Sherman Waterproofing, Inc. and William H. Sherman v. Darragh Company

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION II

SHERMAN WATERPROOFING,

INC. and WILLIAM H. SHERMAN

APPELLANTS

V.

DARRAGH COMPANY

APPELLEE

CA 01-883

February 20, 2002

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT

[CV 2000-6923]

HONORABLE JOHN C. WARD,

CIRCUIT JUDGE

DISMISSED

The trial court granted partial summary judgment in favor of appellee, Darragh Company, with respect to a promissory note executed by appellants, Sherman Waterproofing, Inc. and William Sherman. The judgment appealed from is not a final and appealable order. Consequently, we dismiss the appeal.

Appellee filed its complaint against appellants on August 7, 2000. In it, appellee sought to recover approximately $30,447 that it claimed appellants owed pursuant to a promissory note and $6,523 that it claimed separate appellant, Sherman Waterproofing, Inc., owed pursuant to a cash account. Appellee subsequently filed a motion for summary judgment with respect to both the promissory note and the cash account. Following a hearing on the motion, the trial court entered a judgment in favor of the appellee with respect to the promissory note. The judgment itself, entered April 12, 2001, does not

reference the claim with respect to the cash account; moreover, in an order entered the same date the trial court stated in pertinent part:

[T]he Court finds that the Motion for Summary Judgment should be granted as it relates to the promissory note signed by the Defendants, and denied as it relates to the cash account in the name of the Defendants.

IT IS THEREFORE, BY THE COURT, ORDERED that a partial summary judgment be entered in favor of the Plaintiff and against the Defendants, jointly and severally, for all sums due and owing under the October 24, 1996 promissory note, as described in the Affidavit of Cindy Burns, and that summary judgment be denied on the issue of the cash account.

(Emphasis added.) This order was in conformity with the trial judge's comments from the bench following the hearing.

Rule 2(a)11 of the Rules of Appellate Procedure - Civil provides:

(a) An appeal may be taken from a circuit, chancery, or probate court to the Arkansas Supreme Court from:

. . .

11. An order or other form of decision which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties in a case involving multiple claims, multiple parties, or both, if the trial court has directed entry of a final judgment as to one or more but fewer than all of the claims or parties, has made an express determination, supported by specific factual findings, that there is no just reason for delay, and has executed the certificate required by Rule 54(b) of the Rules of Civil Procedure[.]

(Emphasis added.) Here, neither the order nor the judgment contained a Rule 54(b) certification. Consequently, since the judgment disposed of fewer than all of the claims, and there is no Rule 54(b) certification, it is not final and appealable.

Dismissed.

Pittman and Vaught, JJ., agree.