James E. Franks, Judy Franks, Mark Branscum, Robert F. Lucas and James Alex Franks v. Mountain View, Arkansas Planning and Zoning Commission, et al.
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DIVISION II
CA06-1234
JAMES E. FRANKS, JUDY FRANKS,
MARK BRANSCUM, ROBERT F.
LUCAS and JAMES ALEX FRANKS
APPELLANTS
JUNE 13, 2007
A P P E A L F R O M T H E ST O N E
COUNTY CIRCUIT COURT
[NO. CV2004-81-4]
V.
MOUNTAIN VIEW,
PLANNING
and
COMMISSION, et al.
ARKANSAS
ZONING
APPELLEES
HON. TIM WEAVER,
JUDGE
AFFIRMED
ROBERT J. GLADWIN, Judge
The Stone County Circuit Court found that James E. Franks and Judy Franks were
untimely in their appeal of a decision of the Mountain View Planning and Zoning
Commission and the Mountain View City Council (collectively, the City) and granted the
City’s motion for summary judgment. The Frankses raise four points on appeal. We affirm
the circuit court because the appeal to that court was not properly perfected.
The Frankses are the developers of a subdivision in Mountain View. They assert that
the subdivision was built in accordance with certain restrictive covenants and the City’s
zoning ordinance. In October 2003, the City permitted one of the landowners in the
subdivision to make curb cuts in front of his home. The cuts were contrary to the
development plans’ uniform design. The Frankses filed an appeal to circuit court in April
2004 but nonsuited the appeal in September 2004.
On October 5, 2004, the Frankses were some of the eleven owners in the subdivision
who submitted a petition to the Planning and Zoning Commission asking that it enforce the
subdivision regulations. On October 11, 2004, Jana Richardson, as chair of the commission,
and Mayor Crawford Wyatt sent a joint letter to James E. Franks, stating that all issues
regarding the subdivision had been addressed but indicating that the matter would be placed
on the commission’s agenda for the October 18 meeting. The minutes from that meeting
indicate that the petitioners’ attorney asked the Commission to enforce the ordinances as
written and stated that this would require the Commission to undo the action taken in
October 2003 allowing curb cuts.
The City Council next considered the issue at its October 25, 2004, meeting. The
minutes from that meeting indicate that the appellants’ attorney told the Council that the
matter before the Council was based on actions taken in October 2003. Counsel also made
it clear that they were asking the Council to revisit the commission’s October 2003 decision
to allow the curb cuts. After a colloquy between Council members, the Mayor, and the city
attorney about whether the issue was properly before the Council via a timely appeal, the
Council moved on to other business without taking any action.
On November 12, 2004, the Frankses filed a “Complaint and Appeal” with the Stone
County Circuit Court. The complaint’s prayer sought reversal of the action of both the
commission and the City Council, as well as damages for James E. and Judy Franks. The City
answered, denying the material allegations and asserting several affirmative defenses, such as
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statute of limitations, res judicata, lack of subject-matter jurisdiction, and failure to exhaust
remedies.
After its motion to dismiss was denied, the City filed a motion for summary judgment.
The Frankses responded by filing affidavits in which they both stated that the present action
was not an appeal of the October 2003 action allowing the curb cuts and that the present suit
concerned the denial of their right to be heard.
The trial court held a hearing on the motion for summary judgment, at which time
the City argued, among other things, that the trial court lacked subject-matter jurisdiction
in that the Frankses failed to comply with District Court Rule 9’s requirements for the
timing and manner of taking an appeal from action by the City Council. The trial court
agreed with the City, finding that the issue at hand was the action taken by the City in
October 2003 and that the Frankses failed to appeal that decision within thirty days, thereby
depriving the court of jurisdiction. A written order was entered on July 24, 2006, and this
appeal timely followed.
Appeals to circuit court in cases such as the one before us are governed by Ark. Code
Ann. § 14-56-425 (Repl. 1998), which provides:
In addition to any remedy provided by law, appeals from final action taken by
the administrative and quasi-judicial agencies concerned in the administration of this
subchapter may be taken to the circuit court of the appropriate county where they
shall be tried de novo according to the same procedure which applies to appeals in
civil actions from decisions of inferior courts, including the right of trial by jury.
