Lancaster v. Rogers Construction, Inc.

2019 Ark. App. 582

• Court: Court of Appeals of Arkansas
• Decided: December 11, 2019
• Status: Published

Opinion

Cite as 2019 Ark. App. 582 Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry Date: 2022.08.09 12:13:14 DIVISION II -05'00' No. CV-19-139 Adobe Acrobat version: 2022.001.20169 Opinion Delivered: December 11, 2019 KEN LANCASTER AND TABITHA LANCASTER APPELLANTS APPEAL FROM THE CLARK COUNTY CIRCUIT COURT V. [NO. 10CV-11-19]

ROGERS CONSTRUCTION, INC., AND JOHN AND JANE DOES 1–99 HONORABLE GREGORY L. APPELLEES VARDAMAN, JUDGE APPEAL DISMISSED WITHOUT PREJUDICE

RITA W. GRUBER, Chief Judge

Kenneth and Tabitha Lancaster appeal from the Clark County Circuit Court’s

dismissal of their complaint and granting the motion for summary judgment of Rogers

Construction, Inc. We dismiss for lack of jurisdiction.

On April 12, 2006, the Lancasters entered into a contract with Rogers Construction,

Inc., to design and build their home in Arkadelphia, Arkansas. After construction of the

home was completed, the Lancasters noticed various defects in the home, including gaps

between the brick and the slab, that the bathroom and front of the house were sinking,

cracked bricks, cracked sheetrock, and excessively sweating windows. On February 17,

2011, 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 in part the complaint

against Roger Rogers and Rustan Rogers. The court found that there was “no allegation

of facts contained” in the complaint for which Mr. Lancaster could obtain relief against the

individual defendants for breach of the written contract because they were not parties to the

agreement. The court also found there were no facts alleged in the complaint under which

Mr. Lancaster could obtain relief from the individual defendants under a theory of products

liability. The court ordered that the complaint against Roger and Rustan be dismissed

without prejudice 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 and

every allegation contained in the original complaint and requesting the court to 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.

2 The Lancasters filed a second amended complaint on August 13, 2018, “assert[ing]

each and every allegation of their original Complaint filed herein and reassert[ing] all claims,

not barred by Court Order, on behalf of both Plaintiffs.” 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 arguing that the

written contract between the parties excluded liability for damages resulting from the

shifting or settling of ground, that the damage to the Lancasters’ home was caused by settling

of the ground beneath the house, and therefore their damages were excluded under the

contract. After a hearing on the matter, the court entered an order on November 28, 2018,

dismissing the Lancasters’ complaint with prejudice, finding that there were no material

issues of fact and that the undisputed evidence demonstrated the damages claimed by the

Lancasters were “expressly excluded under the written contract.” The Lancasters filed a

notice of appeal from the court’s order.

With limited exceptions not applicable here, Arkansas Rule of Appellate Procedure–

Civil 2(a) permits appeals only from final orders of a circuit court. An order must be final

for the appellate court to have jurisdiction; thus, we may consider this issue even though

the parties have not raised it. Ditch 56 Farms, LLC v. Foster, 2013 Ark. App. 505, at 4.

Pursuant to Rule 54(b) of the Arkansas Rules of Civil Procedure, an order in which fewer

than all claims are adjudicated is not an appealable order unless the circuit court expressly

directs the entry of a final judgment to claims disposed of and expressly determines that there

is no just reason for delay. Billingsley v. Planit Dirt Excavation, 2011 Ark. App. 449, at 2. The

complaint in this case alleged claims against Rogers Construction, Inc., Roger Rogers, and

3 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 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.

Appeal dismissed without prejudice.

KLAPPENBACH and BROWN, 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.

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).