Mark Jackson and Kingridge Enterprises, Inc. v. Iberiabank

2020 Ark. App. 372

• Court: Court of Appeals of Arkansas
• Decided: September 2, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 372 Reason: I attest to the accuracy and integrity of this ARKANSAS COURT OF APPEALS document Date: 2021-07-08 08:50:08 Foxit PhantomPDF Version: DIVISION I 9.7.5 No. CV-19-662

Opinion Delivered: September 2, 2020

MARK JACKSON AND KINGRIDGE APPEAL FROM THE PULASKI ENTERPRISES, INC. COUNTY CIRCUIT COURT, APPELLANTS SEVENTEENTH DIVISION [NO. 60CV-16-5251] V. HONORABLE MACKIE M. PIERCE, JUDGE IBERIABANK APPELLEE APPEAL DISMISSED WITHOUT PREJUDICE

KENNETH S. HIXSON, Judge

Appellant Mark Jackson appeals from an order of summary judgment entered in favor

of appellee IberiaBank wherein the trial court awarded judgment against Jackson for

$629,677.39 plus interest and other charges. The judgment arose from separate defendant

Kingridge Enterprises’ (Kingridge’s) default on a promissory note, the payment of which

was personally guaranteed by Jackson.1 The order being appealed, however, is not final and

appealable because IberiaBank’s claims against Kingridge have not yet been disposed of by

the trial court. Therefore, we dismiss the appeal.

In August 2013, IberiaBank’s predecessor in interest, Trust One Bank, extended an

open-ended line of credit to Kingridge. Simultaneously, Kingridge executed and delivered

1 Jackson is Kingridge’s president and CEO. to Trust One Bank a promissory note and security agreement in the principal amount of

$650,000. To secure repayment of the promissory note, Kingridge granted Trust One Bank

a security interest in all of its equipment and accounts. To further secure repayment of the

promissory note, Jackson executed a guaranty whereby he guaranteed full and prompt

payment of the debts when due. In January 2014, IberiaBank acquired Trust One Bank’s

interests and obligations pertaining to the promissory note and collateral.

The promissory note matured in August 2014, at which time Kingridge was in

default. The parties subsequently entered into a series of forbearance agreements whereby

the parties agreed to modify the payment terms and maturity date. Under the last of the

parties’ forbearance agreements, the maturity date was extended to April 2016. According

to IberiaBank, Kingridge remained in default in April 2016.

In September 2016, IberiaBank filed a complaint against Kingridge and Jackson

alleging failure to perform their obligations under the promissory note and guaranty.

IberiaBank sought a judgment in personam against Kingridge and Jackson, jointly and

severally, and a judgment in rem against certain personal property belonging to Kingridge.

In June 2017, Kingridge filed for bankruptcy, and an automatic stay was issued that

prevented IberiaBank from pursuing Kingridge in the lawsuit during the stay. However,

Jackson did not file for bankruptcy, and the automatic stay did not apply to him.

In March 2018, IberiaBank filed a motion for summary judgment against only

Jackson, alleging that Jackson had breached the terms of the guaranty. In support of its

motion, IberiaBank provided copies of the promissory note and guaranty. IberiaBank also

attached to its motion the affidavit of its vice president for the special assets department,

2 Mark Reiber. In Reiber’s affidavit, he averred that Kingridge had defaulted on the

promissory note and forbearance agreements, and that despite demand, Jackson had refused

to pay the obligations under the promissory note and guaranty. Reiber stated in his affidavit

that there remained $629,677.39 in unpaid principal under the promissory note, along with

interest and other charges. Jackson filed a response opposing IberiaBank’s motion for

summary judgment, and a hearing was held on the motion.

In December 2019, the trial court entered summary judgment against separate

defendant Mark Jackson. In its order, the trial court found that there were no genuine issues

as to any material fact and that IberiaBank was entitled to judgment against Jackson as a

matter of law. The trial court awarded IberiaBank a judgment against Jackson for

$629,677.39 plus interest and other charges. Jackson now appeals from the order of

summary judgment, arguing that it should not have been entered because issues of material

fact remained and discovery was incomplete. However, Jackson has appealed from a

nonfinal order.

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.

Although the parties did not raise the issue, the question of a final order is a jurisdictional

requirement that the appellate court raises on its own in order to avoid piecemeal litigation.

Stebbins v. Stebbins, 2017 Ark. App. 428. Arkansas Rule of Civil Procedure 54(b) provides

that when more than one claim for relief is presented in an action or when multiple parties

are involved, an order that adjudicates fewer than all the claims or the rights and liabilities

of fewer than all the parties is not a final, appealable order. Specifically, our supreme court

3 has held that a summary-judgment order is not a final, appealable order when the order does

not dispose of the complaints against all of the defendants. Searcy Cty. Counsel for Ethical

Gov’t v. Hinchey, 2011 Ark. 533. Although Rule 54(b) provides a method by which the

trial court may direct entry of a final order as to fewer than all the claims or parties, where

there is no attempt to comply with those provisions of Rule 54(b), the order is not final,

and we must dismiss the appeal. Jerry v. Jerry, 2014 Ark. App. 63.

The summary-judgment order entered by the trial court failed to dispose of the

claims against Kingridge, and there was no accompanying Rule 54(b) certificate directing a

final order as to fewer than all the claims or parties. We acknowledge that pursuant to Rule

54(b)(5), any claim against a named but unserved defendant is dismissed by the trial court’s

final judgment or decree. However, that rule is inapplicable here because the record

conclusively shows that both Kingridge and Jackson were served via warning order. For

these reasons, the order is not a final, appealable order, and we are barred from considering

the appeal.

We note that Kingridge’s bankruptcy does not affect the lack of finality. Rather, it

simply suspends the trial court’s jurisdiction, subject to that jurisdiction being restored.

Yarbrough v. Powell, 2015 Ark. App. 218, 459 S.W.3d 329. Thus, while IberiaBank’s claims

against Kingridge were stayed by the bankruptcy court when the summary-judgment order

on appeal was entered, those claims remained pending, and the trial court could reacquire

the ability to rule on them at any time. See id. We have consistently held that an order is

not final when it fails to dispose of all the parties, even if those parties are under a bankruptcy

stay, in the absence of a Rule 54(b) certificate containing an express determination that there

4 is no just reason for delay. See Ballard v. Ally Financial, Inc., 2016 Ark. App. 539, 505 S.W.3d

247; Odom v. First Nat’l Bank in Little Rock, 5 Ark. App. 35, 631 S.W.2d 846 (1982).

Our supreme court has repeatedly held that it is not enough to dismiss some of the

parties or to dispose of some of the claims; to be final and appealable, an order must cover

all of the parties and all of the claims. J-McDaniel Constr. Co. v. Dale E. Peters Plumbing Ltd.,

2013 Ark. 177. Because a final order has not been entered disposing of all the parties and

claims, we lack jurisdiction of this appeal, and it must be dismissed.

Appeal dismissed without prejudice.

WHITEAKER and MURPHY, JJ., agree.

David M. Littlejohn, for appellant.

Quattlebaum, Grooms & Tull PLLC, by: Geoffrey B. Treece and Mary-Tipton

Thalheimer, for appellee.