Ludwig v. Bella Casa, LLC

• Decision Date: 11 November 2010
• Docket Number: No. 09–1278.,09–1278.
• Citation: 372 S.W.3d 792,2010 Ark. 435
• Parties: Gene LUDWIG, Appellant, v. BELLA CASA, LLC; Beau Vue Estates Property Owners' Ass'n; Terry Fleming; Ken Shollmier; Jim Butenschoen; George Ivory; Jon Jacoby; Oscar Dyer, Jr.; Shelia McHaffy; Richard Evans; Bryan Dietz; Louis Bianco; Ruby Nelson; Tommy Ready; Reginald & Latina Martin; Freddie N. Smith; Dr. Tommy & Gloria Love; and Brenda Norwood, Appellees.
• Court: Arkansas Supreme Court

2010 Ark. 435

372 S.W.3d 792

Gene LUDWIG, Appellant,

v.BELLA CASA, LLC; Beau Vue Estates Property Owners' Ass'n; Terry Fleming; Ken Shollmier; Jim Butenschoen; George Ivory; Jon Jacoby; Oscar Dyer, Jr.; Shelia McHaffy; Richard Evans; Bryan Dietz; Louis Bianco; Ruby Nelson; Tommy Ready; Reginald & Latina Martin; Freddie N. Smith; Dr. Tommy & Gloria Love; and Brenda Norwood, Appellees.

No. 09–1278.

Supreme Court of Arkansas.

Nov. 11, 2010.

Gene Ludwig, Little Rock, pro se.

Davidson Law Firm, Ltd., by: Matthew D. Wells and Charles Darwin “Skip” Davidson, Little Rock, for appellees.

JIM GUNTER, Justice.

Appellant Gene Ludwig appeals from the judgment of the Pulaski County Circuit Court permanently enjoining him from creating a private airstrip on his residential property in a rural area of Pulaski County. We granted certification of this case from the court of appeals because it involves an issue of first impression and an issue of law needing clarification or development. Therefore, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1–2(b)(1), (5).

On appeal, Ludwig asserts two points of error: (1) that the circuit court erred in granting a jury trial at the request of appellees,¹ and (2) that the circuit court erred in denying certain jury instructions proffered by appellant. We reverse and remand on the first point and affirm on the second.

Appellant, who owns land in Western Pulaski County near Pinnacle Mountain, built a private airstrip on his property for the purpose of flying his personal airplane. After the Little Rock Planning and Development Department (“the Department”) received notice of construction activity on appellant's property, it sent a compliance officer to investigate. After discovering that appellant was constructing a private airstrip, the Department issued a notice to appellant that he was not in compliance with zoning ordinances and instructed him to remove the construction within ten days. Appellant appealed that notice to the Little Rock Board of Zoning Adjustment (“the Board”). During a hearing before the Board where appellant was allowed to present his position, the Board determined that appellant's construction was not an “airport or landing field” as defined by zoning ordinances and that his construction was for “private recreational use.”

On September 27, 2007, appellees filed a Third Amended Complaint in Pulaski County Circuit Court appealing from the Board's decision in appellant's favor and stating a claim against appellant for private nuisance. Appellees attached the certified minutes of the Board's decision to the complaint. Appellees requested a preliminary and a permanent injunction, declaratory judgment, and an award of costs and reasonable attorney's fees. On February 4, 2008, appellant filed a Motion for Trial to Be Heard by the Trial Judge Sitting as Finder of Fact and Law in which he maintained that appellees were not entitled to a jury trial. In an order filed February 12, 2008, the circuit court declared that appellant's motion was untimely per the scheduling order. However, at a hearing on February 25, 2008, counsel for all parties argued the jury-trial issue. The court took the matter under advisement. The next day, the court again addressed the jury-trial issue at a hearing. Apparently, the circuit court handed down its ruling on the jury issue at this February 26 hearing; however, the court's recording device and backup recording device were not functioning, and there is no record of that bench ruling. However, it is evident from the record that the court went forward with impaneling a jury.

