Havner v. Ne. Ark. Elec. Coop. , 2016 Ark. App. 149 ( 2016 )

Cite as 2016 Ark. App. 149
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-15-468
Opinion Delivered March 2, 2016
TONY HAVNER APPEAL FROM THE BAXTER
APPELLANT COUNTY CIRCUIT COURT
[NO. CV-11-397-3]
V.
HONORABLE JOHN R. PUTMAN,
NORTHEAST ARKANSAS ELECTRIC JUDGE
COOPERATIVE
APPELLEE
APPEAL DISMISSED
WAYMOND M. BROWN, Judge
Appellant Tony Havner appeals from the Baxter County Circuit Court’s order
granting summary judgment to appellee Northeast Arkansas Electric Cooperative (NAEC).
Appellant argues that the court erred in granting summary judgment because NAEC had a
legal duty under Arkansas law to inspect, maintain, and repair the cable in question. We
dismiss because appellant has failed to appeal from a final order.
Appellant was injured in a motorcycle accident in August 2011 on Highway 5 in
Baxter County, Arkansas. At the time of the accident, appellant was traveling behind
Tommie L. Walker III when the sickle on Walker’s tractor caught a low-hanging cable strung
across the road and pulled the cable down.
The cable was attached to a pole owned by NAEC pursuant to an agreement between
NAEC and Rapid Acquisition Co., LLC. Appellant and his wife, Tina Havner, filed a
Cite as 2016 Ark. App. 149
complaint against Walker and Walker’s company, Tommie Walker Auction, Inc. (TWAI),
on December 14, 2011.1 TWAI filed a motion for summary judgment and brief in support
of the motion on September 7, 2012. On September 27, 2012, appellant filed a motion to
hold TWAI’s summary-judgment motion in abeyance and a motion to dismiss pursuant to
Arkansas Rule of Civil Procedure 41. An order was entered on October 17, 2012, granting
appellant’s motion and dismissing appellant’s claims against TWAI without prejudice.
On April 22, 2013, appellant filed an amended complaint against Walker, NAEC,
Almega Cable, Inc., KFW Communications, LLC, and John Doe entities 1–5, alleging
negligence. NAEC filed an answer to appellant’s amended complaint on May 24, 2013,
denying the material allegations of the complaint and seeking to have it dismissed. On March
20, 2014, NAEC filed a motion for leave to file a cross-claim or, in the alternative, a third-
party complaint. Appellant filed a response to the motion on April 4, 2014, requesting that
it be denied. The court entered an order on April 8, 2014, granting NAEC’s motion. NAEC
filed a complaint on April 15, 2014, against Almega Cable, Inc., and KFW Communications,
LLC, requesting contribution, indemnity, and/or allocation of fault.
NAEC filed a motion for summary judgment and an accompanying brief on April 18,
2014, contending that it owed no duty to appellant with regard to the cable lines owned by
a third party. Appellant filed a response to NAEC’s summary-judgment motion and
responsive brief on May 6, 2014, seeking to have the motion denied. NAEC filed a reply
1
Tina filed a motion to dismiss her complaint without prejudice on August 28, 2012.
The court dismissed the complaint on September 5, 2012.
2
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brief on May 13, 2014. Appellant filed a second amended complaint on July 24, 2014, adding
Rapid Acquisition Co., LLC, as a defendant. NAEC filed an answer to the second amended
complaint on July 25, 2014. The court filed an order on October 21, 2014, granting NAEC
summary judgment.
Appellant filed a motion for entry of judgment and Rule 54(b) certificate on January
5, 2015, contending that there was no just reason for delay of the entry of a final judgment.
NAEC filed a response in opposition of appellant’s motion on January 12, 2015, contending
that appellant had failed to establish exceptional circumstances, or a compelling and discernible
hardship, that would permit him to immediately appeal the court’s grant of summary
judgment to NAEC. Appellant filed a reply on January 20, 2015, again asserting that there
was no just reason for delaying the entry of a final judgment as to appellant’s complaint against
NAEC. A judgment and Rule 54(b) certificate was stamped by the circuit clerk
“PRESENTED” and “RECORDED” on February 27, 2015. Appellant filed a notice of
appeal on March 9, 2015.
Subject to a few exceptions not applicable in this case, Rule 2(a) of the Arkansas Rules
of Appellate Procedure–Civil provides that this court has jurisdiction to review cases only
where a final order has been entered.2 Whether an order is final and appealable is a matter
going to our jurisdiction; jurisdiction is an issue that we are obligated to raise on our own
motion.3 An order is final if it dismisses the parties from the court, discharges them from the
2
Ark. R. App. P.–Civ. 2(a).
3
Dobbs v. Dobbs, 99 Ark. App. 156, 258 S.W.3d 414 (2007).
3
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action, or concludes their rights to the subject matter in controversy.4 When multiple parties
are involved in a lawsuit, Arkansas Rule of Civil Procedure 54(b) provides that a circuit 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.” 5 Once
the court makes such a determination, it must execute a certificate in compliance with the
requirements of Rule 54(b).6
The court in this case determined that there was no just reason for delay and expressed
direction for the entry of judgment. However, the judgment and Rule 54(b) certificate was
never entered because it was never filed. Arkansas Supreme Court Administrative Order No.
2(b)(2) provides that the “clerk shall denote the date and time that a judgment, decree, or
order is filed by stamping or otherwise marking it with the date and time and the word ‘filed.’
A judgment, decree, or order is entered when so stamped or marked by the clerk, irrespective
or when it is recorded in the judgment record book.”7 Because the judgment and 54(b)
certificate was recorded but never filed, it was not entered as required by our rules, and
4
Ark. Dep’t of Human Servs. v. J.N., 96 Ark. App. 319, 241 S.W.3d 293 (2006).
5
Ark. R. Civ. P. 54(b).
6
See Stauffer v. Kralicek Realty Co., 81 Ark. App. 89, 98 S.W.3d 475 (2003).
7
Ark. Sup. Ct. Admin. Order No. 2(b)(2).
4
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appellant has failed to appeal from a final order.8 Accordingly, we dismiss the appeal without
prejudice for lack of a final order.
Appeal dismissed.
VAUGHT and HOOFMAN, JJ., agree.
Rainwater, Holt & Sexton, P.A., by: Thomas J. Diaz; and Brian G. Brooks, Attorney at
Law, PLLC, by: Brian G. Brooks, for appellant.
Friday, Eldredge & Clark, LLP, by: James C. Baker, Jr., and Kimberly D. Young, for
appellee.
8
All other pleadings in this case were stamped “FILED.”
5