Susan
Williams                      Cite as 2013 Ark. App. 481
2018.12.
27              ARKANSAS COURT OF APPEALS
11:01:03                            DIVISION II
-06'00'                            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.”




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                                  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.”

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