SUMMERS AS TRUSTEE OF PAUL SUMMERS REVOCABLE TRUST DATED AUGUST 19 2004 JMS LLC 18 1994 v. BANK OZK (2026)

This is a complex case that involves a receivership for a solid-waste district in northern Arkansas, six illegal-exaction lawsuits, and an injunction from the Pulaski County Circuit Court barring the taxpayers’ pursuit of those lawsuits.

We reverse and remand the circuit court's injunction order and dismiss without prejudice the taxpayers’ appeals of the illegal-exaction order and recusal order.

I. Background

The Ozark Mountain Solid Waste District (the “OMSWD”) was organized under Arkansas Code Annotated section 8-6-701 (Repl. 2022) to provide trash-disposal services to Baxter, Boone, Carroll, Marion, Newton, and Searcy Counties. We reference these counties collectively as “the District Counties.” In 2005, OMSWD issued revenue bonds for the purchase of a landfill and waste-hauling company located in Baxter County. Bank OZK (formerly known as Bank of the Ozarks) is the trustee for the bondholders and is the appellee in this appeal.

In 2012, OMSWD defaulted on the bonds, and the landfill was closed. OMSWD owed approximately $13 million the bonds, including principal and interest. OMSWD also owed money to the Arkansas Department of Environmental Quality (“ADEQ”) related to the remediation of the landfill. The matter with ADEQ is not at issue in this appeal.

On December 2, 2014, Bank OZK filed a complaint in the Pulaski County Circuit Court for appointment of a receiver over OMSWD. The case was assigned to Judge Timothy Fox. On May 15, 2015, a consent order appointed Geoffery Treece as receiver (the “Receiver”). In November 2016, the Receiver filed a report that included the OMSWD's assets and debts at that time. The Receiver recommended selling the landfill, hauling equipment, and parcels of real estate. Because these actions, combined with other revenue sources for OMSWD, would not satisfy the debt, the Receiver also recommend implementing an $18 charge to each residence and business located within OMSWD. This charge would remain in effect until the debts to Bank OZK and ADEQ were satisfied, which would take approximately twenty-five years.

The Pulaski County Circuit Court entered an order approving the Receiver's report and all recommendations therein on April 21, 2017 (the “Receivership Order”). The Receivership Order stated that the $18 charge was being billed “[p]ursuant to Ark. Code Ann. § 8-6-714(d) and other applicable law” and was to be invoiced as part of the District Counties’ ad valorem tax bills beginning in 2018. The Receivership Order directed that the proceeds from the charge be deposited into an account with Bank OZK, which would “act as payment agent free of charge to the District and/or the Receiver.” Bank OZK would be responsible for annual distribution of the proceeds to “the intended recipients.” The Receivership Order also directed the clerk to “close the case.” It further stated that the Receiver would retain his authority for three years and should “periodically report to the Court and the parties and to ․ seek rulings from the Court as may be necessary to adequately and fully address the matters contained in the Report and Recommendations and this Order.”

The District Counties’ tax assessors added the $18 charge to individuals’ and businesses’ ad valorem tax bills in 2018, and taxpayers in all six District Counties filed illegal-exaction actions in the circuit courts of those counties. Collectively, these lawsuits are referenced as “the Illegal-Exaction Lawsuits,” which were all filed in and litigated in the “Illegal-Exaction Courts.” The defendants in the Illegal-Exaction Lawsuits were OMSWD and the tax collector for the specific county. For the purposes of this factual overview, it is important to know that all six Illegal-Exaction Courts held that the $18 charge was an impermissible tax and ordered OMSWD to return the taxpayers’ money. In at least two of the Illegal-Exaction Lawsuits, OMSWD filed a notice of appeal. However, both were voluntarily dismissed after the records had been lodged. In other words, the holdings from the Illegal-Exaction Courts that the $18 charge was an illegal exaction have never been appealed, and the deadlines for such appeals have long passed.

Five of the six Illegal-Exaction Courts had ruled in favor of the taxpayers by April 2020. The taxpayers soon began attempting to collect the money that had been illegally exacted by serving writs of garnishment. On June 23, 2020, the taxpayers of Carroll County served a writ of garnishment on Bank OZK. Bank OZK answered that writ on June 24.

