Conner v. Simes, 02-1214.

• Decision Date: 18 December 2003
• Docket Number: No. 02-1214.,02-1214.
• Citation: 139 S.W.3d 476,355 Ark. 422
• Parties: Dr. George L. CONNER III, M.D.; Forrest City Family Practice Clinic v. The Honorable L.T. SIMES, Judge.
• Court: Arkansas Supreme Court

139 S.W.3d 476

355 Ark. 422

Dr. George L. CONNER III, M.D.; Forrest City Family Practice Clinic v. The Honorable L.T. SIMES, Judge.

No. 02-1214.

Supreme Court of Arkansas.

December 18, 2003.

Appeal from the St. Francis Circuit Court, L.T. Sims, J Womack, Landis, Phelps, McNeill & McDaniel, by: Lucinda McDaniel and Mark Mayfield, Jonesboro, for petitioners.

McHenry & McHenry Law Firm, by: Donna McHenry, Robert McHenry, and Gregory D. Taylor, Little Rock, for respondents.

ANNABELLE CLINTON IMBER, Justice.

On or about April 21, 1999, a fetus being carried by Bridgette Bradley died in utero. During Bridgette's pregnancy, George L. Conner, III, M.D., acted as her treating physician at Forrest City Family Practice Clinic, P.A. ("the Clinic"). On February 14, 2001, Bridgette and her husband Maurice, individually and on behalf of their unborn fetus, filed suit against Dr. Conner and the Clinic. In their complaint, the Bradleys asserted claims against both Dr. Conner and the Clinic for medical negligence and wrongful death arising out of the death of their unborn fetus. After taking a voluntary nonsuit in March of 2001, the Bradleys refiled their complaint on February 1, 2002.

On March 12, 2002, Dr. Conner and the Clinic filed a partial motion to dismiss pursuant to Arkansas Rule of Civil Procedure 12(b)(6). In that motion, Dr. Conner and the Clinic (referred to hereafter collectively as "Dr. Conner") contended that at the time the unborn fetus died in utero on April 21, 1999, there was no cognizable cause of action for the wrongful death of a fetus in Arkansas. In advocating a partial dismissal under Ark. R. Civ. P. 12(b)(6), Dr. Conner relied upon this court's decisions in Chatelain v. Kelley, 322 Ark. 517, 910 S.W.2d 215 (1995) and Aka v. Jefferson Hosp. Assoc., 344 Ark. 627, 42 S.W.3d 508 (2001). The Bradleys opposed the dismissal on the basis that Act 1265 of 2001, codified at Ark.Code Ann. § 16-62-102(a) (Supp.2003), was remedial legislation and should be applied retroactively. Act 1265 amended the wrongful-death statute to specifically include a cause of action for the wrongful death of a viable fetus. Furthermore, the Bradleys noted that neither of the cases cited by Dr. Conner analyzed or relied upon Act 1265 of 2001. The circuit court conducted a hearing and then denied the partial motion to dismiss. Shortly thereafter, Dr. Conner filed this original action seeking a writ of prohibition to prevent the St. Francis Circuit Court from proceeding with the wrongful-death action brought by the Bradleys as heirs of their unborn fetus.¹

The writ of prohibition is extraordinary relief that is appropriate only when the trial court is wholly without jurisdiction. Finney v. Cook, 351 Ark. 367, 94 S.W.3d 333 (2002). The writ is appropriate only when there is no other remedy, such as an appeal, available. Id. Prohibition is a proper remedy when the jurisdiction of the trial court depends upon a legal rather than a factual question. Id. This court confines its review to the pleadings in the case. Id. Morever, prohibition is never issued to prohibit a trial court from erroneously exercising its jurisdiction. Arkansas Dept. of Human Servs. v. Collier, 351 Ark. 506, 95 S.W.3d 772 (2003). Additionally, a writ of prohibition is not the appropriate remedy for the denial of a motion to dismiss. Farm Bureau Mutual Ins. Co. v. Southall, 281 Ark. 141, 661 S.W.2d 383 (1983).

Jurisdiction is the power of the court to hear and determine the subject matter in controversy between the parties. State v. Circuit Court of Lincoln County, 336 Ark. 122, 984 S.W.2d 412 (1999). In the case at bar, Dr. Conner seeks a writ of prohibition, asserting that the circuit court lacks jurisdiction to hear a wrongful-death action filed pursuant to the wrongful-death statute. See Ark.Code Ann. § 16-62-102 (Supp.2003). Clearly, a circuit court has the power to hear a wrongful-death case. In addition, the plaintiffs in the underlying action filed claims against the defendants for both medical malpractice in the treatment of Mrs. Bradley and for the wrongful death of the unborn fetus. Dr. Conner does not assert that the circuit court lacks jurisdiction to entertain the separate claim of medical malpractice. As such, the circuit court is not wholly without jurisdiction to the hear the case.

