Opinion
CV-21-402
09-21-2022
YAFAI INVESTMENT, INC. APPELLANT v. AHMAD AMDALLAH NASER APPELLEE
Eichenbaum Liles P.A., by: Chris Parker and Ben Honaker, for appellant. Gibson Law Office, by: Chuck Gibson, for appellee.
APPEAL FROM THE CHICOT COUNTY CIRCUIT COURT [NO. 09CV-17-42] HONORABLE QUINCEY ROSS, JUDGE
Eichenbaum Liles P.A., by: Chris Parker and Ben Honaker, for appellant.
Gibson Law Office, by: Chuck Gibson, for appellee.
LARRYD. VAUGHT, JUDGE
This appeal involves a dispute between a lessor and lessee of a convenience store. The lessor, Yafai Investment, Inc. (hereinafter "Yafai"), appeals the order entered by the Chicot County Circuit Court on February 5, 2021, finding in favor of the lessee, Ahmad Amdallah Naser (hereinafter "Naser"). On appeal, Yafai contends that the circuit court clearly erred in (1) finding that Naser was not in breach of the lease for failing to pay rent; (2) finding that the parties had made oral modifications to the lease and awarding Naser a setoff in the amount of $91,278.68; (3) ordering Yafai to repair or replace the store's fueling system; and (4) refusing to award statutory treble damages for the time Naser was in possession of the premises without paying rent. We are precluded from addressing the merits of these arguments because Yafai has brought this appeal from an order that is not final. Accordingly, we dismiss the appeal.
The evidence reflects that Mohammed Yafai is the president of Yafai. References to "Yafai" will be to Yafai Investment, Inc., only.
On April 17, 2017, Yafai filed an unlawful-detainer and writ-of-possession complaint against Naser. In the complaint, Yafai alleged that Naser had breached a ten-year written lease of a convenience store located in Dermott, Arkansas, entered into by the parties on June 1, 2013. Yafai's complaint alleged that Naser had breached the lease by failing to pay monthly rent and late fees in March and April 2017, and Yafai requested a judgment of $12,000. Because Naser refused to surrender possession of the store, Yafai requested an order of possession to remove Naser from the premises.
Naser answered the complaint and filed a counterclaim on May 25, 2017, contending that Yafai had breached the lease by failing to pay property taxes on the store as required under the lease. Naser also alleged that when he took possession of the store, the fueling system was inoperable and that Mohammed Yafai ("Mohammed") was aware of the problem. Naser alleged that on September 26, 2014, he and Mohammed, as president of Yafai, entered into another written agreement whereby Naser promised to pay Yafai $20,000, and Yafai agreed to make significant updates to the fueling system before December 31, 2015. Naser alleged that Yafai breached the September 2014 agreement by failing to update the fueling system.
Yafai filed an answer to the counterclaim on June 17, 2017, admitting that it was delinquent in paying the taxes on the store, that Naser had paid the taxes, and that Naser is entitled to a credit on his rental obligation for the taxes he paid. Yafai denied all other allegations.
On February 28, 2018, Yafai filed an amended complaint alleging that Naser had continued to be in breach because he had failed to pay rent and late fees in the amount of $101,700. Yafai alleged that if Naser wished to remain in possession of the store, he should be ordered to deposit into the court registry the amount of rent due. Yafai further alleged that it was entitled to liquidated damages at the rate of three times the rental value per month for the time that Naser had unlawfully possessed the store. Also on February 28, Yafai filed an amended answer to Naser's counterclaim. Yafai alleged that the June 2013 lease provides that Naser inspected the store prior to the commencement of the lease, that he accepted the store "as is," and that he expressly denied reliance on any representations of Yafai regarding the store's condition or fitness for use. Yafai also denied being a party to the September 26, 2014 agreement. Yafai contended that it had performed under the written lease and that Naser had breached the lease. Last, Yafai asserted that Naser's counterclaim must be dismissed pursuant to Rule 12(b)(6) of the Arkansas Rules of Civil Procedure and that his claims are barred by multiple affirmative defenses.
Naser filed an answer to Yafai's amended complaint on April 6, 2018. Naser again stated that the lease had been amended and that there are oral agreements that modify the lease agreement.
On May 21, 2018, a hearing was held on Yafai's unlawful-detainer complaint. Both parties appeared at the hearing. Mohammed and Naser attended the hearing. Naser testified, but Mohammed did not. Related to this appeal, the circuit court orally found that Naser could maintain possession of the store if he paid back rent of $79,800 into the court's registry within ten days. The court also ordered Naser to pay future rent into the court's registry until the matter is resolved. The court entered an order detailing its findings on June 5, 2018. Naser deposited the back rent into the court's registry within the time required, he maintained possession of the store, and he deposited his future rent payments in the court's registry.
On January 28, 2020, a second hearing was held. Mohammed and Naser testified, and they had differing versions of events. At the close of the evidence, relevant to this appeal, the circuit court orally denied Yafai's claims for unlawful detainer and breach of contract. The court found that the September 26, 2014 agreement was not altered as alleged by Yafai, Mohammed signed it, and it modified the lease agreement. The court ordered Yafai to repair the fueling system within six months. The court further found that Naser was entitled to an offset of his rental payments in the amount of expenses he had incurred in making improvements inside the store ($91,278.68) and expenses he incurred, after September 26, 2014, for repairs to the fueling system ($20,675.57). While an order detailing the court's oral findings was approved by counsel for Yafai and Naser, it was not signed by the circuit court or filed.
