*1 v. CITY of 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 concerning 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 before 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 service 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 assigned 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, because 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 jurisdiction 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 was 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 case 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 To 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 Court Rules were revised renamed and District Arkansas Court effective to Rules, with Amendment 80 of the Arkansas January comply Constitution.” v. (2006). State, 364 Ark. 459, 463, 221 S.W.3d Camp 4 — SeeIn Re: Arkansas Rules Civil Rules Procedure; Procedure Rules Civil; Appellate of of Court and Court and (2004). Court 355 725 Rules, Ark. Appeals; Appx. of Inferior 5 The sum, dissent states the bottom fine is court’s “[i]n despite dismissal ‘without prejudice,’ Wrights should have the erroneous dismissal of appealed though their Even that was in error, had a on that to appeal.” rely parties King (2000). decision. v. 341 Ark. 955, 20 S.W.3d341 If there was aggrieved an Carney, party that should prejudice, have that first dismissal without it was the who would City,

100 in this to be served is no or There summons complaint complaint. filed, ripe the record was 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 decision 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. 144 S.W.3d 245 355 Roebuck to continue the it was captioned, sought pleading so as are to be construed of the Board. Pleadings liberally decisión be P. should 8(f). Ark. R. Civ. They to do substantial justice. rather than the substance of the effect to pleading construed give Prather, Ark. 737 S.W.2d 159 (1987). Cornettv. 293 the form. Board, of the decision of the was the The relief sought clear from the that was pleading. before the Board with the record of hearing

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. 233 S.W.2d 544 Fowlkes Central (1950); 217 Ark. Co., Poole, (1933); Burgess 187 Supply Cars, v. & M Used See also Wilson C (1885). case, are not In this 878 S.W.2d App. rather, anew, decide the issue but to have the Board attempting that was dismissed in to reinstate their are trying they simply error. brought so that the matter was have a dismissalwith completely obviously preferred To hold that the had to an order an end. The appeal. *5 for the order, was at the least a voidable creates a new prejudice, which dismissal trap

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, Justice, 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” service 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 novo 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 from 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 preju decisions of as of the with a a dismissal dice and that such dismissal operates White, Ark. 233 S.W.2d 544 (1950); v. 217 Watson prejudice. Co., 187 Ark. 58 S.W.2d 922 (1933); Fowlkesv. Central Supply Cars, S.W.2d 427 (1994).2 Used 46 Ark. 878 App. Wilsonv. C&M words, an a case from inferior court In other the dismissal of appealed the court the with away municipal “simply [leaves] [does] Cars, Used 46 Ark. Wilson v. C&M valid enforceable.” at 878 S.W.2d at 430. Because language plain App. notice that the inferior on Code Ann. put of this case court were also on notice court’s rules put applied, they a would law that the circuit court’s dismissal order operate holding sum, the bottom line is with In dismissal of prejudice. the circuit court’s dismissal “without despite prejudice,” of their should the erroneous dismissal have appeal.3 our decision in The to Sosebee Wrights argue a Dist., S.W.2d (1995), v. Line Sch. 320 897 556 County is in of adminis- dismissal without appropriate appeals prejudice trative decisions. At in Sosebee was an under issue Act, 6-17-1501, et Teacher Fair Dismissal seq. an circuit from a which to court 1993), provided teacher. Id. school board’s decision to dismiss nonprobationary Ark. R. P. such 41(a) the issue of whether Civ. to applied resolving that Rule this court noted states: 81(a) appeals, These to rules shall all civil apply pro- General. Applicability circuit, in the courts of cognizable chancery, probate ceedings instances where a statute which creates a except this State in those 2 were decided the Arkansas Though Watson Fowlkes before Rules Civil cited with v. were those cases were in Sosebee Line Sch. Procedure County adopted, approval (1995), noting right that the S.W.2d with court Dist., 412, 897 320 Ark. 556 statutory is Likewise, a claimant dismiss an action without now found Rule 41. to v. agreed Sosebee the Arkansas Court of in Wilson C&M court Appeals 281, 878 S.W.2d 427 the court of held that Ark.App. case, Used In that Cars, 46 original actions in circuit does not court, Rule 41 “which applies apply so as to vest court with to dismiss the cause of action authority municipal Cars, Wilsonv. Used 46 Ark. at 878 S.W.2dat 429. prejudice.” C&M App. majority’s King decision in v. S.W.3d reliance on our Carney, King on (2000), had the While rely misplaced. plaintiffin Carney,supra, not reconsidered, order until a time as the order could court’s valid such an order that the circuit court never had the to enter. authority reasonably rely a differentproce- or right, remedy specificallyprovides proceeding so shall specified apply. dure in which event Civ. court then stated Ark. R. P. Our 81(a) (2005). statute, which creates

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 a 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). The 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 allowed 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 petition, 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 creates 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 procedure, 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 appeal 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 without 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 be 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, 139 S.W.3d 500 v. Middleton (2006); dismissed effectively original appellate proceeding failed to timely April that dismissal order. the instant dismissing Consequently, case with the circuit court reached result for prejudice, reason. wrong reasons,

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