Rhonda Coleman v. Dennis W. Jacks, M.D.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

RHONDA COLEMAN

APPELLANT

V.

DENNIS W. JACKS, M.D.

APPELLEE

CA05-718

AUGUST 31, 2005

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT

[NO. CV2002-516-2-5]

HON. JOHN PLEGGE, JUDGE

APPEAL DISMISSED

Per Curiam

Appellant appeals an order of the trial court dated December 29, 2004, granting summary judgment in favor of appellee, Dennis W. Jacks, M.D. Appellee has filed a motion to dismiss this appeal, arguing that appellant's record was not timely filed because it was tendered for filing one day after the expiration of its due date. Appellee has also filed a motion to supplement the record to include the trial court's April 22, 2004, order granting summary judgment in favor of another defendant, Jefferson Regional Medical Center (JRMC), and dismissing JRMC as a defendant. The stated purpose of appellee's motion to supplement the record is to establish that the order from which appellant appeals is final because the April 22, 2004, order, in tandem with the trial court's December 29, 2004, order granting summary judgment to appellee, demonstrates that the claims against all parties to the litigation have been resolved.

Although we find it necessary to dismiss this appeal, we do not do so on the basis of appellee's motions. Rather, notwithstanding the trial court's orders of April 22, 2004, and December 29, 2004, granting summary judgments in favor of JRMC and appellee, respectively, we must dismiss the appeal because the order from which this appeal is taken is still not final. The question of whether an order is final and subject to appeal is a jurisdictional question that the appellate court will raise sua sponte. Reed v. Ark. State Highway Comm'n, 341 Ark. 470, 17 S.W.3d 488 (2000). Before an appeal may be taken from a final judgment as to one or more but fewer than all of the claims or parties, the circuit court must certify the judgment for appeal. Id.

From our examination of the record tendered by the appellant it appears that, in addition to appellee and JRMC, ten (10) John Does were also named in appellant's complaint as defendants. We do not find in the record an order of the trial court either dismissing these John Doe defendants or certifying to us, in accordance with Arkansas Rule of Civil Procedure 54(b)(1), that the judgment appealed from is final. Accordingly, we do not have jurisdiction to hear this case, and the appeal is dismissed without prejudice.

Appeal dismissed.