City of West Memphis and Lindsey Fairley, Nolan Dawson, and Tom Graham, in their Official Capacities as the Crittenden County Board of Election Commissioners v. City of Marion

Annotate this Case
CITY OF WEST MEMPHIS and Lindsey Fairley,
Nolan Dawson, and Tom Graham, In Their
Official Capacities as the Crittenden County
Board of Election Commissioners v. 
CITY OF MARION

97-742                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 26, 1998


1.   Municipal corporations -- annexation -- standard of review. -- The
     standard of review for annexation cases is substantial
     evidence. 

2.   Appeal & error -- appellate court's responsibility. -- The appellate
     court's sole responsibility is to decide whether the circuit
     court's findings of fact were clearly erroneous; when the
     appellate court has a firm and definite belief that the trial
     court made a mistake, it will hold the trial court's finding
     as clearly erroneous even if there is evidence to support it.

3.   Appeal & error -- abstracting requirement -- abstract is record for
     purposes of review -- appealing party's burden. -- The abstract is the
     record for purposes of appeal; section 4-2(a)(6) of the
     Arkansas Supreme Court Rules is violated when there are no
     references to the pages of an abstract and only transcript
     citations are supplied to the court; a transcript will not be
     examined to reverse a lower court; the burden is clearly
     placed on the appealing party to provide both a record and an
     abstract sufficient for appellate review; the supreme court
     will not entertain an argument when it cannot be determined
     from the abstract what arguments were made to the lower court.

4.   Appeal & error -- abstracting requirement -- flagrant deficiency may result
     in affirmance. -- Rule 4-2(a)(6) of the Arkansas Supreme Court
     requires that the abstract should contain "pleadings,
     proceedings, facts, documents, and other matters in the record
     as are necessary to an understanding of all questions
     presented to the Court for decision"; the purpose of an
     abstract is to give the supreme court an understanding of the
     issues on appeal; the court may affirm for noncompliance with
     the rule when there is a flagrantly deficient abstract; the
     inherent logic of this rule is that there are seven justices
     on the supreme court but only one record.

5.   Appeal & error -- abstracting requirement -- references to transcript
     insufficient. -- Mere references to the transcript scattered in
     the brief are insufficient.

6.   Appeal & error -- abstracting requirement -- review barred by flagrantly
     deficient abstract -- affirmed on direct appeal. -- Appellant failed
     to meet its burden of producing a sufficient abstract where it
     did not abstract any of the arguments made or testimony given
     to the trial court; the flagrantly deficient abstract barred
     review on appeal for failure to comply with Ark. Sup. Ct. R.
     4-2(a)(6); although appellee supplemented the abstract of the
     record in support of its cross-appeal, this did not cure the
     deficiencies; the supreme court summarily affirmed all three
     issues raised on direct appeal.

7.   Elections -- challenge -- postelection remedies. -- If an appeal
     reaches the supreme court after an election has occurred, the
     only remedy that the court can provide is to set aside the
     election results; once the votes have been cast, the supreme
     court will not set aside the election unless the procedural
     errors rendered the result doubtful or prevented the
     electorate from casting free and intelligent votes.

8.   Mandamus -- when properly ordered. -- Mandamus is properly ordered
     when there is an established right and the law does not have
     a specific remedy with which to enforce that right. 

9.   Mandamus -- appellee had already received relief requested -- affirmed on
     cross-appeal. -- Although the supreme court has frequently
     recognized the writ of mandamus as a remedy to remove
     ineligible candidates on ballot titles, it construed the issue
     raised on cross-appeal as an alternative argument to reversal
     on direct appeal and concluded that setting the election aside
     would not benefit appellee/cross-appellant, which had already
     received the relief it was requesting and did not allege that
     the failure to issue the writ made the result of the election
     doubtful or prevented the voters from free and intelligent
     votes; the supreme court affirmed the circuit court's judgment
     in its entirety.


     Appeal from Crittenden Circuit Court; Ralph Wilson, Jr.,
Judge; affirmed on direct appeal and cross-appeal.
     David C. Peeples, for appellant.
     James C. Hale, III; and Timothy Davis Fox, for appellee/cross-
appellant.

