Mmsc, LLC v. Washington County, Arkansas Quorum Court of Washington County, Arkansas Joseph K. Wood, in His Official Capacity as County Judge Dinah Dickerson Caroline Cox Stephenie Foster Marty Matlock And the Highland Community Association

2024 Ark. App. 209

• Court: Court of Appeals of Arkansas
• Decided: March 27, 2024
• Status: Published

Opinion

Cite as 2024 Ark. App. 209 ARKANSAS COURT OF APPEALS DIVISION II No. CV-21-282

MMSC, LLC Opinion Delivered March 27, 2024

APPELLANT APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT V. [NO. 72CV-19-1297]

WASHINGTON COUNTY, ARKANSAS; HONORABLE JOHN C. THREET, QUORUM COURT OF WASHINGTON JUDGE COUNTY, ARKANSAS; JOSEPH K. WOOD, IN HIS OFFICIAL CAPACITY REMANDED AS COUNTY JUDGE; DINAH DICKERSON; CAROLINE COX; STEPHENIE FOSTER; MARTY MATLOCK; AND THE HIGHLAND COMMUNITY ASSOCIATION APPELLEES

ROBERT J. GLADWIN, Judge

This case involves the denial of a conditional-use permit for surface mining in

Washington County. In 2018, MMSC, LLC (“MMSC” or “appellant”), applied for a

conditional-use permit to operate a red-dirt mine on approximately twenty acres in

Washington County. On February 14, 2019, the Washington County planning board

denied MMSC’s conditional-use permit. On April 18, 2019, the quorum court voted to

affirm the planning board’s decision and memorialized that decision in an ordinance. MMSC appealed the quorum court’s action to the Washington County circuit court.

At that point, Dinah Dickerson, Caroline Cox, Stephenie Foster, Marty Matlock, and the

Highland Community Association moved to intervene, and the circuit court granted that

motion.

On February 11, 2021, the circuit court held a final hearing in the matter and entered

its final order on March 17, 2021. The circuit court ruled in favor of the appellees—the

quorum court and the intervenors—holding that the decision to adopt an ordinance denying

appellant’s request for a conditional-use permit was not arbitrary, capricious, or

unreasonable. The circuit court also held that Arkansas Code Annotated section 14-17-211

(Repl. 2013) is unconstitutional because it is a violation of the separation-of-powers clause

in the Arkansas Constitution.

The appellant filed a timely notice of appeal, and the electronic record was lodged on

June 23, 2021. It is 7,091 pages. The first 61 pages are various motions, responses, and replies

that are individually bookmarked. The final 449 pages are also motions, responses, replies,

orders, and letters that are individually bookmarked. The middle 6,581 pages are

bookmarked simply as “Administrative Records Exhibit.”

The 6,581-page “Administrative Records Exhibit” appears to include documents from

the Washington County planning office and planning board, maps, e-mails, deeds, and at

least one affidavit. The documents are not bookmarked, nor is it clear what pleading or other

portion of the record they are related to.

2 Arkansas Rule of Appellate Procedure–Civil 7(b)(1) requires that “[t]he record shall

be saved as searchable and bookmarked portable document format (PDF) files. Bookmarks

shall be made to each document in the record and at the beginning of each witness’s

testimony.”

Last year, this court remanded a case for additional factual findings. Duensing v. Ark.

State Med. Bd., 2023 Ark. App. 226, at 4–5, 666 S.W.3d 133, 136. At the end of the opinion,

the court noted that pages 11 through 457 of the electronic record

includes the transcript from the Board hearing. However, none of the documents or testimony are bookmarked, and the documents do not appear in any type of order. Before a subsequent appeal, we urge the parties to review the rules on electronic records and record contents. . . .[A]nd counsel should carefully review the rules and ensure no other deficiencies exist.

Id. at 7, 666 S.W.3d at 138.

The same deficiencies are present in this electronic record but on a larger scale. Pages

62 through 6,642 are not bookmarked, and the documents do not appear in any type of

order.

For this reason, we remand this case to correct the electronic record. The electronic

record must comply with Rule 7(b)(1) and be refiled within sixty days.

Remanded.

HARRISON, C.J., and THYER, J. agree.

Friday, Eldredge & Clark, LLP, by: Joshua A. Ashley, Kael K. Bowling, and Martin A.

Kasten, for appellant.

3 Noland Law Firm, PA, by: Ross Noland; and Brian Lester and Garrett Harlan, Washington

County Attorneys, for appellees.