HomeMy WebLinkAbout12A-00 RESOLUTION• •
RESOLUTION NO 1 9 -nn -A
A RESOLUTION APPROVING A SETTLEMENT AGREEMENT
WITH GRIFFIN INDUSTRIES, INC. d/b/a BAKERY FEEDS.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
ARKANSAS:
Section L. That the City Council hereby authorizes the Mayor and City Clerk to enter
into a settlement agreement with Griffin Industries, Inc. d/b/a Bakery Feeds. The settlement shall
contain substantially the same terms as set forth in Griffin Industries, Inc.'s letter to the City dated
January 13, 2000, attached hereto and made a part hereof.
PASSED AND APPROVED this JAL day of January , 2000.
rt5T, r
aet
Heather Woodruff, City Clerk
APPROVE .
By:
red Hanna, Mayor
NAME OF FILE:
CROSS REFERENCE:
Date
Contents of File
Initials
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SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release (hereinafter "Settlement Agreement"), dated
this _ day of , 2000, is entered into by and among the following, who are collectively
referred to as the "Parties": James Harp, Billie Harp, Wanda Arnold, John Arnold, Roy Harp, Wilma
Harp, Jerry Lewis, Maxine Lewis, Cleo Ritchie, W. J. Sheeler, Linda Sheeler, Vermalea Smith, Lena
Jenkins, Julian Watts, and Edwardene Watts ("James Harp, et al."); Griffin Industries, Inc d/b/a
Bakery Feeds ("Griffin Industries"); the City of Fayetteville, Arkansas, its City Council members
in their official capacities -- Robert Reynolds, Ron Austin, Cyrus Young, Kyle Russell, Trent
Trumbo, Bob Davis, Kevin Santos, Heather Daniel -- and its Mayor in his official capacity, Fred B.
Hanna, Jr., (collectively the "City"); and Teresa Eastin.
RECITALS
1. James Harp, et al. are individuals and residents of Fayetteville, Washington County,
Arkansas.
2. Griffin Industries, Inc., is a Kentucky Corporation registered to do business in
Arkansas and is doing business in Fayetteville, Washington County, Arkansas.
3. The City of Fayetteville, Arkansas, is a City of the First Class and a Municipal
Corporation organized under the Laws of the State of Arkansas.
4. Teresa Fastin, an individual, is a resident of Fayetteville, Washington County,
Arkansas.
5. In 1994, Griffin Industries began its Fayetteville operations doing business as Bakery
Feeds after receiving several permits from the City. Griffin Industries has continuously operated its
business in Fayetteville, Arkansas from September of 1994 through the present.
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6. On or around March 1, 1999, Griffin Industries filed its appeal to the Circuit Court
of Washington County, Arkansas from the Fayetteville Planning Commission's denial of Griffin
Industries' application for a "Conditional Use Unit 28" classification. Case No. CIV 99-248.
7. On April 7, 1999, the City filed a Petition for Injunctive Relief that is currently
pending in the Washington County Chancery Court styled City of Fayetteville a Municipal
Corporation v. Griffin Industnes. Inc. d/b/a Bakery Feeds Corp. and the Burlington Northern and
Santa Fe Railway Company, Case No. E 99-552. Therein, the City has asked the Court to declare
the use of Griffin Industries' building and premises to be unlawful under the zoning regulations of
the City of Fayetteville The City has further sought an Order temporarily and permanently
enjoining Griffin Industries from "continuing, renewing, and/or extending such unlawful use and
enjoining any further use of the building or premises without obtaining a certificate of zoning
compliance as required by the zoning regulations of the City of Fayetteville " Griffin Industries
denies it is in violation of the City's zoning laws and filed a counterclaim contending that the City's
actions have constituted a taking for which just compensation must be paid.
8. On April 26, 1999, James Harp, et al filed a Petition to abate private nuisance in the
Chancery Court of Washington County, Arkansas, Case No. E-99-675. Thereafter, Griffin Industries
removed that case to Federal Court in a case which is now captioned James Harp. et al. v. Griffin
Industries. Inc.. et al., U.S.D.C. 99-5075 (W.D. Ark) In that case, the plaintiffs contend that Griffin
Industries constitutes a private nuisance and that Griffin Industries' operations have resulted in a
trespass upon the plaintiffs' properties. Griffin Industries denies these allegations.
9. On July 7, 1999, the City filed a Petition in Intervention in the case captioned James
Harp. et al v Griffin Industries Inc.. et al., U.S.D.C., Case No. 99-5075 ( W.D. Ark.). The City has
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asked the United States District Court for the Western District of Arkansas to declare Griffin
Industries's Fayetteville operations a public nuisance. Griffin Industries has filed a counterclaim
against the City alleging the tort of intentional interference with contractual relations and business
expectancies and seeking monetary damages from the City.
10. The City also has issued numerous citations to Griffin Industries alleging violations
of the City's noise ordinances. Approximately fourteen (14) such cases are currently pending in
Fayetteville's Municipal Court. The pending cases are as follows: Case No. A 268520, A 268523,
A 270438, A 269672, A 270198, A 264886, A 264885, A 270152, A 269668, A 267794, A 271155,
A 270638, A 2669669, A 274077.
11. The above -referenced cases involve numerous contested and disputed issues and
controversies. The Parties have pursued these legal actions and acknowledge that the outcome of
such proceedings in all jurisdictions is uncertain.
12. Each of the Parties desires to resolve all claims, controversies, disputes, causes of
action and disagreements existing among them without further costs, contested risks, delays and
burdens of additional litigation, without any admission, other than as may be provided herein, as to
the validity of any aspect of any other party's position in the pending proceedings.
AGREEMENT
NOW, THEREFORE, in consideration of this Settlement Agreement, the mutual covenants
and releases set forth herein, and for other good and valuable considerations, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
13. The City of Fayetteville agrees to pay to the order of Griffin Industries Eighty-five
Thousand Dollars ($85,000.00) upon the execution of this Settlement Agreement. The City further
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agrees to pay to the order of Griffin Industries Sixty-five Thousand Dollars ($65,000.00) on January
2, 2001.
14. James Harp, Billie Harp, Wanda Arnold, John Arnold, Roy Harp, Wilma Harp, Jerry
Lewis, Maxine Lewis, Cleo Ritchie, W. J. Sheeler, Linda Sheeler, Vermalea Smith, Lena Jenkins,
Julian Watts, and Edwardene Watts agree to pay to the order of Griffin Industries a total of
$7,500.00 within ninety (90) days of the execution of this Settlement Agreement.
15. The Parties agree that Griffin Industries may continue its current operations, which
include processing, at its present location for a period of ten (10) months following the execution
of this Settlement Agreement. Processing is the dehydration of moisture from the raw materials
handled by Griffin Industries. On or before the end of ten (10) months, Griffin Industries agrees to
cease its processing operations in Fayetteville, Arkansas.
16. The Parties agree that after Griffin Industries ceases its processing operations, it may
continue to utilize its premises at 1348 Cato Springs Road, in Fayetteville, for non -processing
activities in conformity with the City's zoning rules and regulations.
17. The City further agrees that it will not issue any noise violations to Griffin Industries
during the ten (10) month period of time that Griffin Industries is allowed to continue its processing
operations unless the conduct complained of is clearly egregious and well beyond Griffin Industries'
use of the site for the preceding four months.
18. The Parties and their attorneys hereby agree that no public comments, remarks or
statements will be made which would in any way disparage any other party. This prohibition shall
include, but not be limited to, any oral or written statement by any party, his attorney or his agent
to any private citizen, member of the press, or the public at large whether made via written
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instrument, telephone, television, Internet, or any other method of communication. This Settlement
Agreement is executed purely as a compromise of disputed claims, and no party, their attorneys or
agents, shall in any way expressly or implicitly imply that any party has made any legal admission.
19. Although not a party, Teresa Eastin hereby agrees to all of the provisions in paragraph
18, and will comply fully. Further, Teresa Eastin agrees and understands that the Federal Court is
retaining jurisdiction over this Settlement Agreement for purposes of enforcing it, as so stated in
paragraph 22, and agrees to said jurisdiction. In exchange for Teresa Eastin's promises and
commitments, Griffin Industries hereby agrees not to pursue legal action against Ms. Eastin based
upon her actions to date.
20. In consideration of the preceding paragraphs, Griffin Industries agrees not to pursue
any cause of action against any other party based upon his/her conduct which relates to the pending
controversies.
21. The Recitals set forth above are expressly made a part of this Agreement. This
Settlement Agreement shall be construed in light of the Recitals, each party representing and
acknowledging that the Recitals are true and accurate.
22. The Parties shall jointly move the United States District Court for the Western
District of Arkansas to enter an Order approving and incorporating by reference this Settlement
Agreement, without alteration, and approving the relevant terms of this Settlement Agreement.
Additionally, the Federal Court shall retain jurisdiction over this Settlement Agreement for purposes
of enforcing it by resort to appropriate Court sanctions and any other allowable remedies.
23. The City shall move the Municipal Court of Fayetteville, Arkansas, to enter an Order
dismissing all noise citations presently pending against Griffin Industries and any of its employees.
