Dole Air, Inc. v. Texarkana, Arkansas, City of et al
MEMORANDUM OPINION. Signed by Honorable Susan O. Hickey on April 11, 2012. (cap)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
DOLE AIR, INC.
CASE NO.: 4:10-CV-04147-SOH
CITY OF TEXARKANA, ARKANSAS;
HORACE SHIPP, Individually and in His
Official Capacity as Mayor of Texarkana,
Arkansas; TEXARKANA AIRPORT
AUTHORITY; STEVEN LUEBBERT,
Individually and in His Official Capacity as
Director of the Texarkana Airport Authority
Pending is a Motion for Partial Summary Judgment filed by Defendants City of
Texarkana, Arkansas; Horace Shipp, individually and in his official capacity as Mayor of
Texarkana, Arkansas1; Texarkana Airport Authority; and Steven Luebbert, individually and in
his official capacity as Director of the Texarkana Airport Authority (Defendants). (ECF No. 20).
The Plaintiff has responded in opposition (ECF No. 25), and the Defendants have replied (ECF
No. 27). The matter is ripe for the Court’s consideration. For the following reasons, the
Defendants’ Motion for Summary Judgment will be granted.
Gary Doehla is the Plaintiff’s representative and presence in this case. All of the
Plaintiff’s actions in this case were taken through Gary Doehla, and so the Court will refer to
both Dole Air, Inc. and Gary Doehla as the Plaintiff.
The Plaintiff separately moved to dismiss Horace Shipp and the City of Texarkana, Arkansas from the case (ECF
No. 23), and the Court granted that motion. (ECF No. 31). Horace Shipp and the City of Texarkana, Arkansas are
therefore no longer parties in this action.
The Plaintiff bought a circa-1947 Lockheed L-18 airplane in May 2007. The plane was
stored at the Texarkana Airport when the Plaintiff bought it, and had been since 1998. It was not
flyable when the Plaintiff bought it, or any time after. The Plaintiff expressed an intention to
salvage the aircraft, and Mr. Luebbert, the Director of the Texarkana Airport Authority, offered
the Plaintiff rent-free storage until August 2007, though the basis of that offer is in dispute. Mr.
Luebbert says the offer was induced by the Plaintiff’s commitment to remove the plane by
August 2007; the Plaintiff denies making that commitment.
By November 2007, the Plaintiff had not salvaged or removed the plane. Mr. Luebbert
called the Plaintiff and told him that the airport would charge rent for storing the plane past
December 1, 2007. The Plaintiff agreed to the charges and noted his intention to work on the
plane after Thanksgiving. Mr. Luebbert sent the Plaintiff a letter on December 13, 2007
reaffirming that the airport would charge the Plaintiff beginning January 1, 2008. The charge
would be $585 per month, and would accrue until the storage site was vacant and clean. The
Plaintiff received this letter and understood that he was being charged, but he does not recall
when he first saw it.
Mr. Luebbert has no record of the Plaintiff responding to his December letter, but in May
2008 the Plaintiff came to the airport to work on the plane. He was denied access because he had
not paid any rent. The Plaintiff then paid $2,535 in past-due rent to gain access to the plane. That
was the only rent the Plaintiff ever paid. The Plaintiff removed the plane’s engines and propellers
and sent them to Little Rock.
Mr. Leubbert’s next contact with the Plaintiff was in May 2009, when the Plaintiff sent
Mr. Luebbert a letter claiming to have called, written, and personally appeared to discuss rental
issues “to no avail.” No one at the airport, however, recalls seeing the Plaintiff between May
2008 and May 2009, and the airport telephone system recorded no messages from the Plaintiff
during that period.
On June 30, 2009, Mr. Leubbert sent a response to the Plaintiff’s May 2009 letter. Mr.
Luebbert’s letter noted his attempts to contact the Plaintiff, recounted the events between the
parties so far, and stated the Plaintiff’s past-due balance of $7,308.50. Two attempts were made
to deliver that letter to the Plaintiff’s Miami address. Neither was successful.
