*1 v. CITY оf LITTLE ROCK WRIGHT and Connie Wright Jim and Little Rock Board of Adjustment 05-683 Court of Arkansas delivered
Opinion April & Abies, Howe, P.L.L.C., Lisa Standridge, Jones-Abies, by: appellants. Rock, Little E. Shane Attorney, City by: Office of
Springs, appellees. *2 Hannah, Wright Jim Chief Justice. Jim and Connie a the decision of Pulaski Circuit Court County dismissing casewith This was certified to this court the court by prejudice. of because it concerns an issue of first Our impression. to Ark. Ct. R. l-2(b)(l). jurisdiction Sup.
Facts Rock, The live at 14 Drive in Little and Wrights Maywood a business at that location. In Wright operates welding Jim of Little received Rock in violation of City complaint ordinances, a business was run at 14 Drive. zoning being Maywood 18, 2002, On March of Little Rock of City Department 8c issued a notice Neighborhoods to the Planning courtesy Wrights to cease use of their for business property purposes. submitted documents response, Wrights of City Little Rock and Department Planning Development seeking have a status declared because nonconforming-use were they to conduct a business in a continuing location where a business had been run.1 The previously was denied. The Wrights’ request enforcement staff of the zoning Department Planning concluded that Development failed to show that a Wrights business was run from that continuously location. The then the decision of the zoning enforcement staff to the of Little Rock Department Planning Board of Development’s The Board Adjustment. held a at which evidence hearing was received сoncerning business. Evidence was prior also received to show that there was no business at 14 activity Drive for at Maywood least twelve months before business, started his Wright and that the Jim he business started more than that used occupied property business. The Board denied prior a letter Wrights’ appeal by dated 2002. May filed the record of befоre the proceedings Board in the circuit court on May allowed under Ark. Code Ann. 1998), well within the thirty allowed for such an days under Ark. Dist. Ct. R. 9. That was to the assigned First Division of the Pulaski County Circuit Court and the case given number CV 2002-005512. Wrights alleged
1 The repair that an shop auto had been run from this same location. However, was dismissed accordance lack of serviсe in for a on circuit court April Civ. P. 4(i) (g). R. declara- filed a complaint On May matter involves timely appeal stating tory judgment “[t]his that Plaintiffs’ Defendants’ property finding of zoning ruling by this was use.” as a ‘nonconforming’ Although ... is not recognized it dismissed to reinstate appeal, previously attempt apparent the Pulaski Circuit County Division of to the Second assignеd 2003- of case number CV the new Court and designation given to the However, transferred back the case was 5910. subsequently order The transfer Circuit Court. First Division of Pulaski County number, it “the same a new case that while the case bore noted Number 2002-5512 filed as Civil Case case that was originally *3 22, 2002.” May answered, that there was timely The appeal. City denying 8, 2004, becausе until November matter was then
The stayed in the United States was on active duty counsel for City motion to filed a November On military. The P. and 12(b)(1) (h)(3). City argued dismiss under Ark. R. Civ. Board, the the decision of the the matter was an that if appeal to Ark. Code had failed to perfect appeal pursuant Wrights Ann. and, 14-56-425, if it was a Ark. Dist. Ct. R. 8 and 9 § action, there was no because jurisdictiоn declaratory judgment exclusive a decision of the Board is for review of appeal remedy that The to Ark. Code Ann. 14-56-425. City argued of the Board’s did file the certified record while the timely Wrights dismissed, and the with the circuit the case was proceedings months, that the failed to refile within twelve arguing did not (1987)) statute Code Ann. (Ark. savings apply. March based to dismiss wаs on
The motion granted lack that there was a of subject-matter jurisdiction on finding 9 and with Ark. Dist. Ct. R. because the failed to comply because the statute apply. savings here that filed a notice of They argue appeal. to dismiss the admin- court erred in motion the trial granting to statute. istrative savings refusing appeal Notice Appeal was the record of the inferior court “As as proceeding long of the of the circuit clerk within 30 entry filed with the days State, McBridev. is appeal judgment, perfected.” R. 9. See also Dist. Ct. (1989).2 62 S.W.2d been taken are Perfected means that all have which legal steps action Black’s Law undertaken. See necessary complete Rule is on how the circuit (8th 2004). ed. 9 silent Dictionary court Under the is schedule on hearings appeal. briefing rules, the in the court current method used circuit procedural hear is left to the court’s discretion. rules fail to
Our provide adequate procedure the circuit It is that the court. rules apparent inadequate procedural in this casе led to the in the confusion circuit court’s resulting for failure to service when mistakenly dismissing perfect of the already perfected by timely filing appellants’ record. Once it was to the circuit to set a court perfected, up schedule or order briefing hearings required. refer
We of what further question should be to the Arkansas Court Committee on provided Civil Practice.
