                                Cite as 2015 Ark. App. 325

                 ARKANSAS COURT OF APPEALS
                                       DIVISION IV
                                      No. CV-14-1129


MURL CALDWELL & SON, INC.; THE                   Opinion Delivered   May 20, 2015
ESTATE OF CLIFFORD CALDWELL;
PAT CALDWELL; AND EARL WOOD,                     APPEAL FROM THE SALINE
JR.                                              COUNTY CIRCUIT COURT
                    APPELLANTS                   [NO. 63CV-09-1446-2]

V.                                               HONORABLE GARY ARNOLD,
                                                 JUDGE

KATHLEEN PROCTOR                                 DISMISSED WITHOUT PREJUDICE
                                 APPELLEE



                         RAYMOND R. ABRAMSON, Judge

        Murl Caldwell & Son, Inc.; the Estate of Clifford Caldwell; Pat Caldwell; and Earl

Wood, Jr., appeal the grant of summary judgment by the Saline County Circuit Court in

favor of Kathleen Proctor. On appeal, they argue that the circuit court erred in granting

summary judgment on Proctor’s claims for breach of contract, breach of warranty, strict

liability, and rescission. They also argue that the circuit court erred in awarding Proctor

prejudgment interest and attorney’s fees. We dismiss for lack of a final order.

        Clifford Caldwell, Pat Caldwell, and Earl Wood, Jr., owned Murl Caldwell & Son,

Inc. (“Murl Caldwell”), a construction company. On January 18, 2007, Murl Caldwell

entered into a contract with Proctor for the sale of a new home in Hot Springs, Arkansas.

Proctor agreed to pay $295,000 for the property and took possession of the home in April

2007.
                                 Cite as 2015 Ark. App. 325

       After moving into the house, Proctor noticed problems with doors opening and closing

and the molding and trim beginning to separate. She notified Earl, and he attempted to make

repairs. However, those repairs were unsuccessful. On November 27, 2009, Carl Garner of

Garner Engineering inspected the house. During his inspection, he found problems with the

foundation as a result of “inadequate compaction of the boulder laden fill.”

       Following Garner’s inspection, on December 21, 2009, Proctor filed suit against Murl

Caldwell, Clifford, Pat, and Earl. She alleged that they had improperly constructed the house’s

foundation and brought claims for “the tort of negligence, breach of contract based on breach

of implied warranty of habitability, breach of warranty of fitness for a particular purpose and

proper construction, and on the basis of strict liability and res ipsa loquitor.” On April 9,

2010, Proctor filed an amended complaint to add the Estate of Clifford Caldwell as a party

because Clifford Caldwell had passed away following the filing of the original complaint.

Proctor further alleged “all averments pled in the original complaint” and attached a copy of

the real-estate contract, as well as Garner’s inspection report. On May 3, 2010, the Estate of

Caldwell and Pat filed a motion to dismiss and motion to quash service.1 On that same day,

Murl Caldwell and Earl filed an answer.

       On October 1, 2012, Proctor filed a motion for summary judgment. Specifically, in

her motion, Proctor stated that she moved for “summary judgment because she ha[d] proven

[b]reach of [c]ontract, [b]reach of [i]mplied [w]arranty of [h]abitability and [f]itness, and


       1
        The circuit court did not rule on Caldwell’s Estate and Pat’s motion to dismiss and
motion to quash. Thus, pursuant to Ark. R. Civ. P. 12(a)(2) (2013), their time to answer
never commenced.

                                              2
                                 Cite as 2015 Ark. App. 325

[s]trict [l]iability.” She asked the circuit court to award her damages and to rescind the

contract. Murl Caldwell, Caldwell’s Estate, Pat, and Earl opposed the motion. On December

14, 2012, the circuit court held a hearing. Following the hearing, on December 31, 2013,

Proctor submitted a brief on damages, which Murl Caldwell, the Estate of Caldwell, Pat, and

Earl opposed. On September 14, 2014, the circuit court entered a written order granting

Proctor’s motion for summary judgment and for rescission. The court also awarded Proctor

prejudgment interest and attorney’s fees.

       On September 22, 2014, Murl Caldwell, Caldwell’s Estate, Pat, and Earl filed a motion

to amend the order, and on October 3, 2014, they filed a notice of appeal. The court did not

rule on their motion to amend the order. Thus, on November 12, 2014, they filed an

amended notice of appeal concerning the deemed denial of their motion to amend the order.

In their notices of appeal, they stated that “[d]efendants abandon any pending, but unresolved,

claim for purposes of Rule 3(e)(vi) of the Arkansas Rules of Appellate Procedure–Civil.”

       Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure–Civil provides that an

appeal may be taken from a final judgment or decree from the trial court. If a suit has more

than one claim for relief or more than one party, an order or judgment adjudicating fewer

than all claims and all parties is neither final nor appealable. Ark. R. Civ. P. 54(b)(2) (2013).

When the order appealed from is not final, we have no jurisdiction to decide the merits.

McDougal v. Sabine River Land Co., 2014 Ark. App. 210. In this case, Proctor’s claim for

negligence was never adjudicated. Thus, the order now being challenged is not final. While

Murl Caldwell, Caldwell’s Estate, Pat, and Earl state in their notices of appeal that they

                                               3
                                Cite as 2015 Ark. App. 325

“abandon any pending, but unresolved, claim for purposes of Rule 3(e)(vi) of the Arkansas

Rules of Appellate Procedure–Civil,” the statement does not provide finality because they

cannot abandon Proctor’s claims. See McDougal, 2014 Ark. App. 210. Accordingly, we do not

have jurisdiction to decide the merits of the case, and we dismiss the appeal without

prejudice.2

       Dismissed without prejudice.

       GLOVER and BROWN, JJ., agree.

       Friday, Eldredge & Clark, LLP, by: Donald H. Bacon and Martin A. Kasten, for appellants.

       The Henry Firm, P.A., by: Matthew Henry, for appellee.




       2
          We note that other claims may also be pending and that they might affect our
jurisdiction to entertain this appeal.

                                              4
