Cite as 2017 Ark. App. 443
ARKANSAS COURT OF APPEALS
DIVISION III
CV-16-148
No.
Opinion Delivered: September 13, 2017
DON PAUL BALES APPEAL FROM THE SEBASTIAN
APPELLANT COUNTY CIRCUIT COURT,
FORT SMITH DISTRICT
V. [NO. 66FCV-15-30]
HONORABLE STEPHEN TABOR,
CITY OF FORT SMITH, ARKANSAS JUDGE
APPELLEE
AFFIRMED
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
Cite as 2017 Ark. App. 443
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
1
The Supreme Court of Arkansas accepted certification of this case to determine
whether it was required by law, pursuant to Ark. Code Ann. § 14-51-308, to hear civil-
service-commission appeals. The supreme court concluded that “civil-service-commission
appeals are not required by law to be heard by the supreme court pursuant to Arkansas
Supreme Court Rule 1-2(a)(8).” Bales v. City of Fort Smith, 2017 Ark. 161, at 4, 518 S.W.3d
76, 78. Therefore, jurisdiction lies in our court to decide this appeal. See also Little Rock
Police Dep’t v. Phillips, 2017 Ark. 165.
2
Cite as 2017 Ark. App. 443
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
3
Cite as 2017 Ark. App. 443
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 Appeals.
(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 of the circuit court
having jurisdiction of 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
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.
4
Cite as 2017 Ark. App. 443
(C) Procedure on Appeal. As soon as practicable after all the parties have
made their initial filing of record materials, the court shall establish a
schedule for briefing, hearings, and any other matters needed to resolve
the appeal.
(Emphasis added.)
In short, section (f) of Rule 9 specifically addresses administrative appeals, but it opens
by directing a person who wishes to appeal an administrative decision to go to the applicable
statute first. Here, the applicable statute is section 14-51-308, which provides in part:
(e)(1)(A) A right of appeal by the city or employee is given from any decision of the
commission to the circuit court within the jurisdiction of which the commission is
situated.
(B)(i) The appeal shall be taken by filing with the commission, within thirty (30)
days from the date of the decision, a notice of appeal. The responsibility of filing an appeal
and paying for the transcript of the proceedings before the municipal civil service
commission shall be borne by the party desiring to appeal the commission’s decision.
(ii) Upon receiving notice of an appeal, the commission will prepare a written
order containing its decision and ensure that the transcript and evidence be made
available for filing in the circuit court once the appealing party has paid the cost of
preparing the transcript.
(Emphasis added.) Section 14-51-308(B)(i) thus provides that the appeal “shall” be taken
by filing a notice of appeal with the Commission within thirty days from the date of the
decision, which then alerts the Commission to prepare a final written order and to get the
record ready for filing in the circuit court.
We begin our discussion by examining whether the thirty-day time limit for Bales
to file his notice of appeal with the Commission began on November 4, 2014, as found by
the trial court, or November 5, 2014, as argued by Bales. It is undisputed the Commission
announced its decision on November 4, 2014, at the conclusion of the two-day hearing.
Also on November 4, 2014, the Commission prepared its initial written order, and it was
5
Cite as 2017 Ark. App. 443
signed by all the commissioners. The Commission’s record keeper also notarized and signed
the order on November 4, 2014.
We are not convinced by Bales’s argument that the initial decision was made “after
business hours” and therefore was not “entered of record” until the next day, i.e., November
5. Section 14-51-308 provides that an appeal of a Commission decision “shall be taken by
filing with the commission, within thirty (30) days from the date of the decision, a notice of
appeal.” (Emphasis added.) The statute does not define “date of the decision,” and it does
not specify that the decision starting the clock is to be “final”—just that an appeal of a
Commission decision shall be taken by filing a notice of appeal with the Commission within
thirty days from the “date of the decision.” We find no clear error with the circuit court’s
finding that the Commission made its initial decision on November 4, 2014, and that the
thirty-day time limit for Bales to file his notice of appeal with the Commission pursuant to
section 14-51-308 was triggered on that date. Even though Bales postmarked his notice of
appeal on December 4, 2014, he did not file it with the Commission until December 5,
2014, which was one day beyond the thirty-day time limit.
Because Bales did not file his notice of appeal with the Commission within thirty
days from the November 4 decision, we next address Bales’s contention that the circuit
court erred in concluding it was thereby deprived of jurisdiction to hear the case because
the filing requirements of section 14-51-308 are jurisdictional. Bales argues that, for
jurisdictional purposes, the only precipitous date in this case was December 11, 2014, when
the Commission’s “final” order, containing its findings of fact and conclusions of law, was
signed. He further contends that his amended notice of appeal, filed on January 12, 2015,
6
Cite as 2017 Ark. App. 443
was therefore timely, noting that January 11 fell on a Sunday that year, which brought
January 12 within Rule 9’s thirty-day time frame. The circuit court disagreed and started
the jurisdictional clock on November 4, 2014, pursuant to section 14-51-308, concluding
that Bales’s failure to file his notice of appeal with the Commission within thirty days from
the initial November 4, 2014 decision prevented the perfection of an appeal to the circuit
court. We agree.
