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ARKANSAS COURT OF APPEALS

DIVISION IV

No. CV-14-808

TERRY ALLEN YARBROUGH

APPELLANT

V.

JANE POWELL

APPELLEE

OPINION DELIVERED APRIL 8, 2015

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

SEVENTEENTH DIVISION

[NO. 60CV10-3405]

HONORABLE MACKIE M. PIERCE,

JUDGE

DISMISSED WITHOUT PREJUDICE;

APPELLEE’S MOTION TO DISMISS

APPEAL MOOT

ROBERT J. GLADWIN, Chief Judge

Appellant Terry Yarbrough appeals from an order denying his posthearing motions

to dismiss the complaints filed against him by his sister, appellee Jane Powell. Jane crossappeals from the circuit court’s denial of her motion for attorney’s fees. We dismiss the

appeal and cross-appeal for lack of a final order. 

Terry and Jane are the children of the late Betty Yarbrough. Before Betty died, she

and Jane owned and operated Bee Jay’s Hairstyling Academy, a cosmetology school. In 2008,

Betty and Jane severed their business relationship, though Jane retained her forty-percent

interest in the company. Betty then brought Terry into the business and amended her living

trust to distribute her sixty-percent ownership to him upon her death. The trust named Terry
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and his brother Denzil as trustees upon Betty’s death and, among other things, provided for

distribution of certain real property.1

Following Betty’s death in 2009, Jane sued Terry for an accounting of the trust’s

assets, distributions, and expenses, in particular with regard to the real property. She later filed

a supplemental complaint, adding Bee Jay’s as a defendant and accusing Terry of spending

company funds for personal matters and failing to pay Jane her share of the company’s profits.

Jane asked for an accounting; for Terry’s removal as an officer; for appointment of a receiver;

and for damages. Terry, who was represented by counsel at the time of these filings,

answered that a trust accounting was underway and that the allegations against him with

regard to Bee Jay’s were untrue. 

In November 2011, Terry’s attorney withdrew from representation. Shortly thereafter,

Jane propounded requests for admission to Terry, asking that he admit, among other things,

to stealing money from Bee Jay’s, inflating expenses, and using company money for personal

expenses, loans, and vacations. Terry, who was proceeding pro se, did not answer the

requests, and Jane moved that they be deemed admitted. The court subsequently did so.

Around this same time, Jane filed a “Second Supplemental Complaint,” alleging that

Terry had signed a document releasing a mortgage that secured a loan to him from Bee Jay’s.

Jane asked that the release be set aside and for various other relief. Neither Terry nor Bee

Jay’s answered the second supplemental complaint, and Jane asked for a default judgment

thereon.

1

 Denzil later died, leaving Terry as the sole trustee.

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After several hearings, the circuit court granted Jane a default judgment on her second

supplemental complaint; granted her a $400,000 judgment against Terry based on Terry’s

operation of Bee Jay’s; found that Jane was entitled to an accounting; dissolved Bee Jay’s; and

appointed a receiver to wind up the company. The court also stated that it would award Jane

attorney’s fees and costs in an amount yet to be determined.

Once the above judgments were entered, Terry asked for a new trial. Before his

motion could be heard, however, he obtained counsel and filed for bankruptcy. The

bankruptcy filing automatically stayed the circuit-court action, but the stay was partially lifted

in October 2013 to allow the circuit court to consider 1) Jane’s entitlement to attorney’s fees

and costs and 2) Terry’s request to set aside the judgment against him. 

A hearing was held, and the circuit court denied Terry’s motion to set aside. Terry

moved for reconsideration and also filed several motions to dismiss, primarily on the ground

that he had not been properly served with the second supplemental complaint. The court

denied Terry’s motions by an order entered on May 20, 2014. That same day, the court

entered an order denying Jane’s request for attorney’s fees. This appeal and cross-appeal

followed.

Our appellate jurisdiction depends on the presence of a final judgment or a judgment

containing a properly executed certificate pursuant to Ark. R. Civ. P. 54(b) (2014). Gartman

v. Ford Motor Co., 2012 Ark. App. 693. In the absence of a Rule 54(b) certificate, an order

that adjudicates fewer than all of the claims of all of the parties does not terminate the action.

