Richard JORDAN, M.D. v. CIRCUIT COURT of LEE COUNTY; The Honorable L.T. Simes, Judge; and Gwendolyn White, Administratrix of the Estate of Darthula Vaughn
05-1031
Supreme Court of Arkansas
May 11, 2006
235 S.W.3d 487
Don R. Etherly, for respondent.
On May 25, 2001, White filed her first complaint, CV 2001-62, against Dr. Jordan alleging medical negligence and wrongful death. On December 3, 2001, Dr. Jordan filed a motion to compel discovery after White‘s failure to respond to Dr. Jordan‘s interrogatories and requests for production of documents. The circuit court, in its January 18, 2002 order, granted Dr. Jordan‘s motion, allowed White thirty days to respond, and further provided that failure to comply with the circuit court‘s order would result in the dismissal of her complaint with prejudice. On January 28, 2002, Dr. Jordan filed a motion to dismiss with prejudice for White‘s failure to comply with the circuit court‘s January 18 order. Facing a dismissal with prejudice, White requested and was granted a voluntary dismissal without prejudice.
On February 10, 2003, White filed her second complaint, CV 2003-15-2, against Dr. Jordan. However, White failed to serve this complaint within 120 days as required by
The present case deals primarily with the events following the filing of the third complaint. Below is a time line of these events:
- July 24, 2003: White filed the third complaint, CV 2003-90.
- November 14, 2003: Dr. Jordan filed a motion to dismiss the third complaint pursuant to
Rule 12(b)(8) because of the still-pending second complaint, CV 2003-15-2. - November 17, 2003: Dr. Jordan answered the third complaint, citing the pendency of another claim between the same parties as an affirmative defense, pursuant to
Rule 12(b)(8) . - December 3, 2003: Dr. Jordan filed a motion to dismiss the second complaint for failure to effectuate service within 120 days as required by
Rule 4 and asserted that the second complaint should be dismissed with prejudice as provided byRule 41(b) . - February 19, 2004: Judge Simes entered an order dismissing the second complaint with prejudice.
- October 26, 2004: Judge Simes rescinded his order dismissing the second complaint because the second complaint was actually assigned to Judge Harvey Yates of the Second Division of the Lee County Circuit Court. Also, Judge Simes denied the dismissal of the third complaint because
Rule 41(b) was not applicable due to the rescission of the second complaint‘s dismissal. - December 17, 2004: Judge Yates entered an order dismissing the second complaint with prejudice, and in so doing, referenced Judge Simes‘s previous dismissal and rescission.
- January 3, 2005: Dr. Jordan filed a renewed motion to dismiss the third complaint pursuant to
Rule 12(b)(8) and res judicata. - January 7, 2005: The October 26, 2004 order is filed.
- August 22, 2005: Judge Simes denied the renewed motion to dismiss the third complaint stating that the complaint was filed before the dismissal of the second complaint and that the second complaint‘s dismissal was not pursuant to
Rule 41(b) . The order also stated that the court cannot retrospectively be denied jurisdiction by Judge Yates‘s dismissal with prejudice of the second complaint.
In response to the August 22 order, Dr. Jordan filed this petition for writ of prohibition, or in the alternative, for writ of certiorari. He asserts that a legal question exists concerning the circuit court‘s jurisdiction to hear the third complaint and that the writ of prohibition is appropriate because there is no other remedy, such as an appeal, available to resolve this issue. As stated above, Dr. Jordan asserts that the granting of his petition is proper
First, Dr. Jordan argues that the circuit court is prohibited from entertaining the third complaint as it is barred by the doctrine of res judicata. Specifically, he asserts that the dismissal of the second complaint with prejudice was an adjudication on the merits, pursuant to
It is well settled that a writ of prohibition is an extraordinary writ that is only appropriate when the lower court is wholly without jurisdiction. Ouachita R.R., Inc. v. Circuit Court of Union County, 361 Ark. 333, 206 S.W.3d 811 (2005); Patterson v. Isom, 338 Ark. 234, 992 S.W.2d 792 (1999). However, a writ of prohibition is never issued to prohibit a circuit court from erroneously exercising its jurisdiction. Id.; Tucker Enterprises, Inc. v. Hartje, 278 Ark. 320, 650 S.W.2d 559 (1983). We have held that, as an affirmative defense, res judicata presents no question of jurisdiction that provides a basis for which the writ can be granted. Id. See also Earney v. Brantley, 309 Ark. 190, 828 S.W.2d 832 (1992); Arkansas State Hwy. Comm‘n v. Munson, 295 Ark. 447, 749 S.W.2d 317 (1988). In Tucker Enterprises, we explained that:
[T]he petitioners’ argument that the two prior dismissals operate as an adjudication on the merits constitutes an attack, not on the court‘s authority in this action, but on the correctness of its ruling with respect to the defense of res judicata. However, it is not the office of the writ of prohibition to test the correctness of the trial court‘s ruling on the defense of res judicata.
Id. at 322, 650 S.W.2d at 560. Therefore, we will not grant a writ of prohibition based upon Dr. Jordan‘s res judicata argument.