On June 25, Bank OZK filed a petition for interpleader in the Pulaski County Circuit Court, which, up to that point, had been involved only in the receivership. In the petition, Bank OZK asserted that it was not in a position to determine how the money from the collection of the $18 charge should be distributed and asked the Pulaski County Circuit Court to order it to interplead $2,339,686.59 (the “Collected Funds”) into the registry of the court. Bank OZK added the plaintiff taxpayers from the Illegal-Exaction Lawsuits as respondents to the interpleader, but the tax collectors were never brought into the Pulaski County action. The Pulaski County Circuit Court granted the petition for interpleader the next day and ordered Bank OZK to deposit the Collected Funds into the registry of the court. The summonses for the taxpayers who had been added as respondents had not yet been issued when Judge Fox ordered the interpleader.

On October 21, the Pulaski County Circuit Court entered an order halting the collection of the $18 charge. The taxpayers moved for Judge Fox to recuse himself on January 21, 2021, arguing that he was biased and that the Receiver had been acting as an arm of the court, effectively litigating against the taxpayers. Judge Fox denied the motion to recuse on May 11, 2022.

The Pulaski County Circuit Court then held a bench trial to determine which parties had valid claims to the Collected Funds. On June 9, the Pulaski County Circuit Court entered an order holding that it had jurisdictional priority over all the Illegal-Exaction Lawsuits and that none of the Illegal-Exaction Courts had jurisdiction over the controversy (the “June 2022 Order). Because of its application of the priority-jurisdiction rule, the Pulaski County Circuit Court held that all the orders from the Illegal-Exaction Courts were void. The Pulaski County Circuit Court amended the Receivership Order (which had been entered in 2017) to say that the $18 charge was to be collected under Arkansas Code Annotated section 8-6-806 instead of section 8-6-714(d). Further, the June 2022 Order stated that the Collected Funds should be released to Bank OZK immediately for distribution to the bondholders. The June 2022 Order also stated that after the issues were resolved on appeal, the Pulaski County Circuit Court intended to transfer the matter to the circuit court in the most populous county within the District and that “[t]his case is a classic example of why cases important to the citizens and residents of certain areas of the state should be initiated and tried in those areas.” The June 2022 Order concluded with a directive that the parties draft a Rule 54(b) certificate. There is no evidence in the record that a Rule 54(b) certificate was drafted until 2023.

The same day the Pulaski County Circuit Court entered the June 2022 Order, the taxpayers in Carroll County served another writ of garnishment on Bank OZK. The Carroll County Circuit Court entered an order of garnishment on June 12, 2023. When Bank OZK did not remit any funds pursuant to that order, the taxpayers filed a petition for contempt on July 14. The Carroll County Circuit Court granted that petition and ordered Bank OZK to pay $500 for each day it did not remit funds under the garnishment order. The Carroll County garnishment and contempt orders are subject to a separate appeal, also decided today. Bank OZK v. Summers, 2026 Ark. App. 334, ––– S.W.3d ––––.

Similarly, in Boone County, the taxpayers served a writ of garnishment on Bank OZK on June 10, 2022. The Boone County Circuit Court entered an order of garnishment on October 2, 2023. The Boone County garnishment order is subject to a separate appeal, also decided today. Bank OZK v. Tanner, 2026 Ark. App. 339, ––– S.W.3d ––––.

In response to the garnishment proceedings, Bank OZK filed a motion in Pulaski County on August 18, 2023, asking the Pulaski County Circuit Court to enjoin the taxpayers from continuing to prosecute their Illegal-Exaction Lawsuits. The Pulaski County Circuit Court granted that motion on September 1. The Pulaski County Circuit Court relied entirely on its June 2022 order as the reasoning for granting the injunction, stating, “The applicable law related to this case is ․ set forth in the [June] 2022 Order.” The Pulaski County Circuit Court went on to state, “This court has, and always had jurisdiction over this Receivership proceeding, as set forth in the applicable Arkansas statutes, including, but not limited to, the funds placed in the Registry of this Court.” The circuit court went on to assert that it “first acquired jurisdiction” and that all the parties were “bound by this Court's [June] 2022 Order, where all parties were present and all claims to the funds in dispute were fully litigated.” Finally, the circuit court concluded that the taxpayers “are enjoined from continuing the prosecution of the Writs of Garnishment and other actions, arising out of or related to the funds previously deposited into the registry of this Court and ruled on in the [June] 2022 Order.” The taxpayers filed a timely notice of appeal of the injunction.¹

