Slayton v. Windstream Commc'ns , Inc.

2017 Ark. App. 304

• Court: Court of Appeals of Arkansas
• Decided: May 10, 2017
• Docket: CV-16-808
• Status: Published

Opinion

Cite as 2017 Ark. App. 304

ARKANSAS COURT OF APPEALS DIVISION II No. CV-16-808

Opinion Delivered: May 10, 2017 JOHN WESLEY SLAYTON APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION V. [NO. 60CV-15-1672]

WINDSTREAM COMMUNICATIONS, HONORABLE TIMOTHY DAVIS INC., AND WINDSTREAM HOLDINGS, FOX, JUDGE INC. APPELLEES DISMISSED WITHOUT PREJUDICE

MIKE MURPHY, Judge

Appellant John Wesley Slayton brings this appeal from a Pulaski County Circuit

Court order granting summary judgment in favor of appellee Windstream Communications,

Inc. We dismiss without prejudice.

Slayton filed suit against his employer Windstream alleging that it had breached a

written “Account Executive Compensation Plan Document” by not paying him a bonus to

which he believed he was entitled.1 He claimed he was to receive commission on 50 percent

of the contract sales revenue and a 5 percent “SPIFF” bonus.2 Slayton asserted claims for

1 Slayton filed suit against Windstream Communications, Inc., and against separate entity Windstream Holdings, Inc.; Slayton moved to nonsuit without prejudice the action against Windstream Holdings, Inc., and this appeal deals solely with Windstream Communications, Inc. 2 “SPIFF” refers to a manufacturer or an employer paying a small, immediate bonus for a sale. Cite as 2017 Ark. App. 304

breach of contract, injunctive relief, quantum meruit/unjust enrichment, and punitive

damages. Windstream moved for summary judgment on each of the claims. Before he

responded to the motion for summary judgment, Slayton moved to nonsuit the claims for

breach of contract regarding the 50 percent commission and for injunctive relief. The circuit

court entered two orders dismissing the claims without prejudice. Slayton then responded

to the summary-judgment motion, and a hearing was held. The circuit court entered two

separate orders granting Windstream summary judgment on Slayton’s unjust-enrichment

claim and for punitive damages. Slayton never reasserted his nonsuited claims, and the circuit

court entered no further orders. Slayton filed a notice of appeal from the two orders granting

Windstream summary judgment.

We cannot reach the merits of Slayton’s argument, however, because we lack a final,

appealable order. 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. Miracle Kids Success Acad., Inc. v. Maurras, 2016 Ark. App. 445, at 2–3, 503

S.W.3d 94, 95. 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 Rule 54(b)(1). However, absent

this required certification, any judgment, order, or other form of decision that adjudicates

2 Cite as 2017 Ark. App. 304

fewer than all the claims or the rights and liabilities of fewer than all the parties shall not

terminate the action. Miracle Kids, supra. No such certification was made in this case.

The problem here is that the orders from which Slayton appealed do not address the

voluntarily nonsuited claims. Our court has held that a plaintiff may not take a voluntary

nonsuit as to some of its claims and then appeal from the circuit court’s order disposing of

the plaintiff’s other claims because a voluntary nonsuit without prejudice leaves the plaintiff

free to refile the claim; therefore, the order is not considered final. Johnson v. Windstream

Commc’ns, Inc., 2016 Ark. App. 419, at 3. Thus, in the absence of an order dismissing

Slayton’s breach-of-contract and injunctive-relief claims with prejudice, or a properly

executed Rule 54(b) certificate, we have no jurisdiction over this appeal.

Should Slayton choose to refile, we remind counsel to carefully review the rules

regarding briefing to ensure that the brief is properly prepared and to pay particular attention

to Arkansas Supreme Court Rule 4-2(a)(5)(B) governing the form of the abstract.

Dismissed without prejudice.

ABRAMSON and HIXSON, JJ., agree.

Gary J. Barrett, for appellant.

Wright, Lindsey & Jennings LLP, by: Regina A. Young and Gary D. Marts, Jr., for appellee.