SUPPLEMENTAL OPINION ON DENIAL OF REHEARING DECEMBER 6, 2006
Appeal from Pulaski Circuit Court, Chris Piazza, Judge;
Randy Coleman, P.A., and Maynard, Cooper & Gale, P.C., by: W. Percy Badham, III, Robert W. Tapscott,Jr., and Brannon J. Buck, for appellant.
Barber, McCaskill, Jones & Hale, P.A., by: Michael J. Emerson, for appellees.
John Mauzy Pittman, Chief Judge. On September 20, 2006, we dismissed this app eal for lack of a final order because appellant Pro Transportation, Inc. (Pro), nonsuited related breach-of-warranty and negligence claims that were subsequently dismissed without prejudice and no Rule 54(b) certification was obtained from the trial court. In its petition for rehearing, Pro argues that the order appealed from should be regarded as final because it would be precluded by the statute of limitations from refiling those claims. We deny the petition for rehearing but issue this supplemental opinion to address Pro’s arguments.
Statutes of limitation generally constitute an affirmative defense rather than a jurisdictional bar. Tatro v. Langston, 328 Ark. 548, 944 S.W.2d 118 (1997); Ark. R. Civ. P. 8(c). Likewise, res judicata is an affirmative defense that must be raised in the trial court and does not present a question of jurisdiction. Pryor v. Hot Spring Chancery Court, 303 Ark. 630, 799 S.W.2d 524 (1990). Thus, despite Pro’s argument to the contrary, there is no jurisdictional impediment to its refiling the claims that it voluntarily nonsuited, and the possibility of piecemeal appeals, mentioned in Haile v. Arkansas Power & Light Co., 322 Ark. 29, 907 S.W.2d 122 (1995), still exists.
Pro would have us examine, in each case and without benefit of citation or argument, the length and nature of the limitation period (and, presumably, any other affirmative defense that may be applicable) so as to decide the degree of likelihood that a nonsuited claim may be refiled. Haile does not require us to research these issues in order to determine our own jurisdiction, and such a procedure would be burdensome to this Court.
To invoke our jurisdiction, Pro was required to demonstrate that the order appealed from was final. This could have been easily done had Pro requested dismissal with prejudice of the nonsuited claims. It did not do so. It could also have been done had Pro obtained the certification of finality that Rule 54(b) requires when issues are outstanding. Pro could also, perhaps, have discussed the nonsuited claims in its brief, providing argument and authority to show that they were no longer viable and that the order appealed from was therefore final. However, even in this petition for rehearing, Pro maintains that the nonsuited claims are immune from the doctrine of res judicata. Here, Pro’s case on all claims was fully presented to the jury. It was only after all the evidence was submitted and both sides had rested that Pro moved the trial court for dismissal without prejudice of the outstanding claims. We think that Pro’s attempt to preserve these claims evinces a clear intent to refile and, in the absence of any showing to the contrary, its appeal was properly dismissed.
Rehearing denied.
Hart, Gladwin, Glover, and Neal, JJ., agree. Vaught, J., dissents.