S & J Construction Co., Inc. v. Engineering Services, Inc. And Ozark Mountain Regional Public Water Authority of the State of Arkansas

2023 Ark. App. 194

• Court: Court of Appeals of Arkansas
• Decided: April 5, 2023
• Status: Published

Opinion

Cite as 2023 Ark. App. 194 ARKANSAS COURT OF APPEALS DIVISION I No. CV-20-356

S & J CONSTRUCTION CO., INC. Opinion Delivered April 5, 2023 APPELLANT APPEAL FROM THE NEWTON COUNTY CIRCUIT COURT V. [NO. 51CV-15-52]

ENGINEERING SERVICES, INC.; AND HONORABLE GORDON WEBB, OZARK MOUNTAIN REGIONAL JUDGE PUBLIC WATER AUTHORITY OF THE STATE OF ARKANSAS APPELLEES REVERSED AND REMANDED

WENDY SCHOLTENS WOOD, Judge

Appellant, S & J Construction Company, Inc. (“S & J”), appeals an interlocutory

order in which the Newton County Circuit Court denied S & J’s motion to amend a

summary-judgment order that inadvertently dismissed S & J’s claims against appellee

Engineering Services, Inc. (“ESI”). The circuit court denied S & J’s motion, stating it did not

have authority to amend the order. We reverse and remand.

On December 16, 2010, Ozark Mountain Regional Public Water Authority of the

State of Arkansas (“Ozark”) entered into multiple contracts with S & J for the construction

of water pipelines and the attachment of the pipelines to two bridges on Highway 65 in

Searcy County, Arkansas; and Highway 123 in Newton County, Arkansas. The contracts at

issue identified ESI as the designer of the projects. Upon initial testing in September 2012, the bridge attachments failed. In January 2013, S & J provided ESI with letters from two

experts who concluded that ESI’s defective design caused the failures; nevertheless, S & J

offered to pay half of the costs of repair. In October 2014, ESI sent a letter to Ozark alleging

that S & J’s faulty construction was the cause of the failures. Subsequently, S & J sent a letter

to Ozark asserting that ESI was the cause of the bridge-attachment failures, insisting that

Ozark pay S & J for the repair work done to the bridges and requesting that the retainage

on the contracts be released to S & J.

When Ozark refused to pay S & J the retainage and repair costs, S & J filed a breach-

of-contract action against Ozark in November 2015. In its complaint, S & J alleged that the

bridge attachments were improperly designed. In its answer and counterclaim for

interpleader against S & J and its third-party complaint for interpleader against ESI, Ozark

claimed that it withheld the remaining payments to S & J on the basis of ESI’s position that

the construction defects were the fault of S & J. Ozark sought to deposit the amounts due

under the contracts into the registry of the court pending determination of the party at fault.

On January 24, 2018, Ozark asserted a cross-claim against ESI alleging that its flawed

design, plans, and specifications were responsible for the failure of the pipeline-bridge

attachments. On January 26, ESI filed a cross-claim against S & J for contribution or

indemnity alleging that S & J’s construction was responsible for the pipeline failures. On

February 9, S & J answered ESI’s cross-claim and filed an amended complaint adding a

breach-of-contract claim against ESI alleging that the defects in the pipelines and bridge

attachments were caused by ESI’s defective designs.

2 In March 2018, ESI filed a motion for summary judgment alleging that Ozark’s claims

against ESI were barred by the statute of limitations. On February 21, 2019, the circuit court

issued a letter opinion finding that S & J had not named ESI as a party defendant in the

case. The court also granted ESI’s motion for summary judgment, stating that “[f]rom the

[c]ourt’s point of view, the only issue as to ESI’s liability, comes from Ozark[’s] . . . crossclaim

in January 2018 against ESI. . . . [T]he [c]ourt finds that ESI should be dismissed from the

lawsuit based on the effective [statute of] limitation using A.C.A. § 16-56-105.” The circuit

court directed ESI to draft the order.

ESI’s proposed summary-judgment order stated that “S & J did not sue ESI,” the

statute of limitations barred Ozark’s cause of action against ESI, and ESI was dismissed from

the lawsuit. The proposed order further stated that the court “retains jurisdiction to

determine the other claims and counterclaims pending in this action between S & J and

Ozark.”

Upon receipt of the proposed order, counsel for S & J, on March 1, 2019, notified

the circuit court of the “material mistake” in its letter opinion in finding that S & J had not

filed suit against ESI. S & J pointed out that its amended complaint named ESI as a party

defendant and that the circuit court’s letter opinion “appears to be based upon a mistaken

premise that S & J . . . had not sued ESI (when in truth and fact it had sued ESI over 1 year

previously).” S & J requested that the circuit court revisit the issue and further stated that

the proposed order submitted by ESI was “inaccurate and should not be entered.”

