Paramount Oil, LLC v. Knox Nelson Oil Company, Inc.; And Retif Oil & Fuel, Inc.

2021 Ark. App. 230

• Court: Court of Appeals of Arkansas
• Decided: May 12, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 230 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and integrity of this document DIVISION I No. CV-20-350 2023.06.27 13:52:28 -05'00' 2023.001.20174 Opinion Delivered: May 12, 2021 PARAMOUNT OIL, LLC APPELLANT APPEAL FROM THE DALLAS V. COUNTY CIRCUIT COURT [NO. 20CV-16-13]

KNOX NELSON OIL COMPANY, INC.; AND RETIF OIL & FUEL, INC. HONORABLE DAVID F. GUTHRIE, APPELLEES JUDGE DISMISSED WITHOUT PREJUDICE

RAYMOND R. ABRAMSON, Judge

Paramount Oil, LLC (Paramount), appeals the Dallas County Circuit Court order

granting Knox Nelson Oil Company, Inc.’s (Knox Nelson’s), motion to dismiss. On appeal,

Paramount argues that the circuit court erred by finding that a noncompete clause in its

contract with Knox Nelson was unenforceable. We must dismiss the appeal without

prejudice for lack of a final order.

On July 22, 2016, Paramount filed an amended complaint 1 against Knox Nelson and

Retif Oil & Fuel, Inc. (Retif). Paramount alleged that on January 3, 2011, it entered into a

contract with Knox Nelson to purchase real property with “the ability to pump and sell

diesel.” The contract included a noncompete clause. Paramount claimed that Knox Nelson

1 Paramount filed its initial complaint on February 21, 2016, and its first amended complaint on April 21, 2016. and Retif had merged into one corporation, and it was in violation of the noncompete

clause. Paramount asserted claims for breach of contract and fraud.

On August 5, 2016, Knox Nelson moved to dismiss. In the motion, Knox Nelson

explained that it and Retif are two separate corporations and that it had entered into a lease

agreement with Retif. Knox Nelson argued that the court should dismiss Paramount’s

breach-of-contract claim because the noncompete clause is unenforceable. Knox Nelson

further sought to dismiss the fraud claim because Paramount had failed to allege facts

showing an intentional misrepresentation.

On December 1, 2017, Paramount filed another amended complaint against both

Knox Nelson and Retif. In that complaint, Paramount alleged that Retif, as a successor, is

bound by the contract between Paramount and Knox Nelson. Paramount further added

claims for tortious interference with contract or business expectancy and for punitive

damages.

On February 22, 2018, the court entered an order granting Knox Nelson’s motion

to dismiss as to the breach-of-contract claim finding that the noncompete clause was

unenforceable.

On September 13, 2019, Paramount moved to voluntarily dismiss Knox Nelson

without prejudice, and on September 23, the court entered an order dismissing without

prejudice all of Paramount’s claims against Knox Nelson.

On January 29, 2020, the court amended its September 23 order. Specifically, the

court dismissed with prejudice Paramount’s breach-of-contract claim against Knox Nelson,

but it dismissed without prejudice Paramount’s remaining claims against Knox Nelson. The

2 court further stated that the “February 22, 2018 Order dismissing [Paramount’s] breach of

contract/covenant not to compete claim is determined to be a final, appealable court order

pursuant to Ark. R. Civ. P. 54. [Paramount] has thirty days from the entry of this order to

appeal the February 22, 2018 Order.”

On February 22, 2020, Paramount filed a notice of appeal of the January 29, 2020

order. On appeal, Paramount argues that the circuit court erred by finding that the

noncompete clause was unenforceable.

We must dismiss the appeal for lack of a final order. Rule 2(a)(1) of the Arkansas

Rules of Appellate Procedure–Civil provides that an appeal may be taken from a final

judgment or decree entered by the circuit court. Although the purpose of requiring a final

order is to avoid piecemeal litigation, a circuit court may certify an otherwise nonfinal order

for an immediate appeal by executing a certificate pursuant to Arkansas Rule of Civil

Procedure 54(b). Holbrook v. Healthport, Inc., 2013 Ark. 87; Robinson v. Villines, 2012 Ark.

211.

Rule 54(b) provides in part that the circuit court may direct the entry of a final

judgment “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.”

Rule 54(b) further provides that if such a determination is made, the court must execute a

certificate “which shall set forth the factual findings upon which the determination to enter

the judgment as final is based.” The supreme court has consistently held that the rule requires

the order to include specific findings of any danger of hardship or injustice that could be

alleviated by an immediate appeal and to set out the factual underpinnings that establish such

3 hardship or injustice. Holbrook, 2013 Ark. 87; Blackman v. Glidewell, 2011 Ark. 23; Kowalski

v. Rose Drugs of Dardanelle, Inc., 2009 Ark. 524, 357 S.W.3d 432.

In this case, the circuit court’s certificate merely states that the “February 22, 2018

Order dismissing [Paramount’s] breach of contract/covenant not to compete is determined

to be a final, appealable court order pursuant to Ark. R. Civ. P. 54.” This one-sentence

explanation does not satisfy the requirements of Rule 54(b). See Holbrook, 2013 Ark. 87. In

the absence of an effective Rule 54(b) certification or a final order, we must dismiss the

appeal without prejudice.

Dismissed without prejudice.

HARRISON, C.J., and GRUBER, J., agree.

Thomas Law Firm, PLLC, by: F. Mattison Thomas III, for appellant.

Wright, Lindsey & Jennings LLP, by: Charles T. Coleman, Jaimie G. Moss, and Laura E.

Cox, for separate appellee Retif Oil & Fuel, Inc.