Mmsc, LLC v. Washington County, Arkansas Quorum Court of Washington County, Arkansas Joseph K. Wood, in His Official Capacity as County Judge Dinah Dickerson Caroline Cox Stephenie Foster Marty Matlock And the Highland Community Association ( 2024 )

Cite as 2024 Ark. App. 209ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-21-282
MMSC, LLC Opinion Delivered March 27, 2024
APPELLANT
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT
V. [NO. 72CV-19-1297]
WASHINGTON COUNTY, ARKANSAS; HONORABLE JOHN C. THREET,
QUORUM COURT OF WASHINGTON JUDGE
COUNTY, ARKANSAS; JOSEPH K.
WOOD, IN HIS OFFICIAL CAPACITY REMANDED
AS COUNTY JUDGE; DINAH
DICKERSON; CAROLINE COX;
STEPHENIE FOSTER; MARTY
MATLOCK; AND THE HIGHLAND
COMMUNITY ASSOCIATION
APPELLEES
ROBERT J. GLADWIN, Judge
This case involves the denial of a conditional-use permit for surface mining in
Washington County. In 2018, MMSC, LLC (“MMSC” or “appellant”), applied for a
conditional-use permit to operate a red-dirt mine on approximately twenty acres in
Washington County. On February 14, 2019, the Washington County planning board
denied MMSC’s conditional-use permit. On April 18, 2019, the quorum court voted to
affirm the planning board’s decision and memorialized that decision in an ordinance.
MMSC appealed the quorum court’s action to the Washington County circuit court.
At that point, Dinah Dickerson, Caroline Cox, Stephenie Foster, Marty Matlock, and the
Highland Community Association moved to intervene, and the circuit court granted that
motion.
On February 11, 2021, the circuit court held a final hearing in the matter and entered
its final order on March 17, 2021. The circuit court ruled in favor of the appellees—the
quorum court and the intervenors—holding that the decision to adopt an ordinance denying
appellant’s request for a conditional-use permit was not arbitrary, capricious, or
unreasonable. The circuit court also held that Arkansas Code Annotated section 14-17-211
(Repl. 2013) is unconstitutional because it is a violation of the separation-of-powers clause
in the Arkansas Constitution.
The appellant filed a timely notice of appeal, and the electronic record was lodged on
June 23, 2021. It is 7,091 pages. The first 61 pages are various motions, responses, and replies
that are individually bookmarked. The final 449 pages are also motions, responses, replies,
orders, and letters that are individually bookmarked. The middle 6,581 pages are
bookmarked simply as “Administrative Records Exhibit.”
The 6,581-page “Administrative Records Exhibit” appears to include documents from
the Washington County planning office and planning board, maps, e-mails, deeds, and at
least one affidavit. The documents are not bookmarked, nor is it clear what pleading or other
portion of the record they are related to.
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Arkansas Rule of Appellate Procedure–Civil 7(b)(1) requires that “[t]he record shall
be saved as searchable and bookmarked portable document format (PDF) files. Bookmarks
shall be made to each document in the record and at the beginning of each witness’s
testimony.”
Last year, this court remanded a case for additional factual findings. Duensing v. Ark.
State Med. Bd., 2023 Ark. App. 226, at 4–5, 666 S.W.3d 133, 136. At the end of the opinion,
the court noted that pages 11 through 457 of the electronic record
includes the transcript from the Board hearing. However, none of the
documents or testimony are bookmarked, and the documents do not appear
in any type of order. Before a subsequent appeal, we urge the parties to review
the rules on electronic records and record contents. . . .[A]nd counsel should
carefully review the rules and ensure no other deficiencies exist.
Id. at 7, 666 S.W.3d at 138.
The same deficiencies are present in this electronic record but on a larger scale. Pages
62 through 6,642 are not bookmarked, and the documents do not appear in any type of
order.
For this reason, we remand this case to correct the electronic record. The electronic
record must comply with Rule 7(b)(1) and be refiled within sixty days.
Remanded.
HARRISON, C.J., and THYER, J. agree.
Friday, Eldredge & Clark, LLP, by: Joshua A. Ashley, Kael K. Bowling, and Martin A.
Kasten, for appellant.
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Noland Law Firm, PA, by: Ross Noland; and Brian Lester and Garrett Harlan, Washington
County Attorneys, for appellees.
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