                                  Cite as 2017 Ark. App. 533

                 ARKANSAS COURT OF APPEALS
                                        DIVISION III
                                        No. CV-17-138


                                                   Opinion Delivered   October 18, 2017
PRESCOTT SCHOOL DISTRICT
                   APPELLANT                       APPEAL FROM THE NEVADA
                                                   COUNTY CIRCUIT COURT
                                                   [NO. 50CV-14-64]
V.
                                                   HONORABLE RANDY WRIGHT,
                                                   JUDGE
PATRICIA STEED
                                   APPELLEE        DISMISSED WITHOUT PREJUDICE



                            PHILLIP T. WHITEAKER, Judge

       The Prescott School District appeals a Nevada County jury award in favor of Patricia

Steed on her breach-of-contract action. We cannot reach the merits of the District’s

argument at this time because we lack a final, appealable order.

       Patricia Steed was hired by the Prescott School District to teach English during the

2013–2014 school year. At the time she was hired, Steed did not possess an Arkansas teaching

license but was enrolled in courses to obtain her license.1 Steed signed an employment

contract with the District; however, the District failed to execute it. The District asserted that

because Steed did not have the requisite certification, she had been hired as a nonlicensed

substitute, rather than pursuant to the contract. Steed was informed by the District in April

2014 that her services were no longer required.


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       She ultimately received her certification in April 2014, and it was backdated by the
Arkansas Department of Education to August 2013.
                                   Cite as 2017 Ark. App. 533

         In December 2014, Steed filed a complaint against the District alleging three causes of

action: breach of contract; violation of the Arkansas Teacher Fair Dismissal Act (ATFDA); and

reckless infliction of emotional distress (denoted by Steed in her complaint as “outrage”). Our

analysis of finality will address how each of these causes of action was litigated at the trial level.

         In February 2014 after the District filed a motion to dismiss alleging that it was entitled

to absolute immunity for tort,2 Steed filed a notice of partial nonsuit of her “outrage” claim.

Steed’s notice stated that the nonsuit of that claim was being taken without prejudice.

However, the court did not enter any order of dismissal when the notice of nonsuit was filed.

Later, the court entered an order denying the District’s motion to dismiss. In it, the court

noted that Steed’s “outrage” claim should be dismissed, but it did not expressly dismiss the

claim.

         The parties proceeded to a jury trial on the breach-of-contract and the ATFDA causes

of action in October 2015. The parties did not submit the ATFDA claim to the jury but did

submit the breach-of-contract claim. The jury returned a verdict in favor of Steed on her

breach-of-contract claim and awarded her $10,793 in damages. However, the judgment did

not resolve the two other causes of action: the ATFDA and “outrage” claims.

         Subsequently, the parties and the court recognized there were finality issues. In an

order dated July 28, 2016, the trial court acknowledged that Steed’s ATFDA claim had not

been presented to the jury or adjudicated by the court and reserved its ruling on certain



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        The District’s motion also alleged that there was no contract and therefore no breach
and that the ATFDA did not apply because Steed did not have the required certification.

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posttrial motions until a hearing on Steed’s ATFDA claim could be held. Thereafter, Steed

filed a notice of partial nonsuit of her ATFDA claim.

         When the District filed its notice of appeal, Steed filed a motion to dismiss the appeal,

arguing that it was untimely because more than thirty days had passed since the entry of the

judgment. The District responded that the order was not final until Steed took a voluntary

nonsuit of her ATFDA claim. Steed then filed a supplemental motion to dismiss the appeal

on the basis that the record had not been lodged within ninety days as required by the rules.

The District responded that the record had not been filed because our clerk’s office had

advised that a final order had not been entered. Finally, on December 9, 2016, the trial court

entered an order dismissing Steed’s “outrage” and ATFDA claims. The order, however, did

not specify whether Steed’s claims were being dismissed with or without prejudice.

         Arkansas Rule of Appellate Procedure–Civil 2(a)(1) provides that an appeal may be

taken only from a final judgment or decree entered by the circuit court. Arkansas Rule of

Civil Procedure 54(b) provides that when more than one claim for relief is presented in an

action or when multiple parties are involved, an order that adjudicates fewer than all the

claims    or   the   rights   and    liabilities   of   fewer   than   all   the   parties   is   not

a final, appealable order. Miracle Kids Success Acad., Inc. v. Maurras, 2016 Ark. App. 445, at 2–3,

503 S.W.3d 94, 95. Rule 54(b) allows a trial court, when it finds no just reason for delaying

an appeal, to direct entry of a final judgment as to fewer than all the claims or parties by

executing a certification of final judgment as it appears in Rule 54(b)(1). However, absent this

required certification, any judgment, order, or other form of decision that adjudicates fewer


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than all the claims or the rights and liabilities of fewer than all the parties shall not terminate

the action. Miracle Kids, supra. No such certification was made in this case.

       Here, Steed took a voluntary nonsuit of two of her claims: “outrage” and ATFDA.

Her nonsuit of the “outrage” claim was expressly “without prejudice”; the nonsuit of the

ATFDA claim was silent as to disposition. While Steed entered notices of partial nonsuit of

these claims in February 2015 and August 2016, her nonsuits were not effective until the

court entered an order dismissing the claims in December 2016. See Ark. R. Civ. P. 41(a)(1)

(stating that while an action may be dismissed as a matter or right, it is effective only upon

entry of a court order dismissing the action). The December 2016 order just “dismissed” the

remaining claims; it did not dismiss them with prejudice. There is no evidence in our record

that these claims had ever been filed before or that they would otherwise operate as an

adjudication on the merits.

       Generally, a trial court’s order granting a nonsuit and dismissing claims without

prejudice is not a final order or an adjudication on the merits because the merits of the cause

are not finally determined. Beverly Enters.-Ark., Inc. v. Hillier, 341 Ark. 1, 3, 14 S.W.3d 487,

488 (2000). When a nonsuit has been made effective, a new action may be filed within one

year of the nonsuit or within the applicable statute of limitations, whichever is longer. Ark.

Code Ann. § 16-56-126(a)(1) (Repl. 2005); Stodola v. Lynch, 2017 Ark. 181, at 4, 519 S.W.3d

677, 679; Blaylock v. Shearson Lehman Bros., 330 Ark. 620, 622, 954 S.W.2d 939, 940

(1997). The recent case of Stodola v. Lynch, 2017 Ark. 181, 519 S.W.3d 677, expounds on

this general rule. In Stodola, our supreme court held that appellees’ nonsuited claims that had


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not been refiled within the applicable statute-of-limitations period and had not been refiled

within one year of having been nonsuited could “no longer be litigated” and were “no longer

a bar to finality.” Id. at 3–4, 519 S.W.3d at 679.

       That is not the case here because the dismissals were not entered until December 2016,

and the one-year time period for refiling of claims under the savings statute has not expired.

Thus, there is no final order to be appealed.

       Should the District choose to refile, we remind counsel to carefully review the rules

regarding briefing to ensure that the brief is properly prepared and to pay particular attention

to Arkansas Supreme Court Rule 4-2(a)(5)(A) governing the contents of the abstract.

       Dismissed without prejudice.

       GRUBER, C.J., and BROWN, J., agree.

       Bequette & Billingsly, P.A., by: George J. Bequette, Jr., for appellant.

       Harrelson Law Firm, P.A., by: Steve Harrelson, for appellee.




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