FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CV-15-487-2]
HONORABLE BRAD KARREN, JUDGE
Estill, Hardwick, Gable, Golden & Nelson, P.C., by:
Robert K. Rhoads and M. Scott Hall, for appellant.
Watkins, Boyer, Gray & Curry, PLLC, by: Bill Watkins and
Jennifer E. Gray, for appellees.
MARK KLAPPENBACH, Judge
City of Bethel Heights appeals from the trial court's
order granting summary judgment to appellees on its
breach-of-contract claim. Bethel Heights argues that a
contract existed between the parties and that appellees
breached the contract. We affirm.
the Gregory A. Kendrick Revocable Living Trust and Shelly
Kendrick, owned three tracts of land in Bethel Heights
comprising approximately eighty-six acres. Bethel Heights is
adjacent to Springdale. Appellees wanted their property to be
annexed into Springdale and attempted to get the two cities
to agree to this. In December 2014, appellees' attorney
sent a letter to Bethel Heights providing a "formal
statement and request for services pursuant to Act 779 of the
1999 legislative session, as revised and codified as A.C.A.
14-40-2001, et seq., " in the event that an agreement
was not reached. The service appellees sought from Bethel
Heights was "municipal sewer service sufficient to
provide not less than an eight (8) inch service main
sufficient for industrial use to the property." The
letter alleged that the "step sewer system"
operated by Bethel Heights had no ability to provide the
requested eight-inch service main.
In January 2015, Bethel Heights responded by letter, stating
in part as follows:
I have been authorized to inform you that the City of Bethel
Heights does hereby commit to provide services adequate to
service the needs of your client. At the present time there
is adjoining the property a forced main wastewater line that
our engineers have determined will actually service more
volume than the capacity of an eight inch (8") gravity
flow service which your clients claim to need. The City will
provide an eight inch connection to that line at the time
needed by your client or will stub out such a connection
within the 180 day time period within which substantial steps
are required to be made by Act 779.
As the line is already located adjacent to the property and
the line will handle the flow of an eight inch line, the
service requested by your client is already available.
In your letter you referenced "industrial use" of
the property. . . . The City respectfully requests that
additional information be provided to the City in order that
zoning and use issues may be considered and a determination
made as to whether any proposed use of the property may even
be acceptable under the zoning and development requirements
of the City. Such a basic determination in the normal and
customary course of development is vital to determining the
services necessary not only with wastewater but also with
water, electric, and gas and such information will surely be
available in determining the required capacity and
availability of those services.
did not respond to Bethel Heights's request for
March 2015, Springdale passed an ordinance annexing
appellees' property into the city, and in April 2015,
Bethel Heights filed suit against Springdale and appellees.
In its complaint, Bethel Heights sought a declaratory
judgment declaring the ordinance void ab initio, sought to
appeal the ordinance, and alleged breach of contract by
appellees. Bethel Heights claimed that the two letters
exchanged by the parties formed a contract and that appellees
had breached the contract by failing to provide reasonably
requested information to Bethel Heights and by having
Springdale annex the property without notice to Bethel
Heights. Bethel Heights requested that the court require
specific performance of the contract or, alternatively, award
damages for loss of tax revenue.
and Springdale filed a joint motion to dismiss, and the trial
court dismissed all of the claims except for the
breach-of-contract claim against appellees. Appellees
subsequently filed a motion for summary judgment asserting
that the letters exchanged by the parties did not form a
contract; that even if there was a contract, appellees did
not breach the contract; and that it was impossible for them
to perform any such contract now ...