Pitchford v. Wright ( 2016 )

Cite as 2016 Ark. App. 111
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-15-712
Opinion Delivered February 17, 2016
FREDERICK LEE PITCHFORD APPEAL FROM THE CRITTENDEN
APPELLANT COUNTY CIRCUIT COURT
[NO. CV-14-350]
V.
HONORABLE MELISSA BRISTOW
NANCY E. WRIGHT, AS ATTORNEY RICHARDSON, JUDGE
IN FACT FOR ALICIA CHRISTINE
EDGIN
APPELLEE APPEAL DISMISSED
WAYMOND M. BROWN, Judge
Appellant Frederick Lee Pitchford, pro se, appeals the trial court’s May 28, 2015
order, which denied appellant’s recusal motion, denied appellant’s motion to dismiss for failure
to state a claim, and granted appellee’s motion for protective order to prevent Alicia Christine
Edgin from testifying in this matter due to a finding that Edgin is not a competent witness.
Appellant argues that the trial court erred and should be reversed. We dismiss because
appellant has failed to appeal from a final order.
Subject to a few exceptions not applicable in this case, Rule 2(a) of the Arkansas Rules
of Appellate Procedure–Civil provides that this court only has jurisdiction to review cases
where a final order has been entered.1 Whether an order is final and appealable is a matter
1
Ark. R. App. P.–Civ. 2(a).
Cite as 2016 Ark. App. 111
going to our jurisdiction; jurisdiction is an issue that we are obligated to raise on our own
motion.2 An order is final if it dismisses the parties from the court, discharges them from the
action, or concludes their rights to the subject matter in controversy.3 The order must put
the judge’s directive into execution, ending the litigation, or a separable branch of it.4
We have held that the denial of a motion to dismiss is not a final order, as the only
matter disposed of by the order is that the case should proceed to trial.5 Additionally, Ark.
R. App. P.–Civ. 2 does not authorize an interlocutory appeal from the denial of a motion to
recuse.6 Thus, appellant’s first two points of appeal are not properly before us because they
are not from a final order.
In granting appellee’s motion for a protective order, the court noted that appellant
could retain a medical doctor to conduct an examination of Edgin and offer the court another
opinion on Edgin’s competency as a witness for further consideration. The court gave
appellant until the final hearing to secure this opinion and present it to the court. The
language of the order clearly contemplates further action by appellant and the court
2
Dobbs v. Dobbs, 99 Ark. App. 156, 258 S.W.3d 414 (2007).
3
Ark. Dep’t of Human Servs. v. J.N., 96 Ark. App. 319, 241 S.W.3d 293 (2006).
4
Id.
5
Evins v. Carvin, 2013 Ark. App. 185, 426 S.W.3d 549 (citing Plunk v. State, 2012
Ark. 362).
6
Manila Sch. Dist. No. 15 v. Wagner, 357 Ark. 20, 159 S.W.3d 285 (2004).
2
Cite as 2016 Ark. App. 111
concerning Edgin’s competency as a witness. As such, the order was not final as to the
protective order.7 Therefore, we dismiss the appeal without prejudice for lack of a final order.
Appeal dismissed.
VAUGHT and HOOFMAN, JJ., agree.
Frederick Lee Pitchford, pro se appellant.
No response.
7
See Yarbrough v. Powell, 2015 Ark. App. 218, 459 S.W.3d 329.
3