The opinion
Digitally signed by Susan P.
Cite as 2020 Ark. 12
Williams
Reason: I attest to the accuracy
SUPREME COURT OF ARKANSAS
and integrity of this document No. CV-18-1034
Date: 2021.06.14 12:27:24 -05'00'
Opinion Delivered: January 16, 2020
CITY OF LITTLE ROCK
APPELLANT APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT
[NO. 60CV-15-6339]
ALEXANDER APARTMENTS,
LLC; ARKANSAS COMMUNITY HONORABLE ALICE S. GRAY,
ORGANIZATIONS; MELODY JUDGE
BRANCH; CAROLYN FORD;
INGRAM MURPHY; AND
LINDA WHEELER AFFIRMED IN PART; REVERSED
APPELLEES AND REMANDED IN PART.
JOHN DAN KEMP, Chief Justice
The City of Little Rock (the “City”) appeals the Pulaski County Circuit Court’s
order awarding damages under the Arkansas Civil Rights Act (ACRA) to appellees
Alexander Apartments, LLC (“Alexander Apartments”), and Melody Branch, Carolyn Ford,
Ingram Murphy, and Linda Wheeler (collectively the “tenants”) after determining that the
City violated those appellees’ due-process rights under the Arkansas Constitution. 1 For
reversal, the City argues that the circuit court erred by finding that (1) it violated the due-
process rights of Alexander Apartments and the tenants, (2) Vol. 1, § 108.1 of the Arkansas
Fire Prevention Code and the City’s ordinance adopting it are unconstitutional, and (3)
Alexander Apartments and the tenants were entitled to their respective awards of damages.
We affirm in part, and reverse and remand in part.
1
Separate appellee Arkansas Community Organizations (“ACO”), a not-for-profit
organization, was permitted to intervene in the case to assert due-process claims against the
City but did not seek damages.
I. Facts and Procedural History
On March 14, 2014, Alexander Apartments purchased an apartment complex (the
“complex”) located at 6310 Colonel Glenn Road in Little Rock. The complex consisted
of seventeen buildings with a total of 141 apartment units. At that time, less than one-third
of the units were occupied, and all were in disrepair. Within two weeks of the purchase,
City code-enforcement officers conducted inspections of each unit, and the City prepared
an itemized list of life-safety and non-life-safety concerns for each unit. Alexander
Apartments conferred with the City on a plan to make repairs but was unable to complete
the repairs within the time frame imposed by the City. In June 2014, the City served
Alexander Apartments with a citation to appear before the Environmental Division of the
Little Rock District Court. Alexander Apartments then appeared in district court every
thirty to forty-five days and gave status reports on its progress in remedying numerous
existing building-code violations. Between March 2014 and December 2015, code-
enforcement officers found ninety-nine units to be cleared of life-safety and non-life-safety
violations and approved them for occupancy. A unit was cleared for occupancy by officers
as late as December 2015.
On December 17, 2015, the district court conducted a status hearing, and the City
raised allegations of new violations and moved to close the complex until the violations
were remedied. At a December 21, 2015 hearing, the City withdrew its motion to close
the complex. Little Rock Fire Chief Gregory Summers then handed Jason Bolden, the
managing member of Alexander Apartments, a letter stating that
[o]n December 16, 2015 members of my staff assisted by Building Code inspectors
of the Housing and Neighborhood Programs Department conducted fire and life
2
safety code inspection of the above mention [sic] property in accordance with the
2012 International Property Maintenance Code and the 2012 Arkansas Fire
Prevention Code. Numerous violations were discovered that cause a dire concern
for the life safety of the occupants. Exposed wiring, evidence of raw sewage, absent
and non-working smoke alarms, appearance of mold, carcass of a cat, water settling
on the roof, plumbing and mechanical issues were all discovered during this
inspection. Life safety is of utmost importance as it provides strategies to protect our
citizenry and minimize the effects of fire and related hazards. Your facility is far from
accomplishing the most basic safeguards against fire or other hazards and therefore as
the Fire Chief I’m ordering this complex to cease operations until such time as all
buildings are in compliance with the 2012 versions of the Arkansas Building and Fire
Codes. All tenants have until Monday December 28, 2015 at 5:00 pm to vacate the
property. You will be provided with a detail [sic] list of violations that must be
complied with before re-occupying any buildings on the property. This order
includes all buildings and operations conducted on the property. By close of business
Monday December 28, 2015 all utilities will be disconnected.
