Pockrus v. Morris

2017 Ark. App. 293

Opinion

Cite as 2017 Ark. App. 293

ARKANSAS COURT OF APPEALS DIVISION IV No. CV-15-974

SIMON POCKRUS Opinion Delivered May 10, 2017 APPELLANT APPEAL FROM THE BENTON COUNTY V. CIRCUIT COURT [NO. CV-14-741] VICTORIA MORRIS APPELLEE HONORABLE BRAD KARREN, JUDGE

DISMISSED WITHOUT PREJUDICE

BRANDON J. HARRISON, Judge

Simon Pockrus sued his former attorney Victoria Morris for legal malpractice arising

out of her representation of him in divorce proceedings. He appeals a jury verdict in favor

of Victoria, but we lack jurisdiction over the appeal and must dismiss it.

This litigation began when Victoria sued Simon seeking payment for her outstanding

bill for legal services. Simon counterclaimed, alleging legal malpractice and suing for breach

of contract, fraud, negligence, and breach of fiduciary duty. On the eve of trial, Victoria

dismissed without prejudice her request for outstanding legal fees pursuant to Arkansas Rule

of Civil Procedure 41(a). The case proceeded to a jury trial on Simon’s counterclaim, and

the jury rendered a verdict in Victoria’s favor that was reduced to judgment. Simon

appealed.

Here we address whether the voluntary dismissal of Victoria’s complaint against

Simon pursuant to Arkansas Rule of Civil Procedure 41(a) was sufficient to achieve finality Cite as 2017 Ark. App. 293

when coupled with the subsequent jury verdict against Simon’s counterclaim. A final order

is necessary for this court to have jurisdiction on appeal. Ark. R. App. P.–Civ. 2(a)(1);

Cherry v. Cherry, 2017 Ark. App. 245 (per curiam). Pursuant to Arkansas Rule of Civil

Procedure 54(b), an order or judgment is not considered final and appealable unless it

disposes of all the parties and all the claims. Bevans v. Deutsche Bank Nat’l Tr. Co., 373 Ark.

105, 281 S.W.3d 740 (2008). In Bevans, our supreme court considered whether the

voluntary dismissal of a compulsory counterclaim was sufficient to achieve finality and

determined that it was not. Id. The court reasoned that a voluntary nonsuit leaves a party

free to refile his or her claim, and “if a party is free to refile his or her compulsory

counterclaims that arise out of the same transaction or occurrence as claims that are decided

by the circuit court, the possibility for piecemeal litigation exists.” Id. at 109, 281 S.W.3d

at 744. This case is different procedurally because it deals with a plaintiff’s nonsuited

complaint instead of a defendant’s nonsuited compulsory counterclaim, but the

jurisdictional principle here is essentially the same as in Bevans.

Arkansas Rule of Civil Procedure 41(a) gives Victoria the right to refile her claim

against Simon. Because she may refile her claim, the circuit court’s order is not final.

Dismissed without prejudice.

GLADWIN and MURPHY, JJ., agree.

Harry McDermott, for appellant.

Burke Law Firm, P.A., by: Brian T. Burke, for appellee.