Baptist Memorial Hosp. v. Kalyan , 2013 Ark. App. 481 ( 2013 )


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  •                               Cite as 
    2013 Ark. App. 481
    ARKANSAS COURT OF APPEALS
    DIVISION II
    No. CV-12-1105
    BAPTIST MEMORIAL HOSPITAL-                     Opinion Delivered   SEPTEMBER 11, 2013
    MISSISSIPPI COUNTY, INC. d/b/a
    BAPTIST MEMORIAL HOSPITAL-                     APPEAL FROM THE MISSISSIPPI
    BLYTHEVILLE, and d/b/a BAPTIST                 COUNTY CIRCUIT COURT,
    MEMORIAL HOSPITAL-OSCEOLA                      CHICKASAWBA DISTRICT
    APPELLANTS              [NO. CV-03-380]
    V.                                             HONORABLE RANDY F.
    PHILHOURS, JUDGE
    MADHU KALYAN, M.D.
    APPELLEE        DISMISSED WITHOUT PREJUDICE
    DAVID M. GLOVER, Judge
    This case arises out of a contractual dispute between the parties, Baptist Memorial
    Hospital–Mississippi County, Inc. d/b/a Baptist Memorial Hospital–Blytheville, and d/b/a
    Baptist Memorial Hospital–Osceola (BMH), appellants, and Dr. Madhu Kalyan, M.D.,
    appellee. BMH filed its complaint against Dr. Kalyan on December 1, 2003, alleging breach
    of contract and seeking damages. Dr. Kalyan answered the complaint on March 16, 2004,
    denying the breach and asserting affirmative defenses. On December 4, 2009, Dr. Kalyan
    filed an amended answer and a counterclaim. The counterclaim contained two counts:
    Count I alleged that BMH negligently recruited Dr. Kalyan, and Count II alleged
    alternatively that BMH misrepresented material facts to Dr. Kalyan while recruiting him,
    Cite as 
    2013 Ark. App. 481
    both of which he alleged resulted in damages to him. BMH unsuccessfully moved to strike
    Dr. Kalyan’s amended answer and counterclaim.
    The case was tried by a jury on October 24–26, 2011. The parties stipulated certain
    facts and exhibits, including the stipulation that Dr. Kalyan received $228,350.74 from BMH
    in connection with the physician agreement and promissory note and that he had not repaid
    those amounts. The case was submitted to the jury with a verdict form containing three
    interrogatories: 1) Do you find from a preponderance of the evidence that Dr. Kalyan
    breached the contract with Baptist Memorial Hospital? [Yes]; 2) Do you find from a
    preponderance of the evidence that Baptist Memorial Hospital should be estopped from
    enforcing the contract against Dr. Kalyan? [No]; and 3) How much are the damages Baptist
    Memorial Hospital is entitled to recover from Dr. Kalyan? [$46,478.38]. The jury thus
    concluded that Dr. Kalyan breached his agreement with BMH, that BMH was not estopped
    from enforcing the contract with Dr. Kalyan, and that Dr. Kalyan owed BMH $46,478.38
    in damages.
    Even though the case was tried in October 2011, the judgment was not entered until
    September 5, 2012. The judgment quotes the verdict form but does not specifically address
    the two counts raised in the counterclaim. We have not been provided with any other court
    order dismissing the counterclaim, despite BMH’s assertion in its argument that “Dr. Kalyan
    dismissed his counterclaim.”
    2
    Cite as 
    2013 Ark. App. 481
    In between the October 2011 trial and the September 5, 2012 entry of the judgment,
    BMH filed a motion for judgment notwithstanding the verdict.1 The motion was denied on
    September 7, 2012, and BMH filed its notice of appeal on October 1, 2012, contending that
    the trial court erred in denying its motion for JNOV.
    We conclude that the judgment is not final and appealable because Dr. Kalyan’s
    counterclaim has not been dismissed in a written order. Ark. R. Civ. P. 54(b)(2). Without
    a final and appealable judgment, we are without jurisdiction to hear this appeal.
    Consequently, we dismiss the appeal without prejudice.
    Dismissed without prejudice.
    WOOD and BROWN, JJ., agree.
    Philip Hicky, II, Ltd., by: Philip Hicky, II and Jessica J. Trail, for appellants.
    Bearden Law Firm, by: Mike Bearden, for appellee.
    1
    Ark. R. Civ. P. 50(b)(2) provides in pertinent part, “A motion made before entry
    of judgment shall become effective and be treated as filed on the day after the judgment is
    entered.”
    3
    

Document Info

Docket Number: CV-12-1105

Citation Numbers: 2013 Ark. App. 481

Judges: David M. Glover

Filed Date: 9/11/2013

Precedential Status: Precedential

Modified Date: 4/11/2017