Alexander Apartments objected to the orders given in the letter, and the district court ruled
that it had no jurisdiction over the matter. That same day, a copy of the letter was wedged
in the door of each apartment at the complex, and the City placed a notice on each door,
ordering the occupants to vacate their apartments by December 28, 2015. The letter and
notice did not offer any process by which the tenants could challenge the City’s action.
On December 21, 2015, Alexander Apartments filed a complaint against the City
and moved for a temporary restraining order (TRO), alleging that the City violated its due-
process rights under both the Arkansas and the United States Constitutions by taking its
property without notice and without providing an opportunity to be heard. Alexander
Apartments also alleged that, as of that date, it had no notice of the issues that, according to
the City and the fire chief, warranted closing the complex. Thus, it sought written notice
of the alleged violations. The next day, the tenants and ACO filed a motion to intervene as
a matter of right in the lawsuit. They also filed a third-party complaint against the City and
3
Alexander Apartments and moved for a TRO. Also on December 22, the City provided
Alexander Apartments with a written list of violations.
On December 23, the circuit court granted the TRO requests, prohibiting the City
from terminating utilities or requiring that Alexander Apartments and the tenants relocate.
The circuit court found that Alexander Apartments and the tenants had shown good cause
to believe that the City ordered the closure of the complex without proper procedural
protections under the Arkansas and the United States Constitutions and that a forced closure
would cause them immediate and irreparable harm. On December 29, the circuit court held
a hearing and ruled from the bench the following day that the TRO would remain in effect
until the final trial. On January 15, 2016, the circuit court entered an order continuing the
TRO until a final hearing in the matter.2 The circuit court also granted the tenants’ motion
to intervene, but it reserved ruling on ACO’s intervention.
On January 20, ACO and the tenants filed an amended third-party complaint seeking
declaratory and injunctive relief. They alleged that the City had violated the tenants’ due-
process rights under the Arkansas Constitution and asserted multiple claims against
Alexander Apartments. The tenants also sought actual and punitive damages.
On August 23, 2016, ACO and the tenants moved for summary judgment on their
due-process claims against the City. They sought declarations that, as a matter of law, the
City had violated the tenants’ due-process rights by taking their property without adequate
2
That same day, the City removed the case to federal court. On January 20, 2016,
the United States District Court entered an order declining to exercise supplemental
jurisdiction over the state-law claims and remanded those claims to state court. It held in
abeyance proceedings on the federal claims pending resolution of the state-law claims.
4
notice or an opportunity to be heard and that Arkansas Residential Fire Code § 108 and
Little Rock ordinance § 8-579 were unconstitutional. They also sought a permanent
injunction prohibiting the City from dispossessing the tenants of their rental units and utility
services without providing adequate notice and an opportunity to be heard.3
On February 14, 2017, the circuit court held a hearing on that motion for summary
judgment. On July 10, the circuit court found that (1) the City violated the tenants’ state
due-process rights by failing to provide predeprivation notice of a procedure to challenge
the City’s actions and by failing to provide the tenants with an opportunity for a
postdeprivation hearing, and (2) the Arkansas Fire Prevention Code (“Fire Code”) violates
the tenants’ state due-process rights because it does not establish any mechanism for review
of decisions made by the City’s fire officials.4 The circuit court also enjoined the City from
depriving tenants of their property rights without adequate notice and an opportunity for a
pre- or postdeprivation hearing. It reserved the issue of damages for trial.
On September 19, 2017, Alexander Apartments amended its complaint to seek a
permanent injunction prohibiting the City from closing the complex without notice and an
opportunity for review of the fire official’s actions and to seek damages under the ACRA
for violations of its due-process rights. Alexander Apartments then moved for summary
judgment, claiming entitlement to judgment as a matter of law on its due-process claim
3
The circuit court subsequently permitted ACO to intervene only in its cause of
action against the City.