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24. The City and Griffin Industries shall jointly move the Chancery Court of Washington
County, Arkansas, to enter an Order (a) approving this Settlement Agreement, without alteration;
and (b) dismissing Case No. E 99-552, as well as the counterclaim alleged therein, with prejudice,
subject to the terms and conditions of this Settlement Agreement.
25. The City and Griffin Industries shall jointly move the Circuit Court of Washington
County, Arkansas, to enter an Order: (a) approving this Settlement Agreement, without alteration;
and (b) dismissing Case No. CIV 99-248 with prejudice, subject to the terms and conditions of this
Settlement Agreement.
26. The Parties shall be responsible for their attorneys' fees, costs and expenses incurred
to date in the pending proceedings, including but not limited to all fees and expenses due or
previously paid to the Bassett Law Firm, the Evans Law Firm or the Everett Law Firm.
27. In consideration of the promises, representations and undertakings described above,
the Parties, for themselves and their respective agents, attorneys, heirs, administrators, executors,
assigns, and anyone claiming any interest through them, herein release and forever discharge each
other and all of the other Parties' agents, attorneys, heirs, administrators, executors, and assigns from
any and all claims, actions, causes of action, suits, torts, contracts, agreements, promises, demands
and liabilities of any kind and nature in law or in equity, known or unknown, fixed or contingent,
arising from or relating to the litigation pending among the Parties in the United States District Court
for the Western District of Arkansas, the Circuit Court of Washington County, Arkansas, the
Chancery Court of Washington County, Arkansas, and the Municipal Court of Fayetteville,
Arkansas, all described above, provided however, that this Release shall not apply to claims arising
from a breach of this Settlement Agreement occurring after the date of execution. Said Release shall
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be binding on and shall enure to the benefit of the Parties' respective heirs, legatees, executors,
representatives, successors, assigns and agents.
28. The Parties shall make and execute any other such documents or agreed upon orders
as may be necessary to more fully effectuate the provisions and purposes of this Settlement
Agreement.
29. This Settlement Agreement constitutes the entire understanding between the Parties
with respect to the subject matter hereof and supersedes all negotiations, prior discussions or
preliminary agreements. In entering into this Settlement Agreement, the Parties have not relied upon
any previous or contemporaneous oral, written or implied representation, endorsement, agreement
or understanding of any kind which may have been communicated by any person or entity.
30. This Settlement Agreement shall not be altered, amended, changed, terminated or
modified in any respect without the express written consent of all of the Parties.
31. Except as provided in paragraphs 13 through 19 hereof, if any term or provision of
this Settlement Agreement is declared to be invalid in a court of competent jurisdiction or if any term
or provision of this Settlement Agreement conflicts with any applicable state or federal law, such
term or provision shall be severable from and shall not effect the validity of any other term or
provision of this Settlement Agreement.
32. This Settlement Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one and the same
Agreement.
33. All notices, requests, demands or other communications under this Settlement
Agreement shall be in writing and shall be deemed to have been duly given only if hand -delivered,
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delivered by private or overnight carrier or mailed, by certified or registered mail, return receipt
requested, as follows:
Griffin Industries, Inc.
c/o John C. Everett
Everett Law Firm
P.O. Box 1646
Fayetteville, Arkansas, 72702
The City of Fayetteville
Jerry Rose, City Attorney
113 West Mountain Street
Fayetteville, Arkansas
or
Woody Bassett
Bassett Law Firm
P.O. Box 3618
Fayetteville, Arkansas, 72702-3618
James Harp, et al. and Teresa Eastin
c/o Marshall Dale Evans
Evans Law Firm
P. O. Box 1986
Fayetteville, AR 72702
34. The Parties warrant and represent that each of them has not made nor suffered to be
made an assignment or transfer of any right, claim, demand or cause of action covered by this
Settlement Agreement.
35. This Settlement is a compromise of disputed claims and neither the Settlement
Agreement, nor any representation made in it, nor the exchange of any consideration made by virtue
of it, other than is contained in the Settlement Agreement itself, shall be construed as admitting the
merit or lack of merit of any claims or defenses relating to, or arising from the facts which form the
basis of the litigation presently pending and undetermined.
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36. The Parties to this Settlement Agreement represent and warrant that they have the
power and authority to enter into this Settlement Agreement and to perform all duties and obligations
herein.
IN WITNESS WHEREOF, the Parties have caused this Settlement Agreement and Mutual
Release to be executed and effective this day of , 2000.
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JAMES HARP
BILLIE HARP
WANDA ARNOLD
JOHN ARNOLD
ROY HARP
WILMA HARP
JERRY LEWIS
MAXINE LEWIS
CLEO RITCHIE
W. J. SHEELER
• •
LINDA SHEELER
VERMALEA SMITH
LENA JENKINS
JULIAN WATTS
EDWARDENE WATTS
GRIFFIN INDUSTRIES, INC. d/b/a
BAKERY FEEDS
BY:
Its President
CITY OF FAYETTEVILLE, ARKANSAS
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C., 0,,,cS„i
RON AUSTIN
RUS YOJM' G
TERESA EASTIN
MARSHALL DALE E\TAN
JE YROS'
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FILE No.599 01/13 '00 18:05 ID:MURPHY & LYONS, P.S.C. FAX:606 344 0886 PAGE 2/ 3
KEVIN L. MURPHY"
THOMAS C. LYONS
PEGGY MURPHY BARKER'
CHRISTIAN 6. STEGEMAN'
JEFFREY W. RUPLE'
MURPHY & LYONS, P.S.C.
Attorneys at Law
207 GRANDVIEW pRIVE, SUITE 350
P. 0. BOX 17330
COVINGTON, KENTUCKY 41017-0330
TELEPHONE: (O06) 34440330
TELECOPIER:(606)344-0806
January 13, 2000
VIA FAX: (501) 521-9600
Woody Bassett
BASSETT LAW FIRM
P.O. Box 3618
Fayetteville, Arkansas 72702-3618
VIA FAX:15011521-9895
Dale Evans
EVANS LAW FIRM, P.A.
P.O. Box 1986
Fayetteville, Arkansas 72702-1986
VIA FAX: (50115754315
Jerry E. Rose
City Attorney
113 West Mountain
Fayetteville, Arkansas 72701
Re: Griffin Industries, Inc. d/b/a Bakery Feeds
Gentlemen:
eas
1a. -OD
'ALSO ADMITTED IN 01110
This will confirm that we have a settlement in this case. We have accepted the
offer of the City of the $85,000.00 payment at the time the settlement agreement is
signed, and a $65,000 00 payment on January 2, 2001, for a total of $150,000.00. In
addition, the individual plaintiffs will pay a total of $7,500.00 to Griffin Industries.
The other items have been agreed upon. These were Items discussed either
during Magistrate Jones' settlement conference, on the telephone today, or both. They
are as follows We have ten (10) months to move from the date of the settlement
agreement being signed.
All lawsuits are to be dismissed between the parties, and that includes the noise
citations.
JAN -13-2000 17:05
606 344 0886 P.02
FILL No.b99 01/13 '00 18:05 ID:I1URPHY & LYONS, P.S.C. FAX:606 344.0886 - PAGE 3i 3
There will be no further harassment or actions taken by the City or the neighbors
against Bakery Feeds, including noise violations, unless the conduct is dearly
egregious and well beyond our, normal operations.
After we move, which must take place within ten months, there will no further
processing at the site. However, we will be permitted to utilize that site for non -
processing activities, again without any harassment or actions by the neighbors or the.
City.
The parties and their attorneys will refrain from any disparagement towards
Bakery Feeds - not now or any time in the future. That includes any statements orally,
in writing, or on the Internet, or any other form of communication. This also includes a
prohibition on influencing anyone else to disparage Bakery Feeds. Also, this prohibits
any negative statements regarding the settlement. Everybody seems to be pleased that
this resolution came to pass, and let's keep it that way.
The Federal Court will maintain jurisdiction over this settlement agreement for
purposes of enforcing it. That will give everyone additional incentive to comply with the
agreement. I have talked to everybody involved in this case, and they have all agreed
to this. I have talked to all three of you and the Magistrate about this issue.
Finally, Terry Eastin will sign off on this agreement and be bound by the Federal
Court on the disparagement issue She will also forego making any claims or negative
statements against Bakery Feeds in exchange for Bakery Feeds not filing the lawsuit it
intended to file for defamation and other claims Also, she will not influence others
along these lines. Everybody wants peace, and this agreement, as agreed, should work
well.
I thank the three of you for the work that you put in the other day to bring the
parties together. By copy of this letter, I want to thank Magistrate Jones for the hard
work she put in as well.
Sincerely,
d iL-2(AE)
�,�
KEVIN L. MURPHY
KLM/ajb
cc: Hon. Beverly Stites Jones (via fax: 501444-7897)
John C. Everett (via fax: 501443-0564)
John M. Scott (via fax: 501443-0564)
F:15HARE\GRI FFIMFAYETTEVILETTERStasseval.Itl.wpd
JAN -13-2000 17:06 606 344 0886
P.03
•
FILE No.599 01/13 '00 1805 ID:MURPHY & LYONS, P.S.C. FAX:606 344 0886 PAGE 2/ 3
KEVIN L. MURPHY"
THOMAS C. LYONS
PEGGY MURPHY BARKER'
CHRISTIAN 9. STEGEMAN'
JEFFREY W.RUPLE"
• •
MURPHY & LYONS, P.S.C.
