*1 III, M.D.; Forrest Dr. L. CONNER City George SIMES, Honorable L.T. Practice Clinic v.The Judge Family 02-1214 Court of Arkansas
Supreme 18, 2003 delivered December Opinion *3 McDaniel, Lucinda Womack, Landis, McNeill & by: Phelps, and Mark for McDaniel Mayfield, petitioners. Firm, Robert Law Donna McHenry, & by: McHenry
McHenry D. and respondents. Gregory Taylor, McHenry, 21, On or about Imber, April Annabelle Clinton Justice. 1999, a fetus died in carried being by Bridgette Bradley III, Conner, M.D., L. útero. George During Bridgette’s pregnancy, Clinic, as her at Forrest acted Practice treating City Family physician 14, 2001, and (“the Clinic”). P.A. On her Bridgette February Maurice, fetus, and on behalf their husband of unborn individually filed suit Dr. Conner and the Clinic. In their against complaint, asserted claims both Dr. Conner and the Clinic for Bradleys against medical death out of the death of negligence wrongful arising of2001, unborn their fetus. After nonsuit in March taking voluntary 1, refiled their on 2002. Bradleys complaint February 12, 2002, On March Dr. Conner and Clinic filed a motion to dismiss to Arkansas Rule Civil partial pursuant motion, 12(b)(6). Procedure In that Dr. Conner the Clinic to hereafter as (referred “Dr. contended collectively Conner”) the time the unborn fetus died in útero on April there was no cause of action for the death cognizable fetus Arkansas. In dismissal under Ark. R. advocating partial P. Civ. Dr. Conner relied 12(b)(6), this court’s decisions in upon Chatelain Kelly, Aka (1995) Assoc., Hosp. Jefferson dismissal on Bradleys the basis that Act opposed codified at Ark. Code Ann. 16-62-102(a) 2003), was (Supp. § remedial and should be Act legislation applied retroactively. amended the statute to include cause specifically Furthermore, of action for the death of a viable fetus. noted that neither of Bradleys the cases cited Dr. Conner or relied analyzed Act 2001. The circuit upon court *4 conducted a and then denied the motion to hearing dismiss. partial thereafter, Shortly Dr. Conner filed this action a original seeking writ of to prohibition the St. Francis Circuit Court from prevent the with action the proceeding wrongful-death Brad- brought by as heirs their of unborn leys fetus.1
The writ of is relief that prohibition is when the trial only court is without appropriate wholly jurisdiction. Cook, 367, 351 Ark. Finney writ is (2002). The 1 Although Dr. Conner has named judge the individual as the to his respondent lies to the circuit court judge. and not to the individual Premium petition, prohibition Aircraft LLC v. (2002). Circuit Court Carroll Accordingly, Parts, 977, 347 Ark. 69 S.W.3d849 County, of the against we treat as one the circuit court. Id. petition
426 is such as an when there no other remedy, appeal, only
appropriate
is a
when the
remedy
available. Id. Prohibition
jurisdiction
proper
a factual
rather than
the
legal
of
trial court depends upon
to the
in the
court confines its review
Id. This
pleadings
question.
Morever,
a trial
issued to
Id.
is never
case.
prohibit
prohibition
Arkansas
from
its
Dept.
court
erroneously exercising
jurisdiction.
of
Collier,
prohibition, asserting
filpd
hear a
action
pursuant
wrongful-death
wrongful-death
Ann.
statute. SeeArk. Code
16-62-102
2003). Clearly,
(Supp.
§
hear a
case. In
circuit court has the
to
wrongful-death
power
addition,
in the
action filed claims
underlying
against
plaintiffs
in
medical
the treatment of
the defendants for both
malpractice
Dr.
for the
death of
unborn fetus.
Mrs.
Bradley
that the circuit court lacks
Conner does not assert
jurisdiction
such, the
entertain
claim of medical
As
malpractice.
separate
the case.
circuit
not
without
the hear
court is wholly
jurisdiction
Nonetheless, as
authority
proposition
prohibi-
Dr.
cites this
to St. Paul
tion is
Conner
court
remedy,
proper
Ins.
