North Little Rock School District v. Louene Lipsmeyer et al.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

NORTH LITTLE ROCK SCHOOL DISTRICT,

APPELLANT

V.

LOUENE LIPSMEYER, et al.,

APPELLEES

CA04-376

MARCH 9, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

(NO. CV01-5942,

HONORABLE WILLARD PROCTOR JR., JUDGE

AFFIRMED

Sam Bird, Judge

This is a case involving the Teacher Fair Dismissal Act (TFDA) in which the North Little Rock School District (the District) appeals from an order of the trial court dated December 22, 2003, awarding attorney's fees and costs to the appellees. Because, for reasons explained herein, we are unable to address the merits of the District's argument, we affirm.

On June 15, 2001, appellees filed suit against the District claiming that, in the fall of 2000, the District unilaterally implemented a new set of personnel policies, procedures, and criteria for teacher evaluations in violation of the TFDA. The appellees claimed that this amounted to breaches of contracts between the District and its teachers, and that as a result of the breaches, the teachers were denied their rights under state law by having their contracts altered unlawfully. The complaint sought a declaratory judgment that the teachers' contracts

were breached, that the new personnel policies were void, and that the personnel policies implemented prior to the new policies should apply. In addition, the appellees sought attorney's fees. The appellees and the District subsequently filed motions for summary judgment.

On September 2, 2003, the Pulaski County Circuit Court entered an order granting summary judgment in favor of appellees, finding that the District's new policies were not adopted in compliance with the TFDA. The court specifically declared that the District had breached its implied obligation to incorporate substantive criteria for the evaluation of teachers into its policies; that the District had breached its implied obligation to evaluate teachers based on duly authorized criteria adopted in compliance with state statutes; and that the policies previously implemented should apply until new policies were properly adopted.

On September 15, 2003, appellees moved for an award of attorney's fees pursuant to Ark. Code Ann. § 16-22-308 (Repl. 1999), which states that:

In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney's fee to be assessed by the court and collected as costs.

(Emphasis added.) In an order entered on December 22, 2003, the court granted the appellees' motion for attorney's fees, stating in part as follows:

Plaintiffs' claim in this case was that defendant unilaterally imposed contractual terms and ignored existing contract terms related to teacher evaluations. It is true that the contractual terms at issue were incorporated into the contracts as required by the statute ... but that does not alter the fundamental nature of the claim as one for breach of contract.

The District filed a Notice of Appeal on January 16, 2004, taking appeal from (1) the order of the trial court dated September 2, 2003; and (2) the order of the trial court dated December 22, 2003. On April 16, 2004, appellees filed in this court a motion to dismiss the District's appeal, claiming that the District had failed to file a timely appeal with respect to the September 2, 2003, order. We granted the appellees' motion to dismiss the appeal as to the September 2, 2003, order. Therefore, this appeal relates only to the December 22, 2003, order that awarded attorney's fees and costs to appellees.

The District contends that because the trial court erroneously concluded that appellees' action was one for breach of contract, it erred in awarding attorney's fees to them. The District argues that because the essential nature of this case was one for declaratory judgment and not for breach of contract, the trial court's award of attorney's fees pursuant to Ark. Code Ann. § 16-22-308 was clear error and was an abuse of the court's discretion. However, we cannot address the merits of this argument because the District failed to timely appeal the September 2, 2003, order in which the court ruled that the District's failure to comply with statutes requiring the adoption of policies relating to the evaluation of teachers, and the District's failure to evaluate teachers in accordance with required evaluation criteria, constituted a breach of the teachers' contracts with the District. We are unable to address the District's argument without deciding the issue of whether the District's actions constituted a breach of the teachers' contracts, an issue decided by the trial court in its September 2, 2003, order.

With certain limited exceptions, our Rules of Appellate Procedure--Civil require that a notice of appeal be filed within thirty days from the entry of the judgment, decree, or order appealed from. See Ark. R. App. P. - Civ. 4 (2004). That was not done here, and no exceptions apply. Our caselaw makes it clear that the failure to file a timely notice of appeal deprives an appellate court of jurisdiction. See, e.g., LaRue v. LaRue, 268 Ark. 86, 593 S.W.2d 185 (1980). Because the argument that the District makes in its appeal from the December 22, 2003, order is actually a challenge to the validity of the findings of the trial court in its September 2, 2003, order, from which no timely notice of appeal was filed, we are unable to address the District's argument. Therefore, we must affirm the December 22, 2003, order by which the trial court awarded costs and attorney's fees to the appellees.

Affirmed.

Crabtree and Baker, JJ., agree.