Newsome v. City of El Dorado

2022 Ark. App. 118

642 S.W.3d 628

Carlton NEWSOME, Appellant

v.CITY OF EL DORADO, Arkansas, Appellee

No. CV-21-158

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered March 9, 2022

Carlton Newsome, pro se appellant.

Henry C. Kinslow, Attorney for the City of Eldorado, for appellee.

ROBERT J. GLADWIN, Judge

Carlton Newsome appeals the Union County Circuit Court's December 17, 2020 judgment awarding $6,792 to appellee City of El Dorado, Arkansas ("the City"), as reimbursement of demolition costs for Newsome's condemned property. In this pro se appeal, Newsome argues seven points for reversal. We affirm.

I. Facts and Procedural History

On March 13, 2014, the City filed a complaint alleging that Newsome owed $8,100 for demolition and removal of a structure at 703 Union Street. The record reflects that on April 22, Newsome joined two other plaintiffs in a complaint against the City filed in the United States District Court, Western District of Arkansas.¹ Therein, Newsome filed a "Notice of Removal" and claimed that "the instant action encompasses all matters in the state court actions." The City responded by filing a motion for remand. On July 17, Newsome's motion to remove to federal court was denied.²

Thereafter, in the circuit court, Newsome filed his answer and counterclaim alleging due-process and equal-protection claims. Regarding the $8,100 bill for demolition, Newsome claimed that the City had failed to provide him "notice ... of the method used to derive at [sic] the costs for removing the structure ... which rendered the actions of [the City] ultra vires and violated" his constitutional rights under the Fourth and Fourteenth Amendments to the U.S. Constitution, the Arkansas Constitution, and 42 U.S.C. § 1983. He also claimed that he received a letter from the City stating its policy that "if a person cooperates ... the charge of demolition is $3.00 a square foot and will be dropped to $1.50 a square foot," but he claimed that the notice was not given to him before the demolition of his property. He argued that this violated Arkansas Code Annotated section 14-56-203 (Supp. 2021) and resulted in a taking of his property without due process.

On August 5, 2015, Newsome moved to dismiss, arguing that the City failed to file a lien against his property for the clean-up work under Arkansas Code Annotated section 14-54-903(c)(1) (Supp. 2021), which, he argued, is the exclusive mechanism for collecting costs of the demolition. The City responded that it was not seeking a tax lien and that it had proceeded against Newsome for a debt collection under statutory authority. See Ark. Code Ann. §§ 14-54-102 (Repl. 1998), -103(i) (Repl. 1998), -104(3)(D) (Supp. 2021); § 14-56-203 ; §§ 14-43-601(a)(1)(J) (Repl. 2013), -602(a) (Repl. 2013). On October 28, the circuit court denied Newsome's dismissal motion.

In the meantime, the federal case that Newsome had joined continued. In its September 29, 2015 order granting summary judgment to the City, the district court addressed Newsome's Fourteenth Amendment claims as follows:

Those claims which relate to the alleged arbitrary process used by the City in selecting properties to condemn and demolish are ... construed as substantive due process claims. Those claims related to Plaintiffs’ lack of notice of the condemnation proceedings are construed as procedural due process claims. All claims related to the unequal treatment of Plaintiffs by the City are construed as equal protection claims.

(Citations omitted.) The district court found that Newsome's facial challenge to any ordinance is without merit; that Newsome failed to demonstrate a genuine disputed issue of material fact regarding his substantive due-process claims; that Newsome had received actual notice that the city council had voted to condemn his property at 703 Union Street, and he failed to exhaust his remedies; and that there is no disputed issue of material fact sufficient to reach a jury on Newsome's equal-protection claims.³ The United States Eighth Circuit Court of Appeals affirmed the district court's summary-judgment order.⁴

On May 17, 2018, the City moved to dismiss Newsome's counterclaim on the basis of res judicata because Newsome's claims were either addressed or could have been addressed by the federal litigation. Newsome responded that res judicata did not apply to prevent his counterclaim because the federal court found that he had not exhausted all of his state remedies, and there was no adjudication on the merits of his claim. He stated that he was not apprised of when the city council would meet to consider condemnation of his property, and he argued that he received insufficient notice of due process.

