dissenting. I respectfully dissent. For the first time, this court is holding that an order dismissing a complaint with prejudice is not a final, appealable order. Appellees Lawrence Hall Nursing Center and Lawrence Memorial Hospital did not seek dismissal of the claims against them but rather attacked and obtained a dismissal of the entire complaint as void. If there is no complaint, there obviously can be no parties or claims remaining to be dismissed.
I note first that the majority apparently mistakes the case caption for an order of the circuit court. While an order necessarily includes a caption, the caption is not the order:
IN THE CIRCUIT COURT OF LAWRENCE COUNTY
BRENDA CHASTAIN DOWNING, As Special Administrator for and on behalf of the Estate of ROBERT L.
HARRIS, Deceased, and the Wrongful Death Beneficiaries of Robert L. Harris PLAINTIFFS V. LAWRENCE HALL NURSING CENTER; LAWRENCE MEMORIAL HOSPITAL DEFENDANTS
No. CV-2002-67
ORDER OF DISMISSAL WITH PRETUDICE
On November 3, 2005, came on for hearing the Defendants’ Motion to Dismiss, and after consideration of the pleadings, Motions to Dismiss, Brief in Support of Motion to Dismiss, including authority and exhibits cited therein, arguments of counsel and other matters appearing herein, the Court does hereby order as follows:
1. Defendants’ Motion to Dismiss is hereby granted and Plaintiffs’ Complaint is dismissed with prejudice.
IT IS SO ORDERED.
Honorable Harold Erwin
November 10, 2005 Date
Based on this order, the majority states that it is speculation to conclude that the order extends to all defendants. The order clearly, obviously, and conclusively, extends to every defendant because it dismisses the complaint. If there is no complaint there can be no defendants of any form.
The majority further errs in stating that the order only lists Lawrence Hall Nursing Center and Lawrence Memorial Hospital. The order lists neither. The caption lists Lawrence Hall Nursing Center and Lawrence Memorial Hospital in identifying the action to which the order applies.
The majority also states that “[t]he dissents suddenly want to narrow the scope of Rule 54(b) when our long-standing case law with regard to John Doe defendants requires that an order be entered regarding all parties in order to be final and appealable.” Yet again, if the complaint is extinguished by the dismissal with prejudice, the John Does, and in fact every defendant of every type is extinguished as well. Further, contrary to the majority’s discussion with respect to the prior dismissal of Dr. Quevillon and St. Bernard’s without prejudice, when the dismissal of the complaint with prejudice was entered, the order indeed trumped the prior dismissal without prejudice. If there is no longer a complaint, there is no possibility that Dr. Quevillon and St. Bernard’s will be renamed to this action. There is no action.
The majority misunderstands Rule 54(b). Arkansas Rule of Civil Procedure 54(b) is inapplicable to this case. It applies only where a dismissal concludes the action as to less than all the parties or claims; it does not apply in this case where the complaint itself is dismissed. Rule 54(b) deals with a final judgment entered “as to one or more but fewer than all of the claims or parties.” Here all the claims and parties were dismissed because the complaint was dismissed. An order is final and appealable where it concludes the rights of the plaintiffs to the subject matter in controversy. Fisher v. Chavers, 351 Ark. 318, 92 S.W.3d 30 (2002). A dismissal of a plaintiffs complaint clearly concludes a plaintiffs rights in the subject matter in controversy.
The motion to dismiss sought to dispose of the entire action. The appellees alleged in their motion to dismiss that the circuit court lacked “subject-matter jurisdiction.” Jurisdiction is the power of the court to hear and determine the subject matter in controversy between the parties. Pederson v. Stracener, 354 Ark. 716, 128 S.W.3d 818 (2003). A court that acts without subject-matter jurisdiction or in excess of its power produces a result that is void and cannot be enforced. Young v. Smith, 331 Ark. 525, 964 S.W.2d 784 (1998). Appellees asserted that the circuit court lacked the authority to entertain the complaint.
Appellees also asserted that the complaint was a “nullity.” Alleging that the complaint is a nullity is alleging that the complaint itself never existed. See Brewer v. Poole, 362 Ark. 1, 207 S.W.3d 458 (2005). By arguing that the complaint was a nullity, the appellees were arguing that the complaint was legally void. See Black’s Law Dictionary 1098 (8th ed. 2004).
Nothing in the record or argument supports the idea that appellees sought to be dismissed from the complaint. The circuit court understood that the appellees were seeking dismissal of the complaint in its entirety. This is evident in the order, which provides that “Plaintiffs Complaint is dismissed with prejudice.” The order did not dismiss claims or parties.
Rule 54(b) is applicable only before the entire case is dismissed. See Bank of Ark., N.A. v. First Union Nat’l Bank, 342 Ark. 705, 30 S.W.3d 110 (2000). The majority’s opinion introduces confusion and uncertainty into a well-settled area of law. It undermines finality. It will engender needless further pleading and costs. The practice of law now becomes needlessly more complex, and a new trap is laid for the unwary attorney. An attorney may no longer leave court with the dismissal of a complaint with prejudice and be sure that the action is actually concluded. The circuit courts and attorneys must now search for the magic words needed to assure that this court will acknowledge that when a circuit court dismisses a complaint it has dismissed the complaint. This case is properly before this court, and the parties are entitled to have it decided on the merits.
Brown and Gunter, JJ., join.