After the entry of the injunction but before the notice of appeal was filed, Bank OZK filed a “Motion to Combine Pleadings” in which it asked the circuit court to attach a Rule 54(b) certificate to the June 2022 Order. The circuit court granted this motion to combine pleadings on September 21, which was after the taxpayers had filed their notice of appeal of the injunction. On September 22, a document was filed that consisted of a cover page with the title “Combined Docket Item per Judge Fox's 9-21-2023 Order Granting Motion” as well as a file-marked copy of the June 2022 Order ² and a separately file-marked Rule 54(b) certificate.³ We will reference this as the “Combined Order.”

The taxpayers amended their notice of appeal on September 29 and added to their appeal the Combined Order and the 2022 order denying their motion to recuse.

We will address the orders in the sequence in which they were appealed.

II. Injunction Order

This court reviews injunctive matters de novo. The decision to grant or deny an injunction is within the discretion of the circuit court. The standard of review is abuse of discretion.⁴

The taxpayers argue that the injunction entered by the circuit court prohibiting them from collecting funds awarded to them in the Illegal-Exaction Lawsuits is invalid. The purpose of the injunction was to enforce the June 2022 Order, which declared the Illegal-Exaction Courts’ orders void and found there was no illegal exaction. Further, the circuit court cited its reasoning from the June 2022 Order when it granted the injunction. Therefore, we must determine whether the circuit court had jurisdiction to enter the June 2022 Order because “[a] court that acts ․ in excess of its power produces a result that is void and cannot be enforced.”⁵

In the June 2022 Order, the Pulaski County Circuit Court found that it had priority jurisdiction with regard to the $18 charge that the taxpayers had challenged in the Illegal-Exaction Courts. The circuit court then went on to hold that because it had priority jurisdiction, the orders of the Illegal-Exaction Courts were void.

In certain situations, jurisdiction over a certain matter is proper in two or more courts. This is known as concurrent jurisdiction. The common-law principle of jurisdictional priority has developed to determine which court should hear the matter when concurrent jurisdiction exists.⁶ “Where concurrent jurisdiction is vested in different tribunals, ‘the first exercising jurisdiction rightfully acquires control to the exclusion of, and without interference of, the other.’ ”⁷

The supreme court and this court have both addressed jurisdictional priority in cases with concurrent jurisdiction. The supreme court in Allen ⁸ stated:

Where two actions between the same parties on the same subject, and to test the same rights, are brought in different courts having concurrent jurisdiction, the court which first acquires jurisdiction, its power being adequate to the administration of complete justice, retains its jurisdiction and may dispose of the whole controversy, and no court of coordinate power is at liberty to interfere with its action. This rule rests on comity and the necessity of avoiding conflict in the execution of judgments by independent courts, and is a necessary one because any other rule would unavoidably lead to perpetual collision and be productive of most calamitous results.

This language is taken from Corpus Juris Secundum and appears verbatim in many other cases, including Moore v. Price, 189 Ark. 117, 70 S.W.2d 563, 566 (1934); Askew v. Murdock Acceptance Corp., 225 Ark. 68, 72–73, 279 S.W.2d 557, 560–61; (1955) McCarther v. Green, 49 Ark. App. 42, 46, 895 S.W.2d 562, 565 (1995); Foster v. Hill, 372 Ark. 263, 266–67, 275 S.W.3d 151, 154–55 (2008).

Before determining which court has jurisdictional priority, it is important to determine whether the courts in question even had concurrent jurisdiction over the Illegal-Exaction Lawsuits.⁹ The courts in question are the Pulaski County Circuit Court and the Illegal-Exaction Courts. Bank OZK argues that there was concurrent jurisdiction and that the Pulaski County Circuit Court has jurisdictional priority. The taxpayers argue that the Pulaski County Circuit Court does not have jurisdictional priority; therefore, the June 2022 Order and injunction are void.

