Billy Joe Moody v. Farm Bureau Mutual Insurance Company et al.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CA04-23

December 1, 2004

BILLY JOE MOODY AN APPEAL FROM PULASKI COUNTY

APPELLANT CIRCUIT COURT

[2001-5816]

v.

HONORABLE BARRY SIMS,

FARM BUREAU MUTUAL CIRCUIT JUDGE

INSURANCE COMPANY, et al.

APPELLEES APPEAL DISMISSED

Terry Crabtree, Judge

Appellant Billy Joe Moody appeals from the entry of summary judgment in favor of appellees. We dismiss the appeal for lack of a final order.

Moody was hired in 1981 to serve as the Sebastian County area manager for appellees Farm Bureau Mutual Insurance Company, Southern Farm Bureau Casualty Insurance Company, and Southern Farm Bureau Life Insurance Company (collectively, the "insurance companies"). He was also to serve as the manager for appellee Sebastian County Farm Bureau, a part of appellee Arkansas Farm Bureau Federation. His employment was terminated effective June 1, 1999, following allegations of sexual harassment. After his termination, appellant filed suit, later amended, alleging breach of contract, promissory estoppel, fraud and deceit, and tortious interference. The insurance companies moved for summary judgment, alleging that appellant was terminated for cause. The trial court granted the motions for summary judgment, finding that there were no genuine issues of material fact concerning the claim that a six-month period was included in the contracts appellant signed in 1998. This appeal followed.

When more than one claim for relief is presented in an action or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment. See Ark. R. Civ. P. 54(b)(1) (2004). In the event the court so finds, it shall execute a Rule 54(b) certificate, which shall appear immediately after the court's signature on the judgment and which shall set forth the factual findings upon which the determination to enter the judgment as final is based. See id.

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. An order is not final when it adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties. Norman v. Norman, 342 Ark. 493, 30 S.W.3d 83 (2000). For an order to be final, it must dismiss the parties from the trial court, discharge them from the action, or conclude their rights to the subject matter in controversy. Reed v. Arkansas State Highway Comm'n, 341 Ark. 470, 17 S.W.3d 488 (2000). 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. Shackleford v. Arkansas Power & Light Co., 334 Ark. 634, 976 S.W.2d 950 (1998); Mid-State Homes, Inc. v. Beverly, 20 Ark. App. 213, 727 S.W.2d 142 (1987).

The order appealed from in this case does not resolve or otherwise dispose of appellant's promissory estoppel, fraud, or tortious interference claims, nor does it contain a Rule 54(b) certificate. The trial court's order stated that the motion should be granted "for the reasons argued" and that "there is no genuine issue of material fact or law concerning the claim that a six-month waiting period was included in the contracts executed by [appellant] in 1998." Unlike Jackson v. Ivory, 353 Ark. 847, 120 S.W.3d 587 (2003), the inclusion of the specific reference to the contract claims renders the present order not final because it fails to dispose of appellant's other claims. In Jackson, the appellant made negligence and estoppel arguments on appeal. The appellees asserted that the estoppel point was not preserved because the trial court did not rule on the issue. The supreme court disagreed, noting that the order granting summary judgment stated that "[t]here is no genuine issue as to any material fact." Id. at 862, 120 S.W.3d at 596. Thus, the supreme court held that the estoppel issue was properly preserved for appeal.

In light of the above, we dismiss the appeal without prejudice.

Dismissed.

Griffen and Baker, JJ., agree.