ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION III

FLEMING COMPANIES, INC.

APPELLANT

V.

TUCKER ABSTRACT COMPANY

APPELLEE

CA 00-959

April 4, 2001

APPEAL FROM THE BENTON

COUNTY CHANCERY COURT

[E99-1833-1]

HONORABLE OLIVER LEE

ADAMS, JR., CHANCELLOR

APPEAL DISMISSED

Appellant, Fleming Companies, Inc., appeals from the trial court's July 26, 2000, grant of summary judgment to appellee, Tucker Abstract Company. We dismiss the appeal as premature because this case involves multiple parties and multiple claims that have not been adjudicated, yet the order granting summary judgment does not contain a Rule 54(b) certification.

This matter arose out of a real estate transaction in which appellee, Tucker Abstract Company, served as the closing agent and also provided title insurance. The actual sale of property was between the Cooksey Family Revocable Living Trust, as seller, and Crossroads Enterprises, Inc., as buyer. The transaction became complicated by the fact that Barry Cooksey was a co-trustee of the trust and a principal shareholder of Crossroads Enterprises,

and according to appellant both Barry Cooksey, individually, and another company in which he was a principal officer, Barry's Enterprises, Inc. ("BEI"), were indebted to appellant pursuant to a note and guaranty. That is, appellant is a grocery supplier that supplied products to "Barry's IGA" (BEI). According to appellant, BEI had defaulted and Barry Cooksey had personally guaranteed payment of the indebtedness. As part of the financial arrangement between appellant and BEI/Barry Cooksey, appellant held an option-to-lease agreement and also had a recorded UCC fixture filing in its favor, both of which related to the facility that housed Barry's IGA and was the subject of the real estate transaction between the Cooksey Family Trust and Crossroads Enterprises. The UCC filing related to personal property in the store, and the option to lease was due to expire by its own terms on October 13, 1999. Appellant apparently had no mortgage or lien interest on the real property that was the subject of the sale.

Appellee, Tucker Abstract, initially required as a condition of closing and providing title insurance that appellant release its option to lease and its interests in the fixtures associated with the real property that was the subject of the transaction between the Cooksey Family Trust and Crossroads Enterprises. A telefax from appellant dated September 10, 1999, the date of closing, provided:

As requested by Barry Cooksey, please be advised that the payoff amount for all obligations due to Fleming Companies, Inc. from Barry's Enterprises, Inc. as of September 9, 1999 is $291,288.84. Interest accrues at $22.68 per diem until paid. When good funds are received in the aforesaid amount, Fleming Companies, Inc. will release UCC filing #98-099779. We will also release the Option to Lease and consent to termination of the lease between Barry and Jolene Cooksey and Barry's Enterprises, Inc.

As part of the closing, it was initially arranged that $291,288.84 of the proceeds of the real estate transaction would be wired to appellant on September 13, 1999. However, before the funds were wired, Barry Cooksey's attorney instructed appellee not to wire the money until he could clarify whether there was any need or obligation for appellant's debt to be paid at the closing of that real estate transaction.

Soon thereafter appellee was faced with competing demands for the funds from appellant, on the one hand, and the Cooksey Family Trust, Barry Cooksey and Debra Cooksey, trustees, on the other. These competing interests prompted appellee on October 14, 1999, to file its Petition for Interpleader, which lies at the heart of the instant appeal.

The parties named as defendants in the interpleader action were: 1) Appellant, Fleming Companies, Inc.; and 2) The Cooksey Family Revocable Living Trust, dated March 4, 1999, Barry Cooksey and Debra Cooksey, Trustees. The Cooksey Family Trust's response to the interpleader action was that it had no objections to the funds being paid into the registry and that those funds should then be paid to Barry Cooksey's ex-wife, Jolene, pursuant to previous orders of the court related to their divorce action.

Appellant responded to the interpleader action and, in addition, filed a counterclaim against appellee and a third-party complaint against Barry Cooksey, seeking, among other things, compensatory and punitive damages. Appellee answered the counterclaim filed against it by appellant. The Cooksey Family Trust and Barry Cooksey answered the third-party complaint and filed their own counterclaim against appellant, in which they alleged thatthe underlying note upon which appellant based its claim was usurious, that BEI was a necessary party to any action to determine the obligations under that note, and that appellant's wrongful claims had damaged them such that they should be awarded compensatory and punitive damages.

At some point, Jolene Cooksey Reddish, Barry Cooksey's ex-wife, moved to intervene in the action. Her motion was granted.

On December 30, 1999, the Cooksey Family Trust and the third-party defendant, Barry Cooksey, filed a motion for summary judgment "on the portion of Fleming Companies, Inc. Counterclaim and Third Party Complaint which relates to entitlement of the money held by Tucker Abstract Company, . . . ." Paragraph eight of the motion provided that "the other issues covered by the various pleadings should proceed to discovery and trial."

