HomeMy WebLinkAboutHolliman v. Liles_ 72 Ark. App. 169 Cited
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Holliman v. Liles
Court of Appeals of Arkansas, Division Two
December 20, 2000, Opinion Delivered
CA 00-131
Reporter
72 Ark. App. 169 *; 35 S.W.3d 369 **; 2000 Ark. App. LEXIS 805 ***
Altis HOLLIMAN and Judy Holliman v. Delbert LILES,
Barbara Liles, and the City of Quitman
Prior History: [***1] Appeal from Cleburne Chancery
Court; Stephen Choate, Chancellor.
Disposition: Reversed and remanded.
Core Terms
street, abutting, alley, city council, appellants', ordinance,
vacated, statute of limitations, five year, summary judgment
Case Summary
Procedural Posture
Appellants challenged an order of the Cleburne County
Chancery Court (Arkansas) dismissing appellants' petition
challenging the validity of an ordinance passed by appellee
city council closing a street, arguing appellee failed to follow
the dictates of Ark. Code Ann. §§ 14-301-301 to -306 (1987).
Overview
After a public hearing, appellee city council passed an
ordinance closing a public street. Appellants challenged the
ordinance's validity, arguing appellee failed to follow the
dictates of Ark. Code Ann. §§ 14-301-301 to -306 (1987) prior
to enacting the ordinance. Appellees moved to dismiss,
contending appellants' challenge was barred by the statute of
limitations. The trial court granted the motion, holding
appellants failed to file their action within the statute of
limitations, appellee was not required to obtain appellants'
permission to vacate the street because their property did not
abut it, and rejected appellants' argument appellee failed to
prove the street had not been used for at least five years.
Appellants challenged the trial court's ruling. The court held
Ark. Code Ann. § 14-301-301 (1987) provided appellee the
authority to vacate dedicated public streets when they had not
been used by the public for a period of five years. The court
reversed, holding there were genuine issues of material fact as
to whether the street's non-use had lasted for five years and
whether appellants owned abutting property that should have
been tried.
Outcome
Judgment reversed, because there were genuine issues of
material fact as to whether the period of the street's non-use
had lasted for five years before the ordinance was passed, and
whether appellants owned abutting property that should have
been tried. Thus, the trial court erred in dismissing appellants'
complaint.
LexisNexis® Headnotes
Governments > Public Improvements > Financing
Real Property Law > ... > Transfer Not By
Deed > Dedication > Termination
Transportation Law > Bridges & Roads > Abandonment
& Vacation
Governments > Local Governments > Duties & Powers
Real Property Law > ... > Transfer Not By
Deed > Dedication > General Overview
HN1[] Public Improvements, Financing
Ark. Code Ann. § 14-301-301 (1987) provides authority for
cities of the first and second class to vacate platted, filed of
record, and dedicated public streets and alleys when the street
or alley has not been used by the public for a period of five
years.
Page 2 of 5
Governments > Public Improvements > Financing
Transportation Law > Bridges & Roads > Abandonment
& Vacation
Governments > Legislation > Statute of
Limitations > General Overview
Governments > Legislation > Statute of
Limitations > Time Limitations
HN2[] Public Improvements, Financing
Ark. Code Ann. § 14-301-303 (1987) provides that no street
or alley, or any portion thereof, shall be abandoned or vacated
unless the written consent of the owners of all lots abutting on
the street or alley, or the portion thereof, to be vacated has
been filed with the city council. The statute of limitations set
forth in Ark. Code Ann. § 14-301-305(a) (1987) provides that
a city council's ordinance shall be conclusive unless suit to
reject it is brought in chancery court within 30 days after its
passage.
Civil Procedure > ... > Summary Judgment > Entitlement
as Matter of Law > General Overview
HN3[] Summary Judgment, Entitlement as Matter of
Law
When matters outside the pleadings are presented and not
excluded by the trial court in connection with an Ark. R. Civ.
P. 12(b) motion, the motion is treated as one for summary
judgment under Ark. R. Civ. P. 56.
Civil Procedure > ... > Summary Judgment > Entitlement
as Matter of Law > Appropriateness
Civil Procedure > Judgments > Summary
Judgment > General Overview
Civil Procedure > Judgments > Summary
Judgment > Evidentiary Considerations
Civil Procedure > ... > Summary Judgment > Entitlement
as Matter of Law > General Overview
Civil Procedure > ... > Summary Judgment > Entitlement
as Matter of Law > Materiality of Facts
HN4[] Entitlement as Matter of Law, Appropriateness
Summary judgment should be granted only when it is clear
that there are no disputed issues of material fact. All evidence
must be viewed in the light most favorable to the party
resisting the motion; he is also entitled to have all doubts and
inferences resolved in his favor. Summary judgment is
inappropriate when facts remain in dispute or when
undisputed facts may lead to differing conclusions as to
whether the moving party is entitled to judgment as a matter
of law. When the evidence leaves room for a reasonable
difference of opinion, summary judgment is not appropriate.
