Mountain Pure v. Affiliated Foods Southwest

• Decision Date: 06 April 2006
• Docket Number: No. 05-837.,05-837.
• Citation: 233 S.W.3d 609
• Parties: MOUNTAIN PURE LLC, APPELLANT, v. AFFILIATED FOODS SOUTHWEST, INC.; Turner Holdings, L.L.C.; Portola Packaging, Inc.; Stone Container Corporation; Consolidated Container Company, L.L.C., Appellees.
• Court: Arkansas Supreme Court

233 S.W.3d 609

MOUNTAIN PURE LLC, APPELLANT, v. AFFILIATED FOODS SOUTHWEST, INC.; Turner Holdings, L.L.C.; Portola Packaging, Inc.; Stone Container Corporation; Consolidated Container Company, L.L.C., Appellees.

No. 05-837.

Supreme Court of Arkansas.

April 6, 2006.

Barrett & Deacon, A Professional Association, by: D.P. Marshall, Jr. and Brandon J. Harrison, Jonesboro, for appellant.

Dover Dixon Horne PLLC, by: Steve L. Riggs and Nona M. Morris; and Friday Eldredge & Clark, LLP, by: William A. Waddell, Jr., Little Rock, for appellee Affiliated Foods.

Cross, Gunter, Witherspoon & Galchus, P.C., by: M. Stephen Bingham, Little Rock, for appellee Stone Container Corporation.

ANNABELLE CLINTON IMBER, Associate Justice.

This case involves a suit between Appellant Mountain Pure, LLC, and Appellees Affiliated Foods Southwest, Inc., Turner Holdings, LLC, Portola Packaging, Inc., Stone Container Corporation, and Consolidated Container Company, LLC. The case has a long and convoluted procedural history, which has been fully outlined in a previous unpublished opinion by the Arkansas Court of Appeals:

In December 2001, appellant filed a complaint in the Pulaski County Circuit Court against appellees for breach of contract. Appellant also included a claim for conversion of a forklift against Turner. In its claim against Affiliated, appellant alleged that Affiliated had breached their contract in regard to certain equipment Affiliated had leased to Turner even though it had already sold that equipment to appellant. Turner filed a counterclaim against appellant for the contractual amount due for products that it had supplied to appellant and for the conversion of certain equipment. Stone, Consolidated, and Portola also filed counterclaims against appellant for the debts that appellant owed them. On July 18, 2003, Stone moved for summary judgment on appellant's complaint.

On August 6, 2003, appellant filed an amended complaint that added negligence and strict-liability claims against Turner, Portola, Consolidated, and Stone. On August 20, 2003, appellant moved to take a nonsuit on its claims against Turner, Portola, Stone, and Consolidated. The court entered an order dismissing those claims without prejudice, leaving appellant's claims against Affiliated intact. The court later modified this order to provide that the dismissal did not include appellant's breach-of-contract and breach-of-warranty claims against Turner, Stone, Portola, and Consolidated.

Stone, Turner, Portola, and Consolidated moved for summary judgment on their debt claims against appellant. Affiliated also moved for summary judgment, asserting that appellant had repudiated their agreement. On November 21, 2003, the circuit court granted Affiliated's motion for summary judgment as to appellant's claims for breach of contract and took the "equipment issue" under advisement. On December 10, 2003, the court granted summary judgment in favor of Stone, Consolidated, Turner, and Portola on appellant's breach-of-contract and breach-of-warranty claims. On December 16, 2003, the circuit court granted summary judgment to Turner for its debt claim in the amount of $499,041.44, plus prejudgment interest of $77,517.97, attorney's fees, and costs. The court modified that judgment to exclude the conversion claim on January 12, 2004, reducing the award to $196,012.30, plus prejudgment interest and attorney's fees. It awarded summary judgment to Consolidated on its debt claim in the amount of $368,437.13, prejudgment interest, and attorney's fees on December 19, 2003. On the same day, it awarded summary judgment in the amount of $257,168.89, plus prejudgment interest and attorney's fees, to Stone. The court also awarded Portola summary judgment in the amount of $62,110.31, plus prejudgment interest of $9,240.40 and attorney's fees on that date.

Turner took a nonsuit on its conversion claim against appellant on February 3, 2004. On February 18, 2004, appellant took a voluntary nonsuit on the "equipment issue." In the order granting the nonsuit, the court stated: "The Court has now ruled on all Motions submitted by all parties, and there are no issues remaining for trial. There is, therefore, no requirement for a Rule 54 certification, and this Order is final and appealable as to all issues and all parties."

