The opinion
Cite as 2025 Ark. App. 474
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-24-541
ELIZABETH AND RAY EVANS Opinion Delivered October 8, 2025
APPEAL FROM THE BENTON
V.
COUNTY CIRCUIT COURT
[NO. 04CV-24-645]
O.A.K. CONSTRUCTION, INC.; AND
HONORABLE DOUG SCHRANTZ,
OLIVER KIESEL
JUDGE
APPELLEES DISMISSED WITHOUT PREJUDICE
WENDY SCHOLTENS WOOD, Judge
Elizabeth and Ray Evans (the Evanses) filed an interlocutory appeal from an order of
the Benton County Circuit Court denying their motion to partially dismiss O.A.K.
Construction, Inc.’s (O.A.K.’s), counterclaims against them for breach of contract. On
appeal, the Evanses argue that the circuit court erred in finding that the underlying home-
construction contract was in compliance with Arkansas Code Annotated section 18-44-
115(a)(7) (Supp. 2023) and, as a result, in refusing to bar and dismiss O.A.K.’s counterclaim.
We dismiss for lack of a final, appealable order.
The Evanses own the property located at 79 Rivercliff Road in Rogers. They entered
into two contracts with O.A.K. for construction at the property—the June 22, 2021 home-
construction contract (“Home Contract”) and the April 20, 2022 pool-cabana-construction
contract (“Cabana Contract”). On March 1, 2024, the Evanses filed a complaint against
O.A.K., Oliver Kiesel, and John Doe defendants alleging numerous causes of action. These
included breach of contract against O.A.K., negligence against all defendants, breach of
implied warranty of sound workmanship and sound construction against O.A.K. and Kiesel,
and fraud against O.A.K. and Kiesel. The contracts at issue were attached to the complaint
as exhibits. O.A.K. filed an answer on May 1 and a counterclaim on June 12 alleging breach
of contract and unjust enrichment related to the same construction contracts.
On June 27, the Evanses moved to “partially dismiss counterclaims” pursuant to
Arkansas Rule of Civil Procedure 12(b)(6), alleging that O.A.K. had failed to “plead sufficient
facts upon which relief could be granted related to providing the required Important Notice
to Owner prior to the Construction of the Evans home.” The Evanses alleged that O.A.K.
(as a contractor under Arkansas Code Annotated section 17-25-502(2) (Supp. 2023)) failed
to plead that it provided the “Important Notice to Owner” before it commenced
construction. The Evanses further contended that the Home Contract did not contain the
statutory notice required by Arkansas Code Annotated section 18-44-115(a)(7), which
provides as follows:
(7) The notice set forth in this subsection may be incorporated into the contract
or affixed to the contract and shall be conspicuous, set out in boldface type, worded
exactly as stated in all capital letters, and shall read as follows . . . .
Ark. Code Ann. § 18-44-115(a)(7) (Supp. 2023).1
1
The version of the statute in effect when the Home Contract was entered into
provided the following in part:
(a)(4) If a residential contractor fails to give the notice required under this
subsection, then the residential contractor is barred from bringing an action either at
2
Specifically, the Evanses argued that because the notice provided by O.A.K. was not
in “boldface,” it did not strictly comply with the statutory language; therefore, pursuant to
section 18-44-115(a)(4), O.A.K. was barred from bringing an action at law or in equity to
recover under the Home Contract. O.A.K. responded to the motion to dismiss, arguing that
the required notice provided in the Home Contract was in “boldface.”
In a July 18 letter opinion, the circuit court denied the Evanses’ motion to partially
dismiss O.A.K’s counterclaims:
[The Evanses] filed a motion to dismiss the counterclaim of [O.A.K.] alleging
failure to comply with A.C.A. § 18-44-115(a)(7) because this important language
notice in the contract between the parties was not set out in boldface type. [O.A.K.]
has responded. The [Evanses have] replied.
The fact is the contract between these parties contained the “Important Notice
to Owner” as set forth and required by A.C.A. § 18-44-115(a)(7) word for word in all
capital letters. The notice had signature blocks below the notice and was in fact signed
by the [Evanses]. [The Evanses] now complain that the “Important Notice” was not
in boldface type.
The parties both acknowledge that this statute requires strict compliance
because it is in derogation of the common law as memorialized in Books-A-Million, Inc.
v. Arkansas Painting and Specialties Co., 340 Ark. 467 (2000).
Clearly this contract makes the “Important Notice” conspicuous as it is in all
capital letters (as required) and it is signed by both parties acknowledging receipt of
law or in equity, including without limitation quantum meruit, to enforce any
provision of a residential contract.
Ark. Code Ann. § 18-44-115(a)(4) (Supp. 2017). It was amended in 2021 to bar a lien from
being obtained only for failure to provide the required notice. This amendment went into
effect after the parties entered into the Home Contract but before they signed the Cabana
Contract. Thus, the Evanses motion to dismiss as to the statutory notice addressed only the
Home Contract.
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the notice. The type used, capital letters, is certainly thicker than lower case letters.
The notice is certainly conspicuous in its placement within the contract. [The
Evanses] clearly had actual notice of this language as indicated by their signatures
directly below the “Important Notice.” The Court finds this complies with the statute
and accordingly the motion is denied.
