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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