David Dodds and Vicki Dodds v. Bank of the Ozarks et al.

EN BANC

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

CA02-904

April 9, 2003

DAVID DODDS AND VICKI DODDS AN APPEAL FROM FAULKNER COUNTY

APPELLANTS CIRCUIT COURT

[NO. E99-203 AND E99-765]

v.

HONORABLE DAVID REYNOLDS

BANK OF THE OZARKS, ET AL., CIRCUIT JUDGE

APPELLEES

APPEAL DISMISSED

This case from Faulkner County began as a suit by Nationsbanc to foreclose on a ten-acre tract owned by appellants David and Vicki Dodds. In addition to naming Mr. and Mrs. Dodds as defendants, Nationsbanc named Bank of the Ozarks and the Internal Revenue Service as inferior lienholders on the property. A separate action, styled "Petition to Set Aside Sale of Real Property," was later filed by the Dodds against Nationsbanc, Bank of the Ozarks, the IRS, Presley Investments, LLC, and Regions Bank. The basis for the suit was Bank of the Ozarks' non-judicial foreclosure sale on the ten acres and on an adjacent thirty-five acres. Following the foreclosure, the bank sold the thirty-five-acre parcel to Presley Investments. The Dodds sought to have that sale set aside.

The two cases were eventually consolidated. Virtually every party involved filed a motion for summary judgment, with the Dodds ultimately filing a motion for partial summary judgment. On May 7, 2002, the trial court denied the Dodds's motion for partial summary judgment, dismissed their petition to set aside the sale, and granted Presley's motion for summary judgment on the ground that Presley was a bona fide purchaser of the thirty-five acres. The court also, in a file-marked letter ruling, transferred certain tort claims filed by the Dodds against Presley and Bank of the Ozarks to Pulaski County Circuit Court. Other claims were non-suited by the party who had filed them. However, some claims remain pending in this action, including Nationsbanc's petition for foreclosure. Further, no order has been entered resolving or otherwise disposing of the claims against Regions Bank and the Internal Revenue Service.

Under Arkansas Rule of Civil Procedure 54(b), 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).

Apparently, the trial court and the parties were aware that the May 7 order did not constitute a final resolution of the case because the court stated that it would retain jurisdiction to make further orders as were necessary. The court also included a Rule 54(b) certificate for the purpose of allowing an immediate appeal. That certificate reads:

With respect to the issues determined by the above judgment, the Court has made the findings of fact described in paragraphs 1 through 9, inclusive, above, and adopts the same for this certificate.

Upon the basis of the foregoing factual findings, the Court hereby certified, in accordance with Rule 54(b)(1) of the Arkansas Rules of Civil Procedure, that it has determined that there is no just reason for delay of the entry of a final judgment for all purposes.

Unfortunately, this certificate does not comply with Rule 54(b) and thus is not sufficient to permit an immediate appeal.

Rule 54(b) provides that, when multiple parties are involved in a case, the trial court may direct the entry of final judgment as to one of the parties "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." (Emphasis added.) If the court makes such a determination, it must execute a certificate "which shall appear immediately after the court's signature on the judgment, and which shall set forth the factual findings upon which the determination to enter the judgment as final is based." Ark. R. Civ. P. 54(b)(1) (2002) (emphasis added). In the absence of the certificate, an order adjudicating claims against fewer than all the parties does not terminate the action. See Ark. R. Civ. P. 54(b)(2).

The trial court's findings, upon which it based the execution of the certificate, do not contain reasons for the trial court's entry of final judgment; rather, they contain the reasons for the trial court's judgment on the merits of the case. In the recent case of Stouffer v. Kralicek, ___ Ark. App. ___, ___ S.W.3d ___ (February 26, 2003), we addressed this exact situation. The trial court there executed a Rule 54(b) certificate, but the certificate referred only to factual findings on the merits of the court's decision; no factual findings were maderegarding the reasons for entry of a final judgment. We dismissed the appeal because the order lacked

a specific factual finding as to why an appeal should proceed at this point. The certificate contains no findings or statements as to the trial court's reason for entry of a final order, although it does refer to the specific factual findings in the court's prior order. However, those findings pertain to the merits of the summary judgment, not to the reasons for the entry of a final judgment.

In light of our holding in Stouffer v. Kralicek, we dismiss the instant appeal without prejudice.

Appeal dismissed without prejudice.

Bird and Baker, JJ., not participating.