Covenant Presbytery v. First Baptist Church

2014 Ark. App. 301

• Court: Court of Appeals of Arkansas
• Decided: May 14, 2014
• Docket: CV-13-1009
• Status: Published

Opinion

2014 Ark. App. 301

ARKANSAS COURT OF APPEALS DIVISION II No. CV-13-1009

Opinion Delivered May 14, 2014

COVENANT PRESBYTERY APPEAL FROM THE MISSISSIPPI APPELLANT COUNTY CIRCUIT COURT, OSCEOLA DISTRICT V. [NO.CV-11-101]

FIRST BAPTIST CHURCH, HONORABLE RANDY F. OSCEOLA, ARKANSAS PHILHOURS, JUDGE APPELLEE/CROSS-APPELLANT

V. APPEAL DISMISSED; CROSS-APPEAL SUN TRUST BANK, AS TRUSTEE DISMISSED UNDER THE WILL OF STANLEY D. CARPENTER APPELLEE/CROSS-APPELLEE

BRANDON J. HARRISON, Judge

Covenant Presbytery appeals a July 2013 order entered in favor of First Baptist

Church, Osceola, Arkansas. First Baptist Church cross-appeals the same order, portions of

which favor Sun Trust Bank. Because the circuit court’s order is not a final one for

appellate-review purposes, we dismiss the direct appeal and the cross-appeal without

prejudice.

Sun Trust Bank, acting as trustee under Stanley Carpenter’s will, filed a Petition

and Request for Instructions and Declaration of Rights in Mississippi County Circuit

Court, Civil Division, in 2011. Sun Trust, among other things, asked the court to

interpret a testamentary trust that Carpenter’s will allegedly established in 1965. The 1 2014 Ark. App. 301

alleged trust involves 238 acres of farmland near Osceola, Arkansas. Sun Trust asked the

court to determine the rights of two beneficiaries who hold a remainder interest in the

farmland pursuant to Paragraph VII in Carpenter’s will. More specifically, the petition

asked the court to construe the last sentence of Paragraph VII and determine if Sun Trust

had the discretion to sell the farm property and distribute the sale proceeds while Carolyn

Schabel was still living; Schabel is the sole remaining life tenant.

No party has raised the issue, but whether an order is final for appeal purposes is a

jurisdictional point that we often raise on our own. Rule 2(a)(1) of the Arkansas Rules of

Appellate Procedure–Civil (2013) 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”—which we do not have—an order that fails to adjudicate all of the parties’ claims

cannot be appealed. Ark. R. Civ. P. 54(b) (2013). The circuit court’s July 2013 order is

not a final one because it does not adjudicate all of Sun Trust’s claims for declaratory

judgment—including the critical issue of whether Sun Trust has the discretion, under the

will’s terms, to sell the farm property and distribute the sale proceeds during Carolyn

Schabel’s life. The order only addresses distribution of the income stream that the farm

generates. It does not, in the words of Sun Trust’s attorney, decide the “ultimate

2 2014 Ark. App. 301

disposition” of the farm. This oversight is an entrenched jurisdictional defect that we

cannot overlook. Stephens v. Bredemeyer, 2011 Ark. App. 727.

There is a second finality-related problem. Sun Trust amended its petition and

named the Arkansas Attorney General as a party because Sun Trust thought that the

Carpenter testamentary trust may be a charitable trust under Ark. Code Ann. § 28-73-

110(d) (Repl. 2009). Arkansas Rule of Civil Procedure 54(b)(5) (2013) provides that a

claim against a named-but-unserved defendant is dismissed by the circuit court’s final

judgment or decree. Here, however, the record is murky on whether the Attorney

General was served. A bare-bones summons sheet in the record shows that some party

was served the same day that Sun Trust amended its petition and named the Attorney

General as a party. But that summons sheet does not indicate who was served and with

what. Moreover, the record we have does not contain an order that dismisses the

Attorney General from this case. So we cannot tell whether the Attorney General was a

served or unserved defendant. This uncertainty creates a second jurisdictional problem.

Hotfoot Logistics, LLC v. Shipping Point Mktg., Inc., 2012 Ark. 76.

Appeal dismissed; cross-appeal dismissed.

PITTMAN and GRUBER, JJ., agree.

Sanford Law Firm, PLLC, by: Josh Sanford, for appellant.

Mike Gibson; and Branch, Thompson, Warmath & Dale, P.A., by: Robert F. Thompson III, for appellee First Baptist Church, Osceola, Arkansas.

Rose Law Firm by: Craig S. Lair and Bourgon B. Reynolds, for cross-appellee SunTrust Bank.