Prochazka v. Bee-Three Dev. LLC , 2014 Ark. App. 318 ( 2014 )

Cite as 2014 Ark. App. 318
ARKANSAS COURT OF APPEALS
DIVISION II
No.CV-13-1088
Opinion Delivered May 21, 2014
ROBERT B. PROCHAZKA and APPEAL FROM THE POPE COUNTY
DONNA M. PROCHAZKA CIRCUIT COURT
APPELLANTS [NO. CV-2012-416]
V. HONORABLE DENNIS C.
SUTTERFIELD, JUDGE
BEE-THREE DEVELOPMENT, LLC
APPELLEE DISMISSED
BRANDON J. HARRISON, Judge
Bee-Three Development, LLC agreed to buy some commercial property from
Robert and Donna Prochazka in 2012. The deal fell through. In August 2013, Bee-
Three sued the Prochazkas, demanding that they return the $7,000 earnest money Bee-
Three paid pursuant to the parties’ written contract. The Prochazkas counterclaimed for
damages “to be established at trial” and alleged that Bee-Three had breached the contract
first. They also sought $7,000 in liquidated damages under the contract’s terms. In May
2013, Bee-Three moved for judgment as a matter of law. The court granted Bee-Three
summary judgment on its claim for $7,000, and dismissed the Prochazkas’ counterclaim
without prejudice. The Prochazkas appealed that decision. Because the court’s summary-
judgment order is not a final order, we must dismiss the Prochazkas’ appeal without
prejudice.
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Cite as 2014 Ark. App. 318
No party has raised the issue, but whether an order is final for appeal purposes is a
jurisdictional point that we must often raise on our own. Rule 2(a)(1) of the Arkansas
Rules of Appellate Procedure–Civil (2013) states that an appeal may—absent some
exceptions that do not apply—be taken from a final judgment or decree. A final order is
one that dismisses the parties, discharges them from the action, or concludes their rights to
the subject matter in controversy. Davis v. Brown, 2011 Ark. App. 789. Absent a final
order or a properly executed certificate from the circuit court making an “express
determination, supported by specific factual findings, that there is no just reason for
delay”—which we do not have—an order that fails to adjudicate all of the parties’ claims
cannot be appealed. Ark. R. Civ. P. 54(b) (2013).
The problem here is the counterclaim was dismissed without prejudice. Our
supreme court has held that an order was not a final, appealable order when a defendant
nonsuited her compulsory counterclaims, and the circuit court order addressed only the
plaintiff’s claims. Bevans v. Deutsche Bank Nat’l Trust Co., 373 Ark. 105, 107, 281 S.W.3d
740, 742 (2008). In Bevans, the supreme court stated that even a written order reflecting
that the defendants’ compulsory counterclaims were dismissed without prejudice would
not have cured the finality problem because the compulsory counterclaims could be refiled
later. Id.
By rule, a compulsory counterclaim is
any claim which, at the time of filing the pleading, the pleader has against
any opposing party, if it arises out of the transaction or occurrence that is the
subject matter of the opposing party’s claim and does not require for its
adjudication the presence of third parties of whom the court cannot acquire
jurisdiction.
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Ark. R. Civ. P. 13(a) (2013).
The Prochazkas’ counterclaim or counterclaims—the singular or plural nature of
their claim for relief is a bit unclear—are compulsory, which means the dismissal without
prejudice poses a jurisdictional problem. See Crockett v. C.A.G. Invs., Inc., 2010 Ark. 90,
361 S.W.3d 262. In August 2013, the circuit court clearly ordered that the Prochazkas’
counterclaim be “dismissed without prejudice” in its summary-judgment order. As far as
we can tell, that was a first dismissal, and the Prochazakas may have time to refile their
claim (or claims) within the applicable statute of limitations. All this means that the
court’s summary-judgment order is not a final one for appellate-review purposes. Bevans,
supra.
The finality problem likely could have been cured had the Prochazkas’ notice of
appeal recited the required language from Ark. R. App. P.—Civ. 3(e)(vi) (2013). But the
notice does not state that they abandoned any pending but unresolved claims;
consequently, the status of the Prochazkas’ request for relief is unsettled.
Finally, in the interest of judicial economy, we note that the circuit court’s docket
sheet, and its summary-judgment order, reflect that the court held a hearing on 30 July
2013. The court’s summary-judgment order states that the court considered the parties’
arguments when it decided this case. The Prochazkas’ notice of appeal expressly states that
they did not request a transcript of the summary-judgment hearing. As a general rule,
however, this court and our supreme court require the record on appeal and the briefing
material include all material information that a circuit court considered when granting a
party’s motion for summary judgment. Verdier ex rel. Verdier v. Verdier, 362 Ark. 660, 210
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S.W.3d 123 (2005). The parties may, therefore, want to reconsider whether a transcript
of the hearing is material to this court’s ability to conduct a plenary review of the circuit
court’s decision to enter judgment as a matter of law.
Dismissed.
WALMSLEY and WYNNE, JJ., agree.
Laws Law Firm, P.A., by: Hugh R. Laws, for appellants.
Jon R. Sanford, P.A., by: Jon R. Sanford, for appellee.
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