Terry Hanners v. Giant Oil Company of Arkansas, Inc.
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SUPREME COURT OF ARKANSAS
No.
06-800
Opinion Delivered MARCH 15, 2007
TERRY HANNERS,
APPELLANT;
VS.
GIANT OIL COMPANY OF ARKANSAS,
INC.,
APPELLEE;
APPEAL FROM THE MISSISSIPPI
COUNTY CIRCUIT COURT,
CHICKASAWBA DISTRICT;
NO. CV-04-256;
HON. CHARLES DAVID BURNETT,
JUDGE;
DISMISSED WITHOUT PREJUDICE.
DONALD L. CORBIN, Associate Justice
Appellant Terry Hanners appeals the Mississippi County Circuit Court’s order
granting summary judgment in favor of Appellee Giant Oil Company of Arkansas, Inc.
(Giant Oil), and its order awarding attorney’s fees and costs to Giant Oil. On appeal,
Hanners raises two arguments for reversal: the trial court erred in (1) granting Giant Oil’s
motion for summary judgment in this declaratory judgment action because the purchaseoption provision drafted by Giant Oil’s attorney is ambiguous, and (2) awarding $7,500 in
attorney’s fees and costs to Giant Oil because Ark. Code Ann. § 16-22-308 (Repl. 1999) does
not allow for the award of attorney’s fees in declaratory judgment actions where no claim is
made to recover for breach of contract, no claim is made for the recovery of damages, and
no damages are recovered. Because this case involves an issue of statutory interpretation,
our jurisdiction is proper pursuant to Ark. Sup. Ct. R. 1-2(a)(1). We dismiss the appeal for
lack of a final order.
On August 12, 1981, Hanners and Giant Oil entered into a lease agreement whereby
Hanners leased some property to Giant Oil for use as a gas station and convenience store.
The original lease term, beginning on January 1, 1982, was for five years, with the option of
renewal for up to four additional five-year terms. Additionally, the lease contained the
following purchase-option provision:
3.4 Lessor hereby grants unto Lessee the right to purchase the premises
for $150,000.00 at the end of the primary term and the first option period.
Thereafter, for the three 5-year terms, this option price shall increase to
$200,000.00.
Throughout the years, Giant Oil exercised its renewal option, and on June 1, 2004, during the
last five-year term, Giant Oil sent a letter to Hanners notifying him of its intention to
purchase the leased property in accordance with the lease agreement. In a June 25, 2004
letter, Hanners, through his attorney, informed Giant Oil that he would not sell the property
because Giant Oil had failed to notify Hanners as required by the lease agreement.
On September 23, 2004, Giant Oil filed a complaint for declaratory judgment
concerning the rights, status, and legal relations of Giant Oil and Hanners in the lease
agreement, and seeking a judgment declaring: (a) Giant Oil had provided reasonable notice
to Hanners of its exercise of the purchase option; (b) Giant Oil was contractually entitled to
purchase the lease property on December 31, 2006, under the terms of the purchase option;
and (c) the lease agreement did not contain a notice requirement. On November 14, 2005,
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Giant Oil filed a motion for summary judgment asserting that the plain and unambiguous
language of the lease clearly entitles Giant Oil to purchase the leased property at the end of
the primary term of the lease and at the end of any of the four optional terms of the lease.
On December 2, 2005, Hanners filed an amended answer and counterclaim.1 In the
amended counterclaim, Hanners argued that he was entitled to a judgment declaring: (a) the
agreement between Hanners and Giant Oil required Giant Oil to exercise its option to
purchase no later than the end of the third renewal term; (b) Giant Oil failed to purchase the
property within that time provided by the lease agreement; and (c) Hanners is not obligated
to sell the real property to Giant Oil at the end of the current lease term. Hanners also prayed
that Giant Oil’s complaint be dismissed. That same day, Hanners filed his response to Giant
Oil’s motion for summary judgment in which he argued that summary judgment should not
be granted because the lease agreement is not clear and, at best, it is ambiguous. Hanners
also argued that the lease agreement does not entitle Giant Oil to purchase at any time, but
that the purchase option must be exercised before the end of the third renewal term. Lastly,
in his response to Giant Oil’s motion for summary judgment, Hanners requested that the
court grant the relief requested in his counterclaim. In response, on December 19, 2005,
Giant Oil asked the trial court to dismiss Hanners’s counterclaim.
