McCain Mall Company Limited Partnership v. Nick's Bar Louie, Inc.

Cite as 2025 Ark. App. 505
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-23-279

MCCAIN MALL COMPANY LIMITED Opinion Delivered October 29, 2025
PARTNERSHIP
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
ELEVENTH DIVISION
V. [NO. 60CV-22-3051]

NICK’S BAR LOUIE, INC. HONORABLE PATRICIA JAMES,
APPELLEE JUDGE

REVERSED AND REMANDED

RAYMOND R. ABRAMSON, Judge

This case returns to this court after we dismissed McCain Mall Company Limited

Partnership’s (McCain Mall’s) appeal for lack of a final order on October 23, 2024. See

McCain Mall Co. Ltd. P’ship v. Nick’s Bar Louie, Inc., 2024 Ark. App. 502, 699 S.W.3d 434.

McCain Mall invoked the jurisdiction of this court pursuant to Arkansas Rule of Appellate

Procedure–Civil 2(a)(1). It did not invoke Arkansas Rule of Appellate Procedure–Civil

2(a)(2). We held that the appealed order was not final because the circuit court had not

adjudicated McCain Mall’s claims or the counterclaims of appellee Nick’s Bar Louie, Inc.

(Bar Louie). Id. Our holding on lack of finality was routine, based on many years of precedent

that unadjudicated claims rendered appeals premature.
On November 13, 2024, McCain Mall petitioned the supreme court for review of

this court’s decision. In its petition, McCain Mall acknowledged its pending claims and

counterclaims, but it argued that we did not consider whether the circuit court’s order to the

clerk “to close this case to further filings” made the order appealable pursuant to Arkansas

Rule of Appellate Procedure–Civil 2(a)(2). McCain Mall argued that its only remedy is an

appeal, and it asked the supreme court to grant the petition, acknowledge appellate

jurisdiction, and decide the merits of the appeal.

On January 23, 2025, in a docket entry, the supreme court granted McCain Mall’s

petition, vacated this court’s opinion, and remanded the case to us. The supreme court cited

Arkansas Rule of Appellate Procedure–Civil 2(a)(2), which provides that an appeal may be

taken from an order that, in effect, determines the action and prevents a judgment from

which an appeal might be taken, or discontinues the action. The supreme court’s docket

order appears to signal a sea change in our finality jurisprudence. We now address the merits

of the appeal.

On appeal, McCain Mall argues that the circuit court erred by (1) converting a

preliminary hearing on immediate possession for unlawful detainer to a trial on the merits;

(2) extending Bar Louie’s time to object to a writ of possession; (3) entering judgment in

favor of Bar Louie; (4) not dismissing Bar Louie’s counterclaims; (5) not granting McCain

Mall a new trial; and (6) awarding costs to Bar Louie. We find merit in McCain Mall’s first

point, and we reverse and remand.

2
On May 13, 2022, McCain Mall filed a complaint against Bar Louie alleging breach

of contract and unlawful detainer pursuant to Arkansas Code Annotated section 18-60-304

(Repl. 2015). McCain Mall claimed that Bar Louie did not pay rental obligations totaling

$125,676.65 for premises in the mall and refused to surrender the location. McCain Mall

asserted that it was entitled to a writ of possession granting it immediate possession of the

premises pending a final hearing.

On May 31, the court entered an order finding that Bar Louie failed to file an

objection or to appear within the five-day statutory period, and on June 1, the court issued

a writ of possession commanding Bar Louie to deliver possession of the premises to McCain

Mall.

On June 7, Bar Louie moved to stay the writ of possession and to enlarge the time to

file an objection because its counsel’s father unexpectedly died on the day it was served with

the complaint. Also on June 7, Bar Louie filed an objection. On June 8, the court entered

an order staying the writ of possession.

On June 16, Bar Louie answered and counterclaimed for breach of contract,

promissory estoppel, and fraud in the inducement/misrepresentation. It alleged that it had

made an oral agreement with McCain Mall’s agent to modify the lease for reduced rental

obligations and that it relied on the oral agreement by making reduced payments.