4
The circuit court later entered an order clarifying that it did not find the Arkansas
Fire Prevention Code, Vol. 1, § 108.1 (2012 ed.) unconstitutional because it provides that
a county, municipality, or any other political subdivision may establish a local board of
adjustments and appeals for the purpose of reviewing orders given by local fire officials.
5
because the City provided no opportunity to be heard on the order closing the complex.
The City cross-moved for summary judgment, arguing that there was no due-process
violation because Alexander Apartments filed suit before the City could provide a
postdeprivation hearing and that it had an opportunity to be heard in the circuit court less
than forty-eight hours after receiving the fire chief’s order, which resulted in the TRO.
Following a hearing on the cross-motions for summary judgment, the circuit court entered
an order on November 29, 2017, granting Alexander Apartments’ motion and denying the
City’s. It found that the City violated Alexander Apartments’ due-process rights under the
Arkansas Constitution and that it was entitled to damages under the ACRA.
On August 29, 2018, the circuit court entered an order awarding Alexander
Apartments $432,744.33 for lost revenue and expenses it incurred to mitigate its damages
and awarding compensatory damages to the tenants in the amounts of $25,000 to Melody
Branch, $10,000 to Ingram Murphy, and $8,500 each to Linda Wheeler and Carolyn Ford.5
The City timely appealed the circuit court’s order.
III. Points on Appeal
A. Due Process
For its first point on appeal, the City argues that the circuit court erred in granting
summary judgment based on its findings of due-process violations. The City argues that it
did not violate Alexander Apartments’ or the tenants’ due-process rights under the Arkansas
Constitution.
5
The tenants’ claims against Alexander Apartments were previously dismissed with
prejudice by agreement of the parties.
6
Ordinarily, on appeal from a summary-judgment disposition, the evidence is viewed
in the light most favorable to the party resisting the motion, and any doubts and inferences
are resolved against the moving party. See Hobbs v. Jones, 2012 Ark. 293, at 7–8, 412 S.W.3d
844, 850. But when the parties agree on the facts, we simply determine whether the appellee
was entitled to judgment as a matter of law. Id. at 8, 412 S.W.3d at 850. When the parties
file cross-motions for summary judgment, as in this case, we determine on review whether
the appellee was entitled to judgment as a matter of law. See Sullins v. Cent. Ark. Water,
2015 Ark. 29, at 3–4, 454 S.W.3d 727, 730. As to issues of law presented, our review is de
novo. See Hobbs, 2012 Ark. 293, at 8, 412 S.W.3d at 850.
The Arkansas Constitution provides that “[n]o person shall be deprived . . . of his
life, liberty, or property” without due process of law. Ark. Const. art. 2, § 21. Due process
requires at a minimum that a person be given notice and a reasonable opportunity for a
hearing before he or she is deprived of property by state action. See State of Wash. v.
Thompson, 339 Ark. 417, 425, 6 S.W.3d 82, 87 (1999). The concept of due process requires
neither an inflexible procedure universally applicable to every situation nor a technical
concept with a fixed content unrelated to time, place, and circumstance. Id., 6 S.W.3d at
87. Instead, what process must be afforded is determined by context, dependent upon the
nature of the matter or interest involved. Id. at 426, 6 S.W.3d at 87. A valid due-process
claim consists of four elements: action under color of state law; a right, privilege, or
immunity secured by the constitution such as property; a loss of property amounting to a
deprivation; and an absence of due process. See Sanford v. Walther, 2015 Ark. 285, at 9, 467
S.W.3d 139, 146
7
1. Alexander Apartments
In the present case, the circuit court granted summary judgment to Alexander
Apartments on its claim that the City violated its right to due process under the Arkansas
Constitution. In its order, the circuit court noted section 110.2 of volume I of the Fire
Code, which provides that “[t]he fire code official . . . shall be authorized to order the
immediate evacuation of any occupied building deemed unsafe when such building has
hazardous conditions that present imminent danger to building occupants.” It found that
the City did not immediately evacuate any occupant of any building on either December
16 or December 21, but informed tenants on December 21 that they had another week to
vacate the complex. It found that the Fire Code authorizes a “fire code official” (here the
fire chief) to “enforce the provisions of the code,” and it authorizes the City to establish a
board of appeals to hear appeals of orders, decisions, or determinations made by the fire-
code official. It found, however, that the City did not establish any board or other entity to
allow a property owner or tenant to challenge such actions by the fire chief. The circuit
court noted that “[t]o date, almost two years later, the City has not provided any process to
Alexander Apartments regarding the deprivation of its property interest.”
