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Convent Corp. v. City of North Little Rock

Supreme Court of Arkansas

May 19, 2016

CONVENT CORPORATION, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED APPELLANT
v.
CITY OF NORTH LITTLE ROCK, ARKANSAS, A MUNICIPAL CORPORATION; JOE SMITH, MAYOR, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; CITY COUNCIL MEMBERS DEBI ROSS, BETH WHITE, LINDA ROBINSON, MAURICE TAYLOR, STEVE BAXTER, BRUCE FOUTCH, MURRY WITCHER, AND CHARLIE HIGHT, EACH INDIVIDUALLY AND IN HIS OR HER OFFICIAL CAPACITY; TOM WADLEY, DIRECTOR, CODE ENFORCEMENT DIVISION, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; AND FELICIA McHENRY, CODE ENFORCEMENT OFFICER, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY APPELLEES

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CV-13-1398] HONORABLE ALICE A. GRAY, JUDGE

          Mickey Stevens, for appellant.

          C. Jason Carter, City Attorney, by: Daniel L. McFadden, Ass't City Att'y, for appellees.

          JOSEPHINE LINKER HART, Associate Justice

         Convent Corporation brings this interlocutory appeal from the circuit court's order denying Convent's motion for class certification; dismissing without prejudice Convent's trespass claim and its federal and state statutory claims; and denying Convent's motion for judgment on the pleadings or, in the alternative, motion for summary judgment, after concluding that there remain genuine issue of material fact. Of these findings, however, only the circuit court's denial of Convent's motion for class certification is appealable on an interlocutory basis. On that issue, the circuit court found that because Convent did not present any evidence at a hearing, there was no basis on which to determine whether Convent met the requirements set forth by Rule 23 of the Arkansas Rules of Civil Procedure for class certification. We reverse the circuit court's decision and remand for further proceedings.

         According to Convent's complaint and exhibits filed in the circuit court, the North Little Rock City Council (Council) passed a resolution on February 25, 2013, condemning as a public nuisance a structure owned by Convent located at 6615 Highway 70 in North Little Rock. The resolution gave Convent thirty days to raze the structure or abate the nuisance. On March 27, 2013, Convent filed in the circuit court a notice of appeal from the resolution. On that same day, Convent filed a complaint for injunctive relief, declaratory judgment, and damages. The complaint stated that, pursuant to District Court Rule 9, Convent was appealing from the resolution, and further, that it was bringing claims under 42 U.S.C. §§ 1983, 1985(3) 1986, and 1988; the Arkansas Civil Rights Act; and a common-law claim of trespass. Convent also sought a declaratory judgment that the City of North Little Rock's (City) ordinance relating to condemnation proceedings was unconstitutional. Further, Convent sought to enjoin the City not only from destroying Convent's property but also from destroying other properties that had been condemned by the City and enjoin the City from condemning any additional properties or taking any action to file or collect liens for the demolition of properties. The complaint further stated that the case was being brought as a class action.

         Following the removal of the case to federal court and its subsequent return, Convent filed on May 17, 2014, a motion for a judgment on the pleadings or, in the alternative, a motion for summary judgment. On September 1, 2014, Convent filed its motion for class certification seeking to certify as a class all individuals who own property within North Little Rock and whose property had been condemned by the Council from March 27, 2009. Convent alleged that 237 properties had been condemned since March 2008. Appended to the motion as exhibits were answers to interrogatories, an affidavit, a copy of that part of the municipal code of the City relating to nuisance abatement and property maintenance, a copy of the minutes of a meeting held by the Council on February 25, 2013, a copy of a resolution passed by the Council relating to the property owned by Convent, a notice of public nuisance relating to Convent's property, and copies of the minutes of several meetings held by the Council.

         A hearing was held in circuit court at which the court heard the arguments of counsel. No testimony was presented. In an order filed July 9, 2015, the circuit court denied Convent's motion for class certification. In denying the motion, the court observed that Convent did not present any evidence at the hearing in support of its motion for class certification. The court concluded, "Therefore, there is no basis upon which the Court could find that [Convent] has met the requirements . . . for certification of a class." The court further concluded that Convent had "initiated the administrative process, which has not concluded" and stated that Convent had "failed to demonstrate through facts that it is certain that the relief it is requesting will be denied on appeal." The court also dismissed without prejudice Convent's federal statutory claims, its claims under the Arkansas Civil Rights Act, and its trespass claim. The court also concluded that Convent's appeal to the circuit court would be governed by the standard of review applicable to appeals under Arkansas District Court Rule 9(f). Finally, the circuit court found that "genuine issues of material fact remain" and denied Convent's motion for a judgment on the pleadings or, in the alternative, motion for summary judgment.

