Kenneth D. Harris, Sr., et al. v. Regions Bank

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
EN BANC

KENNETH D. HARRIS, SR., et al.

APPELLANTS

V.

REGIONS BANK

APPELLEE

CA 03-316

OCTOBER 1, 2003

APPEAL FROM THE SEARCY

COUNTY CIRCUIT COURT

[NO. CIV99-68; CIV00-37]

HONORABLE CHARLES CLAWSON,

JUDGE

DISMISSED

Per Curiam

This appeal stems from consolidated actions seeking damages for conversion following the repossession of cattle from appellants in August 1997. We dismiss the appeal for lack of a final appealable order.

Appellant Kenneth Harris, Sr., (Harris) borrowed money from Security Bank, now owned by appellee Regions Bank, to start a dairy cattle operation. Harris gave a security interest in the cattle and all after-acquired cattle as collateral. In May 1997, Harris's sons, appellants Kenneth Harris, Jr., and Adam Harris (sons), borrowed a total of $10,000 from the Farmers Home Administration and purchased eleven head of cattle. Harris negotiated the purchase of the cattle on behalf of the sons and, at some prior time, gave the sons between two and five head from his own herd. Harris's cattle and those of the sons were ear-tagged and allowed to commingle. In August 1997, Regions was concerned because Harris was in default on his loans and filed a replevin action against Harris. Regions obtained an order allowing it to take possession of the cattle and hired Cattleman's Livestock Auction, Inc., (Cattleman's) to pick up the cattle and to conduct a sale of the cattle. Cattleman's picked up the cattle, both Harris's and the sons', without appellants being present on August 20, 1997, and sold the cattle on August 23, 1997. On December 27, 1999, the sons filed suit against Regions and Cattleman's seeking damages for conversion and credit defamation. Regions and Cattleman's filed separate answers to the complaint. In March 1998, Harris filed for bankruptcy protection under Chapter 13. In his schedules in bankruptcy court, Harris listed the bank as a creditor but did not list any claims against the bank or Cattleman's as assets of the bankruptcy estate. On August 21, 2000, Harris filed suit against Regions, Cattleman's, the Arkansas State Police, and Searcy County Sheriff George Sutterfield, seeking damages for conversion of his cattle. Regions and Cattleman's filed separate answers to Harris's complaint. There is nothing in the record to indicate that the Arkansas State Police or Sheriff Sutterfield were ever served with process or that the claims against them were disposed of in any order in the record. Harris was discharged from bankruptcy on October 2, 2000.

The trial court granted Regions's motion to consolidate the two actions. Regions filed a motion for summary judgment, alleging that Harris was in default, that it had the right to recover the cattle, and that his claim was barred by res judicata and judicial estoppel because he did not list the claim in his schedules filed in bankruptcy court. The motion further alleged that, because Harris negotiated the purchase of the cattle for the sons, the cattle fell within the after-acquired property clause of the security agreement and, therefore, the sons were in privity with Harris and their claims were likewise barred by res judicata. There is nothing in this record to indicate that Cattleman's joined in or adopted Regions's motion for summary judgment. The trial court granted the motion for summary judgment, finding that there was no dispute that Harris was in default and that the Bank had the right to obtain possession of the cattle.1 The trial court further found that, because Harris purchased the cattle for the sons and treated them as part of his herd, the sons' claims were likewise precluded. This appeal followed.

As noted above, appellants' claims against Cattleman's, the Arkansas State Police, and Sheriff Sutterfield have not been addressed, and those parties have not been dismissed from the lawsuit. Compliance with Ark. R. Civ. P. 54(b) is a jurisdictional matter that this court is required to raise on its own. Stratton v. Arkansas State Highway Comm'n, 323Ark. 740, 917 S.W.2d 538 (1996). For an order to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Hasse v. Starnes, 337 Ark. 193, 987 S.W.2d 704 (1999). Rule 54(b) provides that, when multiple claims or parties are involved, 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 "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." In the absence of such determination and direction, any order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties. Ark. R. Civ. P. 54 (b). There is no such certification in this case.

Dismissed.

1 The trial court's letter opinion refers to the "Defendant's" motion while the written order refers to the "Defendants'" motion. As noted above, there is nothing to indicate that Cattleman's joined in the motion. There is no transcript or other indication that a hearing was held on the motion.