It further found that there was no genuine issue of material fact that the City (1)
deprived Alexander Apartments of a property interest by ordering it to cease its operations
and by ordering its tenants to vacate the premises; (2) did not provide any mechanism, either
before or after Fire Chief Summers issued his order, for Alexander Apartments to challenge
the closure; and (3) was acting under color of the Fire Code, as incorporated by reference
in § 8-2 of the Little Rock Municipal Code, in closing the complex. Thus, it concluded
8
that Alexander Apartments was entitled to judgment as a matter of law that the City violated
its right to due process under the Arkansas Constitution.
We agree with the circuit court’s finding that Alexander Apartments was entitled to
judgment as a matter of law that the City violated its due-process rights under the Arkansas
Constitution. It was undisputed that it had a property interest in the operation of the
complex that it owned. The circuit court correctly found, as a matter of law, that Alexander
Apartments was deprived of that property interest by the fire chief’s order that it cease its
operations there and that its tenants vacate the property; that the fire chief was acting under
color of the Fire Code in issuing that order; and that the City did not provide any
mechanism––either before or after the fire chief issued his order––for Alexander Apartments
to challenge the closure. This court has recognized that this constitutes a valid due-process
claim. See Sanford, 2015 Ark. 285, at 9, 467 S.W.3d at 146; Franklin v. State, 267 Ark. 311,
316, 590 S.W.2d 28, 31 (1979).
We further agree with the circuit court that the filing of this action did not relieve
the City of its obligation to provide due process to Alexander Apartments. As the circuit
court correctly concluded, “a post-deprivation hearing before a neutral decision maker may
have obviated the need for this action altogether.”6 We also reject the City’s argument that
6
We also are unpersuaded by the City’s reliance on the federal cases holding that,
when a postdeprivation hearing of some sort is warranted, a common-law tort remedy for
wrongful deprivation satisfies due process. See Zinermon v. Burch, 494 U.S. 113, 129–32,
137–39 (1990); Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527,
540–41 (1981). Although we may look to federal § 1983 decisions when analyzing ACRA
claims, see Ark. Code Ann. § 16-123-105(c) (Repl. 2006), the rule providing for a
postdeprivation common-law tort remedy is limited to “random and unauthorized”
behavior by state employees. The City has not alleged that the fire chief’s order was random
9
there was no due-process violation because it was exercising its police power during an
emergency situation, which rendered any predeprivation hearing impractical if not
impossible. Although the City claimed that an emergency observed on December 16, 2015,
necessitated the immediate closure of the complex, the order did not mandate closure until
twelve days later. The urgent situation described by the City was belied by its own delay.
Even assuming that an emergency justified a delayed hearing, see Fuentes v. Shevin, 407 U.S.
67, 90 (1972), the City offered no postdeprivation opportunity for a hearing or panel to
review the closure decision despite a provision in the Fire Code providing for the
establishment of such a panel. Thus, we hold that the circuit court was correct as a matter
of law that the City violated Alexander Apartments’ due-process rights under the Arkansas
Constitution because it failed to provide a pre- or postdeprivation mechanism for
challenging the closure. We affirm its grant of summary judgment to Alexander Apartments.
