John B. Thurman v. Marie Baker, Attorney in Fact

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

JOHN B. THURMAN

APPELLANT

V.

MARIE BAKER, ATTORNEY IN FACT

APPELLEE

CA00-328

December 6, 2000

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

THIRD DIVISION

[NO. CV 95-6303]

HON. JOHN C. WARD,

CIRCUIT JUDGE

APPEAL DISMISSED

The appellant in this case, an attorney, received gifts from and executed a promissory note to an elderly woman. Appellee, acting under a power of attorney obtained from the elderly woman a few years after the note was executed, brought suit to enforce the promissory note and seeking to recover damages for negligence, malpractice, and fraud. Appellant asserted that the elderly woman was undergoing inpatient psychiatric treatment when appellee procured the power of attorney from her, that she lacked capacity to execute the power of attorney, and that appellee therefore lacked standing. The case was transferred to probate court, which found that the elderly woman was in fact incompetent and appointed appellee

as guardian. She then amended her complaint to substitute herself in her capacityas guardian as the real party in interest. Appellant moved to dismiss on the grounds that the substitution of parties constituted a new action, and the statute of limitations had run. The trial court denied the motion and granted appellee judgment on the promissory note. This appeal followed.

We must dismiss this case for lack of a final appealable order. The trial court disposed of the negligence count by an order of dismissal entered May 4, 1999. The order appealed from, entered on January 19, 2000, disposed of the count relating to the promissory note by entering judgment in favor of appellee. However, neither order disposed of or mentioned the fraud count which, from the record before us, appears to be still outstanding. Furthermore, the order appealed from contains no express determination, supported by specific factual findings, that there is no just reason for delay or express direction for the entry of judgment as to fewer than all the claims.

Rule 54(b) of the Arkansas Rules of Civil Procedure addresses the finality of judgments upon multiple claims or involving multiple parties, and provides that:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rightsand liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Compliance with subsection (b) is a jurisdictional requirement that the appellate court is required to raise even though the parties do not. Tackett v. Robbs, 293 Ark. 171, 735 S.W.2d 700 (1987). The supreme court has reiterated that strict compliance with Rule 54(b) is necessary before an order is appealable, and specifically held that the absence of "an express determination that there is no just reason for delay" prevents the appellate court from hearing the appeal. St. Paul Fire & Marine Insurance Co. v. First Commercial Bank., 304 Ark. 298, 801 S.W.2d 652 (1991).

Appeal dismissed.

Hart and Meads, JJ., agree.