Walnut Ridge Golf Club, Inc. v. City of Walnut Ridge
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Cite as 2010 Ark. App. 372
ARKANSAS COURT OF APPEALS
DIVISION I
No. CA09-1044
WALNUT RIDGE GOLF CLUB, INC.
APPELLANT
V.
CITY OF WALNUT RIDGE; WALNUT
RIDGE AIRPORT COMMISSION
APPELLEES
Opinion Delivered
May 5, 2010
APPEAL FROM THE LAWRENCE
COUNTY CIRCUIT COURT,
[NO. CV2008-68]
HONORABLE HAROLD ERWIN,
JUDGE
AFFIRMED
LARRY D. VAUGHT, Chief Judge
This appeal involves a lease dispute between appellant Walnut Ridge Golf Club, Inc.
(the club), and appellees the City of Walnut Ridge and the Walnut Ridge Airport
Commission (collectively, the city). The Lawrence County Circuit Court granted summary
judgment to the city on the club’s claim for an injunction, dismissed the club’s claim for
damages, and granted summary judgment to the city on its counterclaim for ejectment and
possession of the property. The club argues seven points for reversal. We affirm.
The land at issue in this case, part of a former army air base, was conveyed to the city
by the United States government by deed dated January 5, 1950. The deed contained a
provision requiring that the city adequately clear and protect the aerial approaches to the
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airport by removing, lowering, relocating, marking or lighting or otherwise mitigating
existing airport hazards and by preventing the establishment or creation of future airport
hazards. The parties both state that the golf course was in existence by 1960. The city leased
the property to the club by leases dated March 1, 1972, and December 27, 1974. The 1972
lease was to expire in 2068, while the 1974 lease was to expire in 2025.1 The yearly rental
payment was $150 under the 1972 lease and $100 under the 1974 lease. The leases contained
provisions stating that the leases were subordinate to the provisions in the deed by which the
city acquired the property, as well as project grants between the city and the federal
government. The leases further provided that the club could not construct any improvements
without the city’s consent and that such improvements could not violate federal aviation
regulations. Both leases also contain a “no waiver” provision, stating that no delay or
forbearance on the part of the city would be deemed a waiver of its right to terminate the
lease upon a breach.
On April 23, 2008, the city wrote a letter to the club asserting that the club was in
violation of the provisions of the deed by which the city acquired the property. The letter
stated that the club was obstructing air navigation and that the continued operation of the
club would interfere with the airport’s future operations, including the ability to obtain grants
1
It is not explained why there are two leases. It is unclear from the legal descriptions
if the leases cover different tracts.
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for those operations. The city demanded that the club, at the club’s expense, relocate to other
lands that the city would provide.
On May 23, 2008, the club filed a petition seeking to enjoin the city from interfering
with the operations of the club, specifically, from entering onto the property for purposes of
removing any trees, structures, or improvements. The city responded with an answer and
counterclaim. The answer denied the material allegations of the petition and asserted that the
club was in breach of the leases. The counterclaim stated a cause of action for ejectment and
alleged that the operations of the club had rendered the airport in noncompliance with
mandated runway safety areas, constituting a breach of the lease.
The city later amended its counterclaim to assert that the leases were void because the
city never sought approval of them from the Civil Aeronautics Administration, that the club’s
use of the property was permissive, and that the city had withdrawn its permission for the club
to use the property. The city also asserted that the club’s continued possession after it had
breached the leases constituted an unlawful detainer. The club amended its “counterclaim”
to assert that the city’s actions in seeking to dispossess the club amounted to a taking of the
club’s property and sought compensation of $1,574,200.
On March 3, 2009, the city filed its motion for summary judgment. In the motion, the
city asserted that the evidence would show that the club breached the leases and the deed by
which the city acquired the property by obstructing aerial navigation at the airport. In support
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of the motion, the city submitted three documents. The first document was an October 26,
2006 letter from the FAA to the airport manager containing the findings of an earlier FAA
inspection of the airport. The report noted that the golf course was located within the
required runway safety areas of two of the airport’s runways and had to be eliminated. The
report also noted that a path for golf carts was located approximately ten feet from the edge
of a taxiway and needed to be relocated. The second document was an August 22, 2008 letter
from the Arkansas Department of Aeronautics to the airport’s manager that reiterated the
demand that the golf course be relocated so as to not be within the runway safety area needed
for flight operations. The third document was a February 13, 2009 letter from the FAA to
Mayor Michelle Rogers stating that the FAA would not be able to process the city’s most
recent grant application until the obstructions were removed from the runway safety area.
The city also submitted the affidavit of Stacey Morris, a civil engineer who planed and
designed projects for several airports, who stated that “a significant amount of golf course
facilities are in violation” of federal standards.