Co. v. Circuit Court
County,
Mercury
Craighead
Court,
and Ramirez v. White
Circuit
This addressed of the writ in a case scope where the trial court denied a to on motion dismiss based standing, failure to state a claim for which could relief and lack granted, matter Nat’l See Sec. Fire Cas. subject jurisdiction. & Co. v. We stated: Poskey, petition for a writ not the Ordinarily, prohibition is proper failure of a trial court a motion to dismiss.A grant writ of is an writ prohibition and is only granted when the lower court without is there are wholly jurisdiction, no facts, otherwise, there is no disputed the writ adequate remedy warranted. no clearly There is doubt that a circuit court has matter to hear a proper subject jurisdiction declaratory judgment action concerning insurance The coverage. propriety hearing case, such a when it especially that no cause of action appears exists or that all the not to the insurance been parties contract have made suit, parties to the is a different issue and one that is distinctly not addressed by issued prohibition, writ is only to court prevent a from its .exceeding jurisdiction, rather than to it from prevent its erroneously exercising jurisdiction. Likewise,
Id at case, S.W.2d 837-38. in the instant there is no doubt that the circuit court has subject to hear matterjurisdiction an action for medical death. malpractice propriety case, of the circuit court such a even when it hearing that no appears exists, cause of action is an issue not that is addressed a writ properly because the prohibition writ does not court from prevent its other view would erroneously exercising jurisdiction. Any permit the writ of to be used not test the issue of jurisdiction but to test the of a filed in a court sufficiency complaint having *6 Bureau Farm matter and the See of the person. both subject
jurisdiction Therefore, for Southall, Dr. Conner’s petition v. MutualIns. Co. supra. denied. must be hereby a writ of prohibition occasion, has, treated prohi This court on the writ of We have a writ of certiorari. explained bition as entered, to correct an order already cannot be invoked prohibition without or in has been entered court’s order the lower but where the technicalities carve we will through excess of jurisdiction, certiorari. as one for of the for writ prohibition treat application 233, 12 Burnett, W.3d 340 Ark. S v. ArkansasPub. Comm’n Defender a writ the The standards determining propriety 191 (2000). certiorari is in Arkansas. A writ of are well settled of certiorari relief, there is a lack will it when and we grant only extraordinary on the face of the in excess of an act jurisdiction of jurisdiction, the record. record, on the face of are or proceedings erroneous Collier, 95 S.W.3d v. 351 Ark. Human Servs. ArkansasDept. of we will not look its application, 772 (2003). determining the actual merits of the record to ascertain the face of beyond fact, discretion, or to review finding or to control controversy, Id. A writ of reverse a trial court’s discretionary authority. or to the face of the record it is on certiorari lies where only apparent manifest, clear, and abuse of there has been a gross plain, discretion, Id. and there is no other remedy. adequate bar, that Dr. Conner has we cannot
In the case
say
worst, Dr.
will be
At
Conner
no other
remedy by
adequate
appeal.
and medical
a defense to
required
present
remand,
claims,
will
he
only
and then upon
malpractice
this court
medical
While
a claim for
malpractice.
defending against
an
writ to
to endorse the use of
at one time appeared
well as
untold time and
as
unnecessary grief
expense,
prevent
Izard
Fore v. Circuit Court
County,
parties,
from that
language
we retreated
(1987),
overreaching
S.W.2d 840
315,
264 Ark. at S.W.2d 913.2 have that with
We
to
requests
explained
respect
relief,
certiorari,
such as
writs
or
prohibition,
mandamus,
is
that we cannot
should
review
not
cases
point
Likewise,
in a
fashion.
v.
we
piecemeal
Hargraves,
Burney
supra.
have been steadfast in
certiorari
be
that
not
used as a
holding
may
517,
substitute for
Arnoldv.
