Full Opinion

Cite as 2026 Ark. App. 494 ARKANSAS COURT OF APPEALS DIVISION II No. CV-25-181 SCA MANAGEMENT, LLC Opinion Delivered October 21, 2026 APPELLANT APPEAL FROM THE BENTON COUNTY CIRCUIT COURT V. [NO. 04CV-24-852] ANN DONOVAN, P.A.; ANN HONORABLE GARY ARNOLD, DONOVAN; AND ALL OTHER JUDGE OCCUPANTS OF 700 N 13TH ST A, ROGERS, AR 72756 APPELLEES DISMISSED WITHOUT PREJUDICE WENDY SCHOLTENS WOOD, Judge Appellant SCA Management, LLC (“SCA”), appeals from an order of the Benton County Circuit Court granting the motion of appellees Ann Donovan, P.A., and Ann Donovan (collectively referred to as “Donovan”) to set aside the circuit court’s grant of summary judgment in favor of SCA. We dismiss the appeal without prejudice for lack of a final order. On March 21, 2024, SCA filed a complaint for unlawful detainer seeking damages in connection with a commercial property owned by SCA where Donovan leased office space for a law firm. The complaint alleged that Donovan had failed to pay rent and costs in the amount of $17,963.59 and refused to vacate after written and lawful demand. SCA attached to the complaint a written lease agreement dated October 8, 2015, between the Schmieding Foundation, Inc., as lessor, and Ann Donovan, P.A., as lessee, for 700 N. 13th Street, Suite A. The lease agreement was for a term of twenty-four months, from November 1, 2015 to October 31, 2017, with a rental rate of $1260 a month, subject to a late-payment penalty of 5 percent. Donovan answered the complaint and filed a counterclaim for damages, a statutory penalty, and attorney’s fees. Donovan’s counterclaim alleged, among other things, that the written lease agreement with a previous landlord had expired in 2017, a new agreement had not been executed, and SCA owed Donovan for expenses incurred in connection with the property, including expenses relating to a nonfunctioning heating and air unit that was never repaired. SCA moved for summary judgment on July 12, 2024. Thirty-two days later, SCA’s attorney filed an “Affidavit of Service of Motion” averring that a file-stamped copy of the motion for summary judgment was served on Donovan on July 18 via USPS Priority Mail. Copies of the envelope from the mailing and a USPS tracking update were submitted with the affidavit. SCA’s attorney informed the circuit court by letter dated August 14 that Donovan was served with the summary-judgment motion but did not file a timely response and therefore had failed to “meet proof with proof” to refute SCA’s claims. On August 16, the circuit court entered an order granting SCA’s motion for summary judgment, finding that “the failure to file any response by [Donovan] lacks any proof to oppose the claims for damages set forth by [SCA].” The court also dismissed Donovan’s counterclaim because “judgment has been rendered against [Donovan] on all of the claims 2 made in the verified Complaint.” The court awarded SCA judgment against Donovan in the amount $27,843.52, plus $3,780.00 “for violations of Ark. Code Ann. [§] 18-60-309(b)” and attorney’s fees in the amount of $4,000.00. On September 30, Donovan moved to stay execution of judgment and simultaneously moved to have the judgment set aside pursuant to Rule 60 of the Arkansas Rules of Civil Procedure.1 Donovan claimed that they had not been served with the motion for summary judgment and had only recently learned of the circuit court’s August 16 order granting summary judgment. Donovan urged the circuit court to set aside its judgment under Rule 60(a) to “correct errors or mistakes or to prevent the miscarriage of justice” because they had “valid defenses” that were not considered on summary judgment. SCA moved to strike Donovan’s Rule 60 motion, and the circuit court held a hearing on both motions on November 8. On November 14, the circuit court entered an order denying SCA’s motion to strike and granting Donovan’s motion to set aside the August 16 summary-judgment order. The court found that Donovan had not been sufficiently served with the motion for summary judgment and that the motion “failed to address all allegations and the supporting exhibits 1 Arkansas Rule of Civil Procedure 60(a) provides: “To correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk.” 3 in [Donovan’s] Answer and Counterclaim and left genuine issues of material facts to be decided.”2 On November 25, SCA filed a Rule 60 motion to vacate, alter, and amend the circuit court’s November 14 order setting aside its August 16 summary-judgment order. That motion was deemed denied by operation of law after thirty days. On December 26, SCA filed a notice purporting to appeal the circuit court’s November 14 order setting aside the August 16 order of summary judgment and the deemed denial of SCA’s post judgment motion seeking relief from the November 14 order under Rule 60. However, we cannot address the merits of the appeal because SCA has appealed a nonfinal order. 