Attorneys at Law
207 GRANDVIEW DRIVE, SUITE 350
P. 0. BOX 17330
COVINGTON, KENTUCKY 41017-0330
TELEPHONE: ME) 344•0530
TELECOPIER: (606) 344-08B6
January 13, 2000
VIA FAX: (5011 52114500
Woody Bassett
BASSETi LAW FIRM
P.O. Box 3618
Fayetteville, Arkansas 72702-3618
VIA FAX: 150115214995
Dale Evans
EVANS LAW FIRM, P.A.
P.O. Box 1986
Fayetteville, Arkansas 72702-1986
VIA FAX: (5011575-8315
Jerry E. Rose
City Attomey
113 West Mountain
Fayetteville, Arkansas 72701
Re: Griffin Industries, Inc. d/b/a Bakery Feeds
Gentlemen:
'ALSO ADMITTED IN ONTO
This will confirm that we have a settlement in this case. We have accepted the
offer of the City of the $85,000.00 payment at the time the settlement agreement is
signed, and a $65,000 00 payment on January 2, 2001, for a total of $150,000.00. In
addition, the individual plaintiffs will pay a total of $7,500.00 to Griffin Industries.
The other items have been agreed upon. These were items discussed either
during Magistrate Jones' settlement conference, on the telephone today, or both. They
are as follows. We have ten (10) months to move from the date of the settlement
agreement being signed.
All lawsuits are to be dismissed between the parties. and that includes the noise
citations.
JAN -13-2000 17:05
606 344 0886 P.02
Fitt No.599 01/13 '00 18:05 ID:MURPHY & LYONS, P.S.C. FAX:606 344 0886 PAGE 3i 3
• •
There will be no further harassment or actions taken by the City or the neighbors
against Bakery Feeds, including noise violations, unless the conduct is dearly
egregious and well beyond our normal operations.
After we move, which must take place within ten months, there will no further
processing at the site. However, we will be permitted to utilize that site for non -
processing activities, again without any harassment or actions by the neighbors or the
City.
The parties and their attomeys will refrain from any disparagement towards
Bakery Feeds - not now or any time in the future. That includes any statements orally,
in writing, or on the Internet, or any other form of communication. This also includes a
prohibition on influencing anyone else to disparage Bakery Feeds. Also, this prohibits
any negative statements regarding the settlement. Everybody seems to be pleased that
this resolution came to pass, and let's keep it that way.
The Federal Court will maintain jurisdiction over this settlement agreement for
purposes of enforcing it. That will give everyone additional incentive to comply with the
agreement. I have talked to everybody involved in this case, and they have all agreed
to this. I have talked to all three of you and the Magistrate about this issue.
Finally, Terry East!) will sign off on this agreement and be bound by the Federal
Court on the disparagement issue. She will also forego making any claims or negative
statements against Bakery Feeds in exchange for Bakery Feeds not filing the lawsuit it
intended to file for defamation and other claims Also, she will not influence others
along these lines. Everybody wants peace, and this agreement, as agreed, should work
well.
I thank the three of you for the work that you put in the other day to bring the
parties together. By copy of this letter, I want to thank Magistrate Jones for the hard
work she put in as well.
Sincerely,
KEVIN L. MURPHY
)911-41/4)
KLM/ajb
cc. Hon. Beverly Stites Jones (via fax: 501444-7897)
John C. Everett (via fax: 501443-0564)
John M. Scott (via fax: 501443-0564)
F:\SHARE\GRIFFIMFAYETTEViLETTERStassevan.ttr.wpd
JAN -13-2000 17:06 606 344 0886
P.03
• •
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
JAMES HARP, BILLIE HARP,
WANDA ARNOLD, JOHN ARNOLD,
ROY HARP, WILMA HARP, JERRY
LEWIS, MAXINE LEWIS, CLEO RITCHIE,
W. J. SHEELER, LINDA SHEELER,
VERMALEA SMITH, LENA JENKINS,
JULIAN WATTS and EDWARDENE WATTS
vs.
No. 99-5075
PLAINTIFFS
GRIFFIN INDUSTRIES, INC., A Kentucky
Corporation, d/b/a BAKERY FEEDS DEFENDANT/COUNTER-PLAINTIFF
CITY OF FAYETTEVILLE, ARKANSAS
A Municipal Corporation INTERVENOR/
COUNTER -DEFENDANT
Now on this
AGREED ORDER OF DISMISSAL
day of , 2000, comes on for consideration the
above -styled case. The Court hereby finds:
1. That the parties have entered into a Settlement Agreement and Mutual Release
("Settlement Agreement"), a copy of which is attached hereto as Exhibit "A," and which is
incorporated herein by reference.
2. That the parties wish to dismiss the instant action in its entirety, with the Court
retaining jurisdiction over the enforcement of the Settlement Agreement as set forth in paragraph 22
of the Settlement Agreement.
3. That the Court hereby approves the relevant terms of the Settlement Agreement and
agrees to retain jurisdiction of this matter for purposes of enforcing its terms.
1
O A
615)
IT IS THEREFORE ORDERED that the case be, and it is hereby, dismissed with prejudice,
subject to the terms of the attached Settlement Agreement and Mutual Release.
IT IS SO ORDERED.
UNITED STATES DISTRICT JUDGE
Approved:
n C. Everett
ohn M. Scott
EVERETT LAW FIRM
P.O. Box 1646
Fayetteville, AR 72702
(501) 443-0292
Jerry E. Rose, City Attorney
113 West Mountain
Fayetteville, AR 72701
Marshall Dale Evans
Evans Law Firm
P.O. Box 1686
Fayetteville, AR 72702-1686
/V/
RESOLUTION NO. 7>
//
0 ' /7
A RESOLUTION APPROVING A SEI ILEMENT AGREEMENT
WITH GRIFFIN INDUSTRIES, INC. d/b/a BAKERY FEEDS.
BE IT RESOLVED BY THE CITY COUNCIL OF'THE CITY OF FAYETTEVILLE,
ARKANSAS V
Section 1 That the City Council hereby authorizes the Mayor and City Clerk to enter
into a settlement agreement with Griffin Industries, Inc d/b/a BakeryFeeds. The settlement shall
contain substantially the same terms as set/forth in Griffin Industries,' Inc.'s letter to the City dated
January 13, 2000, attached hereto and made a part hereof.
/
PASSED AND APPROVED this 144E day of January , 2000.
11.\ APPROVED:
By:
ATTEST,
By:
' Heather Woodruff, City Clerk
Fred Hanna, Mayor
FILE No.599 01/13 '00 18:05 ID:MURPHY & LY0KIS, P.S.C
FAH:606 344 0886
PAGE 2' 3
MURPHY & LYONS, P.S.C.
Attorneys at Law
207 GRAND VIEW DRIVE, SUITE 360
P.O. BOX 17330
COVINGTON, KENTUCKY 41017-0330
KEVIN L. MURPHY' TELEPHONE: (606) 34440330
THOMAS C. LYONS TEt.ECOPIER: (606) 344-0886
PEGGY MURPHY BARKER•
CHRISTIAN a. STEGEMAN" January 13, 2000
JEFFREY W. RUPLE'
VIA FAX: (5011521x9600
Woody Bassett
BASSETT LAW FIRM
P.O. Box 3618
Fayetteville, Arkansas 72702-3618
VIA FAX: (5011 521 -9995
Dale Evans
EVANS LAW FIRM, P.A.
P.O. Box 1986
Fayetteville, Arkansas 72702-1986
VIA FAX: 15011 575-8315
Jerry E. Rose
City Attorney
113 West Mountain
Fayetteville, Arkansas 72701
Re: Griffin Industries, Inc. d/b/a Bakery Foods
Gentlemen:
'ALSO ADMITTED IN OHIO
This will confirm that we have a settlement in this case. We have accepted the
offer of the City of the $85,000.00 payment at the time the settlement agreement is
signed, and a $65,000.00 payment on January 2, 2001, fora total of $150,000.00. In
addition, the individual plaintiffs will pay a total of $7,500.00 to Griffin Industries.
The other items have been agreed upon. These were items discussed either
during Magistrate Jones' settlement conference, on the telephone today, or both. They
are as follows. We have ten (10) months to move from the date of the settlement
agreement being signed.
All lawsuits are to be dismissed between the parties, and that includes the noise
citations.
JRN-13-2000 17:05
P.02
FILE No.599 01/13 '00 18:05 ID:MURPHY & LYONS, P.S.C. FRX:606 344 0886 PAGE 3/ 3
There will be no further harassment or actions taken by the City or the neighbors
against Bakery Feeds, including noise violations, unless the conduct is dearly
egregious and well beyond our normal operations.
After we move, which must take place within ten months, there will no further
processing at the site. However, we will be permitted to utilize that site for non -
processing activities, again without any harassment or actions by the neighbors or the
City.
The parties and their attorneys will refrain from any disparagement towards
Bakery Feeds - not now or any time in the future. That includes any statements orally,
In writing, or on the Internet, or any other form of communication. This also includes a
prohibition on influencing anyone else to disparage Bakery Feeds. Also, this prohibits
any negative statements regarding the settlement. Everybody seems to be pleased that
this resolution came to pass, and let's keep it that way.
