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Bales v. City of Fort Smith

Court of Appeals of Arkansas, Division III

September 13, 2017

DON PAUL BALES APPELLANT
v.
CITY OF FORT SMITH, ARKANSAS APPELLEE

         APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66FCV-15-30] HONORABLE STEPHEN TABOR, JUDGE

          Pinnacle Law Firm, PLLC, by: Matthew D. Campbell, for appellant.

          Daily & Woods, P.L.L.C., by: Colby T. Roe and Wyman R. Wade, Jr., for appellee.

          OPINION

          DAVID M. GLOVER, Judge.

         Don Paul Bales appeals from the Sebastian County Circuit Court's dismissal of his wrongful-termination lawsuit against the City of Fort Smith (the City). The circuit court determined that it was without jurisdiction to hear Bales's case because he had not timely filed his notice of appeal with the Fort Smith Civil Service Commission (Commission). In his appeal to our court, Bales contends 1) the trial court had jurisdiction under Rule 9 of the Arkansas District Court Rules; 2) Arkansas Code Annotated section 14-51-308 (Repl. 2013) is not jurisdictional; and 3) even if the filing requirements of section 14-51-308 are jurisdictional, his notice of appeal to the Commission was in fact timely because the City had previously conceded its timely filing and because the Commission's initial decision and order occurred after the close of business on November 4, 2014, making November 5 the critical date for purposes of filing his appeal with the Commission. Finding no error, we affirm the trial court's dismissal of this case for lack of jurisdiction.[1]

         Bales was fired by the Fort Smith Police Department on October 20, 2014. He appealed his termination to the Commission. Hearings were held before the Commission on November 3 and 4, 2014. The termination was affirmed by oral announcement from the Commission and preparation of an order on November 4, 2014.

         Bales states that he sent his notice of appeal to the Commission, Fort Smith counsel, and the court reporter by mail postmarked December 4, 2014, and that he e-mailed a courtesy copy to the Commission chairman and counsel on December 5, 2014, at 5:35 a.m. The Commission's findings of fact, conclusions of law, and final order are dated December 11, 2014. On January 12, 2015, Bales filed his complaint in circuit court seeking reinstatement as sergeant with the police department. He attached, inter alia, to his complaint both his original notice of appeal to the Commission and an amended notice of appeal, which he filed after the Commission's December 11, 2014 order had been entered. The Commission transcript was lodged in the trial court on February 2, 2015.

         On January 22, 2015, the City filed its first motion to dismiss. In it, the City contended that Bales had not complied with Rule 9 in appealing the Commission's decision to circuit court because neither the complaint (notice of appeal) nor the lodging of the record had been timely under the rule. The parties responded to each other's arguments, and on March 10, 2015, the trial court entered its order denying the City's motion to dismiss, determining that Bales had timely filed his complaint (notice of appeal) and timely lodged the Commission record as required by Rule 9.

         On August 19, 2015, the City filed another motion to dismiss, this time arguing that the trial court was without jurisdiction to hear the case because Bales's initial December 5 notice of appeal to the Commission was not timely. Bales countered by arguing, in part, that the City had conceded in various ways the timeliness of his notice of appeal to the Commission. He further argued that the requirements for filing a notice of appeal with the Commission pursuant to section 14-51-308 were not jurisdictional; rather, it was satisfaction of Rule 9's requirements that established jurisdiction in circuit court. On October 19, 2015, the trial court entered an order concluding that it was without jurisdiction to hear Bales's case because he did not file his notice of appeal with the Commission within thirty days of the Commission's decision as required by section 14-51-308. This appeal to our court followed.

         Bales's three points of appeal are interrelated and can best be discussed together. His basic contention is that the filing requirements of Arkansas Code Annotated section 14-51-308 are not jurisdictional; that section 14-51-308 merely embodies the right to an appeal and the procedure for obtaining a written ruling and a record from the Commission; and that Rule 9 then governs the procedure for establishing jurisdiction in the circuit court. Alternatively, he contends that even if our court should agree that the failure to satisfy the filing requirements of section 14-51-308 deprives a circuit court of exercising jurisdiction over a Commission case, his notice of appeal was, in fact, timely filed with the Commission. We disagree.

Rule 9(f) of the Arkansas District Court Rules provides in pertinent part:
RULE 9. APPEALS TO CIRCUIT COURT
. . . .
(f) Administrative ...

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