Concurrent jurisdiction is “a situation where two or more tribunals are authorized to hear and dispose of a matter[.]”¹⁰ In other words, concurrent jurisdiction occurs when two courts have the ability to hear a case and authority to act. This requires more than a narrow view of subject-matter jurisdiction.¹¹

Focusing on this case, the Pulaski County Circuit Court lacked jurisdiction because it did not have the authority to dispose of the matter. Illegal-exaction matters cannot be resolved without involving the taxing authorities in whatever jurisdiction has assessed the tax. The Pulaski County Circuit Court attempted to assert jurisdiction by citing in the June 2022 Order a statute that provides that a plaintiff is permitted to bring a lawsuit against a state official in Pulaski County. County tax assessors and county tax collectors are not state officers; they are county officers.¹²

Using a different context as an example, it is clear that a circuit court in one county can have subject-matter jurisdiction over an issue while still not having the jurisdiction needed to direct an official in a different county to act. This is exemplified in habeas corpus cases. The supreme court has held that a writ of habeas corpus cannot issue from a circuit court that is in a different county from where the prisoner is being held. This is because the writ directs an official who is holding the prisoner to perform an action. In other words, a court in one county does not have jurisdiction over an official who is performing duties only for a different county (the one that is holding the prisoner).¹³ Accordingly, the state's venue statutes require a plaintiff to file a lawsuit against a county official in the county for which the official was performing duties. Ark. Code Ann. § 16-60-103(2) (Repl. 2005). Although jurisdiction and venue are different, there is no authority stating that the principles cannot be related.

Bank OZK urges us to ignore the venue statute, but that approach is too narrow. In fact, the supreme court “has specifically stated that the common-law rule [of concurrent jurisdiction] is ‘wholly unrelated to subject-matter jurisdiction’[.]”¹⁴ This means the concept must encompass authority to act, as well. In this specific instance, that is exemplified by the venue statute, which requires that a lawsuit involving a county official's duties be filed in that county.

For these reasons, we hold that there is no concurrent jurisdiction over the Illegal-Exaction Lawsuits because the Pulaski County Circuit Court lacked the power to dispose of the Illegal-Exaction Lawsuits. Accordingly, the Pulaski County Circuit Court's injunction is also void.

III. Combined Order

In the June 2022 Order, recognizing the lack of finality, the circuit court directed the parties “to meet and confer and to submit to the court language that will satisfy the high court's current requirements for a meritorious Rule 54(b) certificate to be made part of this Order.” The Rule 54(b) certificate was filed fifteen months later, on September 1, 2023.

The following is taken directly from a very recent per curiam order of this court, Tate v. Phillips County:

Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure–Civil provides that an appeal may be taken from a final judgment or decree entered by the circuit court. Although the purpose of requiring a final order is to avoid piecemeal litigation, a circuit court may certify an otherwise nonfinal order for an immediate appeal by executing a certificate pursuant to Rule 54(b).[15]

A proper Rule 54(b) certificate grants finality to a judgment that is otherwise not final for appellate purposes. Rule 54(b)(1) requires that a proper certificate “shall appear immediately after the court's signature on the judgment.” Our supreme court has construed the word “shall” when used in our rules of civil procedure to mean that compliance is mandatory.[16] The plain language of the rule therefore requires that the certificate be located on the judgment immediately after the court's signature.[17]

As we noted in Watkins:¹⁸

The wisdom of placing the certificate on the judgment itself, rather than on a separate document, is apparent. The presence of the certificate is necessary to grant finality to the judgment. That, in turn, establishes the identity of the order appealed from, which must be included in the notice of appeal, and the date from which to calculate the deadline for filing the notice of appeal.

In Tate, quoted above, the Rule 54(b) certificate was a standalone document not located on the judgment. This court deemed it insufficient to permit an appeal and dismissed it without prejudice. Likewise, here, the Rule 54(b) certificate is a standalone document complete with its own case heading and caption. Entered some fifteen months after the June 2022 Order, it attempts to vest this court with jurisdiction to consider it.

