Dean v. Tallman

Annotate this Case
Michael DEAN v. The Honorable Dick TALLMAN,
County Judge of Sevier County, Arkansas;
Quorum Court Members, Dale Kesner, Rose
Pulliam, Minor L. Millwee, Sybil Melancon,
Gene Cobb, Maudeen Brinkley, Michael Archer,
Ronnie Turner, LaVerne Corbell; County
Treasurer, Irma L. Walters; Phillip Cox,
Mayor of DeQueen; Borden Neal, Mayor of
Horatio; Don Smith, Mayor of Gillham; Loyd
Montgomery, Mayor of Lockesburg; Gary Moore,
Mayor of Ben Lomond; and State of Arkansas

97-72                                              ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 15, 1998


1.   Appeal & error -- order must be final to be appealable. -- To be
     appealable, an order must be final. 

2.   Judgment -- finality of -- underlying policy. -- The finality of a
     trial court's judgment is governed by Ark. R. Civ. P. 54(b),
     which provides that a trial court may direct entry of final
     judgment as to fewer than all the parties to a multiparty
     suit, as long as the court expressly determines, with factual
     findings, that there is no just reason to delay the appeal. 
     In the absence of this determination and findings, an order is
     not final when it adjudicates fewer than all the claims or the
     rights and liabilities of fewer than all the parties; the
     underlying policy of this rule is to avoid piecemeal appeals.

3.   Appeal & error -- appellants' burden to show Ark. R. Civ. P. 54(b)
     jurisdictional requirements have been met. -- The appellants carry the
     burden of producing a record on appeal that shows the
     jurisdictional requirements of Ark. R. Civ. P. 54(b) have been
     met.

4.   Appeal & error -- appellants did not produce record showing Ark. R. Civ.
     P. 54(b) jurisdictional requirements had been met -- appeal dismissed
     without prejudice. -- Where appellant did not produce a record
     showing that the jurisdictional requirements of Ark. R. Civ.
     P. 54(b) had been met, and where the City appellees did not
     join in the motion for summary judgment, and the supreme court
     could find nothing in the abstract or the record to reflect
     some final action with respect to them, the court, without
     Rule 54(b) findings, did not know what issues remained to be
     resolved; despite the desires of all the parties to have the
     case decided on its merits, the supreme court could not waive
     subject-matter jurisdiction and therefore dismissed without
     prejudice.


     Appeal from Sevier Chancery Court; Ted Capeheart, Judge;
dismissed without prejudice.
     Nichols, Wolff, Ledbetter & Campbell, by: H. Gregory Campbell
and Mark W. Nichols, for appellants.
     Friday, Eldredge & Clark, by: Elizabeth Robben Murray and R.
Christopher Lawson, for appellees Tallman, Kesner, Pulliam,
Millwee, Melancon, Cobb, Brinkley, Archer, Turner, Corbell, and
Walters.
     Timothy Davis Fox, for the City appellees.

     Ray Thornton, Justice.
     This is an appeal of a chancellor's order granting defendant-
appellees' motion for summary judgment in an illegal-exaction case. 
Appellant Michael Dean contends that when an ordinance of the
county quorum court states a specific purpose for the tax proceeds,
and the voters pass that ordinance, the State is precluded from
distributing the proceeds to the county and cities of that county
pursuant to the statutory per capita-distribution formula.  The
chancellor's order granted summary judgment to less than all the
defendants without making an express determination that there was
no just reason to delay an appeal.  As a result, the order is not
final under the provisions of Ark. R. Civ. P. 54(b), and we do not
have jurisdiction.  We therefore dismiss the appeal without
prejudice.
     Dean filed suit against the State of Arkansas and sixteen
other defendants in their official capacity.  Eleven of the
defendants were officials of Sevier County and five were officials
of the cities of that county.  The chancellor's order granted
summary judgment only to the State and County defendants.   
     To be appealable, an order must be final.  Ark. R. App. P.--
Civil 2.  The finality of a trial court's judgment is governed by
Ark. R. Civ. P. 54(b), which provides that a trial court may direct
entry of final judgment as to fewer than all the parties to a
multiparty suit, as long as the court expressly determines, with
factual findings, that there is no just reason to delay the appeal. 
In the absence of this determination and findings, an order is not
final when it "adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties."  Id.  The
underlying policy of this rule is to avoid piecemeal appeals. 
General Motors Acceptance Corp. v. Eubanks, 318 Ark. 640, 646, 887 S.W.2d 292, 295 (1994).  The appellants carry the burden of
producing a record on appeal that shows the jurisdictional
requirements of the rule have been met.  Cortese v. Atlantic
Richfield, 317 Ark. 207, 209, 876 S.W.2d 581, 582 (1994).
     Dean did not produce a record showing that the jurisdictional
requirements of Rule 54(b) have been met.  The City defendants did
not join in the motion for summary judgment, and we could find
nothing in the abstract or the record to reflect some final action
as to them.  Without Rule 54(b) findings, we simply do not know
what issues remain to be resolved.  In fact, the City defendants
raise an unresolved issue in their brief to this court.  In their
brief, the City defendants argue that "[t]he voluntary payment rule
prevents the refund of taxes paid prior [to the time] when the City
appellees were named in the second amended complaint as parties to
this action."  In addition, during oral argument, counsel for these
defendants stated, that despite his desire to see this court decide
the case on its merits, there were several issues yet to be
resolved.  These statements illustrate the very harms that this
rule seeks to avoid.  Were we to decide this case on its merits,
the City defendants could have cause to bring another appeal. 
Despite the desires of all the parties to have this case decided on
its merits, we cannot waive subject-matter jurisdiction.  Skelton
v. City of Atkins, 317 Ark. 28, 30-31, 875 S.W.2d 504, 506 (1994)
(citing Hilburn v. First State Bank, 259 Ark. 569, 535 S.W.2d 810
(1976).  We therefore dismiss without prejudice.  Kinkead v.
Spillers, 327 Ark. 552, 555, 940 S.W.2d 437, 439 (1997).