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
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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.
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