Chapter 2 Final Judgments and Appealable Orders

• Library: Handling Appeals in Arkansas (2021 Ed.)

CHAPTER 2 FINAL JUDGMENTS AND APPEALABLE ORDERS E. B. (Chip) Chiles IV and Thomas H. Wyatt

A. Introduction

Arkansas law does not open the doors of the appellate courts for immediate review of all the decisions circuit courts make. Appellate courts instead have jurisdiction over appeals from specific decisions. If a party appeals a decision that is not immediately appealable, the appellate court will dismiss the appeal. Therefore, if your client receives an unfavorable decision and wants to appeal, you must determine whether the decision is immediately appealable or whether further proceedings are required to make the matter appealable. This chapter broadly discusses what decisions are and are not immediately appealable in Arkansas courts.

B. Civil Appeals

Litigants may generally appeal only final judgments or decrees and not interlocutory decisions. ARAP-Civ 2(a)(1). This is a jurisdictional issue the appellate courts will raise on their own. Cockrum v. Fox, 359 Ark. 508, 512, 199 S.W.3d 69, 71 (2004). The purpose of this rule is to avoid piecemeal litigation. Lackey v. Bramblett, 355 Ark. 414, 418-19, 139 S.W.3d 467, 469 (2003). The rule, however, has numerous exceptions. ARAP-Civ 2. So before you file that notice of appeal, consider numbers 1-17 below to determine if the order in your case is immediately appealable.

1. Final Judgments or Decrees

A party may appeal from a "final judgment or decree entered by the circuit court." ARAP-Civ 2(a)(1). What makes a judgment, decree, or order final? If it dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy, then it is final. Fell v. Fell, 2014 Ark. App. 627, at 2. A decision that "puts the court's directive into execution, ending the litigation or a separable branch of it" is a final adjudication. Lackey, 355 Ark. at 419, 139 S.W.3d at 469 (internal quotation marks omitted).

Once you have a final judgment, decree, or order, you can also appeal the circuit court's other rulings: "An appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment." ARAP-Civ 2(b). Likewise, if you appeal the denial of a postjudgment motion under ARAP-Civ 4(b)(1), it "brings up for review the judgment and any intermediate order involving the merits and necessarily affecting the judgment, as well as the order appealed from." ARAP-Civ 2(b). See, e.g., Aka v. Jefferson Hosp. Ass'n, 344 Ark. 627, 638, 42 S.W.3d 508, 515 (2001) (a notice of appeal from a jury verdict also brings up for review a partial summary judgment).

"Matters that are collateral or supplemental to the [circuit] court's judgment" remain within the circuit court's jurisdiction even though a party has appealed from the judgment. Harold Ives Trucking Co. v. Pro Transp., Inc., 341 Ark. 735, 737, 19 S.W.3d 600, 602 (2000). An award of attorneys' fees, for example, is a collateral matter. Id. Thus, an order granting summary judgment on all the claims in the case and awarding attorneys' fees but leaving the amount of fees for later decision is a final, appealable order because the fee issue is collateral to the summary judgment. Id. (See Chapter 5 for important information about notices of appeal.)

Examples of final, appealable orders include:

• an order granting a Rule 12(b)(6) motion to dismiss without prejudice for failing to state facts on which relief may be granted. The plaintiff can appeal or re-plead, but not both, Sluder v. Steak & Ale of Little Rock, Inc., 368 Ark. 293, 298, 245 S.W.3d 115, 118 (2006);
• an order granting summary judgment against the entire complaint, Driggers v. Locke, 323 Ark. 63, 65-67, 913 S.W.2d 269, 270-71 (1996);
• an order of dismissal with prejudice, Hubbard v. Shores Group, Inc., 313 Ark. 498, 501, 855 S.W.2d 924, 927 (1993);
• a decree that orders a judicial sale of property and places the circuit court's directive into execution, Alberty v. Wideman, 312 Ark. 434, 436, 850 S.W.2d 314, 315-16 (1993);
• a decree granting foreclosure, McAdams v. Automotive Rentals, Inc., 319 Ark. 254, 256, 891 S.W.2d 52, 53 (1995);
• a contempt order, Young v. Young, 316 Ark. 456, 460, 872 S.W.2d 856, 858 (1994); and
• a final custody order. ARAP-Civ 2(d).

