Finney v. Halley
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Cite as 2010 Ark. App. 403
ARKANSAS COURT OF APPEALS
DIVISION I
CA09-1170
No.
Opinion Delivered
CARLTON FINNEY
APPELLANT
V.
RICK MEYER, DANNY STEELE,
ALLAN DABBS, ED COLLINS, LARRY
SMART, KEN GREEN, CAROL “ANN”
SANDERS, J.R. LEVART, in their official
capacities as aldermen of the Bryant City
Council, and PAUL HALLEY, in his official
capacity as mayor of the City of Bryant
APPELLEES
May 12, 2010
APPEAL FROM THE SALINE
COUNTY CIRCUIT COURT
[NO. CV2005-1216-1]
HONORABLE JOHN W. COLE,
JUDGE
DISMISSED
LARRY D. VAUGHT, Chief Judge
Appellant Carlton Finney appeals the summary-judgment order entered by the Saline
County Circuit Court in favor of appellees Rick Meyer, Danny Steele, Allan Dabbs, Ed Collins,
Larry Smart, Ken Green, Carol “Ann” Sanders, and J.R. Levart, in their official capacities as
aldermen of the Bryant City Council, and Paul Halley, in his official capacity as mayor of the City
of Bryant, Arkansas (collectively, Bryant). Finney argues that as a matter of law Bryant failed to
satisfy the annexation-notice provisions found in Arkansas Code Annotated section 14-40502(b) (Repl. 1998). We hold that Finney failed to comply with Rule 3(e) of the Arkansas Rules
of Appellate Procedure—Civil. Therefore, we lack jurisdiction and dismiss the appeal.
In September 2005, Bryant passed an ordinance pursuant to Arkansas Code Annotated
Cite as 2010 Ark. App. 403
section 14-40-501 et seq. annexing certain property into its city limits. Finney (a property owner
within the area being annexed) filed suit challenging the annexation. He alleged that Bryant failed
to comply with the statutory-notice provisions to landowners of the territory being annexed. The
City of Benton through its attorney (who was also representing Finney) filed a motion to
intervene in the lawsuit, alleging that Benton and Bryant entered into an agreement in 2005,
whereby the cities agreed where their respective planning and annexation boundaries would be
situated, and that Bryant’s annexation as described in Finney’s complaint violated that
agreement.
Finney and Bryant filed cross-motions for summary judgment. Finney contended that
the undisputed facts established that Bryant did not satisfy statutory-notice provisions, while
Bryant contended that the undisputed facts demonstrated that it did. The trial court granted
Bryant’s motion, denied Finney’s motion, and denied Benton’s motion to intervene. Only one
notice of appeal was filed. In the caption of that notice, Finney was listed as the plaintiff, Bryant
as the defendant, and Benton as the intervenor. The notice stated: “Notice is hereby given that
the City of Benton, Intervenor, appeals to the Arkansas Court of Appeals from the Order
granting Defendants’ Motion for Summary Judgment entered on or about July 30, 2009.” The
notice was signed by counsel identified as “Attorneys for City of Benton, Arkansas.”
The appellant’s brief was filed on behalf of Finney and contends that the trial court erred
in granting summary judgment in favor of Bryant. Bryant argues that Finney’s appeal must be
dismissed pursuant to Rule 3(e) of the Arkansas Rules of Appellate Procedure—Civil because
he failed to file a notice of appeal in this case.
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Cite as 2010 Ark. App. 403
Rule 3(e) provides in pertinent part as follows:
A notice of appeal or cross-appeal shall specify the party or parties taking the appeal;
shall designate the judgment, decree, order or part thereof appealed from and shall
designate the contents of the record on appeal.
Ark. R. App. P.—Civ. 3(e). We judge a notice of appeal by what it recites and not what the
appellant intended the notice to recite. Ark. Dep’t of Human Servs. v. Shipman, 25 Ark. App. 247,
253, 756 S.W.2d 930, 933 (1988); Garland v. Windsor Door, 19 Ark. App. 284, 285, 719 S.W.2d
714, 715 (1986). A notice of appeal must state the parties appealing and the order appealed from
with specificity, and persons not named as parties to the notice and orders not mentioned in it
are not properly before the appellate court. Shipman, 25 Ark. App. at 253, 756 S.W.2d at 933. The
party taking an appeal is the party specifically recited in the notice of appeal as the appellant. See
Binns v. Heck, 322 Ark. 277, 281, 908 S.W.2d 328, 330 (1995). However, only substantial
compliance with the procedural steps set forth in Rule 3(e) is required. Duncan v. Duncan, 2009
Ark. 565, at 4. In dictum, our supreme court said that a notice of appeal that failed to designate
the judgment or order appealed from as required under Rule 3(e) was deficient, but such a defect
was not necessarily fatal to the notice of appeal. Duncan, 2009 Ark. 565, at 4.
Finney claims that Duncan answers the jurisdictional question in this case in his favor.
There, the supreme court was presented with the certified question of whether a scrivener’s error
in a notice of appeal—regarding the date of the order appealed from—deprived the appellate
court of jurisdiction to hear the appeal under Rule 3(e). The notice stated that the appellant was
appealing from an order entered on a specific date; however, no order was entered on that date.
