JAMES E. GOOCH AND BETSY GOOCH APPELLANTS
LESLIE J. DAVIS AND LANDHAWG, LLC APPELLEES
FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CV-12-621]
HONORABLE CHRIS CARNAHAN, JUDGE
Law Firm, P.A., by: Don P. Chaney and S. Taylor Chaney, for
Donovan & Tilley, P.A., by: Michael McCarty Harrison and
Nicholas D. Hornung, for appellees.
BRANDON J. HARRISON, JUDGE.
and James Gooch appeal an order of summary judgment entered
in favor of Leslie Davis and Landhawg, LLC. The Gooches argue
that the circuit court erred in granting summary judgment on
their negligent-entrustment claim. We hold that the Gooches
have appealed from a nonfinal order; and given the timing of
events and prior precedent, we must dismiss this appeal with
July 2012, the Gooches filed a complaint in the Faulkner
County Circuit Court against Matthew Davis, Leslie Davis,
Margaret Rose Roland, and Landhawg, LLC. The complaint
alleged that Matthew Davis negligently rear-ended James
Gooch's vehicle and caused significant damages. The
complaint also alleged statutory parental liability for a
minor-at-fault driver, negligent entrustment, and negligent
supervision as to Leslie Davis and Margaret Rose Roland
(Matthew Davis's parents), and negligent entrustment as
to Landhawg. When the accident occurred, Matthew was driving
a Chevrolet Avalanche pickup truck that his father had given
to him for his sixteenth birthday. Before giving the truck to
his son, Leslie had used the truck as a company vehicle for
Landhawg, his independently owned business; so Landhawg was
listed as the registered owner of the truck. The Gooches
filed a first amended and substituted complaint on 8 June
2015, which restated their claims against the original
defendants and added (1) a negligence claim against Gerald
Wilson for a motor-vehicle collision that occurred on 8 June
2012 and (2) a negligence claim against Jason Aultman for a
motor-vehicle collision that occurred on 8 July 2012.
April 2017, the court dismissed the Gooches' claims
against Matthew Davis and Margaret Rose Roland with
prejudice. On May 10, Leslie Davis moved for summary judgment
and argued that the Gooches could not prove the required
elements for negligent entrustment, negligent supervision, or
the statutory parental liability for a minor-at-fault driver.
He also said that because the Gooches could not establish
that he himself was negligent, then Landhawg could not be
held liable for the negligent-entrustment claims. On May 10,
Landhawg filed its own motion for summary judgment and argued
that the Gooches could not prove the required elements of
negligent entrustment as to Landhawg. The Gooches opposed
both motions for summary judgment.
pretrial hearing, the Gooches orally moved to withdraw the
claims against Leslie Davis for negligent supervision and
imputed liability based on a minor-at-fault driver. On 22
June 2017, the circuit court entered a partial order of
dismissal that dismissed those claims against Leslie with
prejudice. Also on June 22, the circuit court granted Leslie
Davis's and Landhawg's motions for summary judgment
on the negligent-entrustment claim.
24, the Gooches moved the court to reconsider the grant of
summary judgment and filed a notice of appeal from the
circuit court's June 22 order. The court denied the
motion for reconsideration on August 15. Finally, on October
10, the court entered orders that dismissed Jason Aultman
without prejudice and Gerald Wilson with prejudice.
summary-judgment order entered on June 22 was not a final
order because the Gooches' claims against Jason Aultman
and Gerald Wilson had not yet been adjudicated in some way.
When Aultman and Wilson were dismissed from the case on
October 10, a final, appealable order was created. That meant
a timely notice of appeal from the then-final order (the
Aultman/Wilson order) was required to vest this court with
appellate jurisdiction. See Ballard v. Ally Fin.,
Inc., 2016 Ark.App. 539, 505 S.W.3d 247 (dismissing
appeal with prejudice after appellant filed notice of appeal
from a nonfinal order and failed to amend notice of appeal
after the final order had been entered); see also Ford v.
Milojkovic, 2018 Ark.App. 26 (same) (petition for review
denied). But the Gooches did not file an amended notice of
appeal to capture the Aultman/Wilson order, which could bring
up an intermediate order (or in this case the interlocutory
summary-judgment decision) for review. See Ark. R.
App. P. -Civ. 3 (2017) ("An appeal from any final order
also brings up for review any intermediate order involving
the merits and necessarily affecting the judgment.").
And we must dismiss the appeal with prejudice because filing
a timely notice of appeal from the Aultman/Wilson order is
not possible now. Ballard, supra;
Ford, supra. The result is admittedly a
harsh one, but it is also the inevitable consequence of
applying Arkansas's current finality doctrine to the
rules of appellate procedure.
Klappenbach and ...