DIVISION III

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

CA02-40

January 8, 2003

WELDON N. KISSIRE and

PATSY R. KISSIRE AN APPEAL FROM PULASKI COUNTY

APPELLANTS CIRCUIT COURT

v. [99-10072]

SOUTHWESTERN BELL TELEPHONE HONORABLE WILLARD PROCTOR, JR.

COMPANY and FOX CIRCUIT JUDGE

CONSTRUCTION CORPORATION

APPELLEES DISMISSED

Weldon Kissire and Patsy Kissire have appealed from the entry of summary judgment against them in their lawsuit against appellees Southwestern Bell Telephone Company (Bell) and Fox Construction Corporation (Fox) for damages to trees on their property. We must dismiss this appeal for lack of a final, appealable order.

Appellants purchased this property in 1992 and developed it as a nature preserve. In 1998, they sold Bell an easement for laying cable that provided that large trees on the easement would be spared. Fox contracted with Bell to clear the easement and, in spite of the restrictions, cleared large trees inside and outside the easement. Appellants settled their claim against Fox for the loss outside the easement; their claim for the loss inside the easement was the basis for this lawsuit. Appellants sued Bell and Fox in the Pulaski County Circuit Court for the injury to their property. Bell filed a counterclaim against appellants for breach of their contract to permit Bell access to the easement. Bell also filed a cross-claim against Fox, stating that Fox was solely responsible for the damages, if any, that may have occurred and had a duty to reimburse Bell for any damages that might be awarded.

The parties disagreed on the proper measure of damages. Appellants argued that the cost of replacement of the trees was the appropriate measure of damages. Appellees contended that, because appellants' claimed restoration costs were 2.8 times the value of the land, the appropriate measure of damages would be the reduction in the property's fair market value caused by the clearing. Fox and Bell jointly moved for summary judgment, stating that, because appellants did not own the entire tract of property appraised by appellants' expert witness, the only relevant appraisal was the one submitted by appellees' expert, which showed that the cost of restoration of the tract that appellants did own was almost three times the value of the land. Appellees argued that, because appellants had produced no evidence of a reduction in the fair market value of the property, they could not establish a prima facie case.

On April 9, 2001, the judge entered an order, wherein he stated that, viewing all proof in the light most favorable to appellants, appellants did not have title to the entire tract when the clearing work began. He noted that appellants' estimate of the cost of restoration was approximately $775,000 and stated that, in order to ascertain the appropriate measure of damages, it was necessary to determine the fair market value of the property. He stated that appellees had submitted an appraisal, which set a value of $275,000 as of the date of the cable installation and which recognized that appellants did not own the entire tract. Thejudge also stated that appellants' appraisal, which was based upon the assumption that appellants owned the entire tract, gave a value of approximately $780,000 as of January 2001. The judge said that the court must employ the reduction, if any, in fair market value as the appropriate measure of damages when the restoration costs are grossly disproportionate to the fair market value of the land and explained:

Appellants did not provide the proof that they were given time to produce. Instead, they filed a motion for reconsideration. On May 10, 2001, the judge entered an order finding that appellants had not submitted any additional appraisals demonstrating a genuine issue of material fact as to whether there was a reduction in the fair market value of their property as a result of the cable installation. Granting appellees' motion for summary judgment, he noted that there was no evidence of a difference in the fair market value of the property and added: "[Appellants] may be entitled to an award of nominal damages. Therefore, the case is not dismissed; however, [appellants] will be limited to the recovery of nominal damages." The judge also dismissed appellants' claim for punitive damages. Appellants filed a notice of appeal from this order.

