ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

EN BANC

CA02-1196

September 3, 2003

CITY OF FORT SMITH, ARKANSAS AN APPEAL FROM CRAWFORD COUNTY

APPELLANT CIRCUIT COURT

[CV 2001-466]

v.

HONORABLE FLOYD ROGERS,

PENSE ENTERPRISES CIRCUIT JUDGE

APPELLEE

APPEAL DISMISSED

Per Curiam

Appellant City of Fort Smith, Arkansas, (City) filed this eminent-domain action seeking to condemn eighty acres for use in a water-supply system. Appellee Pense Enterprises owns the surface interest to the tract involved. Included as a defendant was R.M.E. Land Corporation (RME), the successor in interest to Union Pacific Land Resource Corporation and who now owns the mineral rights to the tract involved as well as to other tracts affected by the City's project. Bank of New York, Trustee, Chase Manhattan Bank, Trustee, and Donald Reid, Trustee, were also named as defendants in the lawsuit.

Appellee filed a motion to bifurcate the trial of the issue of just compensation for the taking of its interest from the trial of the issue of compensation for the taking of the mineral interests. By agreement of the City, RME, and appellee, separate trials were ordered for the issues of compensation of the surface and mineral interests. The issue of compensation for appellee's interest was tried first. The jury returned a verdict in appellee's favor and awarded compensation of $240,000. Judgment was entered on the jury verdict, and this appeal followed. We cannot address the merits of this appeal because the order appealed from is not a final appealable order. Therefore, we dismiss the appeal.

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 Highway 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 fewer than 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)

The judgment is not final because, even though the trial court ordered separate trials, all of the interests involved have not been resolved. The supreme court addressed a similar situation in Barnhart v. City of Fayetteville, 316 Ark. 742, 744-45, 875 S.W.2d 79, 80-81 (1994), as follows:

While ARCP 42(b) does allow the trial court to order separate trials under certain circumstances, a separate trial order under Rule 42(b) usually results in but one judgment. Wright Miller, Federal Civil Procedure, § 2387. And an order granting separate trials under Rule 42 is not appealable as a final judgment. "There is no final judgment until all of the issues have been resolved and judgment entered on the whole case unless a lesser judgment is certified under the provisions of Rule 54(b)." Id. at § 2392.

There is no indication in the record that the issue of compensation for RME's mineral interests has been resolved.

Second, as noted above, there are other parties whose rights have not been addressed or who have not been dismissed from the lawsuit. 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.