Rosa Owen, Individually and as Parent and Next Friend of Ashley Owen, a Minor v. Continental Insurance Company

Annotate this Case
ca04-593

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

EN BANC

CA04-593

September 29, 2004

ROSA OWEN, Individually and as Parent AN APPEAL FROM WASHINGTON

and Next Friend of Ashley Owen, a minor, COUNTY CIRCUIT COURT

APPELLANT [NO. CIV2003-1069-1]

v.

HONORABLE WILLIAM STOREY,

CONTINENTAL INSURANCE CO. CIRCUIT JUDGE

APPELLEE

DISMISSED

Per Curiam

Appellant appeals from a summary judgment entered in favor of appellee Continental Insurance Company (also referred to in the proceedings below as Encompass Insurance Company). Because the order appealed from does not dispose of all of the claims against all of the defendants named in the lawsuit or contain a certificate for an immediate appeal as allowed by Ark. R. Civ. P. 54(b)(2) (2004), we dismiss the appeal for lack of a final order.

The lawsuit was filed by appellant and her husband, Richard Owen, against Floyd Dunn, Continental Insurance Company,1 and John Does one through five. The complaint alleged that Dunn, an underinsured driver, negligently struck the Owens' vehicle and caused them injury. They sought underinsured motorist benefits from Continental that corresponded to each of three vehicles that were insured under their Continental policy. Continental obtained a summary judgment on the basis of the anti-stacking language in its policy. 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.

The order appealed from in this case does not resolve or otherwise dispose of the Owens' claims against Floyd Dunn or the five John Does, nor does it contain a Rule 54(b) certificate. Although Dunn's name appears as a defendant only in the caption of the original complaint and does not appear in the caption of the amended complaints, there is no order in the record dismissing Dunn. Thus, the claim against him remains pending. See Shackleford v. Arkansas Power & Light, 334 Ark. 634, 976 S.W.2d 950 (1998) (holding that, even if an amended complaint did not name defendants in the caption, the claim against them remained until the trial court entered an order of dismissal). As for the John Doe defendants, there is likewise no order in the record dismissing them from the case. Where a defendant has been granted summary judgment, yet the John Doe defendants have not been dismissed from the case, no final, appealable order has been entered. See Moses v. Hanna's Candle Co., 353 Ark. 101, 10 S.W.3d 725 (2003); Shackleford v. Arkansas Power & Light, supra.

In light of the foregoing, we dismiss this appeal without prejudice to refile upon entry of an order that complies with Rule 54(b).

Dismissed.

1 The suit originally named Encompass Insurance Company as a defendant rather than Continental. However, Encompass apparently was not the proper name of the insurer that the Owens intended to sue, and Encompass was later nonsuited from the case.