Cherry v. Cherry
2017 Ark. App. 245
| Ark. Ct. App. | 2017Background
- William B. Cherry filed a timely appeal from a February 3, 2016 circuit-court order; Rhonda Cherry filed a timely cross-appeal.
- William’s appellate briefing deadline was set and extended, but no brief was filed after his counsel died and the court could not contact William.
- The Court of Appeals dismissed William’s direct appeal on November 2, 2016 for failure to prosecute and allowed the cross-appeal to proceed.
- Rhonda filed her cross-appellant brief; William later obtained new counsel and sought extensions to file a cross-appellee brief.
- William moved to dismiss the cross-appeal without prejudice and to modify the dismissal of his direct appeal to be without prejudice, arguing the circuit court’s February 3 order was not final because his counterclaim remained unresolved.
- The Court of Appeals agreed the trial-court order was not final (a counterclaim remained outstanding) and therefore modified the direct-appeal dismissal to be without prejudice and dismissed the cross-appeal without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the February 3, 2016 order was a final, appealable order | William: order is not final because his counterclaim remains unresolved | Rhonda: (implicit) the order could be treated as final and cross-appeal proceed | Court: order is not final because all claims (including the counterclaim) were not disposed of |
| Whether the cross-appeal may proceed despite an outstanding counterclaim | William: cross-appeal should be dismissed without prejudice until final decree | Rhonda: cross-appeal should be allowed to proceed after direct appeal dismissal | Court: cross-appeal dismissed without prejudice; may be refiled after entry of a final decree |
| Whether the prior dismissal of the direct appeal should be with or without prejudice | William: request modification to dismiss direct appeal without prejudice | Rhonda: (implicit) prior dismissal stands as ordered | Court: modified dismissal of direct appeal to be without prejudice |
| Whether William’s failure to include an abandonment statement affects finality | William failed to state abandonment in his notice of appeal | Rhonda: not argued here | Court: notes William did not include abandonment statement per Ark. R. App. P.–Civ. 3(vi); ultimate disposition based on outstanding counterclaim |
Key Cases Cited
- Spears v. Spears, 2012 Ark. App. 181 (disposition of all claims by written order is required for finality)
- Bulsara v. Watkins, 2010 Ark. 453 (same rule on finality of judgments)
- Lamco Ltd. P’ship II v. Pasta Concepts, Inc., 2012 Ark. App. 145 (courts must dispose of all claims to create final order)
- Berry v. Moon, 2011 Ark. App. 78 (dismissals without prejudice appropriate where order is not final)