Jordan v. Circuit Court of Lee County

• Decision Date: 11 May 2006
• Docket Number: No. 05-1031.,05-1031.
• Citation: 235 S.W.3d 487
• Parties: 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.
• Court: Arkansas Supreme Court

235 S.W.3d 487

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.

No. 05-1031.

Supreme Court of Arkansas.

May 11, 2006.

Kutak Rock, LLP, by: Phil Malcom, Little Rock, AR, for petitioner.

Don R. Etherly, Helena, AR, for respondent.

DONALD L. CORBIN, Justice.

PetitionerRichard Jordan, M.D., petitions this court for a writ of prohibition, or alternatively, a writ of certiorari, vacating the order of Lee County Circuit JudgeL.T. Simes denying his motion to dismiss the third complaint filed against him by RespondentGwendolyn White, Administratrix of the Estate of Darthula Vaughn.In his petition, Dr. Jordan argues that the circuit court lacks jurisdiction to proceed with this case.In support of his petition, Dr. Jordan argues that White's third complaint is barred (1) by the doctrine of res judicata and Ark. R. Civ. P. 41(b), and (2) due to the pendency of another action, pursuant to Ark. R. Civ. P. 12(b)(8).Because this case is a petition for a writ of prohibition, or in the alternative, writ of certiorari, our jurisdiction is proper pursuant to Ark. Sup.Ct. R. 1-2(a)(3).We deny the writ of prohibition but grant the writ of certiorari.

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 Ark. R. Civ. P. 4.White did not move for an extension of time in which to effectuate proper service, but rather, on July 24, 2003, filed a third complaint, CV 2003-90.Both the second and third complaints raised the same allegations as the first complaint against Dr. Jordan.

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 by Rule 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 because the third complaint is barred by the doctrine of res judicata and Rule 41(b), as well as, pursuant to Rule 12(b)(8), because of the pendency of another complaint.On October 13, 2005, this court directed that the petition be submitted as a case.

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 Rule 41(b), and therefore the circuit court should have dismissed the third complaint with prejudice.Thus, the first issue before this court is whether this rule or the doctrine of res judicata provides an adequate basis for Dr. Jordan's petition for prohibition.¹

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 alsoEarney 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 Rule 41(b) argument.Rule 41(b) provides:

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 Rule 41.SeeDavis v. Office of Child Sup. Enforcem't,322 Ark. 352, 908 S.W.2d 649(1995)(noting, on appeal, our previous denial of appellant's petition for writ of prohibition based upon the trial court's denial of his motion to dismiss pursuant to Rule 41).Consequently, Dr. Jordan's arguments that a writ of prohibition should be granted based upon the doctrine of res judicata and the application of Rule 41(b) are without merit.

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 alsoArkansas 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 apparent on the face of the record; not to look beyond the record to ascertain the actual merits of a controversy or to control...