FROM THE PULASKI COUNTY CIRCUIT COURT, THIRTEENTH DIVISION
[NO. 60CV-14-791] HONORABLE W. MICHAEL REIF, JUDGE.
Munson, Rowlett, Moore & Boone, P.A., by: Mark Breeding;
and Husch Blackwell LLP, by: Mark G. Arnold, pro hac vice,
and JoAnn T. Sandifer, pro hac vice, for appellants.
Holt and Associates, by: William Gary Holt; and Baker &
Schulze, by: J.G. "Gerry" Schulze, for appellees.
& Co., PLLC, by: Tim Cullen; and Christine Mott, of
counsel, for amicus curiae, International Council of Shopping
W. GRUBER, CHIEF JUDGE.
appeal stems from a tort case arising out of the February 28,
2013 murder of Christian Hayes. At the time of his death,
Hayes was employed as an assistant manager at the Sbarro
restaurant in Little Rock's Park Plaza Mall. Deonte
Edison and Tristan Bryant murdered Hayes in Sbarro's
leased, private space after the close of business. Kimberly
Powell, on behalf of Hayes's estate, sued numerous
parties for his death, and the case went to trial on her
claims against Park Plaza Mall CMBS, LLC (Park Plaza); ERMC
II, LP (ERMC), the entity that provided security services to
Park Plaza; Edison; and Bryant. A Pulaski County jury
returned a verdict in favor of Powell.
Plaza and ERMC appealed the judgment, and the International
Council of Shopping Centers filed an amicus brief in support
of reversal. However, our review has uncovered pending
cross-claims that preclude us from reaching the merits of
this appeal, and we must dismiss the appeal without prejudice
for lack of jurisdiction.
2(a)(1) of the Arkansas Rules of Appellate Procedure-Civil
provides that an appeal may be taken only from a final
judgment or decree entered by a circuit court. An order is
not final if it adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties. S.
Farm Bureau Cas. Ins. Co. v. Easter, 369 Ark. 101, 251
S.W.3d 251 (2007); Ark. R. Civ. P. 54(b). Although neither
party raises the issue, whether an order is final for
appellate purposes is a jurisdictional question that the
court will raise sua sponte. Moses v. Hanna's Candle
Co., 353 Ark. 101, 103, 110 S.W.3d 725, 726 (2003).
examination of this appeal reveals that Kimberly Powell
amended her complaint several times during the course of the
litigation. She also requested the dismissal of several
defendants without prejudice. As a general rule, the
dismissal of a party-with or without prejudice-can create
finality. Driggers v. Locke, 323 Ark. 63, 913 S.W.2d
269 (1996). Accordingly, Powell's dismissal of certain
parties without prejudice does not preclude our court from
we must also analyze Park Plaza and ERMC's cross-claims
in the course of our jurisdictional review. Park Plaza and
ERMC filed cross-claims for indemnity and contribution
against several of their codefendants-Sbarro, LLC; Sbarro
America, Inc.; Sbarro Franchise Co., LLC; Kahala Franchising,
LLC; and QC&SF Enterprises, Inc. Park Plaza and
ERMC's cross-claim against QC&SF Enterprises, Inc.,
was dismissed with prejudice, and their cross-claims against
Sbarro, LLC, and Sbarro America, Inc., were
severed. Park Plaza and ERMC merely dismissed their
cross-claims against Sbarro Franchise Co., LLC, and Kahala
Franchising, LLC, without prejudice.
a circuit court's order granting a nonsuit and dismissing
claims without prejudice is not a final order or an
adjudication on the merits because the merits of the cause
are not finally determined. Beverly Enters.-Ark., Inc. v.
Hillier, 341 Ark. 1, 3, 14 S.W.3d 487, 488 (2000). The
recent case of Stodola v. Lynch expounds on this
general rule. 2017 Ark. 181, 519 S.W.3d 677. In
Stodola, our supreme court held that appellees'
nonsuited claims that were not refiled within the applicable
statute-of-limitations period and were not refiled within one
year of having been nonsuited could "no longer be
litigated" and were "no longer a bar to
finality." Id. at 3-4, 519 S.W.3d at 679.
Park Plaza and ERMC's cross-claims against Sbarro
Franchise Co., LLC, and Kahala Franchising, LLC, arose out of
Hayes's February 28, 2013 murder and were based on
negligence theories, which carry a three-year statute of
limitations. Thus, the statute of limitations required that
any claims be filed no later than February 28, 2016.
Additionally, the circuit court dismissed without prejudice
Park Plaza and ERMC's cross-claims against Sbarro
Franchise Co., LLC, and Kahala Franchising, LLC, on October
13, 2015. Accordingly, these cross-claims could be refiled no
later than October 13, 2016.
case differs factually from Stodola. In
Stodola, both the statute of limitations and the
time to refile any claim had expired before the notice of
appeal was filed. Thus, it was clear from the record on
appeal that the nonsuited claims could no longer be
litigated. In the present appeal, the notice of appeal was
filed on December 30, 2015, and the record was lodged on May
18, 2016. This is prior to the expiration of Park Plaza and
ERMC's time to refile their cross-claims. This
distinction is important. On the record before us, Park Plaza
and ERMC had time to refile and litigate their
cross-claims. Thus, the nonsuited cross-claims bar our
ability to exercise jurisdiction.
there are still pending cross-claims against Sbarro Franchise
Co., LLC, and Kahala Franchising, LLC, we necessarily turn
our attention to the circuit court's Rule 54(b)
certificate to see if it complies with our rules pertaining
to the finality of orders in judgments with multiple claims
or multiple parties. Arkansas Rule of Civil Procedure 54(b)
requires that when "more than one claim for relief is
presented in an action . . . or when multiple parties are
involved, the court may direct the entry of a final judgment
as to one or more but fewer than all ...