A duel of motions for summary judgement has seen the state Court of Appeals uphold the city of Marmaduke.

In a June 2 ruling, Judge Waymond M. Brown affirmed the ruling for summary judgement issued by Greene County Circuit Court Judge Melissa Richardson against the St. Francis River Regional Water District in a lawsuit over which entity has the right to provide water service to American Railcar Industries (ARI).

According to legaldictionary.net, a judge may grant a motion for summary judgement if the moving party has convinced the judge that the opposing party has either no evidence to support its case, or that the evidence isn’t sufficient to meet its burden of proof at trial.

According to the ruling (2021 Ark. App. 305) the issue of which entity is to provide water came about after ARI (now a subsidiary of Greenbrier) sought to expand its operation in the Marmaduke area by building a second plant (the East Plant) within the boundaries of the District (outside the city limits), to supplement the capacity of its West Plant inside the city, beginning in 2006. The East Plant is adjacent to the West Plant.

The city started providing water and sewer service to the East Plant in 2006. A second ARI expansion in 2015 to build the Refurb Plant, likewise within the District’s boundaries, saw the city begin providing water and sewer service to that plant the following year.

Thereupon, according to the ruling, the District demanded the city stop providing water service to the Refurb Plant and (after 11 years of service from the city) the East Plant. And on June 21, 2017, the District requested an injunction against the city to prevent it from providing water to the two plants, and requesting monetary damages.

The stated rationale for the injunction was that formation of the District in 1987 allegedly gave the District the exclusive right to provide water to all locations in its boundaries. According to the rationale, therefore, the city was illegally providing the service.

On the other hand, in July 2018 the city annexed into its boundaries the land on which both the East and the Refurb Plant sit. Both facilities then lay inside the boundaries of both the city and the District. At that time the District did not object to the annexation.

On April 8, 2019, Judge Richardson heard the competing motions for summary judgement regarding the injunction, and on May 3, 2019 she ruled for the city, dismissing the District’s motion with prejudice. Her ruling therefore permitted the city to continue to provide water to the East and Refurb Plants.

A case dismissed with prejudice precludes bringing a new case on the same basis as the dismissed case. Such a court order is thus the final order on the subject matter.

On the other hand, a summary judgement does not bar an appeal, which the District promptly filed.

In its appeal, the District argued that in accordance with state statutes, it alone is granted the right to provide water to customers within its boundaries. The District said the circuit court had misinterpreted the statute, involving what constituted a “current provider.”

However, Judge Brown affirmed Judge Richardson’s ruling that since there was no “current provider” of water services to either the East Plant or the Refurb Plant, whichever entity actually did provide the water to the plants did indeed constitute the “current provider.”

Brown also affirmed Richardson’s rejection of the notion that the city had “raced” to provide water services to either plant. He also affirmed her rejection of the District’s claim that it lost revenue it needed to repay the U.S. Department of Agriculture (USDA) and the Arkansas Natural Resources Commission (ANRC) for loans it had received. “At the time the District filed its complaint against the City, it was not indebted to the USDA or the ANRC,” Brown wrote. “Instead, after filing suit, the District closed on an ANRC loan and now wants to use that loan to garner protection under the statute.”

Judge Brown also noted the long delay between the provision by the city of water to the East Plant and seeking relief. “Accepting the District’s logic would essentially interpret the statute as allowing a water district to wait [10] years, then disrupt a longstanding relationship between a provider and customer,” he wrote, “thereby forcing said customer to either purchase water services unwillingly from the District or go without water and wastewater services.”

The judge affirmed Richardson’s ruling that the city’s efforts in providing water to the two plants did not constitute a “water development project” that would require approval of a “water plan” as required in state statutes.

“We find no error in the circuit court’s ruling,” Judge Brown concluded, “and therefore affirm judgment granting summary judgment in favor of the [city].”

Jim Lyons and David D. Tyler, attorneys for the District, were unavailable for comment as of press time.

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