dissenting. I respectfully dissent. As the majority points out, this court reversed the chancellor in City of Dover v A.G. Barton, 337 Ark. 186, 987 S.W.2d 705 (1999), where we held the chancellor erred by relying on Act 1336 of 1997 to enjoin Dover from continuing construction of its sewage-treatment facility. Basically, this court held that Dover’s construction commenced prior to the Act’s effective date, and, for that reason, was inapplicable. The court further opined in obiter dictum that the Arkansas Pollution Control and Ecology Commission was the proper forum for hearing any claim Barton might have under Act 1336, and the chancery court was not the appropriate jurisdiction to hear an Act 1336 claim.
After making the foregoing holding and observation, this court’s earlier opinion recognized the City of Russellville’s alternative argument to affirm the chancellor’s decision to enjoin Dover, namely, that Dover’s location of the sewage treatment facility violated ordinances of the City of Russellville, in that part of the facility is located in an area subject to Russellville’s jurisdiction, and that Dover did not obtain a large-scale development permit from Russellville. Dover contested Russellville’s factual and legal contentions; however, our court declined to consider this legal issue because the chancellor made no ruling on it, and thus it was not resolved. In fact, the chancellor issued his decree enjoining Dover based solely on Russellville’s Act 1336 claim, finding it unnecessary to reach all other issues. In sum, our court ruled that, because material fact issues remained unresolved, summary judgment was not proper on the other issues. We then specifically reversed the chancellor’s decision based on Russellville’s Act 1336 claim and remanded the case for an order consistent with its opinion.
On June 9, 1999, the chancellor on remand held the previously issued injunction reversed by this court on appeal would remain in effect until he could hear the remaining issues for relief that he had never ruled on. This included Russellville’s claim for relief based upon its ordinances. The chancellor gave Russellville until June 16, 1999, to respond to Dover’s motion for summary judgment filed on June 1, 1999. Other matters filed on remand included the following:
(1) Dover’s motion for assessment of damages filed on June 30, 1999.
(2) Order denying Dover’s motion to lift injunction and establish filing deadlines.
(3) Russellville’s motion for summary judgment filed on July 14, 1999.
(4) Russellville’s amended intervention complaint.
(5) Dover’s September 1, 1999, motion to require payment of expert witness fees.
On September 13, 1999, the chancellor granted Russellville’s motion for summary judgment and denied Dover’s summary judgment motion. The chancellor enjoined Dover based on its findings that Dover violated Russellville’s Land Subdivision and Development Code — the issue the chancellor had previously declined to reach in his first decision.
As I read the record, the parties and the chancellor proceeded on remand essentially on the record established at the first trial and appeal of this matter, but the chancellor utilized it and the subsequent pleadings listed above to resolve the issue he had not previously addressed or reached — whether Dover had violated Russell-ville’s Land Subdivision and Development Code and therefore should be enjoined from doing so. Based on the record and affidavits, the chancellor found that the area of Dover’s proposed treatment plant is served by Russellville water or sewer and is therefore subject to the Russellville Code. The chancellor further found that part of the Dover development tract is within one mile of Russell-ville, and the remainder of the tract is contiguous to that portion within one mile. He also found Russellville had advised Dover that any development in the proposed area must receive a large-scale development permit under the Code, but Dover chose not to comply. The chancellor also found Dover did not controvert these findings, and therefore entered a summary judgment on September 13, 1999, in Russellville’s favor, enjoining Dover from proceeding with its construction.
Dover appealed the September 13 order, raising eight points for reversal. None has to do with whether the chancellor complied with this court’s earlier mandate filed on May 14, 1999. Instead, Dover’s points address the merits of this case, charging the chancellor erred:
(1) In granting summary judgment to the City of Russellville in that it lacks authority to regulate lands lying more than one mile outside its city limits;
(2) In granting summary judgment to the City of Russellville based upon the fact that the City of Russellville provides water or sewer services to land belonging to the City of Dover that lie more than one mile outside the city limits of the City of Russellville;
(3) In failing to set aside the summary judgment, in that the City of Dover was not served with a copy of the motion and brief for summary judgment filed by the City of Russellville on July 14, 1999;
(4) In reinstating the injunction against the City of Dover after this court’s decision of April 8, 1999, prior to conducting another hearing and taking additional evidence;
(5) In failing to rule on the City of Dover’s motion to recuse;
(6) In failing to rule on the City of Dover’s motion for assessment of damages;
(7) In failing to rule on the City of Dover’s request that the appellees be required to pay expert witness fees; and
(8) The court lacked jurisdiction to rule upon the nuisance claims filed by the City of Russellville.
Dover, in its fourth point, does argue that on remand the chancellor erred by reinstating its earlier injunction without taking any additional evidence. It claims in this appeal that the chancellor lacked the authority to issue a new injunction because the grounds (Act 1336) upon which the chancellor’s prior injunction was based had been reversed and nullified. Russellville responds that Dover offers no citation of authority in support of its contention, and, in addition, the injunction issued was not new, but was only continuing its earlier injunction so as to preserve the status quo pending final resolution of the case. In other words, the issue is not one merely questioning whether the chancellor complied with this court’s mandate, but rather, whether the chancellor otherwise erred in how it tried and decided this case on the legal theory that Dover’s actions had violated Russellville’s Land Subdivision and Development Code and such violation warranted injunctive relief.
In conclusion, the majority opinion is reversing and remanding this case to allow the parties to address any remaining issues; however, it is unclear to me as to how the parties and the chancellor should proceed on remand, especially with this court not answering the questions presented in this appeal. For the reasons above, I would proceed on the merits and decide the eight issues raised by Dover and argued by the parties.
Imber and Smith, JJ., join.