Dennis Grady and Jeanette Grady v. Thomas Fortenberry

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

EN BANC

CA04-601

March 9, 2005

DENNIS GRADY AND JEANETTE AN APPEAL FROM PERRY COUNTY

GRADY CIRCUIT COURT

APPELLANTS [NO. E2000-97]

v.

HONORABLE R. COLLINS KILGORE,

THOMAS FORTENBERRY CIRCUIT JUDGE

APPELLEE

DISMISSED

Per Curiam

Appellants appeal from an order of partial summary judgment. We dismiss the appeal for lack of compliance with Ark. R. Civ. P. 54(b) (2004).

The facts in brief are that, on March 2, 1998, appellants sold appellee 352.5 shares of stock in Bunker Hill Corporation for $150,000. On or about May 25, 2000, Regions Bank sued Bunker Hill, appellants, appellee, and others, apparently alleging a default on loans made to Bunker Hill. Numerous cross-claims and third-party pleadings followed, including a cross-claim filed by appellants against appellee. Appellants averred in Count 1 of their cross-claim that appellee still owed them $150,000 for the stock purchase, and they averred in Count 2 that certain language in the stock-sale agreement required appellee to purchase their shares for $50,000, plus removal of them from any liabilities and indebtedness of the corporation.

On October 7, 2002, appellee filed a motion for summary judgment on appellants' cross-claim. In an order entered November 3, 2003, the trial court granted summary judgment as to Count 1 based on appellee's contention that the stock-sale agreement contemplated that the $150,000 would be paid to appellants out of the corporation's profits. The court denied summary judgment on Count 2 of the cross-claim. Approximately three weeks later, on November 24, 2003, the trial court entered the following order:

This Court having on the 19th day of October, 2003 found that [appellants] were to be repaid for selling [appellee] 352.5 shares of stock in Bunker Hill Development Corporation, Inc., from the first $150,000 of profits that would normally be distributed to [appellee] pursuant to Section 2:03 of the Agreement and having granted Summary Judgment to [appellee] as to that issue, now finds that the decision is final as to that issue and that issue is therefore appealable.

IT IS THEREFORE BY THE COURT found and certified that said issue is final and is now appealable by [appellants].

Appellants filed a notice of appeal from the above order on December 11, 2003.

Arkansas Rule of Civil Procedure 54(b)(1) (2004) provides that, when multiple claims are presented in an action, the trial court may direct the entry of final judgment as to one or more but fewer than all of the claims "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." If the court makes such a determination, it must execute a certificate "which shall appear immediately after the court's signature on the judgment, and which shall set forth the factual findings upon which the determination to enter the judgment as final is based." Ark. R. Civ. P. 54(b)(1) (2004). The form for the certificate is set out in Rule 54.

The order entered on November 23, 2003, appears to be an attempt to execute a Rule 54(b) certificate. However, the certificate does not comply with the requirements of the rule. It does not appear "immediately after the court's signature on the judgment," and it contains no specific factual findings as to why there is no just reason to delay appellants' appeal from a partial summary judgment. When a Rule 54(b) certificate does not contain specific factual findings upon which the decision to enter a final judgment is based, it does not conform to the requirements of the rule and is therefore ineffective to certify the appeal. See Stouffer v. Kralicek, 81 Ark. App. 89, 98 S.W.3d 475 (2003). Because the certificate executed in this case does not comply with Rule 54(b), we must dismiss the appeal for lack of a final order.

We also take this opportunity to direct appellants to our addendum requirements contained in Rule 4-2(a)(8) of the Rules of the Arkansas Supreme Court and Court of Appeals, should they re-file their appeal in the future upon entry of a final order. The rule requires that an appellant's addendum include relevant pleadings, documents, or exhibits essential to an understanding of the case and our jurisdiction on appeal. Appellants' addendum, as filed in this appeal, does not comply with the rule because it does not contain the pleading in which they asserted their cross-claim against appellee or the exhibits to their motion for summary judgment.

Appeal dismissed.