Schubert v. Target Stores, Inc.
Annotate this Case
Download PDF
Cite as 2009 Ark. 89
SUPREME COURT OF ARKANSAS
No.
08-921
Opinion Delivered FEBRUARY 26, 2009
ROGER SCHUBERT,
APPELLANT;
VS.
TARGET STORES, INC.,
A P P E A L F R O M T H E PU L A S K I
COUNTY CIRCUIT COURT, SEVENTH
DIVISION; NO. CV2007-169; HON.
BARRY A. SIMS, JUDGE;
APPELLEE;
APPEAL DISMISSED.
DONALD L. CORBIN, Associate Justice
Appellant Roger Schubert appeals an order of the Pulaski County Circuit Court
granting a directed verdict in favor of Appellee Target Stores, Inc. On appeal, Appellant
avers that it was error for the trial court to grant a directed verdict because he presented
sufficient evidence to create a fact question as to whether Appellee was negligent. This court
assumed jurisdiction of this appeal, as it is a second appeal; hence, our jurisdiction is
pursuant to Arkansas Supreme Court Rule 1-2(a)(7). Because there remains an outstanding
party with a potential claim, we must dismiss this appeal.
Only a brief recitation of the facts is necessary, as the pertinent facts were set forth
in Schubert v. Target Stores, Inc., 360 Ark. 404, 201 S.W.3d 917 (2005) (Schubert I).
Suffice it to say, Appellant was employed by J.B. Hunt Transport, Inc., as a tractor-trailer
driver. J.B. Hunt contracted with Appellee to provide transportation of its goods. As part of
Cite as 2009 Ark. 89
their contractual agreement, Hunt was required to provide workers’ compensation coverage
for the benefit of both Target and Hunt in the event of an injury to one of Hunt’s employees.
On February 19, 1999, Appellant was dispatched to Appellee’s distribution center in
Maumelle. Once there, he hooked up a sealed trailer that had been loaded by Appellee’s
employees with bales of cardboard boxes. Appellant then transported the load to an
International Paper facility in Mansfield, Louisiana, for recycling. When Appellant opened
the trailer doors, a 1,000 pound bale of cardboard fell from the trailer hitting and injuring
him.
Appellant, a resident of Oklahoma, filed a workers’ compensation claim against Hunt
in Oklahoma and was subsequently awarded benefits. He then filed a negligence complaint
against Appellee in Pulaski County Circuit Court. The circuit court entered an order of
summary judgment in favor of Appellee after finding that Louisiana’s exclusive-remedy
doctrine applied and barred Appellant’s negligence suit. This court reversed and remanded
the circuit court’s order, holding that the substantive law of this state applied. Id.
Upon remand, Insurance Company of Pennsylvania, who paid worker’s compensation
benefits to Appellant, filed a motion to intervene, which was granted. It subsequently filed
a “Complaint in Intervention” on March 31, 2008, that stated in relevant part:
Pursuant to Oklahoma law, Plaintiff could “elect whether to take compensation under
the Workers’ Compensation Act, or to pursue his remedy against [the third party
tortfeasor]” and “if he elects to take compensation under the Workers’ Compensation
Act, the cause of action against such other shall be assigned to the insurance carrier
liable for the payment of such compensation.” 85 Okl. St. Ann. § 44(a).
-2-
08-921
Cite as 2009 Ark. 89
The case proceeded to trial, with the circuit court granting Appellee’s motion for directed
verdict. In its subsequent order, the circuit court made no mention of the Intervenor or its
complaint.
While none of the parties raise this issue, the question of whether an order is final and
subject to appeal is a jurisdictional question that this court will raise sua sponte. See Jones
v. Huckabee, 363 Ark. 239, 213 S.W.3d 11 (2005). 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. . . .
....
(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.
-3-
08-921
Cite as 2009 Ark. 89
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 S. Farm
Bureau Cas. Ins. Co. v. Easter, 369 Ark. 101, 251 S.W.3d 251 (2007). More specifically,
this court has held that an order that fails to address an intervenor’s claim is not a final order.
See Richardson v. Rodgers, 329 Ark. 402, 947 S.W.2d 778 (1997).
Here, the Intervenor filed a separate “Complaint in Intervention” asserting, in part,
that under the law of Oklahoma, any cause of action that Appellant may have is to be
assigned to the Intervenor. As such, there may be issues concerning the intervention that
remain outstanding and may be subject to appeal. Appellant has failed to meet its burden of
producing a record showing that the jurisdictional requirements of Rule 54(b) have been met.
Finally, we take this opportunity to note that Appellant filed a brief that is not in
compliance with Arkansas Supreme Court Rule 4-2(a)(5) and (8), as both the abstract and
addendum are deficient.
The abstract consists only of “excerpts” of testimony from
witnesses and omits relevant portions of the testimony adduced at trial. Moreover, Appellant
failed to abstract the directed-verdict motion and response thereto. 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 as are necessary to an understanding of all
questions presented to the Court for decision.”
-4-
08-921
Cite as 2009 Ark. 89
In addition, the addendum contains only the order and notice of appeal.
The
complaint, answer, and other pleadings are not included in the addendum. Rule 4-2(a)(8)
provides that the appellant’s brief shall contain an addendum that includes a true legible
photocopy of the order or judgment from which the appeal is taken, “along with any other
relevant pleadings, documents, or exhibits essential to an understanding of the case and the
Court’s jurisdiction on appeal.”
Appeal dismissed without prejudice.
IMBER, J., not participating.
Bassett Law Firm LLP, by: Vincent O. Chadick, for appellant.
Wright, Lindsey & Jennings LLP, by: Kyle R. Wilson, for appellee.
-5-
08-921
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.