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 entered by a circuit court. The finality of a circuit court’s judgment or decree is a jurisdictional requirement, and its purpose is to avoid piecemeal litigation. See Eldridge v. Waugh, 2022 Ark. App. 241, at 4; see also Lamb v. JFM, Inc., 311 Ark. 89, 91, 842 S.W.2d 10, 11 (1992). To be final and appealable, an order must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Barton v. Brockington, 2016 Ark. App. 138, at 3, 2 In Sellers v. Felton, this court recited the following well-established principles: “When the proof supporting a motion for summary judgment is insufficient, there is no duty on the part of the opposing party to meet proof with proof. Summary judgment is not granted simply because the opposing party fails to respond to the motion.” 2021 Ark. App. 247, at 3, 626 S.W.3d 121, 123 (internal citations omitted). 4 487 S.W.3d 820, 822. A judgment or decree that contemplates further judicial action is not final. Eldridge, 2022 Ark. App. 241, at 4. Here, the only final order was the August 16 order granting summary judgment against Donovan. However, that is not the order on appeal. The order on appeal is the circuit court’s November 14 order that expressly set aside the August 16 summary-judgment order pursuant to Ark. R. Civ. P. 60(a). It is well established that an order denying a motion for summary judgment is not a final, appealable order. Eldridge, 2022 Ark. App. 241, at 6. We also have held that a circuit court’s order setting aside its prior order of summary judgment within ninety days is not an appealable order because it is not a final order dismissing the parties from the action. 3 See id. at 6–7; see also Lamb, 311 Ark. at 92, 842 S.W.2d at 12 (explaining that if the appellate court considers such an appeal and affirms the order vacating the judgment, then the case would be tried, the lower court’s rulings at trial would be subject to appeal, and the case could be appealed a second time resulting in two appeals when one would suffice). 3 Our appellate courts have held that an order vacating a judgment after ninety days, on the other hand, is an appealable order because it determines the outcome in the equivalent of an independent action to set aside a judgment. See Lamb, 311 Ark. at 92, 842 S.W.2d at 11 (noting that in such an independent action, the judgment creditor could lose his established creditor’s rights); see also Cigna Ins. Co. v. Brisson, 294 Ark. 504, 506-A, 746 S.W.2d 558 (1988) (supplemental opinion on grant of rehearing) (holding that an order setting aside a prior order and reinstating an action entered more than ninety days after an earlier order it purported to modify or vacate was appealable even though it did not dispose of the action); see also Eldridge, 2022 Ark. App. 241, at 6 (distinguishing Citibank, N.A. v. Carruth, 2015 Ark. App. 704). 5 On November 14, the circuit court entered an order that set aside its August 16 summary-judgment order within the ninety-day period. See Ark. R. Civ. P. 60. The November 14 order vacating the summary judgment does not dismiss or discharge the parties from the court, nor does it conclude their rights to the subject matter in controversy. Rather, it “places both of the parties back in the position they were in before the judgment was entered, and it is clear that neither party had a right to appeal before the judgment was entered.” Lamb, 311 Ark. at 91, 842 S.W.2d at 11 (internal citations omitted). Therefore, the November 14 order is not a final and appealable order, and we are without jurisdiction to review it. 4 Because SCA’s Rule 60 motion sought relief from a nonfinal order, the filing of the Rule 60 motion did not make the November 14 order appealable; therefore, we lack jurisdiction to review the deemed denial of that motion as well. See Simshauser v. Simshauser, 4 We note that SCA’s jurisdictional statement cites for purposes of appellate jurisdiction Ark. R. App. P.–Civ. 2(a)(3) (permitting appeal from an order that grants or refuses a new trial); Ark. R. App. P.–Civ. 2(a)(4) (permitting appeal from an order that strikes out answer, or any part of answer, or any pleading in an action); and Ark. R. App. P.–Civ. 2(a)(5) (permitting appeal from an order that vacates or sustains an attachment or garnishment). None of these applies in SCA’s case. Our supreme court has said that, if after “a complete adversarial proceeding,” a circuit court grants a new trial under Rule 59 of the Arkansas Rules of Civil Procedure, the order granting a new trial is appealable under Rule 2(a)(3). Lamb, 311 Ark. at 93, 842 S.W.2d at 12. Our rules of appellate procedure, however, do not provide such a right of appeal when, as in this case, “a judgment is obtained after less than a complete adversarial proceeding and is vacated within ninety days under Rule 60 even though, at the least, a partial new trial will be the result.” Id., 842 S.W.2d at 12. The circuit court’s order vacating its August 16 summary-judgment order, moreover, does not strike out an answer, any part of an answer, or any pleading; and it does not vacate an attachment or garnishment. 6 2026 Ark. App. 191, at 8, 731 S.W.3d 849, 855–56. Accordingly, we dismiss the appeal without prejudice. Dismissed without prejudice. TUCKER and HIXSON, JJ., agree. The Overton Firm, LLC, by: J. Don Overton, for appellant. One brief only. 7