FROM THE INDEPENDENCE COUNTY CIRCUIT COURT. NO.
CV-2014-033-4. HONORABLE TIM WEAVER, JUDGE.
A. Hodges, for appellant.
Lindsey & Jennings, LLP, by: David P. Glover, Gary D.
Marts, Jr., and David C. Jung, for appellees.
R. BAKER, Associate Justice.
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.
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.
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
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
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 ...