Ditch 56 Farms LLC v. Foster

Cite as 2013 Ark. App. 505

Susan Williams ARKANSAS COURT OF APPEALS
2019.01.02 DIVISION IV
15:19:07 -06'00' No. CV-12-1071

DITCH 56 FARMS, LLC, RONNIE Opinion Delivered September 18, 2013
McCORD, CLINT McCORD, and
McCORD FARMS, LLC APPEAL FROM THE CRAIGHEAD
APPELLANTS COUNTY CIRCUIT COURT,
EASTERN DISTRICT
V. [NO. CV 2012-1]

HONORABLE LEE FERGUS, JUDGE
STANLEY FOSTER, JUDY FOSTER,
LINDA ALDEN, and DANNY APPEAL DISMISSED
BRANDON
APPELLEES

RITA W. GRUBER, Judge

This case involves two separate appeals concerning the Craighead County Circuit

Court’s granting of summary judgment in favor of appellees Stanley and Judy Foster that

ordered the specific performance of a contract pursuant to which the Fosters were to purchase

certain real property from appellees Linda Alden and Danny Brandon. Ronnie McCord, Clint

McCord, and McCord Farms, LLC (collectively, the McCords or the McCord defendants),

appeal because they had the property under lease and the circuit court’s grant of summary

judgment extinguished their right of prior refusal to purchase the land. Ditch 56 Farms, LLC,

had a contract to purchase the property from the McCord defendants and appeals from the

circuit court’s determination that its motion to intervene was moot.1

1
On May 30, 2013, the supreme court denied Ditch 56 Farms’s motion to assign this
appeal to the supreme court.
Cite as 2013 Ark. App. 505

In June 2008, Sylvester Brandon leased 160 acres of farmland to Ronnie and Clint

McCord for ten years. The lease provided that it was to be binding on the parties and their

heirs and assigns. If Brandon were to sell the property, it was to be subject to the lease. The

lease also included the right of first refusal for Sylvester’s children, Linda Alden and Danny

Brandon. A right of second refusal was given to the McCords.

Sylvester Brandon died in April 2010, having never offered to sell the land. His will

left one tract of eighty acres to Brandon and another eighty-acre tract to Alden, and his estate

executed distribution deeds to them. The McCords have continued to farm the land in

accordance with their lease.

In November 2011, the Fosters contracted to purchase all 160 acres from Danny

Brandon for $528,000. Alden did not sign the contract but both Brandon and Alden deposited

earnest-money checks from the Fosters. Three weeks later, Brandon and Alden signed

separate but similar contracts honoring the McCords’ right of first refusal at the same price as

offered by the Fosters. The next day, December 9, 2011, the McCords executed an offer and

sale contract whereby they would convey the property to Ditch 56 Farms for the same price

offered by the Fosters.2

The Fosters filed suit on January 18, 2012, seeking a preliminary injunction,

declaratory judgment, and specific performance of the sales contract, or, in the alternative,

damages for breach of contract against Brandon and Alden. Ronnie and Clint McCord were

2
The circuit court would later find that Ditch 56 Farms had entered into a contract on
December 14, 2011, where it would sell the property.

2
Cite as 2013 Ark. App. 505

named as parties because the Fosters sought declaratory relief as to the validity of the

McCords’ right of refusal and the McCords’ contract to purchase the property from Brandon

and Alden.

The circuit court granted the Fosters’ request for an ex parte temporary restraining

order, and enjoined the McCord defendants, Brandon, and Alden from closing the sale for the

purchase of the property. This order was later extended by agreement of the parties.

Brandon and Alden responded that the complaint should be dismissed and pled unclean

hands and estoppel to all claims. The McCords also answered, denying the material allegations

of the complaint. They also sought dismissal of the complaint on the basis that the Fosters

were not parties to the lease agreement between themselves and the decedent. Their answer

also included a counterclaim against the Fosters and a cross-claim against Brandon and Alden.

Both the counterclaim and the cross-claim sought damages for intentional interference with

a contractual relationship.

On July 9, 2012, Ditch 56 Farms filed a motion to intervene, and its proposed

complaint sought declaratory judgment, specific performance, and damages against Alden,

Brandon, and the McCord defendants.

On July 23, 2012, the Fosters moved for summary judgment, asserting that Alden and

Brandon had breached the sales contract, and requesting that they be granted judgment against

Brandon and Alden. They also sought a declaration that the McCords’ contract to purchase

the property from Brandon and Alden was unenforceable. In an accompanying brief, the

Fosters argued that the McCords’ right of refusal was never triggered because the decedent

3
Cite as 2013 Ark. App. 505

never offered the property for sale, which, according to the Fosters, was a condition precedent

for the right of refusal for the McCord defendants.

