Opinion
CA 08-997
Opinion Delivered October 7, 2009
Appeal from the Pulaski County Circuit Court, [No. CV05-2139], the Honorable Collins Kilgore, Judge, Appeal and Cross-Appeal Dismissed.
This case presents a dispute about the management of a small corporation. Appellants Spill Responders, Inc., G. Robert Hardin, and Michael and Larita Berg as trustees of their family trust sued appellees Charles Felts and Dale Orr. Michael Berg, Hardin, Felts, and Orr were the initial shareholders in Spill Responders, Inc. Hardin and the Bergs sued Felts and Orr, claiming they broke a contract to purchase stock. In the same complaint, the corporation also sued Felts and Orr for breach of fiduciary duty, fraud, and conversion. Felts and Orr counterclaimed and filed a third-party complaint against Michael Berg, individually.
The circuit court directed a verdict against Hardin and the Bergs on their breach-of-contract claim. Spill Responders's breach-of-fiduciary-duty claim and Felts's and Orr's counterclaims/third-party claims went to the jury. The corporation's fraud and conversion claims disappeared — they were neither submitted to the jury nor embraced by the directed-verdict ruling. The jury found for Felts and Orr on the corporation's breach-of-fiduciary-duty claim, and for Spill Responders, Hardin, and the Bergs on the counterclaims/third-party claims. The court entered judgment accordingly. It also awarded Felts and Orr some of the attorney's fees they sought in a later order. Spill Responders, Hardin, and the Bergs appeal both the judgment and the fee order; Felts and Orr cross-appeal, arguing that the award of attorney's fees was insufficient.
With inapplicable exceptions, Rule 2 of the Arkansas Rules of Appellate Procedure — Civil allows appeals only from final judgments and orders. Finality is a jurisdictional question which we may address sua sponte. Brasfield v. Murray, 96 Ark. App. 207, 208, 239 S.W.3d 551, 552 (2006). If a suit has more than one claim for relief, an order or judgment adjudicating fewer than all claims is neither final nor appealable. Ark. R. Civ. P. 54(b)(2). On the present record, Spill Responders's conversion and fraud claims were never adjudicated; thus the judgment and order now being challenged are not final. E.g., Hambay v. Williams, 335 Ark. 352, 355-56, 980 S.W.2d 263, 265 (1998); Brasfield, 96 Ark. App. at 207-08 , 239 S.W.3d at 552-53; Strack v. Capital Servs. Group, 87 Ark. App. 202, 204-05, 189 S.W.3d 484, 485-86 (2004). Nor did the circuit court, insofar as the record discloses, certify the judgment or the order pursuant to Rule 54(b)(1). We therefore must dismiss the appeal and cross-appeal without prejudice. State Farm Mut. Auto. Ins. Co. v. Thomas, 312 Ark. 429, 431-32, 850 S.W.2d 4, 5-6 (1993).