T & S Roofing, Dondle Taylor, and Bruce Taylor v. Jeanie Kilgore

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

T & S ROOFING, DONDLE TAYLOR, AND BRUCE TAYLOR

APPELLANTS

V.

JEANIE KILGORE

APPELLEE

CA 04-867

MARCH 16, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CV 03-4783]

HON. TIMOTHY DAVIS FOX,

JUDGE

DISMISSED

Terry Crabtree, Judge

On April 29, 2004, the Pulaski County Circuit Court granted summary judgment in favor of the appellee, Jeanie Kilgore, on her breach of contract claim against the appellants, T & S Roofing, Dondle Taylor, and Bruce Taylor, and awarded appellee $6,250 in damages. On June 8, 2004, the trial court awarded appellee an additional $3,502.52 in attorney's fees. Appellants appeal from both orders, arguing that the trial court improperly granted summary judgment and incorrectly awarded damages along with attorney's fees. We do not reach the merits of appellants' case because the appeal is not from a final, appealable order as required by Arkansas Rule of Appellate Procedure - Civil 2(a) (2004) and Arkansas Rule of Civil Procedure 54(b) (2004). We therefore dismiss this appeal for lack of finality.

On April 21, 2003, appellee filed a complaint against appellants alleging that they had improperly installed a roof on her home, resulting in leaks and damage to a sunroom. The complaint included allegations of negligence, breach of warranty, breach of contract, fraud, and misrepresentation. On March 15, 2004, appellee filed a motion and brief for partial summary judgment in regard to her breach of contract claim. The motion was supported by

the affidavits of appellee and Corbett Sanders of Arkansas Industrial Roofing. Appellants responded to the motion on March 29, 2004, and attached an excerpt from the deposition of appellee. Appellants failed to attach any supporting affidavits. On April 29, 2004, the trial court issued an order granting appellee's motion for summary judgment.

As a threshold matter, we question whether we have jurisdiction to entertain this appeal. 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. Farm Bureau Mutual Ins. v. Running M Farms, Inc., 348 Ark. 313, 72 S.W.3d 502 (2002). Whether an order is final and appealable is a matter going to the jurisdiction of the appellate court and is an issue that the appellate court has a duty to raise on its own motion. Barnes v. Newton, 69 Ark. App. 115, 10 S.W.3d 472 (2000). The rule that an order must be final to be appealable is a jurisdictional requirement, observed to avoid piecemeal litigation. Beverly Ent.-Arkansas v. Hillier, 341 Ark. 1, 14 S.W.3d 487 (2000); Ark. R. App. P. - Civ. 2(a)(1). When the order appealed from is not final, the appellate court will not decide the merits of the appeal. Roberts v. Roberts, 70 Ark. App. 94, 14 S.W.3d 529 (2000). For an order 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. Id. An order must be of such a nature as to not only decide the rights of the parties, but also to put the court's directive into execution, ending the litigation or a separable part of it. Reed v. Arkansas State Highway Comm'n., 341 Ark. 470, 17 S.W.3d 488 (2000). When the order appealed from reflects that further proceedings are pending, which do not involve merely collateral matters, the order is not final. Ives Trucking Co. v. Pro Transp., 341 Ark. 735, 19 S.W.3d 600 (2000).

In this instance, appellee filed its motion with the trial court styled as "Plaintiff's Motion for Partial Summary Judgment." The motion and accompanying brief prayed only forpartial relief, specifically in regards to appellee's claim for breach of contract. The motion sought damages in the amount of $6,250 along with attorney's fees. The trial court's April 29, 2004, order awarded appellee a judgment in that exact amount. The trial court also awarded appellee attorney's fees in a subsequent order. We note that neither order addressed appellee's remaining claims for negligence, breach of warranty, fraud, and misrepresentation. It is an appellant's burden to produce a record on appeal showing the appellate court's jurisdiction. DeVeer v. George's Flowers, Inc., 76 Ark. App. 408, 65 S.W.3d 488 (2002). Here, appellants failed to produce such a record. We are convinced that the order appealed from did not resolve all claims. See Hambay v. Williams, 335 Ark. 352, 980 S.W.2d 263 (1998) (order granting partial summary judgment not a final appealable order under Rule 54(b)); Cordell v. Nadeau, 321 Ark. 300, 900 S.W.2d 556 (1995) (order granting partial summary judgment was a final appealable order only because trial court certified the order pursuant to Rule 54(b)). We cannot speculate regarding any unresolved claims. DeVeer, supra. Arkansas Rule of Civil Procedure 54(b) (2004) states that an order which disposes of fewer than all of the claims or all of the parties is not a final appealable order unless the court makes an express determination that there is a danger of hardship or injustice which an immediate appeal would alleviate. In the case before us, the trial court did not certify the partial summary judgment as appealable pursuant to Rule 54(b). As such, we are precluded from addressing the merits of appellants' appeal.

Dismissed.

Hart and Vaught, JJ., agree.