dissenting. I dissent from the ^majority’s decision that Dr. Conner should be forced to defend a claim that was not legally cognizable at the time the alleged cause of action arose. By its decision, the majority elevates form above substance and interprets rules against piecemeal appeals to produce an unjust result that will frustrate efficient and fair disposition of this case and will lead to multiplicity of actions.
While a writ of prohibition is not appropriate in the instant case, I believe a writ of certiorari should have been granted. We may accept a petition for a writ of prohibition as a petition for a writ of certiorari. Ballard v. Clark County Circuit Court, 347 Ark. 291, 61 S.W.3d 178 (2001). In Arkansas Public Defender Comm. v. Burnett, 340 Ark. 233, 12 S.W.3d 191 (2000), we noted that a writ of certiorari will properly issue to review a trial court order already issued “without, or in excess of jurisdiction.” A writ of certiorari is only available when 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. Id. (citing Bates v. McNeil, 318 Ark. 764, 888 S.W.2d 642 (1994)). The writ of certiorari is the appropriate remedy when the petition claims that the trial court does not have jurisdiction to hear a claim. Burnette, supra.; see also May Construction Company, Inc. v. Thompson, 341 Ark. 879, 20 S.W.3d 345 (2000).
Respondents cite to Burney v. Hargraves, 264 Ark. 680, 573 S.W.2d 912 (1978), for the proposition that the settlement of all issues should be on appeal, and neither prohibition nor mandamus nor certiorari may be used to review cases in a piecemeal fashion. We have, however, granted petitions for a writ of certiorari that were not dispositive of the underlying case, such as in Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995). In Neal, a petition for disbarment went through several recusals and specially appointed judges before the case came to rest in Judge Lineberger’s court. While this case was pending before Judge Lineberger, the newly elected Judge Oily Neal, who was elected to the same judicial district as the original judge who had recused in this case, ruled on the matter. We granted the petition for a writ of certiorari because Judge Neal acted “in excess of his authority and jurisdiction” and quashed all of Judge Neal’s orders and directives relating to the underlying case. The case was set to proceed in Judge Lineburger’s courtroom the day after the decision was handed down. Judge Neal had acted outside the jurisdiction available, and we rectified that plain, manifest, clear, and gross abuse of discretion with a writ of certiorari. Id.
Kraemer v. Patterson, 342 Ark. 481, 29 S.W.3d 684 (2000), is particularly instructive for our consideration of this case. Kraemer was a medical-malpractice case and the defense required an expert witness that would meet the “locality” rule under Arkansas law. The proposed defense expert had treated the plaintiff in the case prior to trial. After deposing the doctor, the defense began ex parte meetings in anticipation of calling the doctor as an expert witness. The plaintiffs objected based on Ark. R. Evid. 503, but the trial court granted the defendants motion to retain the doctor as a defense expert. We granted the petition for a writ of certiorari without reaching any other claims in the case. Moreover, we specifically noted that “an appeal of an adverse decision would not be an adequate remedy under these circumstances.” We recognized that some injustices are so pervasive, some violations of rights so infectious that an appeal is not an adequate remedy for the .aggrieved. Id.
In this case, at the time the complaint was filed, there was no cause of action for the wrongful death of a fetus. The petitioners challenged the trial court’s ability to proceed with a non-existent claim. Accordingly, we should treat the petition for a writ of prohibition as a petition for a writ of certiorari and analyze whether Act 1265 of 2001 may be applied retroactively.
In Aka v. Jefferson Hospital Association, 344 Ark. 627, 42 S.W.3d 508 (2001), the question before us was whether our reversal of Chatelain v. Kelly, 322 Ark. 517, 910 S.W.2d 215 (1995), should be applied retroactively. It is clear to me that our decision in Aka, supra was premised, at least in part, on Act 1265 of 2001. The extensive discussion of whether allowing wrongful-death claims based on the death of a viable fetus would be applied retroactively or prospectively was couched entirely in terms of statutory construction. We recently reiterated that Aka was to apply only prospectively and that a fetus as a “person” for the purposes of the wrongful-death statute could only maintain a cause of action that accrued after the effective date of the Aka decision. McCoy v. Crumby, 353 Ark. 251, 106 S.W.3d 462 (2003).
