Lupo v. Lineberger

Decision Date01 June 1993
Docket NumberNo. 92-1168,92-1168
Citation855 S.W.2d 293,313 Ark. 315
PartiesDavid A. LUPO, M.D., Petitioner, v. Hon. John LINEBERGER, Circuit Judge, Respondent.
CourtArkansas Supreme Court

Wright, Lindsey & Jennings, Little Rock, for petitioner.

Peter A. Miller, Little Rock, for respondent.

HOLT, Chief Justice.

This is a petition for a writ of prohibition or writ of certiorari to prevent the Jefferson County Circuit Court, specifically the Honorable John Lineberger, sitting on special assignment, from ordering Dr. David A. Lupo to testify as a witness in a deposition in the matter of William Rodgers, individually and as administrator of the Estate of Patricia Rodgers v. Dr. Robert Teryl Brooks, No. 91-439-2-3. In response to the petition, we issued a temporary stay of all proceedings, including discovery, pending the submission of briefs on the main issue and the question of the propriety of a writ of certiorari. See Lupo v. Lineberger, 311 Ark. 80, 841 S.W.2d 158 (1992).

The parties have responded by submitting briefs on the appropriateness of both writs of prohibition and certiorari as well as on the main issue; however, we hold that the petitioner is not entitled to relief under either writ and deny his application in all particulars.

WRIT OF PROHIBITION

In Webb v. Harrison, 261 Ark. 279, 547 S.W.2d 748 (1977), we reiterated our general position that a writ of prohibition is a discretionary writ and is only proper when the trial court has no jurisdiction over the person of the petitioner, is clearly warranted, and there are no disputed facts. In Curtis v. Partain, 272 Ark. 400, 614 S.W.2d 671 (1981), where the court's order in question was essentially a pretrial discovery order, discretionary, and within our Rules of Civil Procedure, Ark.R.Civ.P. 26(b)(1), we cited Webb with approval. Yet we altered Webb's language somewhat and granted a writ of prohibition stating that such a procedure was proper in extraordinary cases. In support of our decision, we noted that the California Supreme Court had used writs of prohibition to review interim orders in discovery matters which ordinarily would not be reviewed until after the case was tried and appealed. Oceanside Union School District v. Superior Court, 58 Cal.2d 180, 23 Cal.Rptr. 375, 373 P.2d 439 (1962).

In Fore v. Circuit Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987), we were confronted with a question of whether a writ of prohibition should issue. We correctly granted the writ as the trial court did not have jurisdiction over a workers' compensation matter, although this was not our holding. Instead, we utilized some rather loose language in declaring that the writ was warranted to prevent untold time and expense, as well as unnecessary grief to the parties. We should have simply said writs of prohibition lie when the court is without jurisdiction and has clearly exceeded its authority.

Later, in Duncan v. Cole, 302 Ark. 60, 786 S.W.2d 587 (1990), we concluded that a discovery order was not the proper subject for a writ of prohibition and commented further, "We regard the Curtis decision as unique in that the demonstration of irreparable harm was compelling." In a concurring opinion, Justices Glaze and Newbern agreed with the majority's results but made specific note "that the majority should have completed this job and overruled Curtis." In Ridenhower v. Erwin, 303 Ark. 647, 799 S.W.2d 535 (1990) we declared, "it would be a mistake to read Curtis as a general precedent for the issuance of writs of prohibition in discovery disputes."

We also labored over the Curtis issue in Forrest City Machine Works, Inc. v. Erwin, 304 Ark. 321, 802 S.W.2d 140 (1991) and explained:

Petitioner does argue that in the case of Curtis v. Partain, 272 Ark. 400, 614 S.W.2d 671 (1981), we granted a writ of prohibition when the trial court had personal and subject matter jurisdiction, and we did not hold there was an inadequacy in the remedy of appeal. It asks us to do the same again. Curtis was an anomaly involving an issue of first impression which we resolved "for the benefit of the trial courts." It is doubtful that we will ever again follow the procedure in Curtis. We limit that case to its facts.

As we are confronted with Curtis once again, we take this opportunity to overrule Curtis and retreat from the overreaching language in Fore to our earlier posture on writs of prohibition, as most recently stated in Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992):

Prohibition will not lie unless the trial court is clearly without jurisdiction or has acted without authority and the petitioner is unquestionably entitled to such a relief. The purpose of the writ is to prevent a court from exercising a power not authorized by law when there is no other adequate remedy by appeal or otherwise.

It is never issued to prohibit an inferior court from erroneously exercising its jurisdiction, but only where the inferior tribunal is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction.

The taking of Dr. Lupo's deposition pursuant to Ark.R.Civ.P. 26(a) falls within our discovery procedures. In this regard our rules provide:

(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise under subdivision (c) of this rule, the frequency of use of these methods is not limited.

Since issues of discovery are squarely under the trial court's jurisdiction, it necessarily follows that a writ of prohibition is not the solution to this discovery problem. For this reason, Dr. Lupo's petition for writ of prohibition is denied.

WRIT OF CERTIORARI

Nor is the issuance of a writ of certiorari appropriate under the factual circumstances of this case. Certiorari lies to correct proceedings erroneous on the face of the record where there is no other adequate remedy and is available to us in exercise of superintending control over a tribunal which is proceeding illegally where no other mode of review has been provided. State v. Nelson and Barry Petroleum Co., 246 Ark. 210, 438 S.W.2d 33 (1969). Sexton v. Supreme Court, 297 Ark. 154A, 761 S.W.2d 602 (1988); Bridges v. Arkansas Motor Coaches, 256 Ark. 1054, 511 S.W.2d 651 (1974). However, certiorari may only be resorted to in cases where an excess of jurisdiction is apparent on the face of the record. Nelson and Barry Petroleum Co., supra. From our inspection of the trial court's proceedings, we do not see any irregularities for which there is no other adequate remedy which would require the issuance of a writ.

Under Ark.R.Civ.P. 26(a), a party has an absolute right to take a deposition. If the deponent is asked questions that are inappropriate or unreasonable, he has a right to refuse to answer the question and request a protective order from the trial court to prevent the deposer from asking further questions along that line. More particularly, Ark.R.Civ.P. 26(c) provides:

(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after...

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