Cite as 2024 Ark. App. 49 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-23-193
Opinion Delivered January 24, 2024
MARTY LANE TAYLOR AND ANGIE APPEAL FROM THE MONTGOMERY TAYLOR COUNTY CIRCUIT COURT APPELLANTS [NO. 49CV-19-3]
V. HONORABLE MARK HEWETT, JUDGE
ESTATE OF ROSE ANN LEWIS MOTION TO DISMISS GRANTED; APPELLEE APPEAL AND CROSS-APPEAL DISMISSED WITHOUT PREJUDICE
KENNETH S. HIXSON, Judge
Appellants Marty Lane Taylor and Angie Taylor appeal from the Montgomery
County Circuit Court’s judgment filed on November 30, 2022, in favor of appellee, the
estate of Rose Ann Lewis, deceased, after a bench trial. On appeal, appellants argue that the
circuit court erred when it ordered them to sell real property described in a warranty deed
to fulfill the conditions of a collateral unrecorded agreement. However, before we can
address the merits of their argument, we must first address appellee’s motion to dismiss this
appeal on the basis that the there is a lack of a final order. Because we have determined that
appellee’s motion to dismiss has merit, we dismiss this appeal and cross-appeal without
prejudice. The complaint in this case was filed on January 3, 2019, by appellee, the estate of
Rose Ann Lewis. The complaint alleged that Anna and Delmer Taylor (Marty Lane Taylor
and Rose Ann Lewis’s parents) executed a warranty deed reserving a life estate and an
agreement to transfer a remainder interest in their real property to their son, Marty Taylor,
in consideration for the promise that, upon their deaths, Marty would sell the real property
and divide the proceeds equally with his sister, Rose Ann. The complaint alleged that Rose
Ann predeceased Anna and Delmer Taylor and that, upon their deaths, Marty refused to sell
the property and divide the proceeds with Rose Ann’s estate. The complaint made the
following claims against appellants: (1) the warranty deed is invalid because of lack of
consideration; (2) the warranty deed is invalid because of breach of contract; (3) appellants
should be required to fulfill the terms of the agreement because of promissory estoppel; (4)
appellants should be required to fulfill the terms of the agreement because of unjust
enrichment; (5) the personal property of Anna and Delmer Taylor should be split with the
estate of Rose Ann Lewis; and (6) the estate of Rose Ann Lewis is entitled to attorney’s fees,
costs, and interest. Regarding the personal-property claim, appellee specifically alleged that
at the time of their deaths, Anna and Delmer Taylor owned vehicles, all-terrain vehicles,
lawn mowers, and sentimental items, such as photographs, birth certificates, and
memorabilia. Appellee claimed that appellants had failed to file any probate documents or
divide the personal property with appellee. As such, appellee asked that the court order an
inventory to be filed and for appellee to have first choice of half of the sentimental items and
to order that the other personal property be sold and split equally.
2 Appellants filed their answer on February 21, 2019. They generally denied the
allegations and asked that the complaint be dismissed or denied and that they be awarded
attorney’s fees and costs.
A bench trial was held on September 23, 2022. On November 30, 2022, the circuit
court filed the following judgment:
2. The December 15, 2005, Warranty Deed Reserving Life Estate is valid.
3. The December 15, 2005, Agreement is valid.
Based on the foregoing findings of fact, the Court orders as follows:
1. The real property described in the December 15, 2005, Warranty Deed Reserving Life Estate and the December 15, 2005, Agreement is to be sold and the proceeds split between plaintiff and defendants.
2. Defendants are to sell the real property within six (6) months by a licensed real estate agent at a price agreed upon by the parties in writing. The parties may deviate from these requirements by an agreement in writing.
3. Plaintiff and defendants will each bear the costs of their own attorney’s fees.
Appellants filed their notice of appeal. Their notice of appeal abandons any pending but
unresolved claims on appeal pursuant to Ark. R. App. P.–Civ. 3(e)(vi). However, appellants
cannot abandon any pending claims that were filed by appellee. We acknowledge that
appellee filed a notice of cross-appeal; however, appellee’s notice of cross-appeal does not
abandon any pending but unresolved claims on appeal. We also note that although a notice
of cross-appeal was filed, appellee did not file a cross-appellate brief but instead argued in its
responsive brief that we should affirm the circuit court’s order.
