Traci Mitchell v. Dr. Lance Lincoln et al.

Annotate this Case
ca04-219

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

EN BANC

CA04-219

October 27, 2004

TRACI MITCHELL AN APPEAL FROM MARION COUNTY

APPELLANT CIRCUIT COURT

[NO. CIV2000-39-1]

v.

HONORABLE ROGER LOGAN,

DR. LANCE LINCOLN, et al. CIRCUIT JUDGE

APPELLEES

DISMISSED

Per Curiam

Appellant Traci Mitchell appeals from the entry of summary judgment in favor of appellees. We dismiss the appeal for lack of a final order.

Appellant is the administratrix of her late husband's estate. On August 17, 2000, she filed a medical malpractice suit against Dr. Lance Lincoln, St. Paul Fire & Marine Insurance Company as the insurer of Baxter County Regional Hospital, and John Does 1-3. On February 21, 2002, Dr. Lincoln and St. Paul filed a motion for summary judgment, arguing that appellant could not support her claim with the testimony of an expert witness. The trial court granted the motion on October 6, 2003, but gave appellant ten days in which to file a motion for reconsideration. Appellant filed a motion for reconsideration, but it was denied on November 17, 2003. Appellant now appeals from the October 6 and November 17 orders.

When more than one claim for relief is presented in an action or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or 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. See Ark. R. Civ. P. 54(b)(1) (2004). In the event the court so finds, it shall execute a Rule 54(b) 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. See id.

The order appealed from in this case does not resolve or otherwise dispose of appellant's claims against John Does 1-3, nor does it contain a Rule 54(b) certificate. Further, the record does not contain an order that dismisses the John Does named in appellant's complaint. Our courts have held that, where a defendant has been granted summary judgment but the John Doe defendants have not been dismissed from the case, no final, appealable order has been entered. See Moses v. Hanna's Candle Co., 353 Ark. 101, 10 S.W.3d 725 (2003); Shackleford v. Arkansas Power & Light, 334 Ark. 634, 976 S.W.2d 950 (1998). Moreover, a violation of Rule 54(b) is a jurisdictional issue that we must raise on our own, even if the parties do not. See Shackleford v. Arkansas Power & Light, supra.

In light of the above, we dismiss the appeal without prejudice to refile upon entry of an order that complies with Rule 54(b).

Dismissed.