Sartor v. Cole

2023 Ark. App. 131

662 S.W.3d 697

Byron SARTOR, Appellant

v.Mayor Tony COLE, Individually and in His Capacity as Mayor of the City of Huttig; and the City of Huttig, Appellees

No. CV-22-154

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered March 8, 2023

Wood Law Firm, P.A., by: Russell A. Wood and Paul A. Prater, for appellant.

M. Keith Wren, for appellees.

ROBERT J. GLADWIN, Judge Byron Sartor appeals from the December 20, 2021 order of the Union County Circuit Court that granted judgment in favor of appellees, Tony Cole, Jr.—individually and in his capacity as Mayor of the City of Huttig—and the City of Huttig. Sartor argues that the circuit court erred in (1) finding there was no valid employment contract; and (2) denying his abuse-of-process claim. We affirm.

I. Facts and Procedural History

On March 18, 2010, Cole won the Democratic primary election for Mayor of Huttig, Arkansas, against incumbent Mayor Larry Hodge. There was no Republican candidate for the office; thus, Cole would take over the office on January 1, 2011, when Mayor Hodge's term expired.

In June 2010, Mayor Hodge negotiated a five-year employment contract with Sartor to become the chief of police for the City of Huttig. Section 6 of the employment contract provides:

Termination for cause: The City may terminate the employee's employment at any time for cause with immediate—immediate effect upon delivering a written notice to the employee. For the purpose of this agreement, cause is defined as embezzlement, theft, larceny, material fraud, or other acts of dishonesty, of negligent or intentional disagreement of employee's duty under this agreement.

This matter went before the city council on June 14, 2010, and was approved and executed on that date.

After the execution of the negotiated and approved employment contract, Sartor purchased a second home in Huttig and moved there pursuant to the condition of his employment that he live within the city limits.

Cole's understanding of Arkansas law was that, as mayor, he had the right to choose his own department heads, and when he took office on January 1, 2011, he informed Sartor of his termination by way of a letter dated January 2, 2001, that states in part, "I have given careful and deliberate thoughts to its impact on staff, program, and services in the police department, actions of that result in the proposed establishment of your position. Due to mayor's incoming staff, it is with regret that your employment with the City of Huttig, Arkansas will end on January the 3rd, 2011."

On January 8, Sartor appealed the termination of his employment and the alleged breach of the employment contract to the city council pursuant to the provisions of Arkansas Code Annotated section 14-42-110 (Repl. 2013). The city council overrode Cole's decision to terminate Sartor by the required two-thirds majority vote and reinstated Sartor to his position.

Cole subsequently began having concerns about Sartor's ability to perform his job, including that Sartor had disregarded having been told that his wife could not ride with him in his police vehicle. Although Sartor denied having been told that, on July 13, 2011, Sartor drove from Huttig to El Dorado for a scheduled court appearance in the police car with his wife, and he was aware that a Huttig city councilmember, Marcus Barr, had seen them riding together in the police vehicle. As a result, on July 14, 2011, Sartor wrote a letter to Cole explaining that he had taken his wife with him because he suffers from cluster migraines and that he cannot drive when he is experiencing one. The letter written to Cole states in part:

Sometimes I have from 1 to 6 headaches a day that are so severe that you can't do anything but lay in the floor and vomit. Doctor's [sic] have advised me to not go off by myself while driving a vehicle due to the fast oncoming of these's [sic] headaches and the severity of the headaches. You cannot drive while having a Cluster Migraine [sic] headache.

Due to concerns that Sartor might harm himself or someone else while driving the police vehicle in such a state—potentially creating significant liability for the city—at the August 8 regular city-council meeting, Cole placed Sartor on administrative leave with pay and requested that Sartor obtain a doctor's note clearing him to work. The note from Sartor's personal physician, Dr. Nolan Hagood, that Sartor presented to Cole on or about August 15 indicated that Sartor had been having a flare of cluster migraines recently, that they are incapacitating when they occur, and that the doctor believed that "it is perfectly reasonable for him to have someone else in the car with him in case he suffered one of these headaches." This response was unacceptable to Cole, and he followed up with Dr. Hagood by phone on or about August 10. On August 19, Sartor met with Cole who gave him the option to either resign or be terminated because of his medical disability—the cluster migraine headaches that would be a liability to the city. Sartor would not sign the resignation, so the same day, Cole terminated Sartor's employment for a second time.