Mr. Luebbert wrote the Plaintiff again on August 10, 2009, recounting the events
between the parties, and stating a past-due balance of $8,789.05. This letter claimed to be a final
notice to the Plaintiff to remove his plane and pay his past-due balance or else face a lien and
involuntary removal of his plane. Mr. Luebbert noted that Texarkana, Arkansas City Code § 3-87
authorized that removal. Again, two attempts were made to deliver this letter, this time, by
FedEx. And again, neither was successful. FedEx returned the letter with a code indicating that
the Plaintiff refused to sign for the letter.
Unbeknownst to Mr. Luebbert, however, the Plaintiff had written Mayor Horace Shipp
on August 7, 2009 to complain about his dealings with Mr. Leubbert. The Plaintiff also asked
Mayor Shipp to file an insurance claim for damage to the Plaintiff’s plane. Mayor Shipp
forwarded that letter to Mr. Luebbert.
Mayor Shipp responded to the Plaintiff’s letter on August 24, 2009. The Mayor claimed
to have no idea what damage and insurance issues the Plaintiff was talking about, and noted that
a qualified mechanic had seen only damage caused by age and exposure to the elements, for
which the airport was not responsible. The Mayor also told the Plaintiff that, to recover the
plane, he must pay the past-due rent and remove the plane within 30 days. If the Plaintiff did not
pay and remove, the Mayor said, then the plane would be declared abandoned and disposed of.
On September 30, 2009, the Plaintiff responded to the Mayor’s letter, demanding more
information. The city attorney responded on October 12, 2009, requesting that the Plaintiff pay
the past-due balance and remove his plane by October 23, 2009. That October 12th letter was the
Defendants’ last contact with the Plaintiff before this suit was filed. On November 16, 2009, the
Airport Authority declared the plane abandoned, and donated it to a Missouri man who removed
the plane from the airport.
The Plaintiff filed suit on October 13, 2010, claiming the Defendants were state actors
who deprived the Plaintiff of its property without due process. The Plaintiff’s sole claim was
made under 42 U.S.C. § 1983. The Defendants now move for summary judgment, arguing that
they are immune from the Plaintiff’s tort claims2 and that the Plaintiff had no property interest in
its month-to-month rental contract with the airport when the plane was taken.
STANDARD OF REVIEW
The standard of review for summary judgment is well established. The Federal Rules of
Civil Procedure provide that when a party moves for summary judgment:
The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.
Fed.R.Civ.P. 56(a); Krenik v. County of LeSueur, 47 F.3d 953 (8th Cir.1995). The Supreme
Court has issued the following guidelines for trial courts to determine whether this standard has
The inquiry performed is the threshold inquiry of determining whether there is a
need for trial—whether, in other words, there are genuine factual issues that
properly can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.
Because the Plaintiff denies making a tort claim, the Court will not discuss such claims. (ECF No. 25, at 2).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). See also Agristor Leasing v. Farrow,
826 F.2d 732 (8th Cir.1987); Niagara of Wisconsin Paper Corp. v. Paper Indus. UnionManagement Pension Fund, 800 F.2d 742, 746 (8th Cir.1986). A fact is material only when its
resolution affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. A
dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict
for either party. Id. at 252.
The Court must view the evidence and the inferences that may be reasonably drawn from
the evidence in the light most favorable to the nonmoving party. Enterprise Bank v. Magna
Bank, 92 F.3d 743, 747 (8th Cir.1996). The moving party bears the burden of showing that there
is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. The
nonmoving party must then demonstrate the existence of specific facts in the record that create a
genuine issue for trial. Krenik v. County of LeSueur, 47 F.3d at 957. A party opposing a properly
supported motion for summary judgment may not rest upon mere allegations or denials, but must
set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 256.