The object of summary judgment proceedings is not to try the
issues, but to determine if there are any issues to be tried, and
if there is any doubt whatsoever, the motion should be denied.
Governments > Local Governments > Duties & Powers
Governments > Legislation > Statute of
Limitations > General Overview
Governments > Legislation > Statute of
Limitations > Time Limitations
HN5[] Local Governments, Duties & Powers
Municipalities are statutory creatures and, as such, have only
the power bestowed upon them by statute or the Arkansas
Constitution.
Civil Procedure > ... > Affirmative Defenses > Statute of
Limitations > Governmental Entities
Governments > Public Improvements > Financing
Governments > Legislation > Statute of
Limitations > General Overview
Governments > Local Governments > Duties & Powers
HN6[] Statute of Limitations, Governmental Entities
A city's governing board cannot give away a city's streets
without the consent of abutting owners or without statutory
authority; any attempt to do so is ultra vires. Any substantial
doubt about the existence of a power in a municipal
corporation must be resolved against it.
Headnotes/Summary
Headnotes
72 Ark. App. 169, *169; 35 S.W.3d 369, **369; 2000 Ark. App. LEXIS 805, ***1
Page 3 of 5
1. Civil procedure -- summary judgment -- when granted.
-- When matters outside the pleadings are presented and not
excluded by the trial court in connection with an Ark. R. Civ.
P. 12(b) motion, the motion is treated as one for summary
judgment under Ark. R. Civ. P. 56; summary judgment should
be granted only when it is clear that there are no disputed
issues of material fact; all evidence must be viewed in the
light most favorable to the party resisting the motion; he is
also entitled to have all doubts and inferences resolved in his
favor.
2. Civil procedure -- summary judgment -- when
inappropriate. -- Summary judgment is inappropriate when
facts remain in dispute or when undisputed facts may lead to
differing conclusions as to whether the moving party is
entitled to judgment as a matter of law; when the evidence
leaves room for a reasonable difference of opinion, summary
judgment is not appropriate.
3. Civil procedure -- summary judgment -- object. -- The
object of summary judgment proceedings is not to try issues,
but to determine if there are any issues to be tried, and if there
is any doubt whatsoever, the motion should be denied.
4. Civil procedure -- decision based on evidence submitted
in addition to pleadings -- order was in essence summary
judgment. -- Because the chancellor based his decision on
evidence submitted in addition to the pleadings, the order
dismissing this case was in essence a summary judgment.
5. Municipal corporations -- vacation of street -- no
statutory requirement that petition state that street to be
abandoned had not been used by public for five years. --
The appellate court disagreed with appellants' contention that
appellees were required to state in their petition that the street,
or the portion thereof, to be abandoned had not been used by
the public for five years; the statutes do not require such a
statement.
6. Municipal corporations -- thirty-day limitation on
challenges to actions taken by city government --
inapplicable if statutory conditions not met. -- If the
statutory conditions were not met when the city council
passed the ordinance to vacate the street, the thirty-day statute
of limitations does not apply because municipalities are
statutory creatures and, as such, have only the power
bestowed upon them by statute or the Arkansas Constitution.
7. Municipal corporations -- vacation of street -- must
have consent of abutting owners or statutory authority. --
A city's governing board cannot give away a city's streets
without consent of abutting owners or without statutory
authority; any attempt to do so is ultra vires.
8. Municipal corporations -- doubt as to power of
municipal corporation resolved against city. -- Any
substantial doubt about the existence of a power in a
municipal corporation must be resolved against it.
9. Municipal corporations -- requirement of statutory
process for vacation of street -- no proof that period of
nonuse had lasted five years. -- One requirement of the
statutory process to vacate a street is that the street has not
been used by the public for at least five years; where no
evidence was presented to the city council or to the chancellor
that the period of nonuse had lasted for five years before the
ordinance was passed, this issue should have been tried.
10. Municipal corporations -- requirement of statutory
process for vacation of street -- what constitutes
"abutting" portion of street to be vacated. -- The supreme
court has determined that where appellants' property did not
actually touch the portion of the alley the city board had
closed, but closing of a part of the alley adversely affected use
of their property, there was an adverse effect, and so
appellants were abutting property owners whose written
consent was required before the alley could be closed.
