Brookewood, Ltd. P'ship v. DeQueen Physical Therapy

2016 Ark. App. 159

• Court: Court of Appeals of Arkansas
• Decided: March 9, 2016
• Docket: CV-15-147
• Status: Published

Opinion

Cite as 2016 Ark. App. 159

ARKANSAS COURT OF APPEALS DIVISION I No.CV-15-147

BROOKEWOOD, LIMITED Opinion Delivered: MARCH 9, 2016 PARTNERSHIP APPELLANT APPEAL FROM THE SEVIER COUNTY CIRCUIT COURT V. [NO. CV-2012-60-1]

DEQUEEN PHYSICAL THERAPY HONORABLE TOM COOPER, JUDGE AND OCCUPATIONAL THERAPY, INC. DISMISSED WITHOUT PREJUDICE APPELLEE

DAVID M. GLOVER, Judge

This appeal arises out of circumstances relating to a contract between Brookewood,

Limited Partnership (Brookewood), a long-term-care facility in DeQueen, Arkansas, and

DeQueen Physical Therapy and Occupational Therapy, Inc. (DeQueen). Under the terms

of their contract, DeQueen agreed to provide therapy services to Brookewood to the

exclusion of all other long-term-care facilities in the area, and Brookewood agreed to use

the services of DeQueen for a term of twenty years. Brookewood prematurely terminated

the contract, and DeQueen instituted this litigation. The case ultimately proceeded to a

trial wherein a Sevier County jury awarded DeQueen $6 million in compensatory and

punitive damages from Brookewood. This appeal followed. Because we lack a final order,

we are precluded from reaching the merits of this appeal.

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

be taken from a final judgment or decree entered by the circuit court. Whether an order is

final and appealable is jurisdictional and may be raised on this court’s own motion. Dobbs Cite as 2016 Ark. App. 159

v. Dobbs, 99 Ark. App. 156, 258 S.W.3d 414 (2007). For a judgment to be final, it must

dismiss the parties from the court, discharge them from the action, or conclude their rights

to the subject matter in controversy. Roberts v. Roberts, 70 Ark. App. 94, 14 S.W.3d 529

(2000). With this standard in mind, we turn our attention to the facts in this appeal.

In July 2012, DeQueen and its owners, Darin Tollett and Kim Tollett, filed this

lawsuit against Brookewood. In the initial complaint, DeQueen and the Tolletts sued

Brookewood for breach of contract and promissory estoppel, alleging that Brookewood

owed them money for prematurely terminating their contract without cause and for unpaid

services rendered. DeQueen and the Tolletts later amended their complaint in February

2013. In the amended complaint, they added a civil-conspiracy claim against Brookewood.

They also added Realization Rehab, PLLC (Realization), as a party and sued it for civil

conspiracy and tortious interference with a contractual or business relationship. We observe

that each of the claims in the amended complaint is pursued by “plaintiffs” indicating that

both DeQueen and the Tolletts sought relief based on each of these claims.

Later, the circuit court entered an order for partial summary judgment. That order

dismissed the promissory-estoppel claim in its entirety and the breach-of-contract claims of

the Tolletts. At this juncture, the Tolletts still had pending a civil-conspiracy claim against

Brookewood and tortious-interference and civil-conspiracy claims against Realization.

The case eventually proceeded to a three-day trial by jury. At the conclusion of the

trial, the jury rendered a verdict. The verdict forms indicate that the jury did not determine

the rights of the Tolletts on their civil-conspiracy claim against Brookewood or their

tortious-interference and civil-conspiracy claims against Realization. Likewise, the circuit

2 Cite as 2016 Ark. App. 159

court’s judgment did not address or dispose of the remaining claims of the Tolletts. Because

of this, we must dismiss this appeal for lack of a final order.

We also note a briefing deficiency that may need to be addressed upon the refiling

of an appeal. In this appeal, Brookewood challenges the circuit court’s refusal to give a jury

instruction on consequential damages. However, Brookewood fails to include its proposed

jury instruction on consequential damages in its addendum. Arkansas Supreme Court Rule

4-2 requires that an appellant’s brief contain an addendum with “copies of non-transcript

documents in the record that are essential for the appellate court . . . to understand the case

and to decide the issues on appeal.” In determining whether a jury instruction was properly

given or excluded, the proposed instruction is essential to our review and should be included

in the addendum in this appeal.

Dismissed without prejudice.

ABRAMSON and HARRISON, JJ., agree.

Watts, Donovan & Tilley, P.A., by: David M. Donovan and Staci Dumas Carson, for

appellant.

Arnold, Batson, Turner & Turner, PA, by: Dan Turner and Todd Turner, for appellee.