Cite as 2013 Ark. 443
SUPREME COURT OF ARKANSAS
No. CV-12-1131
Opinion Delivered November 7, 2013
PITTMAN MOORE, M.D.; MOORE
SURGICAL ARTS & GYNECOLOGY, PETITION FOR WRIT OF
PLLC; THE MOORE CLINIC FOR CERTIORARI, OR,
WOMEN’S HEALTH, LLC; PHILLIPS ALTERNATIVELY, FOR WRIT OF
HOSPITAL CORPORATION D/B/A PROHIBITION
HELENA REGIONAL MEDICAL
CENTER; AND JOHN DOES 1-9
PETITIONERS
WRIT OF PROHIBITION DENIED;
V. WRIT OF CERTIORARI DENIED
WITHOUT PREJUDICE.
THE CIRCUIT COURT OF PHILLIPS
COUNTY RESPONDENT
JIM HANNAH, Chief Justice
Petitioners, Pittman Moore, M.D.; Moore Surgical Arts & Gynecology, PLLC; The
Moore Clinic for Women’s Health, LLC; and Phillips Hospital Corporation d/b/a Helena
Regional Medical Center, petition this court for a writ of prohibition or, in the alternative,
a writ of certiorari, against the Phillips County Circuit Court. The petitioners contend that
the circuit court asserted authority beyond its jurisdiction and committed a plain, clear, and
gross abuse of discretion when it ordered them to pay the expert-witness costs of Bobbie
Troup, in her capacity as Administrator of the Estate of Easter Dawkins, Deceased. We deny
the petition for writ of prohibition, and we deny without prejudice the petition for writ of
certiorari.
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In the underlying case, Administrator Troup filed suit alleging medical malpractice and
wrongful death against the petitioners. The trial was originally set to begin on May 29, 2012.
On May 16, 2012, the circuit court held a pretrial hearing to address numerous motions that
had been filed. The parties did not get through all the motions, so at the conclusion of the
hearing, the circuit court instructed the parties to return for a second pretrial hearing on May
22, 2012. That setting was cancelled, however, because of matters previously scheduled for
that day, and the hearing was reconvened on May 29, 2012. The petitioners have represented
in court filings that they moved for a continuance of the trial date at least three times during
the pretrial hearings and that those motions were denied by the circuit court.1
Arguments on pending motions continued through the day of trial, May 30, 2012.
The circuit court called the jury pool into the courtroom and discussed the general nature
of the case before taking a lunch break. Following the lunch break, the circuit court took the
bench and continued the trial date.
On July 25, 2012, Troup filed a “Petition for Costs for Experts’ Trial Attendance,”
requesting that the petitioners be required to pay for the cost of the five expert witnesses
who had appeared to testify on her behalf on the scheduled trial date of May 30, 2012, but
did not testify because the circuit court had granted a motion for continuance made by the
petitioners. The petitioners responded that there was no legal or equitable basis for the relief
Troup requested and that the petitioners should not be punished for costs that they did not
cause Troup to incur. After a hearing, the circuit court entered an order directing the
1
Transcripts from the pretrial hearings were not filed with this court.
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petitioners to immediately pay Troup $12,000 “for expenses and fees associated with the
continuance” of the trial. The petitioners then filed the instant petition for extraordinary
relief with this court.2 They claim that the circuit court was wholly without jurisdiction and
committed a plain, clear, and gross abuse of discretion when it awarded expert-witness costs
in this case.
The petitioners first ask this court to grant a writ of prohibition. This court has held
that a writ of prohibition is extraordinary relief that is appropriate when the trial court is
wholly without jurisdiction and when there is no other remedy, such as an appeal, available.
E.g., Conner v. Simes, 355 Ark. 422, 139 S.W.3d 476 (2003). In addition, we have explained
that the writ of prohibition cannot be invoked to correct an order already entered. E.g.,
White v. Palo, 2011 Ark. 126, 380 S.W.3d 405. Here, because the Phillips County Circuit
Court has already entered an order awarding costs, relief in the form of a writ of prohibition
will not lie.
Alternatively, the petitioners ask this court to issue a writ of certiorari, another form
of 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 review a circuit court’s
discretionary authority. E.g., S. Farm Bureau Cas. Ins. Co. v. Parsons, 2013 Ark. 322, ___
S.W.3d ___. Two requirements must be satisfied in order for this court to grant a petition
for writ of certiorari. Ark. Game & Fish Comm’n v. Herndon, 365 Ark. 180, 182, 226 S.W.3d
2
At the petitioners’ request, we granted a stay of the circuit court proceedings. See Ark.
Sup. Ct. R. 6-1(c) (2013).
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776, 778 (2006). The first requirement is that there can be no other adequate remedy but for
the writ of certiorari. Id., 226 S.W.3d at 778. 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. Id., 226
S.W.3d at 778.
