Belk v. Belk

2017 Ark. App. 272

• Court: Court of Appeals of Arkansas
• Decided: May 3, 2017
• Docket: CV-16-429
• Status: Published

Opinion

Cite as 2017 Ark. App. 272

ARKANSAS COURT OF APPEALS DIVISION III No. CV-16-429

ANNA J. BELK Opinion Delivered: MAY 3, 2017 APPELLANT APPEAL FROM THE PERRY V. COUNTY CIRCUIT COURT [NO. 53CV-13-22] RONALD L. BELK ET AL. APPELLEES HONORABLE WENDELL GRIFFEN, JUDGE

DISMISSED WITHOUT PREJUDICE

N. MARK KLAPPENBACH, Judge

In this appeal, appellant raises several challenges stemming from the circuit court’s

order granting summary judgment in favor of appellees. 1 However, we cannot reach the

merits of this appeal because we are without a final, appealable order. Therefore, we must

dismiss the appeal without prejudice.

A complete recitation of the facts giving rise to this appeal is not necessary here but

may be found in Belk I. In Belk I, our court dismissed appellant’s appeal for lack of a final

order because appellees had merely dismissed without prejudice their compulsory

counterclaim for slander of title. The voluntary dismissal without prejudice of a compulsory

counterclaim does not operate to make the court’s order final and appealable under Arkansas

Rule of Civil Procedure 54(b). Belk I (citing Crockett v. C.A.G. Invs., Inc., 2010 Ark. 90,

1 The case returns to our court after a previous dismissal without prejudice. See Belk v. Belk, 2015 Ark. App. 682, 476 S.W.3d 861 (Belk I). Cite as 2017 Ark. App. 272

361 S.W.3d 262, and Bevans v. Deutsche Bank Nat’l Trust Co., 373 Ark. 105, 281 S.W.3d

740 (2008)).

After our court dismissed Belk I, the case returned to the Perry County Circuit Court.

Appellant filed an unopposed motion for a Rule 54(b) certificate, and a stand-alone Rule

54(b) certificate was filed of record on March 17, 2016. Appellant filed a notice of appeal

from the Rule 54(b) certificate.

A proper Rule 54(b) certificate grants finality to a judgment that is otherwise not

final for appellate purposes. Arkansas Rule of Civil Procedure 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) (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.

Here, 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 is insufficient to vest jurisdiction with this court, and we must dismiss this appeal

due to lack of a final order.

Dismissed without prejudice.

WHITEAKER and BROWN, JJ., agree.

Rose Law Firm, a Professional Association, by: Byron J. Walker and Victoria H. Jones, for appellant.

Joseph Hamilton Kemp, PLLC, by: Joseph Hamilton Kemp, for appellees. 2