Virginia Maxine Lantrip v. Jane Merle Keahey

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION III

VIRGINIA MAXINE LANTRIP

APPELLANT

V.

JANE MERLE KEAHEY

APPELLEE

CA01-150

September 26, 2001

APPEAL FROM THE MILLER COUNTY CHANCERY COURT

E-99-467-3

HON. JAMES HOUSTON GUNTER, JR., JUDGE

APPEAL DISMISSED

This is an appeal from an order granting the appellee/third-party defendant's motion to dismiss on the basis of res judicata, claim preclusion, and issue preclusion. Appellant/third-party plaintiff contends that the trial court erred in granting the motion to dismiss. We dismiss the appeal because the order from which it is taken does not adjudicate all of the claims or the rights and liabilities of the parties and is, therefore, not a final appealable order.

On October 4, 1999, John Allen Cross and Glenda Jo Cross (the Crosses) filed a complaint against Virginia Maxine Lantrip, individually and as the administratrix of the estate of John Lantrip, deceased. The complaint alleged that the Lantrips conveyed, by warranty deed, a one-fourth interest in certain property located in Miller County, Arkansas, to the Crosses on December 14, 1999. The Lantrips reserved one-fourth of the mineral rights. John Lantrip claimed to have title to the property as the only child and sole heir of his father, Earl Lantrip, who died intestate.

The Crosses' complaint further alleged that on June 26, 1998, James and Brenda Cross and David and Agnes Cross filed a complaint (No. E-99-323-3) against the Crosses, alleging that theypurchased a one-eighth interest in the same property the Crosses purchased from the Lantrips. James and Brenda Cross and David and Agnes Cross claimed to have purchased their one-eighth interest from Jane Merle Keahey, who executed a warranty deed conveying the property on January 7, 1998. Keahey also claimed to be the child and heir at law of Earl Lantrip.

For relief in the present case, the Crosses sought to compel Virginia Lantrip to intervene in case No. E-99-323-3 and to be required to defend their one-fourth interest in the property at issue. Virginia Lantrip filed an answer, and later she filed a third-party complaint against Jane Merle Keahey on November 15, 1999. She alleged that Keahey was the natural born child of Mabel Lantrip, who was born prior to Mabel's marriage to Earl Lantrip and had no blood relationship to Earl. Thus, Keahey was the half-sister of John Lantrip and sister-in law of Virginia Lantrip. Lantrip alleged that any interest claimed by Keahey in the property at issue is based on the improper claim that she is the natural born child of Earl Lantrip. Based on Keahey's wrongful conveyance, Lantrip claimed to have been damaged in that she was forced to defend the lawsuit filed by the Crosses and that her reserved interest in the mineral rights had been depleted. Additionally, Lantrip claimed that Keahey tortiously interfered with her contract with the Crosses.

On April 4, 2000, Keahey filed a motion to dismiss Lantrip's third-party complaint on the grounds that it failed to state facts upon which relief could be granted, that the claim was barred by res judicata, and that she was incompetent and without a guardian and thus could not be sued. In support of the motion, Keahey attached as exhibits, a motion for judgment on the pleadings and brief in support from case No. P-98-243-3, styled "Virginia Lantrip, administratrix of the estate of John Lantrip, deceased, vs. Jane Merle Keahey," a reply brief, and an order of dismissal. The motion for judgment on the pleadings in case No. P-98-243-3 had been granted by way of an order of dismissal entered September 7, 1999. The order of dismissal stated that the pleadings did not set forth ajusticiable controversy between the parties and that Lantrip had no standing to raise the issue of heirship between herself as the administratrix of the estate of John Lantrip, deceased, and Keahey. Lantrip filed a response to the motion to dismiss, denying the allegations of the motion.

The trial judge granted Keahey's motion, dismissing the third-party complaint with prejudice, on the grounds that the claim was barred by res judicata, claim preclusion, and issue preclusion. The order of dismissal was filed October 4, 2000, and Lantrip's notice of appeal was timely filed November 3, 2000.

An order is not final when it adjudicates fewer than all of the claims or the rights and liabilities of fewer than all of the parties. Ark. R. Civ. P. 54(b); see also Norman v. Norman, 342 Ark. 493, 30 S.W.3d 83 (2000). Even though an issue on which a court renders a decision might be an important one, an appeal will be premature if the decision does not, from a practical standpoint, conclude the merits of the case. Norman v. Norman, supra. Rule 54(b) does provide a way to obtain a final order on fewer than all of the claims or all of the parties, but appellant did not comply with its provisions. Where a party seeks to obtain such a final order, Rule 54(b) requires the party to move the trial court for an express determination, supported by specific factual findings, that there was no just reason for delay, and for express direction for entry of judgment on the matter to be appealed. Warren v. Kelso, 339 Ark. 70, 3 S.W.3d 302 (1999). When the trial court makes such an express determination, it is required execute a certificate as set forth in Rule 54(b).

Appellant, citing Davis v. General Motors Corp., 257 Ark. 983, 521 S.W.2d 214 (1975) and Rule 2(a)(2) of the Arkansas Rules of Appellate Procedure - Civil, suggests that this appeal is properly before the court. In Davis, the appellant appealed the trial court's dismissal of his third-party complaint. The supreme court held that the order of dismissal was appealable stating "Inasmuch as that order affects a substantial right and strikes a pleading, it is [an] appealable orderwithin the terms of the statute. Ark. Stat. Ann. § 27-2101." Id. at 983, 521 S.W.2d at 215. Appellant's reliance on Davis is misplaced because it was decided prior to the effective date (July 1, 1979) of the Arkansas Rules of Civil Procedure. See Publisher's Notes to Ark. R. Civ. P. 1.

Dismissal of the appeal in this case is consistent with the more recent case of United Parcel Serv., Inc. v. Prigden Sec., Inc., 292 Ark. 11, 727 S.W.2d 381 (1987). In UPS, Wanda Beard, an employee of Prigden Security, sued UPS for negligence as a result of injuries she received while working at UPS as a security guard. UPS filed a third-party complaint against Prigden based on an indemnity agreement, which provided that Prigden would be liable unless UPS was solely negligent. Prigden moved for summary judgment alleging that any liability incurred by UPS resulted from its sole negligence. The trial court granted the motion and dismissed Prigden from the action. UPS appealed from the order. At some point later, UPS settled with Beard, and an order was entered dismissing Beard's complaint with prejudice. The supreme court, in dismissing the appeal, concluded that "Rule 54(b) requires the order to state that it is a final order and there is no just reason for delay. The order granting summary judgment did not meet these requirements." Id. at 12, 727 S.W.2d at 382 (internal citations omitted).

Because the order of dismissal appealed from in the present case does not meet the requirements of Rule 54, we must dismiss the appeal.

Appeal dismissed without prejudice.

Robbins and Bird, JJ., agree.