2. Tenants
In granting the tenants’ and ACO’s summary-judgment motion on their due-process
claim, the circuit court found,
The letter to Bolden from Fire Chief Summers was delivered to the tenants
of Alexander Apartments on December 21, 2015, by wedging a copy in the door
jam[b] of each apartment unit. Also delivered to the tenants by the same method on
that day was a letter from Andre Bernard, Director of the City of Little Rock’s
Department of Housing & Neighborhood Programs. Bernard’s letter was dated
December 21, 2015, and was directed to “Tenants of Alexander Apartments.”
Bernard’s letter informed the tenants that the City of Little Rock Fire Department
had ordered operation of the apartment complex to cease until all building [sic] were
brought into compliance, and told the tenants that they had until 5:00 p.m. on
December 28, 2015, to vacate the premises. The letter also provided a phone number
whereby the tenants could contact Department of Housing & Neighborhood
and unauthorized. Therefore, we reject the City’s reliance on those cases.
10
Programs staff “to receive information on relocation.” It should be noted that neither
of the letters provided to the tenants on December 21, 2015, provided the tenants
with any mechanism for appealing the condemnation of the property by the City or
for appealing the City’s decision to remove them from the property.
It found that the City had violated the tenants’ due-process rights under the Arkansas
Constitution by failing to provide them with predeprivation notice of a procedure to
challenge the City’s actions and by failing to provide them with an opportunity for a
postdeprivation hearing. It enjoined the City from depriving tenants of their property rights
without adequate notice, “which is to include a procedure to challenge the City’s actions,
and an opportunity to have a pre-deprivation or post-deprivation hearing.”
We agree with the circuit court’s finding that the City violated the tenants’ due-
process rights under the Arkansas Constitution. We have held that a tenant is not an invitee
on his or her landlord’s premises but has a right equal to that of his or her landlord to
exclusive possession of his or her property. Glasgow v. Century Prop. Fund XIX, 299 Ark.
221, 222, 772 S.W.2d 312, 312 (1989). Thus, the tenants had a property interest in the
exclusive possession of their apartments. The letter and notice instructing them to vacate
by, and that utilities would be turned off on, December 28, 2015, interfered with that
exclusive possession. It was undisputed that the fire chief was acting under color of the Fire
Code in issuing the order and that the tenants were not provided with any pre- or
postdeprivation mechanism for challenging their apartments’ closure. Accordingly, the
tenants, like Alexander Apartments, established a valid due-process claim. See Sanford, 2015
Ark. 285, at 9, 467 S.W.3d at 146; Franklin, 267 Ark. at 316, 590 S.W.2d at 31. We
therefore hold that the circuit court was correct as a matter of law that the City violated the
11
tenants’ due-process rights under the Arkansas Constitution, and we affirm its grant of
summary judgment.
B. Fire Code Constitutionality
The City next argues that the circuit court erred in ruling that Vol. 1 § 108.1 of the
Fire Code was unconstitutional. On November 3, 2017, however, the circuit court entered
an order clarifying that it did “not find that Section 108.1 of Volume 1 of the Arkansas Fire
Prevention Code (2012 version) is unconstitutional as written and as promulgated by the
Director of the Department of Arkansas State Police . . ..” Because there is no ruling for us
to review, we do not address this point on appeal.
C. Damages
For its third point on appeal, the City challenges the awards of damages to Alexander
Apartments and the tenants. The City claims that Alexander Apartments’ damages for lost
profits and mitigation and the tenants’ compensatory damages were speculative and
excessive.
1. Standard of review
The standard of review in a case where damages are alleged to be excessive is whether
there is substantial evidence to support the verdict. See Allstate Ins. Co. v. Dodson, 2011 Ark.
19, at 14–15, 376 S.W.3d 414, 425. Damages will not be allowed that are speculative, resting
only upon conjectural evidence or the opinion of the parties. See Mine Creek Contractors, Inc.
v. Grandstaff, 300 Ark. 516, 522, 780 S.W.2d 543, 545 (1989). When an award of damages
is alleged to be excessive, we review the proof and all reasonable inferences most favorably
to the appellee and determine whether the verdict is so great as to shock the conscience of
12
the court or demonstrate passion or prejudice on the part of the trier of fact. See Carr v.