The trial was conducted February 26–29, 2008. Along with other standard jury instructions, three special interrogatories were submitted to the jury. Answering those interrogatories, the jury found that appellant's construction of the landing strip did not constitute an “airport or landing field” as defined by the Little Rock Municipal Code; that his proposed use of the landing strip was not for “private recreational use” as defined by the Little Rock Municipal Code; and that a preponderance of the evidence supported that his landing strip was a nuisance. The circuit court entered a judgment on March 6, 2008, stating that the jury “was seated to hear the legal causes of action and issues with the court sitting as the finder of fact concerning the equitable issues and relief.” The judgment also noted that over appellant's objection, the court determined that Ark.Code Ann. § 14–56–425 allowed for a jury trial in this instance and that the nuisance cause of action was also triable to a jury even where the only relief requested was injunctive. Citing to the jury's findings on the three interrogatories, the court permanently enjoined appellant from operating or permitting the operation of his landing strip for the purpose of air travel.

For his first point on appeal, appellant asserts that the circuit court erred in submitting all issues to a jury rather than the trial judge sitting as finder of fact and concluder of law. He argues that, because the only remedy sought by appellees on their claims was injunctive relief, they were not entitled to a jury trial. Appellant claims that a “jury cannot hear equitable causes of action.” In response, appellees contend that they were entitled to a jury trial on both the de novo appeal from the Board's decision and the nuisance claim. Appellees claim that they had a right to a jury trial on the statutory appeal from the Board's decision under Ark.Code Ann. § 14–56–425. They also maintain that they had a common-law right to a jury trial on the nuisance claim, or in the alternative, this court should adopt a “flexible approach” to determining whether the right to a jury trial exists following the passage of amendment 80 of the Arkansas Constitution.

Entitlement to a jury trial is a legal issue centered on constitutional interpretation and is reviewed de novo on appeal. See First Nat'l Bank of DeWitt v. Cruthis, 360 Ark. 528, 203 S.W.3d 88 (2005). The constitutional right to a jury trial is limited to those cases which were so triable at common law. Baptist Health v. Murphy, 2010 Ark. 358, 373 S.W.3d 269. This court has clearly stated that article 2, section 7 of the Arkansas Constitution does not assure the right to a jury trial in all possible instances, but rather in those cases where the right to a jury trial existed “when our constitution was framed.” Cruthis, 360 Ark. at 534, 203 S.W.3d at 92 (quoting Jones v. Reed, 267 Ark. 237, 590 S.W.2d 6 (1979)). Furthermore, the right to a jury does not apply to new rights created by the legislature since the adoption of the constitution. Id. at 535, 203 S.W.3d at 92. However, where a cause of action did not exist at common law, but is entirely a creature of statute, it exists in the manner and form prescribed by the statute which created it. St. Paul Mercury Ins. Co. v. Cir. Ct. of Craighead Cnty., 348 Ark. 197, 73 S.W.3d 584 (2002).

Appellees claim that they are entitled to a jury trial on the de novo appeal of the Board's decision pursuant to the plain language of Ark.Code Ann. § 14–56–425 (Repl.1998),² which provides that, [i]n addition to any remedy provided by law, appeals from final action taken by the administrative and quasi-judicial agencies concerned in the administration of this subchapter may be taken to the circuit court of the appropriate county where they shall be tried de novo according to the same procedure which applies to appeals in civil actions from decisions of inferior courts, including the right of trial by jury.

When reviewing issues of statutory interpretation, we are mindful that the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Cave City Nursing Home, Inc. v. Ark. Dep't of Human Servs., 351 Ark. 13, 89 S.W.3d 884 (2002). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Id. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Id. When a statute is clear, however, it is given its plain meaning, and this court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language. Id. This court is hesitant to interpret a legislative act in a manner contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent. Id.

Here, the plain language of § 14–56–425 says that appeals taken from final actions of administrative agencies are appealed to the circuit court and should be tried de novo pursuant to normal procedures, including the right to a jury trial. The language of the statute is not ambiguous; therefore, it is not necessary for this court to resort to identifying legislative intent. The statute is exclusive to appeals from administrative or quasi-judicial zoning agencies; it involves no other types of actions. There was no right to a jury trial at common law for these types of cases because these agencies did not exist at common law and are creatures of statute. In drafting the statute, the legislature specifically and clearly intended the right to a jury trial to attach to these types of claims. Therefore, because the plain language of the statute confers a jury trial in these types of appeals to circuit court, it was not error for the circuit court to submit the fact issues regarding the statutory appeal to the jury.

Appellant also argues that appellees were not entitled to a jury trial on the nuisance claim because the only relief requested was equitable—an injunction. Appellees, however, maintain that after the adoption of amendment 80 in November 2000, which merged courts of equity and law, ...