Brookewood, Ltd. P'ship v. DeQueen Physical Therapy

Cite as 2016 Ark. App. 159
ARKANSAS COURT OF APPEALS
DIVISION I
No.CV-15-147
BROOKEWOOD, LIMITED Opinion Delivered: MARCH 9, 2016
PARTNERSHIP
APPELLANT APPEAL FROM THE SEVIER COUNTY
CIRCUIT COURT
V. [NO. CV-2012-60-1]
DEQUEEN PHYSICAL THERAPY HONORABLE TOM COOPER, JUDGE
AND OCCUPATIONAL THERAPY,
INC. DISMISSED WITHOUT PREJUDICE
APPELLEE
DAVID M. GLOVER, Judge
This appeal arises out of circumstances relating to a contract between Brookewood,
Limited Partnership (Brookewood), a long-term-care facility in DeQueen, Arkansas, and
DeQueen Physical Therapy and Occupational Therapy, Inc. (DeQueen). Under the terms
of their contract, DeQueen agreed to provide therapy services to Brookewood to the
exclusion of all other long-term-care facilities in the area, and Brookewood agreed to use
the services of DeQueen for a term of twenty years. Brookewood prematurely terminated
the contract, and DeQueen instituted this litigation. The case ultimately proceeded to a
trial wherein a Sevier County jury awarded DeQueen $6 million in compensatory and
punitive damages from Brookewood. This appeal followed. Because we lack a final order,
we are precluded from reaching the merits of this appeal.
Rule 2(a)(1) of the Rules of Appellate Procedure–Civil provides that an appeal may
be taken from a final judgment or decree entered by the circuit court. Whether an order is
final and appealable is jurisdictional and may be raised on this court’s own motion. Dobbs
Cite as 2016 Ark. App. 159
v. Dobbs, 99 Ark. App. 156, 258 S.W.3d 414 (2007). For a judgment to be final, it must
dismiss the parties from the court, discharge them from the action, or conclude their rights
to the subject matter in controversy. Roberts v. Roberts, 70 Ark. App. 94, 14 S.W.3d 529
(2000). With this standard in mind, we turn our attention to the facts in this appeal.
In July 2012, DeQueen and its owners, Darin Tollett and Kim Tollett, filed this
lawsuit against Brookewood. In the initial complaint, DeQueen and the Tolletts sued
Brookewood for breach of contract and promissory estoppel, alleging that Brookewood
owed them money for prematurely terminating their contract without cause and for unpaid
services rendered. DeQueen and the Tolletts later amended their complaint in February
2013. In the amended complaint, they added a civil-conspiracy claim against Brookewood.
They also added Realization Rehab, PLLC (Realization), as a party and sued it for civil
conspiracy and tortious interference with a contractual or business relationship. We observe
that each of the claims in the amended complaint is pursued by “plaintiffs” indicating that
both DeQueen and the Tolletts sought relief based on each of these claims.
Later, the circuit court entered an order for partial summary judgment. That order
dismissed the promissory-estoppel claim in its entirety and the breach-of-contract claims of
the Tolletts. At this juncture, the Tolletts still had pending a civil-conspiracy claim against
Brookewood and tortious-interference and civil-conspiracy claims against Realization.
The case eventually proceeded to a three-day trial by jury. At the conclusion of the
trial, the jury rendered a verdict. The verdict forms indicate that the jury did not determine
the rights of the Tolletts on their civil-conspiracy claim against Brookewood or their
tortious-interference and civil-conspiracy claims against Realization. Likewise, the circuit
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Cite as 2016 Ark. App. 159
court’s judgment did not address or dispose of the remaining claims of the Tolletts. Because
of this, we must dismiss this appeal for lack of a final order.
We also note a briefing deficiency that may need to be addressed upon the refiling
of an appeal. In this appeal, Brookewood challenges the circuit court’s refusal to give a jury
instruction on consequential damages. However, Brookewood fails to include its proposed
jury instruction on consequential damages in its addendum. Arkansas Supreme Court Rule
4-2 requires that an appellant’s brief contain an addendum with “copies of non-transcript
documents in the record that are essential for the appellate court . . . to understand the case
and to decide the issues on appeal.” In determining whether a jury instruction was properly
given or excluded, the proposed instruction is essential to our review and should be included
in the addendum in this appeal.
Dismissed without prejudice.
ABRAMSON and HARRISON, JJ., agree.
Watts, Donovan & Tilley, P.A., by: David M. Donovan and Staci Dumas Carson, for
appellant.
Arnold, Batson, Turner & Turner, PA, by: Dan Turner and Todd Turner, for appellee.
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