Cite as 2017 Ark. App. 245
ARKANSAS COURT OF APPEALS
No. CV-16-549
Opinion Delivered April 19, 2017
APPEAL FROM THE COLUMBIA
WILLIAM B. CHERRY COUNTY CIRCUIT COURT
APPELLANT [NO. 14DR-14-245]
V. HONORABLE MICHAEL R. LANDERS,
JUDGE
RHONDA MARLENE CHERRY (NOW MOTION GRANTED; DIRECT
FULKROAD) APPEAL DISMISSAL MODIFIED TO
APPELLEE BE WITHOUT PREJUDICE; CROSS-
APPEAL DISMISSED WITHOUT
PREJUDICE
PER CURIAM
This appeal was commenced by William Cherry when he filed a timely notice of appeal
from the February 3, 2016 “final order” of the Columbia County Circuit Court. Rhonda Cherry
filed a timely cross-appeal. The record was lodged and the clerk of our court set a briefing
schedule with William’s brief due on July 27, 2016. After extensions, William’s brief was due
on September 2, 2016.
When no brief was filed by William, Rhonda filed a motion to proceed on the cross-
appeal. Subsequently, our court received a letter from the widow of William’s attorney advising
our court that William’s attorney had passed away and recommending that William obtain new
counsel. The clerk of this court attempted, unsuccessfully, to contact William to confirm that
he was pursuing the appeal. When no brief or motion to extend was filed on William’s behalf,
Cite as 2017 Ark. App. 245
our court, on November 2, 2016, dismissed William’s appeal and authorized the case to go
forward on Rhonda’s cross-appeal.
Rhonda’s cross-appellant brief was filed on December 20, 2016. William’s cross-
appellee brief was due on January 26, 2017. On January 13, 2017, an entry of appearance by
Karen Talbot Gean was filed on behalf of William. A request for an extension to file a cross-
appellee brief was granted, and William’s brief was due March 27, 2017.
On March 16, 2017, William filed a “motion to dismiss the cross-appeal without
prejudice and amend order dismissing direct appeal to provide that such dismissal is also
without prejudice, or in the alternative to dismiss the cross-appeal with prejudice, or in the
second alternative to reinstate the direct appeal, and motion to stay briefing schedule or extend
brief time.” The principle argument, with which we agree, is that the purported “final order”
entered by the circuit trial court on February 3, 2016, is not a final order because it does not
dispose of the counterclaim filed by William.
Our court and the supreme court have consistently held that in order to achieve finality
all claims must be disposed of by written order, even if it appears that the court’s order
rendered an outstanding claim moot or impliedly dismissed. Spears v. Spears, 2012 Ark. App.
181, at 2 (citing Bulsara v. Watkins, 2010 Ark. 453; Lamco Ltd. P’ship II v. Pasta Concepts, Inc.,
2012 Ark. App. 145). Because a counterclaim remains outstanding in this case, we must dismiss
the cross-appeal without prejudice to refile upon entry of a final decree. Id. (citing Berry v. Moon,
2011 Ark. App. 78). 1
1Williamdid not include a statement in his notice of appeal that he abandoned any
pending but unresolved claims. Ark. R. App. P. –Civ. 3(vi) (2016).
2
Cite as 2017 Ark. App. 245
The dismissal of the direct appeal is modified to reflect that it is without prejudice, and
the cross-appeal is dismissed without prejudice.
3