Jessie Johnson v. Alvin Simes

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

EN BANC

CA04-77

September 29, 2004

JESSIE JOHNSON AN APPEAL FROM PHILLIPS COUNTY

APPELLANT CIRCUIT COURT

[NO. CIV2002-102]

v.

HONORABLE HARVEY YATES,

ALVIN SIMES CIRCUIT JUDGE

APPELLEE

DISMISSED

Per Curiam

Appellant Jessie Johnson, acting pro se, has appealed from the dismissal of his complaint against appellee, attorney Alvin Simes. Johnson sued Simes and two other attorneys, Dion Wilson and Don Trimble, for fraud and bad faith in settling a claim. However, the record contains only an order of dismissal against Simes; it contains no order dismissing Wilson and Trimble.

When a plaintiff appeals from the dismissal of only one defendant and his suit against other defendants remains pending, the trial court has not yet entered a final order, and the appeal must be dismissed. See Ark. R. Civ. P. 54(b) (2004); see also Pardon v. Southern Farm Bureau Cas. Ins. Co., 312 Ark. 198, 848 S.W.2d 412 (1993); Poston v. Fears, 309 Ark. 413, 828 S.W.2d 845 (1992). A trial court may execute a certificate to allow for an immediate appeal in such cases, see Ark. R. Civ. P. 54(b)(1), but that was not done in this case. Therefore, we must dismiss Johnson's appeal.

We observe that the trial court's docket sheet indicates that the court may have entered an order dismissing Wilson and Trimble. However, Johnson did not designate that order for inclusion in his record on appeal, and we cannot rely on the docket notation as a substitute. See generally Hollaway v. Berenzen, 208 Ark. 849, 851, 188 S.W.2d 298 (1945).

Our dismissal of this case is without prejudice. Johnson may refile his appeal if he can provide a record to this court containing a certified copy of the order dismissing Wilson and Trimble, if such an order exists. In the absence of such an order, only a Rule 54(b) certificate from the trial court would allow for an appeal at this time.

Dismissed.