Edwards v. Synergy Business Servs. LLC

2014 Ark. App. 708

• Court: Court of Appeals of Arkansas
• Decided: December 17, 2014
• Docket: CV-14-18
• Status: Published

Opinion

Cite as 2014 Ark. App. 708

ARKANSAS COURT OF APPEALS DIVISION II No. CV-14-18

GAVIN EDWARDS AND SYNERGY OPINION DELIVERED DECEMBER 17, 2014 REALTY GROUP, LLC APPELLANTS APPEAL FROM THE BENTON COUNTY CIRCUIT COURT V. [NO. CV-2012-405-6]

SYNERGY BUSINESS SERVICES, LLC; HONORABLE R. DOUGLAS CHRIS TAYLOR and BARBARA SCHRANTZ, JUDGE TAYLOR APPELLEES DISMISSED

ROBERT J. GLADWIN, Chief Judge

Appellants Gavin Edwards and Synergy Realty Group, LLC (SRG) seek a reversal of

the September 12 and November 15, 2013 orders of the Benton County Circuit Court.

Appellants argue that the circuit court erred in granting summary judgment in favor of

appellees Synergy Business Services, LLC (SBS), Chris Taylor, and Barbara Taylor and in

awarding attorney’s fees.

Appellant Gavin Edwards is a licensed real-estate broker and a member and manager

of SRG. Appellees Chris and Barbara Taylor approached Gavin Edwards about partnering

with him to form a business-brokerage firm branded with the “Synergy” name. The Taylors

formed SBS, a limited liability company. The Taylors proposed to become agents for SRG

and to share revenues and commissions with SRG. During the summer of 2006, Gavin

Edwards informed Chris Taylor that in order to act as a business broker, Chris Taylor was

required to obtain a real-estate agent’s license and begin operating under a licensed real-estate Cite as 2014 Ark. App. 708

broker. In reliance on Gavin Edwards’s statement, Chris Taylor obtained a real-estate license

and individually executed an independent-contractor’s agreement (ICA) on October 12,

2006. The ICA required Chris Taylor to pay SRG a commission on the sale of real estate,

including any real estate sold as part of the sale of a business.

On November 1, 2006, the Taylors and Gavin Edwards signed a letter of intent (LOI)

outlining the intentions of the parties with regard to the business relationship between SRG

and SBS. One of the clauses in the LOI contemplated SBS sharing commissions with SRG

on the sale of businesses. The LOI required Barbara Taylor to obtain her real-estate license

within ninety days of executing the LOI, but she did not do so.

For over a year, SRG provided appellees with office space, staff, operating capital, and

paid certain recurring business expenses. SRG also paid commissions to the Taylors.

Appellants filed their complaint on March 13, 2012, alleging that the Taylors had

violated the terms of their written agreement with SRG by failing to honor commissions that

were due to SRG and failing to repay certain business expenses and loans. SRG attached to

its complaint the November 1, 2006 LOI signed by Gavin Edwards and the Taylors. Also

attached to the complaint was the ICA between SRG and Chris Taylor.

On July 30, 2012, appellees counterclaimed against appellants and also filed a third-

party complaint against Tolbert Edwards, an owner in SRG, accusing him of fraud in the

inducement, invasion of privacy, violation of the trade practices act, and breach of contract,

all related to his twenty-five percent ownership interest in SRG.

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Appellees then filed a motion for summary judgment on July 19, 2013, alleging that

any commissions due under the ICA had been paid, and any claim under the LOI was time-

barred by the five-year statute of limitations for written contracts. They included affidavits

from Chris Taylor and Barbara Taylor, along with letters from the Arkansas Real Estate

Commission and copies of the contracts as exhibits to the motion for summary judgment.

Chris Taylor’s affidavit claimed that he had paid all commissions due to Gavin Edwards.

Appellants responded to the motion for summary judgment claiming that there were

unpaid commissions due to them under the ICA and the LOI from January 2008 to

November 2008 that fell within the statute of limitations. Appellants attached spreadsheets

documenting commissions earned on the sale of businesses by SBS between January and

November 2008. Based on this evidence, appellants argued that there was material breach

of the contract in January 2008 when the Taylors failed to pay commissions that were due.

Appellees replied, claiming that appellants’ response failed to meet proof with proof.

The circuit court heard arguments on the motion on August 27, 2013, at which time

appellees verbally moved to dismiss the counterclaims, but failed to mention the third-party

complaint against Tolbert Edwards. On September 12, 2013, the circuit court granted

summary judgment in favor of appellees, finding that the material facts were undisputed and

that appellants failed to meet proof with proof by failing to attach any sworn statements to

their response, and also granted appellees’ motion to dismiss their counterclaims with

prejudice. However, the order made no reference to the outstanding third-party complaint

against Tolbert Edwards. Appellants filed a timely notice of appeal on October 11, 2013.

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Appellees were then awarded $2500 in attorney’s fees and $150 in costs in an order entered

on November 15, 2013. Appellants state in their brief that they filed an amended notice of

appeal to include the award of attorney’s fees, and there is a copy in the addendum and

record dated December 16, 2013, which appears to be the last possible day for it to have

been timely filed; however, there is no file-stamped copy in either the addendum or the

record.

We must dismiss appellants’ appeal for lack of a final, appealable order. The record

contains no disposition of appellees’ third-party complaint against Tolbert Edwards. Rule

54(b) (2013) of the Arkansas Rules of Civil Procedure provides, in pertinent part:

(b) Judgment Upon Multiple Claims or Involving Multiple Parties.

(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.

Under Rule 54(b), an order that fails to adjudicate all of the claims as to all of the

parties, whether presented as claims, counterclaims, cross-claims, or third-party claims, is not

final for purposes of appeal. Ark. State Claims Comm’n v. Duit Constr. Co., Inc., 2014 Ark.

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432, ___ S.W.3d ___. Although Rule 54(b) provides a method by which the circuit court

may direct entry of final judgment as to fewer than all of the claims or parties, where there

is no attempt to comply with Rule 54(b), the order is not final, and we must dismiss the

appeal. Id. The fundamental policy behind Rule 54(b) is to avoid piecemeal appeals. Carter

v. Cline, 2011 Ark. 474, 385 S.W.3d 745. The failure to comply with the provisions of Rule

54(b) affects the subject-matter jurisdiction of the appellate court. Ford Motor Co. v.

Washington, 2012 Ark. 325. Thus, this court is obligated to raise the issue on its own. Id.

In the instant case, the order being appealed from fails to adjudicate all of the claims

as to all of the parties. Moreover, there has been no certification pursuant to Rule 54(b).

Consequently, there is no final, appealable order, and appellants’ appeal must be dismissed

for lack of jurisdiction.

Appeal dismissed.

WHITEAKER and HIXSON , JJ., agree.

Cullen & Co., PLLC, by: Tim J. Cullen, for appellant.

Reece Moore Pendergraft LLP, by: Timothy C. Hutchinson, for appellees.