Blackwell v. Brown's Moving & Storage, Inc.

Cite as 2016 Ark. App. 451

ARKANSAS COURT OF APPEALS
No. CV-15-821

OPINION DELIVERED: SEPTEMBER 28, 2016
BOBBY BLACKWELL and BLACKWELL
MOVING & DELIVERY, LLC APPEAL FROM THE PULASKI COUNTY
APPELLANTS CIRCUIT COURT, NINTH DIVISION
[NO. 60CV-14-119]
V.
HONORABLE MARY SPENCER
BROWN’S MOVING AND STORAGE, INC. MCGOWAN, JUDGE
d/b/a BLUE TRUCK
APPELLEE DISMISSED; MOTION DENIED

PER CURIAM

This appeal stems from a dispute between appellants Bobby Blackwell and Blackwell

Moving & Delivery and appellee Brown’s Moving and Storage, Inc., d/b/a Blue Truck.

The case primarily pertains primarily to the enforceability of, and compliance with, a

noncompete covenant. Because this court is without jurisdiction, we dismiss the appeal.

In January 2013, appellee and appellants entered into an asset purchase and sale

agreement. The agreement provided that appellee would purchase appellants’ assets, phone

numbers, name, and goodwill. The agreement also provided for Bobby Blackwell’s

(Blackwell) employment with appellee for three years and included a covenant not to

compete prohibiting appellants from competing, being employed by, or connected with

anyone in the moving business in Arkansas for sixty months.

After the agreement had been executed, difficulties arose, and in October 2013

Blackwell stopped working for appellee. It is alleged that, after his employment had ended,
Cite as 2016 Ark. App. 451

Blackwell contacted his former clients to notify them that he no longer worked for appellee

and began to perform work for appellee’s clients.

This litigation began on January 10, 2014, when appellee filed a complaint for

injunctive and other relief against appellants. Appellee asserted claims for breach of covenant

not to compete, breach of employment contract, and breach of contract. It sought

temporary and permanent injunctive relief, damages, and attorney’s fees. Appellants

answered and Blackwell individually counterclaimed for breach of employment contract

and breach of contract. Later, appellants amended their counterclaim. In addition to the

relief previously asserted, Blackwell sought a declaratory judgment that the noncompete

covenant was invalid.

On March 13, 2014, the circuit court entered an order granting a temporary

restraining order in appellee’s favor. The temporary restraining order prohibited appellants

from engaging in the moving business in the State of Arkansas for five years.

On December 11, 2014, appellee filed a motion for order to show cause alleging that

appellants had violated the court’s temporary restraining order. Blackwell filed a pro se

response denying appellee’s allegations. The circuit court entered an order to show cause

on March 31, 2015.

On June 15, 2015, the circuit court held a hearing to consider the motion to show

cause. Following the hearing, the circuit court held Blackwell in contempt of court but

reserved sanctions. Additionally, the circuit court converted the temporary restraining order

into a permanent injunction. An order memorializing these rulings was entered on June

19, 2015.
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Cite as 2016 Ark. App. 451

On July 13, 2015, Blackwell filed a notice of appeal of the court’s June 19 order

pursuant to Rule 2(a)(1) (2015) of the Arkansas Rules of Appellate Procedure–Civil.

Blackwell filed an amended notice of appeal on July 17, 2015. Again, this notice of appeal

was from the court’s June 19 order and filed pursuant to Arkansas Rule of Appellate

Procedure–Civil 2(a)(1).

Briefing of the appeal commenced. In appellants’ jurisdictional statement, they

provided that this appeal is pursuant to Arkansas Rule of Appellate Procedure–Civil 2(a)(6).

Later, appellants moved to correct their jurisdictional statement in a motion filed with this

court on February 1, 2016. 1 In this motion, appellants contend that their appeal is pursuant

to Rules 2(a)(1), 2(a)(13), and 2(b)(1) of the Arkansas Rules of Appellate Procedure–Civil.

Our review reveals that this appeal must be dismissed because this court is without

jurisdiction regardless of whether appellants’ motion to correct their jurisdictional statement

is granted.

We begin with a discussion of whether the appeal may be properly considered

pursuant to Arkansas Rule of Appellate Procedure–Civil 2(a)(6). This rule states that “[a]n

appeal may be taken from . . . [a]n interlocutory order by which an injunction is granted,

continued, modified, refused, or dissolved, or by which an application to dissolve or modify

an injunction is refused.”

Even assuming that the June 19 order was an interlocutory order, we are without

jurisdiction to decide the merits of this appeal pursuant to Arkansas Rule of Appellate

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A ruling on this motion was held in abeyance by this court.
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Cite as 2016 Ark. App. 451

Procedure–Civil 2(a)(6). When an appeal is taken from an interlocutory order, the record

must be filed with the clerk of the supreme court within thirty days from the entry of the

order. Ark. R. App. P.–Civ. 5(a) (2015). The record was not filed with the clerk of the

supreme court until October 9, 2015—well over thirty days from the entry of the June 19

order.

Having made this determination, we turn our attention to appellants’ motion to

correct their jurisdictional statement. The appellants offer that their corrected jurisdictional

statement provides that the appeal is pursuant to 2(a)(1), 2(a)(13), and 2(b)(1) of the Arkansas

Rules of Appellate Procedure–Civil. Rule 2(a)(1) provides that “[a]n appeal may be taken

from a circuit court . . . from [a] final judgment or decree entered by the circuit court.”

Rule 2(a)(13) allows for the appeal of “[a] civil or criminal contempt order, which imposes

a sanction and constitutes a final disposition of the contempt matter.” And Rule 2(b)(1)

contemplates that “an appeal from any final order also brings up for review any intermediate

order involving the merits and necessarily affecting the judgment.”

First, we address whether the June 19 order is a final order such that an appeal

pursuant to Rule 2(a)(1) or 2(b)(1) of the Arkansas Rules of Appellate Procedure–Civil is

proper. An order is not final when it adjudicates fewer than all of the claims or the rights

and liabilities of fewer than all of the parties. Farrell v. Farrell, 359 Ark. 1, 193 S.W.3d 734

(2004). It is abundantly clear that the June 19 order is not final for appellate purposes. The

June 19 order does not dispose of appellee’s breach-of-employment or breach-of-contract

claims. Nor does it address appellants’ counterclaims for breach of employment or breach

of contract. Furthermore, the June 19 order clearly contemplates further action by the
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Cite as 2016 Ark. App. 451

circuit court on the issue of Blackwell’s contempt. The order provides that the punishment

for contempt is reserved pending the gathering of information. This appeal may not

properly be heard pursuant to either Rule 2(a)(1) or Rule 2(b)(1).

Next, we address whether this appeal may be properly brought pursuant to Arkansas

Rule of Appellate Procedure–Civil 2(a)(13). This rule provides that a contempt finding is

appealable only when it imposes a sanction and constitutes a final disposition of the contempt

matter. Here, the contempt finding clearly reserved sanctions and did not constitute a final

disposition of the contempt matter.

For the reasons discussed, we dismiss appellants’ appeal and deny the motion to

correct jurisdictional statement as moot.

Dismissed; motion denied.

VIRDEN, J., not participating.

Samuel A. Perroni, Esq., for appellants.

Friday, Eldredge & Clark, LLP, by: H. Wayne Young and Amanda Fray, for appellees.

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