{
  "id": 50296,
  "name": "BOARD of ZONING ADJUSTMENT of the City of Little Rock v. Vernon CHEEK",
  "name_abbreviation": "Board of Zoning Adjustment v. Cheek",
  "decision_date": "1997-04-07",
  "docket_number": "96-117",
  "first_page": "18",
  "last_page": "22",
  "citations": [
    {
      "type": "official",
      "cite": "328 Ark. 18"
    },
    {
      "type": "parallel",
      "cite": "942 S.W.2d 821"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "111 S.W.2d 583",
      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
      "pin_cites": [
        {
          "page": "584"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "300 Ark. 136",
      "category": "reporters:state",
      "reporter": "Ark.",
      "pin_cites": [
        {
          "page": "137"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "300 Ark. 135",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1886822
      ],
      "weight": 2,
      "year": 1989,
      "opinion_index": 0,
      "case_paths": [
        "/ark/300/0135-01"
      ]
    },
    {
      "cite": "316 Ark. 1",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1907720
      ],
      "weight": 2,
      "year": 1994,
      "opinion_index": 0,
      "case_paths": [
        "/ark/316/0001-01"
      ]
    },
    {
      "cite": "297 Ark. 247",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1891435
      ],
      "weight": 2,
      "year": 1988,
      "opinion_index": 0,
      "case_paths": [
        "/ark/297/0247-01"
      ]
    },
    {
      "cite": "Ark. Code Ann. \u00a7 14-56-425",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "year": 1987,
      "opinion_index": 0
    }
  ],
  "analysis": {
    "cardinality": 405,
    "char_count": 7802,
    "ocr_confidence": 0.754,
    "pagerank": {
      "raw": 3.539064602108946e-07,
      "percentile": 0.8847104599534568
    },
    "sha256": "afc386937ea22f13405e44f82d107d73bcee32fafd5495e915734e76c29d4241",
    "simhash": "1:db6b5055250c465e",
    "word_count": 1297
  },
  "last_updated": "2023-07-14T15:26:32.867281+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "BOARD of ZONING ADJUSTMENT of the City of Little Rock v. Vernon CHEEK"
    ],
    "opinions": [
      {
        "text": "Tom Glaze, Justice.\nThis case involves property located within Little Rock\u2019s three-mile zoning jurisdiction, and while the property was zoned for residential purposes, the City had allowed it to be used for an auto repair business as a nonconforming use as of 1991. After Cheek purchased the property in 1993, he opened his auto-repair business, and the Little Rock zoning staff concluded that the nonconforming use of the property had been abandoned. Cheek appealed the staff s decision to the Little Rock Board of Zoning Adjustment, but at a hearing held on December 27, 1993, the Board upheld the staffs determination that Cheek\u2019s documentation was insubstantial and failed to support his claim that the nonconforming use of the property had not been abandoned for one year. The Board orally announced its decision at the December 27 hearing, and that decision was noted on the bottom of Cheek\u2019s application for a variance.\nOn January 19, 1994, the Board received further documentation from Cheek and notice that he intended to appeal the Board\u2019s determination to circuit court. In fact, Cheek mailed a notice of appeal to the Board on January 26, 1994, but he failed to file his notice with the circuit court. Instead, on February 7, 1994, Cheek filed a complaint in circuit court against the Board, seeking a declaratory judgment and demanding a jury trial. On February 22, 1994, Cheek received the Board\u2019s final notice that he must cease operation of his auto repair shop or file for rezoning. Cheek filed a motion to stay enforcement of the Board\u2019s action.\nOn August 26, 1994, the Board filed a motion to dismiss Cheek\u2019s complaint, contending the circuit court lacked jurisdiction because Cheek had not properly perfected his appeal. Cheek responded, stating that, under Ark. Code Ann. \u00a7 14-56-425 (1987), he had thirty days within which to appeal the Board\u2019s final action under Arkansas\u2019s Inferior Court Rules. The trial court determined that Cheek\u2019s appeal time commenced when the Board, in its final action, approved its minutes on January 31, 1994; it further found Cheek\u2019s complaint filed in circuit court on February 7, 1994, was a timely appeal from the Board\u2019s approval of its minutes. The trial court erred.\nWe need not decide whether Arkansas law required Cheek to perfect his appeal from the Board\u2019s initial action on December 27, 1993, or from the Board\u2019s approval of its minutes on January 31, 1994, because Cheek indisputably did neither. As previously mentioned, \u00a7 14-56-425 required Cheek to appeal the Board\u2019s final action in the manner provided under Rules 8 and 9 of Arkansas\u2019s Inferior Court Rules. In particular, Rule 9(a) provides that an appeal of a civil case from an inferior court to circuit court must be filed with the clerk of the circuit court having jurisdiction within thirty days from the entry of the judgment, and Rule 9(c) specifically mandates as follows:\nWhen the clerk of the inferior court, or the court [Board, here] 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 inferior court [Board] by filing an affidavit in the office of the circuit court clerk showing that he has requested the clerk of the inferior court or the inferior court [Board] to prepare and certify the record thereof for purposes of appeal and that the clerk or the court [Board] has neglected to prepare and certify such record for purposes of appeal. (Insertions added.)