William Barbour Rudasill, Jr., et al. v. Edwards Design & Construction, Inc.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CA03-708

APRIL 14, 2004

WILLIAM BARBOUR RUDASILL, JR.

WBR ENGINEERING ASSOCIATES, AN APPEAL FROM THE WASHINGTON

P. A., WBR/OMS ENGINEERING COUNTY CIRCUIT COURT

AND LANDSURVEYING, INC. [CIV-97-715]

APPELLANTS

v.

HONORABLE PAUL E. DANIELSON,

EDWARDS DESIGN & JUDGE

CONSTRUCTION, INC.

APPELLEE DISMISSED

Olly Neal, Judge

Appellants, WBR Engineering Associates, P.A., WBR/OMS Engineering and Land-Surveying, Inc., and William Rudasill, Jr., (WBR) appeal from an order of the Washington County Circuit Court granting appellee's, Edwards Design and Construction, Inc. (Edwards), motion for summary judgment. On appeal, appellants assert that the trial court erred in granting the motion for summary judgment. Because the order appealed from is not a final judgment nor is it certified as a final judgment pursuant to Arkansas Rules of Civil Procedure 54(b)(1) and (e), we must dismiss.

In November 1995, Sonneman Agee, LLC and Edwards entered into a contract for the construction of certain water, sewer, earth-work, street-work, and drainage on the Coyote Trail Subdivision. William Rudasill, Jr., a representative of WBR, served as the engineer on the project. The sewer line was not installed at the proper elevation. As a result, WBR had to develop an alternative plan for the placement of the sewer lines. In order to implement the plan, Rudasill entered into a contract with Edwards. The cost of completing the plan was$21,194; however, this amount was subsequently reduced to $16,422. The cost of completion was to be paid by WBR. WBR remitted $2,000, leaving a balance of $14,422.

When Edwards's demands for payment were refused, it filed a breach-of-contract action against WBR, who answered and later filed an amended answer and counterclaim. In its counterclaim, WBR alleged that it was entitled to compensation in the amount of $2,000. Edwards filed a motion for summary judgment and attached excerpts from a deposition by WBR and an affidavit signed by Edwards. WBR responded to the motion and attached excerpts from Rudasill's deposition. WBR later filed an amendment to its response and attached Rudasill's affidavit, a letter dated July 3, 1996, an invoice instructing Sonneman Agee to pay Edwards, and a copy of a cancelled check from Sonneman Agee to Edwards in the amount of $7,200.

The trial court granted Edwards's motion for summary judgment. In its order, the trial court ordered WBR to pay a judgment of $14,422, prejudgment interest of $200, attorney's fees in the amount of $3,054.69, and post-judgment interest on the entire amount. However, the order failed to address the merits of WBR's counterclaim.

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. Jackson v. Delis, 76 Ark. App. 436, 67 S.W.3d 596 (2002). Whether a final judgment, decree, or order exists is a jurisdictional issue that this court has the duty to raise, even if the parties do not, in order to avoid piecemeal litigation. Van DeVeer v. George's Flowers Inc., 76 Ark. App. 408, 65 S.W.3d 488 (2002). Arkansas Rule of Civil Procedure 54(b) further provides that when more than one claim for relief is presented in an action or when multiple parties are involved, an order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not a final appealable order. See Ark. R. Civ. P. 54(b). When a court directs the entry of a final judgment as to fewer than all of the claims and finds no just reason for delaying an appeal, the court must execute a certificate of final judgment. See Jackson v. Delis, supra; Ark. R. Civ. P. 54(b).

Here, the trial court's order fails to address WBR's counterclaim for $2,000. Furthermore, we do not have a certificate of final judgment. Thus, the order granting summary judgment is not a final order and this court is without jurisdiction to hear this case. Accordingly, the appeal is dismissed without prejudice.

Dismissed.

Vaught and Roaf, JJ., agree.