Lead Opinion
| Appellant Patricia Cannady, individually and as administratrix of the estate of Anne Pressly, appeals the order of the Pulaski County Circuit Court granting summary judgment in favor of St. Vincent Infirmary Medical Center (St. Vincent). St. Vincent, Jay Holland, and Candida Griffin cross-appeal the denial of their motions for summary judgment as to 12Cannady’s outrage claim. We have jurisdiction over this case pursuant to Ark. Sup. Ct. R. 1-2(a)(7), because it is a second, or subsequent, appeal of this matter in this court. See Cannady v. St. Vincent Infirmary Med. Ctr.,
I. Facts and History
On October 20, 2008, Cannady’s daughter, Anne Pressly, was assaulted in her home and was hospitalized at St. Vincent where she died as a result of her injuries on October 25, 2008. Pressly was a news anchor for a Little Rock television station, and there was a high degree of public' interest in the facts of her case. Holland was a physician practicing at St. Vincent but was not a St. Vincent employee. Griffin and Sarah Elizabeth Miller were St. Vincent employees.
In a complaint filed October 16, 2009, Cannady alleged claims of invasion of privacy and outrage against St. Vincent, Holland, Griffin, and Miller.
St, Vincent answered and argued that any claim for invasion of privacy or outrage did not survive Pressly’s death. Holland, Griffin, and Miller filed separate answers. St. Vincent filed a motion for summary judgment, again arguing that an invasion-of-privacy claim does not survive the death of the decedent, and that, the claim for the tort of outrage also failed because it was based on the invasion of privacy. Holland, Griffin, and Miller each filed motions for summary judgment adopting St. Vincent’s motion. The circuit court granted the motions, and Cannady appealed to this court. We affirmed in part and reversed in part, finding that the circuit court improperly dismissed the outrage claim solely because it was based on the same conduct as the invasion-of-privacy claim, which was extinguished by Pressly’s death. We concluded:
However, neither St, Vincent nor the. circuit court has cited to any authority for the proposition that two separate claims cannot be based on the same conduct. In addition, the outrage claim was not made on behalf of the decedent, but on appellant’s own behalf, and'the court failed to make any findings regarding whether sufficient facts existed to state a cause of action for outrage. Thus, we reverse the court’s order on this point and remand for further proceedings.
Cannady I,
^Because the circuit court determined that St. Vincent could not be held vicariously liable for the conduct of employees when the claims against the employees failed, we also reversed as to the dismissal of the outrage claim against St. Vincent.
On remand, St. Vincent, Holland, and Griffin again filed motions for summary judgment. ,St. Vincent argued that it was entitled to summary judgment because the conduct alleged to give rise to the tort of outrage was not, as a matter of law, the type of conduct that would support such a claim under Arkansas law; Arkansas does not recognize a cause of action when the defendant’s conduct is directed to a third person; and' even if Arkansas were to recognize such a- cause of action, summary judgment would still be appropriate because Cannady was not present when the allegedly outrageous conduct occurred, St. Vincent further argued that it could not be held vicariously liable for the conduct of Griffin and Miller because the conduct was not committed within the scope of their employment, B.oth Holland and Griffin argued that the conduct alleged is not the type of conduct that will support a claim for the tort of outrage under Arkansas law. Holland and Griffin also argued that Arkansas does not recognize a cause of action when the defendant’s conduct is directed to a third person and that even if Arkansas were to recognize such a cause of action, Cannady was not present when the alleged outrageous conduct occurred.
The circuit court found that the arguments made by St. Vincent, Holland, and Griffin in their second motions were not barred by the law-of-the-case doctrine and denied the motions as to the outrage claim, finding that there were genuine issues of material fact as to whether the conduct of Holland, Griffin, and Miller was sufficiently extreme and outrageous to- support a claim of outrage, whether the conduct was directed to a third party, and whether the plaintiff was present at the time the conduct occurred. The court granted St. Vincent’s motion as to its vicarious liability, concluding that the conduct of Griffin and Miller was outside the scope of their employment, was for their own desires, and was not authorized or ratified by St. Vincent. Although the order did not dispose of all claims, the circuit court certified the case for an immediate appeal pursuant to Ark. R. Civ. Pi 54(b)(1), citing the novel issues presented and the possibility of avoiding a trial altogether. Cannady appealed, arguing that the circuit court erred in ruling that St. Vincent’s motion was not barred by the law-of-the-case doctrine and in, granting St. Vincent’s motion on the ground that the conduct of Griffin and Miller was outside the course and scope of their employment. St. Vincent, Holland, and Griffin filed cross-appeals, arguing that the circuit court erred in not granting summary judgment on the underlying outrage claim.
| fiII. Discussion
A. Direct appeal
The law is well settled regarding the standard of review used by this court in reviewing a grant of summary judgment. See Repking v. Lokey,
The circuit court granted St. Vincent’s motion for summary judgment with respect to its argument that it could not be liable for actions taken by Griffin and Miller because 17they were acting, outside the scope of their employment when they viewed Pressly’s medical records. Cannady first argues that the circuit court erred in finding the law-of-the-case doctrine did not preclude consideration of St. Vincent’s argument that it could not be held vicariously liable for the. conduct of its employees because they were acting outside the scope of their employment,. We addressed the doctrine of the law of the case in Green v.