11. Municipal corporations -- vacation of street -- whether
appellants considered abutting property owners issue of
material fact that should have been tried. -- Where it was
obvious that, although appellants' ingress and egress would
not be blocked, the portion of the street abutting their property
had been narrowed, which they claimed would have an
adverse effect on the use of their property, it was necessary to
determine the extent of the adverse effect that the
abandonment would have on the parties challenging it, which
was a factual determination.
12. Appeal & error -- chancellor erred in dismissing
appellants' complaint -- reversed & remanded. -- Where
the question of whether appellants were the owners of
abutting property was an issue of material fact that should
have been tried, the chancellor erred in dismissing appellants'
complaint; reversed and remanded.
Counsel: Henry & Henry, by: Clifford J. Henry, for
appellant.
Anne Orsi Smith, for appellees Delbert & Barbara Liles.
J. Russell Green, for appellee City of Quitman.
Judges: John Mauzy Pittman, Judge. JENNINGS and NEAL,
JJ., agree.
Opinion by: John Mauzy Pittman
72 Ark. App. 169, *169; 35 S.W.3d 369, **369; 2000 Ark. App. LEXIS 805, ***1
Page 4 of 5
Opinion
[*171] [**370] John Mauzy Pittman, Judge. This is an
appeal from an order of the Cleburne County Chancery Court
dismissing appellants' petition challenging the validity of an
ordinance passed by the Quitman city council that closed the
south ten feet of Mulberry Street. Appellants Altis Holliman
and Judy Holliman own block 12, which abuts the northern
boundary of Mulberry Street, and appellees Delbert Liles and
Barbara Liles own block thirteen, which abuts its southern
boundary. On February 8, 1999, appellees filed a petition with
the city council requesting that the south ten feet of the street
be vacated and abandoned. The city council held a public
hearing on March 8, 1999, at which appellant Altis Holliman
appeared to voice his objections to appellees' petition. The
city council granted appellees' petition that day.
[**371] On June 18, 1999, appellants [***2] filed this
action against appellees and the City of Quitman to nullify the
ordinance, claiming that the city council had failed to follow
the dictates of Ark. Code Ann. §§ 14-301-301 through 14-
301-306 (1987). HN1[] Arkansas Code Annotated section
14-301-301 (1987) provides authority for cities of the first
and second class to vacate platted, filed of record, and
dedicated public streets and alleys when the street or alley has
not been used by the public for a period of five years.
Quitman is a city of the second class. HN2[] Arkansas
Code Annotated section 14-301-303 (1987) provides that no
street or alley, or any portion thereof, shall be abandoned or
vacated unless the written consent of "the owners of all lots
abutting on the street or alley, or the portion thereof, to be
vacated" has been filed with the city council. It is undisputed
that appellants did not give their consent. The statute of
limitations set forth in Ark. Code Ann. § 14-301-305(a)
(1987) provides that the city council's ordinance shall be
conclusive unless suit to reject it is brought in chancery court
within thirty days after its passage.
Appellees moved to dismiss the complaint on the ground that
it was barred by the [***3] statute of limitations. The
chancellor then held [*172] a hearing and listened to a tape of
the city council meeting. He dismissed the complaint because
appellants failed to file the action within the thirty-day statute
of limitations. He also found that the city council was not
required to obtain appellants' permission to vacate that portion
of the street because their property does not abut it. He further
rejected appellants' argument that the city council had taken
no proof that this portion of the street had not been used for at
least five years, stating:
My review of the tape of the March 8, 1999 public
hearing and City Council meeting indicates the
Councilmen were very familiar with the streets of
Quitman, having measured most of them. This, coupled
with the reading of the ordinance, convinces me they
were fully aware of the fact Mulberry Street was not an
open street. Mr. Holliman even discussed his willingness
to use his men and equipment to put in the road bed.
Because the chancellor based his decision on evidence
submitted in addition to the pleadings, the order dismissing
this case was in essence a summary judgment. HN3[]
When matters outside the pleadings are presented [***4] and
not excluded by the trial court in connection with an Ark. R.
Civ. P. 12(b) motion, the motion is treated as one for
summary judgment under Ark. R. Civ. P. 56. McQuay v.
Guntharp, 331 Ark. 466, 963 S.W.2d 583 (1998). HN4[]
Summary judgment should be granted only when it is clear
that there are no disputed issues of material fact. Porter v.
Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997). All evidence
must be viewed in the light most favorable to the party
resisting the motion; he is also entitled to have all doubts and
inferences resolved in his favor. Id. Summary judgment is
inappropriate when facts remain in dispute or when
undisputed facts may lead to differing conclusions as to
whether the moving party is entitled to judgment as a matter
of law. See Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712
(1998). When the evidence leaves room for a reasonable
difference of opinion, summary judgment is not appropriate.
