{ "id": 6065636, "name": "STATEWIDE OUTDOOR ADVERTISING, LLC, and Sears Gentry v. TOWN of AVOCA, ARKANSAS", "name_abbreviation": "Statewide Outdoor Advertising, LLC v. Town of Avoca", "decision_date": "2008-11-05", "docket_number": "CA 08-483", "first_page": "10", "last_page": "15", "citations": [ { "type": "official", "cite": "104 Ark. App. 10" }, { "type": "parallel", "cite": "289 S.W.3d 111" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 14-56-202", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2007, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 14-56-201", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1998, "opinion_index": 0 }, { "cite": "343 Ark. 652", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226576 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "657" }, { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/ark/343/0652-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-111-104", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 16", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a716-111-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "338 Ark. 791", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243508 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/338/0791-01" ] }, { "cite": "339 Ark. 176", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 130709 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/339/0176-01" ] }, { "cite": "363 Ark. 241", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3558399 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "243" }, { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/ark/363/0241-01" ] } ], "analysis": { "cardinality": 525, "char_count": 12166, "ocr_confidence": 0.796, "pagerank": { "raw": 6.323771877050583e-08, "percentile": 0.38872401441165105 }, "sha256": "e402642ac146ba60d856a00d823595cd02c5eba5329c1af3f7cb4cd9f8bee2f6", "simhash": "1:9afbf1b41367555e", "word_count": 1931 }, "last_updated": "2023-07-14T18:37:35.435157+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Griffen and Glover, JJ., agree." ], "parties": [ "STATEWIDE OUTDOOR ADVERTISING, LLC, and Sears Gentry v. TOWN of AVOCA, ARKANSAS" ], "opinions": [ { "text": "Sam Bird, Judge.\nThis is an appeal from the trial court\u2019s dismissal of the complaint of appellants, Statewide Advertising, LLC, and Sears Gentry. The trial court dismissed appellants\u2019 declaratory-judgment action against appellee, the town of Avoca, for failure to state a cause of action. We reverse the trial court\u2019s order.\nI.\nAccording to appellants\u2019 complaint and attached exhibits, the following events led to this dispute. Statewide leased two billboard spaces in the town of Avoca from Mr. Gentry and obtained permits from the Arkansas State Highway Commission, through the Arkansas Highway and Transportation Department (hereinafter AHTD), to build outdoor advertising billboards on the sites. AHTD issued Permit A092732 on February 22, 2006, and Permit A092741 on April 27, 2006. Statewide began construction of the billboards on June 5, 2006, and completed construction on July 12, 2006.\nOn September 5, 2006, the mayor of Avoca sent a letter to AHTD complaining about the billboards, stating that the billboards were in violation of Avoca\u2019s new Ordinance No. 73, which required any new commercial development in Avoca to be approved by the town council. On October 16, 2006, the mayor sent another letter to AHTD, stating that AHTD had failed in its duty to inspect the locations for the billboards and that the billboards were in violation of Avoca\u2019s new Ordinance No. 75, passed on September 12, 2006, which established a one-hundred-eighty-day moratorium on the erection of billboards within the Avoca city limits. On January 4, 2007, the recorder-treasurer of Avoca sent AHTD a letter asking for a response to the mayor\u2019s letter of October 16, 2006. On January 10, 2007, AHTD responded, stating: \u201cUnfortunately, an ordinance prohibiting billboards was not in place at the time the permit applications were received.\u201d\nFinally, on March 14, 2007, Avoca alderman, Darlene Gregory, faxed a copy of Ordinance No. 69 to AHTD. Ordinance No. 69 states in pertinent part as follows: \u201cAny person, partnership, corporation or other legal entity shall, before commencing construction on any commercial or industrial building or structure and/or before commencing any business activity must first obtain a business permit from the Town of Avoca.\u201d On August 17, 2007, Avoca, through its attorneys, the Slinkard Law Firm, sent a letter to Statewide indicating that the firm represented the town of Avoca and had been asked to write Statewide \u201cconcerning the above referenced billboards,\u201d which were referenced by their permit numbers.