concurring. I concur with the majority because I believe the standard set by the supreme court requires that we dismiss the appeal. I write separately however, because I believe that this case exemplifies an absurd application of Ark. R. Civ. P. Rule 54(b).
The question of whether an order is final and subject to appeal is a jurisdictional question that we will raise on our own even if the parties do not. Epting v. Precision Paint & Glass, Inc., 353 Ark. 84, 110 S.W.3d 747 (2003). The supreme court has held that a party that has several claims against another party may not take a voluntary non-suit of one claim and appeal an adverse judgment as to the other claims when it is clear that the intent is to re-file the non-suited claim and thus give rise to the possibility of piece-meal appeals. See Haile v. Ark. Power & Light Co., 322 Ark. 29, 907 S.W.2d 122 (1995). I submit that in the present case it is far from clear that the appellant’s intent is to re-file the non-suited claim. Both parties were represented by extremely competent counsel. Prior to the case being submitted to the jury, appellant’s counsel made the decision to dismiss all claims against University Truck Center and the breach-of-warranty claims against Volvo. This was a strategic trial decision by appellant’s counsel. We can speculate why this decision was made, but it is certainly not clear that appellant’s intent was to re-file the claim. I submit that it would be clearer for appellees to raise the affirmative defenses of res judicata and collateral estoppel, arguing both claim and issue preclusion, if appellant attempted to re-file.
I have found no Arkansas cases citing rule 54(b) following a jury trial. All of the cases found arise from motions for summary judgment. It is absurd to believe that appellant would take discovery, prepare for a trial, try the case to a jury verdict, appeal to our court, and conduct oral argument with the idea that it would go back and re-file a claim that was dismissed during trial. The supreme court has stated that a purpose of Rule 54(b) is to avoid the possibility of piece-meal appeals. See Haile, supra. This case created the exact piece-meal appeal that we should avoid. Trial counsel throughout Arkansas routinely non-suit claims before issues are submitted to juries. Based upon the current interpretation of Rule 54(b), it appears that they should dismiss with prejudice those claims if they anticipate the possibility of appeal.