Board of Zoning Adjustment v. Cheek

BOARD of ZONING ADJUSTMENT of the City of
Little Rock v. Vernon CHEEK

96-117                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered April 7, 1997


1.   Appeal & error -- appellee failed to file timely appeal from
     ruling of zoning board -- trial court never acquired
     jurisdiction of appeal. -- Arkansas Code Annotated  14-56-425
     (1987) required appellee to appeal the appellant Board's final
     action in the manner provided under Rules 8 and 9 of
     Arkansas's Inferior Court Rules; here, appellee failed to file
     a timely appeal pursuant to Rule 9(a)'s thirty-day limitation
     from either the Board's December decision or from the Board's
     approval of minutes in January; instead, in January, he mailed
     an appeal notice to appellant from the December decision, but
     subsequently abandoned that effort and filed a complaint in
     circuit court for declaratory relief against the appellant in
     February; appellee never filed a record of appellant's
     proceedings with the circuit court, nor did appellee ever file
     an affidavit with the circuit court stating, as required by
     Inferior Court Rule 9, that he had requested a record, but
     appellant had failed and neglected to prepare and certify it;
     appellee failed to perfect his appeal in the time and manner
     provided by law; therefore, the trial court never acquired
     jurisdiction of appellee's appeal. 

2.   Appeal & error -- provisions of Inferior Court Rule 9
     mandatory and jurisdictional -- appellant's failure to comply
     deprived circuit court of jurisdiction. -- Appellee's argument
     that the Board was barred by res judicata or collateral
     estoppel was without merit where he failed to comply with the
     provisions of Inferior Court Rule 9, which are mandatory and
     jurisdictional in nature; the circuit court never had
     jurisdiction of the appeal, and the trial court never acquired
     it by appellee's filing a mandamus action; neither did the
     circuit court have authority to grant a belated appeal; the
     case was reversed and dismissed. 


     Appeal from Pulaski Circuit Court; Chris Piazza, Judge;
reversed and dismissed.
     Thomas M. Carpenter, City Attorney, by:  Robert L. Baker, for
appellant.
     Timothy O. Dudley, for appellee.

