Cherry v. Cherry

2017 Ark. App. 245

• Court: Court of Appeals of Arkansas
• Decided: April 19, 2017
• Docket: CV-16-549
• Status: Published

Opinion

Cite as 2017 Ark. App. 245

ARKANSAS COURT OF APPEALS No. CV-16-549

Opinion Delivered April 19, 2017

APPEAL FROM THE COLUMBIA WILLIAM B. CHERRY COUNTY CIRCUIT COURT APPELLANT [NO. 14DR-14-245]

V. HONORABLE MICHAEL R. LANDERS, JUDGE

RHONDA MARLENE CHERRY (NOW MOTION GRANTED; DIRECT FULKROAD) APPEAL DISMISSAL MODIFIED TO APPELLEE BE WITHOUT PREJUDICE; CROSS- APPEAL DISMISSED WITHOUT PREJUDICE

PER CURIAM

This appeal was commenced by William Cherry when he filed a timely notice of appeal

from the February 3, 2016 “final order” of the Columbia County Circuit Court. Rhonda Cherry

filed a timely cross-appeal. The record was lodged and the clerk of our court set a briefing

schedule with William’s brief due on July 27, 2016. After extensions, William’s brief was due

on September 2, 2016.

When no brief was filed by William, Rhonda filed a motion to proceed on the cross-

appeal. Subsequently, our court received a letter from the widow of William’s attorney advising

our court that William’s attorney had passed away and recommending that William obtain new

counsel. The clerk of this court attempted, unsuccessfully, to contact William to confirm that

he was pursuing the appeal. When no brief or motion to extend was filed on William’s behalf, Cite as 2017 Ark. App. 245

our court, on November 2, 2016, dismissed William’s appeal and authorized the case to go

forward on Rhonda’s cross-appeal.

Rhonda’s cross-appellant brief was filed on December 20, 2016. William’s cross-

appellee brief was due on January 26, 2017. On January 13, 2017, an entry of appearance by

Karen Talbot Gean was filed on behalf of William. A request for an extension to file a cross-

appellee brief was granted, and William’s brief was due March 27, 2017.

On March 16, 2017, William filed a “motion to dismiss the cross-appeal without

prejudice and amend order dismissing direct appeal to provide that such dismissal is also

without prejudice, or in the alternative to dismiss the cross-appeal with prejudice, or in the

second alternative to reinstate the direct appeal, and motion to stay briefing schedule or extend

brief time.” The principle argument, with which we agree, is that the purported “final order”

entered by the circuit trial court on February 3, 2016, is not a final order because it does not

dispose of the counterclaim filed by William.

Our court and the supreme court have consistently held that in order to achieve finality

all claims must be disposed of by written order, even if it appears that the court’s order

rendered an outstanding claim moot or impliedly dismissed. Spears v. Spears, 2012 Ark. App.

181, at 2 (citing Bulsara v. Watkins, 2010 Ark. 453; Lamco Ltd. P’ship II v. Pasta Concepts, Inc.,

2012 Ark. App. 145). Because a counterclaim remains outstanding in this case, we must dismiss

the cross-appeal without prejudice to refile upon entry of a final decree. Id. (citing Berry v. Moon,

2011 Ark. App. 78). 1

1Williamdid not include a statement in his notice of appeal that he abandoned any pending but unresolved claims. Ark. R. App. P. –Civ. 3(vi) (2016). 2 Cite as 2017 Ark. App. 245

The dismissal of the direct appeal is modified to reflect that it is without prejudice, and

the cross-appeal is dismissed without prejudice.