dissenting. I respectfully dissent. In reaching ce, decision, the majority court cites Fulkerson v. Thompson, 334 Ark. 317, 974 S.W.2d 451 (1998), but then misapplies that case’s holding. In Fulkerson, we reiterated the established rule that whatever is before the supreme court and disposed of in the exercise of its appellate jurisdiction must be considered settled, and the lower court must carry that judgment into execution according to its mandate. The Fulkerson holding further cited Carroll Elec. Coop. v. Benson, 319 Ark. 68, 889 S.W.2d 756 (1994), for the proposition that a trial court has no power to change or extend the mandate of the supreme court.
In this court’s first decision involving Cooper Communities, Inc., Jan and Judith Seth, co-trustees of the Seth Family Trust, and Mikel and Luyen Lott, we held the circuit court had jurisdiction of this case. Lott v. Circuit Ct., 328 Ark. 596, 945 S.W.2d 922 (1997) (Lott I). This court said that, on appeal from the [Benton] county court, the [Benton County] circuit court must try the case de novo. This court concluded further as follows:
If, however, it turns out that joinder of the Seth Family Trust in some way makes the claim different from the one presented by Cooper Communities to the county court, theii the circuit court can take appropriate action. From its [circuit court’s] decision, whether or not it reaches the merits of the case, an appeal presumably will lie. (Emphasis added.)
In the instant case, the circuit court did not try the case de novo, nor did it determine whether the joinder of the Seth Family Trust in some way made the claim different from the one presented by Cooper Communities. Instead, the circuit court erroneously sent the case to the Benton County Court to make that decision.1 In sum, this court’s decision in Lott I made it clear that the circuit court must determine whether the Seth Family Trust’s joinder changed Cooper Communities’ original claim, and regardless of how the trial court decided the issue, the circuit court’s decision, whether it reaches the merits or not, could presumably be appealed.
The majority opinion is further mistaken when it suggests Cooper Communities and the Seth Family Trust should have appealed the circuit court’s decision to return the case to the Benton County Court. The circuit court’s order transferring the case to the county court is not a final order or one that can be appealed under Ark. R. Civ. P. 2. This court has held on numerous occasions that an order that contemplates further action by a party or the court is not a final, appealable order. Payne v. State, 333 Ark. 154, 968 S.W.2d 59 (1998). Flere, the circuit court’s order merely returned this case to the county court for that court to determine if the joinder of the Seth Family Trust made the case different from the one earlier presented to the county court by Cooper Communities. That decision was for the circuit court to make and remanding this case has only delayed it. In short, the circuit court’s remand order was not intended to end this litigation, but instead contemplated further action by the parties.
Even if Cooper Communities could be said to have had a right to appeal the circuit court’s transfer order, the remedy was not an adequate one. It had already prevailed in one appeal, and should not have been forced to appeal on an issue that had already been decided in Lott I. Cooper Communities is, in my view, entitled to the use of a writ of certiorari to obtain its relief. In fact, it is these type circumstances where extraordinary relief is necessary.
The circuit court’s failure to follow this court’s mandate in Lott I has caused this case to be retried in the Benton County Court and will necessitate yet another appeal to the Benton County Circuit Court for a de novo trial. If this case had been decided by the circuit court in compliance with this court’s earlier mandate, this case undoubtedly would by now have been tried and decided by the circuit court. In fact, enough time has passed that the case likely could have been decided by this court on appeal.
For the reasons above, I would, in accord with Fulkerson, hold that the circuit court had no power to transfer this case to the county court, and direct the circuit court to comply with the mandate and decision rendered by this court in Lott I.
Thornton, J., joins this dissent.About eight months later, the county judge found the joinder of the Seth Family Trust made no difference in Cooper Communities’ original claim.