Nance, 2010 Ark. 497, at 25, 370 S.W.3d 826, 841.
2. Alexander Apartments
The City argues that the circuit court erred in awarding Alexander Apartments
damages in the amount of $432,744.33, contending that it failed to prove the extent of
profits lost as a result of the City’s actions and that Alexander Apartments’ payment of
tenants’ electricity bills was a marketing ploy rather than mitigation of damages.
Lost profits must be proved by evidence that makes it reasonably certain the profits
would have been made had the other party carried out his or her contract. See Am. Fid. Fire
Ins. Co. v. Kennedy Bros. Constr., 282 Ark. 545, 546, 670 S.W.2d 798, 799 (1984). When a
party embarks on the enterprise of recovering anticipated profits, he or she must present a
reasonably complete set of figures and not leave the fact-finder to speculate as to whether
there could have been any profits. Id., 670 S.W.2d at 799.
The following testimony is relevant to this point on appeal. At the trial on damages,
Jason Bolden testified that, prior to the City’s actions in December 2015, the complex had
ninety rented apartments. By January 2016, the occupancy had dropped to thirty-two rented
apartments. Bolden testified that he believed this to be an accurate number of units that
were vacated after the actions of the City.
Willie Carpenter, a resource-specialist supervisor for the City, testified that he
contacted tenants in seventy-five or eighty units after the closure order was distributed. He
explained that he and other resource specialists spent two days beginning the process of
13
relocating tenants. He agreed that it was fair to say that they “[were] putting forth 100
percent effort to get everyone relocated by Monday.”
Both the City and Alexander Apartments presented expert testimony on the issue of
damages owed to Alexander Apartments. Both experts agreed that Alexander Apartments
suffered economic loss, but they differed as to the amount of that loss. Alexander Apartments
called Ralph Scott, Jr., Ph.D., who testified that the target occupancy rate for Alexander
Apartments was 88.2 percent, which was the average occupancy rate between the date
Alexander Apartments bought the complex and the December 2015 closure order. Dr. Scott
testified that 88.2 percent was the accurate rate because it reflected the historic performance
of the complex between the time Alexander Apartments bought it and December 2015. He
concluded that because of the City’s actions, Alexander Apartments would incur losses of
$414,758.67 through March 2018 when the complex would reach its prior occupancy rate
of 88.2 percent. Dr. Scott also opined that the damages award should include the amount
Alexander Apartments was paying for some tenants’ electric bills to try to increase
occupancy. He concluded that Alexander Apartments should be reimbursed $98,436.24 for
paying those electric bills for ten years beginning in September 2016.
James Metzger, the City’s expert witness, based his conclusions on a target occupancy
rate of 72 percent. That was the average occupancy rate at the complex for a one-year
period beginning in September 2016, which was nine months after the City’s closure
actions. Metzger contended that 72 percent was the appropriate rate because it reflected a
more recent time period than Dr. Scott’s target occupancy rate, and Metzger opined that
the 72 percent rate had been met in August 2017. Metzger concluded that Alexander
14
Apartments lost revenue in the amount of $143,976.86 through July 2017, the month he
opined that the complex reached 72 percent occupancy. In Metzger’s opinion, payments
for tenants’ electric bills should not have been included in the damages award because
Alexander Apartments paid those bills voluntarily for marketing purposes.
The circuit court found that there was substantial evidence of the City’s aggressive
efforts to move the tenants out and shut down the complex even after Alexander Apartments
filed its lawsuit. It found that, without due process of law, these actions led to tenants’
vacating the complex. It further found “that 88.2 [percent] is the appropriate target
occupancy rate, as it reflects the average occupancy rate and performance of Alexander
Apartments from the beginning of Plaintiff’s ownership until Defendant attempted to close
the complex.”
