Judy Beaver and Jimmy Beaver v. John Q. Hammons Hotels, L.P., et al.

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

EN BANC

JUDY BEAVER and JIMMY BEAVER

APPELLANTS

V.

JOHN Q. HAMMONS HOTELS, L.P., JOHN Q. HAMMONS HOTELS, INC., JOHN DOES 3-5

APPELLEES

CA02-62

August 28, 2002

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[NO. CIV 2000 343]

HON. JOE MICHAEL FITZHUGH,

JUDGE

APPEAL DISMISSED

This is a slip-and-fall case. On April 28, 1997, appellant Judy Beaver was attending a work-related seminar at the Fort Smith Holiday Inn Convention Center when she and some of her co-workers went to lunch at the hotel's restaurant. As she approached the buffet, she slipped, catching herself on one of her co-workers before completely falling. Approximately six weeks later, she sought treatment and was eventually diagnosed with a central disc herniation at L4-5. She filed a workers' compensation claim, alleging that she had suffered a compensable back injury during the scope and course of her employment. The Commission denied her benefits on two grounds: 1) she was not benefitting her employer at the time of the incident; and 2) she failed to prove that the incident caused internal or

external physical harm to the body. Appeal was taken to this court, and we agreed with the Commission that Mrs. Beaver was not engaged in employment services at the time she fell. The second basis for the Commission's holding was not discussed in our opinion. See Beaver v. Benton County Child Support Unit, 66 Ark. App. 153, 991 S.W.2d 618 (1999).

On April 25, 2000, Mrs. Beaver and her husband sued John Q. Hammons Hotels, L.P., owner of the hotel; John Q. Hammons Management Company, manager of the hotel; and John Does I, II, III, IV, and V. The complaint alleged that the defendants negligently caused a liquid substance to be on the floor of the hotel restaurant and failed to clean it up, thus proximately causing Mrs. Beaver's fall and resulting injuries. John Does I and II were described in the complaint as "tortfeasors who are associated with the two named Defendants in the operation and management of the restaurant or other aspects of operation and management of the hotel ... but whose identities are currently unknown." John Does III, IV, and V were described as "employees of one or more of the other Defendants who were working with the buffet line at the hotel...but which employees are currently unidentified and thus are unknown tortfeasors...."

In an amended complaint filed August 22, 2000, the Beavers identified John Doe I as John Q. Hammons Hotels, Inc., an entity that was in fact the manager of the hotel, rather than the previously named John Q. Hammons Management Company. The new entity was substituted for the old in the caption of the amended complaint and, even though only John Doe I had been identified, both John Doe I and John Doe II were deleted from the caption. John Does III, IV, and V remained.

On October 22, 2001, the named defendants filed a motion for summary judgment arguing that, because the Workers' Compensation Commission had determined that Mrs. Beaver had not proved internal or external physical harm resulting from the fall, she was collaterally estopped from litigating that issue in the present action. The trial court agreed and granted the motion in an order styled Judy Beaver and Jimmy Beaver v. John Q. Hammons Hotels, L.P.; John Q. Hammons Hotels, Inc., John Does III, IV, and V. The claims against John Does III through V were never expressly dismissed and thus are still pending. For that reason, we must dismiss the appeal for lack of a final order.

When multiple parties are involved in an action, the trial court may direct the entry of a final judgment as to one or more but fewer than all of the parties only upon express determination, supported by specific factual findings, that there is no just reason for delay and upon express direction for entry of judgment. See Ark. R. Civ. P. 54(b). In the event the trial court makes such a determination, it shall execute a certificate setting out its findings, as required by subsection (b)(1) of Rule 54. In the absence of such a certificate, a judgment or order that adjudicates the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the parties. See Ark. R. Civ. P. 54(b)(2). The failure to comply with Rule 54 presents a jurisdictional issue that we are required to raise on our own, even if the parties do not. See Martin v. National Bank of Commerce, 316 Ark. 83, 870 S.W.2d 738 (1994).

An order may be non-appealable if it fails to dispose of claims against John Doe defendants. See Shackleford v. Arkansas Power & Light Co., 334 Ark. 634, 976 S.W.2d 950(1998); Van DeVeer v. George's Flowers, Inc., 76 Ark. App. 408, 65 S.W.3d 488 (2002). In Van DeVeer, a negligence case, the plaintiff sued George's Flowers, the party on whose premises he fell, along with three John Doe defendants. Later, two other parties intervened. George's filed a motion for summary judgment, which was granted, but the order did not mention the John Doe defendants or the intervenors. We dismissed the appeal and said:

The record in the present case does not indicate that any orders have been entered by the circuit court disposing of the intervenors' claims or disposing of Van DeVeer's claims against the John Doe defendants.... Because there is no final order as to all parties or a Rule 54(b) certification that would justify an immediate appeal, we do not have jurisdiction to hear this case.

Id. at 411.

In Shackleford, the defendant, AP&L, moved for summary judgment. The trial court granted the motion and dismissed the plaintiff's complaint against AP&L. However, the plaintiff's claims against two John Doe defendants, one of whom was still listed in the caption of her complaint and one of whom had been deleted, were not addressed in the trial court's order. The supreme court held that the claims against both John Does remained pending because, even though one of the Does had been deleted from the caption of the case, there had been no dismissal of either of them.

The case at hand is very similar to the above-cited cases in that summary judgment was granted on the basis of a motion filed by the named defendants without disposing ofclaims against the John Doe defendants. Therefore, we dismiss the appeal without prejudice to re-file upon entry of an order that is compliant with Rule 54(b).1

Appeal dismissed.

1 An exception to the "John Doe Rule" was recently formulated by the supreme court in D'Arbonne Constr. Co. v. Foster, 348 Ark. 375, ___ S.W.3d ___ (2002). There, two John Doe defendants remained in the caption of the case. However, the case had been tried to a jury, and a verdict was entered allocating 100% of the responsibility to two of three named defendants. The court held that, under such circumstances, the order was final, and it expressly distinguished that situation from situations involving summary judgment, such as here and in Shackleford, in which the John Doe claims were not abandoned and extinguished.