Van Buren County Board of Education v. Clinton School District

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

SAM BIRD, JUDGE

DIVISION IV

VAN BUREN COUNTY BOARD OF EDUCATION,

APPELLANT

V.

CLINTON SCHOOL DISTRICT,

APPELLEE

CA00-337

NOVEMBER 29, 2000

APPEAL FROM THE VAN BUREN COUNTY CIRCUIT COURT,

NO. CIV96-120,

HON. CHARLES EDWARD CLAWSON, JR., JUDGE

AFFIRMED

In this appeal, we review the circuit court's decision overturning a 1996 resolution made by appellant Van Buren County Board of Education. In its resolution, the Board changed the boundary lines between the Scotland School District and the Clinton School District in such a way that all or part of six sections of land were removed from the Clinton School District and placed in the Scotland School District. The Clinton district appealed the Board's action to the circuit court, and the court invalidated the resolution. The Board brings this appeal, raising three arguments: 1) that the Clinton district's appeal to circuit court was premature and, therefore, ineffective; 2) that the Clinton district failed to join certain necessary parties to its appeal; and 3) that the circuit judge erred in overturning the Board's decision. We affirm the circuit court.

The Scotland School District and the Clinton School District are contiguous school

districts located in Van Buren County. The Scotland district is located generally west of the Clinton district, and the two districts share a common boundary that dissects sections 26, 27, 28, 33, 34, and 35 of Township 11 North, Range 15 West. Prior to the Board's resolution that is the subject of this case, the boundary between the two districts was located in such a way that all of section 26 was assigned to the Clinton district, with the remaining sections -- 27, 28, 33, 34, and 35 -- being divided in an irregular manner between the Scotland and Clinton districts.

At some point, most likely in 1995, a petition was submitted to the Van Buren County Board of Education by fourteen property owners asking the Board to place all six sections in the Scotland district. Upon reviewing the matter, the Board determined that the boundary line between the Clinton and Scotland districts had, at one time, been drawn to include all six sections in the Scotland district. Therefore, the Board promulgated a resolution on September 17, 1996, declaring that "the Scotland School District boundary line [will] be moved back to its original area which includes all of SEC 26 27 28 33 34 35...." In a subsequent letter dated October 29, 1996, which was sent to the superintendent of the Clinton School District, the Van Buren County Clerk, and the County Assessor, the Board stated that "[t]here had been an illegal action in 1955 which took this land from Scotland and gave it to the Clinton District." The "illegal action" referred to was the act of a former county school board supervisor who had allegedly changed the district boundaries to their current unusual configuration without proper authorization.

Upon learning of the Board's decision, the Clinton School District appealed to thecircuit court. The Board defended its resolution by arguing that, pursuant to Ark. Code Ann. § 6-13-104 (Repl. 1993), it had acted to clear up an uncertainty in the boundaries. Section 6-13-104, which has since been amended by Act 1078 of 1999, read:

In case there is any doubt as to the boundaries of a school district because of lost records or other uncertainty, the county board of education shall issue an order fixing the boundaries and shall file the order with the county clerk, who shall make a permanent record of the order, and thereafter the boundaries so fixed shall be the boundaries of the district until changes are made according to the provisions of law, and the district shall be a school district according to the provisions of this act.

According to Board members, the illegal change that caused the uncertainty in the boundary lines was, at one time, evidenced by a map on file at the Board office. However, the map could not be located at the time of trial.

After hearing the testimony of witnesses and viewing numerous documents, the circuit judge invalidated the Board's resolution, finding that "no uncertainty existed save for that which was argued as the result of an `altered map' not included in either school district, nor in the records of the Van Buren County Board of Education, and whose existence is the subject of uncorroborated testimony." This appeal followed.

We discuss first the timeliness of the Clinton district's appeal to circuit court. The County Board adopted its resolution changing the school-district boundaries on September 17, 1996. On October 29, 1996, the Board's secretary, Shirley Wood, sent a letter to the superintendent of the Clinton Public Schools notifying him of the change. That letter was copied to the county assessor and was filed with the Van Buren County Clerk on October 30, 1996. The clerk's office immediately notified Wood that she needed to file a copy of theBoard's resolution and a map showing the boundary changes.1 For reasons that are not explained in the abstract, the resolution and map were not filed until July 14, 1997. In the interim, on November 27, 1996, the Clinton district had appealed the Board's decision to circuit court. The Board now argues that the appeal filed by the Clinton district was premature because it was filed before the Board's resolution was filed.

Appeals from county school board decisions were, at the time the Clinton district filed its appeal, governed by Ark. Code Ann. § 6-12-111 (Repl. 1993).2 That statute provided that a party aggrieved by "any final order or decision" of a county board of education may prosecute an appeal from "any such final order or decision." The question before this court is whether the October 29 letter, which was filed with the county clerk on October 30, constituted a "final order or decision" for purposes of section 6-12-111. We hold that it did.

