Dr. Raul Ramirez v. White County Circuit Court

• Decision Date: 18 January 2001
• Docket Number: 00-827
• Parties: DR. RAUL RAMIREZ AND BEVERLY ENTERPRISES, APPELLANTS, VS. WHITE COUNTY CIRCUIT COURT, APPELLEE.SUPREME COURT OF ARKANSAS
• Court: Arkansas Supreme Court

DR. RAUL RAMIREZ AND BEVERLY ENTERPRISES, APPELLANTS VS WHITE COUNTY CIRCUIT COURT, APPELLEE

No. 00-827

SUPREME COURT OF ARKANSAS

January 18, 2001

APPEAL FROM THE WHITE COUNTY CIRCUIT COURT, NO. 99-423, HON. WILLIAM PICKENS MILLS, JUDGE, WRIT OF PROHIBITION GRANTED.

Opinion Delivered

JIM HANNAH, Associate Justice

This case arises from the death of Iris Harvey. Dr. Raul Ramirez and Beverly Enterprises-Arkansas, Inc, d/b/a/ Beverly Health and Rehabilitation Center-Searcy, petition this court for a writ of prohibition against the White County Circuit Court to prevent further prosecution of a wrongful death action, White County Circuit Court case number 99-423, David Harvey, as next of kin heir at law of Iris Harvey, Deceased v. Dr. Raul Ramirez and Beverly Enterprises-Arkansas, Inc, d/b/a/ Beverly Health and Rehabilitation Center-Searcy. David Harvey, plaintiff in the action below, has responded. This petition was filed in this court on July 18, 2000. On September 7, 2000, this court heard and granted a petition that this matter be submitted as a case.

Petitioners assert the circuit court lacks jurisdiction because plaintiff David Harvey is without standing to sue given he is only one of Iris Harvey's heirs at law and all heirs at law must be joined in the lawsuit before heirs at law may bring a wrongful death action. DavidHarvey affirms that the issue before this court is whether a single heir at law can bring an action for wrongful death when there are other heirs at law who have not been joined. We have jurisdiction pursuant to Ark. Sup. Ct. R. 1-2(a)(3), as a petition for a writ of prohibition to be directed to a circuit court. We conclude that under the current wrongful death statute, where a wrongful death action is pursued by heirs at law, all heirs at law must be joined in the action. Therefore, as only one of the heirs at law, David lacks standing under the wrongful death statute. This deprives the circuit court of jurisdiction. We hold that the writ of prohibition will lie.

Facts

On May 25, 1995, Iris Harvey died while in the care of petitioners. On May 14, 1997, Iris' husband David filed a complaint as "Next of Kin and Husband of Iris Harvey, Deceased," asserting his wife had died as a result of negligence in her care, and that he had suffered mental anguish as a result of his wife's untimely death.

On May 14, 1995, Iris was in the care of Beverly Enterprises, when she was admitted to Central Arkansas Hospital by Dr. Raul Ramirez due to symptoms of congestive heart failure. David asserts that his wife's blood potassium level was within normal limits when she was admitted, but that by the time she was released back into the care of Beverly Enterprises on May 19, 1995, her potassium level was abnormally high and untreated. He further alleges Dr. Ramirez prescribed medication during Iris' therapy that further elevated her blood potassium level. He alleges in addition that after release from the hospital, Dr. Ramirez and Beverly Enterprises failed to properly monitor her potassium level and to order and or provide necessary electrolytes. David alleges that the negligence of Dr. Ramirez and Beverly Enterprises was the proximate cause of his wife's death.

On October 21, 1997, petitioner Ramirez filed a motion for summary judgment asserting David lacked standing to pursue his wrongful death action because he was but one of the heirs at law and that the statute requires all heirs at law to be joined in the action. David filed a motion to substitute himself as administrator for the estate, as the party plaintiff to replace David Harvey as an individual, but the motion was denied. Summary judgment was granted as to all heirs at law excepting David. Thus, the trial court found that David's action as an heir at law survived. No appeal was taken from these decisions of the trial court. However, shortly thereafter David non-suited the action and re-filed it as "David Harvey, as Next Kin and Heir at Law of Iris Harvey, Deceased" on December 13, 1999. Petitioners again moved for summary judgment, again asserting David lacked standing. The trial court ruled as it had the first time, finding David could sue as an individual heir at law. Petitioners now seek a writ of prohibition alleging the trial court erred in this decision and a lack of standing leaves the trial court wholly without jurisdiction.

Writ of Prohibition

Petitioners seek a writ to stop the circuit court from proceeding in this case because they allege there is no jurisdiction due to a lack of standing by plaintiff in the case in the trial court below. The party seeking to proceed by petition for writ of prohibition bears the burden of demonstrating that it is clearly entitled to so proceed. Nucor-Yamato Steel Company v. Circuit Court, 317 Ark. 493, 878 S.W.2d 745 (1994). Petitioners argue that under Ark.Code Ann. § 16-62-102(b) (1987), a wrongful death action may be pursued only by all the heirs at law, and not by just one as is being attempted in this case, that the plaintiff below lacks standing, and that, therefore, the trial court lacks jurisdiction. Thus, the issue is the legal question of whether the trial court has jurisdiction to hear David's complaint.

