Kerry Murphy and Blue Monkey, Inc., v. Michelle Smith Designs d/b/a Blue Dog Designs
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Judge Wendell Griffen
DIVISION III
CA07251
December 5, 2007
KERRY MURPHY AND BLUE
MONKEY, INC.
APPELLANTS
v.
AN APPEAL FROM SALINE COUNTY
CIRCUIT COURT
[NO. CV20062313]
MICHELLE SMITH DESIGNS D/B/A
BLUE DOG DESIGNS
APPELLEE
HONORABLE GRISHAM PHILLIPS,
CIRCUIT JUDGE
APPEAL DISMISSED
Appellants Kerry Murphy and Blue Monkey, Inc., appeal from an order refusing to
dissolve a preliminary injunction. We dismiss the appeal because the record was not timely
filed.
In January 2004, Murphy sold the assets of his silkscreening and embroidery
business, Blue Dog Designs, to Michelle Smith Designs (“Smith”) and agreed to work for
Smith as the manager of the business. Among the documents Murphy signed in connection
with the sale was a “NonCompetition and Confidentiality Agreement,” in which he
essentially agreed not to compete with Smith or solicit Smith’s customers or employees for
two years after the end of his employment.
Murphy’s employment ended on or about January 4, 2006. On March 2, 2006, Smith
sued Murphy and the new company he was working for, Blue Monkey, Inc., claiming that
Murphy violated the noncompete agreement by operating a business similar to Smith’s and
diverting Smith’s customers and employees. The trial court entered a preliminary injunction
on March 28, 2006, finding that Murphy was operating a screenprinting, embroidery, and
design company that was doing substantially the same kind of work as Smith and performing
services for Smith’s customers. Murphy was enjoined from operating his business in nineteen
Arkansas counties, pending a final determination on the merits.
The case was set for a final hearing on October 20, 2006. However, when Murphy
learned that the case would be continued, he asked the court to dissolve the preliminary
injunction. The court entered an order on January 23, 2007, denying Murphy’s request.
Murphy filed his notice of appeal from that order on February 22, 2007. The record was filed
with our clerk’s office on March 9, 2007.
Murphy’s appeal is brought pursuant to Ark. R. App. P.–Civil 2(a)(6), which provides
that an appeal may be taken from:
An interlocutory order by which an injunction is granted, continued, modified,
refused, or dissolved, or by which an application to dissolve or modify an injunction
is refused.
When an appeal is taken from an interlocutory order pursuant to Rule 2(a)(6) or an order
appointing a receiver pursuant to Rule 2(a)(7), “the record must be filed with the Clerk of
the Supreme Court within thirty (30) days from the entry of such order.” Ark. R. App.
P.–Civil 5(a). The order appealed from in this case was entered on January 23, 2007, making
the record due on February 22, 2007. See Johnson v. Langley, 93 Ark. App. 214, 218 S.W.3d
363 (2005); see also U.S. Bank v. Milburn, 352 Ark. 144, 100 S.W.3d 674 (2003) (involving
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an appeal from an order appointing a receiver). However, the record was not filed until
March 9, 2007. It was therefore untimely, and we are without jurisdiction to hear the appeal.
See Conlee v. Conlee, 366 Ark. 342, ___ S.W.3d __ (2006) (holding that the timely filing
of the record is a jurisdictional requirement for perfecting an appeal). Consequently, the
appeal must be dismissed.
Although neither party has argued this issue in their briefs, we have a duty to raise
questions concerning our own jurisdiction even if the parties do not. See generally Barnes
v. Newton, 69 Ark. App. 115, 10 S.W.3d 472 (2000).
Appeal dismissed.
HART and GLADWIN, JJ., agree.
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