FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION [NO.
60CV-17-2592] HONORABLE TIMOTHY DAVIS FOX, JUDGE APPEAL
DISMISSED WITHOUT PREJUDICE
& Co., PLLC, by: Tim Cullen, for appellants.
Law Firm, PLLC, by: Paul Prater, for appellee.
F. VIRDEN, JUDGE
Pulaski County Circuit Court granted the motion of appellee
Park H Properties, LLC, for default judgment as to appellant
A Time For You, LLC. The trial court also granted Park
H's motion for partial summary judgment as to appellant
Cheryl Musticchi. Appellants moved to set aside those
judgments, but the trial court denied their motions.
Appellants now appeal from the orders granting Park H's
motions and denying their postjudgment motions. We dismiss
the appeal without prejudice for lack of a final, appealable
September 30, 2015, Park H entered into a one-year commercial
lease agreement with Musticchi in which she agreed to rent
storefront property in North Little Rock to run her
salon-and-massage business called A Time For You. Appellants
vacated the property around June 30, 2016. On May 23, 2017,
Park H filed a complaint against appellants alleging that
appellants had breached the contract by not paying rent after
June 30 and by damaging the property. Appellants were served
with the complaint and summons on June 8. Musticchi, pro se,
timely filed an answer on July 7; A Time For You did not.
14, 2017, Park H filed a motion for default judgment with
respect to A Time For You based on its failure to timely file
an answer to Park H's complaint. Park H sought default
judgment on both breach-of-contract claims. On July 28, the
trial court granted the motion and entered judgment against A
Time For You for $9, 370. On November 13, A Time For You
moved to set aside the default judgment, but the trial court
denied its motion.
July 14, 2017, Park H submitted to Musticchi its first set of
requests for admissions to which she responded on August 13
through counsel. On August 28, Park H filed a motion for
partial summary judgment against Musticchi on its claim for
breach of contract as to the unpaid rent. Musticchi did not
respond to Park H's motion for partial summary judgment.
No hearing was held. On September 27, the trial court granted
Park H's motion. On October 19, the trial court denied
Musticchi's "Motion Pursuant to Rule 59." On
January 12, 2018, the trial court denied her motion to set
aside the partial summary judgment.
18, 2018, the trial court granted Park H's request for a
nonsuit of "all pending but unresolved claims"
without prejudice. On August 15, appellants, through counsel,
filed their joint notice of appeal. The notice of appeal
states that the orders subject to appeal have become final,
appealable orders as a result of the July 18 order.
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 trial court. A final order is one that
dismisses the parties, discharges them from the action, or
concludes their rights to the subject matter in controversy.
Johnson v. Windstream Commc'ns, Inc., 2016
Ark.App. 419. Whether an order is final for appeal purposes
is a jurisdictional question that this court will raise sua
sponte. Deer/Mt. Judea Sch. Dist. v. Beebe, 2012
Ark. 93. 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. Ark. R. Civ. P. 54(b)(1). The purpose of
the rule is to avoid piecemeal litigation. Toland v.
Robinson, 2017 Ark. 41.
parties to a lawsuit cannot create a final order by taking a
voluntary nonsuit dismissing their remaining claims without
prejudice. Bevans v. Deutsche Bank Nat'l Tr.
Co., 373 Ark. 105, 281 S.W.3d 740 (2008); Haile v.
Ark. Power & Light Co., 322 Ark. 29, 907 S.W.2d 122
(1995); Park Plaza Mall CMBS, LLC v. Powell, 2018
Ark.App. 48; Pro Transp., Inc. v. Volvo Trucks N. Am.,
Inc., 96 Ark.App. 166, 239 S.W.3d 537 (2006); French
v. Brooks Sports Ctr., Inc., 57 Ark.App. 30, 940 S.W.2d
507 (1997). Voluntary nonsuits are governed by Arkansas Rule
of Civil Procedure 41(a), which provides that an action may
be dismissed without prejudice to a future action by the
plaintiff, assuming that there has been no previous
dismissal. After a voluntary nonsuit, the plaintiff may
refile the claim within one year. Ark. Code Ann. §
16-56-126(a) (Supp. 2017).
the dismissal of a claim without prejudice does not
create finality. Park Plaza Mall, supra;
see, e.g., Ratzlaff v. Frantz Foods of
Ark., 255 Ark. 373, 500 S.W.2d 379 (1973);
Haile, supra. 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. See, e.g., Driggers v.
Locke, 323 Ark. 63, 913 S.W.2d 269 (1996). The facts of