On July 18, McCain Mall moved to dissolve the stay of the writ of possession and

requested that security be posted pursuant to Arkansas Code Annotated section 18-60-307(c)

(Supp. 2023). Also on July 18, McCain Mall moved to dismiss Bar Louie’s counterclaims.

3
On September 21, the court held a hearing, and it stated, “I show that we’re here

today this is 60CV-22-3051 Motion Unlawful Detainer.” McCain Mall then argued

entitlement to the immediate possession of the premises because Bar Louie did not make

payments pursuant to a written lease and refused to quit possession. Lisa Meyer, the mall

manager, testified, and McCain Mall introduced the lease, 1 a first lease amendment, a second

lease amendment, and a rent relief amendment. The documents contain a lease term from

May 2015 through May 2025.

After Meyer’s testimony, McCain Mall rested, and Bar Louie stated that it intended

to call its owner, Nadeem Siddique. However, the court continued the hearing due to time

constraints.

On November 2, the court reconvened. Siddique testified that he orally agreed with

McCain Mall’s agent to modify the lease payments to a reduced sum and that he had made

the reduced payments.

Following Siddique’s testimony, the parties made closing arguments. McCain Mall

asked the court to issue a writ of possession. Bar Louie responded that McCain Mall had a

“pending motion to dismiss and that’s what we’re—in my understanding, we’re here on.” Bar

Louie then argued that McCain Mall’s motion to dismiss should be denied and asked the

1
North Rock Louis, LLC, initially entered into the lease agreement with McCain Mall
in 2014, but in 2017, it assigned the lease to Bar Louie. McCain Mall introduced the
assignment.

4
court to deny and dismiss McCain Mall’s complaint. Bar Louie sought to retain possession

of the premises through the lease’s expiration in May 2025.

After Bar Louie’s argument, McCain Mall then stated, “[W]ould you mind if I

clarified just a procedure . . . I may have been dense in assuming we were here on the Writ

of Possession. The actual—the issuance of the Writ of Possession and the Unlawful detainer.”

The court responded, “I will tell you that’s what I thought we were here on as well.” The

court then stated:

I understand there were other motions out there as well, and I’m going—what I’m
going to do today is take what you guys have given me under advisement, I mean, and
get you-all an order out. The order—if it does not completely deal with all the issues
that we have remaining, and you all need to do further discovery or whatever.

On December 14, the court entered an order stating that it had considered all claims,

counterclaims, and McCain Mall’s motion to dismiss Bar Louie’s counterclaims. Applying

the Arkansas Residential Landlord-Tenant Act of 2007, the court found that Bar Louie had

paid rents and fees when due according to the lease and modifications. The court further

found that McCain Mall and Bar Louie mutually agreed to oral modifications of the lease

through the expiration of the lease term. The court concluded that the parties were bound

by the oral modifications and to follow its terms as shown in the rent relief amendment

dated July 13, 2020. The last paragraph of the order provides: “The Clerk is hereby ordered

to close this case to further filings.”

On December 21, Bar Louie moved for attorney’s fees and costs totaling $9,375. It

argued that it was entitled to attorney’s fees as the prevailing party.

5
On December 30, McCain Mall moved to alter or amend the December 14 order.

McCain Mall argued in part that the court’s order should be altered or amended because the

court conducted a trial on the merits without informing the parties in violation of both

Arkansas Rule of Civil Procedure 40 and McCain Mall’s due-process rights. McCain Mall

attached a June 23, 2022 email from the circuit court’s assistant about setting the matter “for

a 30-minute hearing on unlawful detainer.”

On January 3, 2023, the court found Bar Louie’s attorney’s-fees motion reasonable

and well founded, and it awarded Bar Louie $1 in costs. On January 12, McCain Mall moved

to vacate the attorney’s-fee award. On February 2, McCain Mall filed its notice of appeal of

the December 14 order, the deemed denial of its motion to alter or amend, and the order

on attorney’s fees and costs. We now turn to the first issue on appeal.

McCain Mall first argues that the circuit court erred by converting a preliminary

hearing on immediate possession for unlawful detainer to a trial on the merits without

notice. McCain Mall cites the procedures in the unlawful-detainer statute as well as due-

process principles.