This court
held Weissv. Johnson, 331 Ark.
961 S.W.2d28 (1998), that service of
under Ark. R. Civ. P.
process
4 was
for an
from an administrative
required
decision. At
decided,
the time
Weiss
Inferior Ct. R.
9(b) applied3
However,
amendment,
was silent on notice.
this
court specifi
added to
that
cally
no notice of
paragraph (b)
is
required.4
filed,
Once the record is
Tо the
timely
perfected.
extent that
isWeiss inconsistent with this
it is overruled.5
opinion,
*4
We
that
also note
Rule 4
to service of the summons and
applies
2 If no
within the time allowed and in the manner
perfected
appeal
provided,
action of the Board is final and
on all
binding
e.g., Mosby v. Office of Prof'l
Conduct,
parties. See,
356 Ark.
(2004).
500,
156 S.W.3d253
3 “The Arkansas Inferior Cоurt Rules were revised
renamed
and
District
Arkansas
Court
effective
to
Rules,
with Amendment 80 of the Arkansas
January
comply
Constitution.”
v.
(2006).
State,
100 in this to be served is no or There summons complaint complaint. filed, ripe the record wаs timely appeal case. When adjudication. DeclaratoryJudgment
Complaintfor
was dismissed without
the matter
prejudice,
Once
The rules
to decide how to reinstate
appeal.
were left
Wrights
in this
an
should
regard.
are silent on how
proceed
appellant
filed a
declaratory judg
complaint
Wrights
of the Board. A
the deсision
declaratory-
ment
to
seeking
appeal
with
to avoid
insecurity
action seeks
uncertainty
judgment
Sears,
status,
v.
other
relations. Wilmans
legal
to rights,
respect
Co.,
However
(2004).
Ark.
Since filing
have
the circuit
consistently sought
that this case should not be confused
that decision. We note
obtains a
abandons
where a
judgment,
one
party
have the matter
and then
adjudicated
that
attempts
judgment,
This is
because
as if no
existed.
anew
prohibited
Board of
the decision of the Little Rock
or in this case
judgment,
tribunal. See
until it is set aside
stands
by superior
Adjustment,
State,
v.
152
226
Watson
(2004);
v.
356 Ark.
S.W.3d
Swint
White,
v.
bar for no discernible purpose.
101 in the circuit Once the filed record Wrights timely Proce- their Arkansas Rule of Civil perfected. and does not dure 4 concerns service of summons complaint This matter is reversed and remanded for reinstatement of apply. the appeal. dissent. JJ.,
Glaze Imber, Imber, Justicе, dissenting. Annabelle Clinton The ma- fashions a new and novel mechanism for jority opinion the erroneous dismissal without of an challenging in the circuit court to Ark. Dist. Ct. R. 9. properly lodged Henceforth, need not of an aggrieved party entry dismissal; rather, erroneous of order the reinstatement of be may by filing accomplished complaint judgment. declaratory I must respectfully disagree. This when the Little Rock Board appeal began Adjust- ment (“The denied the Board”) from a Wrights’ enforcement staff. city’s zoning Wrights properly the Board’s decision the record of the by filing proceed- court; but, before the Board in the circuit the court
ings errone- &emdash; &emdash; dismissed ously ‘‘without for lack of prejudice” servicе accordance with Ark. R. Civ. P. (i)4 Arkansas (g). Code Annotated states 14-56-425 law, addition any remedy from provided by final appeals action taken administrativeand con- quasi-judicialagencies cerned the administrationof this be taken may to the subchapter circuit court of the where appropriate county shallbe tried de they novо tothesame according procedurewhich incivilactions applies appeals courts, decisions including right of trial by jury. from ofinferior 1998) added).1 Nota- (emphasis bly, statutory for the action in language providing question that from an specifically administrative provides are to appeals agency be to the same brought frоm according decisions appeals of inferior courts. We have held that consistently renamed the Amendment By per “District Court Rules.” District curiam order dated Court Rules (Formerly December See In Re: Known as 9,2004, Adoption Inferior the Inferior Court Rules have been Administrative Court Rules), Order Number Appx.