Nevertheless, on March 3, 2019, the circuit court entered ESI’s proposed order granting

3 summary judgment in favor of ESI that included the incorrect finding that “S & J did not

sue ESI.”

On March 8, the circuit court issued another letter opinion admitting “with

embarrassment” its mistake in stating that S & J did not sue ESI. After acknowledging its

error, the court directed ESI to prepare an amended summary-judgment order removing the

finding that S & J had not sued ESI. ESI did not prepare the amended summary-judgment

order as instructed by the court.

The circuit court’s March 8 letter opinion further instructed S & J to file a

supplemental brief within fifteen days addressing how the amended summary-judgment

order would affect the court’s dismissal of ESI. S & J timely filed a supplemental brief on

March 18 arguing that ESI was still a proper party to the case, that S & J’s claims against ESI

were rooted in contribution or indemnity, and that the statute of limitations on those claims

had not expired. In its March 25 supplemental brief, ESI asserted that S & J ’s amended

complaint raised only breach-of-contract claims against Ozark and ESI and that S & J’s

breach-of-contract claims against ESI had been resolved in a settlement agreement between

S & J and ESI on March 8, 2018.

Nearly three months later, on June 17, S & J wrote a letter to the circuit court asking

it to hold a conference call or to rule on the parties’ supplemental briefs. After another three

months with no response from the circuit court, on September 24, S & J filed a motion for

an amended order confirming that ESI is still a party in the lawsuit with regard to S & J’s

cross-claim against ESI. S & J asserted that its earlier pleadings alleged that the defects in the

4 pipelines and bridge attachments were caused by ESI’s defective design. S & J further argued

that ESI moved for summary judgment only against Ozark, the circuit court had not

considered S & J’s independent claims against ESI, and ESI failed to prepare the amended

summary-judgment order as directed by the court.

ESI responded on October 2, contending that the circuit court’s March 2019

summary-judgment order dismissing all claims against ESI was a final order, was never

appealed, and res judicata prevented consideration of S & J’s claims against ESI. ESI also

moved for summary judgment against S & J on October 2, arguing that S & J’s claims were

based in contract—not contribution or indemnity—and were barred by the statute of

limitations. On October 28, S & J replied and argued that the court’s March 2019 order was

not a final order from which it could have appealed. S & J further argued that, assuming the

March 2019 order constituted a judgment, which S & J disputed, Rule 60(b) of the Arkansas

Rules of Civil Procedure allowed the court to modify its order. ESI replied, arguing that Rule

60(b) applies only to clerical errors, which it claimed were not at issue here, and that Rule

60(a) precluded the court from modifying or vacating a judgment ninety days after it had

been entered.

After a hearing on S & J’s and ESI’s motions, the circuit court issued a letter opinion

on November 13, stating that it “wish[ed] to correct the [March 2019] order” but was

precluded by Rule 60(a) of the Arkansas Rules of Civil Procedure from amending it because

more than ninety days had elapsed since the order was entered. The court further found that

Rule 60(b) did not apply because its mistake was not a “clerical error.” The court again

5 acknowledged that an amended order should have been entered, but “regrettably” was not,

and it was too late for the court to make substantive changes to the March 2019 summary-

judgment order.

Thereafter, the court entered an order on December 9 finding that it lacked authority

to correct its March 2019 summary-judgment order dismissing ESI, which the court admitted

“it probably should not have done.” The court found that Rule 60 did not give it authority

to amend the March 2019 order. Finally, the court certified its December 2019 order stating,

“Without entry of an Ark. R. Civ. P. 54(b) [c]ertificate, S & J will be precluded from

appealing the March 3, 2019 [o]rder until the end of the case.” The December 2019 order

did not address or rule on ESI’s motion for summary judgment. This appeal followed.

The construction of a court rule is a question of law, which we review de novo. State

of Ark. ex rel. Rutledge v. Purdue Pharma L.P., 2021 Ark. 133, at 8, 624 S.W.3d 106, 110. When

construing a court rule, we use the same means and canons of construction used to interpret

statutes. Id., 624 S.W.3d at 110. The principal rule of statutory construction is to construe a

statute just as it reads, giving the words their ordinary and usually accepted meaning in

common language. Id., 624 S.W.3d at 110. When the language is plain and unambiguous,

there is no need to resort to rules of statutory construction, and the analysis need go no

further. Id. at 8–9, 624 S.W.3d at 110. We will accept a circuit court’s interpretation of the

law unless it is shown that the court’s interpretation was in error. Magness v. Graddy, 2021

Ark. App. 119, at 7, 619 S.W.3d 878, 883.