     Tom Glaze, Justice.
     This case involves property located within Little Rock's
three-mile-zoning jurisdiction, and while the property was zoned
for residential purposes, the City had allowed it to be used for an
auto repair business as a nonconforming use as of 1991.  After
Cheek purchased the property in 1993, he opened his auto-repair
business, and the Little Rock zoning staff concluded that the
nonconforming use of the property had been abandoned.  Cheek
appealed the staff's decision to the Little Rock Board of Zoning
Adjustment, but at a hearing held on December 27, 1993, the Board
upheld the staff's determination that Cheek's documentation was
insubstantial and failed to support his claim that the
nonconforming use of the property had not been abandoned for one
year.  The Board orally announced its decision at the December 27
hearing, and that decision was noted on the bottom of Cheek's
application for a variance.
     On January 19, 1994, the Board received further documentation
from Cheek and notice that he intended to appeal the Board's
determination to circuit court.  In fact, Cheek mailed a notice of
appeal to the Board on January 26, 1994, but he failed to file his
notice with the circuit court.  Instead, on February 7, 1994, Cheek
filed a complaint in circuit court against the Board, seeking a
declaratory judgment and demanding a jury trial.  On February 22,
1994, Cheek received the Board's final notice that he must cease
operation of his auto repair shop or file for rezoning.  Cheek
filed a motion to stay enforcement of the Board's action.
     On August 26, 1994, the Board filed a motion to dismiss
Cheek's complaint, contending the circuit court lacked jurisdiction
because Cheek had not properly perfected his appeal.  Cheek
responded, stating that, under Ark. Code Ann.  14-56-425 (1987),
he had thirty days within which to appeal the Board's final action
under Arkansas's Inferior Court Rules.  The trial court determined
that Cheek's appeal time commenced when the Board, in its final
action, approved its minutes on January 31, 1994; it further found
Cheek's complaint filed in circuit court on February 7, 1994, was
a timely appeal from the Board's approval of its minutes.  The
trial court erred.
     We need not decide whether Arkansas law required Cheek to
perfect his appeal from the Board's initial action on December 27,
1993, or from the Board's approval of its minutes on January 31,
1994, because Cheek indisputably did neither.  As previously
mentioned,  14-56-425 required Cheek to appeal the Board's final
action in the manner provided under Rules 8 and 9 of Arkansas's
Inferior Court Rules.  In particular, Rule 9(a) provides that an
appeal of a civil case from an inferior court to circuit court must
be filed with the clerk of the circuit court having jurisdiction
within thirty days from the entry of the judgment, and Rule 9(c)
specifically mandates as follows:
          When the clerk of the inferior court, or the court
     [Board, here] in the absence of a clerk, neglects or
     refuses to prepare and certify a record for filing in the
     circuit court, the person desiring an appeal may perfect
     his appeal on or before the 30th day from the date of the
     entry of the judgment in the inferior court [Board] by
     filing an affidavit in the office of the circuit court
     clerk showing that he has requested the clerk of the
     inferior court or the inferior court [Board] to prepare
     and certify the record thereof for purposes of appeal and
     that the clerk or the court [Board] has neglected to
     prepare and certify such record for purposes of appeal. 
     (Insertions added.) 
     As previously mentioned, Cheek failed to file a timely appeal
from the Board's December 27, 1993 decision, nor did he appeal from
the Board's approval of minutes on January 31, 1994.  Instead, on
January 26, 1994, he mailed an appeal notice to the Board from the
December 27 decision, but subsequently abandoned that effort and
filed a complaint in circuit court for declaratory relief against
the Board on February 7, 1994.  While the trial court made some
mention that it would treat Cheek's February 7 complaint as an
appeal, Cheek never filed a record of the Board's proceedings with
the circuit court, nor did Cheek ever file an affidavit with the
circuit court stating, as required by Inferior Court Rule 9, that
Cheek had requested a record, but the Board had failed and
neglected to prepare and certify it.  In sum, Cheek simply failed
to perfect his appeal in the time and manner provided by law;
therefore, the trial court never acquired jurisdiction of Cheek's
appeal.  See West Apartments, Inc. v. Booth, 297 Ark. 195, 760 S.W.2d 861 (1988); see also Ottens v. State, 316 Ark. 1, 871 S.W.2d 329 (1994); Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583
(1989).
     Cheek also argues that the Board is now precluded from raising
the argument that the circuit court had no jurisdiction of Cheek's
appeal because, earlier, the Board had filed a petition for writ of
prohibition with our court concerning the same issue, and it lost. 
In this respect, on December 9, 1994, Cheek filed a mandamus action
directing the circuit court to accept Cheek's belated appeal.  When
the circuit court granted mandamus, the Board did not appeal, but
instead petitioned this court for a writ of prohibition, asserting
the trial court had no jurisdiction to accept a belated appeal. 
Cheek argues that, because the Board's petition was denied and the
Board did not appeal the trial court's mandamus order, the Board is
barred by res judicata and cannot now collaterally attack it.
     Suffice it to say, in denying the Board's earlier petition for
writ of prohibition, we offered no opinion indicating whether the
trial court had jurisdiction of Cheek's appeal.  We also note that
the Board's contention has always remained essentially the same
throughout all the parties' actions, petitions, motions, and
responses, namely, that the trial court never acquired jurisdiction
of Cheek's appeal.  
     While Cheek argues the Board is barred by res judicata or
collateral estoppel, his argument simply overlooks the fact that he
failed to comply with the provisions of Inferior Court Rule 9,
which are mandatory and jurisdictional in nature.  In short, the
circuit court in this matter never had jurisdiction of Cheek's
appeal, and the trial court never acquired it by Cheek's filing a
mandamus action.  Neither did the circuit court have authority to
grant a belated appeal.  Edwards, 300 Ark. 136, 137, 777 S.W.2d 583, 584.
     Although we are resolute in deciding the circuit court had no
authority to hear Cheek's appeal, we would be remiss in failing to
point out the obvious and understandable confusion the parties and
trial court encountered when trying to interpret  14-56-425.  That
statutory provision attempts to provide for appeals to circuit
court from final actions taken by administrative and quasi-judicial
agencies, and, in doing so, incorporates the same appeal procedure
this court has provided in our Inferior Court Rules 8 and 9.  
     Our Inferior Court Rules, of course, generally deal in terms
of appeals from "entry of judgment" and appellate records prepared
and certified by a "court clerk" -- terms normally inapplicable to
actions taken by administrative agencies, boards, and commissions. 
We would like to suggest to the General Assembly that it address
this rather murky area caused by  14-56-425, and provide some
clarity so as to avoid administrative-appeal problems such as the
ones evidenced in this decision.
     For the reasons given hereinabove, we reverse and dismiss.