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ARKANSAS COURT OF APPEALS

DIVISION III

No. CV-15-468

 

TONY HAVNER

APPELLANT

V.

NORTHEAST ARKANSAS ELECTRIC

COOPERATIVE

 APPELLEE

Opinion Delivered March 2, 2016

APPEAL FROM THE BAXTER

COUNTY CIRCUIT COURT

[NO. CV-11-397-3]

HONORABLE JOHN R. PUTMAN,

JUDGE

APPEAL DISMISSED

WAYMOND M. BROWN, Judge

Appellant Tony Havner appeals from the Baxter County Circuit Court’s order

granting summary judgment to appellee Northeast Arkansas Electric Cooperative (NAEC). 

Appellant argues that the court erred in granting summary judgment because NAEC had a

legal duty under Arkansas law to inspect, maintain, and repair the cable in question. We

dismiss because appellant has failed to appeal from a final order.

Appellant was injured in a motorcycle accident in August 2011 on Highway 5 in

Baxter County, Arkansas. At the time of the accident, appellant was traveling behind

Tommie L. Walker III when the sickle on Walker’s tractor caught a low-hanging cable strung

across the road and pulled the cable down. 

The cable was attached to a pole owned by NAEC pursuant to an agreement between

NAEC and Rapid Acquisition Co., LLC. Appellant and his wife, Tina Havner, filed a
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complaint against Walker and Walker’s company, Tommie Walker Auction, Inc. (TWAI),

on December 14, 2011.1 TWAI filed a motion for summary judgment and brief in support

of the motion on September 7, 2012. On September 27, 2012, appellant filed a motion to

hold TWAI’s summary-judgment motion in abeyance and a motion to dismiss pursuant to

Arkansas Rule of Civil Procedure 41. An order was entered on October 17, 2012, granting

appellant’s motion and dismissing appellant’s claims against TWAI without prejudice. 

On April 22, 2013, appellant filed an amended complaint against Walker, NAEC,

Almega Cable, Inc., KFW Communications, LLC, and John Doe entities 1–5, alleging

negligence. NAEC filed an answer to appellant’s amended complaint on May 24, 2013,

denying the material allegations of the complaint and seeking to have it dismissed. On March

20, 2014, NAEC filed a motion for leave to file a cross-claim or, in the alternative, a thirdparty complaint. Appellant filed a response to the motion on April 4, 2014, requesting that

it be denied. The court entered an order on April 8, 2014, granting NAEC’s motion. NAEC

filed a complaint on April 15, 2014, against Almega Cable, Inc., and KFW Communications,

LLC, requesting contribution, indemnity, and/or allocation of fault. 

NAEC filed a motion for summary judgment and an accompanying brief on April 18,

2014, contending that it owed no duty to appellant with regard to the cable lines owned by

a third party. Appellant filed a response to NAEC’s summary-judgment motion and

responsive brief on May 6, 2014, seeking to have the motion denied. NAEC filed a reply

1Tina filed a motion to dismiss her complaint without prejudice on August 28, 2012. 

The court dismissed the complaint on September 5, 2012. 

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brief on May 13, 2014. Appellant filed a second amended complaint on July 24, 2014, adding

Rapid Acquisition Co., LLC, as a defendant. NAEC filed an answer to the second amended

complaint on July 25, 2014. The court filed an order on October 21, 2014, granting NAEC

summary judgment. 

Appellant filed a motion for entry of judgment and Rule 54(b) certificate on January

5, 2015, contending that there was no just reason for delay of the entry of a final judgment. 

NAEC filed a response in opposition of appellant’s motion on January 12, 2015, contending

that appellant had failed to establish exceptional circumstances, or a compelling and discernible

hardship, that would permit him to immediately appeal the court’s grant of summary

judgment to NAEC. Appellant filed a reply on January 20, 2015, again asserting that there

was no just reason for delaying the entry of a final judgment as to appellant’s complaint against

NAEC. A judgment and Rule 54(b) certificate was stamped by the circuit clerk

“PRESENTED” and “RECORDED” on February 27, 2015. Appellant filed a notice of

appeal on March 9, 2015.

Subject to a few exceptions not applicable in this case, Rule 2(a) of the Arkansas Rules

of Appellate Procedure–Civil provides that this court has jurisdiction to review cases only

where a final order has been entered.2

 Whether an order is final and appealable is a matter

going to our jurisdiction; jurisdiction is an issue that we are obligated to raise on our own

motion.3

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

2Ark. R. App. P.–Civ. 2(a). 

3Dobbs v. Dobbs, 99 Ark. App. 156, 258 S.W.3d 414 (2007). 

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action, or concludes their rights to the subject matter in controversy.4

 When multiple parties

are involved in a lawsuit, Arkansas Rule of Civil Procedure 54(b) provides that a circuit court

may direct the entry of a final judgment as to one or more but fewer than all of the claims or

parties “only upon an express determination, supported by specific factual findings, that there

is no just reason for delay and upon an express direction for the entry of judgment.” 5

 Once

the court makes such a determination, it must execute a certificate in compliance with the

requirements of Rule 54(b).6

The court in this case determined that there was no just reason for delay and expressed

direction for the entry of judgment. However, the judgment and Rule 54(b) certificate was

never entered because it was never filed. Arkansas Supreme Court Administrative Order No.

2(b)(2) provides that the “clerk shall denote the date and time that a judgment, decree, or

order is filed by stamping or otherwise marking it with the date and time and the word ‘filed.’ 

A judgment, decree, or order is entered when so stamped or marked by the clerk, irrespective

or when it is recorded in the judgment record book.”7 Because the judgment and 54(b)

certificate was recorded but never filed, it was not entered as required by our rules, and

4Ark. Dep’t of Human Servs. v. J.N., 96 Ark. App. 319, 241 S.W.3d 293 (2006). 

5Ark. R. Civ. P. 54(b). 

6See Stauffer v. Kralicek Realty Co., 81 Ark. App. 89, 98 S.W.3d 475 (2003). 

7Ark. Sup. Ct. Admin. Order No. 2(b)(2). 

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appellant has failed to appeal from a final order.8

 Accordingly, we dismiss the appeal without

prejudice for lack of a final order.

Appeal dismissed.

VAUGHT and HOOFMAN, JJ., agree.

Rainwater, Holt & Sexton, P.A., by: Thomas J. Diaz; and Brian G. Brooks, Attorney at

Law, PLLC, by: Brian G. Brooks, for appellant.

Friday, Eldredge & Clark, LLP, by: James C. Baker, Jr., and Kimberly D. Young, for

appellee.

8

 All other pleadings in this case were stamped “FILED.”

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