FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION [NO.
60CV-15-1672] HONORABLE TIMOTHY DAVIS FOX, JUDGE
J. Barrett, for appellant.
Wright, Lindsey & Jennings LLP, by: Regina A. Young and
Gary D. Marts, Jr., for appellee.
John Wesley Slayton brings this appeal from a Pulaski County
Circuit Court order granting summary judgment in favor of
appellee Windstream Communications, Inc. We dismiss without
filed suit against his employer Windstream alleging that it
had breached a written "Account Executive Compensation
Plan Document" by not paying him a bonus to which he
believed he was entitled. He claimed he was to receive commission
on 50 percent of the contract sales revenue and a 5 percent
"SPIFF" bonus. Slayton asserted claims for breach of
contract, injunctive relief, quantum meruit/unjust
enrichment, and punitive damages. Windstream moved for
summary judgment on each of the claims. Before he responded
to the motion for summary judgment, Slayton moved to nonsuit
the claims for breach of contract regarding the 50 percent
commission and for injunctive relief. The circuit court
entered two orders dismissing the claims without prejudice.
Slayton then responded to the summary-judgment motion, and a
hearing was held. The circuit court entered two separate
orders granting Windstream summary judgment on Slayton's
unjust-enrichment claim and for punitive damages. Slayton
never reasserted his nonsuited claims, and the circuit court
entered no further orders. Slayton filed a notice of appeal
from the two orders granting Windstream summary judgment.
cannot reach the merits of Slayton's argument, however,
because we lack a final, appealable order. Arkansas Rule of
Appellate Procedure-Civil 2(a)(1) provides that an appeal may
be taken only from a final judgment or decree entered by the
circuit court. Arkansas Rule of Civil Procedure 54(b)
provides that when more than one claim for relief is
presented in an action or when multiple parties are involved,
an order that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties is not a
final, appealable order. Miracle Kids Success Acad., Inc.
v. Maurras, 2016 Ark.App. 445, at 2-3, 503 S.W.3d 94,
95. Rule 54(b) allows a circuit court, when it finds no just
reason for delaying an appeal, to direct entry of a final
judgment as to fewer than all the claims or parties by
executing a certification of final judgment as it appears in
Rule 54(b)(1). However, absent this required certification,
any judgment, order, or other form of decision that
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties shall not terminate
the action. Miracle Kids, supra. No such
certification was made in this case.
problem here is that the orders from which Slayton appealed
do not address the voluntarily nonsuited claims. Our court
has held that a plaintiff may not take a voluntary nonsuit as
to some of its claims and then appeal from the circuit
court's order disposing of the plaintiff's other
claims because a voluntary nonsuit without prejudice leaves
the plaintiff free to refile the claim; therefore, the order
is not considered final. Johnson v. Windstream
Commc'ns, Inc., 2016 Ark.App. 419, at 3. Thus, in
the absence of an order dismissing Slayton's
breach-of-contract and injunctive-relief claims with
prejudice, or a properly executed
Rule 54(b) certificate, we have no jurisdiction
over this appeal.
Slayton choose to refile, we remind counsel to carefully
review the rules regarding briefing to ensure that the brief
is properly prepared and to pay particular attention to
Arkansas Supreme Court Rule 4-2(a)(5)(B) governing the form
of the abstract.
Abramson and Hixson, JJ., agree.
Slayton filed suit against Windstream
Communications, Inc., and against separate entity Windstream
Holdings, Inc.; Slayton moved to nonsuit without prejudice
the action against Windstream Holdings, Inc., and this appeal