Aka v. Jefferson Hospital Association et al, 99-1366

• Decision Date: 29 March 2000
• Docket Number: 99-1366
• Citation: 13 S.W.3d 224
• Parties: Philip AKA, Special Administrator of the Estate of Evangeline Aka v. JEFFERSON HOSPITAL ASSOCIATION, et al. CA 99-1366 ___ S.W.3d ___ Opinion delivered
• Court: Arkansas Court of Appeals

Philip AKA, Special Administrator of the Estate of Evangeline Aka

v.

JEFFERSON HOSPITAL ASSOCIATION, et al.

CA 99-1366 ___ S.W.3d ___

Opinion delivered March 29, 2000

Court of Appeals of Arkansas

En Banc

Appeal from Jefferson Circuit Court; Phillip Shirron, Judge; Appellees' Motions to Dismiss; denied.

1. Appeal & error -- failure to name individual appellees not violative of Ark. R. App. P.--Civ. 3(e) -- appellate court not deprived of jurisdiction. --Rule 3(e) of the Arkansas Rules of Appellate Procedure--Civil requires that the party taking the appeal and the order being appealed from be specified in the notice of appeal; appellant's failure specifically to name individual appellees was not violative of the rule and did not deprive the appellate court of jurisdiction.

2. Appeal & error -- finality -- order adjudicating fewer than all claims by all parties not final. -- Any order that adjudicates fewer than all of the claims or rights and liabilities of fewer that all of the parties is not final for the purposes of appeal in the absence of an express direction for the entry of final judgment by the trial court [Ark. R. Civ. P. 54(b)].

3. Appeal & error -- notice of appeal -- appellant's failure to name interlocutory orders not fatal. -- Where no express direction was made in the case, and where summary judgments in favor of two appellees were interlocutory only and not final or appealable and were subject to revision at any time prior to entry of the final judgment, appellant's failure to name interlocutory orders in his notice of appeal was not fatal.

4. Appeal & error -- final order -- appeal brings up for review intermediate order. -- Subject to certain exceptions, an appeal may only be "taken from" a final order, and an appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment.

5. Appeal & error -- appellant did not fail to designate final order -- nothing more required to bring up intermediate orders. -- Where appellant did not fail to designate the final order from which the appeal was being taken, nothing more was required of him to bring up for review intermediate orders such as the summary judgments in favor of two appellees.

Morgan Welch & Associates, by: Morgan E. Welch, for appellant.

Friday, Eldredge & Clark, by: J. Phillip Malcom and Robert S. Shafer, for appellees Erma Washington and Associates.

Anderson, Murphy & Hopkins, by: Overton S. Anderson, for appellee Erma Washington, individually.

Per Curiam.

Appellees Erma Washington and Associates ("Associates") and Erma Washington individually ("Washington") have filed motions to dismiss appellant's appeal as to them. They contend that appellant's notice of appeal was insufficient to vest jurisdiction in this court over them or over the order dismissing them from the case because the notice of appeal did not specifically name them or the interlocutory, partial summary-judgment orders by which they were dismissed from the case. We find no merit in appellees' motions, and we deny them.

Appellees Associates and Washington were two of a number of defendants who were sued by appellant. These appellees were dismissed from the lawsuit by orders of summary judgment in August 1998. Because those orders did not decide all of the claims or the rights of all of the parties to the lawsuit, they were not final ones that could then be appealed. See Ark. R. Civ. P. 54(b); Ark. R. App. P.--Civ. 2(a). The case then went to trial against the other defendants in the case, resulting in a jury verdict in favor of those defendants. A judgment was entered on the jury verdict on March 8, 1999, and an order denying appellant's motion for a new trial was entered on April 22, 1999. Appellant then filed a notice of appeal stating that he was appealing the jury verdict, the March 8 judgment on the verdict, and the April 22 denial of his new-trial motion. Appellant's notice did not name Associates or Washington as appellees and did not state that he was appealing from the August 1998 partial summary-judgment orders that dismissed Associates and Washington from the case.