On September 1, Naser filed a motion for contempt and to abate rent. He alleged that Yafai had failed to repair the fueling system and should be held in contempt. Naser stated that he had continued to pay rent into the court's registry and asked the circuit court to abate his rent. Yafai responded that no order had been entered following the May 2020 hearing; therefore, the court should deny Naser's motion.
On January 27, 2021, a third hearing was held, and at its conclusion, the circuit court made several oral findings. These findings were set forth in the court's written order entered on February 5, 2021. The court found that Yafai was not in contempt. The court also found that the proposed order that was approved by counsel after the January 2020 hearing adequately reflected the findings and orders from that hearing and directed that it be entered with the following modifications: (1) Yafai was ordered to repair the fueling system; (2) Naser was authorized to suspend his rent payments and use those funds to hire experts to obtain estimates to repair the fueling system; and (3) Naser was directed to provide an accounting of his expenses. According to the court's order, these modifications were to occur within ninety days of the entry of the February 5 order. The circuit court's order twice mentioned the need for a subsequent hearing. Yafai has appealed from the February 5 order.
Before reaching the merits of Yafai's appeal, we must first address the issue of whether the order from which Yafai appeals is final. Whether an order is final and subject to appeal is a jurisdictional question that the court will raise on its own. Blackman v. Glidewell, 2011 Ark. 23, at 3. Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure-Civil provides that an appeal may be taken only from a final judgment or decree entered by a circuit court. 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. Blackman, 2011 Ark. 23, at 3. By contrast, an order that contemplates further action by a party or the court is not a final, appealable order. Id. Even though the issue decided might be an important one, an appeal will be premature if the decision does not, from a practical standpoint, conclude the merits of the case. Id. at 3-4. The purpose of requiring a final order is to avoid piecemeal litigation. Id. at 4. A circuit court may certify an otherwise nonfinal order for an immediate appeal by executing a certificate pursuant to Rule 54(b) of the Arkansas Rules of Civil Procedure. Id.
The order from which Yafai appeals is not a final, appealable order because it contemplates further action by the parties and the court. Among other things, the circuit court's February 5, 2021 order provides that-within ninety days-Yafai is to repair the fueling system, Naser is to use rent payments to hire experts to determine the cost of repairs, and Naser is to prepare an accounting of his expenses. The order specifically references the need for a hearing after the ninety-day period to determine pending issues, i.e., whether Yafai made the repairs and, if not, what offset or damages Naser is entitled to.
The court's oral rulings at the January 2021 hearing more clearly reveal the contemplation of further action by the parties and court:
Court: What the Court is going to do then is we're going to enter the January 28 order. We're going to do the additional 90 days to allow Mr. Yafai to determine whether he's going to be able to fix these pumps or not. . . . We can come back in 90 days, and then, at that time, we can see if anything's going to be able to be done about these pumps.
. . . .
During that 90-day period, what the Court is going to do is we're not going to fully abate the rent, but the $6,100 that's supposed to be used for that rent is going to be used by Mr. Naser to determine whether he can fix these pumps or not. So that's to get experts or whatever he needs to do, make these calls around. He's going to make an accounting of that after 90 days to show how much he did -- he was able to do. And then we'll be able to determine what happens with the remainder of that money that should have [gone] to rent.
That's going to be the ruling of the Court on this matter. We're going to come back in 90 days, and we'll discuss this further at that point in time.
Mr. Naser, do you understand what I've said about the money? The $6,100 is not going to be paid into the registry over the next three months. You are to use a portion of that money to try to find some experts to tell you how much this is going to cost. You need to come back with some quotes and things of that nature, and then we're going to make an accounting and see how much you used to actually do that. What's left over, we'll make a determination about whether it's going to go into -- go back into the registry -- go back over to Mr. Yafai or whatever's going to happen with that.
. . . .
All right. Ms. Helen, do we have something about 90 days out?
. . . .
Court Assistant: Do you want me to give you a date?
Court: Well, hang on. Hang on. Yes. Let's see if we have -- well, no. They'll get in contact with you, and we'll set something 90 days out. Let's wait.
The circuit court's statements demonstrate that it contemplated further action by the parties: Yafai was ordered to repair the fueling system, and Naser was directed to suspend rent payments, obtain estimates to repair the fueling system, and prepare an accounting. The court was extremely clear that these directives were to occur within the next ninety days, and thereafter, "We're going to come back."
Because the February 5, 2021 order and the circuit court's oral pronouncements at the January 2021 hearing direct the parties to engage in specific actions within the next ninety days and anticipate a subsequent hearing during which pending issues would be resolved, the order contemplates future action and is not final and appealable. Blackman, 2011 Ark. 23, at 4-5 (dismissing the appeal for lack of a final order because further action was contemplated before the parties would be discharged from the action). There is no Rule 54(b) certification in the record. Accordingly, we dismiss the appeal.
Dismissed.
Murphy and Brown, JJ., agree.