The question of retroactivity depends upon legislative intent. Aka, supra (citing Bean v. Office of Child Support Enforcement, 340 Ark. 286, 9 S.W.3d 520 (2000)). The strict rule of construction is that legislative acts are presumed to be prospective. This rule, however, does not apply to procedural or remedial legislation. A wrongful-death statute is remedial in nature and should be construed to give appropriate regard to “the spirit that promoted a statute’s enactment, the mischief sought to be abolished, and the remedy proposed.” Aka, supra.
Remedial statutes should only be applied retroactively when they do not disturb vested rights or create new obligations but rather supply a more appropriate remedy for enforcement of an existing right or obligation. Forrest City Machine Works v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981). In that decision, we directly stated that potential due-process violations of retroactive statutes must be analyzed with a vested-rights analysis. Furthermore, we noted there is a vested right when the law allows one to enforce or resist a claim in the courts of law. Id.
Flere, Dr. Conner’s vested right to be free from litigation asserting a cause of action for the wrongful death of a fetus would be violated by a retroactive application of Act 1265 of2001. When the injury occurred, a cause of action charging Dr. Conner with the wrongful death of a fetus could not be sustained. Respondents argue that no vested right has been disturbed and that Dr. Conner has the same defense of showing he was not negligent in his duties and actions as a physician as he would otherwise have had. This is incorrect. If the statute is not retroactive, Dr. Conner need not show whether he was or was not negligent in his actions. The majority would force him to defend against a claim that did not exist absent a retroactive application of the statute. By doing so, the majority disregards what we said in Aderhold, supra concerning the vested right to a legal defense of a claim. To' summarize, it is clear to me that we have already decided in Aka, supra and McCoy, supra, that Act 1265 of2001 amending the wrongful-death statute should not be interpreted retroactively. In Aka, we noted that “retroactive application is appropriate for remedial statutes that do not disturb vested rights or create new obligations,” Aka, supra (citing Bean, supra), and then concluded, “In light of the foregoing and to further the remedial intent of the wrongful-death statute, we apply our decision to overrule Chatelain retroactively as to appellant and prospectively as to causes of action arising after this opinion becomes final.” Aka, supra (emphasis added).1 We clearly expressed our conclusion that Act 1265 of 2001 was to be applied retroactively to Aka, but prospectively to all causes of action arising thereafter.
Before Aka, supra and Act 1265 of2001 there was no cause of action for the wrongful death of a fetus. Allowing a claim for recovery for the wrongful death of a fetus based upon a retroactive application of Act 1265 of 2001 cuts off Dr. Conner’s vested right to be free from suit under the principles of law in effect until Chatelain, supra was reversed by Aka.
I would recognize our previous holdings that Act 1265 of 2001 does not apply retroactively, and hold that the trial court committed plain, manifest, clear, and gross abuse of discretion when it allowed this wrongful-death claim to go forward. As in Kraemer, supra, I am convinced that an appeal is not an adequate remedy under these circumstances where consideration of a nonexistent wrongful-death claim will have the effect ofpoisoning the trial of other justiciable claims against Dr. Conner.
The majority recognizes that we have in the past “appeared to endorse the use of an extraordinary writ to prevent untold time and expense, as well as unnecessary grief to the parties,” Fore v. Circuit Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987), but indicates the we have withdrawn from that position in Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993). I believe it is time to protect the vested rights of an individual defendant, and restate our interest in preventing the time and expense in trying a non-existent cause of action notwithstanding that an appeal may be available after the error has been committed. Our procedural rules should not lead to unjust results.
For the foregoing reasons, I respectfully dissent from the majority’s opinion.
I am authorized to state that Chiefjustice Arnoldjoins in this dissent.. The reference to the “wrongful death statute” is to Act 1265 of 2001.