FROM LOGAN COUNTY CIRCUIT COURT, NORTHERN DISTRICT [NO.
42PCV-13-66] HONORABLE DAVID MCCORMICK, JUDGE
Law Firm, PLLC, by: Joshua L. Bailey, for appellants.
& Rush, by: David L. Rush, for appellee.
F. VIRDEN, Judge
case is before us again after we previously dismissed it due
to the lack of a final order. See Green v. Stueve,
2016 Ark.App. 46. In this appeal, John and Gail Green assert
that the Logan County Circuit Court clearly erred when it set
aside two deeds conveying property from appellee David Stueve
to John Green. We again dismiss the appeal for lack of a
case began in 2013 when Anita Fay, David Stueve's sister,
filed a petition against Stueve and the Greens seeking
partition of a 120-acre tract of property. Fay asserted that
she and Stueve had been deeded the property in 1996 as joint
tenants with right of survivorship. Stueve later conveyed his
interest to Green per two deeds, but Stueve remained in
possession of the property. Fay requested that she be awarded
one-half of the mineral interest and one-half of the proceeds
of a sale of the surface property. Fay also requested that
the Greens and/or Stueve be enjoined and restrained from
further engaging in timber removal and significant
landscaping activity, which had changed the topography and
natural state of the property. Lastly, Fay alleged that she
was entitled to judgment for any damage to the property as a
result of the landscaping activities and for her
proportionate share of any timber removed from the property.
filed a cross-claim against the Greens alleging that the
deeds were obtained by fraud, deception, and undue influence
and that there was a failure of consideration. He sought for
the deeds to be set aside and for actual and punitive damages
as a result of John Green's conduct. Green then filed a
cross-claim against Stueve, alleging that he had performed
work and invested funds in the property in return for the
deeds. Green requested that Stueve be ordered to reimburse
him if he was required to surrender title.
trial court entered an order on October 22, 2014, stating
that the issues raised by Fay versus Stueve and the Greens
were continued and would be reset for trial following the
court's ruling on the issues of property ownership
between Stueve and the Greens. A bench trial was held on the
cross-claims, and the trial court entered an order setting
aside the deeds from Stueve upon finding that Green had
exercised undue influence and that there was a failure of
consideration. On Green's cross-claim, the trial court
awarded him a $10, 125 judgment for trackhoe work done on the
property. The order stated that the partition action was
reserved and would be heard at a later date. Green appealed
from this order. Stueve filed a motion to dismiss the appeal,
asserting that the trial court's order setting aside the
deeds was not a final order.
prior opinion, we held that the order was not final because
Fay's claims for partition, an injunction, and damages
against both Stueve and the Greens were still pending. We
held that "once these claims are resolved, a judgment
can be entered from which the Greens may take an
appeal." Green, 2016 Ark.App. 46, at 3.
the dismissal of the prior appeal, Stueve conveyed his
interest in the property to Stephen Haller. Also, on May 11,
2016, Fay filed a motion to voluntarily dismiss her complaint
for partition, and on May 17, 2016, the trial court granted
issue of finality remains. Stueve's claim for damages has
not been resolved as far as we can tell from our review of
the record. As we set forth before, this must be resolved
before the order is final and appealable. Furthermore, though
it is difficult to imagine a circumstance where Fay might
refile her claim for partition now that she has divested
herself of her interest in the disputed property, a nonsuit
is not a dismissal with prejudice, and technically it is
possible for Fay to refile; thus, this issue of finality
remains. See Crockett v. C.A.G. Invs., Inc., 2010
Ark. 90, at 10, 361 S.W.3d 262, 267.
2(a)(1) of the Arkansas Rules of Appellate Procedure-Civil
provides that an appeal may be taken only from a final
judgment or decree entered by the trial court. J-McDaniel
Constr. Co. v. Dale E. Peters Plumbing Ltd., 2013 Ark.
177. Under Arkansas Rule of Civil Procedure 54(b), an order
that fails to adjudicate all the claims as to all the
parties, whether presented as claims, counterclaims,
cross-claims, or third-party claims, is not final for
purposes of appeal. Id. Although Rule 54(b) provides
a method by which the trial court may direct entry of final
judgment as to fewer than all the claims or parties, where
there is no attempt to comply with Rule 54(b), the order is
not final, and we must dismiss the appeal.
note that the notice of appeal was not included in the
addendum as required by Arkansas Supreme Court Rule 4-2 and
that the page numbers in the addendum were not always
visible. If appellant chooses to refile when the finality
issues have been resolved, counsel is strongly encouraged to
review Rule 4-2 in its entirety and ...