ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION II

ELMER DANCY and

YVONNE DANCY

APPELLANTS

V.

WAL-MART STORES, INC., and JOHN DOES 1-25

APPELLEES

CA 02-3

SEPTEMBER 11, 2002

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT

[NO. CIV 98-563-2]

HONORABLE H.A. TAYLOR, JR.,

JUDGE

APPEAL DISMISSED WITHOUT PREJUDICE

Appellant, Elmer Dancy, filed a lawsuit against Wal-Mart Stores, Inc., and John Does 1-25 on August 17, 1998, because of injuries that he suffered while cleaning out his tractor-trailer after delivering a load of sugar to the Wal-Mart distribution center in Clarksville, Arkansas. Appellant later amended his complaint to include World Super Services, Inc. (WSSI), and its parent corporation World Way Corporation. On March 14, 2000, appellant signed a release with WSSI after reaching a settlement agreement. Appellant had dropped World Way Corporation earlier in the proceedings upon discovering that it no longer existed in corporate form. Wal-Mart Stores, Inc., filed a motion for summary judgment asserting that the appellant had not presented a prima facie case for negligence, and that it had also been released from all claims through the release that appellant signed with WSSI. The trial

court agreed with Wal-Mart and granted its motion for summary judgment. The caption to the order for summary judgment lists Wal-Mart Stores, Inc., and John Does 1-25. However, the body of the order only refers to Wal-Mart Stores, Inc., and specifically grants the summary judgment in favor of Wal-Mart without mentioning the other named defendants, John Does 1-25. Appellant has appealed the trial court's decision to grant the motion for summary judgment. However, we must dismiss this appeal without prejudice due to a violation of Ark. R. Civ. P. 54(b).

Arkansas Rule of Civil Procedure 54(b) provides in relevant part that:

any 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, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

(Emphasis added.) It is well settled that the failure to obtain a final order as to all the parties and all the claims, as required by Ark. R. Civ. P. 54(b), renders the matter not final for purposes of appeal. Shackleford v. Arkansas Power & Light Co., 334 Ark. 634, 635-36, 976 S.W.2d 950, 951 (1998). Whether an order is final and appealable is a matter going to the jurisdiction of the appellate court, and thus the appellate court can raise this issue on its own. Foreman v. Arkansas Dep't. of Human Servs., 78 Ark. App. 48, ____ S.W.3d ___ (June 19, 2002). For an order to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their right to the subject matter in controversy. Id.

In the case at bar, the court did not dismiss the John Does 1-25 in his order granting Wal-Mart's motion for summary judgment. There is nothing in the record to suggest that theappellant requested a voluntary dismissal of the John Does pursuant to Ark. R. Civ. P. 41(a). Therefore, we conclude that the appellant's claims against John Does 1-25 are still pending. Due to the lack of a final and appealable order, or a Rule 54(b) certification, we do not have jurisdiction to hear this case. We dismiss this appeal without prejudice so that the trial court may enter a final order as to John Does 1-25.

Jennings and Vaught, JJ., agree.