James E. Turner, Jr. et al. v. Dr. James E. Turner et al.

EN BANC

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

CA02-682

April 9, 2003

JAMES E. TURNER, JR., et al.,

APPELLANTS AN APPEAL FROM SCOTT COUNTY

CIRCUIT COURT

v. [NO. CIV99-25]

HONORABLE PAUL DANIELSON

DR. JAMES E. TURNER, et al., CIRCUIT JUDGE

APPELLEES

DISMISSED

This case involves a lawsuit filed by four plaintiffs, who are the appellants herein: J. Eric Turner, James E. Turner, Carolyn Turner, and JT Executive Auto Brokers, Inc. In 1999, they sued five defendants, appellees herein, for breach of contract, breach of a stock agreement, misrepresentation, breach of fiduciary obligations, and indemnity. The lawsuit concerned an alleged promise by appellees to invest money in automobile dealerships owned by appellant J. Eric Turner and financed in part by the other appellants. In addition, a counterclaim was filed by appellee Dr. James E. Turner against appellants James E. and Carolyn Turner to collect on a promissory note.

On November 2, 2001, all five appellees sought summary judgment on the claims of three of the four appellants: James Turner, Carolyn Turner, and JT Executive Auto Brokers. On January 15, 2002, the trial court signed an order granting summary judgment based on the Turners' and JT's failure to respond. The order contained the following language:

IT IS THEREFORE ORDERED that the Complaint and the First Amended Complaint of James E. Turner, Carolyn Turner, and J.T. Executive Auto Brokers, Inc., be and hereby is dismissed with prejudice as to each of the defendants. The claims of the separate plaintiff, J. Eric Turner, as set forth in the First Amended Complaint, shall remain pending and are unaffected by this Order.

(Emphasis added.) The three appellants who had failed to respond asked the court to reconsider its grant of summary judgment, but their request was denied. They then filed notice of appeal on March 19, 2002. They argue that the trial court erred in granting summary judgment.

We decline to address the merits of this appeal because the order appealed from is not final. The order specifically reserved the claim filed by J. Eric Turner. In addition, it did not resolve or otherwise dispose of Dr. Turner's counterclaim. An order that fails to adjudicate all of the claims as to all of the parties, whether presented as claims, counterclaims, cross-claims, or third-party claims, is not final for purposes of appeal. Dodge v. Lee, 350 Ark. 480, 88 S.W.3d 843 (2002); Ark. R. Civ. P. 54(b)(1) (2002).

Appellants are aware that they have appealed from an order that is not final. On August 12, 2002, they filed a motion asking that we issue a mandate to the circuit court to address the certification of the appeal. We denied the motion because appellants were asking us to direct the trial court to decide whether a 54(b) certificate should be issued, an action that a trial court may, but is not required, to take. See Ark. R. Civ. P. 54(b)(1) (2002) (stating that the trial court "may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties"). This appeal has now come before us in the ordinarycourse, and upon review of the record, we conclude that the order appealed from is not final. The appeal is therefore dismissed without prejudice.

Appeal dismissed.