In a July 29 letter to the court, counsel for the Evanses requested that the circuit court
incorporate the language of the letter opinion into the written order or restate its findings
and conclusions. However, the circuit court entered a written order on July 31 stating,
“Upon examination of the record,” the motion to partially dismiss O.A.K.’s counterclaims
is denied. The order did not incorporate the letter ruling or otherwise contain findings and
conclusions. This appeal followed.
Whether an order is final and appealable is a jurisdictional question, and we are
obligated to consider the issue on our own even if the parties do not raise it. Panhandle Oil
& Gas, Inc. v. BHP Billiton Petroleum (Fayetteville) LLC, 2016 Ark. App. 376, at 5, 499 S.W.3d
667, 670. This case involves the denial of a motion to partially dismiss pursuant to Rule
12(b)(6). Ordinarily an appeal may not be taken from an order denying a motion to dismiss.
Univ. of Ark. for Med. Scis. v. Adams, 354 Ark. 21, at 23, 117 S.W.3d 588, 590 (2003).2
The Evanses filed a notice of appeal on August 16 appealing the July 31 order and
the July 18 letter opinion. They acknowledge that this is an interlocutory appeal but claim it
2
Our appellate rules allow for an interlocutory appeal of an order denying a motion
to dismiss based on the defense of sovereign immunity. Ark. R. App. P.–Civ. 2(a)(10) (2025).
The rationale justifying an interlocutory appeal is that the right to immunity from suit is
effectively lost if the case is permitted to go to trial. State of Ark. v. Goss, 344 Ark. 523, 42
S.W.3d 440 (2001).
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is appropriate because it “had the effect of determining and striking out the [Evanses’]
complete statutory defense to certain of [O.A.K.’s] Counterclaims in accordance with
Arkansas Civil Rule of Appellate Procedure 2(a)(4).” Rule 2(a)(4) provides that an appeal
may be taken from “[a]n order which strikes out an answer, or any part of an answer, or any
pleading in an action[.]” Ark. R. App. P.–Civ. 2(a)(4). In their jurisdictional statement, the
Evanses cite BPS, Inc. v. Parker, 345 Ark. 381, 47 S.W.3d 858 (2001), in support of the claim
that their interlocutory appeal is appropriate. Parker, however, does not support the Evanses’
claim.
In Parker, the supreme court permitted the appellant to bring an appeal from a denial
of a motion for summary judgment after the circuit court engaged in improper fact-finding
that effectively ruled on the appellant’s defense and prevented the appellant from presenting
its defense to the jury. Unlike Parker, the circuit court in the instant case did not engage in
improper fact-finding. Although the circuit court explained its reasoning for the denial of
the motion to partially dismiss O.A.K.’s counterclaims in its letter opinion, that reasoning
is absent from the circuit court’s order.3
3
The decisions, opinions, and findings of a court—including those expressed in a letter
opinion—do not constitute a judgment or decree; they merely form the bases upon which
the judgment or decree is subsequently to be rendered and are not conclusive unless
incorporated into a judgment. Wilkinson v. Smith, 2012 Ark. App. 604, at 3. To give effect to
an unincorporated letter opinion would violate the requirement that a judgment or decree
must be set out in a separate document in order to be effective. Ark. R. Civ. P. 58. Rather,
the order simply denied the Rule 12(b)(6) motion without any specific findings or
conclusions.
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This case is more factually analogous to Kenmark Optical, Inc. v. Ford, 2023 Ark. App.
431. Kenmark appealed the denial of a partial motion for summary judgment, contending
that it was appealable under Arkansas Rule of Appellate Procedure–Civil 2(a)(4) because the
denial effectively ruled on its affirmative defense, preventing presentation of a defense at
trial. Kenmark relied on Parker, supra, to establish appellate jurisdiction. In dismissing the
appeal for lack of a final, appealable order, we distinguished Parker, concluding that the order
(1) did not serve as a final disposition regarding the constitutionality of the statute, which
was raised as a defense, and (2) did not prevent Kenmark’s presentation of any defense at
trial. We stated that for this court to have jurisdiction under Rule 2(a)(4), the appeal must
be from “[a]n order which strikes out an answer, or any part of an answer, or any pleading
in an action. . . .” Kenmark, 2023 Ark. App. 431, at 6.
In this case, the circuit court did not engage in any improper fact-finding as was the
case in Parker. As in Kenmark, the order in this case did not strike a pleading. Instead it was
a general denial of a motion to dismiss pursuant to Arkansas Rule of Civil Procedure
12(b)(6). Finally, the order in this case did not contain a certification pursuant to Arkansas
Rule of Civil Procedure 54(b), which could have provided jurisdiction under Arkansas Rule
of Appellate Procedure–Civil 2(a)(11). For the foregoing reasons, we must dismiss this appeal
for lack of jurisdiction.
Dismissed without prejudice.
KLAPPENBACH, C.J., and VIRDEN, J., agree.
Miller, Butler, Schneider, Pawlik & Rozzell, PLLC, by: George M. Rozzell IV, for appellants.
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Kutak Rock LLP, by: J.R. Carroll, Peyton Watts, and Kayla M. Sherrill, for appellees.
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