CAPITAL SENIORCARE VENTURES, 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; ADDIT, LLC; JOHN W. DWYER; CAPITAL FUNDING GROUP, INC.; CSCV HOLDINGS, LLC; ARKANSAS 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
CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS AND CINDY CLOUGH, PERSONAL REPRESENTATIVE OF THE ESTATE OF JOYCE LEE VINSON, DECEASED RESPONDENTS
Rock LLP, by: Mark W. Dossett, Scott Jackson, and Samantha B.
Leflar, for petitioner.
& 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.
PETITION FOR WRIT OF CERTIORARI TO THE PULASKI COUNTY
CIRCUIT COURT PETITION DENIED.
COURTNEY HUDSON GOODSON, Associate Justice
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 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.
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.
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
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.
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).
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.
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 proceedings
are erroneous on the face of the record. Ark. Game &
Fish Comm'n v. Herndon, 365 Ark. 180, 226 S.W.3d 776
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