On September 7, 2023, Bank OZK filed a motion to combine the June 2022 Order and the September 1, 2023, Rule 54(b) certification. On September 21, 2023, the circuit court granted the motion. Notably, in the consolidation order, the court directed the clerk to “file the two items combined with the Rule 54(b) Certification immediately following my signature on the June 9, 2022 Order.” While the order purports to cure the defective Rule 54(b) certificate—it being a separate document from the judgment—it is insufficient. The after-the-fact order consolidating the pleadings does not trump the statutory requirement that the Rule 54(b) certificate be placed on the judgment itself immediately following the court's signature. Here, it is a complete standalone document with its own case caption. Further, the record demonstrates that although the two pleadings were refiled together as instructed by the court, there were no changes to the documents themselves. Copies of the previously filed pleadings—with the original electronic filing dates—were simply reuploaded together in one electronic filing. Only the cover page displayed the new filing date. The June 2022 Order and the Rule 54(b) certificates themselves still display the original date each was filed. Therefore, the two do not have the same filing date; the dates are fifteen months apart. As stated above, the filing date is important to calculate the deadline for filing the notice of appeal.

Because the order is not final, the Rule 54(b) certificate is noncompliant with our rules, and the Combined Order does not cure the defects, we lack jurisdiction. This court is not at liberty to ignore jurisdictional rules. Therefore, we must dismiss the appeal of the Combined Order without prejudice

IV. Recusal Order

As detailed above, the appellants filed a motion for recusal that the circuit court denied on May 11, 2022. The appellants added this order to their amended notice of appeal.

The recusal order is not a final order.¹⁹ Certain interlocutory orders are appealable, and those are listed in Arkansas Rule of Appellate Procedure–Civil 2. An order denying a motion to recuse is not included.²⁰ Because our rules do not authorize an interlocutory appeal from the denial of a motion to recuse, we do not have jurisdiction to hear the appeal of that order.²¹ The appeal on the recusal order is, therefore, dismissed without prejudice.

V. Conclusion

For the reasons outlined above, the injunction order is reversed. The appeals of the Combined Order and the recusal order are dismissed without prejudice.

Reversed in part; dismissed without prejudice in part.

I join the majority's disposition of the injunction and recusal orders, but I disagree with its conclusion that the Rule 54(b) certificate in the Combined Order is noncompliant.

The Combined Order filed on September 22, 2023, has a cover page that states it is filed pursuant to Judge Fox's order, which granted the appellants’ motion to combine the June 2022 order and the Rule 54(b) certificate. The June 2022 order immediately follows the cover page, and the Rule 54(b) certificate immediately follows Judge Fox's signature on the June 2022 order.

Rule 54(b) requires:

(b) Judgment Upon Multiple Claims or Involving Multiple Parties.

(1) Certification of Final Judgment. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the 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. In the event the court so finds, it shall execute the following certificate, which shall appear immediately after the court's signature on the judgment ․

Ark. R. Civ. P. 54(b)(1) (emphasis added). In the Combined Order, the Rule 54(b) certificate appears immediately after the circuit court's signature page from the June 2022 order that is being appealed. Therefore, it complies with Rule 54(b).

I am mindful that the June 2022 order and the Rule 54(b) certificate each have separate file marks. However, the purpose of the circuit court's cover page, which is file-marked September 22, 2023, is to effectuate the court's order granting the appellants’ motion to combine the order being appealed with the Rule 54(b) certificate and to provide a clear date from which to file a notice of appeal. The appellants filed a timely notice of appeal from the September 22, 2023 Combined Order.

