Fort Smith to appeal recycling lawsuit judgment, legal fees in the case near $200,000

With legal fees already reaching almost $200,000 to defend against a lawsuit related to recycling services, the city of Fort Smith has appealed an Aug. 3 ruling by Sebastian County Circuit Judge Stephen Tabor requiring the city to pay $745,057 for lying about recycling.

Tabor ruled against the city in a class-action lawsuit related to its recycling services, saying the city owes $745,057 for not properly processing recyclable materials.

The city took recyclable materials to the landfill from October 2014 to June 2017, though residents were not notified that recyclables were not being recycled. From October 2014 to June 2016 some of the city’s recyclable material was taken to Green Source Recycling in Clarksville, though during that time 89% of the recyclable material was dumped in the landfill. The city claims the period in which recyclable materials were not properly discarded was July 1, 2015 to May 1, 2017.

A lawsuit was filed in late 2017 by Jennifer Merriott alleging the city lied for almost three years to residents about recycling efforts. The city has admitted to redirecting recycling to its landfill.

Tabor disagreed with the city’s assertion that because it collected a single fee for waste and recycling removal it couldn’t place a value only on the recycling service. He also said the city’s actions to deceive the public proved the recycling service was valuable to the city and its residents.

“The fact that the City never abandoned their interest in a recycling program, notwithstanding two years of inaction during the period of disruption, demonstrates they recognized the value of the program. The fact that City officials took great pains to hide that recycling was essentially non-existent for thirty (30) months signals that the City knew recycling was a benefit citizens expected to be serviced by the City,” Tabor wrote in his ruling.

Colby Roe, one of the city’s attorneys through the Fort Smith law firm of Daily & Woods, filed a notice of appeal Aug. 10. Along with that notice is a Concise Statement of Points to be Relied Upon by Defendant on Appeal prepared by city attorney Jerry Canfield that states “the trial court erred, as a matter of law and based on the evidence admitted at trial, in its Opinion and Order in finding in favor of the Plaintiff on the claims of illegal exaction and and awarding damages to the Plaintiff.”

Whit Hyman, an attorney for Merriott with Fort Smith-based King Law Group, said he is confident Tabor’s ruling will stand.

“This decision is a victory for governmental accountability, proper stewardship of taxpayer funds, and the environment. I hope the City accepts responsibility and does not appeal this decision. However, if they do so I’m confident the Arkansas Supreme Court would uphold Judge Tabor’s excellent decision,” Hyman told Talk Business & Politics.

Deputy City Administrator Jeff Dingman said the city has spent $189,217.22 in legal fees defending this lawsuit from 2017 through June 30.