Robert Lee Payne v. State of Arkansas

Robert Lee PAYNE v. STATE of Arkansas

97-966                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                  Opinion delivered May 7, 1998


1.   Appeal & error -- appeal must be from final order -- when order is final. -- The
     requirement that an order be final to be appealable is a
     jurisdictional requirement; the purpose of the finality
     requirement is to avoid piecemeal litigation; an order is
     final and appealable if it dismisses the parties from the
     court, discharges them from the action, or concludes their
     rights to the subject matter in controversy; the order must
     put the judge's directive into execution, ending the
     litigation, or a separable branch of it.

2.   Appeal & error -- order contemplating further action not final. -- An order that
     contemplates further action by a party or the court is not a
     final, appealable order.

3.   Appeal & error -- order reserving judgment on damages or failing to reduce award to
     liquidated sum not final. -- It is particularly true that an order is
     not final when the trial court has reserved judgment on
     damages or failed to reduce a damage award to a liquidated
     sum.

4.   Appeal & error -- order appealed from not final -- appeal dismissed without prejudice.
     -- Where the circuit court's order on its face contemplated
     further legal action to perfect title in an automobile that
     had been seized in connection with drug charges, one of which
     had been nolle prossed, brought against appellant, who had
     been held responsible for storage fees; and where the circuit
     court's order did not reflect the daily storage rate, the
     number of days the vehicle was stored, and a final, liquidated
     sum of costs to be charged to appellant, the supreme court
     concluded that a blanket determination that appellant must pay
     the storage costs would only invite a subsequent appeal
     regarding the amount of fees assessed and that the
     proscription against piecemeal appeals rendered the appeal
     deficient under Ark. R. App. P.--Civ. 2; holding that the
     order appealed from was not a final, appealable order and
     declaring that it was without jurisdiction, the supreme court
     dismissed the appeal without prejudice.


     Appeal from Clark Circuit Court; Robert McCallum, Judge;
dismissed.
     Alvin Schay, for appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.

