Seaside Pools, Inc. v. Robert Lee Curtis, Jr., and Sheila Dawn Curtis

Cite as 2025 Ark. App. 155
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-23-817

SEASIDE POOLS, INC. Opinion Delivered March 12, 2025
APPELLANT
APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT
V. [NO. 04CV-22-2183]

ROBERT LEE CURTIS, JR., AND HONORABLE CHRISTINE
SHEILA DAWN CURTIS HORWART, JUDGE
APPELLEES
DISMISSED

BART F. VIRDEN, Judge

Appellant Seaside Pools, Inc., appeals from the Benton County Circuit Court’s order

granting summary judgment to appellees Robert Lee Curtis, Jr., and Sheila Dawn Curtis.

Seaside raises three points on appeal: (1) it is not a “residential contractor” under Ark. Code

Ann. § 18-44-115(a)(4) (Supp. 2017); (2) Act 984 of 2021 should be applied retroactively;

and (3) Act 808 of 2017 violates article 2, section 13 of the Arkansas Constitution. Because

the order does not dismiss all of the claims against all of the defendants and does not contain

a certification of finality pursuant to Ark. R. Civ. P. 54(b), we dismiss for lack of jurisdiction.

Arkansas Rule of Appellate Procedure–Civil 2(a)(1) provides that an appeal may be

taken only from a final judgment or decree entered by the trial court. A final order is one

that dismisses the parties, discharges them from the action, or concludes their rights to the

subject matter in controversy. A Time for You, LLC v. Park H Props., LLC, 2019 Ark. App.
282. Whether an order is final for appeal purposes is a jurisdictional question that this court

will raise sua sponte. Id. 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. Ark. R. Civ.

P. 54(b)(1). The purpose of Rule 54(b) is to avoid piecemeal litigation. Neal v. Vaughn, 2018

Ark. App. 548, 565 S.W.3d 103.

In December 2020, Seaside contracted with the Curtises to install a swimming pool

at their home in Siloam Springs. When the Curtises failed to finish paying for their pool

after its completion, Seaside filed a complaint in August 2022 to impress and foreclose a lien

against the Curtises’ property. Seaside also named as defendants Generations Bank and

Charles S. Collins, Commissioner of Revenue for the Arkansas Department of Finance and

Administration (DFA), alleging that those defendants may have junior and inferior interests

in the Curtises’ property.

The Curtises and Generations Bank—but not DFA—moved to dismiss the complaint

against them pursuant to Ark. R. Civ. P. 12(b)(6). The trial court granted the motions to

dismiss without prejudice but permitted Seaside to amend its complaint to allege “one or

more different causes of action.” At the hearing, the court told Seaside that “unless [it got]

real creative” with its amended complaint, Generations Bank was “probably out.”

Seaside filed an amended and restated complaint against only the Curtises for breach

of contract and sought a personal judgment, i.e., it omitted the lien-foreclosure action.

Seaside nevertheless served the amended complaint not only on the Curtises but also on

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Generations Bank and DFA. Moreover, in paragraph 10 of the amended complaint, Seaside

alleged the following:

In that this Court has previously dismissed the original complaint against the
Generations Bank and Charles Collins, Commissioner of Revenue for the
Department of Finance and Administration of Arkansas, no new allegations are made
against them in that they are no longer parties in this case. However, Plaintiff amends
its complaint without prejudice to appealing this Court’s order dismissing such
Defendants from this case.

(Emphasis added.)

The Curtises answered the amended complaint. DFA also filed an answer, denying

that it had been dismissed and stating that, pursuant to a certificate of indebtedness, it has

a statutory lien on the Curtises’ property that has the force and effect of a circuit court

judgment against all of a taxpayer’s personal and real property.

The Curtises then moved for summary judgment, which was granted. Specifically, the

trial court ruled that Seaside is a residential contractor required to give lien notice under the

version of section 18-44-115(a)(4) in effect when the parties entered the contract; that Seaside

failed to give notice and does not qualify under the direct-sale exemption; that section 18-

44-115(a)(4) does not violate article 2, sections 13 and 17 of the Arkansas Constitution; 1 and

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Arkansas Code Annotated section 16-111-111(a) (Supp. 2023) provides that if a
statute is alleged to be unconstitutional, the Attorney General shall also be served with a
copy of the proceeding and be entitled to be heard. Here, at the end of its amended and
restated complaint, below its certificate of service swearing that a copy of the complaint had
been emailed to the attorneys for the Curtises, Generations Bank, and DFA, and below the
signature line for Seaside’s attorney who swears to such service, Seaside included a single
sentence stating the following:

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that the 2021 amendment to section 18-44-115 does not apply retroactively. It is from this

order that Seaside appeals. In its notice of appeal, Seaside did not abandon any pending but

unresolved claims pursuant to Ark. R. App. P.–Civ. 3(e).2

Generally, the dismissal of a claim without prejudice does not create finality. Park

Plaza Mall CMBS, LLC v. Powell, 2018 Ark. App. 48; Ratzlaff v. Franz Foods of Ark., 255 Ark.

