Capitol Life & Accident Ins. Co. v. Phelps, CA 00-584.

• Decision Date: 21 February 2001
• Docket Number: No. CA 00-584.,CA 00-584.
• Citation: 72 Ark.App. 464,37 S.W.3d 692
• Parties: CAPITOL LIFE & ACCIDENT INSURANCE COMPANY v. Lela K. PHELPS.
• Court: Arkansas Court of Appeals

37 S.W.3d 692

72 Ark.App. 464

CAPITOL LIFE & ACCIDENT INSURANCE COMPANY v. Lela K. PHELPS.

No. CA 00-584.

Court of Appeals of Arkansas, Division I.

February 21, 2001.

Mitchell, Williams, Selig, Gates & Woodyard P.L.L.C., by Byron Freeland and Leigh Anne Yeargan, Little Rock, for appellant.

Walters, Hamby & Verkamp, by Bill Walters, Greenwood, for appellee.

OLLY NEAL, Judge.

Appellant Capital Life and Accident Insurance Company appeals the order of the Sebastian County Chancery Court finding that the application for credit life insurance issued by the appellant to the decedent, Lincoln Phelps, Jr., was ambiguous and subject to interpretation, and denying its motion to rescind three insurance policies issued to Phelps prior to Phelps's death. On appeal, appellant contends that the trial court erred in ruling that the policy was ambiguous, and that the trial court erred in not rescinding the policies due to the insured's incorrect statement. We conclude that the order appealed from is not a final order, and we dismiss.

The February 8, 2000, order, from which the appellant appeals, recites the following language in the last paragraph:

IT IS THEREFORE BY THE COURT CONSIDERED, ORDERED, ADJUDGED AND DECREED that the

Defendant's Appellant's motion for recission is denied and the Plaintiff Appellee is given judgment against the Defendant in the sum of $52,610.07; that all matters pertaining to pre-judgment interest, statutory penalties, post-judgment interest, court costs and attorney's fees shall be held in abeyance until this matter has been finalized on appeal or until the time for appeal has expired; and this Court retains jurisdiction of this matter and these parties as may be necessary in the premises.

Whether an order is final and appealable is a matter going to the jurisdiction of the appellate court and is an issue that the appellate court has a duty to raise on its own motion. Barnes v. Newton, 69 Ark.App. 115, 10 S.W.3d 472 (2000). The rule that an order must be final to be appealable is a jurisdictional requirement, observed to avoid piecemeal litigation. Beverly Ent.-Arkansas v. Hillier, 341 Ark. 1, 14 S.W.3d 487 (2000); Ark. R.App. P.— Civ. 2(a)(1). When the order appealed from is not final, the appellate court will not decide the merits of the appeal. Roberts v. Roberts, 70 Ark.App. 94, 14 S.W.3d 529 (2000). For an order to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Id. An order must be of such a nature as to not only decide the rights of the parties, but also to put the...