\nThe letter explained as follows:\nAs Statewide has previously been informed by the Arkansas State Highway and Transportation Department (the Highway Department) that the above referenced billboards are located within the incorporated town limits of the Town of Avoca, Statewide shotdd be aware that it is subject to the ordinances and regulations of the Town of Avoca. Specifically, Statewide was required to comply with Avoca Ordinance No. 69 which set forth that business permits must be acquired from the Town before certain activities may be conducted within the Avoca town limits.\nThe letter then set forth Ordinance No. 69. The letter said that the billboards constituted \u201ca commercial structure\u201d and, therefore, that Statewide was required to obtain a permit before it began construction. The letter continued, stating, \u201cStatewide failed to comply with Town Ordinances, and consequently, their permit for the billboards has been revoked by the Highway Department.\u201d The letter stated that since Statewide had \u201cfailed to comply with the orders of the Highway Department by not removing the billboards, and [had] failed to obtain a business permit as required under Ordinance No. 69, the Town of Avoca is compelled to act. Pursuant to Section 7 of Ordinance No. 69, Statewide shall be fined fifty dollars ($50.00) per day until the billboards in question are removed.\u201d\nOn September 8, 2007, appellants filed a complaint against the town of Avoca, alleging that Avoca was demanding removal of the billboards, that Avoca was attempting to enforce an illegal ordinance against them, and that irreparable harm would result if the situation were permitted to continue. Appellants requested damages, a preliminary and permanent injunction, and a declaratory judgment finding that Ordinance No. 69 did not require appellants to obtain a business permit to build the two billboards or prohibit the erection of the billboards in any other manner.\nAvoca responded by filing a motion to dismiss pursuant to Rules 12(b)(6) and 8(a) of the Arkansas Rules of Civil Procedure, alleging that it had not ordered the removal of appellants\u2019 billboards nor cited appellants for any violation of town ordinances. Therefore, the town argued, there were no facts presented in the complaint upon which relief could be granted.\nThe trial court granted Avoca\u2019s motion, finding that appellants did not state any facts \u201calleging they ever applied and were denied a permit to erect the structures (billboards), nor do they allege in the Complaint (when taken with the incorporated exhibits) that the Town of Avoca has or could have demanded the removal of the commercial structure.\u201d (Emphasis added.) The trial court went on to explain that while AHTD had \u201cinteracted\u201d with appellants, the town of Avoca had \u201cnot interacted with Plaintiffs to permit the structure or to demand its removal.\u201d Thus, held the court, there was \u201cno case or controversy alleged in the Complaint between the Plaintiffs and this Defendant.\u201d\nII.\nWe review a trial court\u2019s decision on a motion to dismiss by treating the facts alleged in the complaint as true and by viewing them in the light most favorable to the plaintiff. See Clowers v. Lassiter, 363 Ark. 241, 213 S.W.3d 6 (2005); King v. Whitfield, 339 Ark. 176, 5 S.W.3d 21 (1999). In viewing the facts in the light most favorable to the plaintiff, the facts should be liberally construed in the plaintiff s favor. Clowers, 363 Ark. at 243, 213 S.W.3d at 8. Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Ark. R. Civ. P. 8(a)(1); Grine v. Board of Trustees, 338 Ark. 791, 2 S.W.3d 54 (1999).\nAppellants contend on appeal that the trial court\u2019s order must be overturned because it does not address an aggrieved party\u2019s right to declaratory judgment pursuant to Ark. Code Ann. \u00a716-111-102 to -104 (Repl. 2006). Viewing the facts alleged in the complaint as true and in the light most favorable to the plaintiff, we find the circuit court erred and reverse its order dismissing appellants\u2019 complaint.\nThe Arkansas statutes governing actions for declaratory judgment very clearly state that they are to be \u201cliberally construed and administered.\u201d Ark. Code Ann. \u00a7 16-111-102(c). The stated purpose of a declaratory-judgment action is to \u201csettle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.\u201d Ark. Code Ann. \u00a7 16-lll-102(b). Pursuant to Ark. Code Ann. \u00a7 16-111-104, any person \u201cwhose rights, status, or other legal relations are affected by a ... municipal ordinance . . . may have determined any question of construction or validity arising under the . . . ordinance . . . and obtain a declaration of rights, status, or other legal relations thereunder.