Callaway v. Abshure, 2013 Ark. App. 21

APPEAL DISMISSED

WAYMOND M. BROWN, Judge

The Arkansas Securities Commissioner, appellee Heath Abshure, filed a complaint against appellant Rodney Callaway and two companies of which Callaway was an officer, Heritage Corner, Ltd., and Heritage Funding Group, Inc. The Commissioner alleged that Callaway, a Georgia resident, sold an unregistered security to an Arkansas resident, then used the funds for his own purposes. The complaint sought to enjoin Callaway and his companies from any further practices that violated the Arkansas Securities Act; to have an accounting and a disgorgement of any ill-gotten gains from the sale of the unregistered security; and to have fines assessed against Callaway and his companies. Following a hearing, the circuit court granted the requested relief, and Callaway filed this pro se appeal. We dismiss the appeal due to Callaway‘s failure to substantially comply with Ark. R. App. P.–Civ. 3,¹ which governs the contents of a notice of appeal.

On November 24, 2010, the trial court entered an order denying Callaway‘s motion to dismiss the Commissioner‘s complaint. On September 29, 2011, the court entered an “Injunction and Order of Disgorgement.” Callaway filed a notice of appeal on October 27, 2011, that recited, in pertinent part, as follows:

Comes Now Defendant Rodney Callaway, individually and in his capacity as Chief Executive Officer of Heritage Corner, Ltd., and Heritage Funding Group, Inc., and shows this Court as follows:

Defendants object to the Order entered in the above-styled matter on the grounds that it is contrary to applicable law, is based on evidence which was unlawfully obtained, and for such other and further reasons as may be applicable.

Arkansas Rule of Appellate Procedure–Civil 3(e) requires the appealing party to “designate the judgment, decree, order or part thereof appealed from.”² Our courts require substantial compliance with Rule 3(e).³ Consequently, where an appellant attempts to designate the order appealed from and simply misidentifies the order by date, our courts will find substantial compliance despite the inaccuracy or “scrivener‘s error.”⁴ The present situation, however, does not involve an inaccuracy or a scrivener‘s error. Unlike the appellants in the cited cases, Callaway did not ascribe an incorrect date to the order appealed from or make a similar mistake. Rather, he made no attempt at all to “designate” the order appealed from, as required by Rule 3(e). He merely stated that he objected to “the order” entered in the case. Because such an omission forecloses the possibility of substantial compliance with Rule 3(e), Callaway‘s notice of appeal is ineffective, and we must dismiss the appeal.⁵ We note that a pro se appellant is held to the same standards as a licensed attorney and must comply with our rules.⁶

Appeal dismissed.⁷

PITTMAN and WYNNE, JJ., agree.

Rodney Callaway, pro se appellant.

Theodore Holder, Arkansas Securities Department, for appellee.

Notes

1

(2012).

2

Ark. R. App. P.–Civ. 3(e)(ii) (2012).

3

Duncan v. Duncan, 2009 Ark. 565.

4

Duncan, supra; Van Buren Cnty. Title Co. v. Bass, 2009 Ark. 406, 370 S.W.3d 811; Pro-Comp Mgmt., Inc. v. R.K. Enters., LLC, 372 Ark. 190, 272 S.W.3d 91 (2008); Henley v. Medlock, 97 Ark. App. 45, 244 S.W.3d 16 (2006); Farm Bureau Mut. Ins. Co. v. Sudrick, 49 Ark. App. 84, 896 S.W.2d 452 (1995).

5

See generally Lindsey v. Green, 2010 Ark. 118, 369 S.W.3d 1.

6

Ryburn v. Ryburn, 2012 Ark. App. 256.

7

In any event, Callaway, who is not a licensed attorney, lacked the authority to appeal on behalf of Heritage Corner, Ltd., and Heritage Funding Group, Inc. A person may practice law for himself, but a corporation may only be represented by a licensed attorney. See Nisha, LLC v. Tribuilt Constr. Grp., LLC, 2012 Ark. 130, 388 S.W.3d 444; Smithco Invs. of W. Memphis, Inc. v. Morgan Keegan & Co., Inc., 370 Ark. 477, 261 S.W.3d 454 (2007).

Case Details

Case Name: Callaway v. Abshure

Court Name: Court of Appeals of Arkansas

Date Published: Jan 16, 2013

Citations: 2013 Ark. App. 21; CA12-62

Docket Number: CA12-62

Court Abbreviation: Ark. Ct. App.