The doctrine of law of the case prohibits a court from reconsidering issues of law and fact that have already been decided on appeal. Cadillac Cowboy, Inc. v. Jackson,347 Ark. 963 ,69 S.W.3d 383 (2002). The doctrine provides that a decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review. Clemmons v. Office of Child Support Enforcement,345 Ark. 330 ,47 S.W.3d 227 (2001). The law-of-the-case doctrine also prevents consideration of an argument that could have been raised at the first appeal and is not made until a subsequent appeal. First Commercial Bank v. Walker,333 Ark. 100 ,969 S.W.2d 146 (1998). The doctrine serves to effectuate efficiency and finality in the judicial process, and its purpose is to maintain consistency and avoid reconsideration of matters once decided during the course of a single, continuing lawsuit. Jones v. Double “D” Props., Inc.,357 Ark. 148 ,161 S.W.3d 839 (2004). However, the law-of-the-case doctrine is conclusive only where the facts on the second appeal are substantially the same as those involved in the prior appeal, and it does not apply if there was a material change in the facts. See Weiss v. McFadden,360 Ark. 76 ,199 S.W.3d 649 (2004).
St. Vincent argues that the law-of-the-case doctrine is inapplicable because its first motion for summary judgment was based entirely on questions of law and was filed before any depositions were taken. St. Vincent points to our prior decision where we found no reason that the.outrage claim could not be based on the same facts as the privacy-violation |8claim; that the outrage claim was not made on behalf of Pressly but on behalf of Cannady herself; and that the circuit court failed to make any finding as to whether sufficient facts existed to state a cause of action for outrage. In Cannady I, the circuit court determined that the outrage claim failed because it was based on the same facts as the privacy claim. Because there was no actionable claim against the employees, the circuit court determined that St. Vincent had no vicarious liability. St. Vincent did not argue that the employees were acting outside the scope of their employment, and the circuit court never ruled on that issue. In Cannady I, we reversed the circuit court’s determination that St. Vincent could not be held vicariously liable for the conduct of its employees, and we said that “[bjecause we are reversing on the outrage claim, we likewise reverse on this point as it relates to the outrage claim and remand.” In applying the principles set forth in Green, it is clear that the law-of-the-case doctrine does not preclude St. Vincent’s argument. We did not determine in Cannady I that Griffin and Miller were acting within the scope of their employment or that St. Vincent’s argument that it could not be held liable for its employees’ conduct, which was outside the scope of their employment, was without merit. Likewise, although Cannady argues that the defense could have been raised in the first appeal, the case is in a different posture now. Now, although the facts have not changed, depositions have been taken, and the record is more developed in that it is now clear that Griffin and Miller were not acting within the scope of their employment, that their actions |3were in violation of their training and the confidentiality agreements they signed, and that their employment was terminated as a result. Although Cannady argues that the material facts supporting the respondeat superi- or claim were in the record at the time of the first appeal, she alleged in her first amended complaint that the actions of
Cannady next argues that even if law of the’ case does not apply, St. Vincent may still be liable for Griffin’s and Miller’s actions because they were not unexpecta-ble. If the actions of an employee were not authorized but could be expected given the nature of the job, respondeat superior may apply. See Life & Casualty Ins. Cot. v. Padgett,
B. Cross-appeal
St. Vincent, Holland, and Griffin also cross-appeal the circuit court’s order denying their motions for summary judgment as to the tort of outrage. As a preliminary matter, even though the parties do not raise it, we must consider whether the cross-appeal is properly before us. In Holbrook v. Healthport, Inc.,
Whether an order is subject to an appeal is a jurisdictional issue that this court has the duty to raise, even if the parties do not. Myers v. McAdams,366 Ark. 435 ,236 S.W.3d 504 (2006). Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure-Civil provides that an appeal may be taken from a final judgment or decree entered by the circuit court. Although the purpose of requiring a final order is to avoid piecemeal litigation, a circuit court may certify an otherwise nonfinal order for an immediate appeal by executing a certificate pursuant to Rule 54(b) of the Arkansas Rules of Civil Procedure. Robinson v. Villines,2012 Ark. 211 [2012 WL 1739140 ].
1 nGenerally, there is no basis for the review of a denial of interlocutory orders such as motions for summary judgment. Arkansas Ins. Dep’t v. Baker,
Although denials of summary judgment are not generally appealable, in the instant case, the circuit court certified its decision for immediate appeal pursuant to Rule 64(b)(1). However, we are not convinced the court’s certification makes the otherwise improper appeal appropriate. We have previously said that orders denying summary judgment “are interlocutory and not subject to certification as final orders pursuant to Rule 54(b)(1).” Williams v. Peoples Bank of Paragould,
We find support for our conclusion in the -language of Ark. R. Civ. P. 54(b)(1) itself, which provides: ... .
