DAVID M. GLOVER, Judge.
This case evolves from a real-estate contract entered into in October 2002 by appellees — James Read, Mary Read, Clarence Conwell, and Jane Conwell — and appellant Teddy Overturff. The appeal must be dismissed because there is no final, appealable order.
The real-estate contract provided that Overturff would purchase the land over 180 months; that upon execution of the
In September 2005, while Overturff was still making payments on the property, the Reads and Conwells entered into an oil-and-gas lease on the property with Western Land Services, Inc., for an initial period of five years; the lease provided, in part, for a one-sixth royalty payment, a one-time damage payment of $5,000 for each well drilled and $10 per rod for all access roads and/or pipelines constructed on the leased property, as well as possible shut-in royalty payments. Furthermore, the lease provided that it could be extended, at Western's option, for an additional five years for an extension payment of $250 per acre. The lease was entered into without the consent or knowledge of Overturff.
In February 2009, Overturff filed a complaint against the Reads and Conwells, Western Land Services, and Petrohawk Properties, LP.
The Reads and Conwells filed an answer to Overturff's complaint and a cross-claim against Western Land in March 2009. They alleged in the cross-claim that Western Land represented that it would research the title of each property covered under the lease, determine if it had been subject to any real-estate sales contract previously entered, and exclude any property from the lease that was subject to a real-estate contract; that Western Land had a duty to ensure that each property in the lease was not encumbered by a real-estate contract; and that Western Land
In its answer, Western Land alleged that it was a bona fide purchaser, that the oil-and-gas lease should be upheld, and that the lease had priority over the real-estate contract alleged in Overturff's complaint. Petrohawk alleged that the lease should be upheld and have priority over Overturff's interest, as it was a bona fide purchaser and its receipt of the assignment of the lease had priority over Overturff's real-estate contract.
Overturff amended his complaint in May 2009, incorporating all of the allegations and averments of his original complaint and alleging that he suffered further damages in the form of reduced royalties; that the Reads' and Conwells' actions of leasing the mineral rights after execution of the escrow contract breached the implied covenants of good faith and fair dealing, which was the proximate cause of Overturff's damages; and that the Reads' and Conwells' leasing of the mineral rights and their conscious disregard for his contractual rights was an intentional interference with Overturff's right to lease his mineral interests by impairing title when it was reasonably foreseeable that their lease would interfere with Overturff's ability to lease the mineral rights. Overturff further alleged that the Reads and Conwells had committed fraud and usury by collecting illegal interest and not crediting him with the lease bonuses paid. Overturff provided proof that he paid off the real-estate contract and filed the warranty deed in October 2007 by attaching the recorded deed to his amended complaint. As to Western Land and Petrohawk, Overturff alleged that he was in actual, open, and notorious possession of the property; that such possession was sufficient to show that Western Land and Petrohawk were not innocent purchasers for value; that Western Land and Petrohawk were made aware and were on notice by both the words and actions of the Reads and Conwells and Overturff's actual possession of the property; and that the oil-and-gas lease should be declared null and void.
In November 2009, Western Land and Petrohawk filed a counterclaim against Overturff, alleging that at the time the oil-and-gas lease was entered into with the Reads and Conwells, the real-estate contract was not filed of record, and therefore Western Land had no record notice of the real-estate contract; and because there was no actual or record notice, Western Land was a bona fide purchaser, the lease was valid, and the lease had priority over the real-estate contract. The counterclaim further alleged that the real-estate contract was not of record at the time the lease was assigned to Petrohawk, and because there was no actual or record notice, Petrohawk was also a bona fide purchaser.
In January 2010, Western Land and Petrohawk filed a cross-claim against the Reads and Conwells, alleging that the oil-and-gas lease provided that the Reads and Conwells warranted and agreed to defend title to the leased property and that the cross-defendants had not yet resolved the title dispute or offered a defense to Western Land and Petrohawk. Western Land and Petrohawk contended that if Overturff prevailed on his claim, the Reads and Conwells would have breached the warranty of title provision and would be liable to Western Land and Petrohawk for damages.
In April 2010, the Reads and Conwells filed a motion for summary judgment; Western Land and Petrohawk filed a motion to adopt the motion as their own. In August 2011, Western Land and Petrohawk filed a separate motion for summary
No evidence was taken on these motions. The trial court entered its order on November 4, 2011. The body of the opinion and order provided, in pertinent part:
Overturff filed a notice of appeal on November 7, 2011. On appeal, he argues that the trial court erred in awarding damages on summary judgment; that the amount of damages awarded was wholly inadequate; and that the trial court erred in not allowing his claims for intentional tort of interference with a contract and for fraud to proceed to trial. We must dismiss this appeal because it is not a final, appealable order.
"An order that fails to adjudicate all of the claims as to all of the parties, whether presented as claims, counterclaims, cross-claims, or third-party claims, is not final for purposes of appeal." Office of Child Support Enforcement v. Willis, 341 Ark. 378, 380, 17 S.W.3d 85, 87 (2000). Here, it appears that the trial court's order granted summary judgment to Overturff on a breach-of-contract theory and to Western Land/Petrohawk on a bona fide-purchaser theory.
There is a second reason that this order is not a final, appealable order. To be final, an order "must be of such a nature as to not only decide the rights of the parties, but also to put the court's directive into execution, ending the litigation or a separable part of it." Lee v. Konkel-Swaim, 73 Ark.App. 429, 430, 43 S.W.3d 767, 769 (2001). The order appealed from does not set forth a sum certain due to Overturff
Appeal dismissed.
WYNNE and BROWN, JJ., agree.