A final order is one that dismisses the parties, discharges them from the action, or concludes their right to the subject matter in controversy. McGann v. Pine Bluff Police Dep't, 334 Ark. 352, 974 S.W.2d 462 (1998)(appeal to circuit court from Civil Service Commission). The Board's resolution was committed to writing and signed by all five Board members on September 17. The resolution was summarized in the October 29 letter sent to the Clinton superintendent, the county clerk, and the county assessor. More importantly, the letter was filed by the county clerk on October 30. Both the resolution andthe letter are unequivocal regarding the change in the school-district boundaries. Therefore, the Board's decision was final for purposes of section 6-12-111.

The Board argues further that its decision was not final because the boundary changes continued to be discussed at Board meetings held in February and March of 1997, several months after the appeal was filed. The minutes of those meetings show nothing to indicate that the Board did not consider its decision final. In the February meeting, it was noted that there was "much discussion of the boundary change," and that a motion was made by one board member to "stand by the previous decision." In the March meeting, a motion was made to obtain a statement from a former Scotland School Board member "supporting the Board's decision." These minutes actually support the idea that the Board's 1996 decision was a final one. Further, the Board was aware that its decision was on appeal to circuit court, so it was only natural that the decision would continue to be a topic of discussion. For the foregoing reasons, we hold that the appeal from the Board's decision was timely filed.

We turn next to the Board's argument that the Clinton district's appeal was defective because it failed to include a necessary party, i.e., the Scotland School District. It is true that the Scotland district, which benefitted from the boundary change, was not named as a party in the circuit-court proceeding. However, the record as abstracted does not show that the Board ever requested in circuit court that the Scotland district be made a party to the case. Therefore, the issue is being raised for the first time on appeal, and we will not consider it. See Meister v. Reddman, 241 Ark. 854, 410 S.W.2d 769 (1967); Van Balen v. Peoples Bank & Trust Co., 3 Ark. App. 243, 626 S.W.2d 205 (1981).

The final argument raised by the Board concerns the propriety of the circuit court's decision to overturn the change in the boundary lines. Before discussing the facts surrounding this issue, we must address the proper standard of review in this case. The Board argues that its decision should be accorded the type of deference given to administrative decisions and should be upheld by both the circuit court and this court unless the decision is arbitrary or capricious. The Clinton district argues that an appeal to circuit court from a county board of education should be conducted de novo and that, on appeal, this court should review the trial judge's findings to determine if they are clearly erroneous.

We hold that the Board is precluded from arguing on appeal that the circuit court should have conducted anything other than a de novo trial. In opening remarks to the trial court and in its post-trial brief, the Board acknowledged that the circuit court proceeding should be de novo. A party cannot concede a point before the trial court then argue on appeal that error occurred. See Mine Creek Contractors, Inc. v. Grandstaff, 300 Ark. 516, 780 S.W.2d 543 (1989). Therefore, we will treat this case as if the circuit court conducted a trial de novo with the consent of both parties. It follows that our review is then directed to the findings of the trial court, which will be upheld unless they are clearly erroneous. See Izard County Bd. of Educ. v. Violet Hill Sch. Dist. No. 1, 10 Ark. App. 286, 663 S.W.2d 207 (1984).

In 1996, county boards of education were vested with the authority to change theboundary lines of school districts. Ark. Code Ann. § 6-12-109(b)(2) (Repl. 1993).3 In particular, Ark. Code Ann. § 6-13-104, which is the statute under which the Board purported to act in this case, empowered such boards to fix the boundaries of a school district in case of doubt due to lost records or other uncertainty. This is the statute under which the Board purported to act in this case. The Board contended that, before 1955, the land in most, if not all, of the six sections at issue was contained in the Scotland district. Then, in that year, a the county school board supervisor improperly changed the district boundaries and placed parts of the sections in the Clinton district. The Board offered the testimony of several persons who said that the improper action occurred when the school official penciled in the changes on an old school board map. The map could not be produced at trial, however. One witness said it was lost in the flood of 1982; another witness said it was in existence in 1996 but could not be found. According to the Board, the uncertainty produced by the school official's unauthorized action allowed the Board to change the district boundaries, pursuant to section 6-13-104.

Evidence produced by the Clinton district countered the Board's claims. Old records obtained from the Board showed that, prior to 1955, Section 26 was entirely within the Clinton district, as were parts of Sections 27, 28, and 33. An exhibit prepared by Mike Banks, the deputy county assessor, showed that since 1948, all of the sections, with the exception of Section 28, were located in whole or in part within the Clinton district. Moreover, there was no evidence that any unauthorized change, as alleged by the Board, had been placed in the county tax records. Therefore, the very basis that the Board asserted as justification for its action -- that it was merely restoring land to the Scotland School District -- was called into question.

Without belaboring the evidence further, we defer to the learned trial judge who had the prerogative to resolve conflicts in evidence. In light of our understanding of the proof presented by both parties, we cannot say that the judge's finding that no boundary change was merited under section 6-13-104 was clearly erroneous.

Affirmed.

Jennings and Stroud, JJ., agree.

1 The county clerk's request was made pursuant to Ark. Code Ann. §§ 6-13-211 and -212 (1987). The clerk was apparently unaware that those statutes were repealed by Act 294 of 1993, § 7.

2 This statute was repealed by Act 1078 of 1999, § 15.

3 This statute was repealed by Act 1078 of 1999, § 13.