Cite as 2015 Ark. App. 664
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-15-511
Opinion Delivered November 18, 2015
MARY COLLINS
APPELLANT APPEAL FROM THE RANDOLPH
COUNTY CIRCUIT COURT
V. [NO. CV-2010-156]
AVA LEUTHOLT AND RICHARD HONORABLE HAROLD S. ERWIN,
LEUTHOLT, INDIVIDUALLY, AND JUDGE
LEUTHOLT PROPERTIES, LLC
APPELLEES DISMISSED
M. MICHAEL KINARD, Judge
Appellant Mary Collins appeals from the trial court’s order granting summary
judgment in favor of appellees Ava and Richard Leutholt and Leutholt Properties. We
cannot reach the merits of the appeal because there is not a final order. Therefore, we
dismiss the appeal without prejudice.
Appellant filed suit against appellees, alleging conversion of insurance proceeds after
the house she was purchasing from appellees was destroyed by fire. Appellees filed a
counterclaim for quiet title, alleging that appellant had breached the contract for sale and that
appellees were the record title owners of the property. Appellees subsequently moved for
summary judgment on appellant’s complaint. Following a hearing, the trial court entered
an order granting appellees’ motion for summary judgment and dismissing appellant’s
complaint. Appellant timely appealed but later filed a motion with this court after noticing
that the order on appeal was not final due to the unresolved counterclaim. This court
Cite as 2015 Ark. App. 664
dismissed the appeal.
Appellant subsequently moved for the trial court to amend its order and deny
summary judgment. Appellees filed a motion to dismiss their counterclaim without
prejudice. The trial court entered an order dismissing the counterclaim without prejudice,
and appellant filed another notice of appeal.
Pursuant to Arkansas Rule of Appellate Procedure–Civil 2(a)(1), a party may appeal
from a final judgment or final decree of the trial court. Absent a certificate from the trial
court directing that the judgment is final, “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.”
Ark. R. Civ. P. 54(b)(2).
When a defendant’s compulsory counterclaim is dismissed without prejudice and the
trial-court order addresses only the plaintiff’s claims, we have held that the order is not a final,
appealable order. Horne v. Henson, 2014 Ark. App. 687. The voluntary nonsuit of a
compulsory counterclaim does not operate to make an order final and appealable because the
counterclaim can be refiled. Crockett v. C.A.G. Investments, Inc., 2010 Ark. 90, 361 S.W.3d
262. Appellees’ compulsory counterclaim was dismissed by the trial court without prejudice.
Thus, there remains a dangling issue that has yet to be decided, and the summary-judgment
order is not a final, appealable order. Id.
Although the trial court may certify an otherwise nonfinal order for an immediate
appeal by executing a certificate pursuant to Ark. R. Civ. P. 54(b)(1), no such certification
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Cite as 2015 Ark. App. 664
was made in this case. Therefore, we lack jurisdiction and must dismiss the appeal without
prejudice for lack of a final order.
Dismissed.
GLADWIN, C.J., and ABRAMSON, J., agree.
Murphy, Thompson, Arnold, Skinner & Castleberry, by: Casey Castleberry; and Grider Law
Firm, by: M. Joseph Grider, for appellant.
James, House & Downing, P.A., by: Richard C. Downing, for appellees.
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