McKinney v. Ark. Cardiology, P.A.
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Cite as 2009 Ark. App. 741
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CA08-945
SHELBA MCKINNEY and WILLIAM
MCKINNEY
APPELLANTS
V.
ARKANSAS CARDIOLOGY, P.A., and
GARY COLLINS, M.D.
APPELLEES
Opinion Delivered
November 4, 2009
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
[NO. CV2006-11967-3]
HONORABLE JAMES MOODY, JR.,
JUDGE
APPEAL DISMISSED
WAYMOND M. BROWN, Judge
Appellants, Shelba and William McKinney, filed this negligence suit against appellees,
Arkansas Cardiology, P.A., and Gary Collins, M.D., after Mrs. McKinney fell from a treadmill
during a stress test administered by appellees. Prior to trial, the Pulaski County Circuit Court
dismissed appellants’ suit for failure to obey a discovery order and made an additional ruling
granting summary judgment to Dr. Collins. Appellants appeal those rulings, but we must
dismiss for lack of a proper notice of appeal.
On April 15, 2008, the circuit court dismissed appellants’ suit after appellants “failed
to comply with the order of the Court entered on April 16, 2007, directing them to file full
and complete responses to discovery within ten days.” On May 13, 2008, the court vacated
the dismissal order and entered a new order. The new order again dismissed appellants’
Cite as 2009 Ark. App. 741
complaint for discovery violations but also granted Dr. Collins’s motion for summary
judgment, which the doctor had filed based on appellants’ inability to provide qualified expert
testimony as required by the Arkansas Medical Malpractice Act. Ark. Code Ann. §§ 16-114201 to -212 (Repl. 2006). On May 15, 2008, appellants filed a notice of appeal, but their
notice referenced only the vacated April 15, 2008 order. They filed no notice of appeal from
the May 13, 2008 order.
A notice of appeal shall designate the order from which the appeal is taken. See Ark.
R. App. P.–Civ. 3(e). If a notice of appeal fails to designate a final order, it is ineffective. See
Daniel v. State, 64 Ark. App. 98, 983 S.W.2d 146 (1998). In this case, appellants’ notice of
appeal not only failed to designate the May 13, 2008 final order, it designated an order that
had been vacated. A vacated order is effectively null and void and without legal effect. See
generally Tri-S Corp. v. W. World Ins. Co., 135 P.3d 82 (Haw. 2006); 7-Eleven, Inc. v. Dar, 842
N.E.2d 260 (Ill. Ct. App. 2005); Brown v. Brown, 638 S.E.2d 622 (N.C. Ct. App. 2007);
D’Elia v. Folino, 933 A.2d 117 (Pa. Super. Ct. 2007); see also Black’s Law Dictionary 1688 (9th
ed. 2009) (defining “vacate” as “to nullify or cancel; make void; invalidate.”) It is clear
beyond dispute that an appellant cannot effectively appeal from a void and nullified order that
has been replaced by a final, appealable order.
Our courts have permitted certain irregularities in designating an order on appeal, such
as where the appellant simply misidentifies the date of the final order and clearly intended to
appeal from that order, see Pro-Comp Mgmt., Inc. v. R.K. Enterps., LLC, 372 Ark. 190, 272
-2-
Cite as 2009 Ark. App. 741
S.W.3d 91 (2008), Sudrick v. Farm Bureau Mut. Ins. Co., 49 Ark. App. 896 S.W.2d 452 (1995),
or where the appellant appeals from an interim order that operates in all material respects as
a final order. See Vimy Ridge Mun. Water Imp. Dist. v. Ryles, 373 Ark. 366, 284 S.W.3d 70
(2008). However, those circumstances are not applicable here. Appellants appealed from an
order that had been vacated and was not in existence when they filed their notice of appeal.
We must therefore dismiss the appeal.
Appeal dismissed.
GRUBER and BAKER, JJ., agree.
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