The Federal Court will maintain jurisdiction over this settlement agreement for
purposes of enforcing it. That will give everyone additional incentive to comply with the
agreement. I have talked to everybody involved in this case, and they have all agreed
to this. I have talked to all three of you and the Magistrate about this issue.
Finally, Terry Eastin will sign off on this agreement and be bound by the Federal
Court on the disparagement issue. She will also forego making any claims or negative
statements against Bakery Feeds in exchange for Bakery Feeds not filing the lawsuit it
intended to file for defamation and other claims. Also, she will not influence others
along these lines. Everybody wants peace, and this agreement, as agreed, should work
well.
I thank the three of you for the work that you put in the other day to bring the
parties together. By copy of this letter, I want to thank Magistrate Jones for the hard
work she put in as well.
Sincerely,
KEVIN L. MURPHY
KLM/ajb
cc: Hon. Beverly Stites Jones (via fax: 501-444-7897)
John C. Everett (via fax: 501-443-0564)
John M. Scott (via fax: 501-443-0564)
F;\SHARE\GRIFFIMFAYErrEVLLETI cfttthassevan.Itt.wpd
JAN -13-2000 17:05 606 344 0886 P.03
tp
RESOLUTION NO.
A RESOLUTION DIRECTING THE CITY ATTORNEY TO SEEK
DISMISSAL OF THE PUBLIC NUISANCE CAUSE OF ACTION
AGAINST GRIFFIN INDUSTRIES, INC, D/B/A BAKERY FEEDS,
IN CASE NO. 99-5075, IN THE UNITED STATES DISTRICT
COURT, EASTERN DISTRICT OF ARKANSAS, WESTERN
DIVISION.
WHEREAS, on May 18, 1999, the City Council discussed the merits of intervening in a
nuisance lawsuit filed against Griffin Industries, Inc., a Kentucky Corporation, d/b/a
Bakery Feeds, ("Bakery Feeds"); and,
WHEREAS, by motion, passed and approved May 18, 1999, the City Attorney was
authorized to intervene in the nuisance lawsuit against Bakery Feeds; and,
WHEREAS,
on June 15, 1999, the City
Attorney filed
a Motion to Intervene, Brief in
Support of Motion to
intervene, and a Petition to
Abate a Public
Nuisance; and,
WHEREAS, it is now determined that it is in the best interest of the citizenry as a whole
to withdraw from the nuisance lawsuit against Bakery Feeds.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF FAYETTEVILLE, ARKANSAS:
Section 1. The City Attorney is hereby directed to seek dismissal of the public nuisance
cause of action against Griffin Industries., A Kentucky Corporation, d/b/a/ Bakery Feeds, Case No.
99-5075, in the United States District Court, Eastern District of Arkansas, Western Division.
PASSED AND APPROVED this 5th day of October, 1999.
APPROVED:
By:
Fred Hanna, Mayor
ATTEST:
By:
Heather Woodruff, City Clerk
MINUTES OF A MEETING
OF THE
FAYETTEVILLE CITY COUNCIL
MAY 18, 1999
A meeting
of the Fayetteville City Council was
held on May 18,
1999 at 6:30
p.m. in room 219
of the city
Administ5ration Building, 113 West
Mountain Street,
Fayetteville,
Arkansas.
PRESENT: Mayor Hanna; Aldermen Reynolds, Austin, Davis, Trumbo, Daniel, Santos, Young,
Russell; City Attorney Jerry Rose; City Clerk Heather Woodruff; Staff, Press; and Audience.
ITEM
ACTION TAKEN
Minutes Approved
Caudle Property Approved Res. 69-99
Sunray Services Approved Res. 70-99
Boardwalk Addition, Phase 3 Left on first reading
Drainage Improvements Tabled
Tobin Trust Removed from agenda
VA 99-6 Passed Ord. 4162
RZ 99-7 Passed Ord. 4163
RZ 99-9 Passed Ord. 4164
RZ 99-10 Passed Ord. 4165
RZ 99-11 Passed Ord. 4166
First Night Approved Res. 71-99
Library Presentation No action taken
Bakery Feeds Motion to join in lawsuit
No Tax Increase Failed
•
City Council
May 18, 1999
Page II
upcoming issues for taxes.
Alderman Austin stated they had a very good report. He stated he supported the library. He
thought they should consider the sales tax as part of the funding because he knew that a lot of
people outside the city of Fayetteville used the library.
Alderman Santos hoped they could do the funding with property tax, because sales taxes were
unfair and aggressive.
Mr. Pettus noted there were fifteen libraries in the city of Fayetteville not counting the city
library. He thought they had some of the best resources for libraries anywhere in the state of
Arkansas. He thought computers were going to replace books. He stated he was going to oppose
any increases in millages on property for any reason. There were two proposals heading toward
the ballot for the year 2000. If either of the two passed they would do away with any taxes based
on real property. They would not be serving the public if they were getting into a 22 million
dollar project, then have to figure out how to fund it in December of the year 2000. He
encouraged them to go for the sales tax or to first seek private support or grants from the state
and federal government. He thought the city needed to pass some priorities. They were going to
• be asked to pass bonds to build a jail, a sewer treatment plant, and a town center. There was only
so much the citizens could handle. He hoped they were not going to use general tax money to
support the town center. He suggested the library should become part of the town center. He did
not want to oppose the library, but he would if it imposed another property tax.
BAKERY FEEDS
Discussion of whether or not the city of Fayetteville should join a lawsuit against Bakery Feeds
as a public nuisance.
Mr. Rose explained the city was being asked to intervene the lawsuit of the neighbors of Bakery
Feeds. The intervention would be in federal court. It was likely that they would make a motion
to intervene. The complaint would then be amended to allege public nuisance as well as private
nuisance. Mr. Evans wanted to be the first chair in this case. He would be the lead attorney and
would devote more energy than his department. It was also his understanding that Mr. Evans
would not ask the city for cost or recovery money. He passed out the petition to abate a private
nuisance with was what they were being asked to intervene. He stated his advice to them would
always be to be very conservative. They would rarely see him be a drum major for litigation. He
was convinced that the decision to sue individuals should be rarely and uniquely made for a city,
unless there were violations of city ordinances or laws. It had been a very rare occurrence that
the city started lawsuits other than condemnations. There were a lot of groups that would like the
• city to join them in litigations. He thought there would be many people in the future that would
ask them to participate in litigation in the future. He gave his past recommendations and advice
City Council
May 18, 1999
Page 13
Alderman Trumbo thought Mr. Rose was reluctant to file a nuisance law suit.
Mr. Rose stated his last advice to them was that nuisance suits were difficult to prosecute. His
advice had been to wait for the health department report before doing anything. What had
changed had been the noise violations and the fact that the neighbors had filed a private lawsuit.
Alderman Reynolds stated the people who lived in the area had a legitimate complaint. He
thought they should do every thing they could to help them with their problem. They were
citizens and they were there to represent them.
Mr. Dale Evans, citizen attorney, stated the citizens had pooled money to fund a lawsuit. They
had committed themselves to spend five thousand dollars. They were going to spend the money
on cost. He asked the city to support the citizens on the other side of town and to treat all the
citizens with respect. There was a legal distinction between a public and a private nuisance. A
public nuisance affected everyone.
Mr. Rose explained they had to make a decision now if they wanted to join the lawsuit. If they
waited it would be too late.
• Alderman Trumbo stated he did not believe the residents should have to pay five thousand
dollars, and that the city should come to the table and help defray some of the cost on something
that was a problem for all the city.
Alderman Daniel moved to authorize Mr. Rose to intervene in the public nuisance lawsuit
on the condition that Mr. Evans not ask the city for any financial support. Alderman
Reynolds seconded the motion.
There was no public comment.
Mr. Rose stated the city would continue on with the appeal of the Planning Commission
decision, and with the proceedings to remove them from an improper zone. Those cases would
continue. Mr. Evans would be first chair in the private/public lawsuit.
Mayor Hanna called for the vote. Upon roll call the motion carried unanimously.
NO TAX INCREASE
A resolution prohibiting the consideration of tax increases by the City Council until the
Wastewater Treatment issue has been put to a vote of the public.
• Alderman Austin stated he had submitted the resolution for their consideration. He thought it
_,.+iNUh tUUi.
ERN DIST. ARKANSA.
c I t E D
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
JAMES HARP, BILLIE HARP,
WANDA ARNOLD, JOHN ARNOLD,
ROY HARP, WILMA HARP,
JERRYLEWIS, MAXINE LEWIS,
CLEO RITCHIE, W.J. SHEELER,
LINDA SHEELER, VERMALEA SMITH,
LENA JENKINS, JULIAN WATTS
and EDWARDENE WATTS
PLAINTIFFS
V.
GRIFFIN INDUSTRIES, INC., A Kentucky
Corporation, d/b/a BAKERY FEEDS
DEFENDANT
JUN 151999
CHRIS a JOHNSON, C' F"
CASE NO. 99-5075
COMES now the City of Fayetteville, Arkansas, a municipal corporation, by and through its
attorney, Jerry E. Rose, City Attorney and hereby moves the Court to allow it to intervene as a
Plaintiff in the above -styled action pursuant to Rule 20 Fed. R. C P. on the grounds that the City of
Fayetteville's claim of public nuisance and the main action in the above captioned matter have a
common question of law and fact. The applicant avers that the intervention will not unduly delay
or prejudice the adjudication of the rights of the original parties. A pleading setting forth the claim
for which intervention is sought is attached hereto and made a part hereof.
