Cite as 2013 Ark. App. 606
ARKANSAS COURT OF APPEALS
DIVISION IV
CV-13-276
No.
Opinion Delivered October 23, 2013
SCOTT LINDBERG APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT,
SIXTH DIVISION
V. [NO. CV-09-7436]
HONORABLE TIMOTHY DAVIS
MEHLBURGER BRAWLEY, PLLC, FOX, JUDGE
MYRON HARRISON, WES LOWDER,
NRS, INC., and ROGER FORD
APPELLEES AFFIRMED
WAYMOND M. BROWN, Judge
Appellant Scott Lindberg appeals the November 28, 2012 order of the Pulaski County
Circuit Court denying Lindberg’s motion to set aside summary judgment entered in favor of
appellee NRS, Inc., and dismissing Lindberg’s complaint with prejudice. The order also
dismissed NRS’s counterclaim with prejudice.1 Lindberg argues that the trial court abused
its discretion by granting NRS’s summary-judgment motion. We affirm.
Lindberg was employed as an engineer with The Mehlburger Firm, PLLC, at the time
its assets were sold to NRS Inc., out of Oklahoma. As part of the purchase agreement, NRS
1
The court had previously granted dismissals to appellees Myron Harrison, Wes
Lowder, and Roger Ford. Mehlburger Brawley, PLLC, was included in Lindberg’s complaint
as an Arkansas professional limited liability company. This company did not exist as named
in the complaint and the intended company was never served; therefore, we treat it as a
named but unserved defendant under Ark. R. Civ. P. 54(b)(5) (2012).
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agreed to assume the liability of Mehlburger to Lindberg in the amount of $24,242 to be paid
in ten annual installments. After the purchase, Lindberg went to work for Mehlburger
Brawley, Inc. He was laid off effective July 25, 2008. He subsequently filed a civil complaint
on November 11, 2009, against Mehlburger Brawley, LLC, and Roger Ford seeking to
recover the $24,242 liability NRS had agreed to assume. Lindberg also sought to recover
payment for over 500 hours of vacation time, totaling $18,000, and $1500 he alleged was
owed to him for the down payment on a vehicle now owned by NRS. Ford filed a motion
to dismiss on January 7, 2010, alleging that the court did not have jurisdiction over him and
that Lindberg failed to state facts upon which relief could be granted. Lindberg filed an
amended complaint on January 20, 2010, adding Myron Harrison, Wes Lowder, and NRS,
Inc., as defendants. He also filed a response to Ford’s motion to dismiss. Lowder filed a
motion to dismiss for insufficient and invalid service on January 28, 2010. On February 17,
2010, Harrison filed an answer and motion to dismiss the complaint against him. Lindberg
filed a response to Harrison’s motion on February 23, 2010.
On February 23, 2010, NRS filed an answer to Lindberg’s amended complaint. That
same day, Ford filed a motion to dismiss Lindberg’s amended complaint. Lindberg filed a
response to Ford’s motion to dismiss on April 19, 2010. An order dismissing Ford, Lowder,
and Harrison was filed of record on May 5, 2010. NRS filed a supplemental answer and a
counterclaim for breach of contract on July 6, 2011. On July 8, 2011, NRS filed a motion
for leave to file a motion for summary judgment. Lindberg filed a response to NRS’s
supplemental answer and counterclaim on July 25, 2011. He also filed a response to NRS’s
2
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motion for leave that same day. NRS filed a motion for summary judgment on November
7, 2011. In the motion, NRS put forth three main reasons summary judgment was
appropriate: (1) NRS was not liable for the truck equity payment, (2) NRS was not liable for
the vacation pay, and (3) NRS was not liable for the $24,242 in payments on the non-
compete agreement. This appeal only involves NRS’s third assertion because it appears that
Lindberg has abandoned any challenge concerning the down payment and vacation pay on
appeal.2 NRS specifically argued two reasons why NRS was not liable for payment to
Lindberg in the amount of $24,242: (a) because the annual installments were for future
compensation, which ended at the time of Lindberg’s termination from the company, and (b)
Lindberg breached the non-compete agreement and was not entitled to receive payments.
Lindberg filed a response to NRS’s summary-judgment motion on November 23, 2011,
denying the essential allegations in the motion. Lindberg also alleged that the non-compete
agreement was entered into between Lindberg and his former employer, Mehlburger Firm,
Inc., and that NRS was not a party to that agreement. Alternatively, he denied violating the
agreement. Lindberg also questioned the enforceability of the agreement if it was found to
be relevant to the complaint against NRS. Lindberg attached his affidavit wherein he stated
that he had not violated the covenant not to compete.
A hearing on NRS’s summary-judgment motion took place on May 14, 2012. The
court orally granted the motion. A hearing was held on NRS’s counterclaim on August 23,
2
DePriest v. AstraZeneca Pharm., L.P., 2009 Ark. 547, 351 S.W.3d 168; Wagner v. Gen.
Motors Corp., 370 Ark. 268, 258 S.W.3d 749 (2007).
3
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2012. The court ordered the parties to file closing arguments in brief form by September 14,
2012. On September 13, 2012, Lindberg filed a motion to set aside summary judgment and
to grant judgment in his favor. NRS submitted its closing-argument brief on September 14,
2012, as ordered. It filed a response to Lindberg’s motion on September 26, 2012. On
November 28, 2012, the court filed an order denying Lindberg’s motion to set aside summary
judgment and dismissing his complaint against defendants with prejudice. It also dismissed
NRS’s counterclaim with prejudice. Lindberg filed his notice of appeal on December 27,
2012. This appeal followed.
The trial court did not specify the ground or grounds upon which NRS’s summary-
judgment motion was granted. Because the court did not specify its basis, both possible
grounds must be addressed.3 It is Lindberg’s burden to demonstrate reversible error.4
On appeal, Lindberg argues that summary judgment was inappropriate because: (1) he
met proof with proof on all issues raised in NRS’s summary-judgment motion,5 (2) the non-
compete agreement was void as a matter of law, and (3) even if the non-compete agreement
was valid, he did not breach it. Lindberg’s arguments, however, fail to address NRS’s
alternate reason for summary judgment: the $24,242 was for future compensation and
Lindberg’s entitlement to it ended with his termination. As such, Lindberg has failed to
demonstrate reversible error. When a trial court bases its decision on two independent
3
See Smith v. Heather Manor Care Ctr., 2012 Ark. App. 584, ___ S.W.3d ___.
4
Arrow Int’l, Inc. v. Sparks, 81 Ark. App. 42, 98 S.W.3d 48 (2003).
5
Lindberg argues that his affidavit, in which he denies that he violated the covenant not
to compete, was sufficient to defeat NRS’s summary-judgment motion.
4
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grounds and appellant challenges only one on appeal, the appellate court will affirm without
addressing either.6 Thus, we summarily affirm.7
Affirmed.
WALMSLEY and HIXSON, JJ., agree.
Brown Law Firm, by: Rebecca Brown, for appellant.
Emerson Poynter LLP, by: Scott E. Poynter; and Richardson Richardson Boudreaux Keesling,
PLLC, by: David R. Keesling and Heidi L. Shadid, for appellee.
6
Wells v. Wells, 2013 Ark. App. 298.
7
We note that Lindberg’s addendum contains abstracts of deposition testimonies. The
abstracts of these depositions should be included in the abstract, if they are material, not in the
addendum. Ark. Sup. Ct. R. 4-2(a)(8)(A)(i) (2012). Because we summarily affirm without
addressing the merits of Lindberg’s arguments, we do not order rebriefing.
5