McKenzie v. Pierce

PAUL E. DANIELSON, Justice,

dissenting.

The majority opinion delivered today demonstrates that extraordinary writs will no longer be issued on an extraordinary basis, but instead at the whim of this court. Simply because the majority has itself deemed the records at issue privileged and therefore believes the circuit court erred in denying Mr. McKenzie’s motion to quash, it issues an extraordinary writ, a decision that flies in the face of this court’s precedent. Because I believe the instant facts do not warrant the issuance of a writ, I respectfully dissent.

As an initial matter, I feel compelled to develop further the procedural posture by which the instant matter was brought to us. Mr. McKenzie brings the instant appeal from an interlocutory order of the circuit court denying his motion to quash; however, such an order is not appealable under Ark. R.App. P.-Civ. 2. See, e.g., Ford Motor Co. v. Harper, 353 Ark. 328, 107 S.W.3d 168 (2003) (holding a lack of jurisdiction to consider an interlocutory appeal of an issue relating to a discovery matter). While this court can treat the appeal as a petition for extraordinary relief in limited circumstances, the matter before us is moot, as made clear 113by the circuit court’s subsequent orders in the ease, which were made a part of the record by this court’s granting of motions to supplement. Despite its mootness, I believe that the issue presented is one capable of repetition, yet evading review, an exception to the mootness doctrine. Nonetheless, it is my opinion that an extraordinary writ is not warranted.

The circuit court did deny Mr. McKenzie’s motion to quash; however, the circuit court, in its final order denying custody, stated, in relevant part:

The medical records of Cleo McKenzie have been under lock and seal since the June 23, 2011 hearing. This court has not reviewed those records.... The Circuit Court Clerk is ordered and directed to release McKenzie’s three medical records to only Mr. McKenzie, upon proper identification.

As evidenced by the circuit court’s order, Mr. McKenzie’s records were never examined by the circuit court and were ordered returned to him. Thus, any error in denying the motion to quash was rendered moot by the circuit court’s subsequent final order. As a general rule, the appellate courts of this state will not review issues that are moot. See Mountain Pure, LLC v. Little Rock Wastewater Util., 2011 Ark. 258, 383 S.W.3d 347. To do so would be to render advisory opinions, which this court will not do. See id. We have generally held that a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. See id. In other words, a moot case presents no justiciable issue for determination by the court. See id.

This court has recognized two exceptions to the mootness doctrine. See Monticello Healthcare Ctr., LLC v. Goodman, 2010 Ark. 339, 373 S.W.3d 256. The first exception involves issues that are capable of repetition, yet evading review, and the second exception concerns issues that raise considerations of substantial public interest which, if addressed, would |14prevent future litigation. See id. In this case, the supplemental record reveals that the circuit court later set aside that portion of its final order denying the petition for change of custody, on the basis of misrepresentation and fraud by Ms. McKenzie, as it related to Mr. McKenzie’s mental health. Accordingly, it would appear that the issue raised is capable of repetition, yet evading review.1

That being said, a writ of certiorari is not warranted in this case. We have previously held that because a circuit court’s discovery ruling is a matter well within the circuit court’s jurisdiction and discretion, a writ of certiorari would not lie to correct any perceived error in the circuit court’s ruling. See Chiodini v. Lock, 373 Ark. 88, 281 S.W.3d 728 (2008). Moreover, we have previously denied petitions for writs of cer-tiorari even when the alleged discovery violation pertained to materials that the petitioning party claimed were privileged. See Baptist Health v. Pulaski Cnty. Circuit Court, 373 Ark. 455, 284 S.W.3d 499 (2008). We have made clear our rationale for this position:

This petitioner insists that if it complies with the trial court’s order, under protest, its remedy by eventually taking an appeal from the final judgment will be inadequate, for, even if we should hold that the discovery order was an error, the harm will already have been done. In effect it is argued that if the cat is ever let out of the bag it can never be gotten back into the bag. An identical argument can be made whenever a discovery order is objected to. To sustain the argument in this case would 11smean that we should have to make a similar piecemeal decision whenever an application for discovery is unsuccessfully resisted at the trial level. We have repeatedly held that we cannot review interlocutory orders in this fashion.

