Bettger v. Lonoke Cnty. Ark. , 465 S.W.3d 438 ( 2015 )

Cite as 2015 Ark. App. 366
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-14-597
RANDY BETTGER, PATRICE Opinion Delivered June 3, 2015
BETTGER, VICTOR BETTGER,
WENDELL BLACKBURN, CRISTINA APPEAL FROM THE LONOKE
JAMES, DAISY PEARSON, RAY COUNTY CIRCUIT COURT,
NORMAN, BETTY NORMAN, [NO. CV-2011-455]
MARVIN WADDLE, and NINA
WADDLE HONORABLE SANDY HUCKABEE,
APPELLANTS JUDGE
V. AFFIRMED
LONOKE COUNTY, ARKANSAS and
DOUG ERWIN, IN HIS OFFICIAL
CAPACITY AS FLOODPLAIN
ADMINISTRATOR AND COUNTY
JUDGE OF LONOKE COUNTY,
ARKANSAS
APPELLEES
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
1
Appellants are Randy Bettger, Patrice Bettger, Victor Bettger, Wendell
Blackburn, Cristina James, Daisy Pearson, Ray Norman, Betty Norman, Marvin Waddle,
and Nina Waddle.
Cite as 2015 Ark. App. 366
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
2
We previously ordered rebriefing because the appellants did not include an abstract
of the trial testimony. See Bettger v. Lonoke Cnty., 2015 Ark. App. 109. That defect has
been remedied, and we are able to reach the merits of this appeal.
3
Also named as a defendant in the suit was Doug Erwin, who is both the county
judge and, ex officio, the county’s floodplain administrator.
2
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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 findings, we give due deference to that court’s
superior position to determine the credibility of the witnesses and the weight to be
accorded to their testimony.
Id. at 5, 307 S.W.3d at 604 (citing Delancy v. State, 356 Ark. 259, 264–65, 151 S.W.3d 301,
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304–05 (2004)) (internal citations omitted).
For reversal, appellants argue that development in flood-prone areas is declared a public
nuisance under Arkansas law, and must be enjoined. See Ark. Code Ann. § 14-268-105 (Repl.
1998).4 They further argue that the circuit court clearly erred in denying their claim for
injunctive relief solely on the basis that the jury found no inverse condemnation of their
property. Appellants, citing Hall v. City of Bryant, 2010 Ark. App. 787, 379 S.W.3d 727, argue
that, because the county admitted that it failed to comply with the two county ordinances
prior to construction of the road, the road is a public nuisance as a matter of law and that they
were not required to show harm or damages in order to obtain injunctive relief abating the
nuisance. Hall is not dispositive in this case. While section 14-268-105 does not specifically
require a showing of harm before an injunction will issue, the fact that harm is shown does
not automatically mandate the issuance of an injunction because the plain language of the
statute gives the circuit court wide discretion as to whether the public nuisance will be
enjoined; and the circuit court did not abuse its discretion here.
The abuse-of-discretion standard is a high threshold that does not simply require error
in the circuit court’s decision, but requires that the court act improvidently, thoughtlessly, or
without due consideration. Schwyhart v. J.B. Hunt, LLC, 2014 Ark. App. 324, 436 S.W.3d
4
Section 14-268-105 provides that:
Every structure, building, fill, or development placed or maintained within
any flood-prone area in violation of measures enacted under the authority of this
chapter is a public nuisance. The creation of any of these may be enjoined and the
maintenance thereof may be abated by action or suit of any city, town, or county,
the state, or any citizen of this state.
4
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173. Appellants make a one-sentence argument that the circuit court abused its discretion by
relying solely on the jury’s finding that the construction of the road did not constitute an
inverse condemnation of their properties. They suggest that the circuit court should have
conducted a further hearing before issuing a decision on injunctive relief. However, they did
not request such a hearing. They also did not ask the court for additional findings of fact and
conclusions of law pursuant to Ark. R. Civ. P. 52(b). More important, the court heard the
same testimony that the jury heard, and there was sufficient evidence to support the circuit
court’s ruling.
Here, the county’s expert witness, engineer Stacy Akin, testified that the 2009 and
2011 storms fit the definition of 100-year flood events. He was not surprised that appellants’
homes had been flooded during these events because the homes were below the FEMA base-
flood elevation even prior to the construction of the road. Akin did not perform a hydraulic
or hydrologic analysis of the creek and the road. However, his opinion was that the
construction of the road did not contribute to the flooding suffered by appellants. He
acknowledged that the road’s bridge over the creek was smaller and allowed less of a flow than
the bridges over the creek on Highway 67/167 and could back up to the flood plain. He
added that in a big rain event, the size of the opening would not matter if the water topped
the road. From this testimony, the circuit court could have determined that the flooding of
appellants’ homes was not the result of the county’s construction of the road in violation of
section 14-268-105.
Based on the plain language of section 14-268-105 and our standard of review, we
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cannot say that the circuit court abused its discretion in denying appellants’ request for an
injunction. Accordingly, we affirm.
Affirmed.
HARRISON and GRUBER, JJ., agree.
Richard Mays Law Firm, PLLC, by: Richard H. Mays, for appellants.
Rainwater, Holt & Sexton, by: Jason E. Owens, for appellee.
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