FROM THE NEVADA COUNTY CIRCUIT COURT [NO. 50CV-14-64]
HONORABLE RANDY WRIGHT, JUDGE.
Bequette & Billingsley, P.A., by: George J. Bequette,
Jr., and W. Cody Kees for appellant.
Harrelson Law Firm, P.A., by: Steve Harrelson, for appellee.
PHILLIP T. WHITEAKER, JUDGE.
Prescott School District ("the District") appeals a
Nevada County jury award in favor of Patricia Steed on her
breach-of-contract action. We have this case before us for
the second time. We dismissed the first appeal for lack of a
final, appealable order because it was unclear from the
record that (1) Steed's Arkansas Teacher Fair Dismissal
Act ("ATFDA") and outrage claims had been dismissed
with prejudice; (2) that the one-year savings statute on
those dismissals had not yet expired; and (3) that no
Arkansas Rule of Civil Procedure 54(b) certificate had been
entered. See Prescott Sch. Dist. v. Steed, 2017
our dismissal, the District requested that the circuit court
enter a Rule 54(b) certificate. The court granted the request
in a stand-alone order on November 8, 2017. The court found
that the savings statute would not run on Steed's
remaining claims until December 9, 2017; that she had not
shown any intent to refile those claims; and that forcing the
District to wait until December 9, 2017, to restart the
appeal process would result in an unnecessary waste of time
for all parties.
District filed a notice of appeal from the Rule 54(b)
certificate. We must once again dismiss the appeal for lack
of a final, appealable order because the Rule 54(b)
certificate in this case is insufficient in both form and
substance. The sufficiency of a certificate pursuant to Rule
54(b) of the Arkansas Rules of Civil Procedure is a
jurisdictional issue that this court has the duty to raise,
regardless of whether it is raised by the parties.
Kowalski v. Rose Drugs of Dardanelle, Inc., 2009
Ark. 524, 357 S.W.3d 432.
2(a)(1) of the Arkansas Rules of Appellate Procedure-Civil
provides that an appeal may be taken from a final judgment or
decree entered by the circuit court. Ark. R. App. P.-Civ.
2(a)(1) (2017). Although the purpose of requiring a final
order is to avoid piecemeal litigation, a circuit court may
certify an otherwise nonfinal order for an immediate appeal
by executing a certificate pursuant to Rule 54(b). Gray
v. White River Health Sys., Inc., 2016 Ark. 73, 483
proper Rule 54(b) certificate grants finality to a judgment
that is otherwise not final for appellate purposes. Rule
54(b)(1) requires that a proper certificate
"shall appear immediately after the court's
signature on the judgment." Ark. R. Civ. P. 54(b)(1)
(2017) (emphasis added). The word "shall" when used
in our rules of civil procedure is construed to mean that
compliance is mandatory. Watkins v. City of
Paragould, 2013 Ark.App. 539. "The plain language
of the rule therefore requires that the certificate be
located on the judgment, after the court's
signature." Id. at 3.
the Rule 54(b) certificate does not comply with our rules.
"It was not attached to the court's order; nor did
it reiterate the findings and conclusions of law from the
order, or incorporate or replicate the order in any
way." Id. at 2. Accordingly, the Rule 54(b)
certificate before us in its current form is insufficient to
vest jurisdiction with this court.
Rule 54(b) certificate is also inadequate because it does not
provide a proper justification for its entry. Rule 54(b)
provides, in pertinent part, that the circuit court may
direct the entry of a final judgment "only upon an
express determination supported by specific factual findings,
that there is no just reason for delay and upon an express
direction for the entry of judgment." Ark. R. Civ. P.
54(b); see also Holbrook v. Healthport, Inc., 2013
Ark. 87. Furthermore, the court must execute a certificate
"which shall set forth the factual findings upon which
the determination to enter the judgment as final is
based[.]" Ark. R. Civ. P. 54(b). Our supreme court has
repeatedly held that "the rule requires the order to
include specific findings of any danger of hardship or
injustice that could be alleviated by an immediate appeal and
to set out the factual underpinnings that establish such
hardship or injustice." Gray, 2016 Ark. 73, at
3, 483 S.W.3d at 295; see also Kyle v. Gray, Ritter &
Graham, P.C., 2012 Ark. 268. In Bushee v. Arkansas
Department of Human Services, 2016 Ark.App. 339, at 4,
492 S.W.3d 559, 562, we further explained that the circuit
court must "tie [its] findings to its conclusion."
In other words, the certificate must "explain exactly
what constitutes the hardship or injustice or explain how it
could be alleviated by an immediate appeal."
certificate executed by the circuit court is woefully
inadequate. It merely provides that "there is no just
reason for delay on the District's appeal of the judgment
and because there is substantial likelihood of hardship or
injustice which would be alleviated by an immediate
re-appeal." The circuit court then stated that if it did
not enter the Rule 54(b) certificate, "the District
would have to wait until December 9, 2017 to essentially
re-start the appeal process, which is an unnecessary waste of
time for all parties." The Rule 54(b) certificate was
entered approximately one month before the expiration of the
savings statute. Such a short time period is not a
satisfactory reason for the entry of such an order. Thus,
even if the certificate had complied with Rule 54(b)'s
requirements as to form, we do not find this court's
the Rule 54(b) certificate is insufficient in both form and
substance, we ...