Norma Rutledge v. Christ is the Answer Fellowship, Inc.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

NORMA RUTLEDGE

APPELLANT

V.

CHRIST IS THE ANSWER FELLOWSHIP, INC.

APPELLEE

CA04-475

January 19, 2005

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT

[NO. CR 2002-247-5]

HON. EUGENE K. HARRIS,

JUDGE

DISMISSED

Robert J. Gladwin, Judge

On January 14, 2004, appellee Christ is the Answer Fellowship, Inc., moved to non-suit its complaint for an injunction against appellant Norma Rutledge, who held a mortgage and note executed by the church in 1993. The Jefferson County Circuit Court granted the non-suit without prejudice on January 20, 2004, and appellant filed her notice of appeal from that order on February 13, 2004. Appellant raises two points on appeal: (1) the trial court erred in finding that its March 6, 2001 order was res judicata on the issue of the amount of money owed to her after appellee failed to make fifty-seven payments due pursuant to the promissory note; (2) even if the order was res judicata, the trial court erred in finding that appellant was not entitled to eight-percent interest upon default. Appellee argues that this court lacks jurisdiction to hear this appeal because the January 20, 2004 order was not a final, appealable order. We agree with appellee and, therefore, dismiss the appeal.

Appellee executed a mortgage and note in 1993 to appellant and her late husband to secure a debt of $35,000. The promissory note provided that appellee was to repay the debt at five percent interest but that appellee would pay eight-percent interest if it failed to pay on any of its installments. Thereafter, appellee missed fifty-seven payments, and appellant began foreclosure proceedings. In an order filed on March 6, 2001, the trial court found that appellant had waived her right to foreclosure by accepting late payments. The court further found an arrearage of $8,312.31 plus "interest as provided for in the note" that appellee owed appellant. Finding that it would be inequitable to require appellee to pay the sum immediately, the court ordered that the sum would be due and payable when the note and mortgage came due on January 1, 2004.

Appellee filed a complaint against appellant on June 15, 2001, seeking an injunction based on its allegations that she was interfering with its contract to sell church property to a third party. The court granted appellee's injunction.

On February 21, 2002, appellant filed a substituted motion for reconsideration of the March 6, 2001 order finding that she was entitled to only $43,312 on the note. The trial court entered an order on March 7, 2002, in which it found in paragraph one that the amount due and owing to appellant by appellee as a payoff for the note and mortgage was $43,312.31, and the trial court noted in paragraph two that, by agreement of the parties, all other causes of action were transferred to the civil division of Jefferson County Circuit Court for adjudication. However, on March 20, 2002, the trial court set aside the first paragraph of the March 7 order regarding the payoff because it was found not to be an "agreed" order.

In an order filed August 19, 2002, the trial court reaffirmed its previous findings and determined that the payoff on the note was $43,312.31 but that appellant was entitled to additional interest in the amount of $2,333.33 for a total of $45,645.64. The trial court ordered that the money held in the registry of the court be distributed and then again ordered that the remaining issues between the parties be transferred to the civil division of theJefferson County Circuit Court for adjudication. At the end of the order, the trial court purported to have entered a final judgment, certified in accordance with Rule 54(b), for purposes of appeal. Appellant filed a timely notice of appeal from the court's order on August 28, 2002.

In Rutledge v. Christ is the Answer Fellowship, Inc., 82 Ark. App. 221, 105 S.W.3d 816 (2003), this court dismissed appellant's appeal because it had not been properly certified. Instead of setting forth facts to support its conclusion, the trial court merely tracked the language of Rule 54(b) in providing that "there is no just reason for delay of the entry of a final judgment...." Because the Rule 54(b) certificate did not conform to the requirements of the rule and the relevant case law, we dismissed the appeal without prejudice to re-file upon entry of an order that complies with Rule 54(b). Appellant took no further action with regard to her appeal.

On January 14, 2004, appellee moved to non-suit its complaint, and the trial court granted the motion and dismissed appellee's complaint without prejudice on January 20, 2004. Appellant filed a notice of appeal on February 13, 2004, purporting to appeal from the trial court's granting of appellee's motion for a non-suit.

The order granting the non-suit is not a final order for purposes of appeal. Arkansas Rule of Civil Procedure 41(a) provides that "an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court . . . [and] such a dismissal is a matter of right." See Beverly Enterprises - Arkansas, Inc. v. Hillier, 341 Ark. 1, 14 S.W.3d 487 (2000). Where a plaintiff has exercised his absolute right to voluntarily dismiss his claim, the first dismissal is without prejudice and is not an adjudication on the merits. Id. Accordingly, we dismiss for lack of a final order.

Dismissed.

Griffen and Neal, JJ., agree.