Shirley v. Progressive Car Finance, LLC

Cite as 2017 Ark. App. 110
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-16-229
Opinion Delivered: February 22, 2017
JESSIKA SHIRLEY &
NICOLE SMITH APPEAL FROM THE BENTON
APPELLANTS COUNTY CIRCUIT COURT
[NO. 04CV-15-404]
V. HONORABLE BRAD KARREN,
JUDGE
PROGRESSIVE CAR FINANCE, LLC
DISMISSED
APPELLEE
MIKE MURPHY, Judge
Appellants Jessika Shirley and Nicole Smith bring this appeal from a Benton County
Circuit Court order denying their motion to dismiss for lack of subject-matter jurisdiction.
We dismiss this appeal without prejudice for lack of a final and appealable order as required
by Arkansas Rule of Appellate Procedure–Civil 2 and Arkansas Rule of Civil Procedure
54(b).
The matter before us stems from a default judgment entered in the small-claims
division of the District Court of Benton County, Arkansas, Rogers Division. The relevant
parties are appellants Shirley and Smith and appellee Progressive Car Finance, LLC
(Progressive). Shirley and Smith originally appealed to the circuit court from a district court
order granting a default judgment in the amount of $5,000 against Shirley and Smith. Shirley
Cite as 2017 Ark. App. 110
and Smith timely filed their appeal to the circuit court, but they did not timely file an answer
as required by Rule 9 of the Arkansas District Court Rules. On May 11, 2015, after the
time for Shirley and Smith to answer had expired, Progressive filed a motion for default
judgment in the circuit court. On May 20, 2015, Shirley and Smith filed motions for leave
to file an answer and to dismiss. On June 1, 2015, a hearing was held, and Shirley and Smith
withdrew the portion of the pleading requesting leave to file an answer, leaving before the
court their motion to dismiss for lack of subject-matter jurisdiction. On September 18, 2015,
the circuit court entered an order denying the motion to dismiss. On October 19, 2015,
Shirley and Smith filed their notice of appeal from the September 18 circuit court order.
However, an order granting Progressive’s default judgment was entered on October 27,
2015. Progressive filed a motion to dismiss the appeal for lack of a final order because Shirley
and Smith did not appeal from the October 27 order.
Arkansas Rule of Appellate Procedure–Civil 2(a)(1) provides that an appeal may be
taken only from a final judgment or decree entered by the circuit court. Arkansas Rule of
Civil Procedure 54(b) provides that when more than one claim for relief is presented in an
action or when multiple parties are involved, an order that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties is not a final, appealable order.
Miracle Kids Success Acad., Inc. v. Maurras, 2016 Ark. App. 445, at 2–3, 503 S.W.3d 94, 95.
Rule 54(b) allows a circuit court, when it finds no just reason for delaying an appeal, to
direct entry of a final judgment as to fewer than all the claims or parties by executing a
certification of final judgment as it appears in Rule 54(b)(1). Ark. R. Civ. P. 54. However,
absent this required certification, any judgment, order, or other form of decision that
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adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties
shall not terminate the action. Miracle Kids, supra. No such certification was made in this
case.
The circuit court did not address Progressive’s motion for default judgment until the
October 27 order when it granted the motion, which was after Shirley and Smith filed their
appeal. Shirley and Smith assert that jurisdiction was the only issue on appeal before the
circuit court and that the October 27 order granting Progressive’s motion for default
judgment was superfluous. Shirley and Smith argue that these damages did not need to be
addressed as evidenced by the fact that Progressive had been executing on the small-claims
division judgment since its issuance and throughout the litigation, so when the circuit court
denied Shirley and Smith’s motion to dismiss, execution on the small-claims judgment
continued as it had throughout. We disagree.
Generally, the denial of a motion to dismiss is not an appealable order under Arkansas
Rule of Appellate Procedure–Civil 2. Lenders Title Co. v. Chandler, 353 Ark. 339, 349, 107
S.W.3d 157, 163 (2003). We recognize an exception to the Rule 2 requirement that the
order be final in cases where the interlocutory order, though not final, had the practical
effect of a final ruling on the merits. Ford Motor Co. v. Harper, 353 Ark. 328, 331, 107
S.W.3d 168, 169 (2003) (citing Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369 (1986)). In
Gipson, appellees sought disclosure of financial data and other business information relating
to their church. 288 Ark. 422, 706 S.W.2d 369. The circuit court upheld appellees’
discovery requests seeking the same financial and business information, which was the object
of the lawsuit. Id. Appellants appealed from that court’s interlocutory order compelling
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discovery. Id. Our supreme court noted that the appeal was properly taken because the
discovery order was the equivalent of a decision on the merits. Id. at 426–27, 706 S.W.2d
at 372.
Unlike Gipson, this case does not fit the exception because the September order
denying the motion to dismiss did not completely end the litigation. Arkansas Rule of Civil
Procedure 55(b) provides, “If, in order to enable the court to enter judgment or to carry it
into effect, it is necessary to take an account or to determine the amount of damages or to
establish the truth of any averment by evidence or to make an investigation of any other
matter, the court may conduct such hearings as it deems necessary and proper.” Even if
Shirley and Smith had no intention of challenging the $5,000 damages, they could have
requested a hearing on damages; thus there were potential issues left to be litigated.
Additionally, even though the circuit court awarded the same amount of money in the
default judgment as the judgment from the district court, it was not bound by that amount
and could have potentially awarded a different amount. Therefore, because the order
denying the motion to dismiss did not resolve the contingency so as to dismiss the parties
or have the practical effect of concluding the litigation, we decline to reach the merits of
this case and dismiss this appeal without prejudice for lack of a final order.
Dismissed.
WHITEAKER and VAUGHT, JJ., agree.
George B. Morton, for appellants.
Shemin Law Firm, PLLC, by: Kenneth R. Shemin; R. Jeffrey Reynerson, PA, by: R.
Jeffrey Reynerson; and Lax, Vaughan, Fortson, Rowe & Threet, P.A., by: Grant E. Fortson, for
appellee.
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