2014 ARKAPP 488 - King v. Jackson

                                  Cite as

2014 Ark. App. 488


                 ARKANSAS COURT OF APPEALS
                                          DIVISION II
                                         No. CV-13-1042


                                                   Opinion Delivered   September 24, 2014
IDA KING and KENNETH CALDWELL
                    APPELLANTS                     APPEAL FROM THE PULASKI
                                                   COUNTY CIRCUIT COURT,
V.                                                 FIFTH DIVISION
                                                   [NO. 60CV-2011-192]
LESLIE JACKSON and KAREN
JACKSON                                            HONORABLE WENDELL GRIFFEN,
                      APPELLEES                    JUDGE


                                                   DISMISSED



                               BILL H. WALMSLEY, Judge

       Appellants Ida King and Kenneth Caldwell filed a complaint against appellees Leslie

and Karen Jackson for ejectment and trespass. The Pulaski County Circuit Court dismissed

appellants’ claim for ejectment but did not address their claim for trespass. In King v. Jackson,

2013 Ark. App. 264

, this court dismissed appellants’ appeal for lack of a final, appealable order.

Appellants then filed a motion for voluntary nonsuit specifically requesting that all outstanding

claims be dismissed without prejudice, which the trial court granted. We must again dismiss

for lack of a final, appealable order.

       The question of whether an order is final and appealable is jurisdictional, and this court

is obligated to consider the issue on its own even if the parties do not raise it. Splawn v. Wade,

2013 Ark. App. 187

427 S.W.3d 89

. When a lawsuit contains more than one claim for relief,

a judgment that adjudicates fewer than all of the claims is neither final nor appealable. Ark.
                                  Cite as

2014 Ark. App. 488


R. Civ. P. 54(b)(2).

       A party that has several claims against another party may not take a voluntary nonsuit

of one claim and appeal an adverse judgment as to the other claims when it is clear that the

intent is to refile the nonsuited claim and thus give rise to the possibility of piecemeal appeals.

Pro Transp., Inc. v. Volvo Trucks N. Am., Inc.,

96 Ark. App. 166

239 S.W.3d 537

 (2006). This

is so because a voluntary nonsuit or dismissal leaves the plaintiff free to refile the claim,

assuming there has been no previous dismissal.

Id.


       Although appellants’ notice of appeal purports that there are no outstanding claims in

this case, the fact that appellants sought a dismissal without prejudice suggests otherwise. Also,

even though their failure to comply with Ark. R. App. P.–Civ. 3(e)(vi) was pointed out in

our earlier opinion, appellants’ notice of appeal did not include a statement that they had

abandoned any pending but unresolved claims, which would have operated as a dismissal with

prejudice. See Wilson v. Greg Williams Farm, Inc.,

2013 Ark. App. 248

. Appellants could have

avoided this lack of finality.

       Under these circumstances, appellants are free to refile their related claims against

appellees. Without a final, appealable order, this court lacks jurisdiction and therefore dismisses

the appeal without prejudice.

       Dismissed.

       PITTMAN and HIXSON, JJ., agree.

       Johnson & Vines, PLLC, by: James “Chris” McNeal and J. Andrew Vines, for appellants.

       Law Office of Jeffrey Weber, PLLC, by: Jeffrey Weber, for appellees.


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