Ballard v. Ally Financial, Inc.

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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Cite as 2016 Ark. App. 539

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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