DIVISION IV

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CA00-1236

September 19, 2001

WAYNE BUCK AN APPEAL FROM GARLAND

APPELLANT COUNTY CIRCUIT COURT

[CIV98-554]

V. HON. JOHN HOMER WRIGHT, JUDGE

C.W. GILLHAM

APPELLEE APPEAL DISMISSED

Wayne Buck appeals from a finding that he was liable for the conversion of a truck. He argues that the trial court erred in finding him liable because the elements of conversion were not met in this case. However, because appellant filed a third-party complaint that was never ruled upon, the order in this case was not final. Accordingly, we lack jurisdiction to reach the issues in this case and must dismiss the appeal.

Appellant owns a used car dealership in Glenwood, Arkansas. One week prior to the events that gave rise to this case, appellant sold a car to Charles Hunsucker. On July 5, 1997, Hunsucker returned to appellant's car lot at around 5:30 p.m. and indicated that he wanted to purchase a 1992 Ford Ranger that day because he was moving. He represented to appellant that he had been approved for a loan by a local bank. They agreed thatHunsucker would buy the vehicle for $7,500 and would receive $1,500 trade-in value for the vehicle he had purchased from appellant one week earlier. Hunsucker would then pay the remaining $6,000.

Because it was a holiday weekend, appellant was in a rush to leave. He did not require Hunsucker to complete all of the paperwork or pay the remaining $6,000. Instead, they agreed that Hunsucker would receive the truck that evening, but that appellant would keep the title until Hunsucker paid the balance due. Hunsucker was to go to the bank no later than the following Tuesday and return with the payment.

Appellant completed and signed a warranty form, an invoice, a transfer of title, and an odometer disclosure statement. He completed these forms so that Hunsucker would be liable if he wrecked the vehicle before he paid the balance due on the vehicle. The invoice set forth the terms of the sale and had the words, "paid in full" written on it. Appellant left his office to get the VIN number from Hunsucker's trade-in vehicle. While he was out of the office, Hunsucker, without appellant's knowledge, apparently rummaged through his desk and obtained the title to the truck. When appellant returned, he gave the paperwork he had completed to Hunsucker, who left with the truck.

The day after Hunsucker was to return with the check, and failed to do so, appellant notified the Pike County Sheriff's Department that the vehicle had been stolen. Appellant shortly thereafter located the vehicle when another car dealer informed him that C.W. Gillham, a used car dealer in Hot Springs, had his truck. Gillham is the appellee in this case. Appellant explained to appellee that the truck had been stolen, but appellee claimed that hehad the title and refused to return the truck.

Appellant obtained assistance from the sheriff's department, who consulted with the Garland County Prosecuting Attorney's Office. The prosecutor informed the sheriff's department that appellee should either return the truck to appellant or face prosecution for receiving stolen property. Appellee subsequently returned the truck and appellant paid him for the value of work he performed on the vehicle's brakes and tires.

Appellant ultimately sold the truck for $7,000.1 Appellee brought suit against appellant for the tort of conversion. Appellant then filed a third-party complaint against Hunsucker for indemnification. The case was tried to the trial court without a jury. The court found appellant liable and rendered judgment against him for $1,500, but did not dispose of appellant's third-party complaint. This appeal followed.

This case involves multiple claims and parties, and as such, is governed in part by Rule 54(b) of the Arkansas Rules of Civil Procedure.2 This rule provides in pertinent part:

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 notterminate 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 54(b) operates in conjunction with Rule 2(a)(11) of the Rules of Appellate Procedure--Civil. This rule provides in pertinent part:

An appeal may be taken from a circuit, chancery, or probate court to the Arkansas Supreme Court from [a]n 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[.]

Neither party raises the issue of the finality of the circuit judge's order, but the failure to comply with Rule 54(b) by the absence of an order adjudicating the rights of all parties is a jurisdictional issue that we are obligated to raise on our own. See Maroney v. City of Malvern, 317 Ark. 177, 876 S.W.2d 585 (1994). While a circuit court may direct final judgment with regard to fewer than all of the claims or parties by an express determination that there is no just reason for delay, the court made no such determination in this case. Further, because the trial court's order did not dispose of appellant's third-party complaint, the order appealed from is not final. See id. (dismissing appeal where chancellor's order did not dispose of all counter and cross-claims).

Appeal dismissed.

Stroud, C.J., and Neal, J., agree.

1 Hunsucker eventually pled guilty to theft, but appellant never received restitution from him, although he retained Hunsucker's trade-in vehicle.

2 This rule was amended on February 1, 2001, and now requires a trial judge to issue a certificate indicating that there is no just reason for delay of the entry of a final judgment. Appellant's hearing was conducted on June 8, 2000, before the amended rule became operative.