Arkansas State Highway Comm’n v. Ponder, 239 Ark. 744, 745-46, 893 S.W.2d 870, 871 (1965). See also Monticello Healthcare Ctr., LLC, supra.

The majority wrongly asserts that because Mr. McKenzie may not have a right of appeal, he has no other remedy; but that is simply not the case. The mere fact that Mr. McKenzie is not a party to the litigation in no way renders a writ warranted. See Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993) (denying writs of prohibition and certiorari to a nonparty physician seeking to avoid being deposed). See also Arkansas Democrat-Gazette, Inc. v. Brantley, 359 Ark. 75, 194 S.W.3d 748 (2004) (noting that in addressing exclusive discovery issues, the court does not traditionally grant a nonparty’s petition for writ of certiorari). As succinctly set forth in Lupo, Arkansas Rule of Civil Procedure 26(c) regarding protective orders was and is available to Mr. McKenzie should he wish to avail himself of its remedy. There is too the majority’s erroneous reliance on our decision in Kraemer v. Patterson, 342 Ark. 481, 29 S.W.3d 684 (2000), which is equally unavailing, as that case in no way involved an issue of discovery, but the admissibility of expert witness testimony. Merely because the issue of privilege was present in Kraemer in no way renders the decision in that case apposite to the one at hand, despite the majority’s attempt to make it so. Moreover, by engaging in its analysis of whether the records were indeed privileged as claimed by Mr. McKenzie, the majority looks beyond the face of the record to ascertain the merits of the controversy, which this court has held it will not do when entertaining a petition for writ of certiorari: See Baptist Health, 373 Ark. at 460, 284 S.W.3d at 503 (holding that any decision 11fias to whether the documents in question were privileged and should not have been ordered disclosed “would require us to delve into the underlying merits of the controversy, which this court has frequently held is improper in deciding whether to issue the writ”).

What we have made abundantly clear, yet the majority so conveniently ignores, is that a writ of certiorari is extraordinary relief, and this court will grant it only when there is a lack of jurisdiction in the trial court, an act in excess of jurisdiction by the trial court on the face of the record, or the proceedings are erroneous on the face of the record. See Advance Fiberglass, LLC v. Rovnaghi, 2011 Ark. 516, 2011 WL 6091346. In determining its application, this court will not look beyond the face of the record to ascertain the merits of a controversy, or to control a court’s discretion, or to review a finding of fact, or to reverse a court’s discretionary authority. See 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 available to the petitioner. See id. The focus is whether the circuit court lacked authority to act in issuing its order, not whether it erroneously decided an issue it had authority to decide. See White v. Palo, 2011 Ark. 126, 380 S.W.3d 405. Certainly the circuit court had jurisdiction to determine a motion to quash, just as it has jurisdiction to determine whether the subpoenaed records are in fact privileged. Moreover, even assuming a gross abuse of discretion, Mr. McKenzie has not demonstrated an inadequacy of remedy, where the provisions of Rule 26 were and are available to him.

Extraordinary writs are deemed an extraordinary form of relief for a reason. Under the majority’s reasoning, any and all discovery disputes can now be taken up through an extraordinary writ, marking a direct departure from this court’s precedent and its prohibition 117against piecemeal appeals. If this court wishes to change its procedure for determining discovery issues, it should do so by amending its rules, not by eviscerating black-letter law.2 For these reasons, I respectfully dissent from the majority’s issuance of the writ of certiorari.

CORBIN and GUNTER, JJ., join.

. This is further evidenced by Mr. McKenzie's motion to stay recently filed with this court following the circuit court’s setting aside its final order denying a change of custody. In his motion, Mr. McKenzie stated that Mr. Pierce again subpoenaed Mr. McKenzie’s medical providers and that the circuit court denied Mr. McKenzie’s renewal of his motion to quash; admitted the records into evidence, but did not order them opened; and entertained methods by which the records could be opened with the least damage done to Mr. McKenzie’s privilege. Thus, despite the circuit court's original order to return the medical records to Mr. McKenzie, it would appear that those same records are at issue once again.

. For instance, I would suggest amending our rules to permit an interlocutory appeal from an order denying a motion for protective order.