We find merit in McCain Mall’s argument. The unlawful detainer statute provides as

follows:

(d)(1)(A) If a hearing is required to be held on the demand of the plaintiff for an
immediate writ of possession, the plaintiff shall present evidence sufficient to make a
prima facie case of entitlement to possession of the property described in the
complaint. The defendant or defendants shall be entitled to present evidence in
rebuttal thereof.

6
(B)(i) If the court decides upon all the evidence that the plaintiff is likely to succeed
on the merits at a full hearing, then the court shall order the clerk forthwith to issue
a writ of possession to the sheriff to place the plaintiff in possession of the property
described in the complaint, subject to the provisions of subsection (e) of this section.

(ii) No such action by the court shall be final adjudication of the parties’ rights in
the action.

Ark. Code Ann. § 18-60-307(d). “The statute expressly provides that an order directing the

issuance of a writ of possession shall not be a ‘final adjudication of the parties’ rights in the

action.’” Coleman’s Serv. Ctr., Inc. v. F.D.I.C., 55 Ark. App. 275, 297, 935 S.W.2d 289, 301

(1996) (quoting Ark. Code Ann. § 18-60-307(d)(1)); Coleman’s Serv. Ctr., Inc. v. S. Inns Mgmt.,

Inc., 44 Ark. App. 45, 866 S.W.2d 427 (1993)).

Further, the opportunity to submit evidence to rebut charges or adverse claims and

testimony is an essential requirement of a full and fair hearing to satisfy the Due Process

Clause of the U.S. Constitution. Sims v. Moser, 373 Ark. 491, 500, 284 S.W.3d 505, 513

(2008); see Jacksonville Christian Acad. v. Ark. Soc. Servs., 277 Ark. 339, 340, 641 S.W.2d 716,

716 (1982) (holding that the circuit court erred by conducting a trial on the merits during a

hearing on a temporary restraining order when the appellant had no notice and the

appellant’s time to answer had not expired); Davis v. Univ. of Ark. Med. Ctr., 262 Ark. 587,

589, 559 S.W.2d 159 (1977) (finding that the appellant was denied due process of law when

the court prematurely awarded a judgment to the appellees at the hearing on his motion to

compel).

Here, McCain Mall alleged claims for unlawful detainer and breach of contract

against Bar Louie, and Bar Louie counterclaimed for breach of contract, promissory estoppel,

7
and fraud. The undisputed understanding was that the hearing pertained to the issuance of

a writ of possession. The court set the matter “for a 30-minute hearing on unlawful detainer,”

and at the hearing, the court indicated that the hearing concerned the issuance of a writ of

possession. However, in its written order, the court issued findings concerning the claims

and counterclaims and closed the case to further filings. The court’s order conflicts with the

unlawful-detainer statute and deprives McCain Mall of due process. Accordingly, we must

reverse and remand for further proceedings.

Because we hold that the circuit court prematurely entered the order, and we reverse

and remand for further proceedings, we need not address McCain Mall’s remaining points

on appeal. However, we must note that the circuit court’s award of $1 in costs to Bar Louie

as the prevailing party must be reversed because there is no prevailing party at this stage of

the case.

Reversed and remanded.

VIRDEN, J., agrees.

HIXSON, J., concurs.

KENNETH S. HIXSON, Judge, concurring. I join Judge Abramson’s opinion reversing

the circuit court. However, the opinion is not issued in a vacuum, and I am concerned that

it could easily result in significant unintended appellate consequences. I would anticipate

well-read and enterprising appellate attorneys will use this precedent to circumvent and avoid

lack-of-finality holdings in the future. Going forward, if an order is not final and appealable

under the usual standard of Arkansas Rule of Appellate Procedure–Civil 2(a)(1), a party can

8
avoid a dismissal if the order has the effect of determining or discontinuing the action under

Rule 2(a)(2). What does “the effect of determining or discontinuing” the action under Rule

2(a)(2) mean? I don’t know. The supreme court issued its holding in a simple docket entry

without explanation. Therefore, in the future, I would anticipate that appellate attorneys

will predicate the jurisdiction of their appeals under either Rule 2(a)(1) or Rule 2(a)(2).1 Why

not? That will require this court to analyze a circuit court’s order not only to determine

whether it is final but it will also require this court to analyze whether the order has the effect

of determining or discontinuing the action, whatever that means.

