Park Plaza Mall CMBS, LLC v. Kimberly Marie Powell Individually And

• Decision Date: 24 January 2018
• Docket Number: No. CV-16-441,CV-16-441
• Citation: 2018 Ark. App. 48
• Parties: PARK PLAZA MALL CMBS, LLC, AND ERMC II, LP APPELLANTS v. KIMBERLY MARIE POWELL INDIVIDUALLY AND AS SPECIAL ADMINISTRATRIX OF THE ESTATE OF CHRISTIAN HAYES, DECEASED APPELLEE
• Court: Arkansas Court of Appeals

2018 Ark. App. 48

PARK PLAZA MALL CMBS, LLC, AND ERMC II, LP APPELLANTS v. KIMBERLY MARIE POWELL INDIVIDUALLYAND AS SPECIAL ADMINISTRATRIX OF THE ESTATE OF CHRISTIAN HAYES, DECEASED APPELLEE

No. CV-16-441

ARKANSAS COURT OF APPEALS DIVISIONS III & IV

January 24, 2018

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, THIRTEENTH DIVISION

[NO. 60CV-14-791]

HONORABLE W. MICHAEL REIF, JUDGE

SUBSTITUTED OPINION ISSUED ON GRANT OF REHEARING; REVERSED AND DISMISSED

RITA W. GRUBER, Chief Judge

On February 28, 2013, Christian Hayes was tragically murdered by Deonte Edison and Tristan Bryant. At the time of his death, Hayes was working as an assistant manager at the Sbarro restaurant in Little Rock's Park Plaza Mall. Edison and Bryant murdered Hayes in Sbarro's leased, private space after the close of business.

Kimberly Powell, on behalf of Hayes's estate, sued numerous parties for his wrongful death, and the case went to trial on her claims against Park Plaza Mall CMBS, LLC (Park Plaza); ERMC II, LP (ERMC), the entity that provided security services to Park Plaza; Edison; and Bryant. A Pulaski County jury returned a verdict in favor of Powell, and Park Plaza and ERMC appealed.¹ Because we hold that the circuit court erred as a matter of law by determining that Park Plaza and ERMC had a duty to protect Hayes from foreseeable criminal acts of third parties, we reverse and dismiss.

I. Background

Sbarro leased space in Park Plaza. Park Plaza contracted with ERMC to provide security to the common areas of the mall. Pursuant to the contract, ERMC was responsible for observing and reporting safety issues in common areas of the mall to police.

On February 28, 2013, Hayes and Jashonta Thomas, another Sbarro employee, were closing the restaurant when Edison and Bryant entered the restaurant through an employee door.² Edison confronted Hayes, asked for money, and ultimately shot and killed him inside Sbarro's leased, private space. Thomas was shot nine times but survived her injuries.³

Kimberly Powell, the administratrix of Hayes's estate, sued numerous parties whom she deemed responsible for his death. She filed her initial complaint on February 24, 2014. She amended her complaint several times—adding and subtracting certain parties. The operative complaint, the fourth amended complaint, was filed on August 7, 2015,against Park Plaza; ERMC; QC & SF Enterprises, Inc.; Edison; Bryant; Sbarro, LLC; Sbarro America, Inc.; Sbarro Franchise Co., LLC; and several John Doe defendants.⁴

Before the filing of the fourth amended complaint, Park Plaza and ERMC sued Sbarro, LLC; Sbarro America, Inc.; Sbarro Franchise Co., LLC; Kahala Franchising, LLC; and QC & SF Enterprises, Inc., for contribution and indemnity. An order was entered severing Park Plaza and ERMC's cross-claims against Sbarro, LLC, and Sbarro America, Inc., with a trial to be held on the cross-claims in the event Powell obtained a judgment against Park Plaza and ERMC.⁵ The cross-claim against QC & SF Enterprises, Inc., was dismissed with prejudice, and the cross-claims against the remaining parties—Sbarro Franchise Co., LLC, and Kahala Franchising, LLC—were dismissed without prejudice.

The case proceeded to a jury trial with Powell seeking relief from Park Plaza, ERMC, Edison, and Bryant. Powell sought relief from Edison and Bryant for battery and assault. She sought relief from Park Plaza and ERMC for negligence. Powell asserted that Hayes was a business invitee of Park Plaza and ERMC; accordingly, Park Plaza and ERMC had a duty to protect Hayes from criminal acts of third parties. Park Plaza and ERMC vigorously challenged the claim that Hayes was their business invitee. They insisted that hewas a tenant whom they had no duty to protect from criminal acts of third parties. Powell prevailed on this issue, and the circuit court instructed the jury that Park Plaza and ERMC owed Hayes a duty as a business invitee on the premises.

The jury returned a $2,771,000 verdict in Powell's favor finding that Park Plaza and ERMC were 33 percent at fault, Edison was 34 percent at fault, and Bryant was 33 percent at fault. The jury's verdict was reduced to judgment. Later, Park Plaza and ERMC filed a motion for judgment notwithstanding the verdict and alternatively a motion for new trial, which was denied. They also filed a motion to certify the judgment. The circuit court entered an amended judgment that included a Rule 54(b) certificate. Park Plaza and ERMC timely appealed.

