LaRue v. Ground Zero Constr. Inc.
2014 Ark. App. 93
Ark. Ct. App.2014Background
- Forsgren, general contractor on an Oklahoma road project, contracted with LaRue to permanently dispose of project waste (rock/dirt) on LaRue’s adjoining property.
- Forsgren later sold some of the waste to Ground Zero for $112,000; the sale was "as is" and made without LaRue’s knowledge or consent to allow Ground Zero access to LaRue’s land.
- LaRue denied Ground Zero access and fenced the rock, though he continued to allow Forsgren access; Ground Zero refused further payments to Forsgren because it could not remove the material.
- Forsgren sued Ground Zero for the unpaid $89,600; Ground Zero counterclaimed (breach, fraud, unjust enrichment) and filed a third-party complaint against LaRue (tortious interference, misrepresentation, injunctive relief, punitive/compensatory damages).
- After a bench trial, the circuit court: (a) awarded Forsgren $89,600 against Ground Zero; (b) dismissed Ground Zero’s counterclaim for breach; and (c) found LaRue tortiously interfered and awarded Ground Zero $89,600 against LaRue. The court later entered a Rule 54(b) certificate to allow an immediate appeal while post-judgment fee/interest issues were pending.
- On postjudgment motions the court awarded Forsgren prejudgment interest, fees, and costs, and later ordered Ground Zero indemnified by LaRue for those amounts. Notices of appeal and a cross-appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Finality / appealability of judgment | Forsgren/Ground Zero treated the amended judgment with Rule 54(b) certificate as final and appealed. | LaRue argued pending issues and defective certification made the order nonfinal. | Appeal (and cross-appeal) dismissed for lack of a valid final order; Rule 54(b) certificate defective for failing to state factual findings that there was no just reason for delay. |
| Validity of Rule 54(b) certification | Certification permitted interlocutory appeal while fees/interest remained pending. | Certification must state factual basis showing no just reason for delay; mere recitation of pending motions is insufficient. | Certification inadequate because it did not set forth factual findings showing compelling hardship or no just reason for delay. |
| Merits: tortious interference by LaRue (trial-level issue) | Ground Zero: LaRue knew of Ground Zero’s contract with Forsgren and intentionally prevented performance by fencing the site. | LaRue: asserted property rights and that Forsgren’s agreement controlled disposition of waste; challenged entry order. | Appellate court did not reach merits due to nonfinality; trial court had found LaRue liable for tortious interference and entered judgment, but that judgment was not appealable here. |
| Compliance with App. R. Civ. 3(e) abandonment statement in notices | Ground Zero relied on Rule 54(b) certification and did not include the abandonment statement in its cross-appeal. | Appellate rule requires notices to state abandonment of unresolved claims when appealing a final order; absence is fatal unless interlocutory posture justified. | Because the Rule 54(b) certificate was ineffective, Ground Zero’s failure to include the abandonment statement rendered its cross-appeal deficient; appeal dismissed without prejudice. |
Key Cases Cited
- Advanced Envtl. Recycling Techs., Inc. v. Advanced Control Solutions, Inc., 372 Ark. 286, 275 S.W.3d 162 (2008) (appealability and jurisdictional requirement that orders be final)
- McWhorter v. McWhorter, 2009 Ark. 458, 344 S.W.3d 64 (2009) (judgment must clearly specify relief granted)
- Thomas v. McElroy, 243 Ark. 465, 420 S.W.2d 530 (1967) (formal clarity required in judgments)
- Follett v. Fitzsimmons, 100 Ark. App. 347, 268 S.W.3d 902 (2007) (Rule 54(b) requires showing of no just reason for delay; dismissal without prejudice where certification defective)
- Rutledge v. Christ is the Answer Fellowship, Inc., 82 Ark. App. 221, 105 S.W.3d 816 (2003) (Rule 54(b) interlocutory appeals only in exceptional circumstances to avoid hardship)
- Stouffer v. Kralicek Realty Co., 81 Ark. App. 89, 98 S.W.3d 475 (2003) (Rule 54(b) certification must include factual findings supporting interlocutory appeal)
- Dodge v. Lee, 350 Ark. 480, 88 S.W.3d 843 (2002) (collateral issues like attorney’s fees are not appealable absent a final order)