dissenting.
Attorneys tell me they believe this court looks for reasons to not decide cases. Today the majority has proved that to be true. The order entered by the trial court clearly dismisses the plaintiffs complaint, which includes the adverse-possession claim, leaving no claim undecided. Because this is a final order, this court has jurisdiction to decide the case, therefore, I dissent.
This case began with appellants filing a complaint containing five causes of action: adverse possession, boundary by acquiescence or by estoppel, declaratory judgment quieting title, specific performance, and breach of contract. Appellees filed an answer and a counterclaim. The counterclaim alleged that appellants had destroyed no fewer than twenty trees located on appellee’s property and asked for damages. Appellants answered the 17counterclaim, and the issues were joined. Subsequently, the parties each filed motions for summary judgment or dismissal. The trial court granted appellee’s motion to dismiss the cause of action seeking specific performance, and appellants cross-motion for partial summary judgment was denied. A bench trial was held, and the trial court entered a judgment. Appellants filed a notice of appeal and designation of record, which designated the summary-judgment hearings. The record does not contain a transcript of the trial. The issue presented to this court on appeal is whether the trial court erred in granting appellee’s motion for partial summary judgment.
The question of whether an order is final and appealable is jurisdictional, and we are obligated to consider the issue on our own even if the parties do not raise it. See Cleary v. Sledge Props., Inc., 2009 Ark. App. 353, 2009 WL 1154926 (per curiam). For an order or judgment to be final it must, with exceptions not applicable here, dispose of all parties and all claims in the lawsuit. See Martin v. Kat’s Bar & Grill, LLC, 2009 Ark. App. 737, 2009 WL 3644303, Ark. R. Civ. P. 54(b)(1) (2010). When a lawsuit contains more than one claim for relief, as did the lawsuit here, a judgment that adjudicates fewer than all the claims is neither final nor appealable. Forever Green Athletic Fields, Inc. v. Lasiter Constr., Inc., 2010 Ark. App. 483, 2010 WL 2195770 (per curiam).
The majority relies on the language in paragraph 1 of the trial court’s order to hold that there was not a final order. The order states, “The plaintiffs have voluntarily withdrawn their claim against the defendant for adverse possession of the real property in dispute.”
To hold as they have, the majority has determined that the plaintiffs moved for, and the court granted, a voluntary dismissal under Rule 41(a) of the Arkansas Rules of Civil | ^Procedure. To do this, the majority must find that the words voluntarily withdrawn are synonymous only with non-suiting the case under Rule 41(a). There are no Arkansas cases that hold that “voluntarily withdrawn” means only that the case is nonsuited. It is equally plausible that appellants voluntarily withdrew their claim by saying prior to trial, “Judge, we know we can’t make the adverse-possession claim, so we’re not going to try that claim.” I submit that was as plausible as a Rule 41 motion being made. The record is void of what happened, so I will not surmise as the majority does.
The majority compounds its error by not acknowledging the plain language of Rule 41(a)(1). That rule provides in pertinent part, “Although [a voluntary dismissal under this rule] is a matter of right, it is effective only upon entry of an order dismissing the action.” See% Blaylock v. Shearson Lehman Bros., Inc., 330 Ark. 620, 954 S.W.2d 939 (1997). For there to be a voluntary dismissal under Rule 41(a), the order would have to dismiss the adverse-possession claim without prejudice. This was not done,
In reality, the trial court dismissed appellants adverse-possession claim with prejudice. Paragraph 2 of the order states,
The plaintiffs have failed to prove by a preponderance of the evidence that there existed a boundary by acquiescence which differed from the boundary established by the deeds of the parties and the complaint of plaintiffs is hereby dismissed with prejudice.
The trial court clearly dismissed appellants entire complaint with prejudice. There is no language excepting the adverse-possession claim.
The order does not specifically address the declaratory judgment quieting title or the |9breach-of-contract claims.1 The majority does not suggest that the order dismissing the entire complaint was not effective as to those causes of action. The majority’s opinion creates a new and limited definition for “voluntarily withdraws” and ignores the plain language of the order. Therefore, I dissent.
WALMSLEY, WOOD, and BROWN, JJ., join.
. The summary-judgement order held that the motion to dismiss the specific performance of the contract was granted.