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Ballesteros v. Roney

Supreme Court of Arkansas

October 9, 2014

JOSE EDUARDO BALLESTEROS, APPELLANT
v.
TYLER RONEY, APPELLEE

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT. NO. CV 13-804-5. HONORABLE XOLLIE DUNCAN, JUDGE.

Ken Swindle, for appellant.

Robertson, Beasley & Ford, PLLC, by: Jacqueline Forsgren Cronkhite, for appellee.

JIM HANNAH, Chief Justice.

OPINION

Page 549

JIM HANNAH, Chief Justice

This is an appeal from orders granting a stay of a pending personal-injury case pursuant to the Servicemembers Civil Relief Act, 50 App. U.S.C. § § 501 to-515, 516 to-597(b) (" SCRA" ). Following a motor-vehicle accident, appellant, Jose Eduardo Ballesteros, filed negligence suit against appellee, Tyler Roney. On September 17, 2013, Roney filed an " Application for Stay of Proceedings," pursuant to section 522(b) of the SCRA. In his application, Roney stated that he was currently serving on active duty, assigned to Marine Corps Base Camp LeJeune, near Jacksonville, North Carolina, and that because of his active-duty status, " his ability to prepare a defense and to appear for depositions and in court is materially affected." Roney requested a stay of the proceedings for the entire period of his military service or, alternatively, for a period of time not less than the statutory minimum of ninety days. In support of his application, Roney submitted an " Affidavit of Servicemember," in which he explained why he believed he was entitled to a stay, and " Original Orders," signed by his commanding officer. The circuit court granted Roney's application in two orders entered on September 19, 2013: one stating that the matter was " closed until the Defendant's active duty military service is completed and a Motion to Reopen is filed by either party," and the other stating that the matter was " stayed in all respects, including discovery, for the length of time equal to Defendant's military service."

On September 23, 2013, Ballesteros filed a " Motion and Brief to Extend Time for Service of Process, Response to Defendant's Application for Stay of the Proceedings, and Motion for Reconsideration of Order," in which he requested an order to extend time to complete service of process; contended that Roney had not complied with the SCRA and, therefore, his application for stay should be denied; and asserted that, because the relief granted by the circuit court was not in compliance with the SCRA, the circuit court should reconsider and withdraw its orders granting the stay. On October 14, 2013, Ballesteros filed a notice of appeal of the stay orders entered on September 19, 2013, and he filed an amended notice of appeal on October 24, 2013, to include all orders, if any, made within thirty days of his " Motion and Brief to Extend Time for Service of Process" filed on September 23, 2013.[1] Ballesteros originally appealed to the Arkansas Court of Appeals, which recommended certification to this court because the case involved a significant issue needing clarification or development of the law. This court accepted certification, and our jurisdiction is proper pursuant to Arkansas Supreme Court Rule 1-2(b)(5) (2014).

Page 550

For reversal, Ballesteros contends that the circuit court abused its discretion in granting the application for stay because Roney failed to meet the requirements for a stay under the SCRA. Roney responds that this appeal must be dismissed because an order granting or denying a stay pursuant to the SCRA is not a final order from which an appeal can be taken. Based on this court's precedent, we agree.

In Piercy v. Baldwin, 205 Ark. 413, 168 S.W.2d 1110 (1943), the trial court granted a stay of the proceedings, pursuant to the Soldiers' and Sailors' Civil Relief Act,[2] to a servicemember and his wife who were defendants in a civil action and denied the plaintiff's request to proceed to trial against other defendants in the action. On appeal, the plaintiff-appellant contended that the trial court abused its discretion in granting the motion for stay and in refusing to allow him to move to trial against the other defendants-appellees. We dismissed the appeal, explaining,

We can not decide these questions for the reason that the appeal has been prematurely brought and we are without jurisdiction. The order from which this appeal comes is in no sense a final order, from which an appeal may be prosecuted. In effect, the order continues the cause during the military service of appellee, Luther Baldwin, and for three months thereafter. The cause has not been tried on its merits but is still pending. In Harlow v. Mason, 117 Ark. 360, 174 S.W. 1163, this court quoting from an earlier case, said: " A judgment, to be final, must dismiss the parties from the court, discharge them from the action or conclude their rights to the subject-matter in controversy. Bank of the State v. Bates, 10 Ark. 631; Campbell v. Sneed, 5 Ark. 398, 399."

Piercy, 205 Ark. at 415, 168 S.W.2d at 1111.[3]

Here, Ballesteros's appeal, like the appeal in Piercy, is premature. The orders granting a stay are not final orders from which an appeal may be taken; therefore, we must dismiss the appeal.[4] Because we dismiss the appeal, we do not consider Ballesteros's argument that the circuit court erred in granting the application for stay without first allowing him time to respond to the application, nor do we consider

Page 551

his argument that the circuit court " erred in not extending" time for him to effect service.

Appeal dismissed.


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