In response to the motion for summary judgment, the club argued that there were
issues of material fact to be determined and elaborated on those issues in an accompanying
brief. The club also asserted that the placement of the golf course had not prevented the city
from acquiring grant funds in the past and that the city was at fault in having the airport be
noncompliant with federal standards by redesignating some of the runways. The club
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submitted affidavits and supporting documents from Robert Johnson, Terry Ryan, Morris
Polston, Frank Kelley, and Allen Smith.
On May 28, 2009, the circuit court issued a letter opinion granting the city’s motion
for summary judgment for ejectment and dismissing the club’s petition for permanent
injunction. The court also dismissed the club’s claim for damages on the basis that the city was
immune. The court found that the leases between the club and the city had been breached
and that possession of the property should be returned to the city. The court found that the
city had the right to terminate the leases for the purpose of keeping the airport and its aerial
approaches in a safe and serviceable condition and to maintain the property in accordance
with FAA standards. The club was ordered to remove all improvements and return the
property to its pre-lease condition within thirty days. The court’s judgment was entered on
June 5, 2009. This appeal followed.
The standard of review for summary-judgment cases is clear:
Summary judgment is to be granted by a trial court only when it is clear that
there are no genuine issues of material fact to be litigated and the moving party is
entitled to judgment as a matter of law. Once a moving party has established a prima
facie entitlement to summary judgment, the opposing party must meet proof with
proof and demonstrate the existence of a material issue of fact. After reviewing
undisputed facts, summary judgment should be denied if, under the evidence,
reasonable minds might reach different conclusions from those undisputed facts. On
appeal, we determine if summary judgment was appropriate based on whether the
evidentiary items presented by the moving party in support of its motion leave a
material question of fact unanswered. This court views the evidence in a light most
favorable to the party against whom the motion was filed, resolving all doubts and
inferences against the moving party.
Jackson v. Sparks Reg’l Med. Ctr., 375 Ark. 533, 539, 294 S.W.3d 1, 4–5 (2009).
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The club argues seven points on appeal: (1) there are material issues of fact to be
determined as to waiver and estoppel and, therefore, summary judgment for the city was
inappropriate; (2) the city’s claim that the leases are void is barred by the seven-year statute
of limitations found in Ark. Code Ann. § 18-61-101 (Repl. 2003); (3) the circuit court erred
in finding a breach of the leases based upon the club’s execution of a mortgage in violation
of a non-assignability provision in the leases; (4) an injunction should have been granted
because a majority of the members of the Airport Commission were not qualified to serve;
(5) if the club must vacate the land, it is entitled to compensation for the taking of its
property; (6) the circuit court should have fashioned a remedy that would have allowed the
club to continue to operate while enabling the city to improve its runways; (7) it was the
city’s actions, not those of the club, that caused the airport to be in violation of the federal
regulations. We discuss the club’s points in a different order than presented in the briefs.
We begin with the club’s seventh point where it argues that it did not cause the breach
of the leases and that the breach came about as a result of the city’s action in reclassifying a
runway. The 1972 lease provides that the club “shall not construct any improvements on said
property . . . with[out] the prior written approval of [the city], and any structures permitted
by [the city] shall be in accordance with [federal regulations].” The 1974 lease contains similar
language that the club’s improvements shall not violate specified federal regulations. The
evidence is undisputed that the golf course was within areas restricted by federal standards and
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thus violates those standards. Therefore, based on the plain language of the leases and the
undisputed evidence on this issue, the city established that the club was in breach.
The club does not dispute that the obstructions exist, but argues that it was the city’s
actions in reclassifying Runway 18/36 that brought about a breach of the leases because the
reclassification required a larger safety area that covered the area occupied by the golf course.
We disagree. Although there may be a factual dispute as to whether the city actually changed
the designation of Runway 18/36, we do not believe that it mandates a reversal in this case
because of the language of the leases.
We note that the club does not specify what provision of the leases the city is violating
in seeking the club’s eviction. From the club’s citation to Restatement (Second) of Property,
Landlord and Tenant § 6.1 (1976), we surmise that the club is relying on the implied covenant
of quiet enjoyment. In Dupree v. Worthen Bank & Trust Co., 260 Ark. 673, 543 S.W.2d 465
(1976), the supreme court recognized that, in the absence of language to the contrary, every
lease contains an implied covenant of quiet enjoyment. In the present case, however, there
is language to the contrary that makes this claim untenable.