\u201d\nMunicipal corporations are creatures of the legislature and as such have only the power bestowed upon them by statute or the Arkansas Constitution. City of Cave Springs v. City of Rogers, 343 Ark. 652, 657, 37 S.W.3d 607, 610 (2001). Moreover, any substantial doubt about the existence of a power in a municipal corporation must be resolved against it. Id. In their complaint, appellants alleged that the town of Avoca is not a city of the first class, and therefore its power to regulate derives from Ark. Code Ann. \u00a7 14-56-201 (Repl. 1998) \u2014 which allows regulation of buildings \u2014 and not Ark. Code Ann. \u00a7 14-56-202 (Supp. 2007), governing cities of the first class \u2014 which allows for more extensive regulation, including the regulation of structures. Therefore, appellants contended in their complaint, Ordinance No. 69 was not promulgated in compliance with Arkansas law and exceeds the authority delegated to Avoca to regulate \u201cbuildings.\u201d Accordingly, appellants alleged that Avoca had no power to regulate its billboards.\nFurther, while the trial court\u2019s order stated that appellants did not allege in their complaint that Avoca \u201chas or could have demanded the removal of the commercial structure,\u201d we find that appellants did in fact so allege. In paragraph 4 of the complaint, appellants contended that Avoca had \u201cexceeded its authority under Arkansas law by demanding that plaintiffs remove two outdoor advertising billboards . . . pursuant to an ordinance governing business permits in Avoca (\u2018Ordinance 69\u2019).\u201d In paragraph 28, appellants argued that they will suffer irreparable harm \u201cif Avoca is allowed to require plaintiffs and [AHTD] to remove the Two Billboards.\u201d Again, in paragraph 32, appellants alleged that \u201cAvoca is demanding that plaintiffs remove the lawfully erected Two Billboards and has threatened daily sanctions against Statewide.\u201d In paragraph 33, appellants alleged that \u201cAvoca is attempting to enforce an illegal ordinance against Plaintiffs.\u201d Finally, in paragraph 40, appellants requested the trial court to enter a declaratoryjudgment finding that Ordinance No. 69 and all other Avoca ordinances in effect through July 12, 2006, do not require appellants to obtain a business permit to build the two billboards or prohibit the erection of the billboards in any other manner.\nThe trial court\u2019s finding that the town of Avoca had not interacted with appellants \u201cto permit the structure or to demand its removal\u201d is also incorrect. Appellants attached to their complaint numerous letters from the mayor of Avoca to AHTD stating that appellants\u2019 billboards were in violation of various ordinances of the town of Avoca, including Ordinance No. 69. Further, Avoca hired a lawyer to write a letter directly to Statewide advising it that the billboards constituted \u201ca commercial structure\u201d and, therefore, that Statewide was required to obtain a permit pursuant to Ordinance No. 69 before it began construction. The letter stated that Statewide had failed to comply with the town\u2019s ordinances, \u201cand consequently, their permit for the billboards [had] been revoked by the Highway Department.\u201d The letter warned that, because Statewide had \u201cfailed to comply with the orders of the Highway Department by not removing the billboards, and [had] failed to obtain a business permit as required under Ordinance No. 69, the Town of Avoca [was] compelled to act. Pursuant to Section 7 of Ordinance No. 69, Statewide shall be fined fifty dollars ($50.00) per day until the billboards in question are removed.\u201d Viewing the facts in the light most favorable to the plaintiff, we fail to see how the trial court could find that Avoca had not \u201cinteracted\u201d with appellants \u201cto permit the structure or to demand its removal\u201d when Avoca\u2019s letter to Statewide was just such an \u201cinteraction\u201d demanding removal of the billboards.\nConstruing the statutes governing actions for declaratory judgment liberally as required and treating the facts alleged in the complaint as true, as we must, we hold that the trial court erred in granting the town of Avoca\u2019s motion to dismiss. Appellants have filed a complaint sufficiently alleging that their rights \u201cor other legal relations\u201d have been affected by Ordinance No. 69, and hence they are entitled under Ark. Code Ann. \u00a7 16-111-104 to have \u201cdetermined any question of construction or validity arising under\u201d this ordinance and \u201cto obtain a declaration of [their] rights, status, or other legal relations thereunder.\u201d\nReversed and remanded.\nGriffen and Glover, JJ., agree.", "type": "majority", "author": "Sam Bird, Judge." } ], "attorneys": [ "Ed Daniel IV, P.A., by: Kathleen Reynolds and Ed Daniel, IV, for appellants.", "Andrew R. Huntsinger and Howard L. Slinkard, for appellee." ], "corrections": "", "head_matter": "STATEWIDE OUTDOOR ADVERTISING, LLC, and Sears Gentry v. TOWN of AVOCA, ARKANSAS\nCA 08-483\n289 S.W.3d 111\nCourt of Appeals of Arkansas\nOpinion delivered November 5, 2008\nEd Daniel IV, P.A., by: Kathleen Reynolds and Ed Daniel, IV, for appellants.\nAndrew R. Huntsinger and Howard L. Slinkard, for appellee." }, "file_name": "0010-01", "first_page_order": 36, "last_page_order": 41 }