ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
EN BANC

CA03-297

November 5, 2003

HOWARD CARSON, JR., individually AN APPEAL FROM ARKANSAS COUNTY

and d/b/a Brewer Bottoms Yacht Club, LLC CIRCUIT COURT

APPELLANT [NO. E-2001-128]

v. HONORABLE RUSSELL ROGERS,

CIRCUIT JUDGE

BLACK, INC.

APPELLEE APPEAL DISMISSED

Per Curiam

Appellant Howard Carson, individually and doing business as Brewer Bottoms Yacht Club, LLC, appeals from the dismissal of his third-party complaint against appellee Black, Inc. Because the order appealed from does not resolve all of the claims brought in the lawsuit, we dismiss the appeal.

The facts in brief are as follows. In 2001, appellant purchased approximately ninety-four acres of land from appellee for duck hunting purposes. Shortly after the purchase, appellant began clearing the land and constructing a levee on the northwest corner of his property, which abutted property owned by the Hampton family. On October 21, 2001, the Hamptons sued appellant and three other defendants - Kenneth Avery, Ken Kagebein, and Sam Smith - alleging that appellant and these men had encroached upon their land when constructing the levee.1 The Hamptons asked 1) that the defendants be restrained from further encroachment, 2) that they be ordered to pay for restoration of the land they had already encroached upon, and 3) that they be ordered to pay treble damages for trespass and the cutting of timber. Avery, Kagebein, and Smith were served with the Hamptons' complaint but did not answer or otherwise appear. Appellant duly answered and also filed a third-party complaint against appellee, for breach of warranty of title.

Following a trial, the circuit court entered a decree which 1) established a correct boundary line between the Hamptons on the north and appellant on the south; 2) enjoined the defendants from interfering with the land north of the boundary line; 3) ordered the defendants to remove a levee and ditch previously constructed north of the line; and 4) ordered the defendants to restore the property it had encroached upon to its original condition, with the exception of replacing trees. The decree also denied, without comment, appellant's third-party claim for breach of warranty of title against appellee. However, the decree did not resolve or otherwise dispose of the Hamptons' claim for treble damages for the alleged trespass and cutting of trees.

Whether an order is final and appealable is a matter going to the jurisdiction of the appellate court and is an issue that the appellate court has a duty to raise on its own motion. Capitol Life & Accident Ins. Co. v. Phelps, 72 Ark. App. 464, 37 S.W.3d 692 (2001). The rule that an order must be final to be appealable is a jurisdictional requirement, observed to avoid piecemeal litigation. Id. When the order appealed from is not final, the appellate court will not decide the merits of the appeal. Id.

Under Ark. R. Civ. P. 54(b), an order that fails to adjudicate all of the claims as to all of the parties, whether presented as claims, counterclaims, cross-claims, or third-party claims, is not final for purposes of appeal. Dodge v. Lee, 350 Ark. 480, 88 S.W.3d 843 (2002). Although Rule 54(b) provides a method by which the trial court may, by execution of a certificate, direct entry of final judgment as to fewer than all of the claims or parties, where there is no attempt to comply with Rule 54(b), the order is not final, and we must dismiss the appeal. Id.

Here, the trial court adjudicated only part of the claims asserted by the Hamptons in their lawsuit. The claim for treble damages remains pending. Thus, the appeal must be dismissed. See Hambay v. Williams, 335 Ark. 352, 980 S.W.2d 263 (1998); Capitol Life & Accident Ins. Co. v. Phelps, supra. The dismissal is without prejudice to refile an appeal upon entry of an order that complies with Rule 54(b).

Appeal dismissed.

1 It appears that Avery, Kagebein, and Smith may have been workmen hired by appellant to construct the levee.