Richard Henley and Amanda Henley v. Leon Britton and Ruth Britton

DIVISION III

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

CA01-308

February 6, 2002

RICHARD HENLEY and

AMANDA HENLEY AN APPEAL FROM FAULKNER COUNTY

APPELLANTS CHANCERY COURT

NO. E-2000-657

V.

HONORABLE CHARLES E. CLAWSON,

LEON BRITTON and RUTH CHANCELLOR

BRITTON

APPELLEES DISMISSED

Richard Henley and Amanda Henley have appealed from an order of the Faulkner County Chancery Court granting rescission of a real estate contract to appellees Leon Britton and Ruth Britton. The Brittons purchased a new house from Richard Henley in October 1996. Soon after the purchase, the Brittons discovered numerous problems with the house, the most serious of which were the lack of water drainage around it and a malfunctioning septic system. Although Mr. Henley fixed some of the problems, he did not correct the standing water problem or the malfunctioning septic system. The Brittons filed this action in January 1999 against Mr. Henley in circuit court, seeking damages. They filed an amended complaint requesting rescission of the contract and adding their next-door neighbors, Robert Jones and Debra Jones, as defendants, alleging that the Joneses' construction of their house had increased the drainage problems. The Joneses did not filean answer. The case was later transferred to chancery court. Mrs. Henley, as an intervenor, and Mr. Henley filed a counterclaim for foreclosure against the Brittons.

After trial, the chancellor found that the water and sewer problems had made the house uninhabitable, causing a substantial failure of consideration. He entered an order denying appellants' petition for foreclosure and granting appellees' request for rescission. He ordered the Brittons to relinquish all of their interest in the property to Mr. Henley within forty-five days and canceled their promissory note to him. The chancellor gave appellees judgment against Mr. Henley for $10,862.29 for their expenditures for a new septic system ($4,218), a survey ($650), their down payment ($5,000), and their payments on the second mortgage ($994.29). The chancellor expressly declined to award the Brittons damages against Mr. Jones. Appellants filed a motion for new trial on the basis of newly discovered evidence, which the chancellor denied.

Appellants contend on appeal that the chancellor erred in granting rescission to the Brittons; in denying appellants' petition for foreclosure; in failing to grant judgment against the Joneses; and in denying the motion for new trial. We cannot, however, decide these issues because the order granting rescission to appellees is not final and appealable.

A chancellor's order must be final to be appealable. Ark. R. App. P. 2(a)(1). The requirement is jurisdictional. Even if the parties to an appeal do not address this issue, it is this court's duty to determine whether its jurisdiction is proper. Chambers v. Manning, 315 Ark. 369, 868 S.W.2d 64 (1993). For an order to be final, it must dismiss the parties from the trial court, discharge them from the action, or conclude their rights to the subject matter in controversy; an order must be of such a nature as to not only decide the rights of theparties, but also to put the court's directive into execution, ending the litigation or a separable part of it. Reed v. Arkansas State Highway Comm'n, 341 Ark. 470, 17 S.W.3d 488 (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, whether presented as claims, counterclaims, cross-claims, or third-party claims. Maroney v. City of Malvern, 317 Ark. 177, 876 S.W.2d 585 (1994); Ark. R. Civ. P. 54(b). Although Rule 54(b) provides that the trial court may direct final judgment with regard to fewer than all of the claims or parties by an express determination, supported by specific factual findings, that there is no just reason for delay, the chancellor did not make such a determination here.

The Brittons named Robert Jones and Debra Jones as defendants. The decree, however, did not address their claim against Debra. When the body of an order does not refer to a defendant, the order is not final for purposes of appeal in the absence of a Rule 54(b) certification. Shackleford v. Arkansas Power & Light Co., 334 Ark. 634, 976 S.W.2d 950 (1998).

Furthermore, Amanda Henley filed a foreclosure complaint in intervention against the Brittons based on her interest in a note and mortgage. The defendant Richard Henley joined in that complaint. The decree specifically canceled Mr. Henley's interest in the note and denied "the Defendant's" foreclosure complaint but did not mention Amanda's interest. Generally, for an order to be final for purposes of appeal, the claims of an intervenor must not be left unadjudicated. Maroney v. City of Malvern, supra. "An order is not appealable when it fails to mention an intervenor's claim and contains no recitation of facts which would allow a piecemeal appeal under Ark. R. Civ. P. 54(b)." Richardson v. Rodgers, 329Ark. 402, 404, 947 S.W.2d 778, 779 (1997). Accord Kinkead v. Spillers, 327 Ark. 552, 940 S.W.2d 437 (1997); Martin v. National Bank of Commerce, 316 Ark. 83, 870 S.W.2d 738 (1994); South County, Inc. v. First W. Loan Co., 311 Ark. 501, 845 S.W.2d 3 (1993).

Therefore, we lack jurisdiction to consider the order from which this appeal has been taken and must dismiss the appeal without prejudice.

Dismissed.

Pittman and Bird, JJ., agree.