Cite as 2016 Ark. App. 580

ARKANSAS COURT OF APPEALS

DIVISION I

No. CV-16-479

 

SAMUEL A. ROSSE III

APPELLANT

V.

CITY OF JONESBORO

 APPELLEE

Opinion Delivered November 30, 2016

APPEAL FROM THE CRAIGHEAD

COUNTY CIRCUIT COURT,

WESTERN DISTRICT

[NO. 16JCV-15-604]

HONORABLE PAMELA 

HONEYCUTT, JUDGE

REVERSED AND REMANDED

WAYMOND M. BROWN, Judge

 The City of Jonesboro sought to condemn property owned by Rosse located at 700

Cate. The city council found the property to be “unsuited for human habitation” and issued

a resolution to condemn the property. The mayor signed the resolution for condemnation

on August 25, 2015. Appellant filed a timely notice of appeal to the circuit court on

September 22, 2015. Appellee filed a motion to dismiss on February 9, 2016, contending that

the appeal should be dismissed because more than 120 days had passed and appellant had failed

to file a copy of the district court complaint. The court entered an order dismissing

appellant’s appeal with prejudice on February 16, 2016. Appellant appeals, contending that

the circuit court’s dismissal of his appeal was in error. We agree and reverse and remand.

Arkansas Code Annotated section 14-56-425 states,
Cite as 2016 Ark. App. 580

(a)(1) Appeals from the final administrative or quasi-judicial decision by the municipal

body administering this subchapter shall be taken to the circuit court of the appropriate

county using the same procedures as for administrative appeals of the District Court

Rules of the Supreme Court.

(2) The final administrative or quasi-judicial decision shall be tried de novo with the

right to a trial by jury.

Arkansas District Court Rule 9(f)provides that

(1) If an applicable statute provides a method for filing an appeal from a final decision

of any governmental body or agency and a method for preparing the record on appeal,

then the statutory procedures shall apply.

(2) If no statute addresses how a party may take such an appeal or how the record shall

be prepared, then the following procedures apply:

(A) Notice of Appeal. A party may appeal any final administrative decision by filing a

notice of appeal with the clerk fo the circuit court having jurisdiction in the matter

within thirty (30) days from the date of that decision. The notice of appeal shall

describe the final administrative decision being appealed and specify the date of that

decision. The date of the decision shall be either the date of the vote, if any, or the

date that a written record of the vote is made. The party shall serve the notice of

appeal on all other parties, including the governmental body or agency, by serving any

person described in Arkansas Rule of Civil Procedure 4(d)(7), by any form oF mail

that requires a return receipt.

(B) The Record on Appeal. Within thirty (30) days after filing its notice of appeal, the

party shall file certified copies of all the materials the party has or can obtain that

document the administrative proceeding. Within thirty (30) days after these materials

are filed, any opposing party may supplement the record with certified copies of any

additional documents that it believes are necessary to complete the administrative

record on appeal. At any time during the appeal, any party may supplement the record

with a certified copy of any document from the administrative proceeding that is not

in the record but the party believes the circuit court needs to resolve the appeal.

Our supreme court decided the issue of the applicability of section 14-56-425 to city

council resolutions in Ingram v. City of Pine Bluff.

1

 In Ingram, the court held that Rule 9

1

355 Ark. 129, 133 S.W.3d 382 (2003). 

2
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applied to city council and planning commission resolutions via section 14-56-425.2

 The

court also stated that the filing requirements of Rule 9 were mandatory and jurisdictional and

that the failure to comply prevents the circuit court from acquiring subject-matter

jurisdiction.3

 

Here, appellant timely filed a notice of appeal within thirty days of the city council’s

resolution. He also filed a timely copy of the city council’s resolution being appealed. 

Therefore, he satisfied the record requirement under Rule 9. Thus, the trial court erred in

dismissing the appeal due to appellant’s failure to file a complaint, as he was under no

obligation to do so. However, this does not conclude our inquiry. Appellee contends on

appeal that appellant’s appeal was properly dismissed because he failed to serve appellee with

his notice of appeal by any form of mail that required a return receipt. The record before us

is silent as it relates to the service issue.4 Therefore, we reverse and remand for the trial court

to make factual findings whether appellant complied with the service requirement. 

Reversed and remanded.

ABRAMSON and VAUGHT, JJ., agree.

Charles D. Hancock, for appellant.

Jessica R.L. Coleman, for appellee.

2

Id.

3

Id.

4We note that appellee did not present the trial court with this issue; however, since

Rule 9 is jurisdictional, the issue has not been waived. Subject-matter jurisdiction is always

open for review, cannot be waived, can be questioned for the first time on appeal, and can

even be raised by the appellate court. Duffy v. Little, 2011 Ark. 160.

3