On appeal, Park Plaza and ERMC contend that the circuit court erred by denying their motion for directed verdict and their motion for new trial. They argue that it was error to deny the directed-verdict motion because (1) they owed no duty to protect Hayes against harm resulting from criminal acts of third parties, (2) there was no substantial evidence that they breached any duty to Hayes, and (3) there was no substantial evidence that any breach caused Hayes's murder. They also argue that the circuit court erred in denying their motion for a new trial because (1) the circuit court erred as a matter of law in determining that Hayes was a business invitee, (2) substantial evidence did not support the verdict that Park Plaza and ERMC shared equal fault with the murderers, and (3) the circuit court erred in allowing evidence of irrelevant crimes that had previously occurred at the mall.

II. Jurisdiction

On September 20, 2017, our court dismissed this appeal for lack of jurisdiction due to the absence of a final order, reasoning that Park Plaza and ERMC's dismissals without prejudice of their cross-claims against Sbarro Franchise Co., LLC, and Kahala Franchising, LLC, acted as a bar to jurisdiction. Park Plaza and ERMC filed a petition for rehearing, and on November 8, 2017, we granted the petition. After due consideration, we concluded that the dismissals without prejudice of these cross-claims did not preclude our court from exercising jurisdiction.

We reiterate the general rule that the dismissal of a claim without prejudice does not create finality. Beverly Enters.-Ark., Inc. v. Hillier, 341 Ark. 1, 3, 14 S.W.3d 487, 488 (2000). By contrast, the dismissal of a party to an action, with or without prejudice, is sufficient to obtain finality and invest jurisdiction in an appellate court. Driggers v. Locke, 323 Ark. 63, 913 S.W.2d 269 (1996).

The rationale for these rules provides important context. The dismissal without prejudice of a party is sufficient to create finality because "nothing requires a plaintiff to sue the prospective defendants simultaneously." Driggers, 323 Ark. at 66, 913 S.W.2d at 270. However, the dismissal of fewer than all claims against a party is insufficient because our courts seek to avoid piecemeal appeals. Id.

The plain language of the circuit court's dismissal orders as to Sbarro Franchise Co., LLC, and Kahala Franchising, LLC, provides only that the cross-claims—not the parties—are dismissed. However, there were no other pending claims against either entity. Thus, thepractical effect of the nonsuits of these claims was to fully dismiss Sbarro Franchise Co., LLC, and Kahala Franchising, LLC, as parties to this litigation and put them in a position as though they had never been sued. See, e.g., Advanced Envtl. Recycling Techs., Inc. v. Advanced Control Solutions, 372 Ark. 286, 275 S.W.3d 162 (2008). Accordingly, we proceed to the merits of the appeal.

III. Duty

The circuit court found that Hayes was a business invitee of Park Plaza and ERMC and that Park Plaza and ERMC owed him a duty to use ordinary care to maintain the premises in a reasonably safe condition. Park Plaza and ERMC contend that the circuit court erred by imposing this duty on them. We agree.

The issue of whether a duty exists—and what duty exists—is a question of law. Yanmar Co., Ltd. v. Slater, 2012 Ark. 36, 386 S.W.3d 439. Accordingly, we conduct a de novo review of whether Park Plaza and ERMC owed a duty to Hayes. Gulfco of La. v. Brantley, 2013 Ark. 367, 430 S.W.3d 7.

It is a general principle that a party is not liable in tort for harm resulting from the criminal acts of a third party absent certain special relationships. First Commercial Tr. Co. v. Lorcin Eng'g, 321 Ark. 210, 214-15, 900 S.W.2d 202, 204 (1995). One such special relationship is that of a business invitee, and a business may be held liable for foreseeablecriminal acts committed against its patrons by third parties. Boren v. Worthen Nat'l Bank, 324 Ark. 416, 921 S.W.2d 934 (1996).

The parties fiercely contest whether Hayes was a tenant or a business invitee of Park Plaza and ERMC, and the evidence is as follows. At the time of the murder, Hayes was present in the mall in his capacity as an assistant manager of Sbarro, a tenant of Park Plaza. Sbarro's lease with Park Plaza included a provision that required Sbarro to pay a portion of its revenues to Park Plaza as rent.

Arkansas courts have squarely addressed the issue of whether a tenant is an invitee on his or her landlord's premises and have held that a tenant is not an invitee but has a right equal to that of the landlord to exclusive possession of the property. Wheeler v. Philips Dev. Corp., 329 Ark. 354, 947 S.W.2d 380 (1997). In addition, Arkansas has long adhered to the rule that a landlord has no duty to protect a tenant from criminal acts of third parties. Bartley v. Sweetser, 319 Ark. 117, 120, 890 S.W.2d 250, 251 (1994). Furthermore, our supreme court has also addressed the issue of whether a landlord has a duty to protect an employee of a tenant and has determined that, as a general principle, it does not. See Lacy v. Flake & Kelley Mgmt., 366 Ark. 365, 235 S.W.3d 894 (2006).

The Lacy case is instructive. Lacy, an employee of a United States bankruptcy trustee that had offices in a building managed by Flake & Kelley, was abducted, robbed, and raped in the building's parking lot when she was leaving her office. She sued Flake & Kelley, and our supreme court held that Lacy was a tenant—not an invitee. Thus,...