EN BANC

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

CA02-1363

June 11, 2003

DAVID COCKRELL

APPELLANT AN APPEAL FROM BENTON COUNTY

v. CIRCUIT COURT

[NO. CV-2002-185-1]

UNION PLANTERS BANK, ROBERT HONORABLE TOM KEITH,

WOOD, and JENNIFER WOOD CIRCUIT JUDGE

APPELLEES

DISMISSED

Appellant David Cockrell appeals from the trial court's denial of his petition to set aside a foreclosure sale. We dismiss the appeal for lack of a final order.

On January 24, 2000, Cockrell obtained a loan from appellee Union Planters Bank in the amount of $39,600. He secured the loan with a deed of trust to certain property in Pea Ridge, Arkansas. Cockrell fell behind on his payments, and the bank foreclosed on the property, using the statutory foreclosure proceedings contained at Ark. Code Ann. §§ 18-50-101 to 116 (Supp. 2001). On January 16, 2002, the property was sold to appellees Robert and Jennifer Wood.

On February 12, 2002, Cockrell filed a petition to set aside the sale, alleging deficiency of notice and other irregularities. The Woods filed a counterclaim against Cockrell, stating counts for unlawful detainer, forcible entry and detainer, and ejectment, based upon Cockrell's refusal to vacate the property. In this pleading and subsequent amendments, the Woods sought immediate possession of the property and damages for litigation costs and expenses, physical damage to the property, rents for the time that Cockrell occupied the property, and judgment for the return of their purchase price, should the sale be set aside. The Woods also filed a cross-claim against the bank, seeking to recover under the deed warranties, should the sale be set aside.

On April 2, 2002, a hearing was held, at which time the issues regarding Cockrell's petition to set aside were narrowed to whether the statutory foreclosure proceedings were applicable, given Cockrell's claim that his land was primarily agricultural. Arkansas Code Annotated section 18-50-116(c) (Supp. 2001) provides that "this chapter shall not apply to a mortgage or deed of trust encumbering trust property used primarily for agricultural purposes." The court postponed consideration of the issue and suggested that Cockrell assert it in a pleading, which he did on April 10, 2002. At the subsequent hearing, held August 15, 2002, the bank argued that Cockrell was barred from asserting his defense that his property was primarily agricultural because he had not raised it prior to the sale, as required by Ark. Code Ann. § 18-50-116(d)(2)(B) (Supp. 2001). The court agreed with the bank and entered an order dismissing Cockrell's petition. However, the court specifically retained jurisdiction to consider the Woods' counterclaim against Cockrell and their cross-claim against the bank, stating:

Cockrell has taken an appeal from that order.

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 the entry of a 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) (2003); see also Dodge v. Lee, 350 Ark. 480, 88 S.W.3d 843 (2002). Further, if the trial court makes such a determination, it must execute a Rule 54(b) certificate, stating specific factual findings that support the entry of a final judgment. Ark. R. Civ. P. 54(b)(1) (2003).

In this case, the trial court specifically reserved judgment on the counterclaim and crossclaim, and no Rule 54(b) certificate was contained in the order. We therefore dismiss the appeal without prejudice to re-file upon entry of an order that complies with Rule 54(b).

Appeal dismissed.