Glenn Misenheimer v. Barry Pitts and Theresa Pitts
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NOT DESIGNATED FOR PUBLICATION
ARKANSAS COURT OF APPEALS
LARRY D. VAUGHT, JUDGE
DIVISION II
CA06-76
May 16, 2007
GLENN MISENHEIMER
APPELLANT
AN APPEAL FROM STONE COUNTY
CIRCUIT COURT
[NO. CIV2002-37-4]
v.
BARRY PITTS AND THERESA PITTS
APPELLEES
HONORABLE TIM WEAVER,
CIRCUIT JUDGE
DISMISSED
Appellant Glenn Misenheimer appeals from a directed verdict in favor of appellees
Barry and Theresa Pitts. We dismiss the appeal because all claims against all parties have not
been resolved.
In 2002, appellant sued appellees and several other defendants for various torts in
connection with the shooting of his hogs and cattle. After summary judgment was entered in
favor of some of the defendants, appellant filed an appeal in this court, which we dismissed
for lack of a final order. Misenheimer v. Jason, CA04-562 (June 29, 2005) (not designated for
publication). Appellant returned to circuit court and non-suited his case against one alleged
tortfeasor, leaving appellees and possibly one other person as the remaining defendants, with
trespass, conversion, and assault as the remaining claims.
On November 14, 2005, appellant tried his conversion and assault claims against
appellees. Appellees obtained a directed verdict, and judgment was entered accordingly. That
is the order from which this appeal is brought.
Arkansas Rule of Civil Procedure 54(b) provides that, when more than one claim for
relief is presented in an action or when multiple parties are involved, an order that adjudicates
fewer than all the claims or the rights and liabilities of fewer than all the parties is not a final,
appealable order. Brasfield v. Murray, 96 Ark. App. 207, ___ S.W.3d ___ (2006). In particular,
when an order adjudicates fewer than all counts of a multi-count complaint, it is not a final
order, and the appeal must be dismissed. See Hambay v. Williams, 335 Ark. 352, 980 S.W.2d
263 (1998); Brasfield, supra; Strack v. Cap. Servs. Group, 87 Ark. App. 202, 189 S.W.3d 484
(2004). Appellant’s claims for conversion and assault were concluded by a directed verdict,
but the record does not indicate that appellant’s trespass count has been dismissed or otherwise
resolved. That count therefore remains pending.
Additionally, appellant, in an amended complaint, added allegations against Sybil
McIntire, although he did not list her in the complaint’s caption. It is not clear whether Ms.
McIntire was served with a summons—she never appeared in the action, and appellant does
not mention her in this appeal. Nevertheless, her being named as a defendant requires that she
be dismissed to achieve finality. See Wilson v. Weiss, ___ Ark. ___, ___ S.W.3d ___ (Dec. 14,
2006).
Based on the above, we dismiss this appeal for lack of a final order. The dismissal is
without prejudice to re-file upon entry of a final order or an appropriate Rule 54(b)
certification. See Ark. R. Civ. P. 54(b)(1) (2006).
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Dismissed without prejudice.
M ARSHALL and H EFFLEY, JJ., agree.
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