On September 18, 2001, appellants filed an amended answer to Bell's counterclaim. The next day, the judge entered a "consent judgment" signed by the parties' attorneys, stating: "Come the parties hereto, by and through counsel, and announce their consent to the Court that judgment be entered in favor of [appellants] and against [appellees] for the sum of $1.00 in nominal damages. At this time, each party is to bear its own costs. Any future award of costs will await the ultimate disposition hereof." On September 28, 2001, the judge entered an order granting Bell a voluntary nonsuit of its counterclaim against appellants. The judge entered a "Final Order Granting Voluntary Non-suit of Counterclaim" on October 11, 2001, which stated: "All other issues in this cause having been previously addressed, Separate Defendant Southwestern Bell Telephone Company's counterclaim is hereby dismissed without prejudice." Appellants filed another notice of appeal from this order.

Arguments

Appellants argue on appeal that the trial judge erred in granting summary judgment to appellees by using a loss in value method instead of a cost of restoration method of measuring damages. In the alternative, appellants argue that, if the reduction in value of the property was the proper measure of damages, the judge should not have granted summary judgment but should have instructed the jury on both methods and left it to the jury to determine whether the cost of replacement was grossly disproportionate to the value of the land. Appellants also contend that the trial judge erred in finding that they did not hold title to the lots excluded from their deed and that they did produce evidence of the land's loss in value.

Whether a Final Order Was Entered

We cannot address the merits of this appeal, however, because we can find no determination of Bell's cross-claim against Fox in the record. A trial judge's order must be final to be appealable. Ark. R. App. P. 2(a)(1). The requirement is jurisdictional. Even if the parties to an appeal do not address this issue, it is this court's duty to determine whether its jurisdiction is proper. Chambers v. Manning, 315 Ark. 369, 868 S.W.2d 64 (1993). For an order to be final, it must dismiss the parties from the trial court, discharge them from the action, or conclude their rights to the subject matter in controversy; an order must be of such a nature as to not only decide the rights of the parties, but also to put the court's directive into execution, ending the litigation or a separable part of it. Reed v. Arkansas State Highway Comm'n, 341 Ark. 470, 17 S.W.3d 488 (2000). An order is not final when it adjudicates fewer than all of the claims or the rights and liabilities of fewer than all of the parties, whether presented as claims, counterclaims, cross-claims, or third-party claims. See Shackleford v.Arkansas Power & Light Co., 334 Ark. 634, 976 S.W.2d 950 (1998); Maroney v. City of Malvern, 317 Ark. 177, 876 S.W.2d 585 (1994); Ark. R. Civ. P. 54(b).

The supreme court dismissed an appeal in Office of Child Support Enforcement v. Willis, 341 Ark. 378, 17 S.W.3d 85 (2000), because the order from which the appeal was taken did not address the appellee's cross-claims against another defendant, and no other orders were found to have been entered by the trial judge disposing of the cross-claims, nor had there been a Rule 54(b) certification. In Smith v. Leonard, 310 Ark. 782, 840 S.W.2d 167 (1992), the supreme court also dismissed an appeal because the decree from which the appeal had been taken did not finally dispose of all of the claims, including the cross-claims. See also Barnhart v. City of Fayetteville, 316 Ark. 742, 875 S.W.2d 79 (1994). Although Rule 54(b) provides that the trial judge may direct final judgment with regard to fewer than all of the claims or parties by an express determination, supported by specific factual findings, that there is no just reason for delay, the judge did not make such a determination here.

Because of the judge's failure to determine the cross-claim of Bell against Fox, we have no choice but to dismiss this appeal for lack of a final order.

The Consent Order

We should, however, mention another procedural problem with this appeal. Although appellants consented to an order awarding them one dollar in nominal damages, they argue on appeal that we should determine whether the judge applied the proper measure of damages. It has long been the rule that a party consenting to a judgment is conclusively presumed to have waived all errors, except those going to the jurisdiction of the court. Lawson v. Madar, 76 Ark. App. 23, 60 S.W.3d 497 (2001). Because appellants have waived their measure ofdamages argument, we could not have addressed that issue even if there had been an appealable order.

Dismissed.

Vaught and Roaf, JJ., agree.