APPEAL
FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NO. 18CV-16-30]
HONORABLE RICHARD LUSBY, JUDGE
Frederick Lee Pitchford, pro se appellant.
Davis
Loftin, for appellees.
N.
MARK KLAPPENBACH, JUDGE
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 ...