On August 24, Sartor wrote a letter to the city council that concluded with the following sentence: "I respectfully ask for a meeting with Mayor Cole and the council to appeal this decision." However, nothing in that letter specifically asked for the termination appeal to be put on the following city-council-meeting agenda or at some later meeting with a date certain. And Sartor neither followed up with a phone call to Cole asking to be put on the agenda nor attended either the September or October city-council meetings following his second termination. He then arrived unannounced, accompanied by counsel, Marjorie Rogers, at the regular November 14 city-council meeting as it was concluding. Sartor did not seek to speak at the meeting, but Rogers did on behalf of Sartor's appeal of the second termination.

This time, Cole did not call for a vote by the city council on Sartor's appeal; in fact, he called for the adjournment of the meeting four or five times, because he did not want a vote on the issue because it was not on the agenda. Cole later testified that had the issue been on the agenda, he would have allowed the city council to vote on Sartor's appeal. Cole even specified that if Sartor would have come to the meeting following his second termination, he would have had to honor his August 24, 2011 letter, but by Sartor not showing up until the November meeting and still not asking to be on the agenda, then it was not on that meeting's agenda. Sartor did not request to have the matter put on any agenda of any subsequent city-council meeting.

On December 12, 2011, Sartor filed a complaint against Cole and the City, alleging four causes of action: breach of contract, abuse of process, breach of the covenant of good faith and fair dealing, and violations of procedural due-process rights under the United States and Arkansas Constitutions. The matter was removed to United States District Court for the Western District of Arkansas on February 17, 2012, due to the allegation of violation of procedural due process. Cole and the City moved for summary judgment.

On July 20, the United States District Court ruled that Sartor did not have a property right in his employment as a result of the enactment of Ark. Code Ann. § 14-42-110, and, therefore, he had no right to due process in regard to his termination. Specifically, the district court ruled on both Sartor's federal and Arkansas claim for a due-process violation, stating that "[Sartor]’s due-process claim under Arkansas and federal law is DISMISSED. " Sartor v. Cole , No. 1:12-CV-01011, 2012 WL 2974693 (W.D. Ark. July 20, 2012). That ruling was affirmed by the Eighth Circuit Court of Appeals. Sartor v. Cole , 501 F. App'x 604 (8th Cir. 2013). The remaining state claims were remanded back to the Union County Circuit Court.

On remand, on July 14, 2017, Cole and the City moved for summary judgment, and on August 4, Sartor filed a response. On August 22, Cole and the City filed a reply. On July 5, 2018, the circuit court entered an order noting that Sartor had conceded the claim of a violation of the covenant of good faith and fair dealing but that disputes of fact remained on the issues of the claims of breach of contract and abuse of process; therefore, the motion for summary judgment was denied on those claims.

On April 3, 2020, Cole and the City filed a supplemental motion for summary judgment; on April 21, Sartor filed a response; and on May 5, Cole and the City filed a reply. On May 22, Sartor filed a competing motion for summary judgment, and on June 5, Cole and the City filed a response. On June 15, the circuit court entered an order denying Cole and the City's supplemental motion for summary judgment. On the same day, by separate order, the circuit court entered an order denying Sartor's motion for summary judgment.

On July 7, Cole and the City filed an interlocutory appeal but then dismissed it on September 11, 2020. On March 10, 2021, the circuit court ordered the matter to be set for a two-day jury trial.

On August 16, Cole and the City filed a motion for reconsideration of the denial of motion for summary judgment or in the alternative, for an express ruling on the issue of qualified immunity. On August 19, Sartor filed his response, and on August 27, Cole and the City filed a reply. A hearing was held on this matter on October 6, and Cole and the City's motion was denied. An order denying the motion for reconsideration of the denial of motion for summary judgment, or in the alternative, for an express ruling on the issue of qualified immunity was entered on October 7.

On November 1, Sartor filed an amended complaint. On November 19, Cole and the City filed a timely response, and on November 24, Cole and the City filed a motion to dismiss Sartor's amended complaint. Sartor filed a response on December 9.

On December 15, a bench...