Mark Jackson v. Iberiabank ( 2022 )

Cite as 2022 Ark. App. 94ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-20-683
Opinion Delivered February 23, 2022
MARK JACKSON
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
V. SEVENTEENTH DIVISION
[NO. 60CV-16-5251]
IBERIABANK HONORABLE MACKIE M. PIERCE,
APPELLEE JUDGE
APPEAL DISMISSED WITHOUT
PREJUDICE
KENNETH S. HIXSON, Judge
This case returns to our court after we dismissed it without prejudice for lack of
jurisdiction. See Jackson v. IberiaBank, 2020 Ark. App. 372 (Jackson I). The Pulaski County
Circuit Court entered an order attempting to cure the deficiency, and appellant Mark
Jackson now appeals. We must again dismiss for lack of jurisdiction.
Appellant Mark Jackson is president and CEO of Kingridge Enterprises (Kingridge).
In August 2013, appellee IberiaBank’s predecessor in interest, Trust One Bank, extended an
open-ended line of credit to Kingridge. Simultaneously, Kingridge executed and delivered
to Trust One Bank a promissory note and security agreement in the principal amount of
$650,000. To secure repayment of the promissory note, Kingridge granted Trust One Bank
a security interest in all its equipment and accounts. To further secure repayment of the
promissory note, Jackson executed a guaranty whereby he guaranteed full and prompt
payment of the debts when due. In January 2014, IberiaBank acquired Trust One Bank’s
interests and obligations pertaining to the promissory note and collateral.
The promissory note matured in August 2014, at which time Kingridge was in default.
The parties subsequently entered into a series of forbearance agreements whereby they agreed
to modify the payment terms and maturity date. Under the last of the forbearance
agreements, the maturity date was extended to April 2016. According to IberiaBank,
Kingridge remained in default in April 2016.
In September 2016, IberiaBank filed a complaint against Kingridge and Jackson
alleging failure to perform their obligations under the promissory note and guaranty.
IberiaBank sought a judgment in personam against Kingridge and Jackson, jointly and
severally, and a judgment in rem against certain personal property belonging to Kingridge.
In June 2017, Kingridge filed for bankruptcy, and an automatic stay was issued that
prevented IberiaBank from pursuing Kingridge in the lawsuit during the stay. However,
Jackson did not file for bankruptcy, and the automatic stay did not apply to him.
In March 2018, IberiaBank filed a motion for summary judgment against only
Jackson, alleging that Jackson had breached the terms of the guaranty. In support of its
motion, IberiaBank provided copies of the promissory note and guaranty. IberiaBank also
attached to its motion the affidavit of its vice president for the special-assets department,
Mark Reiber. In Reiber’s affidavit, he averred that Kingridge had defaulted on the
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promissory note and forbearance agreements and that, despite demand, Jackson had refused
to pay the obligations under the promissory note and guaranty. Reiber stated in his affidavit
that there remained $629,677.39 in unpaid principal under the promissory note, along with
interest and other charges. Jackson filed a response opposing IberiaBank’s motion for
summary judgment, and a hearing was held on the motion.
In May 2019, the circuit court entered summary judgment against separate defendant
Mark Jackson. In its order, the circuit court found that there were no genuine issues as to
any material fact and that IberiaBank was entitled to judgment against Jackson as a matter
of law. The circuit court awarded IberiaBank a judgment against Jackson for $629,677.39
plus interest and other charges. Jackson appealed from the order of summary judgment, and
in Jackson I we dismissed the appeal without prejudice.
In Jackson I, citing Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure–Civil,
we stated that an appeal may be taken only from a final judgment or decree entered by the
circuit court. We stated further that the summary-judgment order entered by the circuit
court failed to dispose of the claims against Kingridge, and there was no accompanying Rule
54(b) certificate directing a final order as to fewer than all the claims or parties. Accordingly,
in Jackson I, we held that the order was not a final, appealable order and that we were barred
from considering the appeal.1 We concluded by stating:
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We noted that Kingridge’s bankruptcy did not affect the lack of finality based on our
prior holdings that an order is not final when it fails to dispose of all the parties, even if
those parties are under a bankruptcy stay. See, e.g., Ballard v. Ally Fin., Inc., 2016 Ark. App.
539, 505 S.W.3d 247.
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Our supreme court has repeatedly held that it is not enough to dismiss some
of the parties or to dispose of some of the claims; to be final and appealable, an order
must cover all of the parties and all of the claims. J-McDaniel Constr. Co. v. Dale E. Peters
Plumbing Ltd., 2013 Ark. 177. Because a final order has not been entered disposing
of all the parties and claims, we lack jurisdiction of this appeal, and it must be
dismissed.
Jackson I, 2020 Ark. App. 372, at 2.
We delivered Jackson I on September 2, 2020. On September 10, 2020, IberiaBank
filed in the Pulaski County Circuit Court a motion to dismiss its complaint against Kingridge
without prejudice. On September 14, 2020, the circuit court entered an order granting the
motion and dismissing the complaint against Kingridge with prejudice. On October 2, 2020,
the Jackson I mandate was issued. Jackson filed a notice of appeal on October 2, 2020.
Subject-matter jurisdiction is always open, cannot be waived, and can be raised by the
appellate court sua sponte, which we do in this instance. Lancaster v. Rogers Constr., Inc., 2020
Ark. App. 514, 612 S.W.3d 772; Box v. J.B. Hunt Transp., Inc., 2019 Ark. App. 334, 578
S.W.3d 719. Once the record is lodged in the appellate court, the circuit court no longer
exercises jurisdiction over the parties and the subject matter in controversy. Myers v. Yingling,
369 Ark. 87, 251 S.W.3d 287 (2007). In Barclay v. Farm Credit Services, 340 Ark. 65, 8 S.W.3d
517 (2000), our supreme court held that the appellate court takes jurisdiction of a matter
once the record on appeal is filed, and it loses jurisdiction to the circuit court once the
mandate is issued with the circuit court. The appellate court’s mandate is the official notice
of the action taken by the appellate court. Id. The mandate is directed to the circuit court,
and it instructs the circuit court to recognize, obey, and execute the appellate court’s
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decision. Id. Before the issuance of the mandate, no party to the lawsuit can obtain relief
from the circuit court for any matter that is “so intertwined with the primary litigation as to
be part and parcel of it.” James v. Williams, 372 Ark. 82, 87, 270 S.W.3d 855, 859 (2008).
Here, the circuit court attempted to cure the deficiency of Jackson I and dismissed the
outstanding complaint against Kingridge before our mandate had been issued. The circuit
court’s relief was not a collateral issue. Therefore, the circuit court’s September 14, 2020
order was entered without jurisdiction and is considered null and void. See Box, supra
(holding that actions taken by a court without jurisdiction are null and void). Accordingly,
the complaint against Kingridge has not been disposed of, and we still lack a final, appealable
order from which Jackson may appeal.
Appeal dismissed without prejudice.
WHITEAKER and MURPHY, JJ., agree.
David M. Littlejohn, for appellant.
Quattlebaum, Grooms & Tull PLLC, by: Geoffrey B. Treece and Mary-Tipton Thalheimer,
for appellee.
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