Cite as 2024 Ark. App. 281 

## ARKANSAS COURT OF APPEALS

DIVISION I I No. C V

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ESTATE OF MRS. GEORGE HOWARD, JR. (VIVIAN) APPELLANT
V.
DR. JOHN HARRIS
APPELLEE Opinion Delivered April 24 , 20 2 4
APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CV

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HONORABLE ROBERT BYNUM GIBSON, JR. , JUDGE
REMANDED TO SETTLE AND SUPPLEMENT THE RECORD WAYMOND M. BROWN, Judge Risie Howard, a dministratrix for the e state of Mrs. George Howard, Jr. (“Estate”) , appeals from an order of the Jefferson County Circuit Court dismissing with prejudice E state’s wrongful

death action against Howard’s primary

- care physician, Dr. John Harris. On appeal, Estate argues
that the circuit court erred in finding that (1) servic e of process was insufficient; (2) identical claims

we re pending in two state courts; and (3) the voluntary dismissal of a prior federal case mandated that dismissal be with prejudice. Finding the record before us deficient , we remand to settle and supple ment the record. On July 14, 2021, Estate filed a complaint in the United States District Court for the Eastern
District of Arkansas against Baptist Health (A.K.A. Baptist Health Home Health Network) ; Diamond Risk Insurance Co., L.L.C. ; and three individually named defendants

— Leah Willett, RN ; Alicia Brucks, s peech l anguage p athologist ; and Jane Doe , a Baptist Home Health p hysical t herapist

. Estate2

asserted claims of fraudulent concealment, breach of contract, negligence, pain and suffe ring, failure to diagnose , wrongful death, abuse, and loss of parental consortium

. Estate voluntarily nonsuited the federal complaint on July 27

. 1

Estate then filed a state action in the Pulaski County Circuit Court . On September 29, w ith the Pulaski County case pending, Estate filed suit in another state court, the Jefferson County Circuit
Court. Dr. Harris moved to dismiss the Jefferson County action. On June 6, 2022, the circuit court granted Dr. Harris’s motion to dismiss with prejud ice. Estate now appeals.
O n appeal, Estate makes several arguments, one of which is that the circuit court erred in granting Dr. Harris’s motion to dismiss pursuant to Arkansas Rule of Civil Procedure 12(b)(8) . This court has consistently held that Rul e 12(b)(8) prohibits identical cases from proceeding in different
courts within the state. 2 Here, the circuit court found that an action filed by Estate against the same
defendant

— Dr. Harris

— with identical claims was pending in Pulaski County. Estate contends that the two pending state cases are not identical actions because neither the parties nor the claims are identical. However, the complaint filed in the Pulaski County Circuit Court is absent from the
record. Such evidence is essential to our co mplete and thorough review of the issues on appeal. Without the Pulaski County complaint, we are unable to determine whether the parties and/or
claims we re identical in the two then pending cases. Further, Estate argues that the voluntary
dismissal of th e federal case did not mandat e that dismissal in the instant case be with prejudice . As to this argument, we note that the record is missing the dismissal order granting Estate’s motion to

1 This information is according to the appellate briefs and the order of dismissal in the instant case. The record before this court does not contain a dismissal order from the federal action.

2 Tortorich v. Tortorich , 324 Ark. 128, 919 S.W.2d 213 (1996).3

nonsuit the federal case. Arkansas Rule of Appellate Procedure

– Civil 6 (e) provides that if anything material to either party is omitted from the record, this court may direct that the record be settled and supplemented and that a supplemental record be certified and transmitted. Therefore, because
the recor d before us does not contain all the items necessary for our review, we remand the matter to the circuit court to settle the record by including the complaint filed in the Pulaski County Circuit
Court action and the order granting dismissal in the federal case . Thereafter, Estate has fifteen calendar days to settle and supplement the record on appeal. Remanded to settle and supplement the record.
W OOD and H IXSON , J J ., agree. Goerge Howard Jr. Legal Center, L.L.C. , by: Risie Howard , for appellant. Wright, Lindsey & Jennings LLP , by: Gary D. Marts, Jr. , and Scott D. Provencher , for appellee.