2014 Ark. App. 301
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-13-1009
Opinion Delivered May 14, 2014
COVENANT PRESBYTERY APPEAL FROM THE MISSISSIPPI
APPELLANT COUNTY CIRCUIT COURT,
OSCEOLA DISTRICT
V. [NO.CV-11-101]
FIRST BAPTIST CHURCH, HONORABLE RANDY F.
OSCEOLA, ARKANSAS PHILHOURS, JUDGE
APPELLEE/CROSS-APPELLANT
V.
APPEAL DISMISSED; CROSS-APPEAL
SUN TRUST BANK, AS TRUSTEE DISMISSED
UNDER THE WILL OF STANLEY D.
CARPENTER
APPELLEE/CROSS-APPELLEE
BRANDON J. HARRISON, Judge
Covenant Presbytery appeals a July 2013 order entered in favor of First Baptist
Church, Osceola, Arkansas. First Baptist Church cross-appeals the same order, portions of
which favor Sun Trust Bank. Because the circuit court’s order is not a final one for
appellate-review purposes, we dismiss the direct appeal and the cross-appeal without
prejudice.
Sun Trust Bank, acting as trustee under Stanley Carpenter’s will, filed a Petition
and Request for Instructions and Declaration of Rights in Mississippi County Circuit
Court, Civil Division, in 2011. Sun Trust, among other things, asked the court to
interpret a testamentary trust that Carpenter’s will allegedly established in 1965. The
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2014 Ark. App. 301
alleged trust involves 238 acres of farmland near Osceola, Arkansas. Sun Trust asked the
court to determine the rights of two beneficiaries who hold a remainder interest in the
farmland pursuant to Paragraph VII in Carpenter’s will. More specifically, the petition
asked the court to construe the last sentence of Paragraph VII and determine if Sun Trust
had the discretion to sell the farm property and distribute the sale proceeds while Carolyn
Schabel was still living; Schabel is the sole remaining life tenant.
No party has raised the issue, but whether an order is final for appeal purposes is a
jurisdictional point that we often raise on our own. Rule 2(a)(1) of the Arkansas Rules of
Appellate Procedure–Civil (2013) states that an appeal may—absent some exceptions that
do not apply—be taken from a final judgment or decree. A final order is one that
dismisses the parties, discharges them from the action, or concludes their rights to the
subject matter in controversy. Davis v. Brown, 2011 Ark. App. 789. Absent a final order
or a properly executed certificate from the circuit court making an “express
determination, supported by specific factual findings, that there is no just reason for
delay”—which we do not have—an order that fails to adjudicate all of the parties’ claims
cannot be appealed. Ark. R. Civ. P. 54(b) (2013). The circuit court’s July 2013 order is
not a final one because it does not adjudicate all of Sun Trust’s claims for declaratory
judgment—including the critical issue of whether Sun Trust has the discretion, under the
will’s terms, to sell the farm property and distribute the sale proceeds during Carolyn
Schabel’s life. The order only addresses distribution of the income stream that the farm
generates. It does not, in the words of Sun Trust’s attorney, decide the “ultimate
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disposition” of the farm. This oversight is an entrenched jurisdictional defect that we
cannot overlook. Stephens v. Bredemeyer, 2011 Ark. App. 727.
There is a second finality-related problem. Sun Trust amended its petition and
named the Arkansas Attorney General as a party because Sun Trust thought that the
Carpenter testamentary trust may be a charitable trust under Ark. Code Ann. § 28-73-
110(d) (Repl. 2009). Arkansas Rule of Civil Procedure 54(b)(5) (2013) provides that a
claim against a named-but-unserved defendant is dismissed by the circuit court’s final
judgment or decree. Here, however, the record is murky on whether the Attorney
General was served. A bare-bones summons sheet in the record shows that some party
was served the same day that Sun Trust amended its petition and named the Attorney
General as a party. But that summons sheet does not indicate who was served and with
what. Moreover, the record we have does not contain an order that dismisses the
Attorney General from this case. So we cannot tell whether the Attorney General was a
served or unserved defendant. This uncertainty creates a second jurisdictional problem.
Hotfoot Logistics, LLC v. Shipping Point Mktg., Inc., 2012 Ark. 76.
Appeal dismissed; cross-appeal dismissed.
PITTMAN and GRUBER, JJ., agree.
Sanford Law Firm, PLLC, by: Josh Sanford, for appellant.
Mike Gibson; and
Branch, Thompson, Warmath & Dale, P.A., by: Robert F. Thompson III, for appellee
First Baptist Church, Osceola, Arkansas.
Rose Law Firm by: Craig S. Lair and Bourgon B. Reynolds, for cross-appellee
SunTrust Bank.
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