The Plaintiff claims the Defendants violated 42 U.S.C. § 1983 by taking its property
without due process. It claims a contractual right to store its plane at the Texarkana Airport, and
argues that the state-actor Airport Authority violated that right by giving the plane away. The
Defendants argue that the undisputed facts show that the contract was terminated and the plane
declared abandoned before they gave the plane away. Thus, the Defendants argue, they did not
take the Plaintiff’s property in violation of its due-process rights, and summary judgment is
1. Due-Process Property Interest
The Fourteenth Amendment’s promise of procedural due process is violated when a
protected property interest is at stake, the interest is taken, and it is taken without sufficient
process. Wooten v. Pleasant Hope R-VI Sch. Dist., 270 F.3d 549, 551 (8th Cir. 2001). A contract,
including a lease, may be a property interest. Singleton v. Cecil, 176 F.3d 419, 421–22 (8th Cir.
1999) (contract may create property interest protected by the Due Process Clause); Gentry v. City
of Lee’s Summit, Mo., 10 F.3d 1340, 1343 (8th Cir. 1993) (“A leasehold and the trade fixtures
located on it are undoubtedly property rights.”). So may personal property used in connection
with a contract. Rockland Vending Corp. v. Creen, No. 07-cv-6268 (KMK), 2009 WL 2407658,
at *5 (S.D.N.Y. Aug. 4, 2009) (vending machines used in connection with a contract are dueprocess property).
The Parties agree that they had an implied contract for an indefinite term with monthly
rent reserved. In Arkansas, that arrangement creates a month-to-month tenancy. Coley v.
Westbrook, 206 Ark. 1111, 178 S.W.2d 991, 993 (Ark. 1944). The Plaintiff thus had a contract
property interest in that tenancy.3 Because the plane was stored in connection with that contract,
it too was a protected property interest.
2. Due Process Taking
The Plaintiff must do more than show that it had a property interest in its contract and
plane at some time. It must also show that it had those property interests on November 16, 2009,
when the plane was removed. If it did not, then no property interest was taken. The Defendants
The Plaintiff argues that the contract in this case was a bailment contract, but the Court disagrees. A bailment
exists where property is delivered for a purpose and then returned to the deliverer after the purpose is fulfilled.
Hinkle v. Perry, 296 Ark. 114, 120, 752 S.W.2d 267, 270 (Ark. 1988). The delivery must exclude the possession of
the owner and all others, and thus give the bailee sole custody. Bertig Bros. v. Norman, 101 Ark. 75, 141 S.W. 201,
204 (Ark. 1911); Howard W. Brill, Arkansas Law of Damages § 17:5 (5th ed. 2004) (“For a bailment to occur, the
owner must part with control of the chattel.”). Here, the Plaintiff never lost control and possession of its plane and,
accordingly, the Defendants never had sole custody. For that reason, the Parties’ contract was not a bailment
argue that the property interests ended before November 16, 2009 because the contract was
properly terminated on October 1, 2009, and the plane became abandoned that same day. The
Plaintiff argues that the contract was not terminated before November 16, 2009, and that the
plane was not abandoned.
As noted above, the Parties had a month-to-month tenancy. An Arkansas month-to-month
tenancy may be terminated by either party giving 30 days’ written notice, and the termination
becomes effective at the end of a monthly period. Robinette v. French, 20 Ark.App. 102, 724
S.W.2d 196, 198 (Ark. Ct. App. 1987). The Defendants contend that they properly terminated
the contract by giving the Plaintiff adequate notice. The Plaintiff contends that the contract was
not terminated by that notice, because the Defendants continued to seek past-due rent. The Court
finds that the contract was properly terminated.
The Defendants’ first notice was the August 10, 2009 letter from Mr. Luebbert to the
Plaintiff claiming, in bold font, to be the Plaintiff’s final notice to remove his plane and settle his
past-due rent by September 15, 2009. That letter was sent by FedEx, which made two attempts to
deliver the letter to the Plaintiff and then returned it to Mr. Luebbert with a code showing that the
Plaintiff refused to sign for the letter. The Court finds that the August 10th letter gave adequate
notice and effectively terminated the contract on October 1, 2009, which was 30 days later plus
the remainder of the next monthly period.
