Bloodman v. Jefferson Hospital Ass'n , 2011 Ark. App. 694 ( 2011 )

JOSEPHINE LINKER HART, Judge.

It Teresa Eagle Bloodman appeals from an order of the Jefferson County Circuit Court dismissing her complaint with prejudice after she attempted to nonsuit separate defendants Steven H. Wright, M.D., and Continental Casualty Insurance Company (Continental), whom she sought to sue under Arkansas’s direct-action statute.¹ On appeal, she argues that the trial court erred as a matter of law when it dismissed the complaint with prejudice because she filed her notice of voluntary dismissal before the entry of the trial court’s order and because she has an absolute right to a voluntary nonsuit pursuant to Rule 41(a) of the Arkansas Rules of Civil Procedure.² We affirm.

The facts in this case are not in dispute. On December 80, 2008, Bloodman, as 12administrator of the estate of her father, John Thomas Eagle, Jr., brought a medical-negligence suit against Jefferson Hospital Association, doing business as Jefferson Regional Medical Center, and its liability carrier, Continental. She later amended the complaint to add Wright as a defendant. Bloodman failed to obtain service on Wright and direct-action defendant Continental within 120 days as required by Rule 4(i) of the Arkansas Rules of Civil Procedure. Wright and Continental moved to dismiss.

After a hearing on the appellees’ motions, the trial court announced from the bench that it was dismissing Bloodman’s complaint with prejudice.³ He instructed the appellees to prepare an order of dismissal. However, prior to entering the proposed order, Bloodman filed a motion to dismiss her case pursuant to Rule 41(a) of the Arkansas Rules of Civil Procedure. The trial court denied the motion, finding that it was untimely filed. Bloodman appealed.

Rule 41(a) of the Arkansas Rules of Civil Procedure states in pertinent part:

Subject to the provisions of Rule 28(d) and Rule 66, an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court. Although such a dismissal is a matter of right, it is effective only upon entry of a court order dismissing the action.

The supreme court has been resolute in holding that the right to nonsuit, as outlined by the rule, is absolute and may not be denied by the trial court so long as the case has not been |ssubmitted to the jury or the court. Burgie v. Norris, 2011 Ark. 137, 2011 WL 1206654. Once submitted, the trial court has discretion to decide whether to grant a voluntary nonsuit. Wright v. Eddinger, 820 Ark. 151, 894 S.W.2d 937 (1995). On appeal, we review the trial court’s decision under an abuse-of-discretion standard.

Bloodman first argues that the trial court erred as a matter of law when it dismissed the complaint with prejudice because she filed her notice of dismissal before the entry of the trial court’s order. She cites numerous cases for the proposition that a judgment is not effective until it is reduced to writing and entered by the court. This argument fails because the plain wording of Rule 41(a) gives a party the absolute right to nonsuit only until the case is submitted. A case has been finally submitted at a hearing for Rule 41(a) purposes when the argument has closed. Burgie v. Norris, supra. Here, Bloodman did not move to nonsuit until after she had completed her argument to the trial court and received an adverse ruling from the bench. Accordingly, the trial court did not err in finding her motion to nonsuit untimely.

Citing Linn v. NationsBank, 341 Ark. 57, 14 S.W.3d 500 (2000), and Lemon v. Laws, 305 Ark. 143, 806 S.W.2d 1 (1991), Bloodman next argues that the trial court erred because she has an absolute right to a voluntary nonsuit pursuant to Rule 41(a) of the Arkansas Rules of Civil Procedure. Again, her argument fails. In Wright v. Eddinger, supra, the supreme court held that a plaintiff no longer had an absolute right to a voluntary nonsuit after the trial court announced its decision from the bench. Accordingly, we reject Bloodman’s argument on this point as well. Linn and Lemon do not compel a different result. Both of those cases involved Umotions to nonsuit filed before the case was submitted. Her citation of Shaw v. Destiny Industries, Inc., 78 Ark.App. 8, 76 S.W.3d 905 (2002), is similarly unpersuasive because that ease involved claims that had not been dismissed by the grant of partial summary judgment.

As a final note, we clarify the disposition of this case. As noted previously, dismissal with prejudice of the complaint against Wright and Continental was proper. Nonetheless, dismissal does not sever whatever contractual obligations Continental has to Jefferson Regional Medical Center and Jefferson Hospital Association; the liability, if any, between these parties has not been adjudicated in this action.

Affirmed.

ROBBINS, J., agrees. . PITTMAN, J., concurs.

1 . Arkansas Code Annotated section 23-79-210 (Supp.2011).

2 . On July 8, 2009, Bloodman voluntarily non-suited Jefferson Hospital Association doing business as Jefferson Regional Medical Center.

3 . We note that, ordinarily, a trial court only has authority to dismiss the complaint without prejudice pursuant to Rule 4(i) of the Arkansas Rules of Civil Procedure. However, the order of dismissal came after the two-year statute of limitations that applies to medical-negligence actions had lapsed. In accordance with the supreme court’s direction in Brennan v. Wadlow, 372 Ark. 50, 270 S.W.3d 831 (2008), dismissal with prejudice was proper.