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ARKANSAS COURT OF APPEALS

DIVISION I 

No. CV-15-200

SHARON K. BARTON, ROBERT 

FRANKLIN BRYANT, GALLIE 

THOMAS BRYANT, AND 

FRANCES PAULETTE BRYANT

APPELLANTS 

V.

BOBBY AND SHEILA 

BROCKINTON

APPELLEES

Opinion Delivered March 2, 2016

APPEAL FROM THE FAULKNER

COUNTY CIRCUIT COURT

[NO. CV-2012-721] 

HONORABLE H.G. FOSTER, JUDGE 

DISMISSED WITHOUT PREJUDICE 

BRANDON J. HARRISON, Judge

Sharon K. Barton, Robert Franklin Bryant, Gallie Thomas Bryant, and Paulette 

Frances Bryant (collectively the Bryants) filed a complaint for trespass and ejectment against 

Bobby and Sheila Brockinton in Faulkner County Circuit Court in August 2012. The 

Bryants and the Brockintons are adjacent landowners. 

The Bryants amended their complaint in October 2012, alleging that the Brockintons 

had destroyed a fence, trespassed, and constructed three storage units on their land. The 

Bryants asked for a total of $40,000 in damages and for the court to eject the Brockintons 

from their property. The Brockintons responded to the Bryants’ complaint, denied all 

allegations of wrongdoing, and raised fourteen affirmative defenses. 
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In April 2013, the Brockintons moved for summary judgment. The circuit court 

held a hearing on the summary-judgment motion in July 2013 and orally denied it. Two 

months later, the Brockintons filed a counterclaim, alleging that the Bryants’ lawsuit “caused 

a cloud” on their title, making them unable to build duplexes on the property, and that they 

were entitled to $1,200 in monthly damages. The Bryants responded and argued, among 

other things, that the Brockintons failed to state sufficient facts upon which relief could be 

granted, and their counterclaim should be dismissed pursuant to Arkansas Rule of Civil 

Procedure 12(b)(6). 

The case was tried in April 2014 over the course of two days. The parties put forth 

competing surveys and testimony about the proper boundary line between the Brockintons’ 

and Bryants’ properties. The court entered a written order on 4 June 2014, stating, 

1. This is the Court of proper jurisdiction and venue.

2. This case involved the location of a boundary between the property of the 

Plaintiffs and Defendants.

3. The Court finds the survey of Defendant’s surveyor Tim Tyler to be true and 

correct.

4. The Plaintiffs failed in their burden to establish by a preponderance of the 

evidence that the boundary line they claimed between the parties’ property was 

the true boundary.

5. The Plaintiffs’ petition is denied and dismissed. 

On 25 September 2014, the court entered an “amended” order, which was exactly 

the same as the June order except that it had a Rule 54(b) certificate attached. The Bryants 

filed a notice of appeal from the June 4 and September 25 orders, on 15 October 2014. 
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Because the orders the Bryants have appealed are neither final nor certified properly 

under Rule 54(b), we dismiss their appeal without prejudice for lack of a final, appealable 

order. 

The question of whether an order is final and subject to appeal is a jurisdictional 

question that this court will raise on its own. Kowalski v. Rose Drugs of Dardanelle, Inc., 2009 

Ark. 524, 357 S.W.3d 432. The requirement of a final judgment is the cornerstone of 

appellate jurisdiction; this court reviews only final orders. Ark. R. App. P.–Civ. 2(a). Bayird 

v. Floyd, 2009 Ark. 455, 344 S.W.3d 80. For an order to be final and appealable, it must 

dismiss the parties from the court, discharge them from the action, or conclude their rights 

to the subject matter in controversy. Id. 

Arkansas Rule of Civil Procedure 54(b) is an exception to this general rule and may 

apply when “one or more but fewer than all of the claims” is adjudicated. Ark. R. Civ. P. 

54(b) (2015). Pursuant to Rule 54(b) a circuit 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.” When determining that there is 

“no just reason for delay,” the circuit court must weigh “the overall policy against piecemeal 

appeals against whatever exigencies the case at hand may present.” Murry v. State Farm Mut. 

Auto. Ins. Co., 291 Ark. 445, 447, 725 S.W.2d 571, 572 (1987) (quoting Federal Practice and 

Procedure § 2659 (1983)). 

Facts supporting a Rule 54(b) certification must be stated in the circuit court’s order; 

that the record may contain facts supporting the circuit court’s Rule 54(b) certificate is not 
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sufficient. See Bayird, 2009 Ark. 455, at 4, 344 S.W.3d at 84 (“[M]erely tracking the 

language of Rule 54(b) will not suffice.”). A circuit court’s Rule 54(b) findings and 

certifications are reviewable for an abuse of discretion. Id. The role of the appellate court 

is “not to reweigh the equities or reassess the facts but to make sure that the conclusions 

derived from those weighings and assessments are judicially sound and supported by the 

record.” Id. Our supreme court has also stressed that the discretionary power of the circuit 

court to direct finality should be “exercised infrequently and only in harsh cases.” Robinson 

v. Villines, 2012 Ark. 211, at 6. The time for filing a notice of appeal begins to run upon 

entry of a judgment that includes a proper Rule 54(b) certificate. See Ark. R. Civ. P. 

54(b)(3); see also Lee v. Martindale, 363 Ark. 249, 213 S.W.3d 1 (2005).