On February 17, 2000, the court entered an Order for Deposit of Funds. Paragraph three of the order specifically provided that the deposit of funds was not being ordered pursuant to Rule 22 of the Arkansas Rules of Civil Procedure, relating to interpleader, and that appellee "shall not be discharged from all liability by depositing said sums with the Clerk."

On April 25, 2000, the trial court entered an order granting summary judgment that found "there was no consideration which would support any agreement between the Cooksey Trust, Barry Cooksey or Tucker Abstract Company to pay Fleming Companies, Inc. the money previously held by Tucker Abstract Company . . . . Further, Fleming Companies, Inc.imposed a condition precedent on any release they might supply in the future, their agreement to release was conditional and such condition was not fulfilled." The order further

found that a designated portion of the money held in the court's registry should be paid to the intervenor, Jolene Cooksey Reddish, with the bulk of the remainder being paid to the Cooksey Family Trust. Paragraph three of the order provided: "That the other issues covered by the various pleadings should proceed to discovery and trial."

On April 27, 2000, appellant filed its Motion for Stay of Order. In it, appellant contended that the April 25 order was not final and appealable because it did not adjudicate all issues involved in the case, and that payment of the funds from the registry would deprive appellant of its right to seek a stay during any appeal. Upon learning that the funds had been dispersed shortly after the order was entered, appellant filed a Motion for Order to Redeposit Funds.

On May 12, 2000, appellee filed its Motion to Dismiss the counterclaim filed against it by appellant. The basis for the motion was that because the court had found in its April 25 order granting summary judgment that there was no consideration to support any agreement between the Cooksey Trust, Barry Cooksey, or Tucker Abstract (appellee) to pay appellant, there was no basis for the counterclaim and it should be dismissed.

On May 17, 2000, the court entered its amended order granting summary judgment. The amended order appears to eliminate the findings with respect to Tucker Abstract (appellee), limiting the court's findings to the Cooksey Family Trust and Barry Cooksey. On May 19, 2000, the court entered an order providing that it would treat appellee's motion todismiss as a motion for summary judgment in light of the amended order of May 17, 2000. Appellant filed a notice of appeal and an amended notice of appeal from the April 25, 2000, order and from the May 17, 2000, amended order.

On July 14, 2000, the court prepared a letter opinion by which it notified the parties that it was granting appellee's motion for summary judgment "as to the remaining issues between Tucker Abstract Company and Fleming Foods, Inc." The court explained that the parties intended to establish a condition precedent whereby appellant would release its interests "when good funds are received"; that appellant never became the owner of such funds; and that "there was full disclosure that Tucker Abstract Company was the `closing agent' for all the parties to the land transaction." The actual order granting summary judgment was entered on July 26, 2000. It does not contain a Rule 54(b) certification. Appellant filed its notice of appeal therefrom on August 8, 2000.

In reviewing the abstract and the entire transcript, we find no apparent resolution of the third-party complaint filed by appellant against Barry Cooksey regarding his guaranty on BEI's note, nor of the counterclaim filed by Barry Cooksey and the Cooksey Family Trust against appellant, alleging that the note was usurious and that appellant's wrongful claims had damaged them so as to justify compensatory and punitive damages. While it is apparent from the record that there was also a contemporaneous federal court action involving these parties, there is nothing in the record that establishes that action resolved the issues that seem to be left unresolved in the state court action.

Rule 54(b) of the Arkansas Rules of Civil Procedure provides:

(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties 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. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Rule 2 of the Rules of Appellate Procedure - Civil provides in pertinent part:

(a) An appeal may be taken from a circuit, chancery, or probate court to the Arkansas Supreme Court from:

. . .

11. An order or other form of decision which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties in a case involving multiple claims, multiple parties, or both, if the trial court has directed entry of a final judgment as to one or more but fewer than all of the claims or parties and has made an express determination, supported by specific factual findings, that there is no just reason for delay;

. . . .

(Emphasis added.)1

Based upon our review of the procedural history and the parties and claims involved in this case, we find that the order appealed from "adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties" involved in this case. Consequently, without certification from the trial court pursuant to Rule 54(b) of the Arkansas Rules of CivilProcedure, the order appealed from is not a final and appealable order. We therefore dismiss the appeal.

Appeal dismissed.

Jennings and Neal, JJ., agree.

1 These rules are quoted as they existed at the time of this appeal, but compliance is now governed by the rules as they were modified by a per curiam opinion of the Arkansas Supreme Court issued on February 1, 2001.