Victoria M. Andrews v. Polk County Humane Society

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

VICTORIA M. ANDREWS

APPELLANT

V.

POLK COUNTY HUMANE SOCIETY

APPELLEE

CA03-816

February 4, 2004

APPEAL FROM THE POLK COUNTY CIRCUIT COURT

CV 02-173

HON. GAYLE K. FORD, JUDGE

APPEAL DISMISSED

Larry D. Vaught, Judge 

This is a one-brief appeal from an order of the Polk County Circuit Court. Because the order from which the appeal is taken is not a final order, we dismiss the appeal.

On March 23, 2002, appellee Polk County Humane Society confiscated animals from appellant Victoria M. Andrews at her property in Cove, Arkansas. As a result of this confiscation, criminal charges were filed against appellant in the Polk County District Court. On September 20, 2002, appellant filed a complaint for preliminary injunction against appellee, who was housing the animals until the criminal charges were resolved. Appellant alleged that appellee was allowing some of her animals to run loose and that too many dogs were being housed in one pen, both conditions resulting in imminent danger and irreparable harm to the appellant's dogs. Appellee filed an answer and a counterclaim for money damages incurred in boarding the animals. Appellee also requested that it be permitted to adopt out the animals and that appellant's rights to the animals be terminated. A bench trial took place on March 10, 2003. The trial court ruled from the bench, and an order was entered on April 10, 2003, which provided that: (1) appellee was restrained from allowing the dogs confiscated at appellant's property from running at large; (2) all remaining animals confiscated from appellant's property be forfeited to appellee; (3) appellee place the animals for immediate adoption and report the progress within thirty days. The court reserved the issue of awarding damages for expenses incurred by appellee in caring for the animals and ordered it to submit receipts and checks for the expenses. Appellant filed a notice of appeal on April 18, 2003. On June 2, 2003, the court entered an amended order identical to the April 10 order, but also adding an award of damages to appellee for $3600, plus attorney fees. Appellant did not file a notice of appeal from the June 2, 2003 order.

For her argument on appeal, appellant contends that "the court clearly erred in finding evidence sufficient by a preponderance to forfeit appellant's animals even if damages are paid, or clearly erroneous, based on case law that did not satisfy the requirements of Arkansas law." We do not reach the merits of appellant's argument because the order appealed from was not a final order.

In Harold Ives Trucking Co. v. Pro Transp., Inc., 341 Ark. 735, 737, 19 S.W.3d 600, 602 (2000), the supreme court stated:

Appeal may be taken from a final judgment or decree entered by the trial court. Ark. R. App. P.--Civ. 2. For a judgment to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy; thus, the order must put the trial court's directive into execution, ending the litigation, or a separable branch of it. Smith v. Smith, 337 Ark. 583, 990 S.W.2d 550 (1999). Where the order appealed from reflects that further proceedings are pending, which do not involve merely collateral matters, the order is not final. Id. The finality of an order is a jurisdictional issue which this court has a duty to address. Id.

The appellees in Harold Ives argued that the appellant did not file a timely notice of appeal because the order appealed from was not final because it reserved the issue of attorney fees. The supreme court held that the issue of attorney fees was collateral and did not prevent the judgment from being a final appealable order; thus, the notice of appeal was timely.

In the present case, however, the reservation on the issue of damages to be awarded to appellee was not a collateral matter, and clearly the rights of the parties had not been concluded without a ruling on that issue. See Tri-State Delta Chemicals, Inc. v. Crow, 347 Ark. 255, 61 S.W.3d 172 (2001). Thus, the notice of appeal from the April 10, 2003 order1 filed prior to the entry of the final judgment was not timely, and because appellant never filed a notice of appeal from the June 2, 2003 final order ruling on the damages issue, we have no jurisdiction to decide appellant's case. Appeal dismissed.

Pittman and Neal, JJ., agree.

1 Although Rule 2 of the Arkansas Rules of Appellate Procedure--Civil provides that an appeal may be taken from an order granting or denying injunctive relief, the court's April 10, 2003 order granted appellant the injunctive relief she requested.