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 APPELLANTS
PINE BLUFF ADVERTISING AND PROMOTION COMMISSION; JEFFERSON COUNTY, ARKANSAS; CITY OF NORTH LITTLE ROCK, ARKANSAS; AND ALL OTHERS SIMILARLY SITUATED APPELLEES
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.
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.
K. WOOD, Associate Justice
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' motion for partial summary judgment. We
dismiss the appeal for lack of a final order.
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.
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
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.
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).
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.
Josephine Linker Hart, Justice, dissenting.
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