Green v. Stueve

2017 Ark. App. 167

• Court: Court of Appeals of Arkansas
• Decided: March 15, 2017
• Docket: CV-16-716
• Status: Published

Opinion

Cite as 2017 Ark. App. 167

ARKANSAS COURT OF APPEALS DIVISION III CV-16-716 No.

Opinion Delivered: March 15, 2017 JOHN CECIL GREEN AND GAIL GREEN APPEAL FROM LOGAN APPELLANTS COUNTY CIRCUIT COURT, NORTHERN DISTRICT V. [NO. 42PCV-13-66]

DAVID STUEVE APPELLEE HONORABLE DAVID MCCORMICK, JUDGE

DISMISSED WITHOUT PREJUDICE

BART F. VIRDEN, Judge

This 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 final order.

This 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 Cite as 2017 Ark. App. 167

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.

Stueve 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.

The 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.

In our 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.

2 Cite as 2017 Ark. App. 167

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.

Since 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 the nonsuit.

The 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.

Rule 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.

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We also 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 particularly as it relates

to the addendum to ensure that there are no additional deficiencies.

Dismissed without prejudice.

GRUBER, C.J., and WHITEAKER, J, agree.

Hogue Law Firm, PLLC, by: Joshua L. Bailey, for appellants.

Rush & Rush, by: David L. Rush, for appellee.