The circuit court also awarded mitigation damages to Alexander Apartments for its
payment of tenants’ electric bills from September 2016 through March 2019, totaling
$20,210.19. It explained that “[t]his period of one year past the month Plaintiff reached the
target 88.2 [percent] occupancy rate should be sufficient to allow Plaintiff time to make
other adjustments to its leasing policies to maintain its occupancy rate and revenue.” The
circuit court concluded that
the lost revenue calculations of Dr. Scott are accurate, with two exceptions: (1) the
Court reduces the total amount by $1,800 to reflect the difference in using fractional
versus whole numbers in the calculations, and (2) the Court deducts a $424.53 error
in Plaintiff’s expert’s calculations. Plaintiff’s lost revenue amounts to $412,534.14.
Adding the $20,210.19 for expenses Plaintiff incurred to mitigate its damages brings
Plaintiff’s total damages to $432,744.33.
Viewing the evidence in the light most favorable to Alexander Apartments, we agree
that substantial evidence supports the circuit court’s award of lost-profit and mitigation
15
damages to Alexander Apartments in the amount of $432,744.33. Here, Bolden testified
that there was an immediate loss of fifty-eight occupied units following the City’s actions in
December 2015. That loss, coupled with the City’s aggressive efforts to relocate tenants,
supports the circuit court’s conclusion that the City’s actions without any due process of
law led to tenants’ vacating the complex.
As to the method and calculation of lost-profit damages, the circuit court credited
Dr. Scott’s testimony over Metzger’s. It also credited Dr. Scott’s testimony that mitigation
damages were proper. The sole province of the fact-finder is to determine not merely the
credibility of the witnesses, but the weight and value of their testimony. See Bell v. Darwin,
327 Ark. 298, 301, 937 S.W.2d 665, 666 (1997). Additionally, expert testimony qualifies as
substantial evidence unless it is shown that the opinion is without reasonable basis. See Ozark
Gas Pipeline Corp. v. Ark. Pub. Serv. Comm’n, 342 Ark. 591, 606, 29 S.W.3d 730, 738
(2000). The City has failed to show that Dr. Scott’s testimony, which was credited by the
circuit court, lacked a reasonable basis. Accordingly, we hold that substantial evidence
supports the circuit court’s award of damages to Alexander Apartments in the amount of
$432,744.33, and we affirm that award.
3. Tenants
Lastly, the City contends that the tenants’ awards for compensatory damages were
excessive and that they did not immediately leave the complex despite the TRO. The City
argues that, consequently, the considerations listed by the circuit court in support of its
damages awards—including mental/emotional distress, adverse health effects, and hardships
16
concerning the circumstances of the tenants’ moves from the complex—were not caused
by any December 2015 due-process violations.
Compensatory damages under the ACRA include elements of mental anguish, loss
of dignity and other intangible injuries. Ark. Code Ann. § 16-123-102(2) (Repl. 2006).
Compensatory damages are awarded for the purpose of making the injured party whole, as
nearly as possible. See Bayer CropScience LP v. Schafer, 2011 Ark. 518, at 12, 385 S.W.3d 822,
831. Although a party requesting emotional-distress damages must present proof of a
genuine injury, that burden may be met by the party’s own testimony and the circumstances
of the case. See Kim v. Nash Finch Co., 123 F.3d 1046, 1065 (8th Cir. 1997).
In this instance, the circuit court ruled that the tenants were “entitled to damages for
severe stress, mental/emotional distress, physical ailments, and adverse health effects as a
result of the City’s actions that were taken without any due process of law.” The circuit
court awarded compensatory damages in the amounts of $25,000 to Melody Branch,
$10,000 to Ingram Murphy, and $8,500 each to Linda Wheeler and Carolyn Ford.