That begs the question: what made this ordinary nonfinal, nonappealable order

under Rule 2(a)(1) an appealable order under Rule 2(a)(2)? It is not insignificant that the

supreme court apparently did not disturb the court of appeals’ holding that the order was

not a final and appealable order under Rule 2(a)(1); rather, it held the order was appealable

under Rule 2(a)(2).

For context and in the simplest terms, this case involves an alleged breach of a written

lease agreement where the landlord, McCain Mall, sued for a temporary writ of possession

and damages for breach of contract. The tenant, Nick’s Bar Louie, denied the breach and

argued there existed an oral modification to the written lease agreement and counterclaimed

1
This could also result in appellate attorneys amending their current notices of appeal
and briefs in pending appeals and arguing the circuit court’s order is appealable because it is
either final under Rule 2(a)(1) or has the effect of determining or discontinuing the action
under Rule 2(a)(2).

9
for damages.2 After the hearing on the landlord’s motion for temporary writ of possession

of the leased premises, the circuit court issued its order. The court generally agreed with the

tenant’s argument and found that the written lease agreement had been modified by an oral

agreement and denied the landlord’s writ of temporary possession. Then, despite the

existence of eight unresolved claims for relief by the landlord and two unresolved claims for

relief by the tenant, the court inserted the following unique and uncharacteristic language

into its order:

“The Clerk is hereby ordered to close this case to further filings.”[3]

The landlord, McCain Mall, appealed. In McCain Mall’s notice of appeal to this

court, it cited Arkansas Rule of Appellate Procedure–Civil 2(a)(1) as the jurisdiction for its

2
McCain Mall’s eight pending unresolved claims for relief include: (1) issue a
permanent writ of possession upon final hearing; (2) grant McCain Mall the right to take
immediate possession; (3) if Nick’s Bar Louie objects, require Nick’s Bar Louie to deposit
into the registry of the court a sum equal to the rent due on the premises: $125,676; (4)
order that any personal property remaining on the premises be considered abandoned; (5)
award McCain Mall actual and liquidated damages for unlawful detainer; (6) award McCain
Mall actual damages discovered upon retaking the premises; (7) award McCain Mall a
judgment for breach of contract; and (8) award McCain Mall all costs and fees. Nick’s Bar
Louie’s unresolved claims for relief were for (1) compensatory damages for lost profits and
(2) costs of renovation.
3
However, despite the circuit court’s order to the clerk to “close this case to further
filings,” the record indicates that after the order was entered, the following pleadings were
filed: Defendant’s Motion for Attorneys’ Fees and Costs; Plaintiff’s Motion to Alter or
Amend Order and Brief in Support of Plaintiff’s Motion; Order for Attorney Fees; Plaintiff’s
Response to Defendant’s Motion for Attorneys’ Fees and Costs; and Defendant’s Response
in Opposition to Plaintiff’s Motion to Alter or Amend Order.

10
appeal.4 As stated above, Rule 2(a)(1) provides that an appeal may be taken from “[a] final

judgment or decree entered by the circuit court.” This is the subdivision of Rule 2 that is

typically cited regarding finality of a circuit court’s orders. The record on appeal provides

no apparent justification as to why this circuit court’s order would be a “final judgment”

under Rule 2(a)(1) considering the plethora of unresolved claims and counterclaims and the

innumerable precedents; therefore, this court dismissed the appeal for lack of finality and

remanded to the circuit court.