     Robert L. Brown, Justice.
     The sole issue in this appeal is whether appellant Robert Lee
Payne should be saddled with storage fees for an automobile which
was involved in the criminal charges brought against him for drug-
related offenses.  Payne contends that because one of the drug
charges was nolle prossed, he should not be required to pay storage
fees associated with the seized vehicle.  We dismiss the appeal
without prejudice due to the absence of a final, appealable order
as required by Arkansas Rule of Appellate Procedure--Civil 2.
     On January 16, 1997, Payne was charged by amended information
with (1) possession of methamphetamine with intent to deliver, (2) 
possession of drug paraphernalia, and (3) illegal possession of
firearms.  The charges arose out of a January 11, 1997 stop-and-
search of a 1977 Pontiac Firebird driven by Payne.  According to
the affidavit for the arrest warrant, Sergeant John Kelloms of the
Caddo Valley Police Department stopped the 1977 Firebird because of
expired license plates and obtained permission from Payne to search
the vehicle.  The search uncovered numerous items, including a
brown vial containing an off-white substance believed to be
methamphetamine, hemostats, rolling papers, pipes, syringes, and a
revolver.
     In April 1997, the prosecuting attorney moved to nolle prosse
the charge for possession of methamphetamine with intent to deliver
and illegal possession of firearms, and the circuit court granted
the two motions.  On April 28, 1997, Payne entered into an
agreement with the State to plead guilty to the remaining drug-
paraphernalia charge in exchange for a recommendation that he be
sentenced to two years in prison.  On June 26, 1997, the circuit
court entered an order accepting Payne's guilty plea and sentencing
him to prison for two years.
     The record reflects that on January 11, 1997, a 1977 Pontiac
Firebird was seized by Sergeant Kelloms and transported to Kisling
Automotive for storage.  On April 14, 1997, Payne moved, pursuant
to Ark. R. Crim. P. 15.2, for return of all property seized by the
State that was not needed for evidentiary purposes.  This property
included the Firebird and its contents.  Later, the State responded
to a letter by Payne's counsel and indicated that there was some
question about who owned the Firebird.
     At a subsequent hearing, the prosecuting attorney explained
that the State did not want to release the Firebird to Payne when
title to the vehicle was in a þLarry Hopkins,þ who purportedly had
endorsed the title over to a third party without a notarization. 
According to Payne, Hopkins had sold the vehicle to David Smith and
Randy Givie of Givie's Auto Salvage in Morrilton.  Payne explained
that he purchased the automobile from David Smith and that he used
the vehicle while employed by Greg Warren of Warren Auto Sales in
Hattiesville.  Payne stated that he had not registered the car in
his name for more than a year because Greg Warren allowed him to
continue to use his dealership's tags and insurance.  Payne further
explained that the 1977 Firebird was his vehicle, and he added that
he first attempted to regain possession of it two days after his
arrest.
     During the hearing, Payne moved not only for a release of the
vehicle and its contents but also that he not be held responsible
for the accrued storage costs.  He argued that because the State
caused the vehicle to be stored at Kisling Automotive, the State
should be responsible for the storage costs.  In response, the
State pointed to Payne's arrest on charges for possession of
methamphetamine with intent to deliver and his conviction for
possession of drug paraphernalia, both of which were associated
with the vehicle.
     The circuit court ruled from the bench and ordered that the
drug task force's hold on the vehicle and its contents be removed
and that physical possession of the title and registration be given
to Payne's counsel, with the understanding that counsel attempt to
register the car in Payne's name.
     On June 19, 1997, the circuit court entered an order returning
the items of personal property contained in the Firebird to Payne. 
The remainder of the order stated:
          2. At the June 3, 1997 hearing, the Court terminated
     any hold or claim by the Drug Task Force against the
     automobile in which the Defendant was an occupant at the
     time of his arrest.  The Court was requested to rule that
     the defendant was the owner of the vehicle in question. 
     However, this matter was not properly before the Court in
     the above styled criminal case.  The ownership of the
     vehicle and the issuance of title to the vehicle is a
     civil matter which must be properly brought before a
     Court of competent jurisdiction in a separate proceeding.
          3. The Court denies the defendantþs oral Motion and
     Request for cancellation of the storage charges for the
     vehicle in question.  The defendant was properly charged
     and ultimately plead[ed] guilty to "Possession of Drug
     Paraphernalia" which was necessarily located in the
     vehicle in question where the defendant was arrested. 
     The Drug Task Force properly seized the vehicle and the
     storage fee necessarily accrued on the vehicle. 
     Therefore, in the event that the defendant perfects his
     claim to ownership of the vehicle, he will be required to
     pay any outstanding storage fees owed to Kisling Motor
     for the time that the vehicle has been stored.
(Emphasis added.)  Payne appeals from this order.
     Payne's argument on appeal is that the trial court erred in
assigning the storage costs to him because the crime for which he
was convicted, possession of drug paraphernalia, did not support
seizure of the automobile and the þoriginalþ drug charge against
him had been nolle prossed.  Though Payneþs standing to raise this
issue may well be an issue in itself at any trial on the merits due
to his apparent lack of ownership of the Firebird, we decline to
reach this issue because we hold that the order appealed from is
not a final, appealable order.  This court has explained:
     The requirement that an order be final to be appealable
     is a jurisdictional requirement.  Wilburn v. Keenan Cos.,
     Inc., 297 Ark. 74, 759 S.W.2d 554 (1988).  The purpose of
     the finality requirement is to avoid piecemeal
     litigation.  Lamb v. JFM, Inc., 311 Ark. 89, 842 S.W.2d 10 (1992).  An order is final and appealable if it
     dismisses the parties from the court, discharges them
     from the action, or concludes their rights to the subject
     matter in controversy.  Department of Human Services v.
     Lopez, 304 Ark. 154, 787 S.W.2d 686 (1990). The order
     must put the judge's directive into execution, ending the
     litigation, or a separable branch of it.  Festinger v.
     Kantor, 264 Ark. 275, 571 S.W.2d 82 (1978).
K.W. v. State, 327 Ark. 205, 207, 937 S.W.2d 658, 659-60 (1997). 
See also Tucker v. Lake View Sch. Dist. No. 25, 323 Ark. 693, 917 S.W.2d 530 (1996); Walker v. Kazi, 316 Ark. 616, 875 S.W.2d 47
(1994).
     In addition, this court has held on numerous occasions that an
order that contemplates further action by a party or the court is
not a final, appealable order.  See, e.g., K.W. v. State, supra
(order imposing conditions on a juvenile pending release prior to
a plea date not final); Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992)(order requiring appellant to execute a quitclaim deed to
appellee or appear on a later date to show cause why a
commissioner's deed should not issue not final); Ragar v. Hooper-
Bond Ltd. Partnership Fund III, 293 Ark. 182, 735 S.W.2d 706
(1987)(an order stating that a money judgment is subject to further
claims for expenses is not final).
     This is particularly true when the trial court has reserved
judgment on damages or failed to reduce a damage award to a
liquidated sum.  See, e.g., Office of Child Support Enforcement v.
Oliver, 324 Ark. 447, 921 S.W.2d 602 (1996)(failure to resolve the
amount of an arrearage); John Cheeseman Trucking, Inc. v. Dougan,
305 Ark. 49, 805 S.W.2d 69 (1991)(bifurcating issues of liability
and damages); Thomas v. McElroy, 243 Ark. 465, 420 S.W.2d 530
(1967)(failure to resolve an award of damages).
     In the instant case, the circuit court's order on its face
contemplates further legal action to perfect title in the Firebird. 
The circuit court's order also does not reflect (1) the daily rate
of storage at Kisling Automotive, (2) the number of days the 1977
Firebird was stored, and (3) a final, liquidated sum of costs to be
charged to Payne.  Clearly, a blanket determination that Payne must
pay the storage costs would only invite a subsequent appeal
regarding the amount of fees assessed.  The proscription against
piecemeal appeals renders this appeal deficient under Ark. R. App.
P.--Civ. 2.  Accordingly, this court is without jurisdiction.
     Appeal dismissed without prejudice.