After hearing arguments on the motion, the court granted summary judgment to the

Fosters and ordered Brandon and Alden to specifically perform their contract with the Fosters.

The court found that the decedent had never offered the property for sale during his lifetime

and that the right of refusal held by Brandon and Alden merged into the fee title and was

extinguished when they inherited the property from their father. It also held that the

conveyance to the Fosters would be subject to the remaining terms of the McCords’ lease,

with the exception of the right of refusal provision. Because of the manner in which Brandon

and Alden acquired the property (i.e., inheritance), the McCords’ secondary right of refusal

was never triggered. As a result, the court concluded that Ditch 56 Farms’s intervention

motion was moot. The court ended its order by stating “all issues between the parties are

disposed by this Order, and the case will be removed from the docket.”3 Both the McCords

and Ditch 56 Farms filed timely notices of appeal.

The question of whether an order is final and appealable is jurisdictional, and we are

obligated to consider the issue on our own even if the parties do not raise it. See Advanced

Envtl. Recycling Techs., Inc. v. Advanced Control Solutions, Inc., 372 Ark. 286, 275 S.W.3d 162

(2008). Pursuant to Arkansas Rule of Appellate Procedure–Civil 2(a)(1)(2012), a party may

appeal from a final judgment or final decree of the circuit court. Absent a certificate from the

3
The circuit court later awarded the Fosters attorney’s fees of $16,244 and costs of $456
against Brandon and Alden.

4
Cite as 2013 Ark. App. 505

circuit 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 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)(2012). When a lawsuit contains more than one claim for

relief, a judgment that adjudicates fewer than all of the claims is neither final nor appealable.

Forever Green Athletic Fields, Inc. v. Lasiter Constr., Inc., 2010 Ark. App. 483 (per curiam). The

requirement that an order must be final and appealable is observed to avoid piecemeal

litigation. Wright v. Viele, 2012 Ark. App. 459.

An order is final and appealable if it dismisses the parties from the court, discharges

them from the action, or concludes their rights to the subject matter in controversy. Robinson

v. Villines, 2012 Ark. 211. Here, the circuit court’s order granted summary judgment to the

Fosters on the claims in their complaint against Brandon, Alden, and the McCord defendants.

However, that order did not specifically decide the McCords’ counterclaim for damages

against the Fosters or their cross-claim for damages against Brandon and Alden. Although

strict formality in language is not necessary, a judgment must specify clearly the relief granted

or other determination of the action. McWhorter v. McWhorter, 2009 Ark. 458, 344 S.W.3d

64; Thomas v. McElroy, 243 Ark. 465, 420 S.W.2d 530 (1967). Clearly, the action of the court

was deficient as a final determination of the rights of the parties. Instead, the court merely said

that those claims were “disposed of,” without stating what disposition was made of those

claims or otherwise discharging them from the action. Therefore, in the absence of an

effective Rule 54(b) certification or a final order, we must dismiss the McCords’ appeal

5
Cite as 2013 Ark. App. 505

without prejudice. Holbrook v. Healthport, Inc., 2013 Ark. 87.

We must likewise dismiss Ditch 56 Farms’s appeal from its attempted intervention for

lack of a final order. Although the denial of a motion to intervene is appealable pursuant to

Arkansas Rule of Appellate Procedure–Civil 2(a)(2), see Duffield v. Benton Cnty. Stone Co., 369

Ark. 314, 254 S.W.3d 726 (2007); Billabong Prods., Inc. v. Orange City Bank, 278 Ark. 206,

644 S.W.2d 594 (1983), the circuit court neither denied nor dismissed the motion. Instead,

the court simply concluded that the motion to intervene was moot in light of its grant of

summary judgment to the Fosters. Because the circuit court never expressly disposed of the

motion to intervene, we must dismiss Ditch 56 Farms’s appeal. Holbrook, supra. Moreover, the

finding of mootness was expressly predicated on the grant of summary judgment to the

Fosters; because we cannot proceed with the McCords’ appeal for lack of a final order, we are

also unable to address Ditch 56 Farms’s appeal.

Appeal dismissed.

HIXSON and WOOD, JJ., agree.

Law Office of Wendell L. Hoskins II, by: Wendell L. Hoskins II and Mary K. Walker, for
appellant Ditch 56 Farms, LLC.

Mixon Law Firm, by: Donn Mixon, for McCord appellants.

Hayes, Alford & Johnson, PLLC, by: L. Cody Hayes, John D. Alford, and Christopher B.
Conley, for appellees Linda Alden and Danny Brandon.

Waddell, Cole & Jones, P.A., by: Ralph W. Waddell and Justin E. Parkey, for appellees
Stanley Foster and Judy Foster.

6