Mountain Pure LLC v. Affiliated Foods Southwest, Inc., No. CA 04-543, slip op., 2004 WL 3109899 (Jan. 19, 2004) ("Mountain Pure I"). In dismissing the appeal, the court of appeals reasoned as follows:

The supreme court has held that a party that has several claims against another party may not take a voluntary nonsuit of one claim and appeal an adverse judgment as to the other claims when it is clear that the intent is to refile the nonsuited claim and thus give rise to the possibility of piecemeal appeals. This is so because a voluntary nonsuit or dismissal leaves the plaintiff free to refile the claim, assuming there has been no previous dismissal.

Here, appellant has taken a nonsuit on its "equipment" claim against Affiliated and has nonsuited all of its other claims, except for the breach-of-contract and breach-of-warranty claims, against Turner, Stone, Portola, and Consolidated. Additionally, appellant and Turner have taken nonsuits on their conversion claims against each other. Because the nonsuited claims may be refiled, this is an interlocutory appeal that we have no authority to entertain under Rule 2(a). Accordingly we have no choice but to dismiss this appeal.

Id. (internal citations omitted). Following the decision by the court of appeals, Mountain Pure filed a second amended complaint, reasserting its nonsuited equipment claim against Affiliated. Affiliated filed a motion to dismiss, arguing among other things that the complaint was filed while the circuit court was without jurisdiction. Additionally, Turner filed a complaint in a new case, reasserting its conversion claim against Mountain Pure, but this claim was eventually dismissed with prejudice.

On April 6, 2005, the circuit court struck Mountain Pure's second amended complaint, finding that the court was without jurisdiction to entertain the complaint because the case had been dismissed without prejudice. Mountain Pure filed a notice of appeal from the order striking the amended complaint. Mountain Pure also filed a motion for reconsideration and a motion requesting the court to enter a final judgment and to certify the judgment pursuant to Ark. R. Civ. P. 54(b). The court held a hearing and eventually entered an order denying both motions. Mountain Pure then filed an amended notice of appeal and lodged an appeal with the Arkansas Court of Appeals. Shortly thereafter, Appellees filed motions to dismiss the appeal. The court of appeals has certified the motions to this court as involving an issue of substantial public interest needing further development or clarification of the law. Thus, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(b)(4) and (5) (2005).¹ Appellees argue that the instant appeal should be dismissed as untimely. Specifically, Appellees argue that the original case was closed upon entry of the voluntary nonsuits, and, consequently, Mountain Pure could not file the second amended complaint in the case or appeal from the circuit court's subsequent decisions in the case. Appellees further contend that Mountain Pure was required to file a completely new lawsuit in order to resurrect the nonsuited claims. Mountain Pure, on the other hand, maintains that the amended pleadings were appropriately filed in the original case, and the order striking the second amended complaint and the order refusing to enter a final judgment are both appealable and bring up for review all prior orders in the original case.

Rule 2 of the Arkansas Rules of Appellate Procedure — Civil specifically denotes which matters are appealable:

(a) An appeal may be taken from a circuit court to the Arkansas Supreme Court from

(1) A final judgment or decree entered by the circuit court;

(2) An order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action;

(3) An order which grants or refuses a new trial;

(4) An order which strikes out an answer, or any part of an answer, or any pleading in an action;

(5) An order which vacates or sustains an attachment or garnishment

(6) An 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;

(7) An interlocutory order appointing a receiver or refusing to wind up a pending receivership or to take the appropriate steps to accomplish the purposes thereof, such as directing a sale or other disposal of property held thereunder;

(8) An order which disqualifies an attorney from further participation in the case;

(9) An order granting or denying a motion to certify a case as a class action in accordance with Rule 23 of the Arkansas Rules of Civil Procedure;

(10) An order denying a motion to dismiss or for summary judgment based on the defense of sovereign immunity or the immunity of a government official;

(11) An order or other form of decision which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties in a case involving multiple claims, multiple parties, or both, if the circuit court has directed entry of a final judgment as to one or more but fewer than all of the claims or parties and has made an express determination, supported by specific factual findings, that there is no just reason for delay, and has executed the certificate required by Rule 54(b) of the Rules of Civil Procedure; and (12) An order appealable pursuant to any statute in effect on July 1, 1979, including Ark.Code...