The Bryants maintain that the certification is proper under Arkansas Rule of Civil 

Procedure 54(b), so they may appeal now. But the Brockintons ask us to dismiss the 

Bryants’ appeal because (1) we lack “subject matter jurisdiction” due to an untimely notice 

of appeal, (2) the Rule 54(b) certificate is deficient, and (3) the appealed orders do not 

describe the boundary line between the parties with enough specificity. 

On the first point, the Brockintons argue that the thirty-day window for filing a 

notice of appeal “should have started after [the June 4] non-final order.” Their rationale is 

that “the closing of the case [by entry of the June 2014 judgment] should operate as a clear 

directive to the parties that they should make the necessary preparations for appeal.” We 

reject this argument. 

The Bryants did not have to appeal within thirty days of the June 2014 order. 

Pursuant to Rule 41(a)(1) of the Arkansas Rules of Civil Procedure, a claim may be 
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dismissed without prejudice to a future action by the plaintiff before final submission of the 

case; but “it is effective only upon entry of a court order dismissing the action.” Ark. R. 

Civ. P. 41(a)(1) (2015). Rule 41 also applies to the dismissal of any counterclaim, crossclaim, or third-party claim. Ark. R. Civ. P. 41(c). The Rule 54(b) certificate in this case 

states that the Brockintons “dismissed their counterclaim without prejudice”—but only a 

written order by the circuit court is sufficient to dismiss a claim. Id.; see also Bevans v. 

Deutsche Bank Nat’l Tr. Co., 373 Ark. 105, 281 S.W.3d 740 (2008). Because there is no 

written order dismissing the counterclaim in the record, the June order was not final, absent 

a Rule 54(b) certificate. Because the June 2014 order was neither a final order nor certified 

pursuant to Rule 54(b), the Bryants did not have to appeal it within thirty days. 

We agree with the Brockintons’ second jurisdiction-related point and hold that the

Rule 54(b) certification was ineffective in this case. Here is the certificate: 

Rule 54(b) Certificate

With respect to the issues determined by the above judgment, the court finds:

1. That the Tim Tyler survey in this matter establishes the correct boundary line 

between the parties’ respective parcels of property; therefore, Plaintiffs failed to 

meet their burden of proof.

2. Defendants filed a counterclaim, however, they dismissed their counterclaim 

without prejudice. There has therefore been no ruling on the counterclaim 

which conceivably might be refiled since the dismissal was without prejudice.

3. The Plaintiffs state that they wish to appeal, and that the present ruling in this 

case should be susceptible to appeal at this time, because:

a. The ruling, until adjudicated upon appeal, 

infringes upon Plaintiffs’ free use and enjoyment 

of the real property;
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b. The ruling, until adjudicated upon appeal, 

infringes upon the Plaintiffs’ legal title to the real 

property; and 

c. There is no just reason to delay allowing 

Plaintiffs’ appeal so that the ownership of the real 

property may be decided; 

4. The Court finds that if the Plaintiffs are required to delay an appeal of the 

ruling until the conclusion of the time in which Defendants may refile their 

counterclaim and try it on the merits, the parties will be required to expend 

substantial amounts of time and money in discovery, motions and trial, some of 

which will require use of the Court’s time and resources as well, all of which may 

be unnecessary depending on the results of appellate review of the appeal of this 

case. Likewise, the parties’ claim to and free use and enjoyment of the disputed 

real property will be severely limited during the pendency of this litigation and 

appellate review of the same, resulting in hardship and/or injustice to the final 

prevailing party.

Upon the basis of the foregoing factual findings, the court hereby certifies, in 

accordance with Rule 54(b)(1), Ark. R. Civ. P., that it has determined that there 

is no just reason for delay of the entry of a final judgment and that the court has 

and does hereby direct that the judgment shall be a final judgment for all purposes.

Essentially, the circuit court gave four reasons why this appeal should be allowed 

without delay:

• The Brockintons may “refile their counterclaim.” 

• The parties “will be required to expend substantial amounts of time and 

money” which may be unnecessary if the Bryants win now on appeal. 

• A counterclaim may “require use of the Court’s time and resources.” 

• The Bryants’ “free use and enjoyment of the disputed real property” will 

be limited during the appeal “resulting in hardship and/or injustice.” 

These reasons do not adequately support an immediate appeal. The hardship or 

injustice of the Brockintons “refiling” their counterclaim is not an issue because the 

counterclaim has never been dismissed. And in any litigation, the parties may have to spend 
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time and money on any claim, whether there is a pending counterclaim or not. Further, 

when a court rules adversely against a party in a property dispute, the ruling will generally 

interfere with that party’s “free use and enjoyment of the disputed real property” from the

perspective of the party who has received the adverse ruling. The certification simply does 

not identify potential hardships or injustices likely to occur apart from the typical stress and 

expense of civil litigation. Nor does it detail facts that establish exigent circumstances. We

therefore conclude that the certification in this appeal does not satisfy the requirements of 

Rule 54(b). 

Because we are dismissing for lack of an appealable order pursuant to Rule 54(b), we 

need not reach the Brockintons’ third point, which is that the circuit court failed to include

a proper legal description in its “final” order. 

 Dismissed without prejudice. 

 ABRAMSON and GLOVER, JJ., agree. 

C. James Kubicek and Robert S. Tschiemer, for appellants. 

Greg Crumpton, P.A., by: Greg Crumpton; and Wilson & Haubert, PLLC, by: Stefan K. 

McBride, for appellees.