FROM THE WHITE COUNTY CIRCUIT COURT [NO. CV-2014-235]
HONORABLE THOMAS M. HUGHES, JUDGE.
Michelle Harkey, for appellant.
F. Kolb, for appellee.
BRANDON J. HARRISON, Judge.
Ballard appeals the default judgment entered in favor of Ally
Financial, Inc. Ally has filed a motion to dismiss the
appeal, arguing that Ballard has not appealed from a final,
appealable order. We grant the motion and dismiss
June 2014, Ally filed a replevin complaint against Christine
and James Lemons, alleging that the Lemonses bought a 2011
Dodge Challenger in July 2011, that Ally held the sales
contract, and that the Lemonses had defaulted on their
payments. Christine and James Lemons were served with the
complaint in August 2014, but neither party responded. The
same month the Lemonses were served, Ballard, who was not a
named party, filed a statement with the circuit court
indicating that the Dodge Challenger had been left at her
facility for repairs, that the bill had not been paid, and
that she had procured an abandoned title and sold the car.
December 2014, Ally amended its complaint to include Ballard
as a named defendant, and Ballard was served in January 2015.
Ballard failed to answer, and in August 2015, Ally filed a
motion for default judgment against Ballard. In October 2015,
the circuit court entered an order of default judgment
against Ballard for conversion. Ballard filed a notice of
appeal from this order in November 2015. In December 2015,
about one month after the only notice of appeal had been
filed, the circuit court entered a separate order dismissing
the Lemonses without prejudice. Ballard did not amend her
prior notice of appeal, or file a new notice, after the
December 2015 order dismissing the Lemonses had been entered.
Instead, she initiated her appeal with this court by filing
the circuit-court record with this court's clerk in early
long after the record on appeal had been filed, Ally moved to
dismiss this appeal, arguing that this court lacks
jurisdiction because Ballard's only notice of appeal
designated a nonfinal order (the default judgment) and she
did not amend her notice of appeal after the order dismissing
the Lemonses had been filed. Ballard resists Ally's
motion by arguing, among other things, that Ally was
precluded from pursuing any remaining claims against the
Lemonses because a stay was issued in the Lemonses'
separate bankruptcy proceeding; that the conversion claim,
the "meritorious issue on appeal, " had been fully
litigated and was ripe for review; and that the Lemonses'
dismissal was merely a "housekeeping matter" that
did not affect finality. In the alternative, Ballard asks
that her appeal be dismissed without prejudice, if it is
going to be dismissed.
dismiss this appeal because the default judgment, which
Ballard sought to appeal, was not a final order because
Ally's claims against the Lemonses had not been
adjudicated or dismissed when the default judgment was
entered. Vimy Ridge Mun. Water Improvement Dist. No. 139
v. Ryles, 369 Ark. 217, 253 S.W.3d 436 (2007) (holding
that an order is not a final, appealable order when it does
not dispose of the complaints against all of the defendants).
Given the course of events, we dismiss the appeal with,
rather than without, prejudice. When the Lemonses were
dismissed from the case, at Ally's request, a final,
appealable order was created. Once the final order (the
Lemonses' dismissal) was entered, then a timely notice of
appeal was required to vest this court with appellate
jurisdiction. But Ballard did not file a notice of appeal
after the final order had been entered. And it is too late to
do so now.
supports our position. In Driggers v. Locke, 323
Ark. 63, 913 S.W.2d 269 (1996), our supreme court established
that voluntarily dismissing an opposing party can create
finality. Applying Driggers to this case, once the
Lemonses as party defendants were dismissed (even voluntarily
and without prejudice), all parties and the claims against
them were adjudicated, which made, as we have said, the
Lemonses' dismissal the final order from which a notice
of appeal was required. In another case, Winkler v.
Bethel, 362 Ark. 614, 210 S.W.3d 117 (2005), our supreme
court applied Driggers and dismissed an appeal from
a summary-judgment order because a timely notice of appeal
had not been filed after the entry of the subsequent nonsuit
order-the latter order being the one that created finality
and therefore triggered the need to file a timely notice of
appeal from it. So the court in Winkler held that
because the nonsuit order created finality, and a timely
notice of appeal did not follow the nonsuit order, the court
lacked jurisdiction to review the earlier summary-judgment
order that was the true target of the intended appeal. This
case is, in principle, indistinguishable from
Winkler on the appellate-jurisdictional point.
cases Ballard cited to support a dismissal without prejudice,
National Home Centers, Inc. v. Coleman, 370 Ark.
119, 257 S.W.3d 862 (2007), and Labry v. Metropolitan
National Bank, 2012 Ark.App. 189, are distinguishable
because they were appeals from nonfinal orders, and a final,
appealable order had never been entered in those cases. To
dismiss Ballard's appeal without prejudice would run
afoul of supreme court precedent. It would also imply that
some action could be taken in the circuit court to create
finality, but finality was created in this case when the
circuit court entered the December 2015 order that dismissed
appeal is ...