Hotels.Com, L.P. v. Pine Bluff Advertising And Promotion Commission

          APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CV-09-946] HONORABLE ROBERT H. WYATT, JR., JUDGE

          Quattlebaum, Grooms & Tull PLLC, by: Steven W. Quattlebaum and Chad W. Pekron, for appellants.

          Thrash Law Firm, P.A., by: Thomas P. Thrash; and Williams & Anderson PLC, by: W. Jackson Williams, Peter G. Kumpe, and Heather G. Zachary, for appellees.

          RHONDA K. WOOD, Associate Justice

         The online travel companies, Hotels.com, L.P., Hotwire, Inc., Trip Network, Inc. (d/b/a Cheaptickets.com), Expedia, Inc., Internetwork Publishing Corp. (d/b/a Lodging.com), Orbitz, LLC, priceline.com Incorporated (n/k/a Booking Holdings Inc.), priceline.com LLC, Travelocity.com L.P. (n/k/a TVL LP), Travelweb LLC, and Site59.com LLC (collectively, the OTCs), appeal the circuit court's order denying their motion for summary judgment and granting appellees'^[1] motion for partial summary judgment. We dismiss the appeal for lack of a final order.

         Appellees' class-action complaint against the OTCs alleges that the OTCs had failed to collect, or collected and failed to remit, the full amount of gross-receipts taxes imposed by the government entities on hotel accommodations. The circuit court granted class certification, and this court affirmed that decision. Hotels.com, L.P. v. Pine Bluff Ad. & Promotion Comm'n, 2013 Ark. 392, 430 S.W.3d 56.

         Following fact discovery, the appellees moved for partial summary judgment on the issue of liability, and appellants filed a cross-motion for summary judgment. The circuit court granted appellees' motion and denied appellants' motion. The circuit court concluded that the OTCs are liable for the taxes on the full gross receipts they receive from customers. The order further states that appellees may "petition for additional relief permissible under the law relating to past taxes owed, supplemental relief, or otherwise." It also indicates that the court will then determine whether such supplemental relief is justified, providing, "If the Court rules that supplemental relief shall be granted the OTCs have 30 days to provide all transaction data for the named class members." Lastly, the circuit court's order states,

This preliminary order is not final and will be held open consistent with and to allow for further development of these proceedings consistent with the steps outlined above. This Court accordingly retains jurisdiction to determine any and all further and supplemental relief appropriate.

         An order is not final if it adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties unless the circuit court enters a Rule 54(b) certification. Ark. R. App. P.-Civ. 2(a); McKinney v. Bishop, 369 Ark. 191, 252 S.W.3d 123 (2007). "An order which establishes a plaintiff's right to recover, but leaves for future determination the exact amount of damages, is not final." Keith v. Barrow-Hicks Extensions of Water Imp. Dist. No. 85, 275 Ark. 28, 31, 626 S.W.2d 951, 953 (1982); see also U.S. Bank, N.A. v. Milburn, 352 Ark. 144, 100 S.W.3d 374 (2003).

         Here, the circuit court specifically stated that its order is preliminary and that it was retaining jurisdiction to develop and determine the appropriate relief, and it did not enter a Rule 54(b) certification. Therefore, this is not a final order, and we dismiss the appeal.

         Dismissed.

          Hart, J., dissents.

          Josephine Linker Hart, Justice, dissenting.

         I dissent. The majority is correct insofar as the order appealed from lacks a Rule 54(b) certificate and contemplates future litigation for calculation of damages. Generally speaking, this does not qualify as a final, appealable order. However, halting the analysis there ignores the history of this matter and amounts to an unjust result. The doctrine against inconsistent positions should hold the appellees to their original pleadings in this matter, which did not contain a request for damages. Therefore, the circuit court's ...