Moreover, we will not grant a writ of prohibition in respect to Dr. Jordan‘s
In any case in which there has been a failure of the plaintiff to comply with these rules... the court shall cause notice to be mailed to the attorneys of record, and to any party not represented by an attorney, that the case will be dismissed for want of prosecution .... A dismissal under this subdivision is without prejudice to a future action by the plaintiff unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits.
We have previously denied a request for a writ of prohibition after a lower court has denied the petitioner‘s motion to dismiss pursuant to
Dr. Jordan has also petitioned this court for a writ of certiorari, and we agree that a writ of certiorari is the proper remedy for this extraordinary situation. The standard for granting a writ of certiorari is well settled in Arkansas.
A writ of certiorari is extraordinary relief. In determining its application we will not look beyond the face of the record to ascertain the actual merits of a controversy, or to control discretion, or to review a finding of fact, or to reverse a trial court‘s discretionary authority. There are two requirements that must be satisfied in order for this court to grant a writ of certiorari. The first requirement is that there can be no other adequate remedy but for the writ of certiorari. Second, a writ of certiorari lies only where (1) it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, or (2) there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record.
Arkansas Game & Fish Comm‘n v. Herndon, 365 Ark. 180, 226 S.W.3d 776 (2006) (citations omitted) (emphasis added). See also Arkansas Dep‘t of Human Servs. v. Circuit Court of Sebastian County, 363 Ark. 389, 214 S.W.3d 856 (2005); Arkansas Dep‘t of Human Servs. v. Collier, 351 Ark. 506, 95 S.W.3d 772 (2003). Moreover, “[a] writ of certiorari is a remedy to quash irregular proceedings but only for errors
First, it is readily apparent that Dr. Jordan has no other adequate remedy but for this extraordinary writ as the circuit court‘s refusal to grant the motion to dismiss was not a final, appealable order. In Conner v. Simes, 355 Ark. 422, 429, 139 S.W.3d 476, 480 (2003), we stated that “[t]here is no question that the circuit court‘s refusal to grant a motion to dismiss was not a final, appealable order; in other words, the order did not dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy.” See also
Lastly, the dissent claims that under our reasoning in this case, any denial of a motion to dismiss based on
As there is no other adequate remedy for this extraordinary situation, we now turn to the second requirement for granting a writ of certiorari. In the present case, it is clear from the face of the record that the proceedings leading up to this petition were patently erroneous. The errors were threefold: (1) the failure to properly serve process of the second complaint in compliance with
First, the second complaint was not served within 120 days as required by
In the present case, White asked for and received a voluntary dismissal of the first complaint. She then filed a second complaint, but service was never made on Dr. Jordan. As such, White failed to comply with
Second, Judge Simes‘s October 26 order, rescinding his February 19 dismissal with prejudice of the second complaint, occurred outside the ninety days allowed by
In the present case, on December 3, 2003, Dr. Jordan filed a motion to dismiss the second complaint for failure to effectuate service within 120 days as required by
This dismissal brings up the third, and most glaring, error that has occurred in this case. Because the second complaint was a dismissal with prejudice, which pursuant to
As stated above,
In any case in which there has been a failure of the plaintiff to comply with these rules... the court shall cause notice to be mailed to the attorneys of record, and to any party not represented by an attorney, that the case will be dismissed for want of prosecution
.... A dismissal under this subdivision is without prejudice to a future action by the plaintiff unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits.
“Under Rule 41(b), a second dismissal based on failure to serve valid process shall be made with prejudice where the plaintiff has previously taken a voluntary nonsuit.” Sidney Moncrief, 353 Ark. at 712, 120 S.W.3d at 531. See also Bakker v. Ralston, 326 Ark. 575, 578, 932 S.W.2d 325, 327 (1996) (finding “that when a dismissal is granted for failure to obtain service and the plaintiff has previously taken a voluntary nonsuit, the second dismissal is to be with prejudice.“). As such,
In the present case, Judge Simes‘s February 19 dismissal of the second complaint with prejudice operated as an adjudication on the merits. Because the second complaint and the third complaint are based upon the same facts and events, the third complaint should also have been dismissed. Specifically, Judge Simes erred when he denied the renewed motion to dismiss the third complaint and stated that the second complaint‘s dismissal was not pursuant to
Furthermore, Judge Simes‘s other basis for denying the motion, that the third complaint was filed before the dismissal of the second complaint, has no bearing on whether the third complaint should have been dismissed. When Judge Simes ruled on the renewed motion to dismiss, the second complaint had been dismissed and it was erroneous to proceed with the action. It is well-settled law that a party is precluded from relitigating an issue that has already been decided. McAdams v. McAdams 357 Ark. 591, 184 S.W.3d 24 (2004); Francis v. Francis, 343 Ark. 104, 31 S.W.3d 841 (2000). Moreover, the relitigation of a subsequent suit, such as the third complaint, is barred when (1) the first suit resulted in a judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involved the same claim or cause of action that was litigated; and (5) both suits involved the same parties. McAdams, 357 Ark. 591, 184 S.W.3d 24.
