Stratton v. Arkansas State Highway Comm'n

Phil STRATTON v. ARKANSAS STATE HIGHWAY
COMMISSION

96-58                                              ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 18, 1996


1.   Civil procedure -- appealable orders -- A.R.C.P. Rule 54(b)
     jurisdictional matter must be raised by appellate court. --
     Compliance with A.R.C.P. Rule 54(b) is a jurisdictional matter
     that the appellate court is required to raise sua sponte. 

2.   Civil procedure -- appealable orders -- requirements of Rule
     54(b). -- Under Rule 54(b), when multiple claims or multiple
     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; absent 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 the parties.

3.   Civil procedure -- appealable orders -- order failed to comply
     with Rule 54(b) -- dismissal warranted. -- Where, as in the
     present case, the trial court's order fails to set forth the
     requisite express determination that there is no just reason
     to delay the entry of a final judgment, and where the
     abstracted order fails to set forth specific factual findings
     supporting the trial court's judgment, the appellate court
     will dismiss the appeal for noncompliance with Rule 54(b).  

4.   Appeal & error -- court must rely upon abstracted order. --
     The supreme court must rely upon the abstracted order because
     there is only one record and seven members of the court, who
     will not attempt to use one record.

5.   Appeal & error -- appeal dismissed for noncompliance with Rule
     54(b) -- case remanded. -- Where the trial court's order did
     not comply with Rule 54(b), the supreme court dismissed
     appellant's appeal without prejudice and remanded the case.


     Appeal from Faulkner Circuit Court, First Division; David L.
Reynolds, Judge; appeal dismissed.
     Appellant, pro se.
     Robert L. Wilson, Chief Counsel, and William L. Wharton, Staff
Att'y, for appellee.

     Donald L. Corbin, Justice.Associate Justice Donald L.
Corbin, 3-18-96   *ADVREP6*






PHIL STRATTON,
                    APPELLANT,

V.

ARKANSAS STATE HIGHWAY
COMMISSION,
                    APPELLEE,



96-58



APPEAL FROM THE FAULKNER COUNTY
CIRCUIT COURT, FIRST DIVISION,
TWENTIETH JUDICIAL DISTRICT, 
NO. CIV-91-530,
HON. DAVID L. REYNOLDS, JUDGE,


APPEAL DISMISSED.





     Appellant, Phil Stratton, appeals the amended order of the
Faulkner County Circuit Court, filed on November 15, 1995, granting
the motion to dismiss of appellee, Arkansas State Highway
Commission, for the reason that appellant's suit against a
constitutional agency of the State of Arkansas is an impermissible
suit against the State.  Appellant, who is an attorney, commenced
this action against a former client, Harve Newton, and appellee.
Appellant seeks judgment for his contingency fee for legal services
rendered to Mr. Newton in a separate action that was instituted by
Mr. Newton against appellee and was settled by appellee's cash
payment directly to Mr. Newton.  Appellant's claim against
Mr. Newton, now deceased, was revived in the name of the special
administrator and remains outstanding.  Jurisdiction of this appeal
is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(1). 
We do not reach the merits of this appeal because the judgment of
the trial court does not comply with Ark. R. Civ. P. 54(b).  
     Although the parties do not raise this issue, compliance with
Rule 54(b) is a jurisdictional matter which this court is required
to raise sua sponte.  Reeves v. Hinkle, 321 Ark. 28, 899 S.W.2d 841
(1995).  Rule 54(b) provides that, when multiple claims or multiple
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."  Rule
54(b) provides that, 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 the parties.  
     Here, the trial court entered judgment for appellee only.  The
trial court's order, as abstracted, reads as follows:
                               9.
                   AMENDED ORDER OF DISMISSAL
          
          On November 15, 1995 the court below entered its
     amended order of dismissal pursuant to Rule 54 (b)
     Arkansas Rules of Civil Procedure dismissing appellee as
     a party defendant for the reason appellant's suit as to
     appellee was an impermissible suit against the state.

     Plainly, the order fails to set forth the requisite express
determination, supported by specific factual findings, that there
is no just reason to delay the entry of a final judgment.  We have
previously held that, where no such determination is made, we will
dismiss the appeal for noncompliance with Rule 54(b). Barnhart v.
City of Fayetteville, 316 Ark. 742, 875 S.W.2d 79 (1994).  We have
repeatedly held that, where the abstracted order fails to set forth
specific factual findings supporting the trial court's judgment, we
will dismiss the appeal for noncompliance with Rule 54(b).  E.g.,
Reeves, 321 Ark. 28, 899 S.W.2d 841; Wormald U.S., Inc. v. Cedar
Chemical Corp., 316 Ark. 434, 873 S.W.2d 152 (1994); Davis v.
Wausau Ins. Co., 315 Ark. 330, 867 S.W.2d 444 (1993); Franklin v
Osca, Inc., 308 Ark. 409, 825 S.W.2d 812 (1992).  We must rely upon
the abstracted order because, "as we have often explained, there is
only one record and there are seven members of this court.  The
seven of us will not attempt to use one record."  Reeves, 321 Ark.
at 30, 899 S.W.2d  at 842.     
     Thus, we dismiss the appeal without prejudice to refile it at
a later date, and remand the case to the trial court for further
proceedings.  Reeves, 321 Ark. 28, 899 S.W.2d 841; Barnhart, 316
Ark. 742, 875 S.W.2d 79.
     Appeal dismissed.