Moreover, Tate v. Phillips County, 2026 Ark. App. 141, is distinguishable. There, the Rule 54(b) certificate was a “stand-alone” certificate that did not immediately follow the court's signature on the order that was being appealed. In Tate, this court cited cases holding that the Rule 54(b) certificate was insufficient to vest jurisdiction because it was not “attached” to the court's order. As discussed by the majority, this court relied on Watkins v. City of Paragould, 2013 Ark. App. 539, in dismissing Tate. In Watkins, this court stated that the Rule 54(b) certificate was “not attached to the court's May 10, 2012 order; nor did it reiterate the findings and conclusions of law from the order, or incorporate or replicate the order in any way.” Id. at 2. I acknowledge the language quoted in the majority opinion that the “wisdom of placing the certificate on the judgment itself, rather than on a separate document, is apparent.” Tate, 2026 Ark. App. 141, at 3 (quoting Watkins, 2013 Ark. App. 539, at 3). And I agree it is a better practice. However, the Combined Order in this case is in substance an order with the Rule 54(b) certificate attached. The certificate does not stand alone. And again, the certificate “appear[s] immediately after the court's signature on the [order],” which is all the rule requires. To hold otherwise—as the majority does here—elevates form over substance.

For these reasons, I would hold that the Combined Order complies with Rule 54(b) and vests this court with jurisdiction. Accordingly, I would reach the merits of the appeal of the June 2022 order.

FOOTNOTES

1.   An order granting an injunction is immediately appealable. Ark. R. App. P.–Civ. 2(a)(6).

2.   The date on the file-mark for the June 2022 Order was the date it was originally entered: June 9, 2022.

3.   The date on the file-mark for the Rule 54(b) certificate was September 1, 2023.

4.   City of Dover v. City of Russellville, 363 Ark. 458, 460, 215 S.W.3d 623, 625 (2005).

5.   Rogers v. Rogers, 80 Ark. App. 430, 436, 97 S.W.3d 429, 433 (2003).

6.   Allen v. Cir. Ct. of Pulaski Cnty., 2009 Ark. 167, at 12, 303 S.W.3d 70, 77.

7.   Id. (quoting Patterson v. Isom, 338 Ark. 234, 239, 992 S.W.2d 792, 795 (1999)).

8.   Id. at 12, 303 S.W.3d at 77 (quoting Edwards v. Nelson, 372 Ark. 300, 303–04, 275 S.W.3d 158, 161 (2008)).

9.   No one is challenging the Pulaski County Circuit Court's jurisdiction over the receivership action.

10.   21 C.J.S. Courts § 253.

11.   River Bar Farms, L.L.C. v. Moore, 83 Ark. App. 130, 118 S.W.3d 145 (2003).

12.   See Dew v. Ashley Cnty., 199 Ark. 361, 364, 133 S.W.2d 652, 653 (1939).

13.   See, e.g., Perry v. State, 2018 Ark. 14, 535 S.W.3d 264.

14.   Magness v. Graddy, 2021 Ark. App. 119, at 11, 619 S.W.3d 878, 885 (quoting Foster v. Hill, 372 Ark. 263, 266, 275 S.W.3d 151, 154 (2008)).

15.   Jones v. Tri State Truss Co., 2020 Ark. App. 225, 599 S.W.3d 651.

16.   Watkins v. City of Paragould, 2013 Ark. App. 539 (citing Ray & Sons Masonry Contractors, Inc. v. U.S. Fid. & Guar. Co., 353 Ark. 201, 114 S.W.3d 189 (2003)).

17.   2026 Ark. App. 141, at 2; see Jones, 2020 Ark. App. 225, 599 S.W.3d 651; Prescott Sch. Dist. v. Steed, 2018 Ark. App. 424 (holding Rule 54(b) certificate insufficient to vest jurisdiction in appellate court because it was not attached to the court's order and did not contain the requisite findings and conclusions of law from the order); see also Belk v. Belk, 2017 Ark. App. 272; Spanier v. McCormick, 2014 Ark. App. 138 (holding Rule 54(b) certificate insufficient to vest jurisdiction solely because it was not attached to the order).

18.   2013 Ark. App. 539, at 2.

19.   See Shelter Mut. Ins. Co. v. Velazquez, 2025 Ark. App. 462, at 4, 721 S.W.3d 831, 834 (“A final order is one that dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy.”).

20.   See Ark. R. App. P.–Civ. 2(2)–(13).

21.   Manila Sch. Dist. No. 15 v. Wagner, 357 Ark. 20, 25, 159 S.W.3d 285, 290 (2004).

WAYMOND M. BROWN, Judge

Klappenbach, C.J., and Gladwin and Hixson, JJ., agree. Thyer and Wood, JJ., agree in part and dissent in part.