Terry Gibson v. First State Bank of Warren et al.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

TERRY GIBSON

APPELLANT

V.

FIRST STATE BANK OF WARREN,

et al.

APPELLEES

CA 03-942

APRIL 7, 2004

APPEAL FROM THE CLEVELAND

COUNTY CIRCUIT COURT

[NO. CV2002-39-6]

HONORABLE EDWARD P. JONES,

JUDGE

DISMISSED

John B. Robbins, Judge

Appellee First State Bank of Warren filed a foreclosure action against appellant Terry Gibson and appellee Pat Gibson shortly after the Gibsons were divorced. The Gibsons were in default on mortgage loans secured by about 520 acres of property. The trial court entered a decree of foreclosure on February 10, 2003, and subsequently entered an order confirming sale on March 20, 2003. The property was sold to appellees Michael and Alice Lindsey for the sum of $400,000.00. Alice Lindsey is Mr. Gibson's first cousin.

On April 4, 2003, Ms. Gibson filed a motion to set aside the sale and the order confirming the sale. In her motion, Ms. Gibson asserted that $400,000.00 was grossly inadequate for the price of the property, as it had a market value of several thousand dollars above that price. Ms. Gibson further alleged that the effort to sell the property was marred by the actions of Mr. Gibson, which were designed to discourage interest by purchasers. Ms. Gibson specifically alleged that Mr. Gibson put up a sign on the property that read:

This land has to be sold by foreclosure court to settle a divorce. This is 3rd generation

land owned and operated by the Gibsons. Please mind your own business by leaving. Thanks much!

Ms. Gibson further asserted that Mr. Gibson put a dead cow on a road leading into some of the property, and that one potential bidder called First State Bank of Warren and was misinformed that there was very little timber on the property and that he was wasting his time. Attached to Ms. Gibson's motion were affidavits of two potential bidders who claimed they were discouraged from attending the sale.

A hearing was held on May 19, 2003, and on May 29, 2003, the trial court entered an order denying Ms. Gibson's motion to set aside the sale. Ms. Gibson now appeals from that order, and argues that the trial court erred in finding that there was insufficient evidence that Mr. Gibson interfered with the sale of the property. Alternatively, she contends that potential buyers were nonetheless intimidated from bidding on the property, and that a new sale should have been ordered. Ms. Gibson also argues that the trial court erred in not finding that the bid price of $400,000.00 was inadequate in relation to the value of the property. Finally, Ms. Gibson asserts that the trial court erred in excluding four of her exhibits that pertained to her petition for a restraining order against Mr. Gibson.

We must dismiss Ms. Gibson's appeal for lack of a final appealable order. In addition to responding to Ms. Gibson's motion to set aside the sale, appellee Michael Lindsey filed a "Third-Party Cross-Complaint." Michael and Alice Lindsey then filed an "Amended Third-Party/Intervenor Cross-Complaint." In the amended "cross-complaint," the Lindseys alleged that Ms. Gibson's motion had no basis in fact or law, and was filed simply for purposes of delay. As a result, the Lindseys prayed for damages against Ms. Gibson for: (1) additional interest accrued on the purchase price of the property during the pendency of Ms. Gibson's motion; (2) loss of rental value of homes situated on the property;(3) loss of rental for pasture land; and (4) loss of compensation for hay that could have been harvested. The record contains no disposition of the Lindsey's complaint against Ms. Gibson.

Rule 54(b) of the Arkansas Rules of Civil Procedure provides, in pertinent part:

(b) Judgment Upon Multiple Claims or Involving Multiple Parties.

(1) Certification of Final Judgment. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the 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.

. . . .

(2) Lack of Certification. Absent the executed certificate required by paragraph (1) of this subdivision, any judgment, order, or other form of decision, however designated, which 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, and the judgment, order, or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all of the parties.

Under Rule 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). Although Rule 54(b) provides a method by which the trial court may direct entry of final judgment as to fewer than all of the claims or parties, where there is no attempt to comply with Rule 54(b), the order is not final and we must dismiss the appeal. Id. The fundamental policy behind Rule 54(b) is to avoid piecemeal appeals. City of Corning v. Cochran, 350 Ark. 12, 84 S.W.3d 439 (2002). The failure to comply with the provisions of Rule 54(b) affects the subject-matter jurisdiction of the appellate court. Id. Thus, this court is obligated to raise the issue on its own. Id.

In the instant case the order being appealed from fails to adjudicate all of the claims of the parties. Moreover, there has been no certification pursuant to Rule 54(b). Consequently, there is no final appealable order and Ms. Gibson's appeal must be dismissed for lack of jurisdiction.

Appeal dismissed.

Pittman and Gladwin, JJ., agree.