3 After the appeal was lodged with our court and fully briefed by both parties, appellee
moved to dismiss. Appellee argues in its motion that the circuit court’s judgment notably
did not address its personal-property claim or state whether its order to sell the real property
and split the proceeds between the parties was based on its breach-of-contract claim,
promissory-estoppel claim, or unjust-enrichment claim. Appellee therefore alleges that the
appeal must be dismissed for lack of a final order pursuant to Stewart v. Estate of Herring,
2016 Ark. App. 83, at 2, and Morris v. Knopick, 2015 Ark. App. 653, at 1. Because appellee’s
motion to dismiss was filed after both parties had filed their respective briefs on the merits,
the motion was passed to the appellate panel for review. After a thorough review of the
entire record by the panel, we hold that the motion to dismiss is meritorious because the
judgment does not dispose of appellee’s personal-property claim.
Whether an order is final for appeal purposes is a jurisdictional question that this
court will raise sua sponte. Hotfoot Logistics, LLC v. Shipping Point Mktg., Inc., 2012 Ark. 76.
Arkansas Rule of Appellate Procedure–Civil 2(a)(1) provides that an appeal may be taken
only from a final judgment or decree entered by the circuit court. Arkansas Rule of Civil
Procedure 54(b) provides that when more than one claim for relief is presented in an action
or when multiple parties are involved, an order that adjudicates fewer than all the claims or
the rights and liabilities of fewer than all the parties is not a final, appealable order. Brasfield
v. Murray, 96 Ark. App. 207, 239 S.W.3d 551 (2006). Rule 54(b) allows a circuit court, when
it finds no just reason for delaying an appeal, to direct entry of a final judgment as to fewer
than all the claims or parties by executing a certification of final judgment as it appears in
4 Rule 54(b)(1). However, absent this required certification, any judgment, order, or other
form of decision that adjudicates fewer than all the claims or the rights and liabilities of fewer
than all the parties shall not terminate the action. Brasfield, supra; Miracle Kids Success Acad.,
Inc. v. Maurras, 2016 Ark. App. 445, 503 S.W.3d 94. No such certification was made in this
case.
In Stewart, supra, the plaintiff brought claims of breach of fiduciary duty, failure to file
an accounting, and conversion against one defendant, and claims of civil conspiracy, unjust
enrichment, and fraud against that defendant and against another defendant jointly. After
a bench trial, the circuit court made findings of fact on the counts of breach of fiduciary
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Cite as 2024 Ark. App. 49 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-23-193
Opinion Delivered January 24, 2024
MARTY LANE TAYLOR AND ANGIE APPEAL FROM THE MONTGOMERY TAYLOR COUNTY CIRCUIT COURT APPELLANTS [NO. 49CV-19-3]
V. HONORABLE MARK HEWETT, JUDGE
ESTATE OF ROSE ANN LEWIS MOTION TO DISMISS GRANTED; APPELLEE APPEAL AND CROSS-APPEAL DISMISSED WITHOUT PREJUDICE
KENNETH S. HIXSON, Judge
Appellants Marty Lane Taylor and Angie Taylor appeal from the Montgomery
County Circuit Court’s judgment filed on November 30, 2022, in favor of appellee, the
estate of Rose Ann Lewis, deceased, after a bench trial. On appeal, appellants argue that the
circuit court erred when it ordered them to sell real property described in a warranty deed
to fulfill the conditions of a collateral unrecorded agreement. However, before we can
address the merits of their argument, we must first address appellee’s motion to dismiss this
appeal on the basis that the there is a lack of a final order. Because we have determined that
appellee’s motion to dismiss has merit, we dismiss this appeal and cross-appeal without
prejudice. The complaint in this case was filed on January 3, 2019, by appellee, the estate of
Rose Ann Lewis. The complaint alleged that Anna and Delmer Taylor (Marty Lane Taylor
and Rose Ann Lewis’s parents) executed a warranty deed reserving a life estate and an
agreement to transfer a remainder interest in their real property to their son, Marty Taylor,
in consideration for the promise that, upon their deaths, Marty would sell the real property
and divide the proceeds equally with his sister, Rose Ann. The complaint alleged that Rose
Ann predeceased Anna and Delmer Taylor and that, upon their deaths, Marty refused to sell
the property and divide the proceeds with Rose Ann’s estate. The complaint made the
following claims against appellants: (1) the warranty deed is invalid because of lack of
consideration; (2) the warranty deed is invalid because of breach of contract; (3) appellants
should be required to fulfill the terms of the agreement because of promissory estoppel; (4)
appellants should be required to fulfill the terms of the agreement because of unjust
enrichment; (5) the personal property of Anna and Delmer Taylor should be split with the
estate of Rose Ann Lewis; and (6) the estate of Rose Ann Lewis is entitled to attorney’s fees,
costs, and interest. Regarding the personal-property claim, appellee specifically alleged that
at the time of their deaths, Anna and Delmer Taylor owned vehicles, all-terrain vehicles,
lawn mowers, and sentimental items, such as photographs, birth certificates, and
memorabilia. Appellee claimed that appellants had failed to file any probate documents or
divide the personal property with appellee. As such, appellee asked that the court order an
inventory to be filed and for appellee to have first choice of half of the sentimental items and
to order that the other personal property be sold and split equally.