343 Ark.
Granting permit piece meal that tests the correctness of an appeal merely interlocutory See, order. v. see also SouthernFarm e.g., Burney Hargraves,supra; Southall, Bureau v. There no is that the circuit supra. question court’s to final, refusal motion dismiss was not a grant order; words, in other the order appealable did not dismiss the court, action, from the them from the or parties con discharge clude their matter Fisher rights subject v. controversy. Chavers, 351 Ark. This is consistent (2002). with the that he would reconsider Dr. Conner’s judge’s statement Furthermore, on the issue at time. arguments a later we have an issue explained if the decision although may important, case, does not conclude the merits of would be any appeal Inc., Stores, Wal-Mart premature. Chapman S.W.3d 906 issuance (2002). ofawrit certiorari under these 2 The pleading called a demurrer is now accomplished purpose formerly filing 12(b) (2003). a motion (6) to dismiss to Ark. R. Civ.P. SeeFarm accomplished by pursuant Bureau Mutual Ins. Co. 661 S.W.2d383 Southall, as a writ to serve allow an extraordinary would circumstances endorse and would effectively piecemeal for an substitute appeal will not do. review. This we appellate sum, is not we conclude proper without the circuit court is not jurisdic because wholly Furthermore, as one for certio cannot treat the we tion. petition not a situation case at bar does rari because the simply present Never in this court’s where the remedy by inadequate. certiorari been used to narrow has the writ of history long claims in a alleged complaint.3 denied.
Petition for writ of prohibition C.J., J., Thornton, Arnold, dissent.
Ray Thornton,
I dissent from the
Justice, dissenting.
that Dr.
should be forced to
decision
Conner
^majority’s
at the time the
a claim that was not
alleged
defend
legally cognizable
decision,
above
its
elevatesform
cause of action arose.
majority
By
an
rules
produce
substance
againstpiecemeal appeals
interprets
and fair
of this case
result that will frustrate efficient
disposition
unjust
of actions.
and will lead to multiplicity
*8
is
in the instant
a writ of
not
While
prohibition
appropriate
case,
We
I believe a writ of certiorarishould have been
may
granted.
a
as a
for writ of
for
petition
accept petition
prohibition
291,
Court,
61
v. Clark
Circuit
347
certiorari.Ballard
County
Burnett,
In
Public
Comm. v.
178
Arkansas
(2001).
S.W.3d
Defender
233,
a writ
12
191
we noted that
(2000),
340 Ark.
S.W.3d
review a trial court order
certiorariwill
issue to
already
properly
“without,
in excess of
A writ of certiorariis
issued
or
jurisdiction.”
it is
on the face of the record that
available when
only
apparent
clear,
manifest,
and
abuse of discretion
there has been a
gross
plain,
McNeil,
is no
Id.
Bates v.
and there
other
remedy.
(citing
adequate
3
granting a writ of certiorari are
Both cases cited
the dissent as
for
by
support
Wilson,supra,
In Neal v.
writ
an order entered
we issued a
of certiorari to quash
by
inapposite.
jurisdiction over a case that had been
assigned
judge
who
assumed
specially
improperly
Patterson,
(2000),
Kraemer
judge.
in
342 Ark.
431 764, 318 Ark. S.W.2d The writ of certiorariis the (1994)). when the claims that the trial court appropriate petition Burnette, does not have to hear a claim. see also jurisdiction supra.; Construction Inc. v. 341 Ark. May Company, Thompson, S.W.3d 345 (2000). cite to 264 Ark.
Respondents Burney Hargraves, S.W.2d that the (1978), settlement of all proposition issues should be on and neither nor mandamus appeal, nor certiorari be used to review cases in a may fashion. piecemeal have, however, We for a writ of certiorarithat granted petitions case, were not of the such as in Neal v. dispositive underlying Wilson, Neal, petition disbarment went several recusals and through specially appointed before the case came to rest in judges court. Judge Lineberger’s While this case was before pending Judge Lineberger, newly Neal, elected who was elected to the same Judge Oily judicial case, district as the who had recused in this ruled original judge on the matter. We for a writ granted of certioraribecause petition Neal acted “in excess of his Judge authority jurisdiction” all of Neal’s orders quashed and directives Judge relating case. The case was set to in underlying proceed Judge Lineburger’s courtroom the after the decision was handed day down. Judge Neal available, had acted outside the and we jurisdiction rectified manifest, clear, abuse of discretion with plain, a writ gross of certiorari.Id. Patterson,
Kraemer v. (2000), instructive for our particularly consideration of this case. Kraemer was a case and the defense an medical-malpractice required expert witness that would meet the rule under Arkansas “locality” law. The defense had treated the in proposed expert the case plaintiff doctor, to trial. After prior defense ex deposing began parte meetings the doctor as an anticipation calling witness. expert based on plaintiffs objected Ark. R. Evid. but the trial court the defendants granted motion to retain the doctor as a *9 defense We expert. granted petition certiorari without Moreover, other claims in the reaching any case. we noted that “an of an adverse specifically decision would not appeal be an under these circumstances.” adequate remedy We recog nized that some are so injustices some violations of pervasive, so infectious that an rights is not an for the adequate remedy Id. .aggrieved.