     Donald L. Corbin, Justice.
     Appellant City of West Memphis raises three issues in this
appeal arising out of the Crittenden County Circuit Court against
Appellee City of Marion.  Our jurisdiction of this appeal is
pursuant to Ark. Sup. Ct. R. 1-2(a)(6), as it concerns an election
and election procedures involving both a voluntary annexation as
set forth in Ark. Code Ann.  14-40-601--606 (1987), and an
involuntary annexation pursuant to Ark. Code Ann.  14-40-301--304
(1987).  Marion raises one issue on cross-appeal.  Due to a
flagrantly deficient abstract, we summarily affirm the direct
appeal.  We further affirm the cross-appeal. 
     The facts culminating in this appeal began on December 23,
1996, when West Memphis passed Ordinance No. 1760, providing for a
special election on February 24, 1997.  The purpose of the election
was to vote for annexation of 5,700 acres to West Memphis. On
December 30, 1996, seven property owners of 2,340 acres within the
same 5,700 acres, petitioned the Crittenden County Court for
voluntary annexation to Marion.  The Crittenden County Court
granted the petition for annexation to Marion in an order entered
on February 4, 1997.  On February 11, 1997, Marion passed Ordinance
No. 328, accepting the 2,340 acres.  Ordinance No. 328 contained an
emergency clause which rendered the Marion annexation effective
immediately. 
     On February 18, 1997, Marion filed a complaint in the
Crittenden County Circuit Court, seeking a writ of mandamus against
West Memphis and the Crittenden County Board of Election
Commissioners to remove the 2,340 acres from the legal description
on the special-election ballot.  The complaint further sought a
declaratory judgment and an injunction to restrain the February 24,
1997 special election.  The circuit court conducted a hearing on
February 20, 1997, and ultimately denied the writ of mandamus and
injunction.  The circuit court, however, issued a declaratory
judgment, in an order entered on February 20, 1997, and filed on
March 14, 1997.  Specifically, the circuit court found that the
2,340 acres belonged to Marion, as Ordinance No. 328 became
effective on the date it was passed.  The circuit court also ruled
that the order could only be challenged by an interested party
filing a complaint in the circuit court to prevent the annexation. 
The circuit court determined that the ballots for the February 24,
1997 special election had been printed, and seven voters had
already voted.  The circuit court further determined that should
the election result in a favorable vote for annexation of the 5,700
acres, the 2,340 acres annexed to Marion would not become part of
West Memphis.  The trial court relied on section 14-40-301, which
provides that "[t]he provisions of this subchapter shall not be
construed to give any municipality the authority to annex any
portion of another city or incorporated town."  West Memphis then
filed notice of this appeal on April 9, 1997.  Marion filed notice
of cross-appeal on April 21, 1997.
     The standard of review for annexation cases is substantial
evidence.  Lewis v. City of Bryant, 291 Ark. 566, 726 S.W.2d 672
(1987).  Our sole responsibility  is to decide whether the circuit
court's findings of fact are clearly erroneous. Id. (citing Holmes
v. City of Little Rock, 285 Ark. 296, 686 S.W.2d 425 (1985)).  When
the appellate court has a firm and definite belief that the trial
court made a mistake, it will hold the trial court's finding as
clearly erroneous even if there is evidence to support it.  Henry,
Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987). 
     West Memphis raises three points for reversal: (1) the trial
court erred in ruling on the action for declaratory judgment after
denying the writ of mandamus and injunction; (2) the trial court
erred in ruling that the 2,340 acres were annexed to Marion and
that West Memphis thus had no authority to annex that property upon
approval of the voters; and (3) the trial court erred in
determining that the emergency clause to Ordinance No. 328 made the
ordinance effective on February 11, 1997, the date of its passage. 
We do not reach the merits of any of these arguments, as
Appellants' abstract, consisting of only six pages, is flagrantly
deficient.   
     We addressed a similar abstract deficiency in Porter v.
Porter, 329 Ark. 42, 945 S.W.2d 376 (1997), commenting: 
          It is well established that the abstract is the
     record for purposes of appeal.  Allen v. Routon, 57 Ark.
     App. 137, 943 S.W.2d 605 (1997).  We have recently held
     that section [4-2](a)(6) of the Arkansas Supreme Court
     Rules is violated when there are no references to the
     pages of an abstract and only transcript citations were
     supplied to the court.  Sanders v. State, 317 Ark. 328,
     878 S.W.2d 391 (1994).  A transcript will not be examined
