Appellant, Darwin McKibben, appeals from an order of dismissal without prejudice granted by the Washington County Circuit Court to appellee, Dr. R. Jay Mullis. Because appellant’s original complaint was a nullity, we must affirm.
Appellant is the widower of Susan McKibben, who died on September 21, 1998. Appellee was one of Susan McKibben’s treating physicians whose care appellant alleges led to her death. On August 28, 2000, appellant filed a wrongful-death action against appellee and John Does No. 1-10, alleging inter alia that appellee breached the standard of care and was negligent in his care and treatment of the deceased. In the complaint, appellant claimed that he was the executor of his wife’s estate, and the caption was so styled. However, appellant was not appointed executor of his wife’s estate by the probate court until February 13, 2001.
On February 14, 2001, appellee filed a motion to dismiss appellant’s complaint on the grounds that the complaint was barred by the statute of limitations and that appellant lacked standing to bring the action as he was not, at the time the complaint was filed, the executor of the deceased’s estate. The trial court dismissed appellant’s complaint without prejudice, finding that appellant lacked standing to bring the action because he was not the personal representative of the estate at the time the suit was filed. This appeal followed.
On appeal, appellant argues that the trial court erred in granting appellee’s motion to dismiss. In rebuttal, appellee argues that the order of dismissal entered by the trial court is not a final and appealable order. Alternatively, appellee argues that the trial court correctly dismissed, the plaintiff s complaint on the ground that appellant lacked standing to pursue a wrongful death action. We first address appellee’s argument that the trial court’s order of dismissal is not a final and appealable order.
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. DeVeer v. George’s Flower, Inc., 76 Ark. App. 408, 65 S.W.3d 488 (2002). Dismissal of an appeal is appropriate when all defendants, including John Doe defendants, are not granted summary judgment, leaving claims against certain defendants still pending. Id.
In D’Arbonne Construction Co. v. Foster, 348 Ark. 375, 72 S.W.3d 862 (2002), the supreme court considered the finality of an order where a verdict allocated one hundred percent liability to two named defendants and dismissed the other named defendant, but no specific order had been entered by the trial court disposing of any claims that might have been asserted against two John Doe defendants. The court wrote:
To be appealable, an order must be final. Ark. R. App. P. — Civ. 2. The finality of a trial court’s judgment is governed by Ark. R. Civ. P. 54(b) and states in pertinent part:
(1) When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of final judgment as to one or more but fewer than all of the claims or parties only upon express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment. In the event the court so finds, it shall execute the following certificate . . . [certificate omitted].
(2) Absent the executed certificate required by paragraph (1) of this subdivision, any judgment, 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 judgment, 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.
Id. (Emphasis added.)
The purpose of Rule 54(b) is to prevent piecemeal litigation, and we have refused to engage in a review of an appellant’s claim against some defendants when claims against remaining defendants could possibly be asserted in the future. Shackelford v. Arkansas Power and Light, 334 Ark. 634, 976 S.W.2d 950 (1998); See also, Cortese v. Atlantic Richfield, 317 Ark. 207, 876 S.W.2d 581 (1994). However,1 this case does not present an order that disposes of less than all of the claims against all of the parties, and therefore there are no remaining issues to be litigated and there is no possibility of piecemeal litigation.
348 Ark. at 377-78, 72 S.W.3d at 863.
Applying Rule 54(b) of the Arkansas Rules of Civil Procedure and the guidance of the D’Arbonne court, it is clear in the present case that the dismissal of appellant’s claim for lack of standing concludes all claims against all parties because the original complaint was a nullity. There can be no John Does or other defendants to a nonexistent suit. Therefore, the order of dismissal entered by the trial court was final.
The wrongful-death statute under which appellant sought relief requires that wrongful-death actions be brought by and in the name of the personal representative of the deceased person; if there is no personal representative, the action shall be brought by the heirs at law of the deceased person. Ark. Code Ann. § 16-62-102(b) (Supp. 1997). In St. Paul Mercury Insurance Co. v. Circuit Court of Craighead County, 348 Ark. 197, 73 S.W.3d 584 (2002), our supreme court granted a writ of prohibition to St. Paul Mercury Insurance Company, preventing the Craighead County Circuit Court from hearing a survival action. In St. Paul Mercury, our supreme court stated:
A survival action is a statutory action, which may be brought after the person’s death by his or her executor or administrator. Because the survival action, just as a wrongful-death action, is a creation of statute, it only exists in the manner and form prescribed by the statute. It is in derogation of the common law and must be strictly construed, and nothing may be taken as intended that it is not clearly expressed.
348 Ark. at 204, 73 S.W.3d at 588. As previously mentioned, appellant had not been appointed executor by the probate court at the time he originally filed the complaint as executor, and there were other heirs at law. Therefore, because appellant failed to meet the statutory requirements of section 16-62-102, he lacked standing to pursue the wrongful-death action, and the original complaint was a nullity.
Appellant asserts that when the probate court appointed him executor of his wife’s estate on February 13, 2001, it related back to the original complaint. In Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002), where non-lawyer estate administrators filed a wrongful-death complaint, our supreme court stated, “[Bjecause the original complaint, as a nullity never existed, . . ., an amended complaint cannot relate back to something that never existed, nor can a nonexistent complaint be corrected.” 348 Ark. at 164, 72 S.W.3d at 94. The Davenport court affirmed the dismissal of the case and the trial court’s finding that subsequent pleadings filed by attorneys could not relate back to the original complaint. Likewise, in the present case, the appointment of appellant as executor did not relate back to the filing of the original complaint because the complaint was a nullity.
Affirmed.
Jennings, Bird, Vaught, and Crabtree, JJ., agree. Baker, J., dissents.