373, 500 S.W.2d 379 (1973). By contrast, the dismissal of a party to an action, with or

without prejudice, is sufficient to obtain finality and invest jurisdiction in an appellate court.

See, e.g., Driggers v. Locke, 323 Ark. 63, 913 S.W.2d 269 (1996).

Although Seaside purports to have “dropp[ed] all of the other defendants” when it

amended its complaint to omit any claim to a lien, DFA and the claims against it have not

In accordance with ARCP 24 and A.C.A. § 16-111-111, Plaintiff is notifying the
Attorney General of the State of Arkansas, Tim Griffin, that a constitutional
challenge has been made to the aforementioned statute.

We note that, although Seaside suggests it has notified—or will notify—the Attorney
General, Seaside’s attorney has not similarly sworn that the Attorney General was served
with a copy of the amended complaint. In fact, there is no indication in the record that there
has been any communication between Seaside and the Attorney General. Although it is not
a jurisdictional requirement, City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982),
we encourage Seaside to ensure that it has complied with the notice statute. See, e.g., Olmstead
v. Logan, 298 Ark. 421, 768 S.W.2d 26 (1989) (holding that the failure to provide Attorney
General with notice of constitutional challenge was reversible error); see also Reagan v. City of
Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991) (refusing to consider constitutional challenge
because record did not reveal that Attorney General had been notified or that issues were
adequately argued or briefed by truly adversarial parties).
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This abandonment operates as a dismissal with prejudice effective on the date that
the otherwise final order or judgment appealed from was entered. An appealing party is not
obligated to make this statement if the party is appealing a partial judgment certified as final
pursuant to Ark. R. Civ. P. 54(b).
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been expressly dismissed by the trial court, and although the trial court dismissed claims

against Generations Bank and suggested that it should be dismissed as a party, the claims

were dismissed without prejudice, and there is no order dismissing Generations Bank as a

party. See Shackleford v. Ark. Power & Light, 334 Ark. 634, 976 S.W.2d 950 (1998) (holding

that, even if an amended complaint did not name defendants in the caption, the claim

against them remained until the trial court entered an order of dismissal). Further, we cannot

presume a ruling from the trial court’s silence. See TEMCO Constr., Inc. v. Gann, 2013 Ark.

202, 427 S.W.3d 651; see also USAble Mut. Ins. Co. v. Stibich, 2024 Ark. App. 510, 699 S.W.3d

180 (dismissing appeal because trial court’s order did not dispose of all of a plaintiff’s claims,

and we cannot infer a ruling on a claim from the trial court’s silence on the matter).

In Barnes v. Wagoner, 2018 Ark. App. 301, the Wagoners sued Barnes; his wife; and

his company, Arkansawyer Sawmill, Inc., for breach of a construction contract. The trial

court found in favor of the Wagoners and awarded them a money judgment. We dismissed

the matter without prejudice for lack of a final order, and the trial court entered an order to

amend the judgment in which it dismissed Barnes’s wife and awarded judgment against

Barnes as a separate defendant. The amended judgment, however, was silent as to

Arkansawyer. Barnes appealed from the amended judgment. Given that there was an

outstanding defendant—Arkansawyer—and because the trial court’s Rule 54(b) certificate was

inadequate in that it made no specific findings, we dismissed again for lack of a final,

appealable order.

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Here, there is no order in the record dismissing DFA or the claims against it; there is

no order dismissing Generations Bank as a party, and the claims against Generations Bank

were dismissed without prejudice; Seaside has not abandoned its claims against Generations

Bank and DFA; and there has been no attempt to comply with Rule 54(b). Accordingly, we

lack jurisdiction and thus dismiss this appeal without prejudice.

Dismissed.

GLADWIN and MURPHY, JJ., agree.

Crouch, Harwell, Fryar & Ferner, PLLC, by: James E. Crouch and Michael L. Fryar, for

appellant.

Lisle Rutledge P.A., by: Donnie Rutledge, for appellees.

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