Henderson v. Housing Authority of the City of North Little Rock5/3/2000
NOT DESIGNATED FOR PUBLICATION
EN BANC
DISMISSED
Boatmen's Trust Company of Arkansas, Guardian of the Estate of James Henderson, a minor, and Yolanda Henderson appeal from a summary judgment granted by the Pulaski County Circuit Court to the appellees, Housing Authority of the City of North Little Rock, Audubon Indemnity Company, Rheem Manufacturing Company, Noram Energy Corporation, and Crane Company. Appellants filed a personal injury action on behalf of James Henderson for injuries he received when he was scalded by hot water in a bathtub. In addition to the appellees, the complaint also named as defendants John Doe No. 1, John Doe No. 2, John Doe No. 3, John Doe No. 4, John Doe No. 5, John Doe No. 6, John Doe No. 7, John Doe No. 8, John Doe No. 9, and John Doe No. 10. On April 2, 1999, the trial court entered summary judgment for the appellees. Although the heading of the summary judgment listed the John Doe defendants, the judgment specified: "IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED that judgment be entered for the Defendants, Rheem Manufacturing Company, Housing Authority of the City of North Little Rock/Audubon Indemnity Company, Noram Energy Corporation d/b/a Arkla, and Crane Co." No order was entered dismissing the John Doe defendants from the lawsuit. On appeal, appellants raise nine issues for reversal of the summary judgment granted to appellees; however, we must dismiss their appeal for lack of a final appealable order.
Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure -- Civil provides that an appeal may be taken only from a final judgment, order, or decree entered by the trial court. Smith v. Smith, 337 Ark. 583, 990 S.W.2d 550 (1999); Mid-State Homes, Inc. v. Beverly, 20 Ark. App. 213, 727 S.W.2d 142 (1987). Whether a final judgment, decree, or order exists is a jurisdictional issue that this court has the duty to raise, even if the parties do not, in order to avoid piecemeal litigation. Id. Arkansas Rule of Civil Procedure 54(b) states that an order which disposes of fewer than all of the claims of all of the parties is not a final appealable order unless the court makes an express determination that there is a danger of hardship or injustice, which an immediate appeal would alleviate. See Freeman v. Colonia Ins. Co., 319 Ark. 211, 890 S.W.2d 270 (1995). See also Hambay v. Williams, 335 Ark. 352, 980 S.W.2d 263 (1998). When the trial court does not make the required certification, the order is not final for appellate purposes. Id.
In Shackelford v. Arkansas Power & Light Co., 334 Ark. 634, 976 S.W.2d 950 (1998), the appellant filed a wrongful death and survival action against Carrick and Pat Patterson, John Doe No. 1 and John Doe No. 2, and the appellee, Arkansas Power & Light Company (AP&L;. The trial court granted the appellant's motion to dismiss against the Pattersons, and on that same day, the appellant filed a second amended and substituted complaint, which listed AP&L;as the only defendant. At the hearing on AP&L;s motion for summary judgment, the appellant assured the trial court that AP&L;was the only remaining defendant. The trial court awarded AP&L;summary judgment, and although the caption of the summary judgment listed AP&L; the Pattersons, and John Doe No. 1 and John Doe No. 2 as the defendants, the last sentence of the order declared that "`the Motion for Summary Judgment of defendant, Arkansas Power & Light Company, Inc., is hereby granted and plaintiff's cause of action against said defendant is hereby dismissed in its entirety with prejudice.'" Id. at 635, 976 S.W.2d at 951. The appellant appealed the award of summary judgment to AP&L; but her appeal was dismisse
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