James G. Dodd, Jr. v. Sparks Regional Medical Center et al.

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March 3, 2004



v. [CV-2002-53, CV-2002-170]





Per Curiam

Appellant, administrator of the estate of Stacy Lynn Dodd, deceased, appeals the trial court's grant of summary judgment, which dismissed his complaint against the appellees for the wrongful death of Ms. Dodd. Because the order appellant appeals from is not a final appealable order, we dismiss the appeal.

Ms. Dodd was involuntarily committed to Sparks Regional Medical Center on December 22, 1995, by the Crawford County Probate Court, after the court found she was a clear and present danger to herself. Ms. Dodd committed suicide on December 27, 1995, by hanging herself with a bed sheet tied to the top of the door of her room at Sparks Regional Medical Center. Appellant, as administrator of Ms. Dodd's estate, filed a wrongful-death action against the defendants, Sparks Regional Medical Center; Holt-Krock Clinic, PLC; Dr. Joe H. Dorzab; Dr. Sally Goforth (hereinafter referred to as appellees); and John Does Nos. 1-10. He alleged that the defendants' violations of the proper standard of care and negligence were the proximate cause of Ms. Dodd's death.

Appellees answered and moved for summary judgment. They contended that appellant was required to produce expert testimony in support of his claims because his claims for medical malpractice went to the issue of whether they failed to act in accordance with the degree of skill and learning possessed by other members of the profession in good standing. See Ark. Code Ann. ยง 16-114-206 (1987). They also asserted that the court previously had taken their motion for summary judgment under advisement to allow appellant time to locate an expert witness but that appellant had refused to produce an expert as required by law. In response to appellees' motions, appellant argued that genuine issues of material fact existed and attached to his response the affidavit of Dr. Norman Westermann, an anesthesiologist for forty-one years, and the affidavit of Mary Ann Spencer, a retired registered nurse, who had worked in the Sparks Regional psychiatric unit for approximately five years. Both affiants testified that it was their professional opinion that the doctors and attending staff were negligent and failed to use due care in caring for Ms. Dodd. A hearing was held on appellees' summary-judgment motions, and, at its conclusion, the trial court dismissed appellant's complaint against them. The trial court did not address appellant's claims against John Doe Nos. 1-10.

Arkansas Rule of Civil Procedure 54(b) provides that, when more than one claim for relief is presented in an action or when multiple parties are involved, an order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not a final appealable order. See Hambay v. Williams, 335 Ark. 352, 980 S.W.2d 263 (1998); South County, Inc. v. First W. Loan Co., 311 Ark. 501, 845 S.W.2d 3 (1993). In Shackelford v. Arkansas Power & Light Company, 334 Ark. 634, 976 S.W.2d 950 (1998), the supreme court dismissed the appeal of the summary judgment awarded to appellee Arkansas Power and Light because an order of dismissal had not been entered for the appellant's claims against the separate defendants John Doe 1 and John Doe 2 and, therefore, the appellant's claims against them remained pending. See also Moses v. Hanna's Candle Co., 353 Ark. 101, ___ S.W.3d ___ (2003) (dismissing the appeal because the record indicated that the circuit court had not entered a final order as to John Does 1-10 and the appeal was not certified pursuant to Rule 54(b)).

Rule 54(b) allows a trial court, when it finds no just reason for delaying an appeal, to direct entry of a final judgment as to fewer than all the claims or parties by executing a certification of final judgment as it appears in Rule 54(b)(1). However, absent this required certification, any judgment, order, or other form of decision that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action. See Jackson v. Delis, 76 Ark. App. 436, 67 S.W.3d 596 (2002). No such certification was made in this case.

Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure-Civil provides that an appeal may be taken only from a final judgment or decree entered by the trial court. Whether an order is final for purposes of appeal is a jurisdictional issue that this court is required to raise even if the parties do not. Hambay v. Williams, supra; Capitol Life & Accident Ins. Co. v. Phelps, 72 Ark. App. 464, 37 S.W.3d 692 (2001). Because from the record it does not appear that the trial court disposed of appellant's claims against the John Doe defendants and there is no Rule 54(b) certification, we must dismiss this appeal without prejudice.

Appeal dismissed.