APPEAL
FROM THE BAXTER COUNTY CIRCUIT COURT [NO. 03CV-13-56]
HONORABLE GAIL INMAN-CAMPBELL, JUDGE
J.
Downum Law Office, PLLC, by: Justin E. Downum, for appellant.
Ethredge & Copeland, P.A., by: Johnnie A. Copeland, for
separate appellees Mildred and David Brown.
PHILLIP T. WHITEAKER, JUDGE
The
Baxter County Circuit Court entered judgment in favor of
appellees David and Mildred Brown in their breach-of-contract
action against appellant Debbie Derrick and her husband,
William Derrick. Debbie Derrick appealed. We must dismiss the
appeal because we lack a final order.
In
2011, the Browns and the Derricks entered into a contract for
the sale of the Browns' bait and tackle shop, Little
Cedar Bait and Tackle, inclusive of its goodwill and
inventory. The Derricks made a down payment of $20, 000 but
did not make any subsequent payments pursuant to the terms of
the contract. The Browns filed a complaint against the
Derricks alleging breach of contract. The Derricks, who were
represented by the same counsel, filed separate but identical
answers and counterclaims. The Derricks' counterclaims
charged the Browns with breach of contract, contending that
the Browns committed the first breach.
The
parties proceeded to a bench trial on their respective claims
in 2018. Although Debbie Derrick was present for trial,
William Derrick was not.[1] The only witness to testify was David
Brown, who described the circumstances surrounding the sale
of the business and offered his interpretation of the
contract language. At the conclusion of the trial, the
circuit court ruled from the bench that the Browns should
have judgment jointly and severally against the Derricks in
the amount of $90, 500, plus attorney's fees. On
September 11, 2018, the court entered a written order
specifically finding that the Derricks breached their
contract with the Browns, noting that "the Defendants
failed to perform their agreement as required by the terms
and conditions of the contract for the sale of the
business." The written order did not, however, expressly
address or rule on the Derricks' counterclaims.
Debbie
Derrick appealed the judgment rendered against her. She
timely filed a notice of appeal in which she made it clear
that "the party making this appeal is Debbie Followell
Derrick, the Defendant." Her notice further contained
the statement that she, as the appealing party, "hereby
abandons any pending but unresolved claim." See
Ark. R. App. P.-Civ. 3(e)(vi). No notice of appeal was ever
filed on William's behalf, however.
We
cannot reach the merits of Debbie's arguments at this
time because we conclude that this appeal does not contain a
final order. Whether a judgment, decree, or order is final is
a jurisdictional issue that the appellate court has a duty to
raise, even if the parties do not, in order to avoid
piecemeal litigation. Wommack v. Ingram, 2010
Ark.App. 529, at 2; Mitchell v. Fells, 2010 Ark.App.
293. When more than one claim for relief is presented in an
action-whether as a claim, counterclaim, cross-claim, or
third-party claim-the court may direct the entry of a final
judgment as to one or more but fewer than all the claims or
parties only upon an express determination, supported by
specific factual findings, that there is no just reason for
delay and upon an express direction for the entry of
judgment. Ark. R. Civ. P. 54(b) (2019). Absent a certificate
from the circuit court directing that the judgment is final,
"any judgment, order, or other form of decision, however
designated, which adjudicates fewer than all the claims or
the rights and liabilities of fewer than all the parties
shall not terminate the action as to any of the claims or
parties." Ark. R. Civ. P. 54(b)(2).
The
circuit court entered a judgment that clearly disposes of the
Browns' breach-of-contract action, but it did not address
the Derricks' separate counterclaims. Although
Debbie's notice of appeal advises that she abandons any
pending but unresolved claims, she cannot abandon the claims
of another party. See Ford Motor Co. v. Washington,
2012 Ark. 354, at 2 (noting that Rule 3 "does not allow
an appealing party to dismiss a party from the action by such
a statement in a notice of appeal or notice of
cross-appeal," and while it "requires appellants
and cross-appellants to abandon pending and unresolved
claims, . . . it does not permit appellants and
cross-appellants to dispose of parties in the same
fashion"); Jenkins v. APS Ins., LLC, 2012
Ark.App. 368, at 5 ("The fact that Jenkins and D & A
abandoned any pending but unresolved claims in their notice
of appeal does not provide finality because they cannot
abandon APS's claims, only their own.").
Because
Debbie cannot abandon William's unresolved counterclaim,
we are left without a final, appealable order. We therefore
dismiss the appeal without prejudice.
Dismissed
without prejudice.
Hixson
and ...