French v. Brooks Sports Center, Inc.

 
Edward FRENCH and Sarah L. French v. BROOKS
SPORTS CENTER, INC. and Mike Brooks,
Individually 

CA 96-601                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
                 Opinion delivered April 2, 1997


1.   Appeal & error -- appeal may be made only from final orders of
     trial court -- appellate court may raise issue on its own. --
     Arkansas Rule of Appellate Procedure 2(a) permits appeals only
     from final orders of a trial court; an order must be final for
     the appellate court to have jurisdiction; thus, the appellate
     court may consider this issue even thought the parties do not
     raise it; there is a statutory policy against piecemeal
     appeals. 

2.   Appeal & error -- appealable order must adjudicate all claims
     -- limited exception when expressly directed by trial court. -
     - Pursuant to ARCP Rule 54(b), an order in which fewer than
     all claims are adjudicated is not an appealable order unless
     the trial court expressly directs the entry of a final
     judgment to the claims disposed of and expressly determines
     that there is no just reason for delay.

3.   Appeal & error -- trial court did not give directive that
     final judgment be entered only as to partial summary judgment
     -- appeal dismissed. -- Where the trial court did not give a
     directive that a final judgment be entered only as to the
     partial summary judgment rendered in favor of appellees, there
     was no compliance with ARCP Rule 54(b); neither did the appeal
     comply with neither Ark. R. App. P. 2(a); therefore, the
     appeal was dismissed.

     Appeal from Craighead Circuit Court; John N. Fogleman, Judge;
appeal dismissed.
     Bradley & Coleman, by:  Robert J. Gibson, for appellant.
     Lyons, Emerson & Cone, by:  Jim Lyons, for appellee.

     Wendell L. Griffen, Judge.
     In April 1973, Appellants Edward and Sarah French entered into
an agreement leasing a commercial building to Mike Brooks,
individually, and as President of Brooks Sports Center, Inc., for
a term of ten (10) years with monthly rent of $2,450.00.  There
were subsequent amendments to the original lease, extending the
term to expire on April 1, 1993.  The original lease contained a
clause providing that:
should the tenant fail to pay the rent as herein provided
and should said rent remain unpaid for a period of thirty
(30) days, the landlord or his agent may declare the
lease terminated and re-enter and repossess the demised
premises either with or without process of law and expel
the tenant or those claiming under the tenant.

Appellees occupied and paid rent on the premises until November 30,
1992, thereafter abandoning the building without giving notice to
appellants.
     On January 6, 1993, counsel for appellants sent a letter to
appellees advising them that they were in default of the lease
agreement, and that under the terms of the lease, appellants were
"exercising their option to declare the lease terminated" and
intended to reenter and repossess the building to mitigate their
damages.  The letter stated that appellees would be held
responsible for subsequently accruing rent until a new tenant began
paying rent, or until the lease expired, whichever occurred first.
     Appellants found a new tenant to lease the building, beginning
April 1, 1993.  Appellants filed suit against appellees for unpaid
rent in the amount of $9,800.00, damage to the property of $800.00,
and conversion of property resulting in $1,413.00 in damages. 
Appellees filed an answer and a motion for partial summary
judgment, requesting that appellants' claim for rent past January
6, 1993, (the date of the letter terminating the lease) be
dismissed.  The trial court ruled in favor of appellees without a
hearing.  Appellants then took a voluntary nonsuit of the property
damage and conversion claims and moved for summary judgment for
rents due prior to January 6, 1993.  Appellants filed a notice of
appeal of the partial summary judgment granted in favor of
appellees.  We hold that this appeal lacks finality, and dismiss
the appeal.  
     We raise sua sponte the issue of whether this appeal is from
a final judgment.  Arkansas Rule of Appellate Procedure 2(a)
permits appeals only from final orders of a trial court.  An order
must be final for the appellate court to have jurisdiction; thus,
we may consider this issue even though the parties do not raise it. 
Haile v. Arkansas Power & Light Co., 322 Ark. 29, 907 S.W.2d 122
(1995) (citing Wilburn v. Keenan Cos., 297 Ark. 74, 759 S.W.2d 554
(1988); Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984)). 
Haile cites Ratzlaff v. Franz Foods, 255 Ark. 373, 500 S.W.2d 379
(1973), a case with similar facts to the present appeal.  In
Ratzlaff, the plaintiffs brought three claims for relief against
the defendants.  After the trial court granted a partial summary
judgment in favor of the defendants, the plaintiffs took a
voluntary nonsuit on the remaining two counts in their complaint. 
Id.  The supreme court held that the judgment was not an appealable
order, and refused to violate the statutory policy against
piecemeal appeals of Arkansas Rule of Appellate Procedure 2(a)
(formerly Ark. Stat. Ann.  27-2101), which requires that parties
may appeal only from final appealable orders.  Id.
     We also addressed this issue in Community Dialysis Ctrs., Inc.
v. Mehta, 32 Ark. App. 121, 797 S.W.2d 480 (1990), holding that an
appeal under similar facts was violative of Arkansas Rule of Civil
Procedure 54(b).  In that case we held: 
Pursuant to Rule 54(b), an order in which fewer than all
claims are adjudicated is not an appealable order unless
the trial court expressly directs the entry of a final
judgment to the claims disposed of and expressly
determines that there is no just reason for delay.

Id. at 122, 797 S.W.2d  at 481.  The trial court did not give a
directive that a final judgment be entered only as to the partial
summary judgment rendered in favor of appellees.  Parties desiring
to appeal from an interlocutory order must comply with Ark. R. Civ.
P. 54(b).
     The appeal presented has complied with neither Ark. R. App. P.
2(a) nor Ark. R. Civ. P. 54(b); therefore it is dismissed.
     Appeal dismissed.
     Robbins, C.J., and Roaf, J., agree.