432 filed, no case, was there was this at the time the complaint death of a fetus. The action for the petitioners
cause of
with a non-existent
the trial court’s
ability
proceed
challenged
treat the
for a writ of
we should
claim. Accordingly,
petition
whether
for a writ of certiorari
analyze
as a petition
be
retroactively.
Act 1265 of 2001 may
applied
Association,
Ark.
42
In Aka
Hospital
Jefferson
before us was whether our
508 (2001),
S.W.3d
question
Ark.
Remedial statutes should when only retroactively applied create new but do not disturb vested or they rather rights obligations a more for enforcement of an supply appropriate Aderhold, or Forrest MachineWorksv. existing right obligation. City decision, In that we directly stated that retroactive statutes violations of potential due-process Furthermore, must be with a we analyzed vested-rights analysis. noted there is a vested resist a claim in the when the law allows one to enforce or right of law. Id.
courts Flere, Dr. Conner’s vested to be free from right litigation death of a fetus would cause of action asserting be violated a retroactive of Act 1265 of2001. When application occurred, a cause of action Dr. Conner with injury charging *10 be sustained. death of a fetus could not wrongful Respondents vested has been disturbed and that Dr. Conner that no right argue defense of he was not in his duties has same showing negligent and actions as a as he would otherwise have had. This is physician retroactive, incorrect. the statute is not Dr. Conner need not If show whether he was or was not in his actions. The negligent would force him to defend a claim that did not majority against so, exist absent retroactive of the statute. application By doing Aderhold, what we said in majority disregards supra concerning the vested to a defense of a claim. right legal summarize, it
To' is clear to me that we have decided already Aka, that Act 1265 of2001 supra McCoy, supra, amending statute should not be wrongful-death interpreted retroactively. Aka, we noted that “retroactive application appropriate remedial statutes that do not disturb vested or create new rights Aka, Bean, concluded, and then obligations,” supra (citing supra), “In of the and to further the remedial intent light foregoing statute, we our decision to overrule Chatelain wrongful-death apply as to as to retroactively causes action appellant prospectively Aka, after this becomes final.” arising opinion supra (emphasis We added).1 our conclusion that Act 1265 of clearly expressed Aka, 2001 was to be but to all applied retroactively prospectively causes of action thereafter. arising Aka,
Before and Act 1265 of2001 there was no cause supra action for the death of a fetus. a claim for Allowing death of a fetus recovery based a retroactive upon of Act 2001 cuts off Dr. application Conner’s vested right to be free from suit under the of law in effect until principles Chatelain, was reversed Aka. supra
I would our that Act 1265 of recognize previous holdings 2001 does not and hold that the trial court apply retroactively, manifest, clear, committed abuse of plain, discretion gross when it allowed this claim to forward. As in wrongful-death go Kraemer, I am convinced that an is not an supra, adequate under these circumstances where consideration of a non- existent claim will have the effect ofpoisoning trial of other claims Dr. justiciable Conner. against
1. Thereference
“wrongful
death statute” is to Act 1265 of 2001.
that we have in the
past “appeared
majority recognizes
*11
writ to
untold time
endorse the use of an
prevent
Fore v.
and
as well as unnecessary grief
parties,”
expense,
For the I dissent from the foregoing respectfully majority’s opinion. in this
I am authorized to state Chiefjustice Arnoldjoins dissent. Middleton, Husband Carl MIDDLETON
Lynn Joyce Wife LOCKHART, Anderson, Henson, Geraldine Mildred Joyce Brewer Jesse J. 03-467 of Arkansas Court
Supreme 18, 2003 delivered December Opinion