Mary E. Miller, Special Administrator of the Estate of Vincent Guy Miller, Deceased v. Centerpoint Energy Resource Corporation, a/k/a ARKLA, et al.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

EN BANC

CA05-841

March 1, 2006

MARY E. MILLER, Special Administrator AN APPEAL FROM PULASKI COUNTY

of the Estate of VINCENT GUY MILLER, CIRCUIT COURT

Deceased [NO. CV 04-7836/3]

APPELLANT

v. HONORABLE JAY MOODY,

CIRCUIT JUDGE

CENTERPOINT ENERGY RESOURCE

CORPORATION, a/k/a ARKLA, et al. DISMISSED

APPELLEES

Per Curiam

Appellant, Mary Miller, individually, and as special administrator of the estate of Guy Miller, appeals from orders entered by Pulaski County Circuit Court that granted summary judgment to appellees, Andy West and Dana West. We do not address the merits of this case because the orders appellant appeals from do not resolve all of her claims against all of the defendants and, therefore, this is not a final judgment as required by Ark. R. Civ. P. 54(b).

Appellant sued the defendants for injuries she received and for the wrongful death of her husband Guy Miller caused by an explosion from a gas leak in an apartment where they were temporarily living. In the complaint, appellant alleged that the defendants' negligence was the proximate cause of her injuries and the death of her husband. Appellant brought suit against the following defendants: Centerpoint Energy Resource Corporation (Centerpoint); Lois Martin; "Unknown Corporation, Limited Liability Company, Limited Liability Partnership, Sole Proprietorship, or Professional Association Lessee ... is believed to be an entity owned in whole or in part by Lois Martin" (Martin-Unknown Corporation); Wesley Pierce; Megan Roberts; Andy West; Dana West; and "Unknown Corporation, Limited Liability Company, Limited Liability Partnership, Sole Proprietorship, or Professional Association Lessor ... is believed to be an entity owned in whole or in part by Andy West and Dana West" (West-Unknown Corporation).

Appellant's addendum and the record reflect that separate defendants Andy and Dana West and Centerpoint filed answers to the complaint. The court granted dismissal on motions of separate defendants Lois Martin, individually, and Centerpoint. The trial court also granted appellant's motion to extend the time to effectuate service of process on defendants Wesley Pierce and Megan Roberts.

In an order entered, April 8, 2005, the court granted Andy and Dana West's motion for summary judgment, finding that appellant's cause of action against them was barred by the applicable statute of limitations; that the decedent was a licensee on the premises at the time of the occurrence; and that the Wests did not breach any duty allegedly owed to the decedent. The court denied appellant's motion for reconsideration, and appellant then appealed the trial court's award of summary judgment to separate defendants Andy and Dana West.

Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure-Civil provides that an appeal may be taken only from a final judgment or decree entered by the trial court. The question of whether an order is final and subject to appeal is a jurisdictional question that this court will raise on its own. Moses v. Hanna's Candle Co., 353 Ark. 101, 110 S.W.3d 725 (2003). Arkansas Rule of Civil Procedure 54(b) provides that, when more than one claim for relief is presented in an action or when multiple parties are involved, an order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not a final, appealable order. See Hambay v. Williams, 335 Ark. 352, 980 S.W.2d 263 (1998); South County, Inc. v. First W. Loan Co., 311 Ark. 501, 845 S.W.2d 3 (1993). In Shackelford v. Arkansas Power & Light Co., 334 Ark. 634, 976 S.W.2d 950 (1998), the supreme court dismissed the appeal of the summary judgment awarded to appellee Arkansas Power and Light because an order of dismissal had not been entered for the appellant's claims against the separate defendants John Doe 1 and John Doe 2 and, therefore, the appellant's claims against them remained pending.

Rule 54(b) allows a trial court, when it finds no just reason for delaying an appeal, to direct entry of a final judgment as to fewer than all the claims or parties by executing a certification of final judgment as it appears in Rule 54(b)(1). However, absent this required certification, any judgment, order, or other form of decision that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action. See Jackson v. Delis, 76 Ark. App. 436, 67 S.W.3d 596 (2002).

In the instant case, there is no final order disposing of appellant's claims against defendants "Martin-Unknown Corporation," Wesley Pierce, Megan Roberts, and "West-Unknown Corporation," nor is there a Rule 54(b) certification. We therefore do not have jurisdiction to hear this appeal.

Appeal dismissed without prejudice.