The opinion
Cite as 2020 Ark. App. 364
Reason: I attest to the accuracy
and integrity of this document
ARKANSAS COURT OF APPEALS
Date: 2021-07-08 09:01:33 DIVISION IV
Foxit PhantomPDF Version: No. CV-18-959
9.7.5
Opinion Delivered September 2, 2020
SIMON POCKRUS
APPELLANT
APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT
V. [NO. 04CV-14-741]
VICTORIA MORRIS HONORABLE BRAD KARREN,
APPELLEE JUDGE
APPEAL DISMISSED WITH
PREJUDICE
BRANDON J. HARRISON, Judge
This case, which has a tortuous procedural history, provides an important
jurisdictional reminder. The reminder is that a party must timely file a notice of appeal from
a final, appealable order that is procured using the process set forth in Rule 54(b) and the
related caselaw. Ark. R. Civ. P. 54 (2019). Because that was not done here, we must
dismiss the appeal. And the dismissal must be with prejudice because a timely notice of
appeal can never be filed in the future given the circumstances. See Brinkley Sch. Dist. v.
Terminex Int’l Co., 2019 Ark. App. 445, 586 S.W.3d 694 (per curiam) (collecting cases);
Ark. R. App. P.–Civ. 4(a), (d) (2019).
Here is more of the story. Victoria is an attorney and represented Simon in his
divorce from Kristy Pockrus. After that proceeding ended, Victoria sued Simon for his
unpaid legal bill, and Simon filed a counterclaim against her for legal malpractice. Just before
trial, Victoria dismissed her complaint for unpaid legal fees without prejudice pursuant to
Arkansas Rule of Civil Procedure 41(a). A jury trial was held on Simon’s legal-malpractice
claim against Victoria, among other claims, and the jury returned a verdict in her favor.
The circuit court later awarded Victoria $5,000 in attorney’s fees.
Simon appealed both the judgment on the jury’s verdict and the order granting
Victoria’s request for attorney’s fees and costs. When the appeal was first submitted, we
ordered a supplemental addendum because Simon failed to include copies of the jury-verdict
forms in his addendum. See Pockrus v. Morris, 2017 Ark. App. 88 (Pockrus I). When the
appeal returned, we dismissed the appeal for lack of finality. Pockrus v. Morris, 2017 Ark.
App. 293 (Pockrus II). The finality issue arose because Victoria had nonsuited her complaint
on the eve of trial. Our mandate issued on 31 May 2017.
In June 2017, Simon moved the circuit court to enter a Rule 54(b) certificate. See
Ark. R. Civ. P. 54. The motion asserted that a Rule 54(b) certificate was necessary so
Simon could appeal then, rather than having to wait until the statute of limitations on
Victoria’s breach-of-contract claim for unpaid legal services to expire in July 2018. On 6
July 2017, the circuit court denied Simon’s motion for a Rule 54(b) certificate; the court
reasoned that it lacked personal and subject-matter jurisdiction to act.
On 14 July 2017, Simon moved to reopen the case and set the July 6 order aside so
the judgment could be appealed whenever Victoria’s nonsuited contract claim was finally
terminated as a matter of law. Simon argued to the circuit court that after this court
dismissed the appeal in Pockrus II, the circuit court acquired jurisdiction to enter a Rule
54(b) certificate.
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On 1 August 2017, the circuit court denied Simon’s motion. While acknowledging
that Victoria had until July 2018 to file a new lawsuit against Simon, the court concluded
that it lacked jurisdiction after Simon filed his appeal because we did not remand the case
or direct the circuit court to take any specific action. (The court’s decision on this point
was mistaken, but there is no need to go there today.)
On 11 August 2017, Simon filed a motion seeking a writ of certiorari with our
supreme court. He argued that the circuit court’s two orders refusing his requests for a Rule
54(b) certificate prevented him from ever appealing because those orders did not terminate
all the claims between Victoria and Simon.
Seven days later, on 18 August 2017, while Simon’s motion for an extraordinary writ
was pending before the supreme court, the circuit court entered what it styled as a “Final
Order and Judgment.” In that order, the court recites the chronology of the postappeal
motions. The court also found that Simon’s having to wait until Victoria’s nonsuited claim
expired on limitations grounds caused a hardship. The court then ordered the case closed
as to Simon—but not as to Victoria—until the statute of limitations could run on her
nonsuited contract claim. The circuit court’s order also contained a Rule 54(b) certificate,
which designated the order as a final judgment as to Simon’s claims but not as to Victoria’s
nonsuited contract claim.
Simon did not file a notice of appeal from the Final Order and Judgment, which
included a Rule 54(b) certificate that was entered in August 2017.
The supreme court denied as moot Simon’s motion for a writ of certiorari on 14
September 2017.
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Four days later, Simon moved the circuit court under Arkansas Rule of Civil
Procedure 60. He asked the court to modify the August 2017 Final Order and Judgment.
According to Simon, the order was not final because it did not resolve all the claims between
the parties, and the Rule 54(b) certificate attached to the August 2017 Final Order and
Judgement was invalid. The circuit court did not act on that motion.
