I dissent from the decision that Dr. Cockrum should be forced to defend a claim that is properly remedied by this court granting certiorari. By its decision, the majority again elevates form above substance and expands the holding from Conner v. Simes, 355 Ark. 422, 139 S.W.3d 476 (2003), to further extinguish extraordinary writs in our jurisprudence.
The majority opinion correctly notes that a writ of prohibition is not appropriate relief for the denial of a motion to dismiss. Conner, supra. We may, however, treat a petition for a writ of prohibition as a petition for a writ of certiorari, carving through the technicalities of the petition when circumstances so warrant. Ballard v. Clark County Circuit Court, 347 Ark. 291, 61 S.W.3d 178 (2001) (per curiam); see also Arkansas Public Defenders Comm’n v. Burnett, 340 Ark. 233, 12 S.W.3d 191 (2000). A writ of certiorari will lie when there is an act in the absence of jurisdiction, an act in excess ofjurisdiction, or proceedings that are erroneous on the face of the record. Conner, supra. A writ of certiorari may be used to correct an action already taken by a trial court. Burnett, supra. Certiorari is extraordinary relief and requires a showing of plain, manifest, gross, and clear abuse of discretion on the face of the record. Conner, supra. Furthermore, we will not look beyond the record to determine the merits of the controversy, control discretion, review findings of fact, or reverse a trial court’s discretionary authority. Id. Abuse of discretion is discretion applied thoughtlessly, without due consideration, or improvidently. Carlew v. Wright, 356 Ark. 208, 148 S.W.3d 237 (2004).
In the present case, the trial court clearly erred as to the controlling law for a wrongful-death action. We have held that a wrongful-death action is an action in derogation of common law and, as a statutory construction, it must be strictly construed. Ramirez v. White County Circuit Court, 343 Ark. 372, 38 S.W.3d 298 (2001). We have also held that a wrongful-death action, where there is not a designated personal representative, is insufficient unless all of the statutory beneficiaries are named as parties. Id. If a wrongful-death action is brought by less than all of the named beneficiaries, the complaint is a legal nullity, and it is as if it never existed. Id. We held in Ramirez that the widower of the decedent failed to meet the statutory requirements when he failed to join their two children. Id. We issued a writ of prohibition to prevent the case from continuing. Id.
Here, petitioner moved to dismiss the wrongful-death action for failure to join all of the named beneficiaries under Ark. Code Ann. § 16-62-102 (Supp. 2003). The trial court did not follow the law as articulated in Ramirez, supra, and denied the motion to dismiss.
It is clear that the trial court erred in declining to follow the statutory requirement that all statutory beneficiaries, namely the Abies’ other two children, must be joined in a wrongful-death action if there is no personal representative. The wrongful-death action should have been dismissed. The trial court clearly abused its discretion in disregarding the precedent of Ramirez, supra. This act exceeded the trial court’s discretion, and the writ of certiorari is appropriate to remedy the clear, plain, manifest, and gross abuse of discretion in denying the motion to dismiss the wrongful-death claim as to Baby Abies. Accordingly, I would grant the writ of certiorari.
The majority likens this case to the situation in Conner, supra. In Conner, this court was faced with a petition for a writ of prohibition when a trial court denied a motion to dismiss a wrongful-death claim on behalf of an unborn child. The actions that resulted in the alleged wrongful-death occurred before our decision in Aka v. Jefferson Hospital Association, 344 Ark. 627, 42 S.W.3d 508 (2001), went into effect. There was not a cognizable claim at the time the injury arose. The majority denied the petition for a writ of prohibition and refused to treat the petition as one for certiorari holding that there was an adequate remedy on appeal. Furthermore, the majority concluded that we would be endorsing piecemeal litigation if we granted the writ. I dissented in Conner because I believe that there is a vested right to be free from an unwarranted lawsuit, as we noted in Forrest City Machine Works v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981). See Conner, supra (Thornton, J. dissenting). In Conner, supra, there was a second count pleaded in the court below, and the majority relied on this second count to deny the writ. The majority based its decision about piecemeal litigation on the fact that there was a second enumerated count in the complaint.
In this case however, as the majority notes, there “may be” another claim camouflaged in the complaint. The majority does not say whether there is or is not another claim and the parties do not contend that there was one. The poorly-drafted complaint is not clear enough to distinguish whether a second count was before the trial court in this case.
The majority further confuses extraordinary writs with interlocutory appeals. An extraordinary writ arises only in extraordinary circumstances. There is no need for a final appealable order for a writ to issue. In fact, a final and appealable order defeats the issuance of any writ because an adequate remedy on appeal may instead be had. Extraordinary writs function outside of the normal rules of appellate procedure to provide extraordinary relief and should not be treated as an appeal under a different name.
I believe that the majority is emasculating the useful purpose of extraordinary writs in this case by expanding Conner, supra, to include preventing the applicability of extraordinary writs on the basis of a hypothetical argument not raised by the parties in the case sub judice. For these reasons, I respectfully dissent.