In State v. Circuit Court of Lincoln County, 336 Ark. 122, 984 S.W.2d 412 (1999), this court stated:

A writ of prohibition is extraordinary relief which is appropriate only when the trial court is wholly without jurisdiction. Henderson Specialties, Inc. v. Boone County Circuit Court, 334 Ark. 111, 971 S.W.2d 234 (1998); Nucor Holding Co. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996). The writ is appropriate only when there is no other remedy, such as an appeal, available. Henderson Specialties, Inc. v. Boone County Circuit Court, supra; West Memphis Sch. Dist. No. 4 v. Circuit Court, 316 Ark. 290, 871 S.W.2d 368 (1994) (quoting National Sec. Fire & Cas. Co. v. Poskey, 309 Ark. 206, 828 S.W.2d 836 (1992)). When deciding whether prohibition will lie, we confine our review to the pleadings in the case. The Wise Company, Inc. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (1993).

See also, Willis v. Circuit Court of Phillips County, 342 Ark. 128, 27 S.W.3d 372 (2000); Pike v. Benton Circuit Court, 340 Ark. 311, 10 S.W.3d 447 (2000). Jurisdiction is the power of the court to hear and determine the subject matter in controversy between the parties. Circuit Court of Lincoln County, 336 Ark. at 125.

Prohibition is a proper remedy when the jurisdiction of the trial court depends upon a legal rather than a factual question. Western Waste Indus. v. Purifoy, 326 Ark. 256, 930 S.W.2d 348 (1996); Fausett and Co. v. Bogard, 285 Ark. 124, 685 S.W.2d 153 (1985); Titsworth v. Mayfield, Judge, 241 Ark. 641, 409 S.W.2d 500 (1966). When jurisdiction depends on the establishment of facts or turns on facts which are in dispute, the issue is one correctly determined by the trial court. Steve Standridge Insurance Inc. v. Langston, 321 Ark. 331, 900 S.W.2d 955 (1995).

The issue before the trial court was an interpretation of Ark. Code Ann. §16-62-102(b), and therefore was a legal question. Petitioners are not entitled to an appeal because they would be appealing from denial of a motion for summary judgment. "We have repeatedly held that the denial of a motion for summary judgment is not subject to review or appeal." Bharodia v. Pledger, 340 Ark. 547, 11 S.W.3d 540 (2000); Daniels v. Colonial Ins. Co., 314 Ark. 49, 857 S.W.2d 162 (1993); Hastings v. Planters and Stockmen Bank, 307 Ark. 34, 818 S.W.2d 239 (1991); McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991). So, if there is no jurisdiction, the only way petitioners can obtain review by this court is by way of a petition for a writ of prohibition. Therefore, a petition for a writ of prohibition is a proper method to obtain review of jurisdiction by this court.

The issue before the court is whether an individual heir at law can bring a wrongful death action when he or she is not the only heir at law. The Wrongful Death Statute is Ark. Code Ann. §16-62-102. Ark. Code Ann. §16-62-102 (2)(b) provides:

Every action shall be brought by and in the name of the personal representative of the deceased person. If there is no personal representative, then the action shall be brought by the heirs at law of the deceased person.

Statutory Construction

The question becomes one of statutory construction.

This Court in Babb v. Matlock, 340 Ark. 263, 9 S.W.3rd 508 (2000), stated:

Thus, because the action (wrongful death) is a statutory creation and is in derogation of or at variance with the common law, we construe the wrongful-death statute strictly. Id. Strict construction necessarily `requires that nothing be taken as intended that is not clearly expressed.' Lawhon Farm Servs. v. Brown, 335 Ark. 272, 279, 984 S.W.2d 1, 4 (1998). Given that narrow standard, we must reject Appellants' first argument, that we should broadly construe the class of statutory beneficiaries to include persons not specifically named. Babb, supra.

This court in McGinty v. Ballentine, 241 Ark. 533,408 S.W.2d 891 (1966), stated:

[A]t common law no cause of action survived for wrongful death, and the only cause of action that arises is because of wrongful death statutes, which must be strictly adhered to in determining the cause of action, the parties, and the period of limitations.

In Smith v. Missouri Pac. Rd. Co., 175 Ark. 626, 1 S.W.2d 48 (1927), this court stated that as a cause of action created by statute, "it only exists in the manner and form and for the time prescribed by the statutes of the State which created it...." See also, Vines v. Ark. Power & Light Co., 232 Ark. 173, 337 S.W.2d 722 (1960).

The trial court interpreted Ark. Code Ann. §16-62-102(b) and review of the court's statutory interpretation is de novo. Stephens v. Arkansas Sch. For the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000); Burnette v. Perkins & Associates, 343 Ark. ___, ___ S.W.3d ___ (December...