Dorothy Jean Rice et al. v. Paul Tanner et al.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DOROTHY JEAN RICE ET AL.,

APPELLANTS

V.

PAUL TANNER ET AL.,

APPELLEES

CA05-74

APRIL 6, 2005

APPEAL FROM THE CIRCUIT COURT OF ST. FRANCIS COUNTY,

NO.CV2002-177,

HONORABLE L.T. SIMES II, JUDGE

APPELLEES' MOTION TO DISMISS APPEAL DENIED

Per Curiam 

Appellees have filed motions to dismiss this appeal, arguing that this court lacks jurisdiction because appellants did not timely file their notice of appeal. We deny appellees' motions.

From the nine-volume record that has been filed with the Clerk of the Supreme Court, it appears that this is a medical malpractice action involving eight defendants. As the case proceeded in the trial court, orders were entered granting summary judgment in favor of two of the defendants. Specifically, on November 12, 2002, the court entered an order granting summary judgment in favor of defendant Paul Tanner, M.D.; and on June 11, 2003, the court entered an order granting summary judgment in favor of defendant Cross Ridge Community Hospital.

On August 24, 2004, the court entered the order that is now the subject of dispute, stating in part:

The Court, upon consideration of the motions and briefs filed, arguments of counsel, and other matters, does find that Motions for Summary Judgment of [the remaining six defendants] are granted.

This finding is then followed by a paragraph that states:

The court directs Attorney Paul McNeill to prepare a precedent based upon the arguments made by the Defendants which are adopted by the Court and submit it to the Court for entry.

This paragraph was followed by the words, IT IS SO ORDERED, after which appears the signature of the circuit judge. Nothing else appears to have been done in the case until entry of the judgment from which appellants are attempting to appeal. It is entitled JUDGMENT, and recites, in pertinent part, the following:

This court has entered its order granting summary judgment on behalf of defendants in this matter. By way of opinion, the court makes the following rulings and findings of fact:

[Paragraphs numbered one (1) through twelve (12) contain detailed findings of fact and discussion of the reasons the court finds that summary judgments are appropriate.]

13. Accordingly, the Court finds that the plaintiffs' argument that this is in effect a change of the law is not valid and is rejected.

14. Accordingly, summary judgment will be entered for all of the defendants, and this case is hereby dismissed with prejudice.

IT IS SO ORDERED this 27th day of September, 2004.

[Circuit Judge's signature]

In their motions to dismiss the appeal, appellees argue that the order of August 24, 2004, was the relevant order for purposes of commencing the thirty-day window within which appellants were required to file their notice of appeal. Appellees base their argument on the premise that the trial court, in its August 24 order, adopted the arguments made by appellees in their motions for summary judgment and that the trial court "unequivocally granted" the appellees' motions. Appellees also argue that the August 24 order's directive to one of appellees' attorneys to prepare a precedent to be submitted to the court for entry is not the "substantive-type" of action that would render an order not final for purposes of appeal. We do not agree.

The judges who would grant appellees' motions rely upon our decision in White v. Mattingly, Ark. App. , S.W.3d (December 8, 2004), in which we held that a partially-handwritten, check-marked, and fill-in-the-blank instrument denominated a "Civil Order," although different in form from an "ordinary, typewritten judgment," was nonetheless a judgment because it bore all of the significant indicia of a judgment. In Mattingly, as in this case, we were faced with deciding which of two orders constituted a final judgment for purposes of appeal. We said that the "Civil Order" was a valid judgment for purposes of appeal, whereas an instrument entitled "Judgment" that was filed subsequently to the "Civil Order" was not a valid judgment because it was combined with an order granting the defendant's motion for JNOV and did not, therefore, comply with the requirement of Ark. R. Civ. P. 58 that a judgment be set forth "on a separate document." In Mattingly our choice was between a "Civil Order," which although unusual in form, appeared to be otherwise valid, and a Judgment, which although not unusual in appearance, did not conform to the requirements of Rule 58.

Unlike the "Civil Order" in Mattingly, which left nothing to be done, the August 24 order in the case at bar directed one of appellees' attorneys to prepare a precedent setting forth the appellees' arguments, adopted by the court, to be submitted to the court for entry. The "Civil Order" in Mattingly contained no language from which one might contemplate that further action would be required before a final judgment would be entered. Furthermore, the August 24 order is ambiguous, to say the least, in stating that the court had made a finding that motions for summary judgment are granted, a statement that can be reasonably interpreted to mean that the court finds that the motions for summary judgment should be granted and that a judgment would be entered granting the motions. This interpretation is even more logical when considered along with the fact that in its order the court also instructed counsel to prepare a precedent containing the arguments made by the defendants in support of their motions, containing the reasons for the court's adoption of those arguments, and directing that the precedent be submitted to the court for entry.

In Estate of Hastings v. Planters and Stockmen Bank, 296 Ark. 409, 757 S.W.2d 546 (1988), our supreme court considered the issue of whether a trial court's order for summary judgment was a final order for purposes of appeal. The case involved a suit on promissory notes that Hastings owed to the bank, which notes were secured by an assignment of her interest in promissory notes for money owed to her by Louis Ahrent for a greater sum of money than Hastings owed to the bank. The trial court, in granting summary judgment in favor of the bank, merely provided in its order that, after crediting the amount of the Ahrent note against Hastings's indebtedness to the bank, Hastings was no longer indebted to bank. Sixteen months later, when Hastings filed a counterclaim (for the surplus collateral that the bank received by virtue of its status as assignee of the Ahrent note) the bank argued that her action was untimely because the earlier order of summary judgment had disposed of all the issues raised in the litigation. The trial court agreed with the bank and Hastings appealed, the sole issue on appeal being whether the trial court's summary judgment order was a final order that concluded the litigation. The supreme court reversed, holding that the summary judgment order was deficient as a judgment and determination of the rights of the parties because it did not dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy.

In the present case, the August 24, 2004, order did not dismiss the parties from the court. In fact, one of appellees' attorneys was directed to prepare a precedent setting forth the court's findings and decision. Similarly, the August 24 order did not discharge the parties from the action or conclude their rights to the subject matter in controversy. Rather, it found that a summary judgment was granted and provided directions that the court's Judgment was "to be entered" when appellees' counsel prepared and submitted a precedent to the court. On the other hand, the JUDGMENT of September 27, 2004, from which appellant timely appealed, provided that "summary judgment will be entered for all of the defendants, and this case is hereby dismissed with prejudice," thereby discharging the parties from the court, dismissing the action, and concluding their rights to the subject matter in controversy. (Emphasis added.)

Because we view the September 27, 2004, judgment as the final appealable order in this case, from which appellant timely appealed, we deny appellees' motions to dismiss.

Pittman, C.J., Hart, Griffen, Glover, and Roaf, JJ., agree.

Gladwin, Robbins, Neal, Vaught, Crabtree, Baker, JJ., would grant.