City of Fort Smith, Arkansas v. Didicom Towers, Inc.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CA04-678

February 9, 2005

CITY OF FORT SMITH, ARKANSAS

APPELLANT

v.

DIDICOM TOWERS, INC.

APPELLEE

APPEAL FROM SEBASTIAN COUNTY CIRCUIT COURT

[NO. CV-03-698]

HONORABLE NORMAN WILKINSON

CIRCUIT JUDGE

REBRIEFING ORDERED

Andree Layton Roaf, Judge

The City of Fort Smith appeals from orders of the Sebastian County Circuit Court denying its motion for default judgment against Didicom Towers, Inc. and dismissing its action for declaratory judgment. Didicom Towers cross-appeals from an order denying its motion for attorneys fees and costs. However, we cannot reach the merits of this case because the parties' addenda are flagrantly deficient. Accordingly, we order rebriefing.

Didicom Towers, Inc., is an Arkansas Corporation engaged in the business of constructing and leasing antenna structures. In 2001, Didicom obtained a permit from the FCC to build a tower capable of holding five wireless and/or PCS and/or antenna carriers. The tower was constructed in 2001 and is located within the City of Fort Smith's "extraterritorial jurisdiction." Construction of such structures within the extraterritorial jurisdiction of the City was permitted during that time period.

On August 6, 2002, the City adopted a land use plan and a zoning code which governed the real property within the extraterritorial jurisdiction in which Didicom's tower is located. The zoning code was amended to prohibit antenna structures, such that Didicom's tower was a lawful but nonconforming use within the zoned area.

On May 20, 2003, the City filed a petition for declaratory judgment in the Sebastian County Circuit Court. In its petition, the City asserted that any extension, enlargement, addition, or intensification to nonconforming real property was prohibited. The City sought to establish that (1) it had properly adopted a zoning code covering the real property and tower at issue; (2) the Didicom tower was a nonconforming structure which may not be intensified by the addition of additional antennae; and (3) the City has police power to review the safety of the structure in conjunction with any exercise by Didicom of its asserted privilege to add additional antennae.

Didicom promptly removed the case to the Federal District Court for the Western District of Arkansas, alleging that the City's attempt to regulate the use of a federally-permitted tower violated the Federal Telecommunications Act (FTA), and that the issues involved presented a federal question. Didicom filed an answer and counterclaim in federal court on that same day. The federal district court found that it lacked jurisdiction because of absence of a justiciable issue, in that Didicom had not yet sought a permit to add additional antennae to its tower. The district court remanded the case back to the Sebastian County Circuit Court. After remand, Didicom did not file an answer in state court.

Didicom then applied for a building permit from the City, requesting approval to add antennae to its tower. The City denied the application, and Didicom appealed the City's decision to the City Planning Commission. After a hearing on the matter, the City Planning Commission denied Didicom's appeal. Didicom then filed an original action in federal district court, presenting a now-ripe federal question regarding whether the City's denial of the permit violated the FTA. The federal case is currently stayed pending this appeal.

A series of pleadings was filed during the state court proceedings, including motions for summary judgment, motion to dismiss, and a motion pursuant to Ark. R. Civ. P. 41. Didicom filed a motion to dismiss, asserting that, because the circuit court and the City Planning Commission have concurrent jurisdiction, the circuit court lacked jurisdiction once the Planning Commission rendered its decision. Didicom also asserted that, because propriety of the denial of the permit was currently pending before the federal court, there was nothing left for the circuit court to decide.

A hearing on Didicom's motion to dismiss was held on January 30, 2004, at which time the City made an oral motion for default judgment based on Didicom's failure to file an answer in the circuit court following remand of the case. The circuit court decided that, because the case pending in federal district court involved the same issues and same parties, all controversies could be decided in the federal court proceeding. The circuit court granted Didicom's motion to dismiss and denied the City's motion for default judgment by order entered February 25, 2004.

Following the hearing, Didicom filed a motion for attorney's fees and costs. The City also filed a written motion for default judgment, again alleging that it was entitled to judgment by default based on Didicom's failure to file an answer in the state court proceedings. Both motions were denied by order dated February 25, 2004. This appeal from the trial court's orders followed.

We cannot reach the merits of this case, because the City's addendum is flagrantly deficient. The City has not complied with the requirements of the Rules of the Supreme Court and Court of Appeals. Rule 4-2(a)(8) provides in pertinent part:

Addendum. Following the signature and certificate of service, the appellant's brief shall contain an Addendum which shall include true and legible photocopies of the order, judgment, decree, ruling, letter opinion, or Workers' Compensation Commission opinion from which the appeal is taken, along with any other relevant pleadings, documents, or exhibits essential to an understanding of the case and the Court's jurisdiction on appeal.

(Emphasis added.) The City's addendum contains only the two orders denying default judgment and dismissing the City's petition. While the City included an addendum in its reply brief, it consists of only the federal district court's order staying the federal proceedings pending appeal of the state court case. Although the City argues that the trial court erred in dismissing its petition for declaratory judgment, its addendum does not include a copy of the petition. Also, the City challenges the trial court's order granting Didicom's motion to dismiss for lack of subject matter jurisdiction and Didicom's alternative motion for dismissal, yet neither of these motions appears in the addendum.

Under their second point on appeal, the City asserts that, although appeals from the City Planning Commission are heard de novo in the circuit court, the City Planning Commission and the circuit court are not equal judicial bodies. The City argues that that circuit court's jurisdiction was thus proper because the decisions made by the City Planning Commission have no preclusive effect. However, the City has failed to provide pleadings demonstrating that an appeal was taken from the City Planning Commission. In fact, the City's addendum is devoid of any pleadings whatsoever, including those filed during the Planning Commission proceedings.

Additionally, the petition for removal to the federal court, Didicom's answer and counterclaim, and the order remanding the case back to circuit court are likewise absent, as well as the City's motion for default judgment. Finally, the addendum also lacks the notice of appeal. Without the notice of appeal, this court cannot determine whether we have jurisdiction to hear the case. Branscumb v. Freeman, ____ Ark. ____, ____ S.W.3d ____ (June 10, 2004).

Although Didicom Towers also includes an addendum in its brief, this addendum contains only the trial court's order denying Didicom's motion for attorneys fees and costs. Didicom's addendum does not contain the pleadings relevant to its motion for attorney's fees or its notice of appeal, which is required since Didicom is the cross-appellant in this matter. Moreover, Didicom's addendum does not by any means cure the deficiencies in the City's addendum. Accordingly, pursuant to Ark. R. Sup. Ct. 4-2(b)(3), the City has fifteen days to cure any deficiencies. Cross-appellant Didicom likewise has fifteen days after the City's brief is filed to file a substituted brief, abstract and addendum, if it so chooses. If the City fails to file a brief which complies with our Rules within that time, the case may be affirmed for noncompliance.

Rebriefing ordered.

Hart and Bird, JJ., agree.