Vanessa Sturgis v. Norman C. Clifton, et al.

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

EN BANC

CA00-981

May 2, 2001

VANESSA STURGIS AN APPEAL FROM PULASKI COUNTY

APPELLANT CIRCUIT COURT, Seventh Division

NO. CV 99-670

V.

HONORABLE JOHN B. PLEGGE,

NORMAN C. CLIFTON, et al. CIRCUIT JUDGE

APPELLEES

DISMISSED

Vanessa Sturgis appeals a summary judgment awarded by the Pulaski County Circuit Court that dismissed her claims for fraud and conversion brought against appellees, Norman E. Clifton, individually; Norman Clifton Auto Parts, Inc., f/k/a Clifton's Auto Parts & Salvage, Inc.; Arkansas Truck Parts, Inc., d/b/a Norman Clifton Auto Parts; Clifton's Auto Recycling, LLC; Norman E. Clifton, Executor of the Estate of James G. Clifton; Estate of James G. Clifton; Kenneth Clifton; and Ann Brown, f/k/a Ann Clifton. The judgment, however, did not dispose of her claims against defendants John Doe Life Insurance Company No. 1, John Doe Insurance Company No. 2, John Doe Insurance Company No. 3, and John Doe Automobile Insurance Company No. 4. Because the judgment is not a final order, we dismiss.

The controversy in this case involves the death of appellant's husband who was killed in an automobile accident in 1968, while working for his father, James G. Clifton. Appellant claims that James Clifton, shortly before his own death in 1996, confessed to her that he and others had conspired to defraud her of her husband's life insurance benefits. In her complaint, filed in 1999, appellant alleged that James Clifton had confessed to the entire fraudulent scheme, named his co-conspirators in the fraud, and defined the role each one played in perpetrating the fraud. In addition to the above-mentioned appellees, appellant named as defendants James D. McElhanon, McElhanon Insurance Agency, Woodmen of the World, Woodmen of the World Life Insurance Society and/or Omaha Woodmen Life Insurance, and Woodmen Accident and Life Company. She alleged that they, along with the John Doe defendants, had obtained the death benefits in accordance with the terms of their insurance policies but then conspired with James Clifton and the appellees to divert the benefits from her. Appellant sought damages in an amount equal to the life insurance proceeds, together with damages for the denied use of those proceeds for a period of thirty years, punitive damages, costs, and attorneys' fees.

In May 1999, appellant filed a "First Amended Complaint," which did not include defendants John Doe Bank No. 1 and John Doe Bank No. 2, although they had been named as defendants in her original complaint. In July and August 1999, appellant's motions to dismiss separate defendants Woodmen of the World and Woodmen of the World/Omaha Woodmen Life Insurance Society were granted. Thereafter, separate defendants James D.McElhanon and McElhanon Insurance Agency, Inc., f/k/a McElhanon Insurance Agency, moved for summary judgment, and their motion was granted in March 2000. On June 13, 2000, the court dismissed appellant's suit against appellees and granted appellees summary judgment. The court held that appellant's action against them was barred by the statute of limitations. It is from that ruling that appellant brings this appeal.

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). The order in the case at bar dismissed the appellees but did not dismiss appellant's claims against the John Doe defendants. 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 the appellee, Arkansas Power & Light, where it found that the appellant's claims against John Doe 1 and John Doe 2 were still pending. The court held:

In the case before us today, it is clear that the trial court has not entered a final order as to the two John Doe defendants. Pursuant to Ark. R. Civ. P. 41(a), a plaintiff may file a motion requesting a voluntary dismissal (or nonsuit) of a claim or claims against one or all of the defendants. As mentioned above, Ms. Shackelford filed such a motion as to the Pattersons, and the trial court entered an order of dismissal as to the Pattersons only on October 6, 1997. Ms. Shackelford, however, did not file a motion for a voluntary dismissal (or nonsuit) as to John Doe 1 and 2. Even if we assume that Ms. Shackelford's second amended and substituted complaint was in the nature of a motion to dismiss her claims against John Doe 1 and 2, there is no order in the record granting such a dismissal against these two defendants. In Blaylock v. Shearson Lehman Bros., Inc., 330 Ark. 620, 954 S.W.2d 939 (1997), we recently held that the mere filing of a motion to dismiss isinsufficient to conclude the action. Instead, the claim against the defendant remains until the trial court enters an order of dismissal. Id. Stated differently, an order of dismissal (or nonsuit) does not become effective until it is entered. Id.; see also Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989).

Shackelford v. Arkansas Power & Light, 334 Ark. at 636, 976 S.W.2d at 951-52. The record in the present case does not indicate that any orders have been entered by the circuit court that dispose of appellant's claims against the John Doe defendants.

Whether an order is final for purposes of appeal is a jurisdictional issue that this court is required to raise even if the parties do not. Hambay v. Williams, supra. A trial court may direct entry of a final judgment as to fewer than all the claims or parties in a lawsuit only upon an express determination, supported by specific factual findings, that there is no just reason for delay. See Ark. R. Civ. P. 54(b). Such a determination was not made in this case. In the absence of such express determination, the order is not appealable. See Stratton v. Arkansas State Highway Comm'n, 323 Ark. 740, 917 S.W.2d 538 (1996).

The appeal is dismissed without prejudice to refile at a later date.