dissenting. A writ of certiorari is extraordinary relief. Arkansas Dep’t of Human Servs. v. Collier, 351 Ark. 506, 516, 95 S.W.3d 772, 777 (2003). In determining its application we will not look beyond the face of the record to ascertain the actual merits of the controversy, or to control discretion, or to review a finding of facts, or to reverse a trial court’s discretionary authority. Id. The test for determining whether a writ of certiorari lies is two-pronged. First, a writ of certiorari is only available where there is no adequate remedy available to the petitioner but for the 'writ. Id. The second requirement is that it must be apparent on the face of the record (1) that there has been a plain, manifest, clear, and gross abuse of discretion, or (2) that there is a lack of jurisdiction, an act in excess of jurisdiction, or the proceedings are erroneous on the face of the record. Id. The majority concludes that Petitioner, Jordan, has met both requirements of the two-pronged test and, thus, a writ of certiorari lies. In doing so, the majority makes short work of concluding that Petitioner has no other adequate remedy at law, completely ignoring the fact that Petitioner has available to him the most basic of remedies, an appeal. For the reasons set forth below, I must respectfully dissent.
As discussed above, this court has held that extraordinary writs, such as a writ of certiorari, are not available “when there is another adequate remedy, such as an appeal.” Manila School Dist. No. 15 v. Wagner, 357 Ark. 20, 26, 159 S.W.3d 285, 290 (2004). Additionally, this court has long held that a writ of certiorari cannot be used as a substitute for appeal. Burney v. Hargraves, 264 Ark. 680, 682, 573 S.W.2d 912, 913 (1978); see Cooper Communities, Inc. v. Circuit Court of Benton Cty., 336 Ark. 136, 984 S.W.2d 429 (1999). A writ of certiorari will not take the place of an appeal unless the right of appeal has been lost by no fault of the aggrieved party. King v. Davis, 324 Ark. 253, 256, 920 S.W.2d 488, 489 (1996).
In Burney v. Hargraves, we stated that “we cannot review cases in a piecemeal fashion.” Burney, supra. In that case, the petitioner sought a writ of mandamus in this court because the trial court failed to enter a default judgment in his favor and because of the lower court’s action the petitioner would be compelled to submit to an unwarranted trial. Id. This court denied the writ stating, “[i]f the asserted threat of ‘an unwarranted trial’ were a sufficient basis for declaring the remedy by appeal to be inadequate, then a defendant could always appeal from the trial court’s action . . . [bringing] a piecemeal appeal merely testing the correctness of an interlocutory order.” Id. at 682, 573 S.W.2d at 913; followed by Connor v. Simes, 355 Ark. 422, 139 S.W.3d 476.
While the majority is correct in stating that the circuit court’s denial of Petitioner’s motion to dismiss is not a final and appealable order, by granting a writ of certiorari in the instant case the majority does just what this court has unequivocally stated that it shall not do, allow an extraordinary writ to take the place of an ordinary appeal. The majority seems to have forgotten that under Rule 2(b) of the Arkansas Rules of Appellate Procedure — Civil, “an appeal from a final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment.”
Moreover, a survey of our case law reveals that this court has never granted a writ of certiorari based on a circuit court’s erroneous denial of a motion to dismiss under any of the following Arkansas Rules of Civil Procedure: Ark. R. Civ. P. 4(i); Ark. R. Civ. P. 60; or Ark. R. Civ. P. 41(b). Instead, all of the cases cited by the majority to support the notion that the circuit court erred in denying the motion to dismiss were actually before this court on appeal. See, e.g., Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003); Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001); Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997); Bakker v. Ralston, 326 Ark. 575, 932 S.W.2d 325 (1996); Davis v. Office of Child Sup. Enforcem’t, 322 Ark. 352, 908 S.W.2d 649 (1995); City of Little Rock v. Ragan, 297 Ark. 525, 769 S.W.2d 87 (1989). Under the majority’s reasoning in this case, any denial of a motion to dismiss based on Rule 4(i), Rule 60, or Rule 41(b) will henceforth be subject to review by an extraordinary writ.
Petitioner has available to him the proper and adequate remedy of appeal once the circuit court has made a final order in the instant case. Consequently, he has not satisfied both requirements for obtaining a writ of certiorari and he should not be allowed to avoid a trial by way of a writ. For the above-stated reasons, I would deny the writ of certiorari.
Glaze and Brown, JJ., join this dissent.