In the Matter of the Guardianship of Mackley v. Cir. Ct. of Crawford Cnty

2015 Ark. App. 128

• Court: Court of Appeals of Arkansas
• Decided: February 25, 2015
• Docket: CV-14-598
• Status: Published

Opinion

Cite as 2015 Ark. App. 128

ARKANSAS COURT OF APPEALS DIVISION IV No. CV-14-598

IN THE MATTER OF THE Opinion Delivered February 25, 2015 GUARDIANSHIP OF SCHERRIE MACKLEY, A MINOR, and BECKY APPEAL FROM THE CRAWFORD FOSTER, GUARDIAN; IN THE COUNTY CIRCUIT COURT MATTER OF THE GUARDIANSHIP [NO. 17PR-2003-172; 17PR-2003-171] OF CHEYENNE ENGLISH, A MINOR, and EDDIE ENGLISH, GUARDIAN APPELLANTS HONORABLE GARY R. COTTRELL, V. JUDGE

CIRCUIT COURT OF CRAWFORD COUNTY APPELLEE APPEAL DISMISSED

PHILLIP T. WHITEAKER, Judge

In this consolidated appeal, appellants Scherrie Mackley and Cheyenne English

challenge separate orders from the Crawford County Circuit Court denying their petitions

to terminate guardianships that had been created when they were children. On appeal,

Mackley and English both argue that their guardianships were created solely because of their

minority and that, because their incapacity had been removed, their guardianships should

have been terminated as a matter of law. We are unable to reach this argument for the

reasons set out below, however, and we must dismiss the appeal. Cite as 2015 Ark. App. 128

I. Procedural Background

Both Mackley and English were seriously injured in an accident when they were

minors. As a result of their injuries, they each received settlements of $100,000. Because they

were minors at the time, the circuit court entered orders appointing guardians for each girl;

the girls’ only incapacity was their age. In both cases, the guardians were directed to deposit

the entirety of the settlement funds into a bank account and agreed not to permit any

withdrawals from those deposits except on authority of a circuit court order.

After Mackley and English each reached the age of eighteen, they filed joint petitions

with their respective guardians for termination of the guardianships and release of the money.

Both wards argued that, because they had reached the age of majority, the guardianships

should be terminated by operation of law pursuant to Arkansas Code Annotated section 28-

65-401 (Supp. 2013). Mackley and English filed separate motions for summary judgment on

the issue as well. The circuit court denied both requests for termination: in Mackley’s case,

the court entered an order denying her motion for summary judgment; in English’s case, the

court entered an order denying her petition to terminate.

II. Mackley’s Appeal

As just noted, Mackley’s petition for termination of guardianship was concluded by

the circuit court’s denial of her motion for summary judgment in an order that read as

follows:

On this 23rd day of April, 2014, this matter comes before the Court, the Court being well and sufficiently advised does find as follows:

2 Cite as 2015 Ark. App. 128

1. That this Court denies the Motion for Summary Judgment filed in this matter on April 7, 2014.

It is so ordered.

Under Arkansas Rule of Appellate Procedure–3(e), a notice of appeal must designate

the order, judgment, or decree from which the appeal is taken. Mackley’s notice of appeal

specifically states that she is appealing the “order denying a motion for summary judgment.”

With certain exceptions not applicable here, however, the denial of summary judgment is

generally not an appealable order. Banning v. LNV Corp., 2014 Ark. App. 207; Jenkins v. APS

Ins., LLC, 2013 Ark. App. 746, 431 S.W.3d 356; see also Courtney v. Ward, 2012 Ark. App.

148, at 9, 391 S.W.3d 686, 692 (“The denial of a motion for summary judgment is an

interlocutory order and is not appealable.”). Although such an order may be appealable when

combined with a dismissal on the merits, see Splawn v. Wade, 2014 Ark. App. 151, here, there

is clearly no dispositive language regarding the merits of Mackley’s petition. Because Mackley

has attempted to appeal from an unappealable order, we must dismiss her appeal.

III. English’s Appeal

We must dismiss English’s appeal as well. In this case, the circuit court entered its

order denying English’s joint petition to terminate guardianship on January 26, 2014. The

record reflects that neither a notice of appeal nor any time-extending posttrial motion was

filed within thirty days of this order. The court then entered an amended order on March

14, 2014. English filed a notice of appeal on April 14, 2014, purporting to appeal from “an

3 Cite as 2015 Ark. App. 128

order issued by this court denying the termination of guardianship, entered in this case on

December 1, 2013[1] and a sua sponte order entered on March 14, 2014.”

A timely notice of appeal is essential to this court obtaining jurisdiction. Stacks v.

Marks, 354 Ark. 594, 127 S.W.3d 483 (2003). The failure to file a timely notice of appeal

deprives the appellate court of jurisdiction. Jefferson v. Ark. Dep’t of Human Servs., 356 Ark.

647, 158 S.W.3d 129 (2004). Arkansas Rule of Appellate Procedure–Civil 4 states that “a

notice of appeal shall be filed within thirty (30) days from the entry of the judgment, decree

or order appealed from.” Ark. R. App. P.–Civ. 4(a) (2013). The timely filing of certain

specific motions may extend the time for filing a notice of appeal. Ark. R. App. P.–Civ. 4(b).

The only motions that will extend the time are a motion for judgment notwithstanding the

verdict under Rule 50(b) of the Arkansas Rules of Civil Procedure, a motion to amend the

court’s findings of fact or to make additional findings pursuant to Rule 52(b), a motion for

new trial under Rule 59(a), or any other motion to vacate, alter, or amend the judgment

made no later than ten days after entry of the judgment. Ark. R. App. P.–Civ. 4(b); Reeve

v. Carroll Cnty., 373 Ark. 584, 285 S.W.3d 242 (2008).

The January 26, 2014 order denying English’s petition to terminate the guardianship

was a final, appealable order. See Graham v. Metheny, 2009 Ark. 481, 346 S.W.3d 273. No

1 The body of the order stated that, “Now on this 1st day of December, 2013, comes on for consideration the joint petition to terminate guardianship and release funds.” The file- stamp on the order, however, states that it was filed on January 26, 2014. An order is not entered until it is file-stamped by the clerk. See Ark. Sup. Ct. Admin. Order No. 2(b)(2); Clark v. So. Farm Bur. Cas. Ins. Co., 2014 Ark. App. 391.

4 Cite as 2015 Ark. App. 128

timely appeal was taken from this order, nor were any appropriate posttrial motions filed that

would have either extended the time for filing the notice of appeal or necessitated the circuit

court’s entry of an amended order a month and a half later.2 Because English failed to file a

timely notice of appeal from the court’s final, appealable order, we lack jurisdiction to

consider her appeal.

Appeal dismissed.

HARRISON and VAUGHT, JJ., agree.

Medlock, Gramlich & Sexton, by: M. Jered Medlock, for appellants.

No response.

2 Even if English had filed a time-extending posttrial motion, such a motion would have had to have been filed within ten days of the January 26 order, or by February 7, 2014. (Although the tenth calendar day following January 26, 2014, was February 5, when a period of time prescribed by court rule is less than fourteen days, intermediate Saturdays, Sundays, or legal holidays are excluded from the computation. See Ark. R. Civ. P. 6(a).) Any such hypothetical motion would have been deemed denied thirty days later (or by March 10, 2014) in the absence of action by the circuit court, see Ark. R. App. P.–Civ. 4(b)(1), at which point the circuit court would have lost jurisdiction to act. See Allen v. Allen, 2013 Ark. App. 292.