Mountain Pure, LLC v. Affiliated Foods Southwest, Inc. et al.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CA04-543

January 19, 2005

MOUNTAIN PURE, LLC AN APPEAL FROM PULASKI COUNTY

APPELLANT CIRCUIT COURT

[NO. CV2001-12139]

v.

HONORABLE BARRY SIMS

CIRCUIT JUDGE

AFFILIATED FOODS

SOUTHWEST, INC., et al.

APPELLEES DISMISSED

Sam Bird, Judge

Mountain Pure, LLC, has appealed from the entry of summary judgment for appellee Affiliated Foods Southwest, Inc., on its breach-of-contract claim against Affiliated. It has also appealed from the entry of summary judgment for appellees Turner Holdings, LLC; Portola Packaging, Inc.; Stone Container Corporation; and Consolidated Container Co., LLC, on their claims for debts appellant owed them. We do not reach the merits of this case because the appeal is not from a final, appealable order as required by Ark. R. App. P.--Civ. 2(a) and Ark. R. Civ. P. 54(b). We therefore dismiss this appeal for lack of finality.

In December 2001, appellant filed a complaint in the Pulaski County Circuit Court against appellees for breach of contract. Appellant also included a claim for conversion of a forklift against Turner. In its claim against Affiliated, appellant alleged that Affiliated had breached their contract in regard to certain equipment Affiliated had leased to Turner even though it had already sold that equipment to appellant. Turner filed a counterclaim against appellant for the contractual amount due for products that it had supplied to appellant and for the conversion of certain equipment. Stone, Consolidated, and Portola also filed counterclaims against appellant for the debts that appellant owed them. On July 18, 2003, Stone moved for summary judgment on appellant's complaint.

On August 6, 2003, appellant filed an amended complaint that added negligence and strict-liability claims against Turner, Portola, Consolidated, and Stone. On August 20, 2003, appellant moved to take a nonsuit on its claims against Turner, Portola, Stone, and Consolidated. The court entered an order dismissing those claims without prejudice, leaving appellant's claims against Affiliated intact. The court later modified this order to provide that the dismissal did not include appellant's breach-of-contract and breach-of-warranty claims against Turner, Stone, Portola, and Consolidated.

Stone, Turner, Portola, and Consolidated moved for summary judgment on their debt claims against appellant. Affiliated also moved for summary judgment, asserting that appellant had repudiated their agreement. On November 21, 2003, the circuit court granted Affiliated's motion for summary judgment as to appellant's claims for breach of contract and took the "equipment issue" under advisement. On December 10, 2003, the court granted summary judgment in favor of Stone, Consolidated, Turner, and Portola on appellant's breach-of-contract and breach-of-warranty claims. On December 16, 2003, the circuit court granted summary judgment to Turner for its debt claim in the amount of $499,041.44, plus prejudgment interest of $77,517.97, attorney's fees, and costs. The court modified that judgment to exclude the conversion claim on January 12, 2004, reducing the award to $196,012.30, plus prejudgment interest and attorney's fees. It awarded summary judgment to Consolidated on its debt claim in the amount of $368,437.13, prejudgment interest, and attorney's fees on December 19, 2003. On the same day, it awarded summary judgment in the amount of $257,168.89, plus prejudgment interest and attorney's fees, to Stone. The court also awarded Portola summary judgment in the amount of $62,110.31, plus prejudgment interest of $9,240.40 and attorney's fees on that date.

Turner took a nonsuit on its conversion claim against appellant on February 3, 2004. On February 18, 2004, appellant took a voluntary nonsuit on the "equipment issue." In the order granting the nonsuit, the court stated: "The Court has now ruled on all Motions submitted by all parties, and there are no issues remaining for trial. There is, therefore, no requirement for a Rule 54 certification, and this Order is final and appealable as to all issues and all parties."

Although no issue as to the finality of these orders has been raised by the parties, we are obligated to raise the issue on our own because the failure to comply with Ark. R. App. P.--Civ. 2(a) affects the subject-matter jurisdiction of this court. See French v. Brooks Sports Ctr., Inc., 57 Ark. App. 30, 940 S.W.2d 507 (1997). Arkansas Rule of Appellate Procedure--Civ. 2(a) permits appeals only from final orders of a trial court, and an order must be final for the appellate court to have jurisdiction. Id. An order is not final for purposes of appeal when it adjudicates fewer than all of the claims or the rights and liabilities of fewer than all of the parties. City of Corning v. Cochran, 350 Ark. 12, 84 S.W.3d 439 (2002). Although Ark. R. Civ. P. 54(b) provides a method by which the trial court may direct entry of final judgment as to fewer than all of the claims or parties, where there is no compliance with Rule 54(b), the order is not final and we must dismiss the appeal. Dodge v. Lee, 350 Ark. 480, 88 S.W.3d 843 (2002).

The supreme court has held that a party that has several claims against another party may not take a voluntary nonsuit of one claim and appeal an adverse judgment as to the other claims when it is clear that the intent is to refile the nonsuited claim and thus give rise to the possibility of piecemeal appeals. See Haile v. Arkansas Power & Light Co., 322 Ark. 29, 907 S.W.2d 122 (1995); Ratzlaff v. Franz Foods of Ark., 255 Ark. 373, 500 S.W.2d 379 (1973). Accord French v. Brooks Sports Ctr., Inc., supra. See also Driggers v. Locke, 323 Ark. 63, 913 S.W.2d 269 (1996). This is so because a voluntary nonsuit or dismissal leaves the plaintiff free to refile the claim, assuming there has been no previous dismissal. Haile v. Arkansas Power & Light Co., supra; Ark. R. Civ. P. 41(a).

Here, appellant has taken a nonsuit on its "equipment" claim against Affiliated and has nonsuited all of its other claims, except for the breach-of-contract and breach-of-warranty claims, against Turner, Stone, Portola, and Consolidated. Additionally, appellant and Turner have taken nonsuits on their conversion claims against each other. Because the nonsuited claims may be refiled, this is an interlocutory appeal that we have no authority to entertain under Rule 2(a). Accordingly, we have no choice but to dismiss this appeal.

Dismissed.

Hart and Roaf, JJ., agree.