\nAs previously mentioned, Cheek failed to file a timely appeal from the Board\u2019s December 27, 1993 decision, nor did he appeal from the Board\u2019s approval of minutes on January 31, 1994. Instead, on January 26, 1994, he mailed an appeal notice to the Board from the December 27 decision, but subsequently abandoned that effort and filed a complaint in circuit court for declaratory relief against the Board on February 7, 1994. While the trial court made some mention that it would treat Cheek\u2019s February 7 complaint as an appeal, Cheek never filed a record of the Board\u2019s proceedings with the circuit court, nor did Cheek ever file an affidavit with the circuit court stating, as required by Inferior Court Rule 9, that Cheek had requested a record, but the Board had failed and neglected to prepare and certify it. In sum, Cheek simply failed to perfect his appeal in the time and manner provided by law; therefore, the trial court never acquired jurisdiction of Cheek\u2019s appeal. See West Apartments, Inc. v. Booth, 297 Ark. 247, 760 S.W.2d 861 (1988); see also Ottens v. State, 316 Ark. 1, 871 S.W.2d 329 (1994); Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583 (1989).\nCheek also argues that the Board is now precluded from raising the argument that the circuit court had no jurisdiction of Cheek\u2019s appeal because, earlier, the Board had filed a petition for writ of prohibition with our court concerning the same issue, and it lost. In this respect, on December 9, 1994, Cheek filed a mandamus action directing the circuit court to accept Cheek\u2019s belated appeal. When the circuit court granted mandamus, the Board did not appeal, but instead petitioned this court for a writ of prohibition, asserting the trial court had no jurisdiction to accept a belated appeal. Cheek argues that, because the Board\u2019s petition was denied and the Board did not appeal the trial court\u2019s mandamus order, the Board is barred by res judicata and cannot now collaterally attack it.\nSuffice it to say, in denying the Board\u2019s earlier petition for writ of prohibition, we offered no opinion indicating whether the trial court had jurisdiction of Cheek\u2019s appeal. We also note that the Board\u2019s contention has always remained essentially the same throughout all the parties\u2019 actions, petitions, motions, and responses, namely, that the trial court never acquired jurisdiction of Cheek\u2019s appeal.\nWhile Cheek argues the Board is barred by res judicata or collateral estoppel, his argument simply overlooks the fact that he faded to comply with the provisions of Inferior Court Rule 9, which are mandatory and jurisdictional in nature. In short, the circuit court in this matter never had jurisdiction of Cheek\u2019s appeal, and the trial court never acquired it by Cheek\u2019s filing a mandamus action. Neither did the circuit court have authority to grant a belated appeal. Edwards, 300 Ark. 136, 137, 111 S.W.2d 583, 584.\nAlthough we are resolute in deciding the circuit court had no authority to hear Cheek\u2019s appeal, we would be remiss in failing to point out the obvious and understandable confusion the parties and trial court encountered when trying to interpret \u00a7 14-56-425. That statutory provision attempts to provide for appeals to circuit court from final actions taken by administrative and quasi-judicial agencies, and, in doing so, incorporates the same appeal procedure this court has provided in our Inferior Court Rules 8 and 9.\nOur Inferior Court Rules, of course, generally deal in terms of appeals from \u201centry of judgment\u201d and appellate records prepared and certified by a \u201ccourt clerk\u201d \u2014 terms normally inapplicable to actions taken by administrative agencies, boards, and commissions. We would like to suggest to the General Assembly that it address this rather murky area caused by \u00a7 14-56-425, and provide some clarity so as to avoid administrative-appeal problems such as the ones evidenced in this decision.\nFor the reasons given hereinabove, we reverse and dismiss.",
        "type": "majority",
        "author": "Tom Glaze, Justice."
      }
    ],
    "attorneys": [
      "Thomas M. Carpenter, City Attorney, by: Robert L. Baker, for appellant.",
      "Timothy O. Dudley, for appellee."
    ],
    "corrections": "",
    "head_matter": "BOARD of ZONING ADJUSTMENT of the City of Little Rock v. Vernon CHEEK\n96-117\n942 S.W.2d 821\nSupreme Court of Arkansas\nOpinion delivered April 7, 1997\nThomas M. Carpenter, City Attorney, by: Robert L. Baker, for appellant.\nTimothy O. Dudley, for appellee."
  },
  "file_name": "0018-01",
  "first_page_order": 44,
  "last_page_order": 48
}