Cigna Insurance v. Brisson

Steele Hays, Justice.

This medical malpractice case comes to us on a procedural issue. In December 1985, a wrongful death suit was filed by the administratrix of the estate of Frank Speed against the Helena Hospital. The complaint was amended in February 1986, to join the hospital’s insurer, Cigna Insurance Company. On June 4, 1986, the circuit court entered an order dismissing the action against the hospital and finding that the claim against Cigna was barred by the statute of limitations.

On June 17,1986, the administratrix moved that the court vacate or reconsider its June 4th order insofar as it related to Cigna. Shortly thereafter, counsel for Cigna and the administratrix contacted the trial judge and evidently agreed that the order should be modified and the court set a hearing on the matter for August 21,1986. On that date counsel appeared and on motion of the administratrix, the hearing was rescheduled for September 15, 1986. At the September hearing, Cigna objected to any further proceedings, arguing that because ninety days had elapsed since the entry of the order of dismissal the court no longer had jurisdiction.

By letter dated October 25, 1986, the trial court wrote counsel that inasmuch as both parties had notified the court within thirty days of the June 4th order that the order should be amended, and that a hearing was scheduled originally within ninety days of that order, it had jurisdiction to hear the matter. The court announced that the June 4th order would be modified to dismiss the action as to the hospital but not as to Cigna. An order to that effect was entered on February 20, 1987.

Cigna appeals from this most recent order, contending only that the court was without jurisdiction to make any further orders after the lapse of ninety days from the order of June 4th, citing ARCP Rule 60(b) and ARAP Rule 4.

We cannot review this case on appeal because the order appealed from, the denial of a motion to dismiss, is not an appealable order. ARAP Rule 2. The denial of a motion to dismiss an action is not a final judgment from which an appeal can be taken. Epperson v. Biggs, 17 Ark. App. 212, 705 S.W.2d 901 (1986). For an order to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Roberts Enterprises, Inc. v. Arkansas State Hwy. Comm’n, 277 Ark. 25, 638 S.W.2d 75 (1982). Neither party has raised this point, but the question of a final order is a jurisdictional requirement which the appellate court should raise on its own. Roy v. Int’l Multifoods Corp., 268 Ark. 958, 597 S.W.2d 129 (1980); Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984); Arkansas Savings & Loan Ass’n v. Cornell Savings & Loan Ass’n, 252 Ark. 264, 478 S.W.2d 431 (1972).

While the trial court’s jurisdiction of the subject matter is obviously essential to an action, a disputed ruling on that issue does not render an order appealable. A ruling on jurisdiction is not a basis for appealing an order under ARAP Rule 2. While we have said the question of jurisdiction can be “raised at any time,” Head v. Caddo Hills School District, 277 Ark. 482, 644 S.W.2d 246 (1982), that is not to say that the issue can be appealed at any point in the proceedings, but rather that no previous objection is needed in order to preserve the question at a later stage in the proceeding, i.e., that the objection may be raised at any time. See 20 Am Jur 2d Courts, § 95 (1965): “But an objection based on the ground of absence of jurisdiction over the subject matter must be considered and may be effectively raised at any time. Hence, such an objection may be raised for the first time in the appellate court and may even be raised by way of collateral attack.”

746 S.W.2d 558

The purpose of Rule 2 is to avoid piecemeal litigation. Should we consider Cigna’s appeal and affirm the order, and subsequent disputes occurred in future proceedings, the case could be appealed a second time, resulting in two appeals where one would suffice. Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984). Once a final order has been entered the case is subject to appeal, and the question of jurisdiction is not lost by continuing through a trial of the matter. Heber Springs Lawn & Garden v. FMC Corp., 275 Ark. 260, 628 S.W.2d 563 (1982).

Appeal dismissed.