David Cowan v. Body Dynamics, Inc., d/b/a BDI Pharmaceuticals and BDI Marketing, and L&R Smoke Shop

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

DAVID COWAN

APPELLANT

V.

BODY DYNAMICS, INC. d/b/a BDI PHARMACEUTICALS AND BDI

MARKETING, and L&R SMOKE

SHOP APPELLEES

CA 05-853

February 8, 2006

APPEAL FROM THE JOHNSON

COUNTY CIRCUIT COURT

[CV2003-205]

HONORABLE JOHN S.

PATTERSON, CIRCUIT JUDGE

APPEAL DISMISSED

David M. Glover, Judge

Appellant, David Cowan, appeals from a May 4, 2005 order in which the trial court dismissed with prejudice his case against appellee Body Dynamics, Inc., d/b/a BDI Pharmaceuticals and BDI Marketing. We do not address the merits of the appeal because it is unclear from the order appealed from whether it dismisses all of the defendants that had originally been named in the case. Therefore, it is not a final, appealable order as required by Rule 54(b) of the Arkansas Rules of Civil Procedure.

On December 4, 2003, appellant, David Cowan, filed a complaint in which he named two defendants: Body Dynamics, Inc., and D.J.'s Smoke Shop. Service on D.J.'s Smoke Shop was apparently accomplished by certified mail, and a copy of the affidavit of service and the signed return receipt is included in the addendum. On April 2, 2004, Cowan filed his first amended petition, modifying the name of one original defendant to Body Dynamics, Inc., d/b/a BDI Pharmaceuticals and BDI Marketing ("BDI"). In this pleading, appellant named "L & R Smoke Shop and More" as an additional defendant, but omitted "D.J.'s Smoke Shop." On April 28, 2004, a person by the name of Rita Lowry appeared specially, through her attorney, on behalf of "L & R Smoke Shop and More," and by motion sought dismissal of the action against "L & R Smoke Shop and More." There is nothing before us that specifically shows the motion was acted upon by the trial court. Then, on May 19, 2004, appellant filed his second amended petition for the sole purpose of modifying the name of defendant "L & R Smoke Shop and More" to "L & R Smoke Shop." On July 8, 2004, appellee Body Dynamics, Inc., d/b/a BDI Pharmaceuticals and BDI Marketing filed its separate motion to dismiss, contending that it was entitled to a complete dismissal of the matter because appellant had failed to serve BDI with the original complaint within 120 days of filing it.

In an order filed May 4, 2005, the trial court acted upon the motion to dismiss filed on behalf of appellee Body Dynamics, Inc., d/b/a BDI Pharmaceuticals and BDI Marketing and found "from said Motion and response thereto, it is the finding of the Court that said Motion should be granted and the above-styled cause is dismissed with prejudice." The order states that the "above-styled cause" is dismissed with prejudice, but the order does not specifically mention "D.J.'s Smoke Shop" or "L & R Smoke Shop" or "L & R Smoke Shop and More," the other defendants who variously had been named in the case.

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. The question of whether an order is final and subject to appeal is a jurisdictional question thatwe will raise on our own. Weire v. CNA Fin. Corp., ____ Ark. ____, ____ S.W.3d ____ (per curiam) (Sept. 21, 2005). Under Rule 54(b) of the Arkansas Rules of Civil Procedure, an order is not final if it adjudicates fewer than all of the claims or the rights and liabilities of fewer than all of the parties. Id. Rule 54(b) does allow a trial court, when it finds no just reason for delaying an appeal, to direct entry of a final judgment as to fewer than all the claims or parties by executing a certification of final judgment as it appears in Rule 54(b)(1). However, absent this required certification, any judgment, order, or other form of decision that adjudicates fewer than all of the claims or the rights and liabilities of fewer than all of the parties shall not terminate the action.

Here, there is neither a final order as to defendants "D.J.'s Smoke Shop," "L & R Smoke Shop," and "L & R Smoke Shop and More," nor a Rule 54(b) certificate. Consequently, we do not have jurisdiction to hear this appeal.

Appeal dismissed without prejudice.

Pittman, C.J., and Roaf, J., agree.