Additionally, Mayor Shipp’s letter to the Plaintiff on August 24, 2009 was effective to
terminate the contract. That letter was received by the Plaintiff, and stated:
If you want to recover the airplane in question, you will need to pay the
delinquent storage rental on the airplane and remove it from the premises of the
Texarkana Airport Authority within the next thirty days. If you do as you have
done in the past and do nothing within this thirty day deadline, Texarkana Airport
Authority, consistent with Arkansas law, will regard the airplane as abandoned
property and will dispose of the airplane as it sees fit. (ECF No. 7-4, at 1).
That notice unambiguously terminated the contract. Mayor Shipp expressed no intention of
remaining under contract with the Plaintiff, even if the Plaintiff paid his past-due rent. That
termination too became effective on October 1, 2009. Thus, the Plaintiff’s contractual property
interest in storing its plane at the airport terminated on October 1, 2009, more than a month
before the Defendants gave the plane away on November 16, 2009.
The Court is not persuaded by the Plaintiff’s argument that the Defendants’ insistence on
past-due-rent payments precludes them from arguing that the contract was terminated. The
Plaintiff cites no law for this argument, and its reasoning for it is not persuasive. The Defendants
did not forfeit their right to seek past-due rent from the Plaintiff by terminating the contract.
Because the Defendants properly terminated the contract well before November 16, 2009,
the Plaintiff had no property interest in the contract when the plane was removed.
When a party abandons the premises under contract and the fixtures on it, the party no
longer has an interest for the Constitution to protect. Gentry v. City of Lee’s Summit, Mo, 10 F.3d
1340, 1345 (8th Cir. 1993). In Arkansas, property left on the premises after a lease is terminated
is deemed abandoned and left to the will of the lessor. ARK. CODE ANN. § 18-16-108 (West
2012). The statute, unlike common-law abandonment, does not require intent to abandon.
Indeed, property left at lease termination “shall be considered abandoned.” ARK. CODE. ANN. §
18-16-108; Omni Holding & Dev. Corp. v. C.A.G. Investments, Inc., 370 Ark. 220, 230, 258
S.W.3d 374, 381 (Ark. 2007) (“[W]ith the termination of [lessee’s] right as a lessee in a tenancy
at will to remain on the property…, any property left behind was abandoned.”); Harris v.
Whipple, 63 Ark.App. 84, 974 S.W.2d 482, 483 (Ark. Ct. App. 1998) (“By leaving the washer,
dryer, and various items of clothing in the trailer when she moved, appellee abandoned the
property to whatever disposition that [lessor] made of it.”).
In this case, when the Defendants properly terminated their lease with the Plaintiff on
October 1, 2010, the Plaintiff’s plane was deemed abandoned under § 18-16-108 and left to the
Defendants. The Plaintiff’s property interest in its plane thus terminated well before the
Defendants removed it on November 16, 2009.
Because the undisputed facts show that the Plaintiff no longer had a constitutionally
protected property interest in its storage contract or its plane when the Defendants had the plane
removed, the Defendants’ Motion for Partial Summary Judgment (ECF No. 20) should be and
hereby is GRANTED. The Plaintiff’s Complaint (ECF No. 6) is DISMISSED WITH
The only remaining claim in this case is the Defendants’ counterclaim for $9,000 in pastdue rent, and this Court has only supplemental jurisdiction over that claim. 28 U.S.C. § 1367(a).
The Court declines to continue exercising supplemental jurisdiction over that state-law claim,
having dismissed all claims over which it has original jurisdiction in this case. 28 U.S.C.
§1367(c)(3); D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist. No. 60, 647 F.3d 754, 767 (8th Cir.
2011). The Defendants’ counterclaim for past-due rent is therefore DISMISSED WITHOUT
An order of even date consistent with this Opinion shall issue.
IT IS SO ORDERED, this 11th day of April, 2012.
/s/ Susan O. Hickey
Hon. Susan O. Hickey
United States District Judge
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