     to reverse a lower court.  Oliver v. Washington County
     Arkansas, 328 Ark. 61, 940 S.W.2d 884 (1997).  The burden
     is clearly placed on the appealing party to provide both
     a record and an abstract sufficient for appellate review. 
     Cosgrove v. City of West Memphis, 327 Ark. 324, 938 S.W.2d 827 (1997); Lee v. Villines, 328 Ark. 189, 942 S.W.2d 844 (1997). . . .  This court will not entertain
     an argument when it cannot be determined from the
     abstract what arguments were made to the lower court. 
     Cosgrove, 327 Ark. at 328, 938 S.W.2d  at 830.  When
     previously confronted with an extensive record and
     numerous volumes, and where the abstract was nine pages
     and left out relevant information and was hard to
     understand, this court has refused review.  Jewell v.
     Miller Co. Elec. Comm., 327 Ark. 153, 936 S.W.2d 754
     (1997). 
          Rule 4-2(a)(6) of the Arkansas Supreme Court clearly
     requires that the abstract should contain "pleadings,
     proceedings, facts, documents, and other matters in the
     record as are necessary to an understanding of all
     questions presented to the Court for decision."  The
     purpose of an abstract is to give us an understanding of
     the issues on appeal.  McAdams v. Automotive Rentals,
     Inc., 325 Ark. 332, 924 S.W.2d 464 (1996).  We may affirm
     for noncompliance with the Rule when there is a
     flagrantly deficient abstract. 
Id. at 44-45, 945 S.W.2d  at 377.  The inherent logic of this rule
is that there are seven justices on our court, but only one record. 
Cosgrove, 327 Ark. 324, 938 S.W.2d 827.  Mere references to the
transcript scattered in the brief are insufficient.  Adams v.
State, 276 Ark. 18, 631 S.W.2d 828 (1982).
     Here, West Memphis failed to meet its burden of producing a
sufficient abstract.  West Memphis did not abstract any of the
arguments made or testimony given to the trial court.  The record
in this case consists of two volumes, having a total of 124 pages,
and includes six exhibits.  The six-page abstract does not give us
adequate information with which to decide the complicated issues
presented in this appeal.  Moreover, the only exhibit abstracted is
Ordinance No. 328.  The flagrantly deficient abstract bars review
on appeal for failure to comply with Ark. Sup. Ct. R. 4-2(a)(6). 
Selected pleadings occupy most of this minimal abstract.  West
Memphis made little effort to comply with Rule 4-2(a)(6), which
requires a reference to the record with every two pages abstracted. 
We note that Marion supplemented the abstract of the record in
support of its cross-appeal; however, this did not cure the above-
noted deficiencies.  Accordingly, we summarily affirm all three
issues raised on direct appeal.
                          Cross-Appeal
     The sole issue on cross-appeal concerns whether the trial
court erred by denying Marion's requested relief of mandamus to the
extent that the special election involved the disputed 2,340 acres. 
Marion, therefore, would have this court set aside the February 24,
1997 special election.
     We recently addressed another election issue in Doty v.
Bettis, 329 Ark. 120, 947 S.W.2d 743 (1997):
     [I]f the appeal reaches this court after the election has
     occurred, the only remedy we can provide is to set aside
     the election results . . . .  In other words, once the
     votes have been cast, we will not set aside the election
     unless the procedural errors rendered the result doubtful
     or prevented the electorate from casting free and
     intelligent votes. 
Id. at 123, 947 S.W.2d  at 744 (citations omitted).   
     Mandamus is properly ordered when there is an established
right, and the law does not have a specific remedy with which to
enforce that right.  Gregg v. Hartwick, 292 Ark. 528, 731 S.W.2d 766 (1987).  Although this court has frequently recognized the writ
of mandamus as a remedy to remove ineligible candidates on ballot
titles, see, e.g., Ivy v. Republican Party, 318 Ark. 50, 883 S.W.2d 805 (1994), we construe the issue raised on cross-appeal as an
alternative argument to reversal on direct appeal.  Setting the
election aside now would not benefit Marion.  The circuit court
considered that seven voters had already cast ballots at the time
of the February 20, 1997 hearing and prudently declined to issue
the writ of mandamus.  The declaratory judgment effectively removed
the disputed 2,340 acres from the West Memphis ballot, thus Marion
has already received the relief it now requests on cross-appeal. 
Marion does not allege that the failure to issue the writ made the
result of the election doubtful or prevented the voters from free
and intelligent votes.
     For the reasons above, we affirm the circuit court's judgment
in its entirety.
     Affirmed.