Kevin Shotzman et al. v. Mike Berumen III, M.D. et al.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

KEVIN SHOTZMAN AND HOLLY SHOTZMAN, Individually and as Parents and Next Friends of Jake Shotzman, a Minor,

APPELLANTS

v.

MIKE BERUMAN III, M.D.; SHANDRA HALL, R.N.; LAURA DAWKINS, R.N.; SISTERS OF MERCY OF THE ST. LOUIS REGIONAL COMMUNITY, INC. d/b/a ST. EDWARD MERCY MEDICAL CENTER; SISTERS OF MERCY HEALTH SYSTEM, ST. LOUIS, INC. d/b/a ST. EDWARD MERCY MEDICAL CENTER; SISTERS OF MERCY LIABILITY FUND; JOHN DOE 1; JOHN DOE 2 AND JOHN DOE 3,

APPELLEES

CA04-317

MAY 5, 2004

AN APPEAL FROM SEBASTIAN CIRCUIT, FORT SMITH DISTRICT, HON. J. MICHAEL FITZHUGH, JUDGE

(CIV2003-502V)

APPELLANT'S MOTION TO REMAND

APPEAL DISMISSED

Per Curiam

In this motion for remand, appellants assert that it appears from the record that there is no order terminating the litigation as to the three John Doe defendants and one named defendant, and that the judgment therefore is not final. Appellants move this court to remand the matter to the Sebastian County Circuit Court and revest that court with jurisdiction for the purpose of entry of a final judgment. We decline to remand the case; we dismiss the appeal without prejudice to re-file upon entry of a final order.

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, 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. Ark. R. Civ. P. 54(b)(1) (2003). 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. Absent the executed certificate, any judgment, order, or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties. Ark. R. Civ. P. 54(b)(2) (2003).

We do not have jurisdiction over a case that lacks a final order as to all defendants or a Rule 54(b) certification. See Moses v. Hanna's Candle Co., 353 Ark. 101, 110 S.W.3d 725 (2003) (dismissing the appeal where the record indicated that the circuit court had not entered a final order as to John Does 1-10 and the appeal was not certified pursuant to Rule 54(b)). In the present case, our review of the record convinces us that there is neither a final order as to all parties nor a Rule 54(b) certification to permit an immediate appeal, facts recognized by appellants. Therefore, the order is not final and we are without jurisdiction to address appellants' motion for remand. The appeal is dismissed without prejudice. 

Dismissed.