Nonetheless, as authority for the proposition that prohibition is the proper remedy, Dr. Conner cites this court to St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, 348 Ark. 197, 73 S.W.3d 584 (2002) and Ramirez v. White County Circuit Court, 343 Ark. 372, 38 S.W.3d 298 (2001). Those cases, however, are inapposite. In Ramirez, a decedent's spouse, as only one of three heirs, filed a wrongful-death action without joining all of the heirs at law in the action. We held the circuit court lacked jurisdiction because the statute that created a cause of action for wrongful death mandates that such an action be brought by all of the heirs at law if there is no personal representative. Ramirez v. White County Circuit Court, supra; see Ark.Code Ann. § 16-62-102(b) (Supp.2003). In St. Paul Mercury, supra, we concluded that a medical malpractice action filed pursuant to the survival and wrongful-death statutes was barred by the statute of limitations. Prohibition was a proper remedy in that case because the statute of limitations for wrongful death is jurisdictional. See Forrest City Mach. Works, Inc. v. Erwin, 304 Ark. 321, 802 S.W.2d 140 (1991) (citing Vermeer Mfg. Co. v. Steel, 263 Ark. 323, 564 S.W.2d 518 (1978)). Here, there is no allegation that the Bradleys filed their complaint for medical malpractice and wrongful death outside of the statute-of-limitations period, or that the Bradleys failed to include all the heirs at law in the action. Instead, Dr. Conner asserts that the circuit court lacks jurisdiction because the Bradleys have no cause of action for the death of an unborn fetus; that is, because no cause of action exists, they cannot state facts upon which relief can be granted.

This court has addressed the scope of the writ in a case where the trial court denied a motion to dismiss based on standing, failure to state a claim for which relief could be granted, and lack of subject matter jurisdiction. See Nat'l Sec. Fire & Cas. Co. v. Poskey, 309 Ark. 206, 828 S.W.2d 836 (1992). We stated:

Ordinarily, a petition for a writ of prohibition is not the proper remedy for the failure of a trial court to grant a motion to dismiss. A writ of prohibition is an extraordinary writ and is only granted when the lower court is wholly without jurisdiction, there are no disputed facts, there is no adequate remedy otherwise, and the writ is clearly warranted. There is no doubt that a circuit court has proper subject matter jurisdiction to hear a declaratory judgment action concerning insurance coverage. The propriety of hearing such a case, especially when it appears that no cause of action exists or that not all the parties to the insurance contract have been made parties to the suit, is a distinctly different issue and one that is not addressed by a writ of prohibition, for the writ is issued only to prevent a court from exceeding its jurisdiction, rather than to prevent it from erroneously exercising its jurisdiction.

Id at 207, 828 S.W.2d at 837-38. Likewise, in the instant case, there is no doubt that the circuit court has subject matter jurisdiction to hear an action for medical malpractice and wrongful death. The propriety of the circuit court hearing such a case, even when it appears that no cause of action exists, is an issue that is not properly addressed by a writ of prohibition because the writ does not prevent the court from erroneously exercising its jurisdiction. Any other view would permit the writ of prohibition to be used not to test the issue of jurisdiction but to test the sufficiency of a complaint filed in a court having jurisdiction both of the subject matter and the person. See Farm Bureau Mutual Ins. Co. v. Southall, supra. Therefore, Dr. Conner's petition for a writ of prohibition must be and hereby is denied.

This court has, on occasion, treated a writ of prohibition as a writ of certiorari. We have explained that the writ of prohibition cannot be invoked to correct an order already entered, but where the lower court's order has been entered without or in excess of jurisdiction, we will carve through the technicalities and treat the application for a writ of prohibition as one for certiorari. Arkansas Pub. Defender Comm'n v. Burnett, 340 Ark. 233, 12 S.W.3d 191 (2000). The standards for determining the propriety of a writ of certiorari are well settled in Arkansas. A writ of certiorari is extraordinary relief, and we will grant it only when 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 Dept. of Human Servs. v. Collier, 351 Ark. 506, 95 S.W.3d 772 (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 fact, or to reverse a trial court's discretionary authority. Id. A writ of certiorari lies only where it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, and there is no other adequate remedy. Id.

In the case at bar, we cannot say that Dr. Conner has no other adequate remedy by appeal. At worst, Dr. Conner will be required to present a defense to the wrongful-death and medical malpractice claims, and then upon remand, he will only be defending against a claim for medical malpractice. While this court at one time appeared to endorse the use of an extraordinary writ to prevent untold time and expense, as well as unnecessary grief to the parties, Fore v. Circuit Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987), we...