We review a circuit court’s interpretation of statutes and court rules de novo, with
no deference to the circuit court’s interpretation. Evins v. Carvin, 2013 Ark. App. 185, 426
S.W.3d 549. We find no error in the circuit court’s conclusion that it was without
jurisdiction to hear Bales’s case because he failed to satisfy the filing requirements contained
in section 14-51-308.
It is undisputed that compliance with Rule 9’s requirements is mandatory and
jurisdictional, and failure to comply precludes the circuit court from exercising jurisdiction
over an appeal from an administrative decision. Clark v. Pine Bluff Civ. Serv. Comm’n, 353
Ark. 810, 120 S.W.3d 541 (2003). As we have previously discussed, Rule 9 addresses
administrative appeals in subsection (f) and specifically provides: “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, the statutory procedures shall
apply.” As we have also previously discussed, Arkansas Code Annotated section 14-51-308
is the applicable statute with respect to appeals from civil-service-commission decisions.
Although the statute has been quoted at length earlier, we emphasize here that it provides
that if the right of appeal from a Commission decision is to be exercised, “[t]he appeal shall
7
Cite as 2017 Ark. App. 443
be taken by filing with the commission, within thirty (30) days from the date of the decision, a notice
of appeal.” Ark. Code Ann. § 14-51-308(e)(B)(i) (emphasis added). It further provides that
“[u]pon receiving notice of an appeal, the commission will prepare a written order
containing its decision and ensure that the transcript and evidence be made available for
filing in the circuit court once the appealing party has paid the cost of preparing the
transcript.” Id. § 14-51-308(e)(B)(ii). The statute itself does not go further in setting
requirements for what must then be done in circuit court to perfect an appeal to that court.
While not controlling in the instant case because of distinguishable facts and issues,
our supreme court nevertheless provided a helpful discussion in Barrows v. City of Fort Smith,
2010 Ark. 73, 360 S.W.3d 117, concerning the jurisdictional interplay between section 14-
51-308 and Rule 9. The court in Barrows explained that the “right to appeal from a Civil
Service Commission decision, and the procedure for effectuating that appeal, is found in
section 14-51-308 . . . .” Id. at 6, 360 S.W.3d at 121. The court then quoted the pertinent
provisions of section 14-51-308, which we have already done, and further explained that
“the statute does not specify the rules of procedure to be followed to perfect an appeal to
the circuit court after the Commission has issued a written decision and prepared the
transcript.” Id. at 7, 360 S.W.3d at 122. In addressing the resulting statutory hole regarding
procedural rules for perfecting an appeal to circuit court after a Commission has issued its
written decision and prepared the transcript, the court quoted the following holding from
Clark, supra, “Therefore, we hold that once the requirements of Ark. Code Ann. § 14-51-
308(e)(1)(B) have been met, an appeal from a decision of the civil service commission to circuit
court should proceed in accordance with the rules of this court governing an appeal from
8
Cite as 2017 Ark. App. 443
inferior courts.” Id. at 7–8, 360 S.W.3d at 122 (emphasis added). The Barrows court
concluded that “[b]ased on a plain reading of the statute, our court rules, and this court’s
decision in Clark, Barrow’s failure to comply with the statutory requirements for appealing
the Commission’s decision to the circuit court in a timely manner subsequently deprived
the circuit court of jurisdiction over the civil-service appeal.” Id. at 9, 360 S.W.3d at 123.
Because section 14-51-308 and Rule 9 are so interconnected concerning the
procedural requirements for perfecting an appeal from a civil-service-commission decision
to our circuit courts, we hold that the statutory filing requirements with respect to the
Commission are jurisdictional, as is true for Rule 9’s filing requirements with respect to the
circuit court. Accordingly, as is true for Rule 9’s requirements, strict compliance with these
statutory requirements is also necessary, and substantial compliance will not suffice. In filing
his notice of appeal with the Commission even just one day beyond the thirty-day statutory
limit, Bales may have substantially complied, but he did not strictly comply.
Because we agree with the trial court that the time limit imposed in section 14-51-
308 is jurisdictional and that Bales did not comply, it is unnecessary to further address Rule
9 and its subsequent jurisdictional role in perfecting an appeal from the Commission’s
decision to circuit court. See, e.g., Clark v. Pine Bluff Civil Serv. Comm’n, 353 Ark. 810,
815, 120 S.W.3d 541, 544–45 (2003) (holding that “once the requirements of Ark. Code
Ann. § 14-51-308(e)(1)(B) have been met, an appeal from a decision of the civil service
commission to circuit court should proceed in accordance with the rules of this court
governing an appeal from inferior courts.”). Bales’s failure to satisfy the time-limit
9
Cite as 2017 Ark. App. 443
requirements of section 14-51-308 for filing his notice of appeal with the Commission
ended the matter, and the circuit court was correct in concluding it was without jurisdiction.
Finally, we are not persuaded by Bales’s argument that the City’s earlier “concession”
that his appeal to the Commission was timely filed somehow cures the jurisdictional
problem. As noted by the trial court, jurisdictional issues cannot be waived, Russell v.
Arkansas Dep’t of Human Servs., 2014 Ark. App. 734, and jurisdictional challenges may be
raised at any time, Odyssey Healthcare Operating A. LP v. Arkansas Dep’t of Human Servs.,
2015 Ark. App. 459, 469 S.W.3d 381.
Affirmed.
WHITEAKER and HIXSON, JJ., agree.
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.
10