⚖️ Case: Kenmark Optical, Inc. v. Charles Ford, 2023 Ark. App. 431.
🔑 Key Takeaway: The denial of a defendant’s motion for summary judgment on an affirmative defense will only be immediately appealed in very limited circumstances.
📝 Background: The plaintiff brought this case under Ark. Code Ann. § 4-7-301 et seq., which (generally speaking) governs the payment of sales commissions by out-of-state principals to in-state sales representatives. In addition to setting the parameters of the payment of commissions (such as requiring a written agreement and setting the timeline for paying the commissions), the statutes also permit a sales representative to obtain treble damages, plus attorney’s fees and costs. In its answer to the complaint, the defendant in Kenmark Optical raised as an affirmative defense that the statutes violate the Commerce Clause and the Equal Protection Clause of the U.S. Constitution. The defendant then filed a motion for partial summary judgment on the same issue. The trial court granted summary judgment to the defendant as to the treble damages portion of the statutes, but denied summary judgment as to the remaining portions of the statutes.
❓ Main Question: Was the denial of the motion for summary judgment appealable? Generally, the denial of a motion for summary judgment is considered interlocutory (and thus not appealable), but there was one case that the defendant relied on for its argument to the contrary.
➡️ That One Case: In BPS, Inc. v. Parker, 345 Ark. 381, 47 S.W.3d 858 (2001), the Arkansas Supreme Court held that the trial court’s denial of a motion for summary judgment on that particular defendant’s affirmative defense (the Fireman’s Rule) was appealable. In that case, the trial court did not merely deny the motion for summary judgment. Instead, in its 18-page “Joint Findings of Fact and Conclusions of Law,” the trial court in BPS did not simply examine whether there was a genuine issue of material fact. Rather, the trial court went further and held that the Fireman’s Rule did not apply, essentially granting affirmative relief to the plaintiffs on the defendant’s motion for summary judgment. The Arkansas Supreme Court held that this “foreclosed [the defendant] from further asserting a defense under the Fireman’s Rule and from offering evidence at trial on that issue.” Therefore, the Arkansas Supreme Court held that the this portion of the circuit court’s order was “a final disposition and appealable.”
🪶 Opinion: Looking back now at Kenmark Optical, the Arkansas Court of Appeals considered whether the denial of the motion for summary judgment in this case was appealable, and distinguished Parker. The court first held that, unlike in Parker, in this case, there was “nothing in the circuit court’s order that serves as a final disposition regarding the constitutionality of” the relevant statutes. Thus, unlike in Parker, this was not a situation where the denial of the motion for partial summary judgment essentially served as the granting of summary judgment in favor of the plaintiff. The Court of Appeals then held that “the circuit court’s order does not prevent [the defendant’s] presentation of any defense at trial.” Thus, this was not a situation where the denial of the motion for partial summary judgment essentially served as an order striking the affirmative defense (which would make the order appealable under Ark. R. App. P.–Civ. 2(a)(4)). Therefore, the order was not an appealable order, and the Court of Appeals dismissed the appeal without prejudice.
🔎 Further Reading: Although denials of motions for summary judgment are rarely appealable, the Arkansas Supreme Court in Parker relied on two other cases in an order denying a motion for summary judgment was held to be appealable:
- Danco Const. Co. v. City of Ft. Smith, 268 Ark. 1053, 598 S.W.2d 437 (Ark. App. 1980).1
- Young, et al. v. Staude, et al., 280 Ark. 298, 657 S.W.2d 542 (1983).
- It might look strange, but this is how Court of Appeals cases were cited for a few years after the Court of Appeals was established. Rest assured, this is a Court of Appeals case, and this is the correct citation. ↩︎
ArkansasAppeals.com 