Ray Townsend Farms, Inc. and Ray Townsend, Individually v. Marjorie Smith

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

RAY TOWNSEND FARMS, INC. and RAY TOWNSEND, INDIVIDUALLY

APPELLANTS

V.

MARJORIE SMITH

APPELLEE

CA 03-06

SEPTEMBER 10, 2003

APPEAL FROM THE MONROE

COUNTY CIRCUIT COURT

[NO. CIV97-131]

HONORABLE L.T. SIMES, II,

JUDGE

DISMISSED

John B. Robbins, Judge

This case arises from a controversy over proceeds from the sale of corporate land. The land in question was owned by appellant Ray Townsend Farms, Inc., and was sold in 1996 for $487,577.65 by appellant Ray Townsend, acting as president of the corporation. Townsend used the money to pay various expenses, to purchase another piece of land, and to pay himself $200,000. In 1997, appellee Marjorie Smith, a director of the corporation and fifty-percent shareholder, sued appellants, claiming that Townsend had no authority to sell the land and that he had failed to account for the proceeds. Appellee sought one-half of the sale amount, punitive damages, and dissolution of the corporation. The case went to trial, and the judge granted a directed verdict in appellee's favor, declaring illegal certain actions taken at corporate meetings in which Townsend was elected president and given approval for a salary and reimbursement from the land sale proceeds. The court also took under advisement the question of whether grounds existed for corporate dissolution. The remaining portion of the case, which concerned appellee's entitlement to monetary relief, went to the jury, which awarded appellee $200,000 in compensatory damages and $50,000 in punitive damages. Following that verdict, the trial judge ruled that appellee had established grounds for liquidating the corporation, and he ordered the parties to agree on a receiver or one would be appointed. Appellants appeal from that order and from the judgment entered on the jury verdict, and they make four arguments on appeal: 1) the trial court erred in failing to grant a continuance after appellee amended her complaint; 2) the trial court erred in granting the aforementioned directed verdict and in ruling that grounds existed to dissolve the corporation; 3) the directed verdict violated the Seventh Amendment to the United States Constitution; and 4) the trial court erred in instructing the jury on punitive damages. We dismiss the appeal because neither of the orders designated in appellants' notices of appeal are final orders.

Judgment was entered on the jury's verdict on June 3, 2002. A notice of appeal was filed from that judgment on July 23, 2002. On August 9, 2002, an order was entered, finding that appellee had established grounds to liquidate the corporation, that a receiver should be appointed, and that the parties were enjoined from disposing of corporate assets without court approval. A separate order entered that same day enjoined Ray Townsend from participating in the transfer or sale of the stock or assets of a separate corporation. A notice of appeal was filed from "the order entered in this case on August 9, 2002," on August 13, 2002.

These two notices of appeal are the only ones contained in the record. In each notice, the order appealed from is an interlocutory order that is not appealable. No final, appealable order is designated in either notice of appeal.1 A similar situation arose in Daniel v. State, 64 Ark. App. 98, 983 S.W.2d 146 (1998). There, Daniel was adjudicated a delinquent in an August 19, 1997 hearing. He filed an appeal from that order; however, the order was not final because it stated that Daniel was to return for a disposition hearing. We dismissed the appeal, stating:

A notice of appeal must designate the judgment or order appealed from, Ark. R. App. P.--Civ. 3(e) (1998), and orders not mentioned in a notice of appeal are not properly before the appellate court. Because the final appealable order was not designated in appellant's notice of appeal, and because the August 19, 1997 order that was designated in appellant's notice is not a final order, we cannot reach the merits of appellant's argument regarding the adjudication hearing.

Id. at 100, 983 S.W.2d at 147 (citations omitted) (emphasis added).

In Ross v. Jones, 80 Ark. App. 382, 96 S.W.3d 738 (2003), appellees filed a claim for ejectment and appellants filed a counterclaim for cancellation of a deed. Appellees did not answer the counterclaim, and appellants sought a default judgment. Before the court ruled on the default judgment, it entered an order granting the ejectment on August 3, 2001. Appellants filed a notice of appeal from that order. While the appeal was pending, the trial court adjudicated the counterclaim in favor of appellees by order entered November 14, 2001. In their brief on appeal, appellants argued that the trial court erred in failing to grant their motion for a default judgment on the counterclaim. We dismissed the appeal, holding that appellant's notice of appeal was premature, presumably because it was filed before entry of the final order in the case.

In the case before us, appellants' notices of appeal designate two orders, neither of which is final. As a result, we must dismiss the appeal.

Appeal dismissed.

Griffen and Neal, JJ., agree.

1 An order appointing a receiver was entered on September 30, 2002, after the notices of appeal were filed. While such an order may be appealable, see Ark. R. App. P. - Civil 2(a)(7) (2003), the record contains no notice of appeal designating that order as the order appealed from.