         On August 10, 2015, Convent filed its timely notice of appeal from the circuit court's order. In its notice of appeal, Convent stated that it was bringing an interlocutory appeal from the circuit court's denial of its motion for class certification pursuant to Rule 2(a)(9) of the Arkansas Rules of Appellate Procedure–Civil. Further, Convent asserted that the denial of its motion for judgment on the pleadings or summary judgment was appealable pursuant to Rule2(a)(2) of the Arkansas Rules of Appellate Procedure–Civil because, if Convent prevailed on "its administrative appeal, " then it "may be prevented from obtaining a judgment from which an appeal may be taken." Convent further claimed that the denial of its motion for judgment on the pleadings or summary judgment was a final order because it disposed of all of its claims, leaving only what the circuit court had "deemed to be an administrative proceeding." Convent also asserted that it was bringing its appeal pursuant to Rule 2(a)(6) of the Arkansas Rules of Appellate Procedure–Civil because the circuit court's denial of its motion for summary judgment constituted a denial of its request for an injunction.

         Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure–Civil provides that an "appeal may be taken from a final judgment or decree entered by the circuit court."[1] This requirement is a jurisdictional requirement. See, e.g., Davis v. Davis, 2016 Ark. 64, at 5. The purpose of the finality requirement is to avoid piecemeal litigation. Id. For a judgment to be final and appealable, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Id. To be final, an order must not only decide the rights of the parties, but also put the court's directive into execution, ending the litigation or a separable part of it. Id. at 5–6.

         Convent asserted in its notice of appeal that it was appealing pursuant to Rule 2(a)(2), which permits an appeal from an "order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action." The circuit court, however, acknowledged in its order that the order had not determined the action, as the court found that there remained genuine issues of material fact to be tried and stated that Convent had not shown that the relief it was requesting would be denied by the circuit court. Thus, the order did not discontinue the action or prevent a judgment from which an appeal might be taken. We further recognize that Convent argues as a point on appeal that the circuit court should have granted its motion for summary judgment. However, the denial of a motion for summary judgment is not an appealable order. See, e.g., Rick's Pro Dive 'N Ski Shop, Inc. v. Jennings-Lemon, 304 Ark. 671, 672, 803 S.W.2d 934, 935 (1991).

         Convent further stated in its notice of appeal that it was appealing pursuant to Rule 2(a)(6), which permits an appeal from an "interlocutory order by which an injunction is granted, continued, modified, refused, or dissolved, or by which an application to dissolve or modify an injunction is refused." As a point on appeal, Convent argues that the circuit court erred in dismissing its claims and denying its request for injunctive relief. However, the circuit court did not make any findings relating to Convent's entitlement to injunctive relief. Accordingly, Rule 2(a)(6) is inapplicable. Malone & Hyde, Inc. v. West & Co. of La., Inc., 300 Ark. 435, 780 S.W.2d 13 (1989) (dismissing an interlocutory appeal that was purportedly brought from an order denying a request for an injunction).

         Convent also stated that it was appealing pursuant to Rule 2(a)(9) of the Arkansas Rules of Appellate Procedure–Civil, which provides that an appeal may be taken from an "order granting or denying a motion to certify a case as a class action in accordance with Rule 23 of the Arkansas Rules of Civil Procedure." Under Rule 2(a)(9) this court has jurisdiction of appeals regarding class certifications. See, e.g., Carquest of Hot Springs, Inc. v. Gen. Parts, Inc., 367 Ark. 218, 223, 238 S.W.3d 916, 919 (2006). The circuit court's denial of Convent's motion for class certification is an appealable order.[2]

         Circuit courts are given broad discretion in matters regarding class certification; we will not reverse a circuit court's decision to grant or deny class certification absent an abuse of discretion. Ark. Dep't of Veterans Affairs v. Mallett, 2015 Ark. 428, at 2, 474 S.W.3d 861, 863. When reviewing a circuit court's class-certification order, this court reviews the evidence contained in the record to determine whether it supports the circuit court's decision. Id. at 3, 474 S.W.3d at 863. Rule 10(c) of the Arkansas Rules of Civil Procedure provides that a "copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes." Rule 10(c) requires that a "copy of any written instrument or document upon which a claim or defense is based shall be attached as an exhibit to the pleading." Further, Rule 43(c) of the Arkansas Rules of Civil Procedure provides that "[w]hen a motion is based on facts not appearing of record, the court may hear the matter on affidavits presented by the respective parties, or the court may direct that the matter be heard wholly or partly on oral testimony or deposition."

         On appeal, Convent argues that the circuit court erred in denying its motion for class certification. On that issue, the court denied the motion based on Convent's failure to present evidence at the hearing. Convent argues that the circuit court should have considered the exhibits attached to the motion for class certification as well as exhibits attached to other pleadings, including its motion for judgment on the pleadings or summary judgment. Convent argues that these exhibits demonstrate that the class should be ...


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