HomeMy WebLinkAbout96-90 RESOLUTIONRESOLUTION NO. 96-90
A RESOLUTION AUTHORIZING THE TRANSFER OF FUNDS
TO COVER THE LEGAL AND WITNESS FEES REGARDING
THE STANBERRY LAWSUIT AND APPROVAL OF A BUDGET
ADJUSTMENT.
BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the Board of Directors hereby authorizes
the transfer of funds from the Unreserved Fund Balance to cover
the legal, and witness fees regarding the Stanberry lawsuit.
. I. , • ,
4.'Section 2°, = The Board of Directors 'hereby approves the
budget adjustment in the amount of $26,100.00. A copy of the
budget adjustment, authorized for execution hereby is attached
hereto marked Exhibit "A" -and made a part'hereof.
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PASSED AND'APPROVED thio 19th day of June
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APPROVED:
By:
Mayor
, 1990.
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JAMES N. McCORD
ATTORNEY AT LAW
Walker -Stone House
207 West Center Street
Fayetteville, Arkansas 72701
TO: Fayetteville Board of Directors
FROM: James N. McCord, Attorney at Law
DATE: April 16, 1990
RE:
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1501)
6-
(501) 442-8846
Ernest Stanberry and Carol Stanberry v. City of
Fayetteville, Arkansas, Washington County Circuit Court
No. CIV 87-208
In the above referenced inverse condemnation case, plaintiffs'
sought to recover $600,000.00 in damages from the City of
Fayetteville for the periodic discharge of raw sewage and sewage
odors onto their lands for approximately 20 years. Following a
three day jury trial which began April 10, 1990, before Circuit
Judge Kim Smith, the jury returned a verdict in favor of plaintiffs
for $260,000.00.
The trial court refused to give several jury instructions requested
by the City. This may constitute reversible error. Although the
City pled the statute of limitations as an affirmative defense to
the inverse condemnation claim, the court refused to instruct the
jury on this defense. The Court also refused to instruct the jury
that the plaintiffs must prove their land has been permanently
damaged. In a similar case where the statute of limitations was
pled as a defense, the Supreme Court held:
""'It seems well settled that in an action for damages
for permanent injury to real estate caused by continuing
salt water pollution the limitation begins to run at the
time when it becomes obvious when a permanent injury has
been suffered."'
There are, therefore, two fact questions for the jury to
decide: (a) whether the damage was permanent, and (b) if
so, when did it become, or should it have become obvious
to appellees. . . " City of Springdale v. Weathers, 239
Ark. 535, 390 S.W.2d 125 (1965).
Dr. Stanberry testified that the lake on his property was
permanently polluted by a discharge of raw sewage which occurred
in March, 1984. He testified that the lakewas not polluted prior
to this discharge. The Supreme Court has ruled that a single
sewage overflow does not entitle a landowner to monetary damages.
•
RE: Ernest Stanberry and Carol Stanberry V. City of Fayetteville,
Arkansas, Washington County Circuit Court No. CIV 87-208
April 16, 1990
Page 2
City of Fort Smith v. Anderson, 241 Ark. 824, 410 S.W.2d 597
(1967). The court refused the City's requested instruction on this
rule of law.
In overruling the City's requested jury instructions, the court
cited a recent Supreme Court decision holding that a continuing
trespass or nuisance can ripen into inverse condemnation. Robinson
v. City of Ashdown, 301 Ark. 226, S.W.2d (1990). In my
opinion, Robinson did not overrule City of Springdale v. Weathers,
supra.
At trial, the landowners' environmental engineer admitted he had
not taken and tested water samples or sedimentation samples from
the Stanberry pond. Over objections by the City, he testified that
he believed AIDS virus and hepatitis bacteria from City sewage
could be present in the Stanberry pond. This testimony could very
well have inflamed the jury.
The Fayetteville Board of Directors should determine whether to
instruct this office to appeal the jury's verdict. Notice of
Appeal must be filed within thirty (30) days from the date judgment
is entered. Interest on the judgment will accrue at the rate of
ten percent per annum from the date of entry. The City can post
a supersedeas bond to stay enforcement of the judgment pending a
decision on appeal. In past cases, the court has allowed the City
to pledge certificates of deposit as security for a supersedeas
bond. Cost of an appeal is estimated at less than $10,000.00.
Plaintiffs are seeking prejudgment interest which could result in
a total judgment of over $325,000.00. The City will contend that
plaintiffs are not entitled to prejudgment interest because they
never had to surrender possession of their property. In Arkansas
State Highway Commission v. Musivick Cigar & Beverage Co., 231 Ark.
265, 329 S.W.2d 173 (1959) the Supreme Court ruled that interest
on damages for the taking of property in an eminentdomain
proceeding runs from the date of surrender of possession of the
property .sought to the date of payment. In Foster v. Arkansas
State Highway Commission, 263 Ark. 62, 562 S.W.2d 298 (1978), the
court ruled that a junkyard owner was not entitled to interest on
the just compensation award where he had not surrendered possession
of the junkyard as of the trial date.
cc: Mr. Scott Linebaugh, Acting City Manager
Mr. Jerry Rose, City Attorney