Independent Insurance Consultants, Inc. v. First State Bank

George Rose Smith, Justice, concurring. I wholly agree with the majority opinion, but I should like to set out other facts to show why the $21,000 claim against the bank is not a separable issue that can be finally determined without reference to the rest of the litigation.

This is a four-sided lawsuit involving claims and counter-claims asserted by (1) the original plaintiff, O’Brien’s administrator, (2) the original defendant, Tague, who was O’Brien’s employee and business associate, (5) the appellant-intervenor, IIC, Inc., in whose name O’Brien deposited O’Brien Insurance Agency funds, and (4) the appellee bank, which was the depository for the bank accounts in issue.

The pleadings comprise more than 300 typewritten pages. In the light of the pleadings filed so far (and there will certainly be more), the litigation requires a comprehensive accounting among the four sets of litigants. Their claims and counterclaims are so interwoven that it is impossible to pluck out one thread without affecting the rest of the fabric. Without going into great detail, here is a summary of the major contentions:

(1) O’Brien’s administrator, as plaintiff, originally charged Tague with having wrongfully converted to himself the assets and business of the O’Brien Insurance Agency, including $70,830 in premium earnings.

(2) IIC, Inc., owned 60% by O’Brien and 40% by Tague, asserted that the bank conspired with Tague to destroy IIC’s business, causing a loss of $250,000. The bank wrongfully allowed Tague to deposit to his own account more than $90,000 belonging to O’Brien and IIC. The bank wrongfully honored a $21,000 IIC check signed only by Tague, although O’Brien’s signature was also required. O’Brien’,§ administrator, the original plaintiff, adopted all IIC’s pleadings and joined in its prayers for relief against the bank.

(3) Tague filed a general denial and by cross-complaint sought judgment against IIC’s majority stockholders for conversion of corporate assets.

(4) The bank filed a general denial and sought judgment over against Tague in the amount of any judgment entered against the bank. The bank admitted that the $21,000 check was not properly signed but asserted that the money was used to pay legitimate IIC obligations. The bank listed 13 checks, totaling $26,855.16, drawn by Tague against the IIC account and asked IIC to admit that the expenditures were proper charges against IIC. IIC responded that none of the checks were used to pay legitimate claims.

At that point in the litigation the bank moved for summary judgment upon that part of IIC’s intervention which alleged that the $21,000 check had been wrongfully honored. This appeal is from a summary judgment upon that limited issue.

It seems plain that the summary judgment is not a final appealable order, because most of the litigation is still pending in the trial court. As the majority point out, it was settled by the Renner case and the Bell case that an order dismissing only part of a complaint is not final when other counts remain to be tried. That rule is demonstrably sound, especially as in almost every case the various counts in a complaint are interrelated. It will not do to say that Renner and Bell are distinguishable as having been decided on demurrer. In both cases the plaintiffs stood on their complaints, which were dismissed in part. In that situation the court’s order is ordinarily final. Davis v. Receivers St. L. L. & S. F. R. R., 117 Ark. 393 , 174 S.W. 1196 (1915); Melton v. St. Louis, I.M. & S. Ry., 99 Ark. 433 , 139 S.W. 289 (1911). It was not appeal-able in Renner and Bell only because other counts remained undisposed of, as in the case at bar.

Furthermore, even if the disposition of a separable cause of action could be regarded an an appealable order, the claim that the bank wrongfully honored a $21,000 check is not separable. It is alleged that the bank conspired with Tague to destroy an insurance business. The disposition of many other checks is involved in the conspiracy; the bank itself lists 13 of them. If the bank can appeal the court’s ruling with respect to one of the checks, I see no reason why it cannot take a separate appeal with respect to each one of the 13. These considerations serve simply to emphasize the fact that litigation such as this, involving a comprehensive accounting among several rival litigants, is peculiarly subject to the general rule forbidding piecemeal appeals.

Finally, this claim is not separable for yet another reason. O’Brien’s signature was admittedly required upon the check. O’Brien’s administrator also seeks judgment against the bank for its action in honoring the check, but the administrator was not involved in the summary judgment and is not a oar tv to this appeal. Consequently, even if we should decide the present appeal on its merits, our decision would be undeniably piecemeal, for the same issues could be brought to us again by O’Brien’s administrator after the case has ultimately been fried in the court below upon its merits.