Miracle Kids Success Academy, Inc. v. Maurras

Cite as 2016 Ark. App. 445

ARKANSAS COURT OF APPEALS

DIVISION III
No. CV-16-104

Opinion Delivered: SEPTEMBER 28, 2016

MIRACLE KIDS SUCCESS ACADEMY, APPEAL FROM THE PULASKI
INC. COUNTY CIRCUIT COURT,
APPELLANT TWELFTH DIVISION
[NO. 60CV-14-2778]
V.
HONORABLE ALICE S. GRAY,
JUDGE
MARVIN MAURRAS
APPELLEE DISMISSED WITHOUT PREJUDICE

KENNETH S. HIXSON, Judge

Appellant Miracle Kids Success Academy, Inc., appeals after the Pulaski County

Circuit Court granted appellee’s motion for partial summary judgment on count one of his

complaint and dismissed counts two and three without prejudice. Appellant argues on

appeal that the circuit court erred in granting appellee’s motion for partial summary

judgment. Because the judgment from which appellant appeals does not resolve all the

claims brought in this lawsuit, we dismiss this appeal without prejudice for lack of a final

order.

Appellee Marvin Maurras filed his complaint against appellant on July 17, 2014.

Appellee requested that (1) in Count I appellant repay a loan made by him with interest,

(2) in Count II appellant be required to furnish him with a Schedule K-1 for 2013 and all

related documents, and (3) in Count III appellant be enjoined from performing any further

corporate acts that require approval of the board of directors without holding a meeting of
Cite as 2016 Ark. App. 445

the board of directors and providing notice of such meeting to all directors. The parties

filed cross-motions for partial summary judgment. A hearing was held on the motions, and

after the circuit court orally ruled that it was granting appellee’s motion for partial summary

judgment on count one of appellee’s complaint, appellee requested that the other counts be

dismissed. In an October 14, 2015 order, the circuit court found that appellee had loaned

appellant the principal sum of $150,000 at five percent annual interest; that there were no

genuine issues of material fact regarding count one of appellee’s complaint; that appellee was

entitled to a judgment in the amount of $197,627.93 with a postjudgment interest rate of

ten percent on count one; and that counts two and three were dismissed without prejudice.

A judgment conforming to the circuit court’s order was also filed the same day.

While no party has raised this issue, whether an order is final for appeal purposes is a

jurisdictional question that this court will raise sua sponte. Hotfoot Logistics, LLC v. Shipping

Point Mktg., Inc., 2012 Ark. 76. Arkansas Rule of Appellate Procedure–Civil 2(a)(1) (2015)

provides that an appeal may be taken only from a final judgment or decree entered by the

circuit court. Arkansas Rule of Civil Procedure 54(b) (2015) provides that 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. Brasfield v. Murray, 96 Ark. App. 207, 239 S.W.3d

551 (2006). Rule 54(b) allows a circuit court, when it finds no just reason for delaying an

appeal, to direct entry of a final judgment as to fewer than all the claims or parties by

executing a certification of final judgment as it appears in Rule 54(b)(1). However, absent

this required certification, any judgment, order, or other form of decision that adjudicates

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Cite as 2016 Ark. App. 445

fewer than all the claims or the rights and liabilities of fewer than all the parties shall not

terminate the action. Brasfield, supra. No such certification was made in this case.

In this case, the circuit court’s order specifically dismissing counts two and three

without prejudice is not a final order or an adjudication on the merits because the merits of

the cause are not finally determined. See Beverly Enters.-Ark., Inc. v. Hillier, 341 Ark. 1, 14

S.W.3d 487 (2000); Ark. R. Civ. P. 41(a). Rule 41(a) leaves appellee free to refile his suit

against appellant regarding counts two and three. Beverly Enters.-Ark., Inc., supra. Thus, we

lack jurisdiction over the instant appeal and dismiss this appeal without prejudice.

Dismissed without prejudice.

VAUGHT and BROWN, JJ., agree.

Donald L. Parker II and Ronald S. Burnett, Jr., for appellant.

Fuqua Campbell, P.A., by: Phil Campbell and Chris Stevens, for appellee.

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