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of .a final judgment as to one or more but fewer than all of .the claims or parties only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment. ...
(Emphasis added.)
Here, the circuit- court made no final judgment regarding' Cannady’s outrage claim but indicated only that material facts remained in dispute. Likewise, Ark. R. App. P.—Civ. 2(a)(11) provides for a properly certified Rule 54(b)(1) appeal of.
[a]n order or other form . of decision which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties in a case involving multiple claims, multiple parties, or both, if the circuit court has directed entry of a final judgment as to one or more but fewer than all of the claims or parties....
hs(Emphasis added.)
Clearly, Ark. R. App, P.—Civ. 2(a)(11) contemplates an appeal when the circuit court has entered a final judgment as to a claim or a party. Here, the circuit court made no final decision on the merits of Cannady’s outrage claim; rather, it simply determined that factual questions remained. Therefore, there is no. final judgment to review. Accordingly, the cross-appeal is not properly before us and must be dismissed. Rule 54(b)(1) should not prevent a litigant from having his or her day in court.
Affirmed on direct appeal; dismissed on cross-appeal.
Notes
. Miller is not participating in this appeal.
. Cannady originally named as defendants Catholic Health Initiatives and First Initiatives Insurance Company, but they were dismissed by agreement of the parties. The complaint also named as defendants John Does # 1-# 15, but those claims were abandoned pursuant to Ark. R. App. P.—Civ. 3(e)(vi).
Dissenting Opinion
dissenting.
The majority has erred in dismissing the cross-appeal, at least with regard to St. Vincent. The circuit court’s order that is the subject of the appeal dismissed St. Vincent from the lawsuit. It was the appellant, Ms. Cannady, who sought a Rule 54(b), certification to attempt to draw St. Vincent back into the lawsuit.
In its second motion for summary judgment, St. Vincent raised two reasons why it should be dismissed from the lawsuit: (1) the conduct involved was not sufficiently extreme and outrageous to constitute the tort of outrage, and even if it was, Arkansas does not allow a claim for outrage to be pursued when the conduct was directed toward a third party; and (2) it was not vicariously liable for the conduct of its employees Griffin and | uMiller. While the circuit court denied St. Vincent relief on the first theory, it granted St. Vincent relief on the second. The circuit court stated in its order, “Plaintiffs Complaint, as amended, is therefore, dismissed with prejudice as to'St. Vincent Infirmary Medical Center.” Significantly, the order further states, “Plaintiffs claims against the- remaining Defendants, Griffin, Miller, and Holland may continue.”
With Ms. Cannady appealing, St. Vincent prudently filed a cross-appeal. Cf. Hall v. Freeman,
The elephant in the room throughout the long procedural history of this case—Ms. Cannady filed her first complaint on October 16,2009—has always been whether the conduct complained of actually supported a cause of ¿ction recognized in Arkansas law. Ms. Cannady asserted-two theories to address the unauthorized viewing of her daughter’s medical records: the tort of invasion of privacy and the tort of outrage. The former was |1Beliminated when this court partially affirmed a directed verdict in Cannady v. St. Vincent Infirmary Med. Ctr.,
In my view, the allegations in Ms. Can-nady’s complaint simply do not constitute the tort of outrage. To establish- an outrage-claim, a plaintiff must demonstrate the following elements: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was “extreme and outrageous,” was “beyond all possible bounds of decency,” and was “utterly intolerable in a civilized community”; (3) the actions of the defendant were the cause of the plaintiffs distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Crockett v. Essex,
|
Significantly, whether the conduct
All of the foregoing would be merely academic were I able to join the majority’s opinion on the merits of the direct appeal. While I can accept the majority’s analysis of Ms. Cannady’s law-of-the-case argument, I cannot agree with the majority’s rationale for disposing of Ms. Cannady’s second point. Summary judgment is proper if there is no issue of material fact to be tried, and the case may be resolved as a matter of law. Anglin v. Johnson Reg’l Med. Ctr.,
I agree that it is not disputed that St. Vincent had created policies regarding the viewing of patients’ medical records and that St. Vincent took steps to promulgate these policies to its employees. However, there is at least a factual question about the efficacy of these measures. After all, viewing a patient’s medical records was an integral part of the daily work routine of each of the employees in the lawsuit. In my view, whether the measures adopted by St. Vincent were sufficient to relieve it of vicarious liability is a factual question for the jury.
Likewise, I cannot accept that the measures taken by St. Vincent were sufficient to relieve it of vicarious liability as a matter of law. It violates the separation of powers for this court to create law that completely immunizes an employer against vicarious liability if the |1Remployer promulgates a policy that proscribes a certain
I would reverse and dismiss this case on cross-appeal; therefore I respectfully dissent.
. An admittedly nonexaustive list of cases refusing to find the tort of outrage is illustrative: Smith v. American Greetings Corp.,