RESPECTFULLY SUBMITTED,
CITY OF FAYETTEVIL , ARKANSAS
A Municipal Corporati Ti,
By:
�.
Je E. Rose, City Attorney, #81138
113 West Mountain
Fayetteville, AR 72701
501-575-8313
1, Jerry E. Rose, hereby certify that a true and correct copy of the above and foregoing
Motion to Intervene was deposited postage prepaid in the U.S. mail on this IE cM day of
, 1999 addressed to Marshal Dale Evan, attorney for plaintiffs at The Evans Law Firm,
P.O. Box 1686, Fayetteville, AR 72702-1986 and John Everett, attorney for defendant at Everett &
Mars, P.O. Box 1646, Fayetteville, AR 72702.
Jerry . Rose
N DIST. A
IN THE UNITED STATES DISTRICT COURT t l
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION J j 1999
JAMES HARP, BILLIE HARP,
WANDA ARNOLD, JOHN ARNOLD,
ROY HARP, WILMA HARP,
JERRYLEWIS, MAXINE LEWIS,
CLEO RITCHIE, W.J. SHEELER,
LINDA SHEELER, VERMALEA SMITH,
LENA JENKINS, JULIAN WATTS
and EDWARDENE WATTS
PLAINTIFFS
V.
GRIFFIN INDUSTRIES, INC., A Kentucky
Corporation, d/b/a BAKERY FEEDS
DEFENDANT
CASE NO. 99-5075
a Jont4sOttC
1. Intervenor restates and realleges the allegations contained in paragraphs 2, 3, 4, 5, 6,
7, 8, 9, 10, 11, 12, 13, 14, 15, 16,17,183 19, 20, 21, 22, 26, 27, 28, 29, 30, 31, 32, 33, 34, and 36 of
the Plaintiffs' Petition to Abate a Private Nuisance.
2. That the Defendant Griffin Industries' place of business is situated in or near thickly
populated sections of the City and that the odor, smoke, dust and noise described above constitute
a great annoyance and public nuisance to the people in that neighborhood and adjoining
neighborhoods and to members of the public who pass by on adjoining roadways and sidewalks.
Such odor, smoke, dust and noise affects the comfort, use, and enjoyment of land and endangers the
health of the people of the City of Fayetteville and disturbs the public's right to the peaceful, quiet
and undisturbed use and enjoyment of both private and public property.
rt
3. That this Court declare the Defendant's operation of its place of business a public
nuisance and enjoin the Defendant both temporarily and permanently from further operation of its
business as a public nuisance.
WHEREFORE, premises considered, Intervenor City of Fayetteville, Arkansas for prays for
an Order declaring the Defendant's operation of its place of business a public nuisance and
temporarily and permanently enjoining the Defendant from operating its business in such a manner,
for costs and attorney fees and for all other just and proper relief.
RESPECTFULLY SUBMITTED,
CITY OF FAYETTEVILLE ARKANSAS
A Municipal Corporatio ,
By: a.
Jerry 13. Rose, City Attorney, #81138
113 West Mountain
Fayetteville, AR 72701
501-575-8313
CERTIFICATE. OF SERVICE
I, Jerry E. Rose, hereby certify that a true and correct copy of the above and foregoing
Complaint in Intervention was deposited postage prepaid in the U.S. mail on this day of
-J is _, 1999 addressed to Marshal Dale Evan, attorney for plaintiffs at The Evans
Law Firm, P.O. Box 1686, Fayetteville, AR 72702-1986 and John Everett, attorney for defendant
at Everett &Mars, P.O. Box 1646, Fayetteville, AR 72702.
Je E. Rose
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
JAMES HARP, BILLIE HARP,
WANDA ARNOLD, JOHN ARNOLD,
ROY HARP, WILMA HARP,
JERRYLEWIS, MAXINE LEWIS,
CLEO RITCHIE, W.J. SHEELER,
LINDA SHEELER, VERMALEA SMITH,
LENA JENKINS, JULIAN WATTS
and EDWARDENE WATTS
PLAINTIFFS
V.
GRIFFIN INDUSTRIES, INC., A Kentucky
Corporation, d/b/a BAKERY FEEDS
DEFENDANT
...Janwi NUUL.
, t ERN DIST. ARKANSA,
FILED
JUN 151999
CHRIS R. JOHNSON, Cr
CASE NO. 99-5075
COMES now the applicant as intervenor, the City of Fayetteville, Arkansas, by and through
its undersigned attorney, Jerry E. Rose, City Attorney, and files this its Brief in Support of its Motion
to Intervene as follows:
Rule 24(b) of the Fed. R. C. P. states that upon timely application anyone may be permitted
to intervene in an action when an applicant's claim and the main action have a questions of law or
fact in common.
The Plaintiffs in the above -captioned matter allege a private nuisance caused by odor, smoke,
dust and
noise emanating from
the operations of the Defendant's
business. The distinction between
a private
and public nuisance is simply the extent of the injury, i.e.
the number suffering the effects
of the nuisance. Arkansas Relcace Guidance Foundation v Needle,r, 252 Ark. 194, 477 S.W.2d 921
(1972). If the injury is sufficient in extent to become common to all persons who come within its
influence, it is a public nuisance which may be abated by the municipality. City of Ft.. Smith v
Western Hide & Fur Cn_ 153 Ark. 99, 239 S.W.2d 724 (1922).
The Intervenor's claim of public nuisance rests on the same set of law and facts relied upon
by the Plaintiffs as a matter of private nuisance. The Intervenor City alleges that neighborhoods and
citizens passing by or near the alleged nuisance are affected as well as the private citizen represented
by the Plaintiff. This is the common question of law and fact required by Fed. R. C. P. Rule 24(b0
and accordingly the applicant's Motion to Intervene should be granted.
RESPECTFULLY SUBMITTED,
CITY OF FAYETTEVILLE, KANSAS
A Municipal Corporation,
By:
Jerry . Rose, City Attorney, #81138
113 West Mountain
Fayetteville, AR 72701
501-575-8313
I, Jerry E. Rose, hereby certify that a true and correct copy of the above and foregoing Brief
in Support of Motion to Intervene was deposited postage prepaid in the U.S. mail on this 1'514 day
of___________________, 1999 addressed to Marshal Dale Evan, attorney for plaintiffs at The Evans
Law Firm, P.O. Box 1686, Fayetteville, AR 72702-1986 and John Everett, attorn for defendant
at Everett & Mars, P.O. Box 1646, Fayetteville, AR 72702.
Je E. Ro e
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
JAMES HARP, BILLIE HARP,
WANDA ARNOLD, JOHN ARNOLD,
ROY HARP, WILMA HARP, JERRY LEWIS,
MAXINE LEWIS, CLEO RITCHIE,
W.J. SHEELER, LINDA SHEELER,
VERMALEA SMITH, LENA JENKINS,
JULIAN WATTS and EDWARDENE WATTS
VS.
Case No. 99-5075
GRIFFIN INDUSTRIES, INC., A Kentucky
Corporation, d/b/a BAKERY FEEDS
CITY OF FAYETTEVILLE, ARKANSAS
A Municipal Corporation
MOTION FOR LEAVE TO FILE COUNTERCLAIM
AND TO JOIN THIRD -PARTY COUNTERDEFENDANTS
PLAINTIFFS
DEFENDANT
INTERVENOR
Comes now the defendant, Griffin Industries, Inc., A Kentucky Corporation, d/b/a/ Bakery
Feeds, by and through its attorneys, Everett Law Firm, and for its motion for leave to file
counterclaim and to join third -party counterdefendants, pursuant to Rules 13(e), 19(a) and/or 20(a)
of the Federal Rules of Civil Procedure, states and alleges as follows:
That the intervenor, the City of Fayetteville. Arkansas, a municipal corporation
(hereinafter "City"), was permitted to intervene in this action by an Order of the Court enter June
29, 1999.
2. That the defendant, Griffin Industries, Inc.. A Kentucky Corporation, d/biai Bakery
Feeds (hereinafter "Griffin Industries" or "Baker/ Feeds"), filed its answer to Petition in Intervention
on July 13. 1999, and discovery in this case has been conducted by the parties.
3. That the City has alleged that the operations of Bakery Feeds within the City of
Fayetteville constitute a public nuisance.
4. That the parties to the above -captioned case have engaged in extensive discovery,
pursuant to which certain facts have come to the attention of Griffin Industries. Such facts establish
that Griffin Industries has meritorious intentional tort claims against the City and certain individuals,
namely, Ms. Teresa Eastin and Ms. Darlene Poor.
5. That Griffin Industries has been of the belief that the instant lawsuit has been pursued
for improper purposes and based upon false information and, therefore, that it may legitimate
counterclaims sounding in intentional tort. Ever -mindful of the obligations set forth in Rule 11 of
the Federal Rules of Civil Procedure, Griffin Industries and its counsel reserved filing the proposed
counterclaim until a proper factual and evidentiary basis had been developed.