Here, the circuit court erroneously considered events and circumstances unrelated to
the City’s December 2015 due-process violations in determining the tenants’ awards of
damages. Much of the evidence recounted by the circuit court about mental anguish and
emotional distress “as a result of [the City’s] actions” lacked a causal connection to the
violations. Specifically, Branch’s testimony about distress caused by a February 2016 gas leak
and Wheeler’s distress over being forced to vacate her apartment in February 2016 due to
that same gas leak were not causally connected to the December 2015 due-process
violations. The February 2016 gas leak was a separate incident, and the circuit court’s order
17
granting summary judgment to the tenants and ACO contained no findings of due-process
violations associated with that leak.7 Additionally, the record reflects that Ford moved from
her apartment in November 2016 because of water-leak damage and a sewer back-up. The
circuit court’s findings as to Murphy included medical conditions that she reported had
worsened as a result of the closure notice, but there is no evidence that the worsened medical
conditions were caused by the closure.8
This court has stated that the award of damages must be causally connected to the
City’s due-process violations. See, e.g., Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 738, 74
S.W.3d 634, 655 (2002); Christmas v. Raley, 260 Ark. 150, 160, 539 S.W.2d 405, 411
(1976). For the foregoing reasons, we hold that the circuit court considered events and
circumstances unrelated to those violations in determining the tenants’ damages awards.
Thus, we reverse the circuit court’s order on the tenants’ damages and remand for
consideration of the tenants’ damages resulting only from the City’s December 2015 due-
process violations.
Because we reverse and remand on the tenants’ damages, we do not address the City’s
argument that the individual damages awards to the tenants were excessive.
Affirmed in part; reversed and remanded in part.
7
In fact, after the tenants and ACO filed a motion for contempt because gas had been
turned off in certain buildings in response to the February 2016 leak, the circuit court
entered an agreed order on February 19, 2016, noting that the City agreed to have the gas
turned back on and that “[s]uch an act by the City shall not be deemed an intentional act,
or actions, with deliberate indifference as to providing gas back to the buildings.”
8
By contrast, the circuit court also noted Wheeler’s testimony that she “was
eventually diagnosed with severe manic depression as a result of this experience, but the
record lacks sufficient evidence that this condition was caused by the City’s actions.”
18
HART, J., dissents.
JOSEPHINE LINKER HART, Justice, dissenting. The majority errs by failing to
address the argument raised by City of Little Rock (the “City”) concerning the
constitutionality of Vol. 1, § 108.1 of the Arkansas Fire Prevention Code and the City’s
ordinance adopting it (the Fire Code). The majority disposes of this issue, by a procedural
bar, asserting that “[b]ecause there is no ruling for us to review, we do not address this point
on appeal.” This disposition is inconsistent with the record and even language found in the
majority opinion.
The majority ignores the fact that the relief granted to Alexander Apartments and to
the tenants was premised on the City having acted by authority of the Code, which did not
provide a method for the aggrieved parties to challenge a deprivation of property authorized
by the Fire Code. The majority states:
On July 10, the circuit court found that (1) the City violated the tenants’ state
due-process rights by failing to provide predeprivation notice of a procedure to
challenge the City’s actions and by failing to provide the tenants with an opportunity
for a postdeprivation hearing, and (2) the Arkansas Fire Prevention Code (“Fire Code”)
violates the tenants’ state due-process rights because it does not establish any mechanism for
review of decisions made by the City’s fire officials. The circuit court also enjoined the
City from depriving tenants of their property rights without adequate notice and an
opportunity for a pre- or postdeprivation hearing.
(Emphasis added.) How is a finding that the Fire Code violates state due-process rights
anything but a ruling on the constitutionality of the Fire Code? The finding does not state
that the City misapplied the Fire Code to violate the tenants’ constitutional rights; the circuit
court finds constitutional deficiencies in the Fire Code itself. Accordingly, we should decide
this question on the merits.
I respectfully dissent.
19
Sherri Latimer and Shawn Overton, Office of the City Attorney, for appellant.
Quattlebaum, Grooms & Tull PLLC, by: Michael N. Shannon, for appellee Alexander
Apartments, LLC.
Jason Auer, Legal Aid of Arkansas, for intervenor Ingram Murphy.
Dustin A. Duke and Kendall Lewellen, Center for AR Legal Services, for intervenors
AR Community Organizations, Carolyn Ford, and Linda Wheeler.
Amy Pritchard, UALR Bowen Legal Clinic; and Impact Law, PLLC, by: Kyla Farler,
for intervenor Melody Branch.
20