2 Appellants filed their answer on February 21, 2019. They generally denied the
allegations and asked that the complaint be dismissed or denied and that they be awarded
attorney’s fees and costs.
A bench trial was held on September 23, 2022. On November 30, 2022, the circuit
court filed the following judgment:
2. The December 15, 2005, Warranty Deed Reserving Life Estate is valid.
3. The December 15, 2005, Agreement is valid.
Based on the foregoing findings of fact, the Court orders as follows:
1. The real property described in the December 15, 2005, Warranty Deed Reserving Life Estate and the December 15, 2005, Agreement is to be sold and the proceeds split between plaintiff and defendants.
2. Defendants are to sell the real property within six (6) months by a licensed real estate agent at a price agreed upon by the parties in writing. The parties may deviate from these requirements by an agreement in writing.
3. Plaintiff and defendants will each bear the costs of their own attorney’s fees.
Appellants filed their notice of appeal. Their notice of appeal abandons any pending but
unresolved claims on appeal pursuant to Ark. R. App. P.–Civ. 3(e)(vi). However, appellants
cannot abandon any pending claims that were filed by appellee. We acknowledge that
appellee filed a notice of cross-appeal; however, appellee’s notice of cross-appeal does not
abandon any pending but unresolved claims on appeal. We also note that although a notice
of cross-appeal was filed, appellee did not file a cross-appellate brief but instead argued in its
responsive brief that we should affirm the circuit court’s order.
3 After the appeal was lodged with our court and fully briefed by both parties, appellee
moved to dismiss. Appellee argues in its motion that the circuit court’s judgment notably
did not address its personal-property claim or state whether its order to sell the real property
and split the proceeds between the parties was based on its breach-of-contract claim,
promissory-estoppel claim, or unjust-enrichment claim. Appellee therefore alleges that the
appeal must be dismissed for lack of a final order pursuant to Stewart v. Estate of Herring,
2016 Ark. App. 83, at 2, and Morris v. Knopick, 2015 Ark. App. 653, at 1. Because appellee’s
motion to dismiss was filed after both parties had filed their respective briefs on the merits,
the motion was passed to the appellate panel for review. After a thorough review of the
entire record by the panel, we hold that the motion to dismiss is meritorious because the
judgment does not dispose of appellee’s personal-property claim.
Whether an order is final for appeal purposes is a jurisdictional question that this
court will raise sua sponte. Hotfoot Logistics, LLC v. Shipping Point Mktg., Inc., 2012 Ark. 76.
Arkansas Rule of Appellate Procedure–Civil 2(a)(1) provides that an appeal may be taken
only from a final judgment or decree entered by the circuit court. Arkansas Rule of Civil
Procedure 54(b) provides that when more than one claim for relief is presented in an action
or when multiple parties are involved, an order that adjudicates fewer than all the claims or
the rights and liabilities of fewer than all the parties is not a final, appealable order. Brasfield
v. Murray, 96 Ark. App. 207, 239 S.W.3d 551 (2006). Rule 54(b) allows a circuit court, when
it finds no just reason for delaying an appeal, to direct entry of a final judgment as to fewer
than all the claims or parties by executing a certification of final judgment as it appears in
4 Rule 54(b)(1). However, absent this required certification, any judgment, order, or other
form of decision that adjudicates fewer than all the claims or the rights and liabilities of fewer
than all the parties shall not terminate the action. Brasfield, supra; Miracle Kids Success Acad.,
Inc. v. Maurras, 2016 Ark. App. 445, 503 S.W.3d 94. No such certification was made in this
case.
