Jenkins Family Limited Partnership et al. v. City of Fort Smith

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

EN BANC

CA04-846

March 23, 2005

JENKINS FAMILY LIMITED

PARTNERSHIP, et al. AN APPEAL FROM CRAWFORD COUNTY

APPELLANTS CIRCUIT COURT

v. [NO. CIV02-281, -283, and - 284]

HONORABLE GARY RAY COTTRELL,

CITY OF FORT SMITH CIRCUIT JUDGE

APPELLEE

DISMISSED

Per Curiam

This is a consolidation of three appeals, all of them involving an eminent domain taking by the City of Fort Smith (hereafter "the City"). We dismiss the consolidated appeals for lack of final orders.

The facts, as necessary to explain our dismissal, are as follows. In June 2002, the City filed three condemnation complaints against three separate sets of landowners. The complaint against the Jenkins landowners sought to condemn 3.21 acres and proposed to deposit $8,025 as just compensation. The complaint against the Kerivan landowners sought to subject approximately 9.95 acres of land to a permanent watershed-protection easement, for which just compensation of $13,861 was proposed. Finally, the complaint against the Elsken landowners sought to subject about 32.151 acres of land to the same easement for compensation of $28,445. The complaints averred that condemnation was required in conjunction with the construction, operation, protection, and maintenance of the Lake Fort Smith Expansion Project, which is a public water-supply system.

All of the landowners filed counterclaims, asserting that the Lake Fort Smith Expansion Project and the City's condemnations in conjunction therewith were illegal in various respects. They claimed that the project constituted an illegal exaction, violated the Arkansas Constitution and the Arkansas Civil Rights Act, and was generally illegal because, among other things: the land to be condemned was located a certain distance outside the City's corporate limits; the taking was contrary to rules promulgated by the Arkansas Board of Health pertaining to public water systems; the taking usurped the Board of Health's power to regulate public water systems; and the ordinance upon which the City based its authority for the taking was void for vagueness. The landowners filed motions for summary judgment on their counterclaims, which were denied by the trial court. Thereafter, upon the City's motion, the court dismissed the counterclaims.

The landowners have filed three separate appeals from the dismissal of their counterclaims, all of which we have consolidated under our docket No. CA04-846. However, the orders appealed from only disposed of the landowners' counterclaims concerning the legality of the taking. The trial court has yet to rule on the necessity of the taking or on the issue of just compensation; thus, those claims remain pending below. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, the court may direct 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." Ark. R. Civ. P. 54(b)(1) (2004). In the event that a trial court makes the findings contemplated by the rule, it shall execute a Rule 54(b) certificate, which shall appear immediately after the court's signature on the judgment and which shall set for the factual findings upon which the determination to enter judgment as final is based. Id. In the absence of such a certificate, any order that adjudicates fewer than all of the claims shall not terminate the action. Ark. R. Civ. P. 54(b)(2).

The orders appealed from in these consolidated cases disposed of fewer than all of the claims presented in the actions; further, no Rule 54(b) certificate was executed allowing for an immediate appeal from the dismissal of the counterclaims. Therefore, the orders appealed from have not terminated the actions below and are not final, appealable orders. Because the existence of a final, appealable order is necessary to the exercise of our jurisdiction, we must dismiss the appeals in the present case. See City of Corning v. Cochran, 350 Ark. 12, 84 S.W.3d 439 (2002).

Appeals dismissed.