Town of Sylva withdraws claim for attorney fees

By Lynn Hotaling

Judge Ronald Payne ordered Oct. 1 that the town must either produce documents related to legal expenses in the case by Oct. 22 or drop the claim. Town attorney Eric Ridenour of Sylva withdrew the claim Oct. 19.

"The town filed a claim against me for recovery of the attorney fees that it has incurred so far in the lawsuit involving Broad Street," Smith said in a letter to The Herald. "When I requested that the town provide me with how many tax dollars had been spent on the case, they refused to respond, despite three written requests. The presiding judge (Payne) at the time instructed the town to provide the information or drop their claim (for attorney fees)."

"(Smith) tries to get confidential information and when he doesn't get it, he claims he's being deprived of public information, which he's not," said Ridenour, who said that to date the town has paid him about $8,600 in connection with the case.

With regard to tax dollars spent, Ridenour pointed out that Smith is the one who brought the suit.

"Mr. Smith continues to force the town to spend tax dollars defending this lawsuit," Ridenour said. "The plaintiff is the only one who can voluntarily dismiss. We'd be more than happy to quit, but we got sued."

The claim for attorney's fees was dropped not because of an effort to conceal information, Ridenour said, but because Judge James Downs in June dismissed two of the three claims in Smith's August 2000 suit against the town.

"Once the judge dismissed those two claims, there were no more attorney's fees to seek," Ridenour said.

Though a court date has not been set, the lawsuit is expected to go to trial because Judge Downs declined to rule on the central question of whether the town acted properly when it closed Broad Street in April 2000 and whether that action deprived Smith of reasonable access to his property.

The two causes of action denied by Judge Downs were Smith's request for damages and his charge of inverse condemnation, a claim that the town had taken his property without compensation.

Smith's suit against the town also names as defendants James and Marie Searcy and P&M Automotive owners James Messer and Larry Parris.

The controversy involving Smith and the town of Sylva first surfaced during an October 1999 board meeting when Smith asked town officials for a ruling on Broad Street's status. Sylva Mayor Brenda Oliver postponed a ruling pending the outcome of litigation between Smith and the Searcys, who own property adjacent to Smith's.

Though Broad Street historically was town-maintained only from its origin on West Main Street between Performance Motors and P&M to First Charter Bank, a right of way or the remainder of the street was platted around 1924. On some maps the Broad Street corridor is shown intersecting with Bridge Street, which leaves West Main between Taylor Auto Parts and the Merita Bread store.

The Searcys obtained a court order in September 1999 to prevent Smith from accessing his property from Broad Street. Judge Richlyn Holt dissolved the restraining order in February 2000 and granted Smith access via Broad Street. Judge Holt's preliminary ruling stated that a town's acceptance and maintenance of a portion of a street constitutes acceptance of the street as it is fully platted.

The Searcys then dropped their lawsuit and Marie Searcy asked town board members in March to close Broad Street at First Charter Bank. Smith had previously requested that if Broad Street extended to his property, it be closed at that point.

At the town's public hearing prior to closing Broad Street, those in favor of the move included representatives of all affected businesses and property owners, with the exception of Smith.

The current lawsuit is the second Smith filed against the town over Broad Street's closing.

Smith initially brought suit against the town of Sylva and the other defendants in May 2000. That complaint was dismissed July 31, 2000, at Smith's request.

Judge Thomas Seay in December 2000 ordered Smith to reimburse the town $1,941.50 for legal expenses incurred in defending that lawsuit.

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