Nothing important seems to have happened in the case until almost one year later,
on 1 August 2018. By that time, the statute of limitations on Victoria’s contract
counterclaim had expired, and Simon moved the circuit court for a second Rule 54(b)
certificate. He argued that he needed the second one because Victoria had not refiled her
contract claim against him, and the August 2017 Final Order and Judgment was not a final
order. The circuit court denied Simon’s motion on 6 August 2018, finding that it was
without jurisdiction because Simon did not file a notice of appeal within thirty days of the
18 August 2017 Final Order and Judgment. On 5 September 2018, Simon filed his only
notice of appeal.
Rightly sensing that a jurisdictional problem was afoot, Simon argues as one of his
points on appeal that he timely filed his notice of appeal from the circuit court’s August
2018 denial of his motion for a Rule 54(b) certificate. Simon says that he was not required
to file a notice of appeal from the August 2017 order because it did not actually determine
any issue between the parties, and the certificate was not compliant with Rule 54(b)’s
requirements.
We disagree that a timely notice of appeal was not required as to the August 2017
Rule 54(b) order. There are two main reasons for this.
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First, the August 2017 Final Order and Judgment had a Rule 54(b) certificate
attached to it. We have, for years, intimated that the inclusion of a Rule 54(b) certificate
renders the included claims final and appealable, in which turn means that an appellant must
timely appeal the order once it is entered or risk forfeiting the right to appeal what the order
decided. This rule makes sense in general, and it accords with the rules of appellate
procedure. See Fire Sys. Tech., Inc. v. First Cmty. Bank, 2015 Ark. App. 334, 464 S.W.3d
125; see also Mitchell v. Mitchell, 98 Ark. App. 47, 47, 249 S.W.3d 847, 848 (2007) (“Because
the order did not resolve all the disputed issues, and the circuit court did not certify it
pursuant to Arkansas Rule of Civil Procedure 54(b), the order is not final and we lack
jurisdiction to review it.”). The rule makes sense because the purpose of a party seeking a
Rule 54(b) certificate in the first place is to turn what are otherwise unappealable
interlocutory rulings into final, appealable ones. Simply put: Rule 54(b) is “designed to
mark the point at which such a disposition becomes final, so that ‘a party will always know
whether a judgment in a [case with multiple claims or parties] is ripe for appeal.’” David
Newbern, John J. Watkins & D.P. Marshall Jr., 2 Arkansas Civil Practice & Procedure § 40:3
(5th ed.) (footnote omitted), available at Westlaw ARCPP.
Simon has, in fact, shown that he knows this principle. He was obviously wanting
to appeal sooner than he otherwise would have been permitted to do; that is why he told
the circuit court that he wanted a Rule 54(b) order in the first place. For whatever reason,
Simon did not fully appreciate the significance of receiving the Rule 54(b) certificate and
order from the circuit court in August 2017. But the fact remains that Simon did not file a
notice of appeal within thirty days of the date that the August 2017 order was entered. Ark.
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R. App. P.–Civ. 4(a), (d); Newbern et al., supra, at § 40:3 (“The time for filing a notice of
appeal begins to run upon entry of a judgment that includes a proper Rule 54(b) certificate.”)
(footnotes omitted).
The second reason why a notice of appeal was required within thirty days from the
court’s entry of the August 2017 order is because, according to supreme court precedent,
Arkansas appellate courts must first determine if a proper and timely notice of appeal was
filed. In other words, whether a notice of appeal designates a final or nonfinal order is of
secondary importance to the notice of appeal’s timing. Sloan v. Ark. Rural Med. Practice Loan
& Scholarship Bd., 369 Ark. 442, 445, 255 S.W.3d 834, 837 (2007) (“The timely filing of
the notice of appeal and record is a threshold jurisdictional prerequisite for this court.”); see
also Massanelli v. Massanelli, 2016 Ark. App. 90, at 5 (Harrison, J., concurring) (discussing
Sloan and its implications). In a similar vein, and contrary to Simon’s position, we cannot
first judge whether the August 2017 order was a deficient or ineffective Rule 54(b) attempt
for this reason or that. We therefore express no opinion on the validity of the Rule 54(b)
order itself. Precedent instead directs that we first decide whether the notice of appeal
designating the order that decided the issues on appeal was timely entered under the rules
of appellate procedure. Simon’s challenge to the Rule 54(b) order, which he himself sought,
plays second fiddle to whether he timely filed a notice of appeal from the final order that
decided the issues he now wants this court to review. Unfortunately, he did not timely
appeal the order that would have preserved for review the points that he now asks this court
to decide.
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* * *
Simon’s appeal is dismissed with prejudice because his notice of appeal was not timely
filed within thirty days of the 18 August 2017 order that he procured from the circuit court
using the Rule 54(b) process.
Appeal dismissed with prejudice.
VIRDEN and BROWN, JJ., agree.
Harry McDermott, for appellant.
Victoria K. Morris, for appellee.
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