Duncan, 2009 Ark. 565, at 5. Because the arguments on appeal were “obviously directed” to a
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particular order and the notice was timely filed with respect to that order, the court held that the
date in the notice of appeal was a scrivener’s error, the appellant substantially complied with
Rule 3(e), and the notice was not fatally deficient. Id. at 5.
Relying upon Duncan, Finney argues that the naming of the “City of Benton, Intervenor”
as the party taking the appeal in the notice of appeal was merely a scrivener’s error and that it
is obvious that the appeal was filed on his behalf. He maintains that all of the other components
of the notice of appeal are proper and that he substantially complied with Rule 3(e). We disagree.
In Duncan, the defect in the notice of appeal did not involve the identification of the party
taking the appeal, but rather it involved the identification of the order or judgment from which
the appeal was taken. More importantly, in Duncan, the order or judgment identified by date in
the notice did not exist. Therefore, it was clearly a scrivener’s error.1
The case at bar is significantly different because it does not clearly involve a scrivener’s
Other cases where it was held that a notice substantially complied with Rule 3(e), despite
the fact that an appellant identified an incorrect order or judgment in the notice of appeal, are
also distinguishable from the instant case for the same reason—they involved the identification
of a specific order that did not exist. Pro-Comp Mgmt., Inc. v. R.K. Enters., LLC, 372 Ark. 190, 193
n.3, 272 S.W.3d 91, 94 n.3 (2008) (holding that the notice of appeal substantially complied with
Rule 3(e), where notice appealed from an April judgment that did not exist, because appellants’
arguments on appeal were clearly directed to the June judgment); Henley v. Medlock, 97 Ark. App.
45, 47–48, 244 S.W.3d 16, 18–19 (2006) (notice of appeal’s reference to the hearing date as the
date of the order appealed from rather than the actual date that the order was entered was not
fatal to the appeal; also, the correct date of the order was included in another section of the
notice); Farm Bureau Mut. Ins. Co. v. Sudrick, 49 Ark. App. 84, 85 n.1, 896 S.W.2d 452, 453 n.1
(1995) (notice of appeal’s reference to an order that did not exist was not fatal to the appeal
where appellant’s arguments on appeal were directed at the only order in the case by which the
appellant was aggrieved and the notice of appeal was timely filed with respect to that order). In
these cases, it was obvious that a scrivener’s error occurred.
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Cite as 2010 Ark. App. 403
error. In several places, the notice of appeal identifies the party taking the appeal as someone
other than Finney or the plaintiff. It specifically names the “City of Benton, Intervenor” as the
party taking the appeal. It lists Benton in the caption as the intervenor. It reflects that the
attorney who signed the notice did so in his capacity as “Attorneys for City of Benton,
Arkansas,” not attorneys for Finney. Because Benton was actually an entity involved in this case,
these expressions in the notice of appeal cannot be construed as scrivener’s errors. Contrary to
Finney’s arguments, the notice expresses that the party taking the appeal is Benton—not Finney.
Moreover, in cases where the problem in a notice of appeal was with the identification
of one among multiple potential parties, our supreme court has not found substantial
compliance with Rule 3(e) and ultimately held that the notice was deficient. Ozark Acoustical
Contractors, Inc. v. Nat’l Bank of Commerce, 301 Ark. 472, 786 S.W.2d 813 (1990) (dismissing appeal
of two parties who were not listed in the only notice of appeal in the record and stating, “While
it is proper for two or more parties to file a joint or consolidated appeal, Ark. R. App. P. 3(c),
the notice of appeal must ‘specify the party or parties taking the appeal . . . ’”); Binns, 322 Ark.
at 281, 908 S.W.2d at 330 (dismissing appellant’s appeal because he had no notice of appeal in
the record; the only notice of appeal in the record listed another party as the party taking the
appeal).
We believe that the instant case is most similar to Lindsey v. Green, 2010 Ark. 118, ___
S.W.3d ___, despite the fact that the defect in the notice in Lindsey did not involve the naming
of the party taking the appeal, but the naming of the order from which the appeal was being
taken. In Lindsey, Green filed a notice of cross-appeal, appealing from the final order in the case
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Cite as 2010 Ark. App. 403
entered on January 20, 2009. However, on appeal, Green argued that he was appealing the trial
court’s order denying his motion for costs, which was not included in the final order, but was
part of a separate order entered on January 23, 2009. Lindsey, 2010 Ark. 118, at 12–13, ___
S.W.3d at ___. Relying upon Rule 3(e), the supreme court held that Green failed to file an
effective notice of cross-appeal and dismissed. Id. at 13, ___ S.W.3d at ___. In Lindsey, the order
identified by date in the notice of appeal did exist—it was an entirely separate order that had
nothing to do with the issue the appellant argued on appeal. Like Lindsey, the notice of appeal
filed in the present case identified an entity that does exist, that was in fact involved in the case,
and that was listed in the caption.
In sum, we reject Finney’s argument that the notice of appeal contains a scrivener’s error.
The only notice of appeal in the record identifies, in several places, another entity that was
involved in the case as the appellant. Therefore, we hold that Finney failed to substantially
comply with Rule 3(e), the notice of appeal is fatally deficient as it relates to him, and we dismiss
his appeal for lack of jurisdiction.
Dismissed.
GRUBER and GLOVER, JJ., agree.
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