Ken Lancaster and Tabitha Lancaster v. Rogers Construction, Inc.

2020 Ark. App. 514, 612 S.W.3d 772

• Court: Court of Appeals of Arkansas
• Decided: November 4, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 514 Digitally signed by Susan P. ARKANSAS COURT OF APPEALS Williams Reason: I attest to the accuracy and integrity of this document DIVISION III Date: 2021.02.25 11:53:56 No. CV-20-54 -06'00'

Opinion Delivered: November 4, 2020

KEN LANCASTER AND TABITHA LANCASTER APPEAL FROM THE CLARK APPELLANTS COUNTY CIRCUIT COURT [NO. 10CV-11-19] V. HONORABLE GREGORY L. ROGERS CONSTRUCTION, INC., VARDAMAN, JUDGE AND JOHN AND JANE DOES 1–99 APPELLEES APPEAL DISMISSED WITHOUT PREJUDICE

MIKE MURPHY, Judge

This case returns to us after we dismissed it without prejudice for lack of jurisdiction.

See Lancaster v. Rogers Constr., Inc., 2019 Ark. App. 582 (Lancaster I). The Clark County

Circuit Court entered an order attempting to cure the deficiencies, and Ken and Tabitha

Lancaster now appeal. We must again dismiss for lack of jurisdiction.

In April 2006, the Lancasters entered into a contract with Rogers Construction, Inc.,

to design and build their home. Once construction was completed, the Lancasters noticed

various defects in the home. Accordingly, Mr. Lancaster filed a complaint against Rogers

Construction, Inc.; Roger E. Rogers, individually; Rustan K. Rogers, individually; and

John and Jane Does 1–99. He alleged claims for breach of express contract, breach of implied

contract, breach of implied warranties, negligence, strict liability in tort, and fraud by misrepresentation or concealment. Rogers Construction filed an answer denying the

allegations, and Roger Rogers and Rustan Rogers filed a motion to dismiss the complaint.

On May 26, 2011, the circuit court entered an order dismissing without prejudice

the complaint against Roger and Rustan regarding breach of express contract and product

liability. It then ordered that “the Motion to Dismiss filed by the Defendants, Roger E.

Rogers and Rustan K. Rogers concerning the remaining portions of Plaintiff’s Complaint

are denied” and gave them ten days to file an answer to the complaint. Roger and Rustan

filed an answer on May 31, 2011.

On April 26, 2017, Mr. Lancaster filed an amended complaint adopting each

allegation contained in the original complaint and requesting that the court add his wife to

the action as a plaintiff. Rogers Construction filed an answer, and Roger and Rustan again

filed a motion to dismiss the complaint. The court never ruled on the motion to dismiss,

but it granted the motion to join Mrs. Lancaster as a plaintiff in an order entered on July 20,

2018.

On August 13, 2018, the Lancasters filed a second amended complaint. Rogers

Construction filed an answer to the second amended complaint; the individual defendants

did not. On September 10, 2018, Rogers Construction filed a motion for summary

judgment, which the circuit court granted on November 28, 2018, dismissing the

Lancasters’ complaint with prejudice. The Lancasters appealed from that order, and we

dismissed the appeal giving the following explanation.

The complaint in this case alleged claims against Rogers Construction, Inc., Roger Rogers, and Rustan Rogers for breach of express contract, breach of implied contract, breach of implied warranties, negligence, strict liability in tort, and fraud by misrepresentation or concealment. In an order entered in

2 2011, the court dismissed the claims of breach of “express contract” and “product liability”1 against Roger and Rustan. In 2018, the court granted Rogers Construction’s motion for summary judgment on the breach-of- contract claim. It is not clear, however, what disposition was made of the remaining claims against Rogers Construction, Roger Rogers, and Rustan Rogers.2 In the absence of a clear and final determination of the rights of the parties or a properly executed Rule 54(b) certificate, we have no jurisdiction over this appeal.

Lancaster I, 2019 Ark. App. 582, at 4.

After we delivered Lancaster I, on December 11, 2019, the Lancasters filed a motion

to dismiss the remaining claims against Roger, Rustan, and John and Jane Does 1–99 on

December 18. On December 19, the circuit court entered an order granting the Lancasters’

motion dismissing all the claims against the individual defendants with prejudice. The

Lancasters filed their notice of appeal on December 30 and abandoned any pending but

unresolved claims. On January 10, 2020, the Lancaster I mandate was issued.

Subject-matter jurisdiction is always open, cannot be waived, and can be raised by

the appellate court sua sponte, which we do in this instance. Box v. J.B. Hunt Transp., Inc.,

2019 Ark. App. 334, at 11, 578 S.W.3d 719, 725. Once the record is lodged in the appellate

court, the circuit court no longer exercises jurisdiction over the parties and the subject

matter in controversy. Myers v. Yingling, 369 Ark. 87, 251 S.W.3d 287 (2007). In Barclay v.

Farm Credit Services, 340 Ark. 65, 8 S.W.3d 517 (2000), our supreme court held that the

appellate court takes jurisdiction of a matter once the record on appeal is filed, and it loses

1 We recognize that the complaint designates this claim as “strict liability in tort.” 2 We note that appellants did not state in their notice of appeal that they abandoned any pending but unresolved claims. See Ark. R. App. P.–Civ. 3(e)(vi) (2019).

3 jurisdiction to the circuit court once the mandate is issued with the circuit court. The

appellate court’s mandate is the official notice of the action taken by the appellate court. Id.

The mandate is directed to the circuit court, and it instructs the circuit court to recognize,

obey, and execute the appellate court’s decision. Id. Before the issuance of the mandate, no

party to the lawsuit can obtain relief from the circuit court for any matter that is “so

intertwined with the primary litigation as to be part and parcel of it.” James v. Williams, 372

Ark. 82, 87, 270 S.W.3d 855, 859 (2008).

Here, the circuit court attempted to cure the deficiencies of Lancaster I and dismissed

the remaining claims against the individual defendants before our mandate had been issued.

We determine that the circuit court’s relief was not a collateral issue. Therefore, the circuit

court’s December 19 order was entered without jurisdiction and is considered null and void.

See Box, 2019 Ark. App. 334, 578 S.W.3d 719 (holding that actions taken by a court without

jurisdiction are null and void). Accordingly, the remaining claims against the individual

defendants have not been disposed of, and we still lack a final appealable order from which

the Lancasters may appeal.

Appeal dismissed without prejudice.

GLADWIN and HIXSON, JJ., agree.

Walthall Law Firm, P.A., by: Cecilia Ashcraft and G. Christopher Walthall, for

appellants.

McMillan, McCorkle & Curry, LLP, by: F. Thomas Curry, for appellee Rogers

Construction, Inc.