Summary
holding that a formal disposition of a named plaintiff's claims is necessary for a final, appealable order
Summary of this case from Eisman v. PornjaroenOpinion
CA 10-1275
Opinion Delivered June 15, 2011
Appeal from the Yell County Circuit Court, Southern District, [No. CV2008-49], Honorable David H. Mccormick, Judge, Dismissed.
Appellants Freddie Wayne Sammons and Patricia Gail Sammons brought an action against Seeco, Inc., for damages they claimed they sustained when Seeco allegedly released water from a holding pond associated with its drilling operations. After a bench trial, the trial court granted a directed verdict in favor of Seeco, holding that the Sammonses had failed to prove their case. The Sammonses appeal, arguing that the trial court erred in finding that they failed in their burden of proof and in granting the dismissal motion. Because the order appealed from does not dismiss all the parties from the action, we lack jurisdiction to hear this appeal at this time.
Though termed a motion for directed verdict by counsel and the circuit court, because the trial was a bench trial, the motion was in actuality a motion to dismiss. See Ark. R. Civ. P. 50(a) (2010). We will refer to the motion as a dismissal motion in this opinion.
Although neither party has raised this issue in their briefs before this court, the question of whether an order is final and subject to appeal is a jurisdictional question that this court will raise on its own motion. See, e.g., Schubert v. Target Stores, Inc., 2009 Ark. 89, 302 S.W.3d 33.
On December 30, 2005, the Sammonses purchased a house and land from Paul and Alice Tygart with title being held in escrow until completion of the contract. On June 16, 2008, the Sammonses filed suit against Seeco, Inc., alleging that Seeco negligently flooded their property causing damage. On March 27, 2009, Seeco moved to join the Tygarts as necessary parties under Rule 19. The motion was granted by the trial court on May 7, 2009, and the Tygarts were joined as plaintiffs. On April 19, 2010, counsel for the Tygarts entered an appearance on their behalf.
A bench trial was held on August 26, 2010. The Sammonses, the Tygarts, and Seeco all appeared at trial and were represented by their respective attorneys. At the close of all the evidence, Seeco moved for a dismissal, which was granted by the court.
On September 7, 2010, the trial court entered an order dismissing the Sammonses' claims against Seeco. The caption for the judgment lists only Freddie Wayne and Patricia Gail Sammons as plaintiffs and is signed only by their counsel, the counsel for Seeco, and the trial judge. The judgment fails to mention the Tygarts and is not signed by their counsel. Moreover, while the caption on the Sammonses' notice of appeal does include the Tygarts, it does not reflect service on their counsel.
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 the circuit court. Rule 54(b) of the Arkansas Rules of Civil Procedure 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. See also S. Farm Bureau Cas. Ins. Co. v. Easter, 369 Ark. 101, 251 S.W.3d 251 (2007). Under Rule 54(b), the circuit judge may direct the entry of a final judgment as to one or more but fewer than all the claims or parties by making an express determination, supported by specific factual findings, that there is no just reason for delaying an appeal. See Kowalski v. Rose Drugs of Dardanelle, Inc., 2009 Ark. 524, ___ S.W.3d ___. Without this required certification, an order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not terminate the action as to any of the claims or parties. See Ark. R. Civ. P. 54(b)(2).
As shown above, the record in this case fails to reflect that the Tygarts' interest in the litigation has been formally resolved by the trial court. Absent certification under Rule 54(b), any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties will not terminate the action. See Jackson v. Delis, 76 Ark. App. 436, 67 S.W.3d 596 (2002). No such certification was made in this case. Because appellants are appealing from an order that is not final and there is no Rule 54(b) certification, their appeal is dismissed without prejudice. Appeal dismissed without prejudice.
HART and GLADWIN, JJ., agree.