In this case, all of these criteria are met. First, it is clear that the dismissal of the second complaint resulted in an adjudication on the merits pursuant to
Lastly, because we have determined that a writ of certiorari is proper based upon Dr. Jordan‘s first argument, it is unnecessary to address his alternative argument that the third complaint was barred at the time of filing due to the pendency of the second complaint.
Writ of Prohibition denied; Writ of Certiorari granted.
GLAZE, BROWN, and IMBER, JJ., dissent.
ROBERT L. BROWN, Justice, dissenting. Today‘s opinion represents a sea change in this court‘s willingness to hear interlocutory defenses by emergency writ. Heretofore, we have refused to do so where the remedy of appeal was available, whether the interlocutory issue concerned a discovery dispute, Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 294 (1995), or preclusion of a trial for wrongful death of an unborn fetus, Conner v. Simes, 355 Ark. 422, 139 S.W.3d 476 (2003). The clear result of today‘s opinion is that
While this may initially have a seductive appeal as seemingly nipping an unnecessary trial on the merits in the bud, it runs directly counter to one criterion for writs of certiorari, which is that there be no adequate remedy available by appeal. Moreover, it adds another step to the litigation process since we are now sanctioning an emergency procedure, certiorari, for hearing interlocutory issues. No doubt, in the months ahead, certiorari will become a commonplace vehicle for raising procedural issues and discovery matters to this court before trial. The bottom line is that this court has now approved piecemeal appeals.
For these reasons, I join Justice Imber‘s dissent and write only to underscore what has happened today for the benefit of the bench and bar.
GLAZE and IMBER, JJ., join this dissent.
ANNABELLE CLINTON IMBER, Justice, dissenting. A writ of certiorari is extraordinary relief. Arkansas Dep‘t of Human Servs. v. Collier, 351 Ark. 506, 516, 95 S.W.3d 772, 777 (2003). In determining its application we will not look beyond the face of the record to ascertain the actual merits of a controversy, or to control discretion, or to review a finding of facts, or to reverse a trial court‘s discretionary authority. Id. The test for determining whether a writ of certiorari lies is two-pronged. First, a writ of certiorari is only available where there is no adequate remedy available to the petitioner but for the writ. Id. The second requirement is that it must be apparent on the face of the record (1) that there has been a plain, manifest, clear, and gross abuse of discretion, or (2) that there is a lack of jurisdiction, an act in excess of jurisdiction, or the proceedings are erroneous on the face of the record. Id. The majority concludes that Petitioner, Jordan, has met both requirements of the two-pronged test and, thus, a writ of certiorari lies. In doing so, the majority makes short work of concluding that Petitioner has no other adequate remedy at law, completely ignoring the fact that Petitioner has available to him the most basic of remedies, an appeal. For the reasons set forth below, I must respectfully dissent.
As discussed above, this court has held that extraordinary writs, such as a writ of certiorari, are not available “when there is another adequate remedy, such as an appeal.” Manila School Dist. No. 15 v. Wagner, 357 Ark. 20, 26, 159 S.W.3d 285, 290 (2004). Additionally, this court has long held that a writ of certiorari cannot be used as a substitute for appeal. Burney v. Hargraves, 264 Ark. 680, 682, 573 S.W.2d 912, 913 (1978); see Cooper Communities, Inc. v. Circuit Court of Benton Cty., 336 Ark. 136, 984 S.W.2d 429 (1999). A writ of certiorari will not take the place of an appeal unless the right of appeal has been lost by no fault of the aggrieved party. King v. Davis, 324 Ark. 253, 256, 920 S.W.2d 488, 489 (1996).
In Burney v. Hargraves, we stated that “we cannot review cases in a piecemeal fashion.” Burney, supra. In that case, the petitioner sought a writ of mandamus in this court because the trial court failed to enter a default judgment in his favor and because of the lower court‘s action the petitioner would be compelled to submit to an unwarranted trial. Id. This court denied the writ stating, “[i]f the asserted threat of ‘an unwarranted trial’ were a sufficient basis for declaring the remedy by appeal to be inadequate, then a defendant could always appeal from the trial court‘s action [bringing] a piecemeal appeal merely testing the correctness of an interlocutory order.” Id. at 682, 573 S.W.2d at 913; followed by Conner v. Simes, 355 Ark. 422, 139 S.W.3d 476.
While the majority is correct in stating that the circuit court‘s denial of Petitioner‘s motion to dismiss is not a final and appealable order, by granting a writ of certiorari in the instant case the majority does just what this court has unequivocally stated that it shall not do, allow an extraordinary writ to take the place of an ordinary appeal. The majority seems to have forgotten that under
Moreover, a survey of our case law reveals that this court has never granted a writ of certiorari based on a circuit court‘s erroneous denial of a motion to dismiss under any of the following Arkansas Rules of Civil Procedure:
Petitioner has available to him the proper and adequate remedy of appeal once the circuit court has made a final order in the instant case. Consequently, he has not satisfied both requirements for obtaining a writ of certiorari and he should not be allowed to avoid a trial by way of a writ. For the above-stated reasons, I would deny the writ of certiorari.
GLAZE and BROWN, JJ., join this dissent.