6. That after conducting the depositions of several City employees and Ms. Teresa
Eastin, as well as thoroughly reviewing discovery materials in light of the applicable law, Griffin
Industries has concluded that it must assert a compulsory counterclaim against the City for tortious
interference with contractual relations and business expectancies.
7. That through discovery, particularly deposition of Ms. Teresa Eastin on December
2, 1999, Griffin Industries discovered facts which clearly support claims for defamation and
injurious falsehood against Ms. Eastin, as well as a claim for trespass against Ms. Eastin and Ms.
Poor.
8. That the viability of the counterclaim against the City has just recently become fully
appreciated, and consequently. Griffin Industries, Inc. asks the Court for leave to file said
counterclaim pursuant to Fed.R.Civ.P. 13.
N
I.
9. That the facts giving rise to the claims against Ms. Eastin and Ms. Poor are
inextricably intertwined with the allegations of private and public nuisance being alleged by James
Harp, et al. and the City in this case, and it is clear that the failure to join these parties by means of
a counterclaim would impair Griffin Industries' ability to protect its interests, as well as subjecting
Griffin Industries to the risk of multpile or inconsistent judgments.
10. That joinder of these third parties as counterdefendants is authorized by Fed.R.Civ.P.
13(c) and 19(a). Alternatively, permissive joinder pursuant to Fed.R.Civ.P. 13(c) and 20(a) is
authorized.
10. That Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend
pleadings should be freely given. Because the facts giving rise to the proposed counterclaims have
recently been fully developed, justice requires that Griffin Industries be granted leave to file its
proposed counterclaim.
4. That a copy of the proposed counterclaim its attached hereto as Exhibit "A."
5. A Brief is being filed with this motion and is incorporated herein by reference..
Wherefore, the defendant, Griffin Industries, Inc., A Kentucky Corporation, d/b/a/ Bakery
Feeds, prays for an Order of the Court granting its motion for leave to file a counterclaim against the
intervenor, City of Fayetteville, Arkansas, a Municipal Corporation, and to join Teresa Eastin and
Darlene Poor as parties defendant to the counterclaim, and for all other relief as it may prove itself
entitled.
GRIFFIN INDUSTRIES, INC.,
d/b/a BAYf:F�RY FEEDS, Defendant/Counter-Plaintiff
john C. Everett, Bar No. 70022
John M. Scott, Bar No. 97202
EVERETT LAW FIRM
P.O. Box 1646
Fayetteville, AR 72702
(501) 443-0293
CERTIFICATE OF SERVICE
I, John M. Scott, the attorney of record for the counter-plaintifft herein, state that I have
deposited in the United States Mail, postage prepaid, a true and correct copy of the above and
foregoing to Dale Evans, Evans Law Firm, P.O. Box 1986, Fayetteville, AR 72702 and Jerry Rose,
City Attorney, City of Fayetteville, 113 West Mounnt, Fayetteville, Al 2701, on this
day of ,be',,� , 1999. I/
John M. Scott
4
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
JAMES HARP, BILLIE HARP,
WANDA ARNOLD, JOHN ARNOLD,
ROY HARP, WILMA HARP, JERRY
LEWIS, MAXINE LEWIS, CLEO RITCHIE,
W. J. SHEELER, LINDA SHEELER,
VERMALEA SMITH, LENA JENKNS,
JULIAN WATTS and EDWARDENE WATTS
vs.
No. 99-5075
GRIFFIN INDUSTRIES, INC., A Kentucky
Corporation, d/b/a BAKERY FEEDS
CITY OF FAYETTEVILLE, ARKANSAS
A Municipal Corporation
GRIFFIN INDUSTRIES, INC., A Kentucky
Corporation, d/b/a BAKERY FEEDS
c
CITY OF FAYETTEVILLE, TERESA EASTIN,
and DARLENE POOR
COUNTERCLAIM
PLAINTIFFS
DEFENDANT
INTERVENOR
COUNTER -PLAINTIFF
COUNTER -DEFENDANTS
Comes now the counter -plaintiff, Griffin Industries, Inc., a Kentucky Corporation, d/b/a
Bakery Feeds, by and through its attorneys, Everett Law Firm, and for its counterclaim, states and
alleges as follows:
That the counter -plaintiff, Griffin Industries, Inc., a Kentucky Corporation, d/b/a
Bakery Feeds (hereinafter "Griffin Industries" or "Bakery Feeds"), is a Kentucky Corporation
registered to do business in Arkansas and is doing business in Fayetteville, Washington County,
Arkansas.
2. The separate counter -defendant, City of Fayetteville, Arkansas (hereinafter "City"),
is a City of the First Class and a Municipal Corporation organized under the Laws of the State of
Arkansas.
3. The separate counter -defendant Teresa Eastin, an individual, is a resident of
Fayetteville, Washington County, Arkansas.
4. The separate counter -defendant, Darlene Poor, an individual, is a resident of the state
of Washington.
5. This Court has jurisdiction over the parties pursuant to 29 U.S.C. § 1332 (c) (1), as
complete diversity exists between the parties.
6. That Griffin Industries is a recycling facility currently operating as Bakery Feeds in
Fayetteville, Arkansas. Bakery Feeds accepts inedible and organic materials consisting mostly of
products from food manufacturing companies that are not suitable for human consumption and
processes these products into a feed ingredient for use in animal feed products.
7. In 1994, Griffin Industries began its Fayetteville operations doing business as Bakery
Feeds after receiving several permits from the City. The following permits were issued by the City
for the modification and improvement of the property on the which Griffin Industries currently
operates its recycling facility: Permit No. 94-02062 issued on June 17, 1994; Permit No. 94-02529
issued on July 19. 1994; Permit No. 94-02644 issued on July 28, 1994; Permit No. 94-02691 issued
on August 2. 1994; Permit No. 94-02714 issued on August 4, 1994; Permit No. 94-02714 issued
on August S, 1994; and Permit No. 94-04088 issued on November 29, 1994.
2
8. With full knowledge and approval of the City, Griffin Industries has continuously
operated its business in Fayetteville, Arkansas from September of 1994 through the present,
investing over one million dollars to perform modifications and improvements to its facility in order
to continue operating its current business.
9. That by means of issuing permits and allowing Griffin Industries to operate
continuously, the City has created valid business expectancies on the part of Griffin Industries,
namely that it be treated fairly and consistently with other local businesses, that it be permitted to
continue its operations with present and potential customers, and that it be permitted to use its
property for lawful purposes.
10. Griffin Industries further has contractual relationships and business expectancies with
its customers, potential customers and the public -at -large. The City is aware of such relationships
and expectancies.
11. That sometime after 1994, Griffin Industries was contacted by agents and employees
of the City who requested that Griffin Industries provide the City with a copy of its file containing
building permits issued by the City. Griffin Industries copied its entire file pursuant to the City's
request and provided the City with copies of the permits. At some later date, an agent of the City
wrote void across the face of the permits issued to Griffin Industries. Griffin Industries did not
become aware of the City's act of marking void on the permits until earlier this year when Griffin
Industries sought approval from the City for installation of equipment at Griffin Industry's facility.
12. That on April 7, 1999, the City filed a Petition for Injunctive Relief that is currently
pending in the Washington County Chancery Court styled City of Fayetteville. a Municipal
Corporation v. Griffin Industries. Inc. d/b/a Bakery Feeds Corp. and the Burlington Northern and
Santa Fe Railway Company, Case No. E 99-552. Therein, the City has asked the Court to declare
the use of Griffin Industries' building and premises to be unlawful under the zoning regulations of
the City of Fayetteville. The City has further sought an Order temporarily and permanently
enjoining Griffin Industries from "continuing, renewing, and/or extending such unlawful use and
enjoining any further use of the building or premises without obtaining a certificate of zoning
compliance as required by the zoning regulations of the City of Fayetteville."
13. That on July 7, 1999, the City filed a Petition in Intervention in instant case
captioned James Harp. et al. v Griffin Industries Inc a Kentucky Corporation d/b/a Bakery Feeds,
U.S.D.C., Case No. 99-5075 (W.D. Ark.). In this case, the City has asked the United States District
Court for the Western District of Arkansas to declare Griffin Industries's Fayetteville operations a
public nuisance. The City has further sought an Order temporarily and permanently enjoining
Griffin Industries from "further operation of its business as a public nuisance."
14. That, furthermore, the City has issued numerous citations to Griffin Industries over
the past several months alleging violations of the City's noise ordinances. Approximately fourteen
(14) such cases are currently pending in Fayetteville's Municipal Court alleging that Griffin
Industries has violated the Fayetteville City Ordinance, No. 96.04. The pending cases are as follow,
Case No. A 268520. A 268523, A 270438, A 269672, A 270198, A 264886, A 264885, A 270152,
A 269668, A 267794, A 271155, A 270638. A 2669669, A 274077.
15. In response to the City's allegations that it was not authorized to construct additional
equipment. Griffin Industries attempted to "work with" the City to avoid extended business
interruption. At First, through its agents and employees, the City suggested that Griffin Industries
could qualify as a "Conditional Use 28," as a center for collecting recyclable materials -- which it
4
in fact is. Under this classification, Griffin Industries was to be allowed to continue operating at its
present Fayetteville location with a newly installed dryer and exhaust stack.
