DITCH 56 FARMS, LLC, RONNIE McCORD, CLINT McCORD, and McCORD FARMS, LLC v. STANLEY FOSTER, JUDY FOSTER, LINDA ALDEN, and DANNY BRANDON
No. CV-12-1071
ARKANSAS COURT OF APPEALS DIVISION IV
September 18, 2013
2013 Ark. App. 505
HONORABLE LEE FERGUS, JUDGE
APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, EASTERN DISTRICT [NO. CV 2012-1]
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
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 tо 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 contrаcted 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 Fоsters.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
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 Fоsters 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 аgainst 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
After hearing arguments on the motion, the court granted summаry 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. Beсause 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 cоncluded 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 frоm 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
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, thаt 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 оf 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
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
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.