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HomeMy WebLinkAbout1994-04-20 Minutesl .1 .i - MINUTES OF A MEETING OF THE CITY COUNCIL A special -meeting of the Fayetteville City Council was -held on Wednesday, April 20, 1994, at .4:30 p.m: in Room 326 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. PRESENT: Mayor Fred Hanna; Aldermen Fred Vorsanger, Len Edens, Joe Box) Heather Daniel, Kit Williams,•Conrad Odom;.and Woody Bassett; City Attorney Jerry Rose; City Clerk Sherry Thomas; City Treasurer Glyndon Bunton; Administrative Services Director Ben Mayes; Public Works Director Kevin Crosson; members of, staff; press,:and audience. , ABSENT: Alderman Stephen Miller CALL TO ORDER Mayor .Hanna called the meeting to order with seven aldermen present. INCINERATOR LAWSUIT Mayor Hanna introduced Walter Niblock, Niblock Law Firm, who addressed the Council regarding the incinerator lawsuit. Walter Niblock stated he wanted the Council to look at this issue in a calm manner. The City won in the lower court. However, the City still owes money, and that debt is growing at a rate of about $3,000 per day. The purpose of the lawsuit was to get the city in a position to pay the debt and preserve its credit rating. The law firm of McDermott, Will & Emery were assigned this task to begin with. Niblock stated 'he was concerned abou the urge to make a hasty decision on some really important issues. -The third party claims the City has'need to be maintained and possibly pursued in the future. He asked who wanted the nonsuits filed. He stated all of the third party entities want them to be filed. But., he does not see any great benefit to the Council in filing the nonsuits. Niblock stated under Rule 54 of the Arkansas Rules of Civil Procedures, the City has 4 major options: 1) The City could file a motion with Judge Adams and ask him to repair the order and make it more palatable to the supreme court. Even if he did this, the trial court lost jurisdiction over the case when the appeal was filed with the supreme court. Oncethe appeal has been filed and the order entered,'jurisdiction,by the lower court is lost. 2). The City could transfer all of the third party cases to circuit court. Judge Adams could shed all of the third party cases, and that way he would not have anything left except Barnhart 'v. City. 3) The City could request a nonsuit at.the appropriate time. 4) The third party cases could be set for trial and get a final order on them. April 20, 1994 Niblock advised the City Council remain calm and let the supreme court rule on the case. He could file a motion to expedite and try and get them to hurry and hear the case. But, he would prefer to not do that. Alderman Williams stated if the supreme court remands the case back to the lower court, could the City ask them to reconsider this decision. Kitty Gay, Niblock Law Firm, stated they can't get to the trial court to do anything until the case has been remanded back to that level. Alderman Williams asked if she talked with the chancellor. Gay stated she has spoken with Judge Adams. She stated he thinks he probably does not have jurisdiction to enter an order now. Alderman Vorsanger stated he was confused. The supreme court has not yet ruled. He asked why the City was not waiting for this ruling. Gay stated that is her recommendation. Alderman Edens asked if the City should have some information about this on Monday. Niblock stated the supreme court justices have a conference Friday. Theoretically, it is to discuss cases, vote, and make decisions. They may announce on Monday, but there is no way to be sure. Gay stated if they kick the case back on procedural grounds, they will probably do so quickly. If they do this, there is no reason to do any more briefing. She stated at that point, she would ask the court to fast track the case. Alderman Bassett stated he knows the City won in the lower court. But, the really critical decision will be made at the Arkansas Supreme Court. He is concerned about the debt that is piling up and not taking any control over this issue. He asked if the argument that the only order on appeal does not include the third party suits. Gay stated the third party and cross-claims are all lower court cases. She thinks the judge would entertain a motion to move them to circuit court. Alderman Bassett stated the City would have a year to refile the non -suits. He does not see any downside to doing this. Gay stated they could not transfer between counties, and there could be a venue problem. April 20, 1994.! Alderman Bassett stated if the supreme court kicks the case back to the lower court, the City needs to get a revised order from the supreme court. That- is one option. He asked Gay to rankthe various options the. City would have. Gay stated the first option wouldd-be to cure.the order, but this one has a built in risk of further delay. Second, would be to ask for a transfer to circuit court. That would cure the case. The third option is certain, sure way. That would be to non -suit the third party and cross-claims. However, it is the most,drastic way to cure the case.., Gay stated Judge-Adams;obviously'felt the third party -cases should be split off and handled after the rest'of this case -has been finished. .r Alderman Vorsanger asked what if the supreme'court rules in favor of the City. '; t , 14 Gay stated all of this will be moot. She stated -the supreme court was concerned that the order was not final and that they should not rule. She stated there is nothing without risk and a downside, so the issues have to be weighed. AldermanWilliams stated he was concerned about trying to do,• something the City's attorneys are advising against. Alderman Odom stated the City' s. attorneys. supreme court ruling, he is the alderman, and If they feel the City he will vote that way. Gay and Niblock are, should wait for the Alderman Williams asked Dale Evans,. attorney for the rate:payers of the City, if he plans to get the case back before the supreme court as quickly as possible. Dale Evans stated both groups, the City and the ratepayers, need to get this case' resolved as soon as possible. Alderman Edens stated this case has been going on for five years. The ratepayers lose in the long run if the City wins or loses the case. Rose asked Evans if he was in concert with the City in seeking to cooperate and get this case resolved as quickly as possible. Evans stated it is in his client's best interest to get the case resolved. He agreed with Nibiock and Gay in that he feels the supreme court justices felt the case was not ready forthe supreme court. April 20, 1994 Rose asked Evans if he would be interested in trying to do joint motions. If the case is returned to the lower court, the plaintiff has 30 days to file their appeal. He asked if this would be done as quickly as possible. Evans stated he sees no reason for dragging this out. If the case is sent back to the lower court, and if it can be resolved in 29 or 30 days, he sees no reason not to file the appeal immediately. He has no problem with trying to advance the case. Gay asked Evans if he would rest on the briefs that have already been filed. Evans stated he would unless the facts change. He stated he gets the sense the supreme court wants to get everything litigated. Niblock stated the trustee wants to get the case over with as quickly as possible also. Mayor Hanna stated the question before the Council is whether or not to file for non -suits now or wait for the supreme court to rule. Vorsanger, seconded by Daniel, made a motion to wait for the Arkansas Supreme Court ruling before filing any nonsuits or taking any further action. Upon roll call, the motion passed by a vote of 6 to 1, with Bassett voting no. ADJOURNMENT The meeting adjourned at 5:10 p.m.