Pub. Emp. Claims Div. v. Clark , 519 S.W.3d 333 ( 2017 )

Cite as 2017 Ark. App. 224
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-16-868
Opinion Delivered APRIL 12, 2017
PUBLIC EMPLOYEE CLAIMS
DIVISION APPEAL FROM THE CARROLL
APPELLANT COUNTY CIRCUIT COURT
EASTERN DISTRICT
V. [NO. 08CV-13-38]
GARY CLARK AND NORTH HONORABLE SCOTT JACKSON,
ARKANSAS LIVESTOCK AUCTION, JUDGE
INC.
APPELLEES
DISMISSED WITHOUT PREJUDICE
N. MARK KLAPPENBACH, Judge
Appellant Public Employee Claims Division (PECD) appeals the “Order to Distribute
Funds” entered by the Carroll County Circuit Court on July 7, 2016. Because the order
from which the appeal has been taken is not a final, appealable order, we dismiss without
prejudice.
The chronology of events is necessary to explain our conclusion. Appellee Gary Clark
is an employee of the Arkansas Livestock and Poultry Commission. Clark is a veterinary
livestock inspector. In 2010, Clark was injured on the job by a bull, and Clark was paid
workers’ compensation benefits for his injuries. In 2013, Clark filed a negligence suit against
the entity responsible for the facility where the accident happened, appellee North Arkansas
Livestock Auction, Inc. (NALA). In 2015, PECD moved to intervene in order to establish
a first lien against proceeds of the lawsuit for purposes of recovering on its payment of
Cite as 2017 Ark. App. 224
workers’ compensation benefits. NALA and Clark did not object to the intervention, and the
trial court permitted PECD to file its complaint in intervention. In February 2016, $75,000
was deposited into the registry of the court. In May 2016, a hearing was conducted on the
matter of distributing the interpleaded money. As a result, the trial court entered the July
2016 order on appeal, which mentioned that Clark and NALA “previously settled [Clark’s]
cause of action and part of that settlement was to place $75,000 on deposit with the Carroll
County Circuit Clerk and to be distributed based upon the Court’s adjudication of
intervenor’s complaint.” The trial court permitted PECD a first lien on the deposited funds
to allow it to receive two-thirds of the money after payment of costs of collection. The trial
court ordered that PECD receive $23,345. PECD filed a timely notice of appeal from the
order to distribute the funds and ordered the entire trial court record. PECD argues on appeal
that the circuit court (1) did not abide by statutory mandates regarding distribution of the
funds, and (2) failed to award an appropriate sum of money to PECD.
While no party has raised this issue, the question of whether an order is final and
subject to appeal is a jurisdictional question that the appellate court will raise sua sponte. Searcy
Cty. Counsel for Ethical Gov’t v. Hinchey, 2011 Ark. 533. Rule 2(a)(1) of the Arkansas Rules
of Appellate Procedure–Civil provides that an appeal may be taken only from a final judgment
or decree entered by the circuit court. Id. Under Arkansas Rule of Civil Procedure 54(b), an
order that fails to adjudicate all the claims as to all the parties, whether presented as claims,
counterclaims, cross-claims, or third-party claims, is not final for purposes of appeal. Dodge
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Cite as 2017 Ark. App. 224
v. Lee, 350 Ark. 480, 88 S.W.3d 843 (2002). Although Rule 54(b) provides a method by
which the circuit court may direct entry of final judgment as to fewer than all the claims or
parties, where there is no attempt to comply with Rule 54(b), the order is not final, and we
must dismiss the appeal. Harrill & Sutter, PLLC v. Farrar, 2011 Ark. 181; Jacobs v. Collison,
2015 Ark. App. 420.
The circuit court in this case did not dispose of Clark’s negligence complaint against
NALA. There is no order of dismissal in the appellate record, and the order to distribute
funds did not dismiss Clark’s complaint. Therefore, Clark’s negligence complaint remains
outstanding. There is no final order, and we must dismiss the appeal without prejudice.
Chitwood v. Chitwood, 2013 Ark. 195; Ford Motor Co. v. Washington, 2012 Ark. 325; Crafton,
Tull, Sparks & Assocs. v. Ruskin Heights, LLC, 2012 Ark. 56.
We take this opportunity to note that PECD has filed a brief that is not in compliance
with Arkansas Supreme Court Rule 4-2 (2016). Our appellate briefing rules require that an
appellant abstract “the material parts of all the transcripts (stenographically reported material)
in the record.” Ark. Sup. Ct. R. 4-2(a)(5). PECD provided an abstract of the pertinent
hearing. However, PECD also attached a verbatim copy of the hearing transcript in its
addendum, which is improper. Rule 4-2(a)(8) mandates that an appellant’s addendum contain
“copies of the non-transcript documents in the record on appeal[.]” In any subsequent brief,
the addendum should not contain a copy of the hearing transcript. In addition, Rule 4-2(a)(7)
requires that, in an appellant’s argument section of the brief, reference to material found in
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the abstract and addendum “be followed by a reference to the page number of the abstract or
addendum at which such material may be found.” Here, PECD’s argument contains
references to the improperly-attached transcript in the addendum instead of the abstract of that
transcript, as well as references to the record page number. These references are not proper
and do not comply with appellate briefing rules. Similarly, appellant’s statement of the case
contains improper references directly to the record page number and to the improperly
attached transcript in the addendum. Rule 4-2(a)(6) mandates that the statement of the case
“include supporting page references to the abstract or addendum or both.” While we have
noted these briefing deficiencies, this is in no way to be construed as an exhaustive list of all
possible deficiencies. We encourage appellant, prior to filing any subsequent brief, to review
our rules to ensure that no additional deficiencies are present. See Bulsara v. Watkins, 2010
Ark. 453.
Appeal dismissed without prejudice.
ABRAMSON and VAUGHT, JJ., agree.
Robert H. Montgomery, Public Employee Claims Division, for appellant.
Ray Hodnett, for appellee.
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