The petitioners contend that they have satisfied the first requirement because they
have no other adequate remedy. They argue that, because the order awarding costs is not
immediately appealable under court rules, if this court does not issue a writ, then they cannot
obtain relief unless they pay the expert-witness costs, litigate the entire case through final
judgment, and then appeal the decision. Further, the petitioners argue that, if a verdict is
entered in their favor at trial, “then it would be entirely inappropriate to mount an appeal
over a $12,000 award when the appeal itself would eclipse that value in costs and attorney’s
fees.” The petitioners assert that they will suffer irreparable harm if they are forced to pay the
amount at issue and then endure the costs associated with litigation, trial, and appeal before
the matter is reviewed by this court.
We are not persuaded by the petitioners’ argument that they will be irreparably
harmed if this court declines to issue a writ and the petitioners are required to bring an
appeal. Harm is normally considered irreparable only when it cannot be adequately
compensated by money damages or redressed in a court of law. See, e.g., Monticello Healthcare
Ctr., LLC v. Goodman, 2010 Ark. 339, 373 S.W.3d 256. Here, the sole issue is the payment
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of costs, and the court can order return of that payment. See, e.g., Sunbelt Exploration Co. v.
Stephens Prod. Co., 320 Ark. 298, 309, 896 S.W.2d 867, 873–74 (1995) (remanding to the
circuit court the issue of whether unallowable expenses were awarded).
Although we 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, see Fore v. Circuit
Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987), overruled by Wise Co. v. Clay
Circuit, 315 Ark. 333, 335-A, 869 S.W.2d 6, 9 (1994) (supplemental opinion on denial of
rehearing), we retreated from that overreaching language in Lupo v. Lineberger, 313 Ark. 315,
317, 855 S.W.2d 293, 294 (1993). Conner, 355 Ark. at 428, 139 S.W.3d at 480. We have
explained that with respect to requests for extraordinary relief, such as writs of certiorari, the
point is that we cannot, and should not, review cases in a piecemeal fashion. See id. at 429,
139 S.W.3d at 480. Likewise, we have been steadfast in holding that certiorari may not be
used as a substitute for appeal. See, e.g., Parsons, supra; Conner, supra; Arnold v. Spears, 343 Ark.
517, 36 S.W.3d 346 (2001); Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995); Gran v.
Hale, 294 Ark. 563, 745 S.W.2d 129 (1988); Burney v. Hargraves, 264 Ark. 680, 573 S.W.2d
912 (1978).
Granting extraordinary relief in this case would permit a piecemeal appeal that merely
tests the correctness of an interlocutory order. Conner, supra. Furthermore, we have explained
that although an issue may be important, if the decision does not conclude the merits of a
case, any appeal would be premature. Id. In the instant case, the issuance of a writ of
certiorari would allow an extraordinary writ to serve as a substitute for an appeal and would
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effectively endorse piecemeal appellate review. This we will not do. Because we conclude
that the petitioners have an adequate remedy in the form of an appeal,3 we deny without
prejudice their petition for writ of certiorari.
Writ of prohibition denied; writ of certiorari denied without prejudice.
Friday, Eldredge & Clark, LLP, by: Jason Hendren;
Olly Neal; and
Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Ken Cook and Benjamin D.
Jackson, for petitioners.
Dustin McDaniel, Att’y Gen., by: Regina Haralson, Ass’t Att’y Gen., for respondent.
3
We note that after the parties’ briefs were submitted to this court, the petitioners filed
a “Motion to Take Judicial Notice,” in which they contend that our decision in the recent
case of Cooper v. Circuit Court of Faulkner County, 2013 Ark. 365, ___ S.W.3d ___, supports
their argument that an appeal is not an adequate remedy in this case. The petitioners
mischaracterize our holding in Cooper.
In Cooper, this court reviewed a circuit court’s order that (1) required the petitioners
to pay fees and costs as a condition of granting their motion for continuance and (2)
prohibited the petitioners from filing any additional pleadings in the circuit court until the fees
and costs were paid in full. We discussed the prohibition of filing additional pleadings and, on
that basis, we concluded that an appeal was not an adequate remedy:
First, it is clear to this court that Cooper and Dowell have no other remedy. The
January 31, 2013 order prohibiting the filing of additional pleadings is not a final,
appealable order. Although it is a part of a continuance order which would normally be
appealed at the conclusion of litigation, in the interim time, Cooper and Dowell have no other
recourse to obtain relief from the prohibition portion of the order.
Cooper, 2013 Ark. 365, at 9, ___ S.W.3d at ___ (emphasis added). Moreover, we specifically
declined to reach the issue of whether the circuit court exceeded its jurisdiction and
committed a manifest, clear, and gross abuse of discretion when it ordered the petitioners to
pay $21,345 in fees and costs. Id. at 9–10, ___ S.W.3d at ___ (noting that the conditions
imposed in the order were inextricably intertwined and could not be parceled out individually
and thus directing the circuit court to rescind the order in its entirety). In sum, Cooper is of
no help to the petitioners in the instant case.
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