The following are not final, appealable orders:

• an order denying a motion for a default judgment, DeClerk v. Tribble, 269 Ark. 572, 574, 599 S.W.2d 152, 153 (1980);
• an order denying a motion to dismiss, Lenders Title Co. v. Chandler, 353 Ark. 339, 349, 107 S.W.3d 157, 163 (2003);
• an order denying a motion for summary judgment, Sutter v. King, 310 Ark. 681, 682, 839 S.W.2d 218, 219 (1992);
• an order granting partial summary judgment, Haile v. Arkansas Power & Light Co., 322 Ark. 29, 31-32, 907 S.W.2d 122, 123 (1995);
• an order awarding costs, Warren v. Kelso, 339 Ark. 70, 74, 3 S.W.3d 302, 304 (1999);
• an order fixing venue, Blunt v. Cartwright, 342 Ark. 662, 666, 30 S.W.3d 737, 739 (2000);
• an order denying a motion to recuse, Manila Sch. Dist. No. 15 v. Wagner, 357 Ark. 20, 25, 159 S.W.3d 285, 290 (2004);
• an order granting severance, Lackey v. Bramblett, 355 Ark. 414, 419, 139 S.W.3d 467, 469 (2003); and
• an order denying a motion for a protective order to quash a subpoena, In re Badami, 309 Ark. 511, 513, 831 S.W.2d 905, 906 (1992).

If the decision is not a final judgment, decree, order under ARAP-Civ 2(a)(1) and you still want to appeal now rather than later, there may yet be hope. Some other orders are immediately appealable. So see if your order falls within one of the following categories.

2. Orders that Determine the Action and Prevent a Judgment or Discontinue the Action

A party may appeal from "[a]n order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action." ARAP-Civ 2(a)(2). For example:

• An appeal from a discovery order that compelled church leaders to produce financial data was proper because whether the plaintiffs were entitled to the data was the ultimate issue in the case. If the appellants had complied with the order and the circuit court then concluded at trial that the appellees were not entitled to the data, the appellants could not be placed in their original condition. Gipson v. Brown, 288 Ark. 422, 426, 706 S.W.2d 369, 372 (1986).
• Though an order denying a motion for summary judgment is generally not appealable, it is appealable when the circuit court simultaneously grants the opposing party's cross-motion, which effectively terminates the case. Gammill v. Provident Life & Acc. Ins. Co., 346 Ark. 161, 165, 55 S.W.3d 763, 765 (2001).
• The denial of intervention as of right based on an unprotected interest is appealable under ARAP-Civ 2(a)(2). Cupples Farms Partnership v. Forrest City Prod. Credit Ass'n, 310 Ark. 597, 602, 839 S.W.2d 187, 190 (1992). But an order that denies intervention as a matter of right while granting permissive intervention is not immediately appealable. Duffield v. Benton County Stone Co., Inc., 369 Ark. 314, 316, 254 S.W.3d 726, 728 (2007).

3. Orders that Grant or Refuse a New Trial

A party may appeal from "[a]n order which grants or refuses a new trial." ARAP-Civ 2(a)(3). This rule contemplates an appeal in "cases in which all issues and claims have been presented and decided," not "cases involving multiple issues or claims in which some, but not all, are decided." Rusin v. Midwest Enamelers, Inc., 21 Ark. App. 226, 228, 731 S.W.2d 226, 227 (1987). In the latter situation, the order is not appealable absent compliance with ARCP 54(b). GMAC v. Eubanks, 318 Ark. 640, 646, 887 S.W.2d 292, 295 (1994).

4. Orders that Strike Pleadings

A party may appeal "[a]n order which strikes out an answer, or any part of an answer...