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Gray v. White River Health System, Inc.

Supreme Court of Arkansas

February 25, 2016

CAROLYN GRAY, APPELLANT
v.
WHITE RIVER HEALTH SYSTEM, INC. d/b/a WHITE RIVER MEDICAL CENTER, INC.; AND CONTINENTAL CASUALTY COMPANY, APPELLEES

          APPEAL FROM THE INDEPENDENCE COUNTY CIRCUIT COURT. NO. CV-2014-033-4. HONORABLE TIM WEAVER, JUDGE.

         David A. Hodges, for appellant.

         Wright, Lindsey & Jennings, LLP, by: David P. Glover, Gary D. Marts, Jr., and David C. Jung, for appellees.

          OPINION

Page 294

         KAREN R. BAKER, Associate Justice.

         This appeal stems from a medical-malpractice action filed by appellant, Carolyn Gray, against Doctors' Anatomic Pathology Services, P.A., Dr. Stephen Locke, ten John Doe defendants, and appellees, White River Health System, Inc. d/b/a White River Medical Center, and its insurer Continental Casualty Company (appellees hereinafter collectively referred to as " WRMC" ). In her suit filed on February 18, 2014, Gray asserted claims against WRMC alleging failure to intervene, vicarious liability, lack of qualified staff, nondelegable duty, and breach of contract. In response, WRMC filed a motion to dismiss Gray's claims of failure to intervene, vicarious liability as it related to unnamed personnel other than Dr. Locke, lack of qualified staff, and breach of contract, asserting that Gray failed to state sufficient facts as to WRMC's role in Gray's treatment. WRMC also filed a motion for summary judgment seeking dismissal of Gray's claim of vicarious liability as it pertained to acts of Dr. Locke and dismissal of Gray's nondelegable duty-claim. Gray responded, asserting that summary judgment was premature and also amended her response to WRMC's motion for summary judgment.

         On November 14, 2014, the circuit court held a hearing on the motions and granted WRMC's motion for summary judgment. The circuit court also granted WRMC's motion to dismiss as to Gray's breach-of-contract claim and, for the remaining claims, allowed Gray ten days to amend her complaint. Gray amended her complaint, and WRMC renewed its original motion to dismiss. Gray also filed a second amended complaint alleging negligent hiring of an independent contractor. WRMC moved to dismiss Gray's additional claim, citing to Paulino v. QHG of Springdale, Inc., 2012 Ark. 55, 386 S.W.3d 462.

         On April 1, 2015, the circuit court held a second hearing and granted WRMC's remaining motions to dismiss and on May 11, 2015, entered an order of dismissal. Gray timely appealed to this court and presents three issues: (1) the circuit court erred in granting the motion to dismiss Gray's claim for negligent hiring of an independent contractor; (2) the circuit court erred in dismissing Gray's claims alleging vicarious liability; and (3) the circuit court erred in dismissing causes of action for which the hospital was directly liable. Because the circuit court's order did not contain specific factual findings that there was no just reason for delay in accordance with Arkansas Rule of Civil Procedure 54(b) (2014), we dismiss the appeal without prejudice for lack of a final order.

          Whether an order is subject to an appeal is a jurisdictional issue that this court has the duty to raise, even if the parties do not. Kyle v. Gray, Ritter & Graham, P.C., 2012 Ark. 268, at 1. Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure-- Civil (2014) provides that an appeal may be taken from a final judgment or decree entered by the circuit court. Although the purpose of requiring a final order is to avoid piecemeal litigation, a circuit court may certify an otherwise nonfinal order for an immediate appeal by executing a certificate pursuant to Rule 54(b) of the Arkansas Rules of Civil Procedure. See Kyle, supra ; Robinson v. Villines, 2012 Ark. 211. Rule 54 (b)(1) provides in pertinent part:

Certification of Final Judgment. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party

Page 295

claim, 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. In the event the court so finds, it shall execute the following 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[.]

          We have consistently held that the rule requires the order to include specific findings of any danger of hardship or injustice that could be alleviated by an immediate appeal and to set out the factual underpinnings that establish such hardship or injustice. Kyle, supra ; Blackman v. Glidewell, 2 ...


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