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Bettger v. Lonoke Cnty.

Court of Appeals of Arkansas, Division IV

June 3, 2015

RANDY BETTGER, PATRICE BETTGER, VICTOR BETTGER, WENDELL BLACKBURN, CRISTINA JAMES, DAISY PEARSON, RAY NORMAN, BETTY NORMAN, MARVIN WADDLE, and NINA WADDLE, APPELLANTS
v.
LONOKE COUNTY, ARKANSAS and DOUG ERWIN, IN HIS OFFICIAL CAPACITY AS FLOODPLAIN ADMINISTRATOR AND COUNTY JUDGE OF LONOKE COUNTY, ARKANSAS, APPELLEES

Editorial Note:

This opinion is uncorrected and subject to revision before publication in the printed official reporter.

APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT, NO. CV-2011-455. HONORABLE SANDY HUCKABEE, JUDGE.

Richard Mays Law Firm, PLLC, by: Richard H. Mays, for appellants.

Rainwater, Holt & Sexton, by: Jason E. Owens, for appellee.

LARRY D. VAUGHT, Judge. HARRISON and GRUBER, JJ., agree.

OPINION

LARRY D. VAUGHT, Judge

This is an appeal from an order of the Lonoke County Circuit Court that denied appellants' request to abate a public road as an alleged public nuisance.[1] On appeal, appellants argue that the circuit court clearly erred in denying injunctive relief on the basis that a jury found that appellee Lonoke County's construction of a road did not result in an inverse condemnation of appellants' properties as a result of flooding allegedly caused by the road's construction. We find that the circuit court did not abuse its discretion in refusing to grant the injunction, and we affirm.[2]

Appellants own real property located in the Grayhawk Subdivision of Lonoke County, which is located in an area northwest of U.S. Highway 67/167. The subdivision is located in a flood plain of Bayou Two Prairie Creek. In the past, appellants had experienced flooding of their properties but not their homes. In 2006 and 2007, Lonoke County constructed a road known as South Rockwood Drive (the road) that runs parallel to U.S. Highway 67/167 and connects State Highways 5 and 89. Appellants contend that, after the county constructed the road, the flooding became more severe and entered into their homes.

After heavy rains flooded their homes in 2009 and 2011, appellants filed suit against the county,[3] alleging that the county failed to comply with its own flood-control ordinances in the construction of the road, thereby creating a nuisance and resulting in the taking of their properties. Appellants sought damages for injury to their real and personal property, damages for inverse condemnation, and injunctive relief in the form of restoration of the creek's normal drainage.

After the court denied appellants' motion for partial summary judgment to have the road declared a nuisance per se, the case proceeded to a jury trial on the issue of whether the construction of the road was a taking of appellants' properties and, if so, the amount of appellants' damages. Shortly before trial began, the county stipulated that it had violated its own flood-control ordinances, which required having hydraulic or hydrological studies prepared and obtaining floodplain permits and " no-rise" certificates before construction could start. As a result, the county argued that the court should bifurcate the injunctive-relief claim from the damages claim and rule on appellants' injunctive-relief claim in a summary fashion as a matter of law. The court granted the motion and reserved ruling on the injunctive claim pending the jury trial.

The jury found that the county had not inversely condemned appellants' properties. After the jury's finding that there was no inverse condemnation of appellants' properties, the court denied appellants' remaining claims for injunctive relief. A final judgment was entered reflecting both the jury's determination and the court's denial of injunctive relief. This appeal followed.

This court reviews injunctive matters de novo. South Flag Lake v. Gordon, 2009 Ark.App. 276, 307 S.W.3d 601. Further,

[t]he decision to grant or deny an injunction is within the discretion of the trial judge. We will not reverse the judge's ruling granting or denying an injunction unless there has been an abuse of discretion. When considering an order that grants or denies an injunction, we will not delve into the merits of the case further than is necessary to determine whether the lower court exceeded its discretion. We have explained that the sole question before us is whether the trial court departed from the rules and principles of equity in making its order, and not whether we would have made the order. In reviewing the lower court's ...

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