In Stewart, supra, the plaintiff brought claims of breach of fiduciary duty, failure to file
an accounting, and conversion against one defendant, and claims of civil conspiracy, unjust
enrichment, and fraud against that defendant and against another defendant jointly. After
a bench trial, the circuit court made findings of fact on the counts of breach of fiduciary
duty, conversion, unjust enrichment, and accounting. However, the circuit court did not
address the civil-conspiracy or fraud claims. We dismissed the appeal for lack of a final order.
In Morris, supra, a dispute arose with respect to a real estate transaction. The buyer
sued for rescission or, alternatively, for damages because she was supposed to receive a Matco
toolbox; $150,000 worth of tools; wicker furniture; a washer and dryer; and a nightstand.
After a bench trial, the circuit court awarded damages relating to the toolbox, but it did not
dispose of the issues relating to the wicker furniture, washer and dryer, and nightstand. We
dismissed the appeal for lack of a final order.
Here, in response, appellants argue that the order is final despite the fact that the
order does not address personal property. They explain that the complaint does not set out
enumerated claims and should therefore be construed as only one claim, even though
appellee had repeatedly stated that it filed multiple claims throughout the record below.
5 Further, they point to some testimony during the trial and state that only a “brief mention
is made of personal property, a topic that is immediately subsumed to questions regarding
disposition of real estate.” They further argue that trial counsel failed to specifically discuss
the personal-property claim in closing argument. However, these arguments are unavailing.
Appellee’s complaint specifically included the following claim regarding personal
property:
VII. THE PERSONAL PROPERTY OF ANNA J. TAYLOR AND DELMER P. TAYLOR SHOULD BE SPLIT WITH THE ESTATE OF ROSE ANN LEWIS
31. At the time of their deaths, Anna J. Taylor and Delmer P. Taylor also owned valuable personal property such as vehicles, all terrain vehicles, and lawn mowers. They also owned sentimental items such as photographs, birth certificates, and memorabilia.
32. Marty Lane Taylor and Angela Taylor have provided none of these items, or money from the sale of these items, to the Estate of Rose Ann Lewis.
33. Anna J. Taylor died intestate on December 23, 2014, and Delmer P. Taylor died intestate on May 16, 2016. No probate documents have been filed for either of them.
34. Since May 16, 2016, Marty Lane Taylor and Angela Taylor have had the full use and benefit of all of the personal property owned by Anna J. Taylor and Delmer P. Taylor prior to their deaths.
35. This Court should order Marty Lane Taylor and Angela Taylor to inventory the personal property owned by Anna J. Taylor and Delmer P. Taylor and provide an accounting to the Court.
36. Because of defendants’ bad actions in this matter, the Court should allow the beneficiaries of the Estate of Rose Ann Lewis to have first choice of half of all the sentimental items owned by Anna J. Taylor and Delmer P. Taylor. The valuable personal property should be sold and split equally between the Estate of Rose Ann Lewis and Marty Lane Taylor.
6 Although appellants urge us to ignore this as a separately alleged claim in the
complaint, we cannot do so. Further, even if proof was not sufficiently offered at trial to
support this claim as appellants allege, that does not dispose of the claim without either
appellee withdrawing it or the circuit court otherwise disposing of it in the court’s order.
Stewart and Morris are directly on point. Therefore, because the record before us does not
reflect that appellee withdrew this claim or a written order disposing of or adjudicating all
appellee’s claims, we must grant appellee’s motion to dismiss and dismiss this appeal and
cross-appeal for lack of a final order.1
Motion to dismiss granted; appeal and cross-appeal dismissed without prejudice.
HARRISON, C.J., and ABRAMSON, J., agree.
Story Law Firm, PLLC, by: Travis W. Story, for appellants.
Taylor & Taylor Law Firm, P.A., by: Tory H. Lewis, Andrew M. Taylor, and Tasha C.
Taylor, for appellee.
1 Although these documents are unnecessary to the disposition of appellee’s motion to dismiss, we note that there appear to be deficiencies in the electronic record that will need to be corrected if any of the parties choose to file a subsequent appeal of this matter after obtaining a final order. Several exhibits were admitted during the trial in this case, but they are not included in the electronic record on appeal as required under Rule 3-3 of the Arkansas Rules of the Supreme Court. We encourage the parties to review the record on any subsequent appeal.