FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CV-17-2210]
HONORABLE JOHN R. SCOTT, JUDGE
Friday, Eldredge & Clark, LLP, by: Marshall S. Ney,
Angela C. Artherton, and Kael K. Bowling, for appellant.
Watkins, Boyer, Gray & Curry, PLLC, by: Jennifer E. Gray,
for separate appellee Martin Elzey.
Clark, Butt, Carithers & Taylor, PLC, by: Constance G.
Clark, for separate appellees The Hagan Co., LLC, d/b/a
Re/Max Real Estate Results; Whitney Koenigseder; Matt Kelly;
and Kim Minor.
D. Vaught, Judge
Investment Group, LLC, appeals two orders entered by the
Benton County Circuit Court. The first order granted Martin
Elzey's motion for summary judgment, and the second order
denied Green Investment's motion to vacate, alter, or
amend. Green Investment argues that there are genuine issues
of material fact warranting reversal of the summary-judgment
order and that the circuit court abused its discretion in
denying its motion to vacate. Because the orders from which
Green Investment appeals are not final, we dismiss the appeal
without prejudice for lack of jurisdiction.
October 24, 2017, Green Investment filed suit for a
declaratory judgment against Elzey seeking to enforce a real
estate contract entered into by the parties on May 7 wherein
Elzey agreed to sell Green Investment fifteen acres located
on Glen Road in Bentonville, Arkansas. Green Investment
prayed for specific performance. Elzey answered and filed a
counterclaim against Green Investment for breach of contract.
Elzey subsequently filed a third-party complaint against his
real estate agents, The Hagan Company, LLC, d/b/a Re/Max Real
Estate Results; Whitney Koenigseder; Matt Kelly; and Kim
Minor (collectively "Re/Max"), for breach of
moved for summary judgment, arguing that Green Investment
breached the real estate contract and that it was
unenforceable; therefore, Elzey was entitled to judgment as a
matter of law, and as a result, so was Re/Max. Re/Max also
filed a motion to dismiss the third-party complaint,
contending that the complaint failed to state a claim upon
which relief could be granted.
also moved for summary judgment against Green Investment,
incorporating Re/Max's summary-judgment allegations and
exhibits. In addition, Elzey filed a first amended
third-party complaint against Re/Max that clarified the
nature and extent of the damages suffered by him as a result
of the actions, inactions, and advice of Re/Max. Re/Max moved
for partial dismissal of the first amended third-party
complaint, contending that the claims therein were not ripe,
and to the extent any viable claims remained, they should be
bifurcated from Green Investment's claim against Elzey.
hearing on all the motions filed by the parties, the circuit
court, on April 20, 2018, entered an order granting summary
judgment in favor of Elzey; granting Re/Max's motion to
dismiss the third-party complaint; dismissing Re/Max's
motion for summary judgment as moot; and granting
Re/Max's partial motion to dismiss the first amended
third-party complaint. Thereafter, Green Investment moved to
vacate, alter, or amend the circuit court's
summary-judgment order. The circuit court denied the motion
in a June 1, 2018 order. This appeal followed.
cannot reach the merits of Green Investment's arguments
because neither of the orders from which Green Investment
appeals is a final order. Arkansas Rule of Appellate
Procedure-Civil 2(a) (2019) permits an appeal from a final
order and other categories constituting exceptions not
applicable here. The order must be final for this court to
have jurisdiction; therefore, it is a matter we will consider
even though the parties do not raise it. Cleary v. Sledge
Props., Inc., 2009 Ark.App. 353, at 1 (per curiam).
Arkansas Rule of Civil Procedure 54(b), an order that fails
to adjudicate all the claims as to all the parties, whether
presented as claims, counterclaims, cross-claims, or
third-party claims, is not final for purposes of appeal.
Id. at 1; see Ark. R. Civ. P. 54(b) (2019).
Although Rule 54(b) provides a method by which the circuit
court may direct entry of final judgment as to fewer than all
the claims or parties, where there is no attempt to comply
with Rule 54(b), the order is not final, and we must dismiss
the appeal. Cleary, 2009 Ark.App. 353, at 1. The
fundamental policy behind Rule 54(b) is to avoid piecemeal
orders being appealed from in the present case do not
adjudicate or even mention Elzey's counterclaim against
Green Investment. Further, the orders being appealed from do
not contain a Rule 54(b) certification directing that a final
judgment be entered as to only Green Investment's
complaint. Because the appeal presented has complied with
neither Arkansas Rule of Appellate Procedure-Civil 2(a) nor
Arkansas Rule of Civil Procedure 54(b), we lack jurisdiction,
and the appeal must be dismissed without prejudice.
Hanners v. Giant Oil Co. of Ark., Inc., 369 Ark.
226, 230, 252 S.W.3d 424, 427 (2007) (dismissing appeal for
lack of jurisdiction because circuit court failed to rule on
the counterclaim); Jacobs v. Collison, 2015 Ark.App.
420, at 4 (same); Spears v. Spears, 2012 Ark.App.
181, at 2 (same); Cleary, 2009 Ark.App. 353, at 2
(same); Billingsley v. Planit Dirt Excavation &
Concrete, Inc., 2011 Ark.App. 449, at 3 (holding that
because the circuit court did not expressly ...