Cap. SeniorCare Ventures LLC v. Cir. Ct. of Pulaski Cty. , 494 S.W.3d 423 ( 2016 )

Cite as 2016 Ark. 263
SUPREME COURT OF ARKANSAS
CV-15-999
No.
CAPITAL SENIORCARE VENTURES,
Opinion Delivered: June 16, 2016
LLC; SLC OPERATIONS MASTER
TENANT, LLC; SENIOR
LIVINGCOMMUNITIES OF
ARKANSAS, LLC; SLC
PROFESSIONALS, LLC F/K/A SLC
PROFESSIONALS OF ARKANSAS, LLC;
SENIOR VANTAGE POINT, LLC; PETITION FOR WRIT
ADDIT, LLC; JOHN W. DWYER; OF CERTIORARI TO THE
CAPITAL FUNDING GROUP, INC.; PULASKI COUNTY CIRCUIT
CSCV HOLDINGS, LLC; ARKANSAS COURT
SNF OPERATIONS ACQUISITION,
LLC; ARKANSAS NURSING HOME
ACQUISITION, LLC; PREMIER
HEALTH AND REHABILITATION,
LLC; NORTH LITTLE ROCK
HOLDINGS, LLC; STEVE HUDGENS,
IN HIS CAPACITY AS
ADMINISTRATOR OF PREMIER
HEALTH AND REHABILITATION,
LLC; AND JOHN DOES 1 THROUGH 5
PETITIONERS
V.
CIRCUIT COURT OF PULASKI
COUNTY, ARKANSAS AND CINDY
CLOUGH, PERSONAL
REPRESENTATIVE OF THE ESTATE PETITION DENIED.
OF JOYCE LEE VINSON, DECEASED
RESPONDENTS
COURTNEY HUDSON GOODSON, Associate Justice
Petitioners Capital SeniorCare Ventures, LLC, et al. (“Capital SeniorCare”) seek a
writ of certiorari to the Pulaski County Circuit Court to quash proceedings in that court.
In support of the petition, Capital SeniorCare argues that the circuit court proceedings
Cite as 2016 Ark. 263
against it are irregular and erroneous on the face of the record because the plaintiff in the
lawsuit has commenced three actions alleging the same claims and injuries in violation of
Rule 41(b) of the Arkansas Rule of Civil Procedure. Because Capital SeniorCare had
another adequate remedy, we deny the petition.
In the proceedings below, respondent Cindy Clough, as personal representative of
the estate of Joyce Lee Vinson, deceased, and on behalf of the wrongful-death beneficiaries
of Joyce Lee Vinson, deceased, filed a complaint on January 14, 2013, against Capital
SeniorCare and effected timely service upon them. The complaint alleged various acts of
negligence, medical negligence, civil conspiracy, and violations of the Arkansas Long-Term
Care Residents’ Rights Act. On August 5, 2014, Clough voluntarily dismissed her claims
against Capital SeniorCare, and the circuit court entered an order closing that case, 60CV-
13-230, without prejudice.
Thereafter, on December 19, 2014, Clough filed an “amended complaint” in case
60CV-13-230 alleging the same claims as the original complaint. Clough did not file a new
civil cover sheet or pay a filing fee in connection with the amended complaint, and no new
summonses were issued to Capital SeniorCare.
In early July, Clough contacted the circuit court and requested that it set a trial date
in 60CV-13-230. The circuit court responded that that case was closed and that no trial
could be set. Then, on July 8, 2015, Clough filed a new complaint as a new case, 60 CV-
15-3046. With this complaint, Clough filed a new civil cover sheet, paid the filing fee, and
served new summonses on all defendants.
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On September 29, 2015, Capital SeniorCare filed a motion to dismiss the amended
complaint in 60CV-13-230 for lack of service. Capital SeniorCare also filed a motion to
dismiss the new complaint with prejudice in 60CV-15-3046, arguing that the dismissal of
the amended complaint in 60CV-13-230 would operate as a second dismissal and bar any
subsequent litigation pursuant to Rule 41(b). Clough responded, arguing that the amended
complaint was a nullity and was void, and that consequently, the new complaint was
properly filed as a second action under the savings statute, Arkansas Code Annotated section
16-56-126 (Repl. 2005).
On November 5, 2015, the circuit court denied Capital SeniorCare’s motion to
dismiss the new complaint. On November 10, 2015, the circuit court entered an order in
60CV-13-230 finding that the amended complaint was void because it had been filed in a
closed case. Capital SeniorCare did not appeal, but instead filed the instant petition for a
writ of certiorari.
A writ of certiorari is extraordinary relief. Ark. Dep’t of Human Servs. v. Collier, 351
Ark. 506, 95 S.W.3d 772 (2003). In determining its application, we will not look beyond
the face of the record to ascertain the actual merits of a controversy, or to control discretion,
or to review a finding of fact, or to reverse a trial court’s discretionary authority. Id. There
are two requirements that must be satisfied in order for this court to grant a writ of certiorari.
The first requirement is that there can be no other adequate remedy but for the writ of
certiorari. 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
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proceedings are erroneous on the face of the record. Ark. Game & Fish Comm’n v. Herndon,
365 Ark. 180, 226 S.W.3d 776 (2006).
In this case, we must deny the petition for the writ because the first requirement of
no other adequate remedy at law has not been met. Capital SeniorCare argues that they
have met this requirement because the circuit court’s denial of their motion to dismiss was
not appealable. They note our decision in Jordan v. Circuit Court of Lee County, 366 Ark.
326, 235 S.W.3d 487 (2006), wherein we granted a writ of certiorari following a circuit
court’s denial of a motion to dismiss, holding that the court’s ruling improperly allowed the
case to proceed in violation of Rule 41(b), and the petitioner had no other adequate remedy
at law because the petitioner could not appeal from the order denying the motion to dismiss.
However, unlike in Jordan, the petitioners in this case do have an order from which they
could have properly appealed. The circuit court’s November 10, 2015 order stated, “The
above styled case was closed by order of this court on August 4, 2014. There is nothing
pending in this case, and any pleadings filed subsequent to the case’s closure on August 4,
2014 are void and have no effect.” Because this order effectively discontinues the action, it
is appealable under Rule 2(a)(2) of the Arkansas Rules of Appellate Procedure –Civil.
Capital SeniorCare had an opportunity to appeal that order but did not do so. As we have
recognized, a writ of certiorari cannot be used as a substitute for appeal. Burney v. Hargraves,
264 Ark. 680, 573 S.W.2d 912 (1978); see also Cooper Communities, Inc. v. Circuit Court of
Benton Cty., 336 Ark. 136, 984 S.W.2d 429 (1999). Additionally, 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, 920 S.W.2d 488 (1996). Accordingly, because
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Capital SeniorCare had an adequate remedy in the form of an appeal, we deny their petition
for a writ of certiorari.
Petition denied.
Kutak Rock LLP, by: Mark W. Dossett, Scott Jackson, and Samantha B. Leflar, for
petitioner.
Wilkes & McHugh, P.A., by: William P. Murray III and Carl R. Wilander; Appellate
Solutions, PLLC, by: Deborah Truby Riordan; and The Edwards Firm, P.L.L.C., by: Robert
H. Edwards, for respondents.
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