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Park Plaza Mall Cmbs, LLC v. Powell

Court of Appeals of Arkansas, Divisions III, IV

January 24, 2018

PARK PLAZA MALL CMBS, LLC, AND ERMC II, LP APPELLANTS
v.
KIMBERLY MARIE POWELL INDIVIDUALLY AND AS SPECIAL ADMINISTRATRIX OF THE ESTATE OF CHRISTIAN HAYES, DECEASED APPELLEE

         APPEAL FROM THE PULASKI COUNTYCIRCUIT 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.

          Gary Holt and Associates, by: William Gary Holt; and Baker & Schulze, by: J.G. "Gerry" Schulze, for appellees.

          Cullen & Co., PLLC, by: Tim Cullen; and Christine Mott, of counsel, Legal International Council of Shopping Centers, for amicus curiae, The International Council of Shopping Centers.

          RITA W. GRUBER, Chief Judge

         On February 28, 2013, Christian Hayes was tragically murdered by Deonte Edison and Tristan Bryant. At the time of his death, Hayes was working as an assistant manager at the Sbarro restaurant in Little Rock's Park Plaza Mall. Edison and 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 wrongful 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, and Park Plaza and ERMC appealed.[1] Because we hold that the circuit court erred as a matter of law by determining that Park Plaza and ERMC had a duty to protect Hayes from foreseeable criminal acts of third parties, we reverse and dismiss.

         I. Background

         Sbarro leased space in Park Plaza. Park Plaza contracted with ERMC to provide security to the common areas of the mall. Pursuant to the contract, ERMC was responsible for observing and reporting safety issues in common areas of the mall to police.

         On February 28, 2013, Hayes and Jashonta Thomas, another Sbarro employee, were closing the restaurant when Edison and Bryant entered the restaurant through an employee door.[2] Edison confronted Hayes, asked for money, and ultimately shot and killed him inside Sbarro's leased, private space. Thomas was shot nine times but survived her injuries.[3]

         Kimberly Powell, the administratrix of Hayes's estate, sued numerous parties whom she deemed responsible for his death. She filed her initial complaint on February 24, 2014. She amended her complaint several times-adding and subtracting certain parties. The operative complaint, the fourth amended complaint, was filed on August 7, 2015, against Park Plaza; ERMC; QC & SF Enterprises, Inc.; Edison; Bryant; Sbarro, LLC; Sbarro America, Inc.; Sbarro Franchise Co., LLC; and several John Doe defendants.[4]

         Before the filing of the fourth amended complaint, Park Plaza and ERMC sued Sbarro, LLC; Sbarro America, Inc.; Sbarro Franchise Co., LLC; Kahala Franchising, LLC; and QC & SF Enterprises, Inc., for contribution and indemnity. An order was entered severing Park Plaza and ERMC's cross-claims against Sbarro, LLC, and Sbarro America, Inc., with a trial to be held on the cross-claims in the event Powell obtained a judgment against Park Plaza and ERMC.[5] The cross-claim against QC & SF Enterprises, Inc., was dismissed with prejudice, and the cross-claims against the remaining parties-Sbarro Franchise Co., LLC, and Kahala Franchising, LLC-were dismissed without prejudice.

         The case proceeded to a jury trial with Powell seeking relief from Park Plaza, ERMC, Edison, and Bryant. Powell sought relief from Edison and Bryant for battery and assault. She sought relief from Park Plaza and ERMC for negligence. Powell asserted that Hayes was a business invitee of Park Plaza and ERMC; accordingly, Park Plaza and ERMC had a duty to protect Hayes from criminal acts of third parties. Park Plaza and ERMC vigorously challenged the claim that Hayes was their business invitee. They insisted that he was a tenant whom they had no duty to protect from criminal acts of third parties. Powell prevailed on this issue, and the circuit court instructed the jury that Park Plaza and ERMC owed Hayes a duty as a business invitee on the premises.

         The jury returned a $2, 771, 000 verdict in Powell's favor finding that Park Plaza and ERMC were 33 percent at fault, Edison was 34 percent at fault, and Bryant was 33 percent at fault. The jury's verdict was reduced to judgment. Later, Park Plaza and ERMC filed a motion for judgment notwithstanding the verdict and alternatively a motion for new trial, which was denied. They also filed a motion to certify the judgment. The circuit court entered an amended judgment that included a Rule 54(b) certificate. Park Plaza and ERMC timely appealed.

         On appeal, Park Plaza and ERMC contend that the circuit court erred by denying their motion for directed verdict and their motion for new trial. They argue that it was error to deny the directed-verdict motion because (1) they owed no duty to protect Hayes against harm resulting from criminal acts of third parties, (2) there was no substantial evidence that they breached any duty to Hayes, and (3) there was no substantial evidence that any breach caused Hayes's murder. They also argue that the circuit court erred in denying their motion for a new trial because (1) the circuit court erred as a matter of law in determining that Hayes was a business invitee, (2) substantial evidence did not support the verdict that Park Plaza and ERMC shared equal fault with the murderers, and (3) the circuit court erred in allowing evidence of irrelevant crimes that had previously occurred at the mall.

         II. Jurisdiction

         On September 20, 2017, our court dismissed this appeal for lack of jurisdiction due to the absence of a final order, reasoning that Park Plaza and ERMC's dismissals without prejudice of their cross-claims against Sbarro Franchise Co., LLC, and Kahala Franchising, LLC, acted as a bar to jurisdiction. Park Plaza and ERMC filed a petition for rehearing, and on November 8, 2017, we granted the petition. After due consideration, we concluded that the dismissals without prejudice of these cross-claims did not preclude our court from exercising jurisdiction.

         We reiterate the general rule that the dismissal of a claim without prejudice does not create finality. Beverly Enters.-Ark., Inc. v. Hillier, 341 Ark. 1, 3, 14 S.W.3d 487, 488 (2000). By contrast, the dismissal of a party to an action, with or without prejudice, is sufficient to obtain finality and invest jurisdiction in an appellate court. Driggers v. Locke, 323 Ark. 63, 913 S.W.2d 269 (1996).

         The rationale for these rules provides important context. The dismissal without prejudice of a party is sufficient to create finality because "nothing requires a plaintiff to sue the prospective defendants simultaneously." Driggers, 323 Ark. at 66, 913 S.W.2d at 270. However, the dismissal of fewer than all claims against ...


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