Appellees argue that appellant's notice of appeal was fatally defective as to them because it did not specifically name them or the August 1998 orders. Appellees rely upon Ark. R. App. P.--Civ. 3(e) and this court's case of Arkansas Dep't of Human Servs. v. Shipman, 25 Ark. App. 247, 756 S.W.2d 930 (1988). Rule 3(e) provides in pertinent part that "[a] notice of appeal or cross-appeal shall specify the party or parties taking the appeal; shall designate the judgment, decree, order or part thereof appealed from and shall designate the contents of the record." (Emphasis added.) In Shipman, the Department of Human Services (DHS) filed a notice of appeal that stated that DHS was appealing from a September 4, 1987, order appointing a Mr. and Mrs. Boudra as continuing

custodians of a child in foster care. We held that that notice of appeal was insufficient under Rule 3(e) to effect an appeal by three individual DHS employees who had been held in criminal contempt of court by the same chancellor in an August 28, 1987, order. We held that a contemner who is not a named party in the original proceeding but who is held in contempt must file a notice of appeal in his own right, specifying that he is appealing from the order holding him in contempt.

Neither Rule 3(e) nor the Shipman case require a dismissal of appellant's appeal against appellees Associates and Washington. As noted above, Rule 3(e) requires that the party taking the appeal and the order being appealed from be specified in the notice of appeal. Appellant's failure to specifically name individual appellees simply is not violative of the rule and is not something that deprives this court of jurisdiction.

Likewise, appellant's failure to name interlocutory orders in his notice of appeal is not fatal. Clearly, any order that adjudicates fewer than all of the claims or rights and liabilities of fewer that all of the parties is not final for the purposes of appeal in the absence of an express direction for the entry of final judgment by the trial court. Ark. R. Civ. P. 54(b). No express direction was made in this case, and the summary judgments in favor of appellees Associates and Washington were interlocutory only and not final or appealable. Indeed, such orders are subject to revision at any time prior to entry of the final judgment. Id. Just as clearly, subject to exceptions not applicable here, an appeal may only be "taken from" a final order, see Ark. R. App. P.--Civ. 2(a), and "[a]n appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment." Ark. R. App. P.--Civ. 2(b) (emphasis added); see DeClerk v. Tribble, 276 Ark. 316, 637 S.W.2d 526 (1982).

Arkansas Department of Human Services v. Shipman, supra, and Daniel v. State, 64 Ark. App. 98, 983 S.W.2d 146 (1998), cited in the dissent, are plainly distinguishable. The criminal contempt order not specified in the notice of appeal in Shipman was clearly a final order in its own right, did not involve the merits of the underlying juvenile case or affect the judgment thereon, and was directed at individuals other than the named parties to the action in which the allegedly contumacious conduct occurred. The failure of those individuals to file a notice of appeal stating that they were appealing from the final, appealable contempt order is what prevented us from addressing their arguments regarding the finding of contempt. In Daniel, we could not reach the appellant's arguments "[b]ecause the final appealable order was not designated in appellant's notice of appeal." Daniel v. State, 64 Ark. App. at 100, 983 S.W.2d at 147 (emphasis added).

Here, the summary-judgment orders decided the parties' rights with respect to claims against two of the defendants. Without those orders, the order entered on the jury verdict would not have been final, and vice versa. We do not agree with the dissenting judges' argument that the summary-judgment orders did not "involve the merits" of the case or "necessarily affect" the judgment.

Appellant's notice of appeal provided that he was appealing, inter alia, the judgment entered on the jury verdict (which disposed of all of the remaining claims and decided the rights and liabilities of all of the remaining parties) and the denial of his motion for a new trial, and designated the entire proceedings below as the record on appeal. He did not fail to designate the final order from which the appeal was being taken. Nothing more was required of him to bring up for review intermediate orders such as the summary judgments in favor of appellees Associates and Washington.¹

Bird, Crabtree, and Griffen, JJ., dissent.

Roaf, J., and Hays, Special Judge, not participating.

Sam Bird, Judge, dissenting.

This court, sitting en banc, has denied a motion by two of the appellees in this case, Erma Washington and Associates (referred to hereinafter as Associates)Erma Washington, M.D. (referred to hereinafter as Washington), to dismiss this appeal as to them because of appellant's noncompliance with Rule 3(e) of the Arkansas Rules of Appellate Procedure. I respectfully dissent from the court's decision because I believe that it disregards precedent and, therefore, creates confusion to the point of rendering Rule 3(e) meaningless.

From the record before us, it appears that suit was filed in Jefferson County Circuit Court against several defendants, including Associates and Washington, alleging medical malpractice. The complaint alleged that Associates was liable under the theory of respondeat superior for the acts of Washington and Dr. Betty Orange. Washington filed a motion for summary judgment, contending that, at the time of the occurrence of the events constituting the alleged medical malpractice, she was acting in...