Artie Green's Auto Repair & Body Shop, Inc. v. Johnson , 523 S.W.3d 378 ( 2017 )

Cite as 2017 Ark. App. 323
ARKANSAS COURT OF APPEALS
DIVISION IV
No.CV-16-963
ARTIE GREEN’S AUTO REPAIR & Opinion Delivered: May 17, 2017
BODY SHOP, INC., AND ARTHUR
GREEN, JR. APPEAL FROM THE SALINE
APPELLANTS COUNTY CIRCUIT COURT
[NO. 63CV-13-640]
V.
HONORABLE GARY ARNOLD,
JUDGE
PHILLIP JOHNSON
APPELLEE DISMISSED WITHOUT PREJUDICE
KENNETH S. HIXSON, Judge
Appellants Artie Green’s Auto Repair and Body Shop, Inc., and Arthur Green, Jr.,
appeal after the Saline County Circuit Court denied their petition to declare Arkansas Code
Annotated section 16-66-221 (Repl. 2005) unconstitutional. Appellants argue on appeal
that the circuit court erred because section 16-66-221 intrudes on the Arkansas Supreme
Court’s exclusive authority over pleading, practice, and procedure pursuant to amendment
80 section 3 of the Arkansas Constitution. However, we dismiss this appeal without
prejudice for lack of a final order.
This case originates from a default judgment awarding appellee Phillip Johnson a total
of $9,283.16 against appellants on March 4, 2014. After appellants failed to satisfy the
judgment or prepare a schedule, verified by affidavit, of all their property pursuant to
Arkansas Code Annotated section 16-66-221, appellee filed a motion to compel and to
show cause. Appellee requested that the circuit court compel appellants to comply with the
Cite as 2017 Ark. App. 323
statute, to show cause as to why sanctions should not be imposed, and to award appellee
attorney’s fees and costs. The circuit court filed an order to show cause.
Appellants subsequently filed a petition to declare Arkansas Code Annotated section
16-66-221 unconstitutional because it violates amendment 80 to the Arkansas Constitution
in that it is a procedural matter in the exclusive purview of the Arkansas Supreme Court.
After considering appellee’s response, oral arguments, and posthearing briefs regarding
appellants’ petition, the circuit court filed an order denying appellants’ petition and declared
section 16-66-221 constitutional.
2. Ark. Code Ann. § 16-66-221 satisfies the definition of substantive law in that it
creates a right of information for a creditor, a corresponding duty for a judgment
debtor to adhere to disclosure of the same, and as such it is a regulation of powers
between parties to a lawsuit as it relates to property subject to execution by virtue of
a final judgment.
3. The essence of the statute is to create a right and corresponding duty between
parties, which is clearly under the realm of substantive law. In particular, the statute
clearly “defines the specific rights or duties themselves,” articulated within the
definition of substantive law. It is not a violation of the separation-of-powers
doctrine or Amendment 80, and any procedural aspects of the statute is otherwise
allowed for by Rule 81 of the Arkansas Rules of Civil Procedure.
4. IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED AND
DECREED by this Court that Ark. Code Ann. § 16-66-201 is upheld as
constitutional.
This appeal followed.
While no party has raised this issue, whether an order is final for appeal purposes is a
jurisdictional question that this court will raise sua sponte. Hotfoot Logistics, LLC v. Shipping
Point Mktg., Inc., 2012 Ark. 76. Arkansas Rule of Appellate Procedure–Civil 2(a)(1) (2016)
provides that an appeal may be taken only from a final judgment or decree entered by the
circuit court. Arkansas Rule of Civil Procedure 54(b) (2016) provides that when more than
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Cite as 2017 Ark. App. 323
one claim for relief is presented in an action or when multiple parties are involved, an order
that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the
parties is not a final, appealable order. Brasfield v. Murray, 96 Ark. App. 207, 239 S.W.3d
551 (2006). Rule 54(b) allows a circuit court, when it finds no just reason for delaying an
appeal, to direct entry of a final judgment as to fewer than all the claims or parties by
executing a certification of final judgment as it appears in Rule 54(b)(1). However, absent
this required certification, any judgment, order, or other form of decision that adjudicates
fewer than all the claims or the rights and liabilities of fewer than all the parties shall not
terminate the action. Brasfield, supra. No such certification was made in this case.
Here, the circuit court’s order specifically declared the statute in question
constitutional. However, the order did not address or dispose of appellee’s pending motion
to compel or to show cause. “The mere fact that the constitutionality of a law may be
involved in the decision on a motion would not of itself render the decision on such motion
a final order or judgment.” State v. Greenville Stone & Gravel Co., 122 Ark. 151, 155, 182
S.W. 555, 556 (1916). In Thomas v. City of Fayetteville, 2012 Ark. 120, our supreme court
dismissed an appeal for lack of a final order when a circuit court granted the City’s motion
for order of immediate possession in an eminent domain case. In part, Thomas had argued
that statutory authority for the condemnation violated both the federal and state
constitutions. Id. Although the circuit court did not find merit in Thomas’s argument and
granted the City’s petition, the circuit court did not consider the main issue of the amount
of just compensation. Id. As such, our supreme court dismissed the appeal to avoid
piecemeal litigation. Id.
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Cite as 2017 Ark. App. 323
Additionally, in Tucker v. Lake View School District Number 25 of Phillips County, 323
Ark. 693, 917 S.W.2d 530 (1996), our supreme court dismissed an appeal for lack of finality
where the circuit court declared the school-funding system unconstitutional but did not
consider the constitutionality of the individual elements of the system nor address Lake
View’s requests for injunctive relief and mandamus. Id. Thus, our supreme court held that
the requirements for finality had not been met. Id.
Finally, in Ellis v. Ellis, 2016 Ark. App. 411, 501 S.W.3d 387, the circuit court’s
purported final order failed to address a pending motion for contempt. The circuit court
had entered a show-cause order and even orally held that it was not finding Ellis in
contempt; however, a written order after the court’s oral announcement from the bench
was never entered. We held that a circuit court must dispose of all pending issues in writing,
including motions for contempt, in the absence of a valid Rule 54(b) certificate. Id.; see also
Canady v. Garrett, 2009 Ark. App. 882 (per curiam). Because the record we have before us
does not reflect that the circuit court disposed of appellee’s pending motion, and because
the circuit court’s order does not include a Rule 54(b) certificate, we lack jurisdiction over
the instant appeal and dismiss this appeal without prejudice.
Dismissed without prejudice.
GRUBER, C.J., and KLAPPENBACH, J., agree.
The Baxter Law Firm, by: J. Ray Baxter, for appellants.
Jurist Law Group, PLLC, by: J. Shane Cox, for appellee.
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