Callaway v. Abshure

Decision Date16 January 2013
Docket NumberNo. CA12-62,CA12-62
Citation2013 Ark. App. 21
PartiesRODNEY CALLAWAY APPELLANT v. A. HEATH ABSHURE, ARKANSAS SECURITIES COMMISSIONER APPELLEE
CourtArkansas Court of Appeals

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

SIXTH DIVISION

HONORABLE TIMOTHY DAVIS

FOX, JUDGE

APPEAL DISMISSED

WAYMOND M. BROWN, Judge

The Arkansas Securities Commissioner, appellee Heath Abshure, filed a complaint against appellant Rodney Callaway and two companies of which Callaway was an officer, Heritage Corner, Ltd., and Heritage Funding Group, Inc. The Commissioner alleged that Callaway, a Georgia resident, sold an unregistered security to an Arkansas resident, then used the funds for his own purposes. The complaint sought to enjoin Callaway and his companies from any further practices that violated the Arkansas Securities Act; to have an accounting and a disgorgement of any ill-gotten gains from the sale of the unregistered security; and to have fines assessed against Callaway and his companies. Following a hearing, the circuit court granted the requested relief, and Callaway filed this pro se appeal. We dismiss the appeal due to Callaway's failure to substantially comply with Ark. R. App. P.-Civ. 3,1 which governs thecontents of a notice of appeal.

On November 24, 2010, the trial court entered an order denying Callaway's motion to dismiss the Commissioner's complaint. On September 29, 2011, the court entered an "Injunction and Order of Disgorgement." Callaway filed a notice of appeal on October 27, 2011, that recited, in pertinent part, as follows:

Comes Now Defendant Rodney Callaway, individually and in his capacity as Chief Executive Officer of Heritage Corner, Ltd., and Heritage Funding Group, Inc., and shows this Court as follows:
Defendants object to the Order entered in the above-styled matter on the grounds that it is contrary to applicable law, is based on evidence which was unlawfully obtained, and for such other and further reasons as may be applicable.

Arkansas Rule of Appellate ProcedureCivil 3(e) requires the appealing party to "designate the judgment, decree, order or part thereof appealed from."2 Our courts require substantial compliance with Rule 3(e).3 Consequently, where an appellant attempts to designate the order appealed from and simply misidentifies the order by date, our courts will find substantial compliance despite the inaccuracy or "scrivener's error."4 The present situation, however, does not involve an inaccuracy or a scrivener's error. Unlike the appellants in the cited cases, Callaway did not ascribe an incorrect date to the order appealed from or make a similar mistake. Rather, he made no attempt at all to "designate" the order appealedfrom, as required by Rule 3(e). He merely stated that he objected to "the order" entered in the case. Because such an omission forecloses the possibility of substantial compliance with Rule 3(e), Callaway's notice of appeal is ineffective, and we must dismiss the appeal.5 We note that a pro se appellant is held to the same standards as a licensed attorney and must comply with our rules.6

Appeal dismissed.7

PITTMAN and WYNNE, JJ., agree.

Rodney Callaway, pro se appellant.

Theodore Holder, Arkansas Securities Department, for appellee.

1. (2012).

2. Ark. R. App. P.—Civ. 3(e)(ii) (2012).

7. In any event, Callaway, who is not a licensed attorney, lacked the authority to appeal on behalf of Heritage Corner, Ltd., and Heritage Funding Group, Inc. A person may practice law for himself, but a corporation may only be represented by a licensed attorney. See Nisha, LLC v....

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8 cases
  • May v. Payne
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • 13 Marzo 2020
    ...to designate the order and simply misidentifies the order by date, our courts will find substantial compliance"); Callaway v. Abshure, 2013 Ark. App. 21, 2 (2013) ("where an appellant attempts to designate the order appealed from and simply misidentifies the order by date, our courts will f......
  • Tidwell v. Rosenbaum
    • United States
    • Court of Appeals of Arkansas
    • 28 Febrero 2018
    ..., 2010 Ark. App. 41, 2010 WL 132348 ).7 Lovan v. Lovan , 2015 Ark. App. 515, at 2, 2015 WL 5603232.8 Id. (citing Callaway v. Abshure , 2013 Ark. App. 21, 2013 WL 168012 ...
  • Smith v. Kimberly V. Freeman & Armistead Council Freeman
    • United States
    • Court of Appeals of Arkansas
    • 22 Octubre 2014
    ...attempts to designate the order and simply misidentifies the order by date, our courts will find substantial compliance. Callaway v. Abshure, 2013 Ark. App. 21. The present situation, however, does not involve accidental inaccuracy. Appellant made no attempt to designate the order appealed.......
  • Todd v. State
    • United States
    • Court of Appeals of Arkansas
    • 3 Junio 2015
    ...2014 WL 1673751, and Hayes v. State, 2011 Ark. App. 79, 381 S.W.3d 117, but the facts are not identical. And in Callaway v. Abshure, 2013 Ark. App. 21, at 2, 2013 WL 168012, our court distinguished Duncan and noted that[o]ur courts require substantial compliance with [Ark. R.App. P.-Civ. 3(......
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