Glenn Misenheimer v. Bill Jason et al.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

EN BANC

CA04-562

June 29, 2005

GLENN MISENHEIMER AN APPEAL FROM STONE COUNTY

APPELLANT CIRCUIT COURT

[NO. CIV02-37-4]

v.

HONORABLE TIMOTHY WEAVER,

BILL JASON, et al. CIRCUIT JUDGE

APPELLEES

APPEAL DISMISSED

Per Curiam

Appellant Glenn Misenheimer appeals from a summary judgment granted to appellees Bill Jason, Mark Rodenberry, and Stone County, Arkansas. Because the record before us does not reflect that all of the claims against all of the parties in this case have been adjudicated or otherwise resolved, we dismiss the appeal.

Appellant filed suit against Stone County Sheriff Bill Jason, Stone County Deputy Mark Rodenberry, Stone County itself, and three private individuals - Barry Pitts, Theresa Pitts, and James McIntire. The complaint alleged that Barry and Theresa Pitts (collectively Pitts) and James McIntire had trespassed on Misenheimer's land, killed some of his livestock, including over eighty hogs, and thereafter barbequed some of the meat. It also alleged that Sheriff Jason and Deputy Rodenberry failed to take appropriate action to prevent the crimes despite having been notified that Pitts and McIntire were responsible. Misenheimer asserted causes of action against Pitts and McIntire for trespass, conversion, and assault (based on an allegation that Barry Pitts had brandished a gun in Misenheimer's presence) and against Sheriff Jason and Deputy Rodenberry for outrage and nonfeasance of a public officer.

On March 14, 2003, Sheriff Jason and Deputy Rodenberry filed a motion for summary judgment on the claims against them and Stone County. The motion was granted, and Misenheimer now appeals from that order. However, the claims against Pitts and McIntire remain pending; nothing in the record indicates that those claims have been tried, settled, dismissed, or otherwise resolved.

When more than one claim for relief is presented in an action or when multiple parties are involved, the trial court may direct the entry of 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." Ark. R. Civ. P. 54(b)(1) (2005). If the trial court makes such a determination, it must execute a Rule 54(b) certificate, which shall set forth the factual findings upon which the determination to enter final judgment is based. See id.; see also Stouffer v. Kralicek Realty Co., 81 Ark. App. 89, 98 S.W.3d 475 (2003). The failure to comply with Rule 54(b) is jurisdictional. Hambay v. Williams, 335 Ark. 352, 980 S.W.2d 263 (1998). It is therefore an issue that we are obliged to raise on our own, even if the parties do not. See id.

In the case at bar, appellant filed suit against six defendants, but only three of those defendants have been dismissed by way of summary judgment; as a result, the summary-judgment order appealed from is not a final order. See Chapman v. Wal-Mart Stores, Inc., 351 Ark. 1, 89 S.W.3d 906 (2002); Barr v. Richardson, 314 Ark. 294, 862 S.W.2d 253 (1993) (holding that an order granting summary judgment to some but less than all defendants is not a final, appealable order). Further, no Rule 54(b) certificate has been executed that would permit an appeal at this point in the proceedings. See Ark. R. Civ. P 54(b)(1) (2005). We therefore dismiss this appeal without prejudice to re-file upon entry of a final order that complies with Rule 54(b).

Dismissed.