Bd. of Dir. of the City of Hot Springs v. Pritchett , 454 S.W.3d 223 ( 2015 )

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SUPREME COURT OF ARKANSAS
No. CV-14-272
BOARD OF DIRECTORS OF THE Opinion Delivered January 22, 2015
CITY OF HOT SPRINGS, ARKANSAS
APPELLANT APPEAL FROM THE GARLAND
COUNTY CIRCUIT COURT
V. [NO. CV-2013-788-I]
HONORABLE TED CAPEHART,
GEORGE PRITCHETT, PEGGY SPECIAL CIRCUIT JUDGE
MARUTHER-THURMAN, DAN
LEWIN, DR. JACK STERNBERG, DISMISSED IN PART; AFFIRMED IN
ROBERT DRIGGERS, and CAPTAIN PART.
BILL RIGGINS
APPELLEES
ROBIN F. WYNNE, Associate Justice
The Board of Directors of the City of Hot Springs (the Board) appeals from two
separate orders of the Garland County Circuit Court. In the first order, the circuit court
found that the Board had violated the Arkansas Freedom of Information Act. In the second
order, the circuit court awarded appellees attorney’s fees in the amount of $3000 and costs in
the amount of $530. Appellees have filed a motion to dismiss the appeal as moot. Our
jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(b)(6) (2014). We dismiss the
appeal as moot in part and affirm in part.
In 2011, the Board passed an ordinance allowing for a twenty-one-minute public-
comment period following its regular meetings. Lance Hudnell, the city manager at the time
the ordinance was passed, unilaterally decided to allow all regular meetings, including the
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public-comment period, to be telecast. The public-comment period was televised until the
Board agreed at a workshop retreat held at Brady Mountain Lodge on February 8, 2013, to
cease televising the public-comment period. The Board then implemented the decision to
cease the telecast of the public-comment period without further action.
Appellee Robert Driggers sent a letter to the city on August 2, 2013, in which he
requested that the decision to cease the telecast be suspended until it was ratified by the Board
at a regular public meeting. The city attorney for Hot Springs responded to Mr. Driggers’s
request in a letter stating that, because the decision to televise the public-comment period was
an administrative decision, no formal action by the Board was required to cease the broadcast.
The city attorney also responded to a request for information from a local newspaper
regarding how the decision was made by stating that no vote would be required and that the
consensus of the Board was to cease broadcasting the public-comment period. The mayor
responded to an email query from Mr. Driggers and stated that, at the retreat, the Board had
reached a six-to-one consensus regarding the issue.
On October 11, 2013, appellees filed a petition for relief under the Arkansas Freedom
of Information Act (FOIA). The Board responded to the petition, stating that proper and
lawful notice of the workshop had been given and that no action or vote was required for the
Board to cease televising the public-comment period. The parties stipulated that the matter
would be submitted to the circuit court on the record and without a hearing. On December
2, 2013, the circuit court entered an order in which it found that the action by the Board on
February 8, 2013, was taken in violation of FOIA and that the Board was required to vote in
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public at a regular meeting in order to cease televising the public-comment period.
Specifically, the circuit court found that, while the original decision to televise the public-
comment period was a managerial decision, when the Board met on February 8, 2013, and
decided to end the telecast, it became a policy decision by the Board that had to be ratified
at a regular meeting. The circuit court also found that appellees were entitled to attorney’s
fees. Appellees submitted a motion for costs in the amount of $530 and attorney’s fees in the
amount of $5000. In an order entered on December 16, 2013, the circuit court awarded
appellees attorney’s fees in the amount of $3000 and costs in the amount of $530. After the
circuit court entered its order finding that the Board had violated FOIA, but before this appeal
was filed, the Board voted at a regular public meeting to cease televising the public-comment
period. This appeal followed.
As stated above, appellees have filed a motion to dismiss the appeal, in which they
argue that the Board’s vote at the regular meeting to cease televising the public-comment
period rendered the issues presented in the appeal moot. Generally, an issue becomes moot
when any judgment rendered would have no practical effect upon a then existing legal
controversy. Newman v. Crawford Cnty. Cir. Ct., 2014 Ark. 308, at 4. As a general rule,
appellate courts of this state will not review moot issues, as doing so would be to render an
advisory opinion, which this court will not do. Id. However, there are two exceptions to
the mootness doctrine. The first exception involves issues that are capable of repetition, yet
evade review, and the second exception concerns issues that raise considerations of substantial
public interest which, if addressed, would prevent future litigation. Etherly v. Newsome, 2013
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Ark. 391, at 4. The Board has responded to appellees’ motion to dismiss the appeal, arguing
that both exceptions to the mootness doctrine apply.
After the order was entered, the Board took the action mandated by the circuit court’s
order, thereby terminating the controversy between the parties on the issue. Regarding the
first exception to the mootness doctrine, while the issue presented may be capable of
repetition, it does not evade review. As for the second exception, the issue presented is
dependent upon the unique facts of this case and raises no issue of substantial public interest
that would prevent future litigation if addressed. Thus, neither exception to the mootness
doctrine applies in this case. Therefore, we dismiss the Board’s challenge to the circuit court’s
finding that it violated FOIA as moot.
Appellant also argues that the circuit court erred by awarding appellees attorney’s fees.
The attorney’s fees have yet to be paid; thus, the controversy over the awarded fees still exists.
This issue is not moot.
In any action to enforce FOIA, or in any appeal therefrom, the court shall assess against
the defendant reasonable attorney’s fees and other litigation expenses reasonably incurred by
a plaintiff who has substantially prevailed unless the court finds that the position of the
defendant was substantially justified. Ark. Code Ann. § 25-19-107(d)(1) (Repl. 2014). The
Board argues that it was substantially justified in believing that it had complied with FOIA.
The circuit court stated in its December 2, 2013 order that appellees were entitled to a fee.
Appellees subsequently submitted a petition for attorney’s fees and costs. The Board failed
to respond to the fee petition, and it never raised the argument made on appeal before the
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circuit court. Arguments not raised at trial are not considered on appeal. Parmley v. Moose,
317 Ark. 52, 57, 876 S.W.2d 243, 246 (1994). The order awarding appellees attorney’s fees
and costs is affirmed.
Dismissed in part; affirmed in part.
Brian W. Albright, City Attorney, for appellant.
Benjamin D. Hooten, for appellees.
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