Rosse v. City of Jonesboro , 2016 Ark. App. 580 ( 2016 )

Cite as 2016 Ark. App. 580
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-16-479
Opinion Delivered November 30, 2016
SAMUEL A. ROSSE III APPEAL FROM THE CRAIGHEAD
APPELLANT COUNTY CIRCUIT COURT,
WESTERN DISTRICT
V. [NO. 16JCV-15-604]
CITY OF JONESBORO HONORABLE PAMELA
APPELLEE HONEYCUTT, JUDGE
REVERSED AND REMANDED
WAYMOND M. BROWN, Judge
The City of Jonesboro sought to condemn property owned by Rosse located at 700
Cate. The city council found the property to be “unsuited for human habitation” and issued
a resolution to condemn the property. The mayor signed the resolution for condemnation
on August 25, 2015. Appellant filed a timely notice of appeal to the circuit court on
September 22, 2015. Appellee filed a motion to dismiss on February 9, 2016, contending that
the appeal should be dismissed because more than 120 days had passed and appellant had failed
to file a copy of the district court complaint. The court entered an order dismissing
appellant’s appeal with prejudice on February 16, 2016. Appellant appeals, contending that
the circuit court’s dismissal of his appeal was in error. We agree and reverse and remand.
Arkansas Code Annotated section 14-56-425 states,
Cite as 2016 Ark. App. 580
(a)(1) Appeals from the final administrative or quasi-judicial decision by the municipal
body administering this subchapter shall be taken to the circuit court of the appropriate
county using the same procedures as for administrative appeals of the District Court
Rules of the Supreme Court.
(2) The final administrative or quasi-judicial decision shall be tried de novo with the
right to a trial by jury.
Arkansas District Court Rule 9(f)provides that
(1) If an applicable statute provides a method for filing an appeal from a final decision
of any governmental body or agency and a method for preparing the record on appeal,
then the statutory procedures shall apply.
(2) If no statute addresses how a party may take such an appeal or how the record shall
be prepared, then the following procedures apply:
(A) Notice of Appeal. A party may appeal any final administrative decision by filing a
notice of appeal with the clerk fo the circuit court having jurisdiction in the matter
within thirty (30) days from the date of that decision. The notice of appeal shall
describe the final administrative decision being appealed and specify the date of that
decision. The date of the decision shall be either the date of the vote, if any, or the
date that a written record of the vote is made. The party shall serve the notice of
appeal on all other parties, including the governmental body or agency, by serving any
person described in Arkansas Rule of Civil Procedure 4(d)(7), by any form oF mail
that requires a return receipt.
(B) The Record on Appeal. Within thirty (30) days after filing its notice of appeal, the
party shall file certified copies of all the materials the party has or can obtain that
document the administrative proceeding. Within thirty (30) days after these materials
are filed, any opposing party may supplement the record with certified copies of any
additional documents that it believes are necessary to complete the administrative
record on appeal. At any time during the appeal, any party may supplement the record
with a certified copy of any document from the administrative proceeding that is not
in the record but the party believes the circuit court needs to resolve the appeal.
Our supreme court decided the issue of the applicability of section 14-56-425 to city
council resolutions in Ingram v. City of Pine Bluff.1 In Ingram, the court held that Rule 9
1
355 Ark. 129, 133 S.W.3d 382 (2003).
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Cite as 2016 Ark. App. 580
applied to city council and planning commission resolutions via section 14-56-425.2 The
court also stated that the filing requirements of Rule 9 were mandatory and jurisdictional and
that the failure to comply prevents the circuit court from acquiring subject-matter
jurisdiction.3
Here, appellant timely filed a notice of appeal within thirty days of the city council’s
resolution. He also filed a timely copy of the city council’s resolution being appealed.
Therefore, he satisfied the record requirement under Rule 9. Thus, the trial court erred in
dismissing the appeal due to appellant’s failure to file a complaint, as he was under no
obligation to do so. However, this does not conclude our inquiry. Appellee contends on
appeal that appellant’s appeal was properly dismissed because he failed to serve appellee with
his notice of appeal by any form of mail that required a return receipt. The record before us
is silent as it relates to the service issue.4 Therefore, we reverse and remand for the trial court
to make factual findings whether appellant complied with the service requirement.
Reversed and remanded.
ABRAMSON and VAUGHT, JJ., agree.
Charles D. Hancock, for appellant.
Jessica R.L. Coleman, for appellee.
2
Id.
3
Id.
4
We note that appellee did not present the trial court with this issue; however, since
Rule 9 is jurisdictional, the issue has not been waived. Subject-matter jurisdiction is always
open for review, cannot be waived, can be questioned for the first time on appeal, and can
even be raised by the appellate court. Duffy v. Little, 2011 Ark. 160.
3