On June 25, the circuit court granted the City's dismissal motion. The court held that all of Newsome's claims had been addressed in the federal case and that res judicata and collateral estoppel prevented Newsome from relitigating those claims. "In addition, the failure to exhaust state remedies is a jurisdictional defect that cannot be remedied by this court."

Thereafter, Newsome filed a series of motions, including several motions to compel production of documents. On February 26, 2019, the circuit court considered Newsome's motions to compel and ordered:

Henry Kinslow, counsel for Plaintiff [City], shall consult with Kirby Craig, the city inspector, and provide to Carlton Newsome:

1. The policy of the city concerning charges for building demolition.

2. The calculations of the $8,100.00 charge for the building in issue.

3. The measurements of the building in issue.

This information shall be provided to Carlton Newsome by close of business March 11, 2019. Thereafter, the parties shall have settlement negotiations.

The multiple and repetitive motions of Carlton Newsome are denied.

On March 15, Newsome filed a motion to dismiss and for sanctions, arguing, among other things, that the City's attorney, Henry Kinslow, had violated Rule 11 of the Arkansas Rules of Civil Procedure and had refused to send Newsome the requested records. The City responded that the tax assessor's records had been provided to Newsome.

On May 15, 2019, Newsome moved to disqualify Mr. Kinslow "under the advocate-witness rule" because he would be called as a witness in the upcoming trial. By order filed June 24, the circuit court found that the issue regarding the City's calculation of the demolition cost of $8,100 was moot because the City had amended its claim to $6,792 (2,264 square feet times $3.00) on the basis of an appraisal from the tax assessor's office. Also, the court denied Newsome's motion to disqualify Mr. Kinslow.

On August 20, Newsome filed in the Arkansas Supreme Court a petition for writ of mandamus, seeking to compel the circuit court to dismiss the City's claim and to reinstate his counterclaim. Alternatively, he asked that the circuit court be ordered to compel Mr. Kinslow to be a fact witness and to be disqualified from acting as an advocate for the City. The writ was denied on September 19.

On September 25, Newsome filed a motion to compel production of documents, asking for supporting documents on the City's new policy of using the measurement based on the county assessor's appraisal. On April 27, 2020, the circuit court entered its order denying the motion as follows:

2. At a hearing on May 7, 2019, [City] counsel, Henry Kinslow, made an oral motion to amend [the City's] claim for damages. The basis of the original claim was $8100 calculated at $3.00 a square foot for a house estimated to be 2700 square feet in size. Mr. Kinslow stated that a document from the Tax Assessor's office listed the area at 2264 square feet, a more accurate figure. Using the same formula, the [City's claim] would be reduced to $6792. Accordingly, Mr. Kinslow then moved to amend the claim of his client to that figure. Ruling from the bench, the Court granted the motion, which was later confirmed in the Order filed May 14, 2019.^[5]

3. A lawyer speaks for his client and the conduct of counsel is binding on that client. Mr. Kinslow has now bound his client, to a claim of $6792, which is beneficial to [Newsome]. The amended claim does not require the approval of the City Council or the development of a new written policy. It was put into effect in this case by the conduct of counsel in court through his discretion in the representation of his client.

4. There is no indication that [Newsome] has taken the depositions of Kirby Craig, the City's Code Enforcement Officer who is involved with the building demolition project, or other employees or officials of the City. Also, [Newsome] has not retained counsel for assistance. [Newsome] should consider alternative discovery.

5. The present motion rehashes issues previously addressed, argues with the findings of the Court in prior orders and submits additional requests. All of these factors are improper. The time frame for a motion to reconsider a ruling has expired.

6. [Newsome] shall take note of the prior directives of the Court:

a. not to file repetitive pleadings on the same or similar issue;

b. not to file with the clerk copies of correspondence to opposing counsel, self-serving affidavits, exhibits or evidence. Testimony and evidence are submitted at trial;

c. not to send the Court copies of correspondence to opposing counsel;

d. not to file a complaint against Henry Kinslow with the Office of Professional Conduct during this case;

e. not to appeal this order in any form before final trial. This order is not a final older nor does it qualify for an interlocutory appeal. The final judgment entered after trial on the merits may be appealed by either party and that appeal would include all prior orders.

7. A violation of any of these directives may result in the imposition of sanctions.

8. The parties should also note that if a document is not, produced in response to discovery requests but is then produced at trial, it is subject to being ruled inadmissible and excluded from evidence.

On July 1, Newsome...