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Pitchford v. City of Earle

Court of Appeals of Arkansas, Division II

May 1, 2019



          Frederick Lee Pitchford, pro se appellant.

          Davis Loftin, for appellees.


         This appeal returns to us after we ordered supplementation of the record and the addendum. Pitchford v. City of Earle, 2019 Ark.App. 135. The deficiencies we identified have been corrected, and we now consider the merits of the appeal.

         Appellant Frederick Lee Pitchford, pro se, appeals the April 16, 2018 orders of the Crittenden County Circuit Court that rendered judgment in favor of the City of Earle on Pitchford's numerous claims of wrongdoing by the city, its officials, and certain employees and that denied Pitchford's posttrial motion.[1] Appellant presents thirteen points on appeal. We affirm.

         Between January and December 2016, Pitchford filed an original complaint and three amended complaints against the city. Pitchford purported to represent himself and "Other interested citizens ('taxpayers')" of Earle in his various complaints of wrongdoing in the procedures used to operate the city and of alleged improper use of taxpayer funds. In the January 2016 filing titled "Complaint Injunction of Budget," Pitchford wanted the city's 2016 budget to be frozen because he believed it had been created under an improper and fraudulent process in the December 2015 budget meeting. He also accused the city clerk of violating the Freedom of Information Act (FOIA) by failing to provide him a copy of the adding-machine tape and notes she took during that budget meeting. In the original complaint, Pitchford asked for an injunction against this alleged illegal exaction and misapplication of taxpayer funds.

         Pitchford filed amended complaints, one in May 2016 and two in December 2016, to add numerous allegations, summarized as follows: (1) that city councilman Luckett had been appointed city inspector, holding two offices in violation of statute, and that the monies paid to Luckett should be returned; (2) that the city mechanic and police chief had been wrongfully terminated; (3) that a city vehicle had been observed in the parking lot of the dog-racing track, which was not city business, constituting an illegal exaction; (4) that the interim mayor should be enjoined and excluded from participating in the city council's consideration of the 2016 budget; (5) that he had lodged legitimate criticisms of city attorney Loftin with the city council, such that Loftin's contract should have been terminated; (6) that city councilman Luckett wrongfully failed to send an inspection ticket to Entergy so that Pitchford's electricity would be turned on at his 1609 Carol Cloar Street property, constituting fraud, dishonesty, and denial of due process; and (7) that police sergeant Al Elberson had been improperly compensated for more hours than he was authorized to work, constituting an illegal exaction.

         The matter was heard at a bench trial in December 2017. Pitchford called nine witnesses to support his various contentions.[2] At the conclusion of the bench trial, the circuit court took the matter under advisement. Approximately ten days later, Pitchford filed a document containing four requests: (1) seeking to hold the mayor in contempt for failing to attend the trial; (2) seeking a hearing to determine whether councilman Luckett and the city clerk had committed perjury during the trial; (3) seeking reconsideration of his desire to call city attorney Loftin as a witness, which the circuit court had denied during trial; and (4) seeking to have the circuit court consider additional evidence related to Sgt. Elberson's work hours and pay. The circuit court entered two orders in April 2018 denying and dismissing all of Pitchford's requests. This appeal followed.

         In bench trials, the standard of review on appeal is not whether there is substantial evidence to support the finding of the court but whether the court's findings were clearly erroneous or clearly against the preponderance of the evidence. Farm Credit Midsouth, PCA v. Reece Contracting, Inc., 359 Ark. 267, 271, 196 S.W.3d 488, 490 (2004). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Id. Disputed facts and determinations of credibility are within the province of the fact-finder. Id.

         In his first point on appeal, Pitchford argues that the circuit court erred by not requiring the repayment of taxpayer funds remitted to councilman Luckett for pay as "De Facto City inspector" because Luckett, by statute, could not hold two offices and be paid for both. The circuit court agreed that Luckett at some point violated the statute precluding a person from holding two city offices but noted that trial testimony showed that Luckett had helped the city inspector for about two years at no charge. The circuit court stated, however, that Pitchford offered no evidence to support what, if any, amount was paid to Luckett for city-inspector services. The circuit court did not clearly err on this point because Pitchford presented no proof of misappropriation of taxpayer funds.

         In points two and three on appeal, Pitchford asserts that the city attorney and the city council "failed to do their specifically enjoined duties, under different authority" when the city terminated the employment of the city's mechanic (Lee Johnson) and police chief (Tyrone Smith). The circuit court found, and we agree, that Pitchford presented no evidence of damages to him or other taxpayers flowing from the termination of these two men and that Pitchford has no standing to generally assert procedural irregularities concerning the alleged wrongful termination of Mr. Johnson and Mr. Smith. The general test for standing is whether the plaintiff has suffered an adverse impact. Summitt Mall Co., LLC v. Lemond, 355 Ark. 190, 132 S.W.3d 725 (2003). Pitchford's generalized complaints do not equate to an adverse impact on Pitchford or other citizens. Pitchford, therefore, fails to demonstrate error in the circuit court's findings on these allegations.

         In point four on appeal, Pitchford contends that the circuit court erred by not finding an improper use of taxpayer funds due to the mayor's driving a city vehicle to Southland Park for noncity business. The mayor was not in attendance at the trial and, consequently, was not called as a witness.[3] The circuit court found that Pitchford failed to present any evidence at trial to support this claim and failed to present evidence of monetary damage. We agree that in the absence of any evidence of monetary damage, the circuit court did not err in rejecting this claim by Pitchford.

         In point five on appeal, Pitchford argues that the circuit court erred by not finding that the city improperly allowed the interim mayor to be present and participate in the discussions about the 2016 budget. The circuit court ruled that Pitchford was asking for an injunction to stop the interim mayor's participation but that the issue was moot, the meeting having occurred in December 2015. As a general rule, the appellate courts of this state will not review issues that are moot. Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001). To do so would be to render advisory opinions, which our appellate courts will not do. Id. A case becomes moot when any judgment rendered would have no practical legal effect upon a then existing legal controversy. Id. We agree with the circuit court that the interim ...

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