16. Griffin Industries justifiably expended significant sums of money in anticipation of
receiving Conditional Use 28 status. Nevertheless, the City negotiated in bad faith, saddled Griffin
with a list of overreaching conditions designed to extract proprietary and confidential information
from Griffin and, eventually, arbitrarily withheld approval of Conditional Use 28 classification.
17. Through its employees and agents, the City further suggested that Griffin Industries
relocate its Fayetteville plant to an area of town known as the "Industrial Park." Again, in justifiable
reliance upon assertions made by the City, Griffin Industries expended significant resources in
attempting to relocate to the Industrial Park.
18. Without justification, the City applied a double standard to Griffin Industries vis-a-vis
another similar business (which, incidentally was owned by Fayetteville Mayor Fred Hanna's son)
and, through City Attorney Jerry Rose, unilaterally instructed Griffin Industries not even to apply
for relocation to the Industrial Park.
COUNT
I -- INTENTIONAL
INTERFERENCE
WITH
CONTRACTUAL
RELATIONS
AND
BUSINESS
EXPECTANCY
19. Griffin Industries realleges and incorporates the preceding paragraphs.
20. Griffin Industries has certain valid contractual relationships and business expectancies
with its existing customers, its potential future customers, the public at large, and the City of
Fayetteville.
21. The City of Fayetteville is, and has been at all relevant times, aware of these
contractual relationships and business expectancies.
5
22. The City has intentionally interfered with Griffin Industries' contractual relationships
and business expectancies including but not limited to, the following:
(a) By selectively targeting, in conspiracy with certain private individuals,
Griffin Industries in an attempt to wrongfully terminate and/or void valid
permits, prevent legitimate activities, and otherwise economically cripple
Griffin Industries;
(b) In selectively, recklessly and inaccurately applying overly burdensome noise
ordinances against Griffin Industries;
(c) In representing falsely, or with reckless disregard for the truth, to Griffin
Industries that it could continue operating and installing equipment under a
"Conditional Use 28" classification, yet arbitrarily refusing such
authorization after Griffin Industries had justifiably expended substantial
funds in pursuing such a classification;
(d) In wrongfully indicating that Griffin Industries was located in an improper
zoning classification, encouraging Griffin Industries to move to the
Fayetteville Industrial Park, and arbitrarily denying Griffin Industries
permission to relocate to the Industrial Park after inducing Griffin Industries
to incur substantial expenditures in attempting to relocate;
(e) In conspiring with several private citizens, including the plaintiffs herein and
the other separate counter -defendants, without making a good faith inquiry
into the truthfulness of false allegations lodged by counter -defendants Eastin
and Poor;
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(f) In allowing or encouraging its Mayor and City Council members to wear
buttons which cast Griffin Industries in a false light and otherwise disparaged
the operations of Griffin Industries in an attempt to improperly influence
public opinion;
(g) In allowing or encouraging City Council members to attend neighborhood
meetings of a group whose purpose is to run Griffin Industries out of town;
(h) In pursuing a public nuisance lawsuit with the intent to shut down Griffin
Industries when it is clear that the evidence will not support a claim for
public nuisance;
(i) In intentionally preventing, blocking and obstructing the legitimate, lawful
activities of Griffin Industries for political and other wrongful purposes.
23. That all of the above actions have caused Griffin Industries damages in the form of
lost customers, lost future customers, decreased operating capacity, investments made in justifiable
reliance upon City -issued permits, diminished public opinion, attorney's fees and other costs
associated with attempting to relocate from Griffin Industries' present location to the Fayetteville
Industrial Park (an effort which the City unilaterally decided would not be afforded to Griffin
Industries).
24. That the preceding paragraphs demonstrate that Griffin Industries is entitled to
damages in the form of lost past investments; money invested in new equipment; lost present and
future sales; lost money invested in attempting to comply with Conditional Use 28; and money
invested in attempting to move to the Fayetteville Industrial Park, all of which were caused by the
intentional conduct of the City.
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COUNT -- DEFAMATION/LIBEL
25. Griffin Industries realleges and incorporates the preceding paragraphs.
26. Separate counter -defendant, Teresa Eastin, has made numerous statements which
constitute defamation, libel and/or injurious falsehood under the law of Arkansas.
27. The statements made by counter -defendant Eastin, which are identified below, all
identified Griffin Industries, were published to third parties, were without justification and were
defamatory in nature.
28. Counter -defendant Eastin made numerous false and disparaging statements about
Griffin Industries, its property and its business, including but not limited to the following contexts;
(a) In statements made to visitors at an event known as Autumn-fest, on or
around October 9, 1999, Eastin maliciously alleged that Griffin Industries
had lied to the City of Fayetteville in acquiring its permits to do business.
Eastin further made false statements and handed out buttons which cast
Griffin Industries in a false light;
(b) By handing out buttons which cast Griffin Industries in a false light to
members of the Fayetteville City Council;
(c) By sending correspondence to numerous Fayetteville residents, including
City Attorney. Jerry Rose; City of Fayetteville Mayor, Fred Hanna; the Editor
of the Northwest Arkansas Times; University Arkansas Athletic Director,
Frank Broyles; University of Arkansas Chancellor, Dr. John White and by
distributing notices to the public at large.
(d) By appearing and speaking falsely about Griffin Industries on a public access
y
television show as well as speaking falsely to members of the press on other
occasions.
29. In the communications listed in paragraph 24 counter -defendant Eastin has falsely
alleged, among other things, that Griffin Industries "has a long and progressive history of
deliberately misleading city governments;" that Griffin Industries' presence has caused multiple
property assessments to decrease by 50%; that Griffin Industries has caused adverse health
consequences to Fayetteville residents; that Griffin Industries is a "bad acting" industry; and that
Griffin Industries has violated zoning and other laws. Counter -defendant Eastin has also implied
to others that Griffin Industries has emitted Aflatoxin, a substance with allegedly dangerous
properties. In short, through deceptive, false and misleading statements, counter -defendant Eastin
has acted with actual malice in a calculated attempt to run Griffin Industries out of Fayetteville,
Arkansas, and to cause economic injury to Griffin Industries.
30. The above -mentioned statements are defamatory in nature in that they accuse Griffin
Industries of acting in an unlawful, dangerous, and otherwise illegal manner. Several of the
defamatory statements published by counter -defendant Eastin could be construed to indicate that
Griffin Industries has committed criminal acts.
31. The above statements clearly identify Griffin Industries.
32. The above statements plainly were published to third parties.
33. Counter -defendant Eastin made all the above statements with actual malice or with
reckless disregard for the truth, and, therefore, was at fault in publishing such statements.
34. The above -identified statements are in fact false.
35. The above statements have caused Griffin Industries damages in the form of lost
L•:
goodwill, lost potential and present customers, expenses incurred in responding to public and
government inquiry, attorney's fees, and other costs and damages which will be proven at trial.
36. Therefore, counter -defendant Eastin should be held liable for defamation and all the
damages which such acts have caused Griffin Industries.
37. Because counter -defendant Eastin has acted with malice, an award of punitive
damages is proper.
COUNT III -- INJURIOUS FALSEHOOD
38. Griffin Industries realleges and incorporates the preceding paragraphs.
39. The facts set forth above demonstrate that Griffin Industries possesses a legally
protected interest in its business operations and continued operation within the City of Fayetteville,
40. The falsehoods and disparaging statements made by counter -defendant Eastin have
injured Griffin Industries.
41. The above -identified statements made by counter -defendant Eastin are false; were
published with actual knowledge of falsity, or with reckless disregard as to their falsity; and were
made to the counter -defendant City, third parties, and/or the public -at -large.
42. Reliance upon counter -defendant Eastin's statements was reasonably foreseeable.
43. Clearly, those who have heard the false allegations identified above understood the
injurious context of such statements. In fact, it is clear that the counter -defendant City has followed
up on such statements in a manner which has injured Griffin Industries.
44. Counter -defendant Eastin has acted with ill will toward Griffin Industries with the
intent of damaging Griffin Industries. Therefore, she should be held liable for actual and punitive
damages which are proven at trial.
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COUNT IV -- TRESPASS
45. That Griffin Industries realleges and incorporates the preceding paragraphs.
46. On two occasions, separate counter -defendants Teresa Eastin and Darlene Poor have
entered the property of Griffin Industries, located at 1348 Cato Springs Road, Fayetteville, Arkansas,
without authorization from Griffin Industries.
47. On both occasions, Eastin and Poor personally and intentionally entered the property
of Griffin Industries. On either or both occasions, Eastin and Poor photographed confidential and
proprietary operations of Griffin Industries without permission.
48. Through the course of discovery in this case, photographs of the interior of Griffin
Industries' plant have been introduced which were taken by counter -defendant Poor.
49. On another occasion, counter -defendant Poor attempted to misappropriate property
from the Griffin Industries facility, an act which counter -defendant Eastin attempted to video tape
(all without the permission).
50. The wrongful entry of Poor and Eastin onto the property of Griffin Industries
constitutes a trespass and has caused damages which Griffin Industries will prove and establish at
trial.
51. Griffin Industries requests a trial by Jury.
WHEREFORE, Griffin Industries prays that this Court enter a judgment against the
above -listed parties establishing intentional interference with contracted relations and business
expectancies, defamation, injurious falsehood, and trespass, for an award of damages exceeding
575,000.00, for an award of attorney's fees, for its cost, and for all other equitable relief to which it
proves itself entitled at trial.