102
dismissal without
inferior courts are not
to
subject
prеju
decisions of
as
of the
with
a
a dismissal
dice and that such dismissal
operates
White,
Ark.
The Rules thus unlessa proceeding for different Ms. Sosebee right, provides specifically procedure. *7 in in this caseis the to suefor abreach argues right question her of contract which rooted in common law even though contract was created to the Teacher Fair DismissalAct. pursuant because, argues She also the Rules even if the Act were held apply to create a it does not а right, provide specifically procedure “different” from the nonsuit without in prejudice procedure found Rule 41(a). Dist.,
Sosebeev. Line Sch. 320 Ark. County S.W.2d 556 We concluded in (1995). the absence of a different procedure statute, in the the action being Ms. Sosebee was prescribed by subject Procedure, Arkansas Rules of Civil Rule specifically 41(a). Thе Arkansas Rules of Civil were Procedure similarly ap- to an administrative in plied Weiss Johnson, Weiss, (1998). license was appellee’s driving the Office of Driver suspended by Services of the Revenue Division of the of Finance & Administration Department (DF&A). Id. The a filed de novo appellee for review” of the “petition decision in circuit agency’s to Ark. Code Ann. 1997), which allowеd a (Repl. whose license person § had been to “file a for suspended review within petition (30) thirty in days the circuit court in the in which the offense took county place.” 5-65-104(c) 1997). DF&A failed (Repl. at the appear the trial court hearing, entered a in favor DF&A moved to set aside the appellee. judgment, that it was not served with alleging in рetition, compliance with Ark. R. Civ. P. but the trial court denied that request, that the rule was not finding Id. applicable. This court we disagreed. noted Specifically, according
to Ark. R. Civ.P.
the rules of
81(a),
civil
“shall
procedure
all civil
in the circuit
proceedings cognizable
courts
this state
in those instances
a
where
statute
except
which crеates a right,
or
remedy
proceeding specifically
different
provides
procedure
in which
event
so
shall
Ark. R.
specified
apply.”
Thus,
Civ. P. 81(a)
in
statute
in Weiss was a
question
review
to administrative
because the right
“special proceeding”
However,
did not
the statute in
question
created.
statutorily
the Arkansas Rules
for a different proсedure,
specifically provide
Procedure
Civil
applied.
case can be readily distinguished
The instant
Sosebee,the Teacher
at
and Weiss. In
issue
Sosebee
circumstances
Fair Dismissal Act
specific procedure
prescribe
That
stated:
board’s decision.
statute
school
appealing
teacher aggrieved
remedy
any nonprobationary
The exclusive
shallbe an
therefrom
made
the board
school district is
in which the
county
the circuit court of
located,
of written notice
of the date
seventy-five (75) days
within
and evidence may
the board. Additional testimony
of the action of
facts
circumstancesshowing
to show
be introduced on apрeal
or unlawful.
that the termination or nonrenewal
lawful
Weiss,
1993).
6-17-1510(d)
Similarly,
Ann.
Code
for a
in the form of
remedy
filing
statute in question provided
*8
review,
for
but did not
procedures by
designate specific
petition
In this
to be executed. Weissv.
supra.
which such
Johnson,
remedy
however,
the
case,
set forth for
there is
appealing
specific procedure
—
Moreover,
14-56-425.
Board’s
as
v.
because
overrules Weiss
Johnson, supra,
mistakenly
majority
above,
that was
case involved
the Weiss
perfected
explained
review,” and
of a
not by
filing
filing
“petition
rules.
to the inferior court
record pursuant
case,
essence,
in this
where
procedure
that used in an
of an inferior court’s
same
withоut
which is not
to dismissal
subject
decision to
so
under
too the dismissal
41(a),
prejudice
Rule
prejudice
and the
case
as a dismissal with
this
actually operated
prejudice
statute,
16-56-126,
In the
Ann.
cannot apply.
Code
savings
case,
the circuit court held that
statute
instant
savings
service. While
because the
failed to
timely
complete
should bе
erred in its
court’s
court
reasoning,
v.
for the
reason.
affirmed as
result
right
wrong
Fryar
reaching
Inc.,
295, 229
S.W.3d
Touchstone Physical Therapy,
Lockhart,
For the above-stated I dissent. respectfully Glaze, this dissent. J., joins ARMSTRONG STATE of Arkansas
Ralph CR 05-1028 Court of Arkansas delivered
Opinion April