Id. Moreover, an order that contemplates further action by a party or a court is not a final,

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appealable order. Bank of the Ozarks v. Cossey, 2014 Ark. App. 581, 446 S.W.3d 214. The

question whether an order is final and appealable is a jurisdictional matter that we are

obligated to consider on our own, even if the parties do not raise it. Id.

The present case began when Jane sued for an accounting regarding her late mother’s

trust. However, the record does not reflect that her claims involving the trust have been

adjudicated. Further, the circuit court ordered an accounting with regard to Bee Jay’s and

ordered the receiver to marshal Bee Jay’s assets and wind up the corporation. No order in the

record reveals that those actions have yet taken place. Thus, further actions by the parties and

the court are necessary to resolve the claims in the case, and we do not yet have a final order.

See id.; Ellis v. Agriliance, LLC, 2012 Ark. App. 549.

We note that Terry’s bankruptcy does not affect the lack of finality. A bankruptcy

filing does not completely divest the circuit court of jurisdiction over all matters in a lawsuit.

Rather, it simply suspends the court’s jurisdiction, subject to that jurisdiction being restored.

See Jones v. Nat’l Bank of Commerce, 207 Ark. 613, 182 S.W.2d 377 (1944). Thus, while

various claims in this lawsuit were stayed by the bankruptcy court at the time the orders on

appeal were entered, those claims remained pending and the circuit court could have reacquired the ability to rule on them at any time. See generally Bank of Ark. v. First Union Nat’l

Bank, 342 Ark. 705, 30 S.W.3d 110 (2000); Odom v. First Nat’l Bank in Little Rock, 5 Ark.

App. 35, 631 S.W.2d 846 (1982).

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Based on the foregoing, we dismiss the appeal and cross-appeal without prejudice for

lack of finality.2 Our ruling makes it unnecessary to address Jane’s motion to dismiss, in which

she argues that Terry’s notice of appeal was untimely. Consequently, we deny her motion as

moot at this time. However, if a subsequent appeal is taken, she is not prohibited from refiling

her motion if she determines that the facts and the law warrant it.

Finally, we take the opportunity to address a need for rebriefing in the event Terry

decides to pursue an appeal after obtaining a final order. An appellant’s addendum must

contain matters that are essential for the appellate court to understand the case and confirm

its jurisdiction. Ark. Sup. Ct. R. 4-2(a)(8)(A)(i) (2014). Toward these ends, Terry’s addendum

should include his February 13, 2014 motion to reconsider; his October 23, 2013 amended

motion to set aside default judgment; and his November 17, 2013 defendant’s reply brief to

plaintiff’s supplemental brief. These documents are necessary to confirm our jurisdiction and

assist in our understanding of the issues.

Further, an appellant’s abstract must contain the material parts of all transcripts. Ark.

Sup. Ct. R. 4-2(a)(5) (2014). Terry’s abstract contains portions of all relevant hearings but

omits some of his own testimony and colloquies with the court that occurred while he was

representing himself. Because the issue of waiver will be material to the arguments on appeal,

the abstract should include all of Terry’s testimony or communications with the court in

2Without a final order, no appeal can be entertained by our court, even on a collateral

matter such as attorney’s fees. LaRue v. Ground Zero Constr., Inc., 2014 Ark. App. 93. 

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which he acknowledges the receipt of and failure to answer the requests for admission and

agrees to the appointment of a receiver and an accounting.

These briefing deficiencies should not be considered an exhaustive list; we encourage

appellant to review our rules of appellate procedure to ensure that any subsequent brief

comports with our requirements.

Dismissed without prejudice; appellee’s motion to dismiss appeal moot.

GLOVER and HOOFMAN, JJ., agree.

James Howard Smith, for appellant.

Sutter & Gillham, P.L.L.C., by: Luther Oneal Sutter and Lucien Gillham, for appellee.

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