Penny Jean Plumblee Simon v. Farmers Insurance Company, Inc.

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION IV

PENNY JEAN PLUMBLEE SIMON

APPELLANT

v.

FARMERS INSURANCE COMPANY, INC.

APPELLEE

CA 00-380

NOVEMBER 29, 2000

APPEAL FROM THE CARROLL COUNTY CIRCUIT COURT, EASTERN DISTRICT,

[CIV 97-54-1]

HONORABLE ALAN DAVID EPLEY, CIRCUIT JUDGE

APPEAL DISMISSED

Penny Simon appeals the circuit court's grant of partial summary judgment to appellee Farmers Insurance Company. Simon sued Farmers for breach of contract, seeking to recover uninsured motorist benefits under two policies issued to her parents. Simon claimed that she was entitled to stack the two polices. She also alleged that Farmers acted in bad faith and sought punitive damages. The trial court found that the two insurance policies issued by Farmers were unambiguous and did not allow stacking of the uninsured motorist benefits. Simon then voluntarily dismissed without prejudice her bad faith and punitive damages claims and appealed the trial court's award of summary judgment on the breach of contract claim. Simon argues on appeal that the trial court erred in granting Farmers' motion for summary judgment. Because this judgment is not an appealable order, we dismiss this appeal.

For this court to have jurisdiction over an appeal, the order appealed from must either be a final order or meet one of several exceptions not applicable here under Ark. R. App. P. 2(a). Becausethe issue is one of jurisdiction, it is a matter we will consider even though the parties do not raise it. Haile v. Arkansas Power & Light Co., 322 Ark. 29, 907 S.W.2d 122 (1995).

It is apparent from the record that the summary judgment entered by the trial court was an interlocutory order, even though it recites that it is a final judgment and that no issues remain before the trial court for resolution. No issues remain pending in the trial court because Simon dismissed without prejudice counts II and III of her complaint, and she will be free to pursue her remaining claims if this appeal is decided in her favor. The parties to a lawsuit cannot create a final order by taking a voluntary nonsuit dismissing their remaining claims without prejudice. See Haile, supra; Ratzlaff v. Franz Foods of Ark., 255 Ark. 373, 500 S.W.2d 379 (1973); French v. Brooks Sports Ctr., Inc., 57 Ark. App. 30, 940 S.W.2d 507 (1997); and Community Dialysis Ctrs, Inc. v. Mehta, 32 Ark. App. 121, 797 S.W.2d 480 (1990).

However, an order such as the one issued in this case may be appealed under Rule 54(b) of the Arkansas Rules of Civil Procedure, when the trial court directs the entry of a final judgment as to one or more of the claims or parties and makes express findings that there is no just reason to delay the appeal. Wormald U.S., Inc. v. Cedar Chem. Corp., 316 Ark. 434, 873 S.W.2d 152 (1994). Here, the trial court treated the dismissal of the remaining claims as resolving the question of finality and did not attempt to enter a Rule 54(b) order. Thus, because the order does not comply with Rule 54(b), we dismiss this appeal without prejudice to reinstate the dismissed counts and seek an order in compliance with Rule 54(b).

Appeal dismissed.

Griffen and Pittman, JJ., agree.