May Constr. Co. v. Town Creek Constr. & Dev.
Annotate this Case
Download PDF
Cite as 2010 Ark. App. 711
ARKANSAS COURT OF APPEALS
DIVISION IV
CA09-1238
No.
MAY CONSTRUCTION COMPANY
APPELLANT
V.
TOWN CREEK CONSTRUCTION &
DEVELOPMENT, LLC; CHAMBERS
BANK OF NORTH ARKANSAS; and
OHIO CASUALTY INSURANCE
COMPANY
APPELLEES
Opinion Delivered October 27, 2010
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT
[NO. CIV-06-2438-4]
HONORABLE MARY ANN GUNN,
JUDGE
REMANDED
RITA W. GRUBER, Judge
May Construction Company appeals from an order declaring its lien on real property
owned by Town Creek Construction & Development Company subordinate to a mortgage
filed by Chambers Bank of Northwest Arkansas and unenforceable against a lien bond issued
by appellee Ohio Casualty Insurance Company. Town Creek cross-appeals, arguing that May
did not have a valid lien. For the reasons explained below, we remand the case to the circuit
court.
In a written contract, May agreed to perform site work on Town Creek’s residential
development, Aspen Ridge. To finance the project, Town Creek obtained a loan from
Chambers Bank, secured by a mortgage filed on July 20, 2005. May conducted some activity
on the property prior to July 20, 2005, the extent of which is greatly disputed. Then, over
Cite as 2010 Ark. App. 711
the next year, May did significant work on the project primarily through its subcontractor,
Vernaci Construction. In August 2006, Town Creek terminated its contract with May based
on various disputes. Vernaci filed suit in Washington County Circuit Court against May,
Town Creek, Chambers Bank, and several other contractors and suppliers, which led to a
number of cross-claims, counterclaims, and third-party claims. Among them, May sought
money due from Town Creek under the construction contract and filed a mechanic’s and
materialman’s lien against Town Creek’s property. Later, Town Creek would default on its
loan to Chambers Bank, leading Chambers to seek foreclosure of the same property.
May’s contract claim against Town Creek went to arbitration, and the circuit court
stayed the remainder of the lawsuit pending that outcome. In September 2007, the arbitrator
awarded May $393,995.56 plus attorney fees, and May returned to circuit court seeking
confirmation of the award, foreclosure on its lien, and a declaration that its lien was superior
to all others. Because Town Creek would later give Chambers Bank a deed to the Aspen
Ridge property in lieu of foreclosure and had secured a lien bond to stand in place of the
property, May also joined Ohio Casualty Insurance Company, which issued the bond.
Thereafter, the court confirmed the arbitration award but found that May’s lien was inferior
to Chambers Bank’s and could not be enforced against the Ohio Casualty bond. The instant
appeal and cross-appeal come from those rulings.
We cannot reach the merits of the parties’ arguments at this time because we are
unable to determine from the abbreviated record whether the order appealed from is final.
-2-
Cite as 2010 Ark. App. 711
The question of whether an order is final and appealable is a jurisdictional question that this
court will raise on its own. Century Indus., Inc. v. Reach-Assocs., LLC, 2010 Ark. App. 455.
Absent a certificate from the circuit court executed in accordance with Ark. R. Civ. P.
54(b)(2) (2010), an order that fails to adjudicate all claims as to all parties is not final for
purposes of appeal. Century Indus., supra.
The record before us contains orders dismissing some of the claims in circuit court and
indicating that other claims no longer remain, but we find no orders resolving those other
claims, such as Vernaci’s original plaintiff’s complaint and May’s third-party complaint against
Vernaci. The circuit judge did state in her remarks from the bench that the other parties in
this case had resolved their differences, and the order appealed from recites that it is a “final
order”; that other claims asserted in the case were “separately dismissed or withdrawn prior
to trial”; and that “the record reflects the state of all claims raised by all parties at various states
in the litigation.” But, the order does not contain a certificate pursuant to Ark. R. Civ. P.
54(b) (2010) that would allow for an immediate appeal despite the unresolved claims; nor does
the order, or any other written order of record, reflect the court’s disposition of all
outstanding claims. See Bevans v. Deutsche Bank Nat’l Trust Co., 373 Ark. 105, 281 S.W.3d
740 (2008). Under these circumstances, we cannot say that we have a final order. Id.
We therefore remand to settle the finality issue. Appellant must, within fifteen days
from this date, file a certified, supplemental record containing the orders that disposed of all
outstanding claims of all parties. If such orders do not yet exist, appellant may, without regard
-3-
Cite as 2010 Ark. App. 711
to the fifteen-day limit, either 1) obtain a final order disposing of all claims in the lawsuit, file
a new notice of appeal from the order, and file a supplemental record accordingly; or 2)
obtain an amended order with a proper Rule 54(b) certificate, from which a new notice of
appeal must be filed, and file a supplemental record accordingly. If appellant files a new notice
of appeal, appellee Town Creek must file a new notice of cross-appeal, which should also
appear in the supplemental record.1
After filing the supplemental record with this court, appellants must file, within fifteen
days thereafter, a substituted abstract, brief, and addendum that includes the additional order
or orders and notices of appeal and cross-appeal, sufficient to confirm that we have
jurisdiction to hear the appeal. Ark. Sup. Ct. R. 4-2(a)(8)(A)(i) (2010). Appellees may then
file substituted briefs within the time prescribed by our supreme court clerk or may elect to
stand on their current briefs.
Remanded.
HART and ROBBINS, JJ., agree.
If the parties file new notices of appeal, we direct them to revised Rule 3(e) of the
Arkansas Rules of Appellate Procedure–Civil, which contains new requirements for the
contents of a notice of appeal or cross-appeal. The revised rule was effective July 1, 2010. See
In Re: Arkansas Rules of the Supreme Court and Court of Appeals; Rules of Appellate
Procedure–Civil; and Rules of Civil Procedure, 2010 Ark. 288 (per curiam).
1
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.