6 On appeal, S & J makes several arguments. First, S & J contends that ESI’s original

motion for summary judgment pertained exclusively to Ozark’s claims; therefore, the circuit

court could not have contemplated or ruled upon S & J’s claims against ESI in the March

2019 summary-judgment order. Second, S & J argues that it immediately contacted the court

regarding its error in the March 2019 order, the court acknowledged its error, and the court

directed ESI to correct the error, but ESI failed to do so. Third, S & J argues that the circuit

court’s March 2019 order is not final and that the court possesses the authority to amend

it.1 We agree with S & J’s third argument and hold that the circuit court had the authority

to amend the March 2019 summary-judgment order and that the court erred in finding in

its December 2019 order that it did not.

Rule 54(b)(2) of the Arkansas Rules of Civil Procedure provides the following:

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.

Ark. R. Civ. P. 54(b)(2) (2022) (emphasis added). Prior to final judgment, a circuit court is

at liberty to reconsider its previous, nonfinal rulings and decisions. S. Farm Bureau Cas. Ins.

1 While ESI argues in a footnote in its brief that S & J did not argue below that Rule 60 does not apply to nonfinal orders, we note that S & J did argue below that the March 2019 summary-judgment order was not a final order and that the circuit court had the authority to correct it.

7 Co. v. Parsons, 2015 Ark. App. 95, at 4; see also A Time for You, LLC v. Park H Props., LLC,

2019 Ark. App. 282, at 4–5 (citing Arkansas Rule of Civil Procedure 54(b)(2) and stating

that partial summary judgment is subject to reconsideration and revision before final

resolution of the case).

In the case at bar, the March 2019 summary-judgment order is not a final order

because it did not dispose of the claims between S & J and Ozark. The March 2019 order

specifically states that the court “retains jurisdiction to determine the other claims and

counterclaims pending in this action between S & J and Ozark.” An order granting summary

judgment is not a final order when it does not dispose of all the claims of all the parties. See

Van DeVeer v. George’s Flowers, Inc., 76 Ark. App. 408, 409–10, 65 S.W.3d 488, 490 (2002);

McKim v. Sullivan, 2018 Ark. App. 260, at 5, 548 S.W.3d 835, 838. This is precisely the

reason why a Rule 54(b) certificate was included in the December 2019 order.

The parties on appeal agree that the March 2019 order is not a final order. Moreover,

the parties on appeal agree that under Rule 54(b)(2), the circuit court was free to reconsider

its March 2019 order because it was not final. Despite conceding that the circuit court had

the authority to reconsider the March 2019 order, ESI argues that this court should

nevertheless affirm the December 2019 order because the record reveals that S & J has no

claims pending against ESI as a result of a previously reached settlement between the parties

and because S & J’s claims for contribution or indemnity against ESI are barred by the statute

8 of limitations.2 ESI raised these arguments in its motion for summary judgment against S &

J; however, the circuit court did not rule on that motion or make any findings related to

these two arguments. Arkansas appellate courts have repeatedly held that a party’s failure to

obtain a ruling is a procedural bar to this court’s consideration of the issue on appeal. Proctor

v. Cabot Sch. Dist., 2013 Ark. App. 366, at 5 (citing Olsen v. East End Sch. Dist., 84 Ark. App.

439, 446, 143 S.W.3d 576, 581 (2004); Doe v. Baum, 348 Ark. 259, 72 S.W.3d 476 (2002);

E-Z Cash Advance, Inc. v. Harris, 347 Ark. 132, 60 S.W.3d 436 (2001); Barker v. Clark, 343

Ark. 8, 33 S.W.3d 476 (2000)). Because the circuit court did not specifically rule on these

issues, we are precluded from addressing the merits of them on appeal. Proctor, 2013 Ark.

App. 366, at 5.

In conclusion, we hold that, pursuant to Rule 54(b)(2) and the case law cited above,

the circuit court had the authority to amend the March 2019 summary-judgment order;

therefore, it erred in concluding in its December 9, 2019 order that it did not.3 Accordingly,

we reverse the December 2019 order and remand for further proceedings consistent with

this opinion.

Reversed and remanded.

2 S & J and ESI strongly disagree on the issues of the effect of the settlement agreement and the viability of S & J’s contribution or indemnity claim against ESI. 3 In light of our holding that the circuit court was authorized under Rule 54(b)(2) to amend its nonfinal March 2019 summary-judgment order, we need not address S & J’s argument that the court erred in finding that it lacked authority to amend the order under Arkansas Rule of Civil Procedure 60.

9 KLAPPENBACH and HIXSON, JJ., agree.

James, House, Downing & Lueken, P.A., by: Matthew R. House; and Walter Murray Law

Firm, by: Walter A. Murray, for appellant.

Rose Law Firm, a Professional Association, by: David M. Powell and Joseph Hall, for

separate appellee Engineering Services, Inc.

Friday, Eldredge & Clark, LLP, by: Bruce B. Tidwell and Joshua C. Ashley, for separate

appellee Ozark Mountain Regional Public Water Authority.