Ballard v. Ally Financial, Inc. , 2016 Ark. App. LEXIS 571 ( 2016 )

Cite as 2016 Ark. App. 539
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-16-98
Opinion Delivered November 9, 2016
MEGAN BALLARD APPEAL FROM THE WHITE
APPELLANT COUNTY CIRCUIT COURT
[NO. CV-2014-235]
V.
HONORABLE THOMAS M.
ALLY FINANCIAL, INC. HUGHES, JUDGE
APPELLEE
DISMISSED
BRANDON J. HARRISON, Judge
Megan 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 Ballard’s appeal.
On 26 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.
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Cite as 2016 Ark. App. 539
In 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 February 2016.
Not 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.
We must 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
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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 under the case law. 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.
Caselaw 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
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Cite as 2016 Ark. App. 539
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.
The two 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 the Lemonses.
The appeal is dismissed with prejudice.
Dismissed.
VIRDEN and BROWN, JJ., agree.
Michelle Harkey, for appellant.
Joseph F. Kolb, for appellee.
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