FROM THE CLARK COUNTY CIRCUIT COURT [NO. 10CV-11-19]
HONORABLE GREGORY L. VARDAMAN, JUDGE
Walthall Law Firm, P.A., by: Cecilia Ashcraft and G.
Christopher Walthall, for appellants.
McMillan, McCorkle & Curry, LLP, by: F. Thomas Curry, for
appellee Rogers Construction, Inc.
W. GRUBER, Chief Judge
and Tabitha Lancaster appeal from the Clark County Circuit
Court's dismissal of their complaint and granting the
motion for summary judgment of Rogers Construction, Inc. We
dismiss for lack of jurisdiction.
April 12, 2006, the Lancasters entered into a contract with
Rogers Construction, Inc., to design and build their home in
Arkadelphia, Arkansas. After construction of the home was
completed, the Lancasters noticed various defects in the
home, including gaps between the brick and the slab, that the
bathroom and front of the house were sinking, cracked bricks,
cracked sheetrock, and excessively sweating windows. On
February 17, 2011, Mr. Lancaster filed a complaint against
Rogers Construction, Inc.; Roger E. Rogers, individually;
Rustan K. Rogers, individually; and John and Jane Does 1- 99.
He alleged claims for breach of express contract, breach of
implied contract, breach of implied warranties, negligence,
strict liability in tort, and fraud by misrepresentation or
concealment. Rogers Construction filed an answer denying the
allegations, and Roger Rogers and Rustan Rogers filed a
motion to dismiss the complaint.
26, 2011, the circuit court entered an order dismissing in
part the complaint against Roger Rogers and Rustan Rogers.
The court found that there was "no allegation of facts
contained" in the complaint for which Mr. Lancaster
could obtain relief against the individual defendants for
breach of the written contract because they were not parties
to the agreement. The court also found there were no facts
alleged in the complaint under which Mr. Lancaster could
obtain relief from the individual defendants under a theory
of products liability. The court ordered that the complaint
against Roger and Rustan be dismissed without prejudice
regarding breach of express contract and product liability.
It then ordered that "the Motion to Dismiss filed by the
Defendants, Roger E. Rogers and Rustan K. Rogers concerning
the remaining portions of Plaintiff's Complaint are
denied" and gave them ten days to file an answer to the
complaint. Roger and Rustan filed an answer on May 31, 2011.
April 26, 2017, Mr. Lancaster filed an amended complaint
adopting each and every allegation contained in the original
complaint and requesting the court to add his wife to the
action as a plaintiff. Rogers Construction filed an answer,
and Roger and Rustan again filed a motion to dismiss the
complaint. The court never ruled on the motion to dismiss,
but it granted the motion to join Mrs. Lancaster as a
plaintiff in an order entered on July 20, 2018.
Lancasters filed a second amended complaint on August 13,
2018, "assert[ing] each and every allegation of their
original Complaint filed herein and reassert[ing] all claims,
not barred by Court Order, on behalf of both
Plaintiffs." Rogers Construction filed an answer to the
second amended complaint; the individual defendants did not.
On September 10, 2018, Rogers Construction filed a motion for
summary judgment arguing that the written contract between
the parties excluded liability for damages resulting from the
shifting or settling of ground, that the damage to the
Lancasters' home was caused by settling of the ground
beneath the house, and therefore their damages were excluded
under the contract. After a hearing on the matter, the court
entered an order on November 28, 2018, dismissing the
Lancasters' complaint with prejudice, finding that there
were no material issues of fact and that the undisputed
evidence demonstrated the damages claimed by the Lancasters
were "expressly excluded under the written
contract." The Lancasters filed a notice of appeal from
the court's order.
limited exceptions not applicable here, Arkansas Rule of
Appellate Procedure-Civil 2(a) permits appeals only from
final orders of a circuit court. An order must be final for
the appellate court to have jurisdiction; thus, we may
consider this issue even though the parties have not raised
it. Ditch 56 Farms, LLC v. Foster, 2013 Ark.App.
505, at 4. Pursuant to Rule 54(b) of the Arkansas Rules of
Civil Procedure, an order in which fewer than all claims are
adjudicated is not an appealable order unless the circuit
court expressly directs the entry of a final judgment to
claims disposed of and expressly determines that there is no
just reason for delay. Billingsley v. Planit Dirt
Excavation, 2011 Ark.App. 449, at 2. The complaint in
this case alleged claims against Rogers Construction, Inc.,
Roger Rogers, and Rustan Rogers for breach of express
contract, breach of implied contract, breach of implied
warranties, negligence, strict liability in tort, and fraud
by misrepresentation or concealment. In an order entered in
2011, the court dismissed the claims of breach of
"express contract" and "product
liability" against Roger and Rustan. In 2018, the
court granted Rogers Construction's motion for summary
judgment on the breach-of-contract claim. It is not clear,
however, what disposition was made of the remaining claims
against Rogers Construction, Roger Rogers, and Rustan
Rogers. In the absence of a clear and final
determination of the rights of the parties or a properly
executed Rule 54(b) certificate, we have no jurisdiction over
dismissed without prejudice.
Klappenbach and Brown, JJ., agree.