Billingsley v. Benton NWA Props. LLC

Cite as 2014 Ark. 65
SUPREME COURT OF ARKANSAS
No. CV-13-705
DAN BILLINGSLEY, BRENDA Opinion Delivered February 13, 2014
BILLINGSLEY, AND FLOORS AND
MORE, INC. APPEAL FROM THE SALINE
APPELLANTS COUNTY CIRCUIT COURT
[NO. 63CV-09-1214]
V.
HONORABLE JOHN LINEBERGER,
JUDGE
BENTON NWA PROPERTIES, LLC
APPELLEE DISMISSED WITHOUT PREJUDICE.
CLIFF HOOFMAN, Associate Justice
Appellants, Dan Billingsley, Brenda Billingsley, and Floors and More, Inc., appeal after
the Saline County Circuit Court filed an order on April 23, 2013, granting a motion to
enforce a settlement agreement in favor of appellee, Benton NWA Properties, LLC (“Benton
NWA”). On appeal, appellants contend that the circuit court erred in ordering that the
settlement agreement between the parties should contain a release of all liability for future
flooding of property owned by the Billingsleys. Because the circuit court’s order failed to
contain specific factual findings in accordance with Arkansas Rule of Civil Procedure 54(b),
we dismiss the appeal without prejudice.
Dan and Brenda Billingsley owned and operated Floors and More, Inc., off Interstate
30, west of Hurricane Creek in Benton, Arkansas (“West Bank Property”). Benton NWA
purchased the property on the east bank of Hurricane Creek across from the property owned
Cite as 2014 Ark. 65
by the Billingleys in 2008 (“East Bank Property”). Appellants filed their second amended
complaint on September 20, 2010, and their first amendment to their second amended
complaint on April 26, 2011, alleging, in pertinent part, that the past and present owners of
the East Bank Property placed fill material in the floodplain of the east bank of Hurricane
Creek beginning on or before 2001. Furthermore, the complaint alleged that after the West
Bank Property flooded in 2008, the Billingsleys sustained approximately $500,000 in damages
to their real property and building and that Floors and More, Inc., sustained a $600,000 loss
of inventory, equipment, fixtures, and other improvements, in addition to a $2,500,000 loss
in property value. While the complaint lists several causes of action and names many
defendants not subject to this appeal, only counts one, two, five, and eight specifically named
appellee.
On February 12, 2013, the parties to this appeal orally announced to the court that a
settlement agreement had been reached between them. Subsequently, appellants and appellee
filed cross-motions to enforce the settlement agreement, since they alleged that there was a
disagreement as to the scope of the release. On April 23, 2013, the trial court filed an order
finding that “the settlement agreement between plaintiffs and separate defendant Benton
NWA Properties, LLC effected a release by plaintiffs of all claims against Benton NWA
Properties, LLC and its successors in interest based on current conditions on the property
Benton NWA Properties owns on the east bank of Hurricane Creek in Benton, Arkansas, that
Benton NWA Properties, LLC’s motion to enforce settlement agreement is granted, and that
plaintiff’s counter-motion to enforce settlement is denied.” A month later, the trial court
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issued a certificate pursuant to Rule 54(b) of the Arkansas Rules of Civil Procedure. This
appeal followed.
Before addressing the merits of this case, we must first address the sufficiency of the
Rule 54(b) certificate. This court has held that the sufficiency of a Rule 54(b) certificate is
a jurisdictional issue that this court has the duty to raise, regardless of whether it is raised by
the parties. Kowalski v. Rose Drugs of Dardanelle, Inc., 2009 Ark. 524, 357 S.W.3d 432. Rule
54(b) provides, in pertinent part, that the circuit court may direct the entry of a final
judgment “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); Holbrook v. Healthport, Inc., 2013 Ark. 87. Furthermore, the court must
execute a certificate “which shall set forth the factual findings upon which the determination
to enter the judgment as final is based[.]” Ark. R. Civ. P. 54(b). Therefore, this court has
held that “the rule requires the order to include specific findings of any danger of hardship or
injustice that could be alleviated by an immediate appeal and to set out the factual
underpinnings that establish such hardship or injustice.” Holbrook, supra.
On May 23, 2013, the circuit court in this case issued the following Rule 54(b)
certificate:
With reference to the issues determined by the Order of this Court entered April 23,
2013, the Court finds:
1. A hearing was held in this matter on April 4, 2013, on Benton NWA
Properties, LLC’s Motion to Enforce Settlement and the Plaintiffs’
Counter-Motion to Enforce Settlement.
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2. Plaintiffs and Separate Defendant Benton NWA Properties, LLC
entered into a settlement agreement.
3. Plaintiffs contend that the settlement agreement did not address damages
caused by future flooding of the Plaintiffs’ property caused by conditions
on Benton NWA Properties’ property at the time of the settlement and
that they are entitled to recover damages for future flooding. Separate
Defendant Benton NWA Properties contends that the settlement
entitles it to a release of all past and future liability arising out of the
conditions that existed on its property at the time of settlement.
4. The Court granted the Motion of Benton NWA Properties, LLC,
ruling that it was entitled to a release of all claims by the Plaintiffs against
Benton NWA Properties, LLC and its successors based on current
conditions on the property now owned by Benton NWA Properties on
the east bank of Hurricane Creek. The Court ordered and directed the
plaintiffs to sign the settlement agreement proposed by Benton NWA
Properties.
5. The Court finds and certifies that there are additional issues pending in
the case; that there is no just reason for delay of the ability of the
Plaintiff to appeal the Order of this Court dated April 23, 2013; that the
above and foregoing Order should be a final Judgment or Order in
accordance with Rule 54(b)(1) of the Arkansas Rules of Civil
Procedure, notwithstanding that there are other claims remaining in this
case; that an appeal of this Order should be permitted for judicial
economy and efficiency; and that the Court has and does hereby direct
that this Order be a final judgment for all purposes.
After reviewing the certificate, we find that the order does not comply with the rule.
In Holbrook, 2013 Ark. 87, this court dismissed the appeal without prejudice, explaining that
a one-sentence explanation that “the granting of the motions for partial summary judgment
‘renders every other claim by [Holbrook] moot, effectively ending the litigation’” was
insufficient. In the instant case, the court order fails to even include a one-sentence factual
finding. Thus, we dismiss the appeal without prejudice as the certificate fails to comply with
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Rule 54(b), because it does not provide specific factual findings of any danger of hardship or
injustice that could be alleviated by an immediate appeal.
Dismissed without prejudice.
Richard Mays Law Firm, PLLC, by: Richard H. Mays, for appellants.
Quattlebaum, Grooms, Tull & Burrow, PLLC, by: E.B. Chiles IV and Sarah Keith-Bolden,
for appellee.
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