See Martin v. Arthur, 339 Ark. 149, 3 S.W.3d 684 (1999). The
object of summary judgment proceedings is not to try the
issues, but to determine if there are any issues to be tried, and
if there is any doubt [***5] whatsoever, the motion should be
denied. See Walker v. Stephens, 3 Ark. App. 205, 626 S.W.2d
200 (1981).
[*173] Appellants argue that the chancellor erred in finding
that their consent was not required because their property
does not abut the portion of Mulberry Street to be vacated; in
finding that appellees were not required to assert in their
petition that the street had not been used for five years; in
finding that the city council members were aware that the
street was not open; and in [**372] finding that this action is
barred by the statute of limitations.
We disagree with appellants' contention that appellees were
required to state in their petition that the street, or the portion
thereof, to be abandoned had not been used by the public for
five years. The statutes do not require such a statement.
However, we agree with appellants that, if the statutory
conditions were not met when the city council passed the
ordinance, the thirty-day statute of limitations does not apply.
Jones v. American Home Life Ins. Co., 293 Ark. 330, 738
S.W.2d 387 (1987). See also Stephens v. City of Springdale,
72 Ark. App. 169, *169; 35 S.W.3d 369, **369; 2000 Ark. App. LEXIS 805, ***1
Page 5 of 5
233 Ark. 865, 350 S.W.2d 182 (1961). This conclusion [***6]
is based upon the fact that HN5[] municipalities are
statutory creatures and, as such, have only the power
bestowed upon them by statute or the Arkansas Constitution.
See Jones v. American Home Life Ins. Co, supra. HN6[] A
city's governing board cannot give away a city's streets
without the consent of abutting owners or without statutory
authority; any attempt to do so is ultra vires. Freeze v. Jones,
260 Ark. 193, 539 S.W.2d 425 (1976). Any substantial doubt
about the existence of a power in a municipal corporation
must be resolved against it. Stilley v. Henson, 342 Ark. 346,
28 S.W.3d 274 (2000). Therefore, we cannot say whether the
statute of limitations barred this action unless we can
determine, as a matter of law, that all of the requirements of
the statutory process were met.
One requirement is that the street has not been used by the
public for at least five years. Although one could infer from
the transcript of the city council meeting that this portion of
the street was not in use at the time that the ordinance was
passed, no evidence was presented to the city council or to the
chancellor that the period of non-use had lasted for
five [***7] years before the ordinance was passed. Therefore,
this issue should have been tried.
Further, we do not agree with the chancellor that, as a matter
of law, appellants' property does not abut the portion of
the [*174] street to be vacated. Although the statute does not
define the term "abutting," the supreme court's decision in
Roberts v. Pace, 230 Ark. 280, 322 S.W.2d 75 (1959),
provides guidance on this issue. In that case, the appellants'
property did not actually touch the portion of the alley the city
board had closed, but the closing of a part of the alley
adversely affected the use of their property. The supreme
court held that, because of this adverse effect, the appellants
were abutting property owners whose written consent was
required before the alley could be closed:
It is the contention of appellees that it was necessary
only to have the written consent of all the property
owners abutting the portion of the alley affected. For the
purpose of this opinion it may be conceded that all other
requirements of the pertinent statutes were satisfied in
this case….
We think however appellees make the mistake of
assuming that they have closed [***8] only a portion of
the alley and not all of it. It is too obvious for argument
that from a practical standpoint, and particularly as
regards appellants' right of ingress and egress, the entire
alley will be closed if both ends are closed. We express
no opinion as to what our holding would be if the south
end of the alley was not closed.
If we consider, as we do, that the entire alley will be
closed under Ordinance No. 2239 and the trial court's
ruling, then appellees must fail because all the abutting
property owners have not given their written consent, a
prerequisite required by the statute.
230 Ark. at 283-84, 322 S.W.2d at 77.
Here, it seems obvious that, although appellants' ingress and
egress will not be blocked, the portion of the street abutting
their property has been narrowed, which they claim will have
an adverse effect on the use of their property. Roberts v. Pace
[**373] does not hold as a matter of law that a property
owner's ingress and egress must be blocked before he will be
deemed to have the status of an abutting property owner
whose consent is required. Instead, the basis of the supreme
court's decision in that case was the extent of the [***9]
adverse effect that the abandonment would have on the parties
challenging it, which was a factual determination.
Accordingly, whether appellants are the owners of abutting
property was an issue of material fact that should have been
tried, and the chancellor erred in dismissing appellants'
complaint.
[*175] Reversed and remanded.
JENNINGS and NEAL, JJ., agree.
End of Document
72 Ark. App. 169, *173; 35 S.W.3d 369, **372; 2000 Ark. App. LEXIS 805, ***5