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SUPREME COURT OF ARKANSAS

No. CV-14-272

BOARD OF DIRECTORS OF THE

CITY OF HOT SPRINGS, ARKANSAS

APPELLANT

V.

GEORGE PRITCHETT, PEGGY

MARUTHER-THURMAN, DAN

LEWIN, DR. JACK STERNBERG,

ROBERT DRIGGERS, and CAPTAIN

BILL RIGGINS

APPELLEES

Opinion Delivered January 22, 2015

APPEAL FROM THE GARLAND

COUNTY CIRCUIT COURT

[NO. CV-2013-788-I]

HONORABLE TED CAPEHART,

SPECIAL CIRCUIT JUDGE

DISMISSED IN PART; AFFIRMED IN

PART.

ROBIN F. WYNNE, Associate Justice

The Board of Directors of the City of Hot Springs (the Board) appeals from two

separate orders of the Garland County Circuit Court. In the first order, the circuit court

found that the Board had violated the Arkansas Freedom of Information Act. In the second

order, the circuit court awarded appellees attorney’s fees in the amount of $3000 and costs in

the amount of $530. Appellees have filed a motion to dismiss the appeal as moot. Our

jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(b)(6) (2014). We dismiss the

appeal as moot in part and affirm in part. 

In 2011, the Board passed an ordinance allowing for a twenty-one-minute publiccomment period following its regular meetings. Lance Hudnell, the city manager at the time

the ordinance was passed, unilaterally decided to allow all regular meetings, including the
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public-comment period, to be telecast. The public-comment period was televised until the

Board agreed at a workshop retreat held at Brady Mountain Lodge on February 8, 2013, to

cease televising the public-comment period. The Board then implemented the decision to

cease the telecast of the public-comment period without further action. 

Appellee Robert Driggers sent a letter to the city on August 2, 2013, in which he

requested that the decision to cease the telecast be suspended until it was ratified by the Board

at a regular public meeting. The city attorney for Hot Springs responded to Mr. Driggers’s

request in a letter stating that, because the decision to televise the public-comment period was

an administrative decision, no formal action by the Board was required to cease the broadcast. 

The city attorney also responded to a request for information from a local newspaper

regarding how the decision was made by stating that no vote would be required and that the

consensus of the Board was to cease broadcasting the public-comment period. The mayor

responded to an email query from Mr. Driggers and stated that, at the retreat, the Board had

reached a six-to-one consensus regarding the issue. 

On October 11, 2013, appellees filed a petition for relief under the Arkansas Freedom

of Information Act (FOIA). The Board responded to the petition, stating that proper and

lawful notice of the workshop had been given and that no action or vote was required for the

Board to cease televising the public-comment period. The parties stipulated that the matter

would be submitted to the circuit court on the record and without a hearing. On December

2, 2013, the circuit court entered an order in which it found that the action by the Board on

February 8, 2013, was taken in violation of FOIA and that the Board was required to vote in

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public at a regular meeting in order to cease televising the public-comment period. 

Specifically, the circuit court found that, while the original decision to televise the publiccomment period was a managerial decision, when the Board met on February 8, 2013, and

decided to end the telecast, it became a policy decision by the Board that had to be ratified

at a regular meeting. The circuit court also found that appellees were entitled to attorney’s

fees. Appellees submitted a motion for costs in the amount of $530 and attorney’s fees in the

amount of $5000. In an order entered on December 16, 2013, the circuit court awarded

appellees attorney’s fees in the amount of $3000 and costs in the amount of $530. After the

circuit court entered its order finding that the Board had violated FOIA, but before this appeal

was filed, the Board voted at a regular public meeting to cease televising the public-comment

period. This appeal followed.

As stated above, appellees have filed a motion to dismiss the appeal, in which they

argue that the Board’s vote at the regular meeting to cease televising the public-comment

period rendered the issues presented in the appeal moot. Generally, an issue becomes moot

when any judgment rendered would have no practical effect upon a then existing legal

controversy. Newman v. Crawford Cnty. Cir. Ct., 2014 Ark. 308, at 4. As a general rule,

appellate courts of this state will not review moot issues, as doing so would be to render an

advisory opinion, which this court will not do. Id. However, there are two exceptions to

the mootness doctrine. The first exception involves issues that are capable of repetition, yet

evade review, and the second exception concerns issues that raise considerations of substantial

public interest which, if addressed, would prevent future litigation. Etherly v. Newsome, 2013

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Ark. 391, at 4. The Board has responded to appellees’ motion to dismiss the appeal, arguing

that both exceptions to the mootness doctrine apply.

After the order was entered, the Board took the action mandated by the circuit court’s

order, thereby terminating the controversy between the parties on the issue. Regarding the

first exception to the mootness doctrine, while the issue presented may be capable of

repetition, it does not evade review. As for the second exception, the issue presented is

dependent upon the unique facts of this case and raises no issue of substantial public interest

that would prevent future litigation if addressed. Thus, neither exception to the mootness

doctrine applies in this case. Therefore, we dismiss the Board’s challenge to the circuit court’s

finding that it violated FOIA as moot. 

Appellant also argues that the circuit court erred by awarding appellees attorney’s fees.

The attorney’s fees have yet to be paid; thus, the controversy over the awarded fees still exists. 

This issue is not moot. 

In any action to enforce FOIA, or in any appeal therefrom, the court shall assess against

the defendant reasonable attorney’s fees and other litigation expenses reasonably incurred by

a plaintiff who has substantially prevailed unless the court finds that the position of the

defendant was substantially justified. Ark. Code Ann. § 25-19-107(d)(1) (Repl. 2014). The

Board argues that it was substantially justified in believing that it had complied with FOIA. 

The circuit court stated in its December 2, 2013 order that appellees were entitled to a fee. 

Appellees subsequently submitted a petition for attorney’s fees and costs. The Board failed

to respond to the fee petition, and it never raised the argument made on appeal before the

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circuit court. Arguments not raised at trial are not considered on appeal. Parmley v. Moose,

317 Ark. 52, 57, 876 S.W.2d 243, 246 (1994). The order awarding appellees attorney’s fees

and costs is affirmed.

Dismissed in part; affirmed in part.

Brian W. Albright, City Attorney, for appellant.

Benjamin D. Hooten, for appellees.

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