ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION II

BRENT GRAY

APPELLANT

V.

GLEN KOONS

APPELLEE

CA02-1335

JUNE 18, 2003

APPEAL FROM THE SALINE COUNTY CIRCUIT COURT

CIV01-250-2

HON. GARY M. ARNOLD, JUDGE

APPEAL DISMISSED

This is an appeal from the trial court's order finding that appellant trespassed on appellee's property and unlawfully cut trees. The trial court found the trees to be worth $7,992.13 and awarded appellee treble damages in the amount of $23,976.39 pursuant to Ark. Code Ann. § 18-60-102 (1987). Appellant raises three points of appeal: (1) there was no evidence that appellant cut the trees on the property located behind lot 16; (2) the trial court used the shade tree value to assess damages for trees which were removed in a large, unimproved area, and the proper measure of damages should have been the diminished value of the land or the timber value of the trees; (3) the trial court should not have awarded treble damages because the appellee failed to prove that the appellant purposefully, recklessly or negligently cut the trees on his property. We cannot address the merits of these arguments because the order appealed from is not a final appealable order. Therefore, we dismiss the appeal.

Appellee Glen Koons owns 170 acres of unimproved land in Saline County that adjoin two lots in the Gerante Subdivision of Hot Springs Village (lots 8 and 16) purportedly owned by appellant Brent Gray, who is a realtor. Appellee filed a complaint on May 18, 2001, naming appellant, Katheleen Cagle,1 and Robert Kasten as defendants. With respect to appellant, appellee alleged that in October 2000, appellant trespassed on his land (referred to as Tract 1) that was adjacent to lot 16 and damaged it by cutting trees. Appellee also alleged that Cagle was the owner of lot 8 and that she wilfully and intentionally had her agent enter appellee's land (referred to as Tract 2) to remove trees. Appellee alleged that the damage to Tract 1 was $4,472.44 and Tract 2 was $3,519.69; he sought treble damages pursuant to Ark. Code Ann. § 18-60-102(b).

Cagle filed an answer and counterclaim on June 14, 2001. She denied the allegations of the complaint and alleged in her counterclaim that appellee's complaint was without merit and that she should be entitled to attorney fees and expenses incurred as a result of the meritless complaint and appellee's refusal to dismiss the action against her. On June 28, 2001, appellee filed an answer denying Cagle's counterclaim. Robert Kasten, who is never mentioned in the complaint other than in the caption, filed an answer on June 18, 2001. The complaint against Kasten was dismissed with prejudice by an order entered November 16, 2001.2 At the beginning of the trial, the court asked appellee which of the defendants remained. Appellee indicated that he was only proceeding against appellant. The court informed appellee that there was an order dismissing Kasten, but that Cagleremained. When appellee stated that he intended only to proceed against appellant, the court noted for the record that appellee dismissed Cagle.

During the trial, appellee testified, along with Ralph Biles, a real estate appraiser; appellant testified in his defense. Many exhibits were introduced by both parties.3 At the conclusion of the trial, the judge found that the decision hinged solely on credibility, and found appellee to be more credible than appellant. The judge found that appellee proved damages in the amount of $7,992.13 and awarded treble damages pursuant to Ark. Code Ann. § 18-60-102(b). An order was entered August 15, 2002, and a timely notice of appeal followed.

We cannot reach the merits of appellant's arguments because the order appealed from is not a final order. Compliance with Ark. R. Civ. P. 54(b) is a jurisdictional matter which this court is required to raise on its own. Stratton v. Arkansas State Hwy. Comm'n, 323 Ark. 740, 917 S.W.2d 538 (1996). For an order to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Hasse v. Starnes, 337 Ark. 193, 987 S.W.2d 704 (1999). Rule 54(b) provides that when multiple claims or parties are involved, the trial 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 that adjudicates fewerthan all the 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).

In the present case, the transcript of the trial indicates that appellee orally dismissed Katheleen Cagle. However, there was never an order entered dismissing her from the lawsuit. The trial court also never ruled on Cagle's counterclaim, seeking fees and costs for having to defend appellee's meritless complaint. A claim against a party remains pending until the trial court enters an order of dismissal. Shackelford v. Arkansas Power & Light Co., 334 Ark. 634, 976 S.W.2d 950 (1998). In addition, there is no Rule 54(b) certification contained in the trial court's order. Therefore, we must dismiss the appeal for lack of a final order.

Appeal dismissed.

Baker and Roaf, JJ., agree.

1 Appellant referred to this defendant as Katheleen Tarver-Kagle in the complaint and subsequent pleadings. It is apparent from her answer that she goes by Katheleen Tarver Cagle.

2 Appellant failed to include in the addendum the order of dismissal as to defendant Kasten, Cagle's answer and counterclaim, and appellee's answer to Cagle's counterclaim. In the event that this appeal is re-filed, we direct appellant to Rule 4-2(a)(8) of the Arkansas Rules of the Supreme Court and Court of Appeals. This rule, in part, requires that the addendum include "true and legible photocopies of the order, judgment, decree, ruling, letter opinion, or Workers' Compensation Commission opinion from which the appeal is taken, along with any other relevant pleadings, documents, or exhibits essential to an understanding of the case and the Court's jurisdiction on appeal."

3 In the event that this appeal is re-filed upon entry of a final order, we also direct appellant to Rule 4-2(a)(5) of the Arkansas Rules of the Supreme Court and Court of Appeals. This rule provides, in part, that "[w]henever a map, plat, photograph, or other similar exhibit must be examined for a clear understanding of the testimony, the appellant shall reproduce the exhibit by photography or other process and include it in the addendum...." Appellant, in his addendum, provided a description of various exhibits introduced at trial, rather than reproducing the exhibit as required by Rule 4-2.