On February 3, 2006, a hearing was held on Giant Oil’s motion for summary
judgment. Following this hearing, on March 27, 2006, the trial court entered judgment
1
Hanners original answer and counterclaim was filed on February 18, 2005.
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granting Giant Oil’s motion for summary judgment finding “[t]he terms of the Lease
Agreement are unambiguous, and according to the plain and ordinary meaning of Paragraph
3.4 of the Lease Agreement, Giant Oil Company of Arkansas, Inc. is entitled to purchase the
property described in the Lease Agreement for $200,000.00 on December 31, 2006.” The
judgment related solely to Giant Oil’s motion for summary judgment and did not mention or
rule on Hanners’s counterclaim.
Following the March 27 order, Giant Oil filed a motion for attorney’s fees and costs.
On July 5, 2006, a hearing was held on the motion for attorney’s fees and costs. In its
July 18, 2006 order, the trial court found that Giant Oil was entitled to $7,500 in attorney’s
fees and costs. Again, the order did not mention the cause of action brought by Hanners in
his counterclaim against Giant Oil.
Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure–Civil provides that an
appeal may be taken only from a final judgment or decree entered by the trial court. Rule
54(b) of the Arkansas Rules of Civil Procedure deals with the finality of orders in connection
with judgments upon multiple claims or involving multiple parties and states in relevant part:
(1) Certification of Final Judgment. When more than one claim for
relief is presented in an action, whether as a claim, counterclaim, cross-claim,
or third party claim, or when multiple parties are involved, the court may direct
the entry of a final judgment as to one or more but fewer than all of 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. . . .
....
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(2) Lack of Certification. Absent the executed certificate required by
paragraph (1) of this subdivision, 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, and the judgment, order, or other form
of decision is subject to revision at any time before the entry of judgment
adjudicating all the claims and the rights and liabilities of all of the parties.
Thus, our court has held that under Rule 54(b), an order is not final that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all the parties. See Southern
Farm Bureau Cas. Ins. Co. v. Easter, ___ Ark. ___, ___ S.W.3d ___ (Mar. 1, 2007); Sims
v. Fletcher, ___ Ark. ___, ___ S.W.3d ___ (Nov. 30, 2006). More specifically, this court has
held that an order that fails to address a counterclaim is not a final, appealable order. Id.
Here, a review of the record reveals that the trial court never ruled upon Hanners’s
counterclaim. Accordingly, we are barred from considering this appeal under Rule 54(b) due
to the lack of a final order, and we dismiss the present appeal without prejudice.2
Finally, we take this opportunity to note that Hanners has failed to file a brief in
compliance with our rules. Specifically, his brief contains an insufficient abstract. Arkansas
Supreme Court Rule 4-2(a)(5) requires an abstract of the transcript that consists of “an
impartial condensation, without comment or emphasis, of only such material parts of the
testimony of the witnesses and colloquies between the court and counsel and other parties
2
Although this issue was not raised by either party, the question of whether an order
is final and appealable is a jurisdictional question that we will raise on our own. See
Southern Farm Bureau Cas. Ins. Co., ___ Ark. ___, ___ S.W.3d ___.
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as are necessary to an understanding of all questions presented to the Court for decision.”
(Emphasis added.)
In the case at bar, the abstract submitted contains the following statement:
Since the case on appeal involves an appeal from a summary judgment
and an order granting Appellee’s motion for attorney fees, neither of which
includes a transcript of testimony, there will be no abstract of testimony in this
case.
Although there was no testimony presented at the hearing on summary
judgment or the hearing on attorney fees, transcripts of both of those hearings
are included in the Addendum to this Brief. Arguments of counsel are not
abstracted, but are included in the Addendum. The trial court’s ruling at the
summary judgment hearing held February 3, 2006, is abstracted below along
with the trial court’s ruling from the bench at the attorney fee hearing held July
6, 2006, for the convenience of the Court.
As Hanners points out, counsel for both parties made arguments to the trial court on the
merits of both Giant Oil’s motion for summary judgment and its motion for attorney’s fees
and costs. However, instead of abstracting the transcript of these hearings as required by
Rule 4-2(a)(5), Hanners has included a copy of each transcript in the addendum. This does
not comply with Rule 4-2(a)(5). See Simons v. Marshall, ___ Ark. ___, ___ S.W.3d ___
(Mar. 1, 2007) (per curiam).
Dismissed without prejudice.
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06-800
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