DIVISION II

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

CA02-84

October 30, 2002

ALBERT HANNA

APPELLANT AN APPEAL FROM UNION COUNTY

CHANCERY COURT

V. [NO. E99-1116-1]

HONORABLE HAMILTON SINGLETON

GEORGE GLOVER, et al. CHANCERY JUDGE

APPELLEES

APPEAL DISMISSED

Albert Hanna appeals from an order denying specific performance of a contract. We must dismiss the appeal because the trial court's order failed to dispose of all claims filed in the case.

According to Hanna, he entered into a contract with appellees George Glover, Greg Glover, and Glover Custom Wood, Inc. (hereafter, collectively, "Glover") in 1997 whereby Glover would manufacture dunnage blocks and Hanna would arrange for a company called Del-Tin Fiber to buy the blocks. For his efforts, Hanna was to receive two cents per block sold, later modified to five percent of gross sales. Glover began producing the blocks in April 1998, sold large quantities of them to Del-Tin, and paid Hanna his agreed-upon share. However, in July 1999, Glover stopped making payments to Hanna, claiming that Hanna hadfailed to procure a written contract with Del-Tin. On December 9, 1999, Hanna sued Glover, seeking specific performance of the contract, an accounting of all sales made by Glover to Del-Tin, and damages for breach of contract. Glover answered the complaint and filed a counterclaim "for all sums paid under false pretenses of securing a contract on behalf of Glover Custom Wood, Inc. with Del-Tin Fiber, LLC."1 Following a bench trial on March 8 and 9, 2001, the trial judge entered an order finding that the parties did not have a contract, thus eliminating the possibility of specific performance. The order did not dismiss or otherwise address Glover's counterclaim for reimbursement of sums it had paid to Hanna, and the counterclaim therefore remains pending.

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, the court may direct entry of final judgment as to one or more but fewer than all of the claims 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 trial court makes such a determination, it must execute a Rule 54(b) Certificate setting forth the specific factual findings. Id. In the absence of this certificate, an order that adjudicates fewer than all of the claims shall not terminate the action. Ark. R. Civ. P. 54(b)(2). The policy behind Rule 54(b) is to avoid piecemeal appeals. City of Corning v. Cochran, 350Ark. 12, 84 S.W.3d 439 (2002). The question of whether an order is final is one we must raise on our own, even if the parties do not raise it, because the finality of an order relates to the subject-matter jurisdiction of this court. See id.

Our supreme court has held that, where a trial court disposes of a plaintiff's claim but fails to rule on a defendant's counterclaim, the court has not issued a final order. See id.; Williamson v. Misemer, 316 Ark. 192, 871 S.W.2d 396 (1994); Carmical v. City of Beebe, 302 Ark. 339, 789 S.W.2d 453 (1990). That is the situation in the case before us, so we must dismiss the appeal. However, the dismissal is without prejudice to re-file upon entry of an order compliant with Rule 54(b).

Appeal dismissed.

Neal and Vaught, JJ., agree.

1 The record filed with this court did not contain a copy of Glover's counterclaim, but it did contain Hanna's response to the counterclaim. Upon our inquiry to the parties, we were provided with a file-marked copy of the counterclaim. We therefore consider the record supplemented on our own initiative, pursuant to Rule 6(e) of the Arkansas Rules of Appellate Procedure - Civil.