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
JAMES HARP, BILLIE HARP,
WANDA ARNOLD, JOHN ARNOLD,
ROY HARP, WILMA HARP, JERRY LEWIS,
MAXINE LEWIS, CLEO RITCHIE,
W.J. SHEELER, LINDA SHEELER,
VERMALEA SMITH, LENA JENKINS,
JULIAN WATTS and EDWARDENE WATTS
VS.
Case No. 99-5075
GRIFFIN INDUSTRIES, INC., A Kentucky
Corporation, d/b/a BAKERY FEEDS
CITY OF FAYETTEVILLE, ARKANSAS
A Municipal Corporation
PLAINTIFFS
DEFENDANT
INTERVENOR
BRIEF IN SUPPORT
OF MOTION FOR
LEAVE
TO FILE COUNTERCLAIM
AND
TO JOIN
THIRD
-PARTY
COUNTER
-DEFENDANTS
Griffin Industries, Inc., a Kentucky Corporation, d/b/a/ Bakery Feeds (hereinafter "Griffin
Industries" or "Bakery Feeds"), files this motion for leave to file counterclaim and to join third -party
counter -defendants pursuant to Rules 13, 19 and/or 20 of the Federal Rules of Civil Procedure.
Although it recognizes that the discovery deadline in this case is December 17, 1999 and that the
case presently is set for trial beginning February 7, 1999, the facts giving rise to the proposed
compulsory counterclaim have only recently been fully developed. Consequently, Griffin believes
that justice requires that leave be granted for it to file its proposed counterclaim' so that the pending
controversies may be extinguished in one action.
A copy of the proposed counterclaim has been attached to the accompanying motion as Exhibit "A."
I. Background
The Court is aware of the allegations lodged in this lawsuit. (See Doc. # 46 and 47). The
plaintiffs originally sued Griffin Industries alleging that Griffin's Fayetteville operations amount to
a private nuisance. The City of Fayetteville ("City") intervened contending that Griffin's operations
are a public nuisance. All along, Griffin Industries has believed that it has been selectively targeted
based upon absurd allegations, malicious motives, and conspiratorial conduct. Nevertheless, Griffin
Industries declined to allege intentional tort counterclaims in light of the duties imposed by Rule 11
of the Federal Rules of Civil Procedure. After reviewing documents, conducting several depositions,
and piecing together a variety of facts and evidence, Griffin Industries only recently discovered that
it can legally substantiate the claims asserted in its proposed counterclaim.' Consequently, Griffin
Industries believes it should be granted leave to file its proposed counterclaim.
II. Argument
A. Leave to Assert Counterclaim Should be Granted Pursuant to Rule 13
Leave to amend pleadings is to be freely granted under Fed.R.Civ.P. 15(a). Where multiple
claims involve many of the same factual or legal issues, or are offshoots of the same basic
controversy, fairness and considerations of convenience and economy require that a counter -plaintiff
be permitted to pursue a counterclaim. Fed.R.Civ.P. 13(a); see In re Penn Central Transo. Co., 419
F. Supp. 1376 (D. Penn. 1976). As the proposed counterclaim flows out of the transactions and
occurrences giving rise to the present lawsuit, Fed.R.Civ.P. 13(a) dictates that Griffin Industries'
Griffin Industries discovered and was able to piece together several critical pieces of evidence during
the deposition of proposed counter -defendant, Teresa Eastin, which was conducted on December 2,
1999, The transcript of that deposition was not received until this week.
Cr
claims for tortious interference with contractual relations and business expectancies, defamation,
injurious falsehood, and trespass constitute compulsory counterclaims.' Alternatively, these claims
could be raised as permissive counterclaims under Fed.R.Civ.P. 13(b).
As the facts supporting its counterclaim have only recently been fully developed and
understood, justice requires that Griffin Industries be allowed to assert its counterclaim at this stage
of litigation. See Fed.R.Civ.P. 13(f). Courts generally are "quite liberal" in granting leave to file
counterclaims pursuant to Rule 13(f). See Wright & Miller, FEDERAL PRACTICE AND PROCEDURE,
CIVIL 2d, § 1430. The discovery of "new" facts upon which a counterclaim is based has been deemed
sufficient excuse for failing to assert those claims in earlier pleadings. Id. (citing 2001 Inc. v.
Novalas Corn., 60 F.R.D. 649 (D.C.N.Y. 1973)). Leave pursuant to Rule 13(f) is discretionary;
however, leave generally is denied only where the delay is inexcusable, where the pleader has
exhibited a lack of good faith, where the omitted counterclaim can be left to an independent action,
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The following is a rather straightforward analysis of what constitutes a compulsory counterclaim:
Under the most common test in federal courts, a counterclaim is compulsory if there is
a logical relationship between the counterclaim and the opposing party's claim. The
"logical relationship" test is a loose standard that should be interpreted broadly and
realistically in the interests of avoiding a multiplicity of suits. The analysis concerns
whether the essential facts of the various claims are so logically connected that judicial
economy and fairness require that all the issues be resolved in one lawsuit. A
counterclaim is logically related to the opposing party's claim if separate trials on each
of their respective claims would involve a substantial duplication of effort and time by
the parties and the courts. There is a logical relationship when the same operative facts
are the basis of both claims or when the aggregate core of facts upon which the claim
rests activates additional legal rights, otherwise dormant, in the defendant. An absolute
identity of factual backgrounds for the two claims is not required."
20 AmJur § 29 (footnote citations omitted).
3
or where the counterclaim is totally lacking in merit. Id. (citations omitted).
Clearly, the issues raised by the plaintiffs and intervenor City cannot be tried separately from
the issues raised in Griffin's counterclaim. Griffin's proposed counterclaim asserts claims which
have their genesis in the very controversy at issue in the pending case. In short, Griffin Industries
is being subjected to the instant lawsuit as a result of the counter -defendants' wrongful and
intentional actions. Trying the instant case in the absence of Griffin's counterclaims would amount
to putting the cart before the horse.
Any delay in asserting this counterclaim is excusable as Griffin Industries has just, in the past
week, learned of numerous communications among Teresa Eastin, the City and other third parties.
It has further learned of City agents' participation in activities designed to tortiously interfere with
Griffin's operations. Griffin Industries wishes it knew these facts earlier. Nonetheless, it has
attempted to file the instant motion, brief and counterclaim as quickly as it could after learning the
facts and within the Court's deadline for amending pleadings or adding additional parties.
Allowing Griffin's counterclaim will not prejudice the counter -defendants. The City has
access to its employees whose actions form the basis of the counterclaim against it. Counter -
defendant Eastin obviously has knowledge of the relevant facts as she recounted many of her actions
during her deposition last week. Although a short continuance may be warranted by the addition of
this counterclaim, this case has only been pending for eight months, and the trial date has yet to be
continued. Thus, leave should be granted to file the instant counterclaim.
B. Counterclaims against Third Parties Authorized by Rules 13 and 19
Rule 13(h) states that persons other than the parties to the original action may be made parties
to counterclaims in accordance with the provisions of Federal Rules 19 and 20. Griffin Industries
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seeks to assert claims against Teresa Eastin for defamation, injurious falsehood and trespass. It seeks
to add a claim for trespass against Darlene Poor. Discovery has revealed that the instant nuisance
lawsuit is being pursued in substantial part because of the unlawful activities of proposed counter -
defendants Eastin and Poor. Eastin and Poor have encouraged and incited the plaintiffs and the City
with false and disparaging statements about Griffin Industries. In fact, Eastin has been named
spokesperson for the plaintiffs (a position she has utilized on numerous occasions), and she has
retained plaintiffs' counsel, Mr. Marshall Dale Evans, in connection with this case:
During her deposition, Ms. Eastin further admitted to two instances in which she and Darlene
Poor entered the property of Griffin Industries without permission. Finally, Eastin has been named
a witness in this case. It is clear that these individuals' actions have been critical in fueling this
lawsuit. Therefore, Griffin Industries should be afforded the opportunity to assert the claims it has
against them within the context of this case. Failure to allow the joinder of Teresa Eastin would
leave Griffin Industries subject to the risk of multiple or inconsistent litigation. Thus, by allowing
these claims to be tried together, one jury will be able to make factual findings and arrive at one
consistent result. Clearly, this is the result contemplated by Rules 19 and 20.
III. Conclusion
For the reasons set forth above, the Court should grant Griffin Industries' motion for leave
to file counterclaim and to join third -party counter -defendants.
5
f
Respectfully submitted,
d/b/a
By:
Jo L. Everett, Bar No. 70022
Joh4i M. Scott, Bar No. 97202
EVERETT LAW FIRM
P.O. Box 1646
Fayetteville, AR 72702
(501) 443-0293
CERTIFICATE OF SERVICE
I, John M. Scott, the attorney of record for the counter -plaintiff herein, state that I have
deposited in the United States Mail, postage prepaid, a true and correct copy of the above and
foregoing to Dale Evans, Evans Law Firm, P.O. Box 1986, Fayetteville, AR 72702 and Jerry Rose,
City Attorney, City of Fayetteville, 113 West Mountain, Fayetteville, AR 72701, on this
day of December, 1999. -
Johd M. Scott
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