This is where this case diverges from the norm and creates the potential for significant

unintended consequences. Instead of returning to the circuit court and obtaining an order

that is final and appealable under Rule 2(a)(1) and refiling its appeal in our court, McCain

Mall filed a petition for review with the supreme court. In its petition for review, McCain

Mall changed its appellate jurisdictional argument and, for the first time, argued that its

appellate jurisdiction was predicated on Rule 2(a)(2) and not on Rule 2(a)(1). Specifically,

McCain Mall complained that the court of appeals analyzed the appealability of the circuit

court’s order only under Rule 2(a)(1) and did not review the appealability of the order under

Rule 2(a)(2). The appellant is correct. The court of appeals did not review the appealability

4
Additionally, McCain Mall also cited Rule (2)(a)(3) as authority for appealability of
the circuit court’s order. Rule 2(a)(3) provides that an appeal may be taken from “[a]n order
which grants or refused a new trial.” Because this appeal does not allege the court erred in
refusing to grant a new trial, Rule 2(a)(3) is inapplicable and not referenced hereinafter.

11
of the order under Rule 2(a)(2)—nor any of the other eleven subdivisions of Rule 2(a)—

because the appellant never requested that we do so in any form or fashion.

The gist of McCain Mall’s argument was that the additional unique and

uncharacteristic verbiage inserted by the circuit court into its order that “[t]he Clerk is hereby

ordered to close this case to further filings” somehow transformed a typical “nonfinal” order under

Rule 2(a)(1) into an appealable order under Rule 2(a)(2) despite the fact that McCain Mall

introduced this argument for the first time in its petition for review.

In its petition to the supreme court, McCain Mall cited Capital SeniorCare Ventures v.

Circuit Court of Pulaski County, 2016 Ark. 263, 494 S.W.3d 423, as authority that the circuit

court’s order was appealable under Rule 2(a)(2). However, upon review, Capital SeniorCare

has limited, if any, applicability to the case at bar. In Capital SeniorCare, the supreme court

discussed the effect of dismissing a case that was refiled after it had previously been dismissed

under Arkansas Rule of Civil Procedure 41. The circuit court in Capital SeniorCare entered

an order that included the phrase “case was closed by order of this court” and further stated that

“any pleadings filed subsequent to the case’s closure . . . are void and have no effect.” Id. at 4, 494

S.W.3d at 425 (emphasis added). The Capital SeniorCare supreme court held that “this order

effectively discontinue[d] the action, [and] it is appealable under Rule 2(a)(2)[.]” Id. (emphasis

added). One can only presume that the holding in Capital SeniorCare was the impetus behind

the current supreme court docket-entry order granting the petition for review and holding

that the circuit court’s order is appealable under Rule 2(a)(2).

12
While we are mindful that the supreme court has held that the circuit court’s order

is appealable and that this court should reach the merits of the appeal (which we have done),

we must now ask how this court, in the future, should determine whether an apparent

nonfinal order under Rule 2(a)(1) is appealable under Rule 2(a)(2).

From a fair reading of McCain Mall’s petition for review and the supreme court’s

docket-entry order granting said petition, it appears that when a circuit court’s order contains

language such as “closing a case to further filings” or “this case was closed by order of this court” or

“any pleadings filed subsequent to the case’s closure . . . are void and have no effect,” such language

may transform an otherwise nonfinal, non-appealable order under Rule 2(a)(1) into an

appealable order under Rule 2(a)(2).

As implied earlier, Rule 2(a)(2) is rife with unresolved ambiguities. Rule 2(a)(2)

provides that an appeal may be taken from “[a]n order which in effect determines the action and

prevents a judgment from which an appeal might be taken, or discontinues the action.” It is

elementary, but it should be noted that Rule 2(a)(2) follows on the heels of Rule 2(a)(1),

which provides that a party may appeal “[a] final judgment or decree entered by the circuit

court.” So, we know that Rule 2(a)(2) pertains to some type of order other than a final

judgment or decree. In reviewing and applying Rule 2(a)(2) in the future, we will be tasked

with determining whether a nonfinal order perhaps has the effect of “determining the action,”

“preventing an appeal,” or “discontinuing the action” without precedential guidance. Such

a review is fraught with even more uncertainty resulting in inconsistent decisions and could

13
otherwise proliferate piecemeal appeals, which, I presume, is an unintended appellate

consequence.

Friday, Eldredge & Clark, LLP, by: Martin A. Kasten and Lindsey Emerson Raines,

for appellant.

Gill Ragon Owen, P.A., by: Debby Linton Ferguson, for appellee.

14