ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
EN BANC

CA02-1162

December 10, 2003

JEFFREY DEAN BREWER, et al. AN APPEAL FROM SCOTT COUNTY

APPELLANTS CIRCUIT COURT

[CIV 97-47]

v.

HONORABLE WILLIAM R. BULLOCK,

MARVIN L. POOLE, M.D., et al. CIRCUIT JUDGE

APPELLEES

APPEAL DISMISSED

Per Curiam

Appellants appeal from an order that dismissed their claims for the wrongful death of the deceased, Diann Brewer, against separate defendants, Marvin Poole, M.D., and Joseph P. McCarty, M.D. Because the order appealed from does not resolve all of the claims brought by appellants against all of the defendants in the lawsuit, we dismiss the appeal.

Appellants contend that they are the lawful heirs and statutory beneficiaries of the decedent and that the defendants' medical malpractice caused the decedent's death. The record filed in this appeal begins with appellants' third amended complaint, filed on March 25, 2002, and lists the following parties as defendants: Marvin L. Poole, M.D.; Holt Krock Clinic; Joseph P. McCarty, M.D.; Michel Muylaert, M.D.; Ernest P. Serrano, M.D.; Stephen M. Parker, M.D.; Sparks Regional Medical Center; and "John Doe #3 and #4, Unidentified Health Care Providers for Diann Brewer, Deceased." In response to this complaint, answers and a joint motion for dismissal were filed by Drs. Poole and McCarty. Citing Ark. Code Ann. § 16-62-102(2)(b), they contended that, because no personal representative had been appointed for the estate of the deceased, the wrongful-death suit had to be brought by all of the heirs at law of the deceased but that two of the decedent's heirs at law, surviving sisters Becky Cecil and Karen Dugan, were not joined as plaintiffs until after the statute of limitations had run on their wrongful-death action. Because all of the heirs at law were not joined in the suit before the statute of limitations had run, they argued that the court lacked jurisdiction to hear their suit. The trial court agreed with Drs. Poole's and McCarty's argument and entered an order dismissing them from the lawsuit on June 11, 2002. One day later, on appellants' own motion, separate defendant Dr. Michael Muylaert was dismissed. On July 7, 2003, appellants filed notice that they were appealing the trial court's June 6, 2002, order.1

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. See Hambay v. Williams, 335 Ark. 352, 980 S.W.2d 263 (1998); South County, Inc. v. First W. Loan Co., 311 Ark. 501, 845 S.W.2d 3 (1993). Here, although a subsequent order was entered by the trial court dismissing appellants' claim against Dr. Muylaert, appellants' claims against the remaining named defendants and the John Doe defendants are still pending. In Shackelford v. Arkansas Power & Light Company, 334 Ark. 634, 976 S.W.2d 950 (1998), the supreme court dismissed the appeal of the summary judgment awarded to the appellee Arkansas Power and Light because an order of dismissal had not been entered for the appellant's claims against the separate defendants John Doe 1 and John Doe 2. See also Moses v. Hanna's Candle Co., 352 Ark. 101, 110 S.W.3d 725 (2003) (dismissing the appeal because 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)).

Rule 54(b) allows 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 the claims or the rights and liabilities of fewer than all the parties shall not terminate the action. See Jackson v. Delis, 76 Ark. App. 436, 67 S.W.3d 596 (2002). No such certification was made in this 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. Whether an order is final and appealable is a matter going to the jurisdiction of the appellate court and is an issue that this court is required to raise even if the parties do not. Hambay v. Williams, supra; Capitol Life & Accident Ins. Co. v. Phelps, 72 Ark. App. 464, 37 S.W.3d 692 (2001). Because, from the record, it does not appear that the trial court disposed of appellants' claims against the remaining defendants, including the John Doe defendants, and there is no Rule 54(b) certification, we must dismiss this appeal without prejudice.

Appeal dismissed.

1 There is no June 6 order in the record filed by appellants.