It is undisputed that the leases both contain provisions that subordinate the leases to
the provisions contained in the deed by which the city acquired the property. It is likewise
undisputed that the deed requires the city to “adequately clear and protect the aerial
approaches to the airport by removing, lowering, relocating, marking or lighting or otherwise
mitigating existing airport hazards and by preventing the establishment or creation of future
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airport hazards.” This provision requires the city to put airport safety as its top priority and
is superior to any provision in the leases. By seeking the termination of the club’s leases, the
city is merely performing its duty to ensure the safety of the airport and those using the
airport. Therefore, the city has not breached the implied covenant of quiet enjoyment because
it is inapplicable in this case.
In its fourth point, the club argues that the court erred in denying its petition for an
injunction because a majority of the airport commission members were unqualified to serve
because of various conflicts of interest. However, there is no mention of any commission
members having any conflicts of interest in the club’s petition for injunction. The only time
the club raised this specific issue is in its brief in support of its response to the city’s motion
for summary judgment. When ruling on a motion for summary judgment, the circuit court
cannot rely on factual allegations in trial briefs. Pyle v. Robertson, 313 Ark. 692, 858 S.W.2d
662 (1993). Moreover, Frank Kelley’s affidavit, which purports to raise the issue, failed to do
so.2 Kelley stated his conclusion that all of the commissioners had conflicts based on the
documents and his “personal knowledge of the commercial aviation interests of several
Walnut Ridge Airport Commissioners.” However, he failed to set forth any facts in his
2
The club relies on an earlier version of Ark. Code Ann. § 14-359-104, which
provided that “[n]o member of the commission shall engage financially in any aeronautical
enterprise while a member of the commission.” Ark. Code Ann. § 14-359-104(c) (1987).
The current version of the statute was enacted in 2005 and provides that “[n]o more than one
(1) member of the commission may have financial dealings or interests in an aeronautical
enterprise while a member of the commission.” Ark. Code Ann. § 14-359-104(c) (Supp.
2009).
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affidavit showing that the commissioners, in fact, had financial interests that would disqualify
them. The supreme court has held that conclusory allegations in an affidavit are insufficient
to create a fact issue in a summary-judgment situation. Sundeen v. Kroger, 355 Ark. 138, 133
S.W.3d 393 (2003). Therefore, we conclude that the circuit court did not err in denying the
club’s request for an injunction.
The club’s fifth point for reversal is that, if it is required to vacate its property, the city
must compensate it for the taking. The club asserted a takings claim in its “Second Amended
Counterclaim” to the city’s ejectment action and asserted that the city’s actions in terminating
the leases amounted to a taking under the Due Process Clause. The circuit court did not
specifically rule on the takings claim, ruling instead that the club’s claim for damages was
barred by immunity. Moreover, the club’s argument that it is entitled to compensation
because the city is taking its property is based on an erroneous premise because the city is not
taking the property by eminent domain; it already owns the land on which the club operates.3
We cannot address the club’s first, second, and third points because they are not
preserved for our review. Although the club raised each of these issues, the circuit court did
not specifically rule on them, and they are not encompassed by the court’s other rulings.
Without a ruling from the circuit court, we have no basis for a decision, and we are precluded
3
The club does not argue that the circuit court erred in denying its takings claim on
the basis of immunity, and we do not reverse on a ground not argued by the appellant. See
Cummings v. Boyles, 242 Ark. 923, 415 S.W.2d 571 (1967); McGuire v. Smith, 58 Ark. App.
68, 946 S.W.2d 717 (1997).
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from reviewing the club’s arguments on these points. Kralicek v. Chaffey, 67 Ark. App. 273,
998 S.W.2d 765 (1999).
We likewise cannot address the club’s sixth point, but for a different reason. The club
argues that the summary judgment was inappropriate because equity abhors a forfeiture. In
its brief in opposition to the motion for summary judgment, the club argued that the city had
waived the right to assert a breach of the leases by accepting rental payments after the
existence of the obstructions came to light in October 2006. On appeal, it argues that the city
redesignated Runway 18/36 to a C-III designation, which requires a larger safety area that
encompasses some of the golf course, despite the conclusions of a study that recommended
that the city designate another runway so as to not interfere with the club’s operations. Thus,
the club has changed its argument on appeal. It is well settled that an appellant cannot change
its arguments on appeal but is bound by the scope and nature of the arguments made below.
Lewis v. Robertson, 96 Ark. App. 114, 239 S.W.3d 30 (2006).
Affirmed.
GLOVER, J., agrees.
GRUBER, J., concurs.
RITA W. GRUBER, Judge, concurring. I fully agree that this case must be affirmed.
I write simply to note that this unfortunate situation could have been avoided had the parties
been able to resolve this matter amicably, as the circuit court suggested on numerous
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occasions in the record. Doing so would enable the golf club to continue to operate while
enabling the city to improve the airport’s safety and facilities.
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