WALTER A. MCCULLOUGH PETITIONER
WENDY KELLEY, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION, TERRI BANISTER, KEITH L. WADDLE, T. ALLISON, AND L. BELL RESPONDENTS
MOTION FOR BELATED APPEAL [JEFFERSON COUNTY CIRCUIT COURT,
NO. 35CV-17-119] HONORABLE JODI RAINES DENNIS, JUDGE
JOSEPHINE LINKER HART, Associate Justice.
Walter A. McCullough asks this court to allow him to proceed
with the appeal of an order that dismissed his pro se
petition for declaratory judgment and mandamus relief.
Because the order that McCullough would appeal is not a
final, appealable order, we deny the motion.
is an inmate incarcerated in the Arkansas Department of
Correction (ADC). He filed his petition in circuit court
alleging due-process violations in the respondents'
conduct and the implementation of disciplinary procedures
against him for violation of ADC policy. On July 13, 2017,
the circuit court dismissed the petition without prejudice
under Arkansas Rule of Civil Procedure 4(i) (2017), finding
that McCullough had failed to serve the defendants as
required. McCullough filed his notice of appeal of that order
on October 19, 2017.
the record was submitted, our clerk declined to lodge the
record on appeal because the notice of appeal was not timely
filed. Under Arkansas Rule of Appellate Procedure-Civil 4(a)
(2017), McCullough was required to file his notice of appeal
within thirty days of the date of the entry of the order to
be appealed unless an extension of time was granted in accord
with the rule. The record does not contain an order granting
an extension of time, and McCullough filed his pro se notice
of appeal ninety-eight days after the entry of the order
dismissing the petition.
Arkansas Rule of Appellate Procedure-Criminal 2(e) (2017),
this court may act upon and decide a case in which the notice
of appeal was not filed in the time prescribed when a good
reason for the omission is shown. Although there is no
comparable provision in our procedural rules for civil cases,
this court treats declaratory-judgment proceedings as
applications for postconviction relief in those instances in
which a prisoner seeks relief from the conditions of his
incarceration. Brown v. State, 2017 Ark. 232, 522
S.W.3d 791. Even if McCullough has a right to appeal a final
decision on his petition, however, this court does not have
jurisdiction over the appeal of the order at issue. We
therefore need not consider whether the circumstances here
excuse the delay in filing the notice of appeal.
some exceptions, none of which is applicable in the instant
case, our rules of appellate procedure allow for an appeal to
be taken from a circuit court to this court only when the
order is a final judgment on the merits. Ark. R. App. P.-Civ.
2(a)(1). For an order to be final and appealable, it must
terminate the action, end the litigation, and conclude the
parties' rights to the matter in controversy. Beverly
Enters.-Ark., Inc. v. Hillier, 341 Ark. 1, 14 S.W.3d 487
(2000). The order must be of such a nature as to not only
decide the rights of the parties, but also put the
court's directive into execution, ending the litigation
or a separable part of it. Petrus v. Nature
Conservancy, 330 Ark. 722, 957 S.W.2d 688. Whether an
order is final and subject to appeal is a jurisdictional
question that the court will raise on its own. Henson v.
Cradduck, 2017 Ark. 317, 530 S.W.3d 847.
4(i) is mandatory; where service is not made on a defendant
within 120 days of the filing of the complaint, a circuit
court must dismiss the action without prejudice to refiling
those claims. See Jordan v. Circuit Court of Lee
Cty., 366 Ark. 326, 235 S.W.3d 487 (2006). Because a
plaintiff who has his case dismissed without prejudice under
Rule 4(i) may refile those claims, his position after the
dismissal is no different than that of a plaintiff who
voluntarily nonsuits his claims. A party may refile his
nonsuited claims, and, consequently, the order granting a
motion to nonsuit is not a final, appealable order. See,
e.g., Beverly Enters.-Ark., Inc., 341 Ark. 1,
14 S.W.3d 487. When the plaintiff may refile his or her
claims, the order appealed from is not a final, appealable
order. Bevans v. Deutsche Bank Nat'l Trust Co.,
373 Ark. 105, 281 S.W.3d 740 (2008).
McCullough was allowed under the procedural rules to refile
his claim after his petition had been dismissed, the order he
would appeal is not a final, appealable order. This court
therefore does not have appellate jurisdiction, and we