Our supreme court has interpreted section 14-56-425 to incorporate the appeal procedures
found in District Court Rules 8 and 9. Combs v. City of Springdale, 366 Ark. 31, ___ S.W.3d
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___ (2006); Ingram v. City of Pine Bluff, 355 Ark. 129, 133 S.W.3d 382 (2003). In particular,
Rule 9 provides in part:
(a) Time for Taking Appeal. All appeals in civil cases from district courts to
circuit court must be filed in the office of the clerk of the particular circuit court
having jurisdiction of the appeal within 30 days from the date of the entry of
judgment. . . .
(b) How Taken. An appeal from a district court to the circuit court shall be
taken by filing a record of the proceedings had in the district court. Neither a notice
of appeal nor an order granting an appeal shall be required. It shall be the duty of the
clerk to prepare and certify such record when requested by the appellant and upon
payment of any fees authorized by law therefor. The appellant shall have the
responsibility of filing such record in the office of the circuit clerk.
(c) Unavailability of Record. When the clerk of the district court, or the court
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 district court by filing
an affidavit in the office of the circuit court clerk showing that he has requested the
clerk of the district court (or the district court) to prepare and certify the record
thereof for purposes of appeal and that the clerk (or the court) has neglected to
prepare and certify such record for purposes of appeal. A copy of such affidavit shall
be promptly served upon the clerk of the district court (or the court) and the adverse
party.
In Combs, the supreme court addressed a situation similar to the present case and noted
that a literal interpretation of Rule 9, which uses terms such as “district courts,” “entry of
judgment,” and “clerk of the district court,” is not particularly helpful in the context of the
present case. Nevertheless, the court held that Rule 9 requires that the appealing party file
either the record or an affidavit within thirty days in order to timely perfect an appeal. Here, the
Frankses did not comply with Rule 9 by filing either a certified copy of the record from the
proceedings before the City Council or an affidavit stating that they could not timely file the
record. Instead, they filed a “Complaint and Appeal From the Action of Mountain View[,]
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Arkansas[,] Planning and Zoning Commission and the City of Mountain View, Arkansas,”
and attached uncertified copies of the minutes of the commission and City Council meetings
to their complaint. Despite the pleading’s title, it is clear that the Frankses were seeking
review of the City’s action on their petition.
Strict compliance with the requirements of Rule 9 is necessary; substantial compliance
will not suffice. See Clark v. Pine Bluff Civil Serv. Comm’n, 353 Ark. 810, 120 S.W.3d 541
(2003); J&M Mobile Homes, Inc. v. Hampton, 347 Ark. 126, 60 S.W.3d 481 (2001). Rule 9’s
thirty-day limit for filing an appeal is both mandatory and jurisdictional, and the failure to
either file the record with the clerk or file an affidavit showing that the record has been
requested from the clerk within those thirty days precludes the circuit court from having
jurisdiction over the appeal. Combs, supra; Velek v. State (City of Little Rock), 364 Ark. 531,
__ S.W.3d __ (2006). The trial court correctly found that the Frankses did not timely perfect
their appeal. Therefore, we affirm.
Affirmed.
MILLER, J., agrees.
MARSHALL, J., concurs.
D.P. Marshall, Jr., Justice, concurring. I concur in the court’s opinion and judgment
that we lack jurisdiction under District Court Rule 9 and our supreme court’s precedents
applying it. I write separately, however, because this case exemplifies why Rule 9 and the
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strict-compliance precedents do not adequately address the record issues in appeals from
administrative decisions.
As the court notes, the Franks appellants attached unsigned and uncertified copies of
all the relevant minutes to their “Complaint and Appeal.” They alleged that these minutes
accurately reflected the city’s actions. The Mountain View appellees answered and admitted
that these minutes were correct. All of these steps occurred within Rule 9’s thirty-day period
for perfecting an appeal by filing a certified record of what happened in the challenged
administrative proceeding. There was thus no dispute about the truth of the administrative
record filed by the Franks appellants.
If a substantial-compliance standard applied, then we could conclude that this appeal
was perfected. As the court holds, however, precedent requires strict compliance with Rule
9. But that Rule needs to be clarified to reflect the realities of appeals to circuit court from
decisions by administrative bodies. Where a party challenges administrative action in the
circuit court and files all the existing documents about what happened in the administrative
proceeding, and the administrative body admits the truth of those documents, all within the
thirty-day period, then the purpose of Rule 9 has been satisfied and circuit court jurisdiction
should exist.
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