DIVISION II

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

OLLY NEAL, JUDGE

CA01-1223

June 5, 2002

MARVIN and CONNIE DEBOER

APPELLANTS AN APPEAL FROM FAULKNER COUNTY

CIRCUIT COURT

V. [NO. CIV99-244]

HONORABLE CHARLES CLAWSON

ENTERGY ARKANSAS, INC., and CIRCUIT JUDGE

WEST TREE SERVICE, INC.

APPELLEES APPEAL DISMISSED

In this case, appellee Entergy Arkansas, an electric utility, cut approximately forty-five trees on a lot belonging to appellants Marvin and Connie DeBoer. The cutting, which was done by Entergy's contractor, appellee West Tree Service, was done to clear an area for the placement of a power line, which would be used to provide electrical service to appellants' neighbor. Appellants, who had not given permission for the cutting, filed an inverse condemnation suit against appellees seeking damages for the replacement value of the trees. The circuit court awarded them $1200, which represented the difference in the value of their lot before and after the tree cutting. Appellants consider that award insufficient and appeal. We dismiss the appeal for lack of finality.

After appellants filed suit, West Tree Service filed a cross-claim against its co-defendant, Entergy Arkansas. The cross-claim sought a defense from Entergy and judgment over against Entergy, should West be held liable for damages. It also sought reimbursement for attorney fees that West had already expended in defense of the lawsuit and a contractual penalty from Entergy. Nothing in the record indicates that West's cross-claim was dismissed by the trial court.

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 trial court may direct the entry of a final judgment as to one or more but fewer than all 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. Ark. R. Civ. P. 54(b)(1). In the event the court makes such a determination, it shall execute a certificate, as set out in Rule 54(b)(1), declaring its findings. Absent the execution of such a certificate, an order that adjudicates fewer than all 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. Ark. R. Civ. P. 54(b)(2).

The fundamental policy behind Rule 54(b) is to avoid piecemeal appeals. Bank of Arkansas v. First Union Nat'l Bank, 342 Ark. 705, 30 S.W.3d 110 (2000). The failure to comply with Rule 54(b) presents a jurisdictional issue that we are obliged to raise on our own, even if the parties do not. See Martin v. National Bank of Commerce, 316 Ark. 83, 870 S.W.2d 738 (1994). We have recognized that, where a cross-claim is filed, but the record does not show that it was dismissed or that a Rule 54(b) certification was obtained, the order appealed from is not final. See Office of Child Support Enforcement v. Willis, 341 Ark. 378, 17 S.W.3d 85 (2000).

Because West's cross-claim against Entergy was not dismissed, nor was a certification made pursuant to Ark. R. Civ. P. 54(b), we must dismiss the appeal for lack of finality. The dismissal is without prejudice, and an appeal may be refiled upon entry of a final order.

Appeal dismissed.

Jennings and Griffen, JJ., agree.