Greg Lang v. Richard Nix, M.D. et al.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

CA04-947

March 23, 2005

GREG LANG AN APPEAL FROM CHICOT COUNTY

APPELLANT CIRCUIT COURT

[NO. CV2002-165-2]

v.

HONORABLE ROBERT VITTITOW,

RICHARD NIX, M.D., et al., CIRCUIT JUDGE

APPELLEES

DISMISSED.

Per Curiam

Appellant Greg Lang appeals from the trial court's grant of summary judgment to appellees Richard Nix, M.D., and Tad Pruitt, M.D., who were two of the six defendants in his medical-malpractice lawsuit. We dismiss the appeal because the certificate that purports to certify the summary-judgment order as immediately appealable does not comply with Ark. R. Civ. P. 54(b) (2004).

On November 15, 2002, appellant filed a medical-malpractice action against Baptist Health Medical Center and Drs. Richard Nix, Tad Pruitt, Elaine Wilson, Gene Reid, and Leslie McCasland. His complaint (which is not contained in the record) apparently contained allegations that the defendants committed acts of malpractice in November 2000. Service of summons was attempted on appellees Nix and Pruitt, but the process server, according to his affidavit, served office personnel rather than Nix and Pruitt themselves.

Nix and Pruitt filed a motion for summary judgment arguing, inter alia, that service of process was ineffective and that, because the two-year statute of limitations had now run, appellant's action against them should be dismissed. On May 19, 2004, the trial court granted the motion and dismissed appellant's claim against Nix and Pruitt with prejudice. On June 18, 2004, the court entered an amended order, again granting summary judgment to Nix and Pruitt, and attaching the following:

RULE 54(b) CERTIFICATE

With respect to the issues determined by the above judgment, the Court finds:

After the Court's review of the Motion for Summary Judgment filed by Defendants Dr. Richard Nix and Dr. Tad Pruitt, the Plaintiff's response to the Motion and the Defendants' reply brief, and having heard arguments of counsel for and against the motion at the hearing held on March 17, 2004, the Court finds that the Motion for Summary Judgment of Defendants Dr. Richard Nix and Dr. Tad Pruitt should be and is hereby granted, and the Plaintiff's Complaint against Dr. Richard Nix and Dr. Tad Pruitt is dismissed with prejudice. That this order was executed by the Honorable Robert C. Vittitow, dated May 17, 2004 and filed with the Chicot Circuit Clerk on May 19, 2004.

Upon the basis of the foregoing factual findings, the Court hereby certifies, in accordance with Rule 54(b)(1), Ark. R. Civ. P., that it has determined that there is no just reason for delay of the entry of a final judgment and that the Court has and does hereby direct that the judgment shall be a final judgment for all purposes.

Rule 54(b) provides that, when multiple parties are involved in a case, the trial court may direct the entry of final judgment as to one or more but fewer than all of the parties "only upon an 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." Ark. R. Civ. P. 54(b)(1) (2004). If the court makes such a determination, it must execute a certificate "which shall appear immediately after the court's signature on the judgment, and which shall set forth the factual findings upon which the determination to enter the judgment as final is based." Id. (Emphasis added.) The rule contains a form for the certificate, designating a place for the court to "set forth specific factual findings." Id. In the absence of the required certificate, an order adjudicating fewer than all of the claims against all of the parties does not terminate the action. Ark. R. Civ. P. 54(b)(2) (2004).

We held in Stouffer v. Kralicek, 81 Ark. App. 89, 98 S.W.3d 475 (2003), that the "specific factual findings" referred to in the rule are not the findings made by the court on the merits of the case but rather the findings as to why there is no just reason for delay and why final judgment should be entered. Stouffer v. Kralicek involved a purported Rule 54(b) certificate similar to the one here - it set forth the court's reasons for granting summary judgment rather than for entering a final judgment. We held that the certificate in Stouffer v. Kralicek was ineffective to certify the appeal because it lacked the specific factual findings contemplated by Rule 54(b).

The Rule 54(b) certificate in this case likewise does not conform to the dictates of the rule because it does not contain specific factual findings as to why an appeal should proceed at this point. It is therefore ineffective to certify appellant's appeal from what is essentially an order of partial summary judgment. As a result, we must dismiss the appeal for lack of a final order.

Appeal dismissed.