FOR WRIT OF CERTIORARI TO THE PULASKI COUNTY CIRCUIT COURT
[NO. 60CV-14-3449] HONORABLE ALICE S. GRAY, JUDGE
Friday, Eldredge & Clark, LLP, by: Martin A. Kasten and
Tory H. Lewis, for petitioner.
Law Firm, P.A., by: John Ogles, for respondent Ethel Long.
K. WOOD, Associate Justice
McCain Mall Company Limited Partnership seeks a writ of
certiorari. It argues that it was served a fatally defective
summons in the underlying litigation. We deny the petition
because McCain Mall has an adequate remedy through the
interlocutory appeal it has already filed
Long filed a slip-and-fall complaint against Simon Property
Group for an incident that happened at a shopping center.
Long believed that Simon Property was the management company
for the shopping center. Long later learned that another
entity, McCain Mall Company Limited Partnership, was the true
management company. As a result, Long filed an amended
complaint and substituted McCain Mall for Simon Property as
the actual defendant.
summons was issued along with the amended complaint. The
summons was directed to "McCain Mall Company Limited
Partnership." However, at the top of the summons, the
lawsuit's caption read "Ethel Long v. Simon Property
Group Inc." Long served McCain Mall's registered
agent in September 2014. McCain Mall did not file a timely
answer. Long then filed a motion for default judgment, which
the circuit court granted in November.
December 2014, McCain Mall filed its answer. Long responded
with a motion to strike the answer, arguing that McCain
Mall's time to file had long expired and that a default
judgment had already been entered. McCain argued in response
that the summons was defective because the caption listed the
wrong defendant. The circuit court granted Long's motion
to strike McCain Mall's answer. (By the same order, the
court denied McCain Mall's motion to set aside the
Mall filed a notice of appeal under Arkansas Rule of
Appellate Procedure– Civil 2(a)(4) (2015), which
permits an immediate appeal from an order that strikes out a
pleading. The record was lodged on January 8, 2016, as case
number CV-16-26. That appeal is currently on hold.
before lodging the record in its appeal, McCain Mall filed a
petition for writ of certiorari. This petition is now before
us. McCain Mall alleges that the circuit court acted without
jurisdiction because the summons was fatally defective.
Repeating the argument it made to the circuit court in
opposition to Long's motion to strike, McCain Mall points
out that the summons listed the wrong defendant in the
caption. Because the summons listed the wrong defendant,
McCain Mall argues, the circuit court never acquired personal
the petition because McCain Mall has another adequate remedy.
A writ of certiorari is extraordinary relief. Conner v.
Simes, 355 Ark. 422, 139 S.W.3d 476 (2003). Two
requirements must be satisfied in order for this court to
grant a petition for writ of certiorari. S. Farm Bureau
Cas. Ins. Co. v. Parsons, 2013 Ark. 322, 429 S.W.3d 215.
First, there can be no other adequate remedy but for the writ
of certiorari. Id. Second, a writ of certiorari lies
only when (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.
recently addressed this issue in Capital Seniorcare
Ventures v. Circuit Court of Pulaski County, 2016 Ark.
263. We reiterated the rule that a petition for writ of
certiorari will not lie where the party has a remedy
available via appeal. Id. Stated differently, a writ
of certiorari cannot substitute for an appeal "unless
the right of appeal has been lost by no fault of the
aggrieved party." Id. at 4. Here, McCain Mall
has already filed an interlocutory appeal, which includes the
issue regarding the sufficiency of the summons. McCain Mall
raised the issue regarding the summons in opposition to the
motion to strike its answer. This interlocutory appeal is an
Mall maintains that a writ of certiorari is proper when the
summons is defective, citing Patsy Simmons Ltd.
P'ship v. Finch, 2010 Ark. 451, 370 S.W.3d 257.
There, we treated a writ of prohibition as a writ of
certiorari and granted the writ, noting that "the
circuit court was without jurisdiction to hear the case due
to failure to serve valid process." Id. at 9,
370 S.W.3d at 262. However, there was no argument, and
therefore we did not address, whether the petitioner had
another adequate remedy, which is a threshold requirement.
E.g., Ark. Game & Fish Comm'n v.
Herndon, 365 Ark. 180, 226 S.W.3d 776 (2006). Here,
McCain Mall has another adequate remedy through the
interlocutory appeal it has filed. Accordingly, it has failed
to establish the first requirement to grant a petition for
writ of certiorari.
for writ of ...