Grand Prairie Water Users Board v. Community Water Systems

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

EN BANC

CA04-604

February 2, 2005

GRAND PRAIRIE WATER USERS AN APPEAL FROM CLEBURNE COUNTY

BOARD CIRCUIT COURT

APPELLANT [NO. CIV2004-13-2]

v.

HONORABLE JOHN NORMAN HARKEY,

COMMUNITY WATER SYSTEMS CIRCUIT JUDGE

APPELLEE

DISMISSED

Per Curiam

Appellant, Grand Prairie Water Users Board, appeals from the denial of its motion for summary judgment and a grant of summary judgment to appellee, Community Water Systems. We dismiss the appeal for lack of a final order.

We state only those facts as are necessary to explain the dismissal. Appellant is a public facilities board that distributes water to several communities in Lonoke and White Counties. Appellee owns and operates a water intake, treatment, and distribution system at Greers Ferry Lake in Cleburne County. On July 19, 2001, appellant contracted to purchase water from appellee. According to appellant, appellee promised to construct a new water intake at a particular location on Greers Ferry Lake and also promised that, if the water rate charged by appellee ever exceeded $2.428 per thousand gallons, appellant's obligations under the contract would cease.

On October 14, 2003, appellant sued appellee in Lonoke County Circuit Court, seeking a declaration that the contract was void because appellee had acknowledged that, upon completion of a new intake facility, the water rate would be $2.61 per thousand gallons. On November 10, 2003, appellant filed an amended complaint adding a claim that appellee had used Lonoke County money to obtain easements at the site in Cleburne County. Appellant asserted that legal ownership of the easements should be declared to be in trust for the use and benefit of itself and its communities.

On January 14, 2004, the case was transferred to Cleburne County Circuit Court. Thereafter, both parties filed motions for summary judgment on the issue of whether appellant remained obligated under the contract. Neither motion addressed appellant's claim for legal ownership of the easements. Following a hearing, the trial court denied appellant's motion for summary judgment and granted appellee's motion, determining that, as a matter of law, the contract was valid and binding on appellant; no ruling was made with regard to the easements. Appellant now appeals from that order.

The question of whether an order is final and subject to appeal is a jurisdictional question, which we will raise on our own even if the parties do not. Strack v. Capital Servs. Group, ___ Ark. App. ___, ___ S.W.3d ___ (June 30, 2004). When more than one claim for relief is presented in an action, the trial court may direct entry of a final judgment as to one or more but fewer than all of the claims 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. Id.; Ark. R. Civ. P. 54(b)(1) (2004). The specific factual findings must be set forth in a Rule 54(b) certificate, appearing immediately after the court's signature on the judgment. See Ark. R. Civ. P. 54(b)(1) (2004).

In the case at bar, appellant asserted two claims, one urging cancellation of the contract and the other seeking title to certain easements. Only the claim regarding the validity of the contract was concluded by the order of summary judgment; neither that order nor any other order in the record before us disposed of or otherwise resolved appellant's claim regarding the easements. Further, the summary judgment did not contain a Rule 54(b) certificate designating it as a final order. In light of these facts, the order appealed from is not a final, appealable order. See Ark. R. Civ. P. 54(b)(2) (2004); see also Strack v. Capital Servs. Group, supra; Hambay v. Williams, 335 Ark. 352, 980 S.W.2d 263 (1998); Capital Life & Accident Co. v. Phelps, 72 Ark. App. 464, 37 S.W.3d 692 (2001).

We consequently dismiss the appeal without prejudice.

Dismissed.