FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. CV-14-113-2]
HONORABLE DOUG MARTIN, JUDGE
Davidson Law Firm, by: Stephanie Ann Linam, for appellant.
& Co., PLLC, by: Tim Cullen, for appellee.
F. VIRDEN, Judge
we dismissed an earlier appeal for lack of a final order,
Jacobs v. Collison, 2015 Ark.App. 420, Ruth Jacobs
again appeals the Washington County Circuit Court's
dismissal of her complaint against appellee Derek Collison.
We must once again dismiss the appeal for lack of a final
facts and procedural history are set out in our earlier
opinion and need not be repeated here. On remand, Collison
filed a notice that he was voluntarily dismissing his
counterclaim without prejudice. An order dismissing the
counterclaim was entered on November 20, 2015. On December 8,
2015, the court executed a stand-alone Rule 54(b)
certificate. The certificate was not attached to the order
dismissing the counterclaim and did not explain why an
immediate appeal was needed. The court did note that it was
attempting to dispose of a lis pendens claim. An amended
order of dismissal was entered on December 28, 2015. The
order stated that it was amending the November 20, 2015 order
dismissing Collison's counterclaim without prejudice so
that the Rule 54(b) certificate would immediately follow the
judge's signature. The Rule 54(b) certificate is
identical to the standalone certificate executed on December
8, 2015. Jacobs timely filed her notice of appeal.
party has raised the issue, but whether an order is final for
appeal purposes is a jurisdictional point that we must often
raise on our own. See Hankook Tire Co., Ltd. v.
Philpot, 2016 Ark.App. 386, ___ S.W.3d ___. Rule 2(a)(1)
of the Arkansas Rules of Appellate Procedure-Civil states
that an appeal may-absent some exceptions that do not
apply-be taken from a final judgment or decree. A final order
is one that dismisses the parties, discharges them from the
action, or concludes their rights to the subject matter in
controversy. Davis v. Brown, 2011 Ark.App. 789.
Absent a final order or a properly executed certificate from
the circuit court making an "express determination,
supported by specific factual findings, that there is no just
reason for delay, " an order that fails to adjudicate
all of the parties' claims cannot be appealed. Ark. R.
Civ. P. 54(b).
are actually three finality problems. The first is that the
amended order dismissing Collison's counterclaim does not
actually dismiss the counterclaim. Instead, it merely states
that it is amending the order dismissing the counterclaim to
add the Rule 54(b) certificate. Because the order is not
"one that dismisses the parties, discharges them from
the action, or concludes their rights to the subject matter
in controversy, " McGann v. Pine Bluff Police
Dep't, 334 Ark. 352, 355, 974, S.W.2d 462, 463
(1998), it is not final for purposes of appeal.
second problem is that the counterclaim was dismissed without
prejudice. Our supreme court has held that an order was not a
final, appealable order when a defendant nonsuited her
compulsory counterclaims, and the circuit court order
addressed only the plaintiff's claims. Bevans v.
Deutsche Bank Nat'l Tr. Co., 373 Ark. 105, 107, 281
S.W.3d 740, 742 (2008). In Bevans, the supreme court
stated that even a written order reflecting that the
defendant's compulsory counterclaims were dismissed
without prejudice would not have cured the finality problem
because the compulsory counterclaims could be refiled later.
rule, a compulsory counterclaim is
any claim which, at the time of filing the pleading, the
pleader has against any opposing party, if it arises out
of the transaction or occurrence that is the subject matter
of the opposing party's claim and does not require
for its adjudication the presence of third parties of whom
the court cannot acquire jurisdiction.
Ark. R. Civ. P. 13(a) (emphasis added). Here, the circuit
court could not address Collison's counterclaim for
Jacobs's eviction from the home without also addressing
whether Jacobs had an interest in the home. Collison remains
free to refile his counterclaim in the event that Jacobs
somehow returns to occupy the home. Therefore, Collison's
counterclaim was a compulsory counterclaim such that the
dismissal of it without prejudice does not achieve finality.
third problem with the order dismissing Collison's
counterclaim deals with the sufficiency of the Rule 54(b)
certificate: it does not contain any factual findings that
explain why hardship or injustice would result if an
immediate appeal is not permitted. Our supreme court has held
that the discretionary power of the circuit court to direct
finality is to be exercised infrequently and only in harsh
cases. Robinson v. Villines, 2012 Ark. 211. When a
certificate is void of specific factual findings as to the
existence of danger of hardship or injustice that could be
alleviated by an immediate appeal, the appellate court
dismisses the appeal for lack of appellate jurisdiction.
Id.; see also Stratton v. Ark. State Highway
Comm'n, 323 Ark. 740, 917 S.W.2d 538 (1996);
Davis v. Wausau Ins. Cos., 315 Ark. 330, 867 S.W.2d
444 (1993). Here, the amended order merely states a
conclusion that an injustice would result and does not
reference any hardship that ...