Benjamin H. Jordan, Sr. et al. v. Carrie Thomas

Annotate this Case
                 Benjamin H. JORDAN, Sr., d/b/a 
           Mid-South Masonry & Mechanical Company and 
        Amwest Surety Insurance Company v. Carrie THOMAS 

 

98-139                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 12, 1998


1.   Appeal & error -- judgment not appealable order -- all claims
     of parties must be adjudicated. -- The supreme court concluded
     that the trial court's May 29, 1997, decree, which granted
     judgment in favor of appellee, was not appealable because it
     did not adjudicate all of the claims of the parties; the trial
     court did not enter an order dismissing appellant's
     counterclaim until July 1, 1997.

2.   Motions -- rule on clerk -- tender of record timely -- clerk
     erred in refusing to docket appeal and file record. -- Where
     the trial court did not enter an order dismissing appellant's
     counterclaim until July 1, 1997, appellant filed a notice of
     appeal from the July 1 order on July 31, 1997, and he
     attempted to tender the record on October 29, 1997, the
     ninetieth day following his notice of appeal, under Rule 5 of
     the Rules of Appellate Procedure, appellant's tender of the
     record was timely, and the clerk erred in refusing to docket
     the appeal and file the record; the motion to rule on the
     clerk was granted in part.

3.   Appeal & error -- corporation must be represented by licensed
     attorney -- appellant could not perfect appeal. -- Appellant
     individual could not perfect an appeal on behalf of appellant
     corporation because a corporation must be represented by a
     licensed attorney, and appellant was not an attorney. 


     Motion for Rule on the Clerk; granted in part.
     Benjamin Jordan, Sr., for appellants.
     Skokos, Bequette & Billingsley, P.A., by:  Keith I.
Billingsley, for appellee.

     Per Curiam.
     Appellant Benjamin Jordan, Sr., has filed a motion for a rule
on the clerk.  The motion reflects that on May 29, 1997, the
Pulaski County Circuit Court entered a judgment in favor of
appellee Carrie Thomas on her claim against appellants for breach
of a construction agreement.  Subsequently, the trial court entered
an order dismissing Jordan's personal counterclaim for damages on
July 1, 1997.  Jordan tendered the record from the trial court to
the clerk of this court on October 29, 1997; however, the clerk
refused to accept the tender of the record on the basis that it was
untimely.  Jordan did not pursue the matter until February 6, 1998,
when he filed his motion for rule on the clerk. 
     Upon our review of the record, we conclude that the trial
court's May 29, 1997, decree, which granted judgment in favor of
appellee, was not appealable because it did not adjudicate all of
the claims of the parties.  See Ark. R. Civ. P. 54(b); String v.
Kazi, 312 Ark. 6, 846 S.W.2d 649 (1993).  The trial court did not
enter an order dismissing Jordan's counterclaim until July 1, 1997. 
Jordan filed a notice of appeal from the July 1 order on July 31,
1997, and he attempted to tender the record on October 29, 1997,
the ninetieth day following his notice of appeal.  Under Rule 5 of
the Rules of Appellate Procedure, Jordan's tender of the record was
timely, and the clerk erred in refusing to docket the appeal and
file the record.  However, we note that Jordan cannot perfect an
appeal on behalf of Amwest Surety Insurance Company because a
corporation must be represented by a licensed attorney.  See
McAdams v. Pulaski County Circuit Court, 330 Ark. 848, 956 S.W.2d 869 (1997) (per curiam).  Jordan is not an attorney, and he cannot
perfect an appeal on behalf of the corporation.  Accordingly, the
motion for rule on the clerk is granted in part.