464 S.W.3d 125
Ark. Ct. App.2015Background
- FST subcontracted on two construction projects for Armstrong entities; First Community Bank financed the projects and held mortgages.
- FST filed a materialman’s lien (July 2010) and later obtained a foreclosure judgment (July 2012) declaring its lien first priority; FST bought the properties at commissioner’s sales related to that judgment.
- The bank separately sued in Jan 2012 to foreclose construction notes/mortgages and added FST as a defendant; bank moved for partial summary judgment asserting its mortgages were superior.
- In July 2013 the circuit court granted the bank’s partial summary judgment, held the bank’s mortgage superior, denied FST’s quiet-title counterclaim, and entered a Rule 54(b) certificate.
- FST filed timely notices of appeal in August 2013 but failed to lodge the record within the 90‑day period; it later filed the record in Oct 2014 and filed additional appeals regarding unrelated orders in Aug 2014.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FST’s appeal of the July 2013 orders was timely | FST contended the Rule 54(b) certificate was invalid, so appeal need not be perfected in 2013 | Bank argued Rule 54(b) made the July 2013 orders immediately appealable and FST failed to timely lodge the record | Dismissed portion challenging July 2013 orders for lack of jurisdiction due to failure to file the record within Rule 5(a) deadline |
| Whether a court (or appellant) may challenge the existence/validity of a Rule 54(b) certificate after appeal deadlines | FST argued certificate invalid so late perfection permissible | Bank argued certificate validity is for appellate court to decide but appellant must still timely perfect | Court held validity is an appellate question but timeliness/perfection is jurisdictional and must be observed first |
| Whether orders entered later (June/July 2014 dismissals) were properly before the appellate court | FST timely filed the record for those orders and raised an issue about sale confirmation | Bank noted FST’s notice of appeal designated only the July 2013 orders, not the 2014 orders | Court declined to consider issues tied to the 2014 orders because FST failed to designate them in its notice of appeal |
Key Cases Cited
- Seay v. Wildlife Farms, Inc., 342 Ark. 503 (timely lodging of the record is jurisdictional)
- In re Estate of Stinnett, 2011 Ark. 278 (orders appealable under Rule 54(b) must be appealed within Rule 4(a) time)
- Sloan v. Ark. Rural Med. Practice Loan & Scholarship Bd., 369 Ark. 442 (appellate court determines whether an order fits Rule 2’s subsections after appeal is lodged)
- Jones v. Huckabee, 363 Ark. 239 (Rule 54(b) appealability is a jurisdictional question)
- Dalton v. First State Bank, 374 Ark. 142 (failure to file the record within Rule 5(a) requires dismissal)
- Farris v. Merrill Lynch Bank & Trust Co., 372 Ark. 373 (same)
- Lindsey v. Green, 2010 Ark. 118 (orders not designated in notice of appeal are not before the appellate court)