitate the building. Thigpen alleged that the City intentionally destroyed the building with malice in breach of his "quasi-contract" with the City. Therefore, Thigpen prayed that he be awarded a judgment against the City for breach of contract, punitive damages, attorney's fees, costs, and any other relief to which he was entitled.
The City filed an answer generally denying Thigpen's counterclaim and prayed that the circuit court dismiss Thigpen's counterclaim. The City attached the Notice of Unsafe Building dated July 12, 2018, sent from Fire Chief Chad Mosby to Robert Edmonds, the public works director. Attached to the Notice were four photographs of the building depicting the condition of the building and the collapsed roof. The City alleged that the notice was delivered to Thigpen at the time of the removal of the unsafe building and is dispositive of all allegations in Thigpen's counterclaim.
Thereafter, the City filed a motion for summary judgment. The City attached an affidavit from Fire Chief Mosby, various city documents, another copy of the Notice of Unsafe Building, photographs of the building, a certificate of Fire Chief Mosby's qualifications, and copies of the relevant portions of the City's fire code. The City argued that there was no genuine issue of fact as to the necessity of the removal of the building inquestion based on the undisputed facts. According to the City, while the property had previously been zoned for commercial use, the property had reverted back to residential status approximately ten years prior to the litigation, and Thigpen had never filed any application to have the property rezoned back to commercial status. The property had been condemned in 2016. The City further explained that once the building's roof subsequently collapsed by July 12, 2018, no building or other type of permits would have been issued by the City to repair the building because the code required it to be demolished. Fire Chief Mosby stated in his affidavit that he ordered the immediate removal of the building pursuant to the state and national codes adopted by the City. Further, the City argued that it was entitled to reimbursement for the costs of demolition pursuant to Arkansas Code Annotated section 14-54-903(b) (Supp. 2019) and City Resolution No. 1461. Thus, the City prayed that it be granted summary judgment and Thigpen's counterclaim be dismissed.
Although Thigpen admitted the veracity of the documents attached to the City's motion for summary judgment, Thigpen denied that summary judgment should be granted in this case. Thigpen attached several documents in support of his response to the City's motion for summary judgment, including a photograph taken of the building on April 5, 2018, documents from various contractors providing quotes for renovations to the building, a business plan, and an affidavit from Thigpen. In his affidavit, Thigpen alleged that Robert Edmonds, the director of public works, promised him on April 5, 2018, that if Thigpen purchased the property the City would give him adequate time to address any code violationseven though the property had been condemned.4 Thigpen further alleged that he relied on Mr. Edmonds's promise when he purchased the property on April 12, 2018, and moved forward with preparations to renovate the building. Thereafter, Thigpen alleged that Mr. Edmonds confirmed the substance of the statements made on April 5, 2018, at a subsequent meeting on February 4, 2019,5 when Thigpen met with former mayor Frank Hash and Mr. Edmonds. Based on the facts alleged in Thigpen's affidavit, Thigpen argued in his responsive brief that a quasi-contract had been formed when Thigpen relied on Mr. Edmonds's promise and the City ratified Mr. Edmonds's actions in the subsequent meeting with former Mayor Hash. Thus, Thigpen argued that he could prevail and that the matter should proceed to trial.
In its reply, the City argued that Thigpen's...
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...Attorney General. It is a well-settled principle of appellate law that we will not make a party's argument for it. Thigpen v. City of El Dorado, 2020 Ark. App. 531, at 7. On this point, we also affirm. Finally, in point six, APOS argues that "the lower court erred in finding that any damage......