                                   Cite as 2013 Ark. 443

                SUPREME COURT OF ARKANSAS
                                      No.   CV-12-1131

                                                 Opinion Delivered   November 7, 2013
PITTMAN MOORE, M.D.; MOORE
SURGICAL ARTS & GYNECOLOGY,                      PETITION FOR WRIT OF
PLLC; THE MOORE CLINIC FOR                       CERTIORARI, OR,
WOMEN’S HEALTH, LLC; PHILLIPS                    ALTERNATIVELY, FOR WRIT OF
HOSPITAL CORPORATION D/B/A                       PROHIBITION
HELENA REGIONAL MEDICAL
CENTER; AND JOHN DOES 1-9
                  PETITIONERS
                                                 WRIT OF PROHIBITION DENIED;
V.                                               WRIT OF CERTIORARI DENIED
                                                 WITHOUT PREJUDICE.

THE CIRCUIT COURT OF PHILLIPS
COUNTY           RESPONDENT


                                JIM HANNAH, Chief Justice


       Petitioners, Pittman Moore, M.D.; Moore Surgical Arts & Gynecology, PLLC; The

Moore Clinic for Women’s Health, LLC; and Phillips Hospital Corporation d/b/a Helena

Regional Medical Center, petition this court for a writ of prohibition or, in the alternative,

a writ of certiorari, against the Phillips County Circuit Court. The petitioners contend that

the circuit court asserted authority beyond its jurisdiction and committed a plain, clear, and

gross abuse of discretion when it ordered them to pay the expert-witness costs of Bobbie

Troup, in her capacity as Administrator of the Estate of Easter Dawkins, Deceased. We deny

the petition for writ of prohibition, and we deny without prejudice the petition for writ of

certiorari.
                                    Cite as 2013 Ark. 443

       In the underlying case, Administrator Troup filed suit alleging medical malpractice and

wrongful death against the petitioners. The trial was originally set to begin on May 29, 2012.

On May 16, 2012, the circuit court held a pretrial hearing to address numerous motions that

had been filed. The parties did not get through all the motions, so at the conclusion of the

hearing, the circuit court instructed the parties to return for a second pretrial hearing on May

22, 2012. That setting was cancelled, however, because of matters previously scheduled for

that day, and the hearing was reconvened on May 29, 2012. The petitioners have represented

in court filings that they moved for a continuance of the trial date at least three times during

the pretrial hearings and that those motions were denied by the circuit court.1

       Arguments on pending motions continued through the day of trial, May 30, 2012.

The circuit court called the jury pool into the courtroom and discussed the general nature

of the case before taking a lunch break. Following the lunch break, the circuit court took the

bench and continued the trial date.

       On July 25, 2012, Troup filed a “Petition for Costs for Experts’ Trial Attendance,”

requesting that the petitioners be required to pay for the cost of the five expert witnesses

who had appeared to testify on her behalf on the scheduled trial date of May 30, 2012, but

did not testify because the circuit court had granted a motion for continuance made by the

petitioners. The petitioners responded that there was no legal or equitable basis for the relief

Troup requested and that the petitioners should not be punished for costs that they did not

cause Troup to incur. After a hearing, the circuit court entered an order directing the


       1
        Transcripts from the pretrial hearings were not filed with this court.

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petitioners to immediately pay Troup $12,000 “for expenses and fees associated with the

continuance” of the trial. The petitioners then filed the instant petition for extraordinary

relief with this court.2 They claim that the circuit court was wholly without jurisdiction and

committed a plain, clear, and gross abuse of discretion when it awarded expert-witness costs

in this case.

       The petitioners first ask this court to grant a writ of prohibition. This court has held

that a writ of prohibition is extraordinary relief that is appropriate when the trial court is

wholly without jurisdiction and when there is no other remedy, such as an appeal, available.

E.g., Conner v. Simes, 355 Ark. 422, 139 S.W.3d 476 (2003). In addition, we have explained

that the writ of prohibition cannot be invoked to correct an order already entered. E.g.,

White v. Palo, 2011 Ark. 126, 380 S.W.3d 405. Here, because the Phillips County Circuit

Court has already entered an order awarding costs, relief in the form of a writ of prohibition

will not lie.

       Alternatively, the petitioners ask this court to issue a writ of certiorari, another form

of extraordinary relief. In determining its application, we will not look beyond the face of

the record to ascertain the actual merits of a controversy, or to review a circuit court’s

discretionary authority. E.g., S. Farm Bureau Cas. Ins. Co. v. Parsons, 2013 Ark. 322, ___

S.W.3d ___. Two requirements must be satisfied in order for this court to grant a petition

for writ of certiorari. Ark. Game & Fish Comm’n v. Herndon, 365 Ark. 180, 182, 226 S.W.3d



       2
       At the petitioners’ request, we granted a stay of the circuit court proceedings. See Ark.
Sup. Ct. R. 6-1(c) (2013).

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776, 778 (2006). The first requirement is that there can be no other adequate remedy but for

the writ of certiorari. Id., 226 S.W.3d at 778. 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. Id., 226

S.W.3d at 778.

       The petitioners contend that they have satisfied the first requirement because they

have no other adequate remedy. They argue that, because the order awarding costs is not

immediately appealable under court rules, if this court does not issue a writ, then they cannot

obtain relief unless they pay the expert-witness costs, litigate the entire case through final

judgment, and then appeal the decision. Further, the petitioners argue that, if a verdict is

entered in their favor at trial, “then it would be entirely inappropriate to mount an appeal

over a $12,000 award when the appeal itself would eclipse that value in costs and attorney’s

fees.” The petitioners assert that they will suffer irreparable harm if they are forced to pay the

amount at issue and then endure the costs associated with litigation, trial, and appeal before

the matter is reviewed by this court.

       We are not persuaded by the petitioners’ argument that they will be irreparably

harmed if this court declines to issue a writ and the petitioners are required to bring an

appeal. Harm is normally considered irreparable only when it cannot be adequately

compensated by money damages or redressed in a court of law. See, e.g., Monticello Healthcare

Ctr., LLC v. Goodman, 2010 Ark. 339, 373 S.W.3d 256. Here, the sole issue is the payment


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of costs, and the court can order return of that payment. See, e.g., Sunbelt Exploration Co. v.

Stephens Prod. Co., 320 Ark. 298, 309, 896 S.W.2d 867, 873–74 (1995) (remanding to the

circuit court the issue of whether unallowable expenses were awarded).

        Although we at one time appeared to endorse the use of an extraordinary writ to

prevent untold time and expense, as well as unnecessary grief to the parties, see Fore v. Circuit

Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987), overruled by Wise Co. v. Clay

Circuit, 315 Ark. 333, 335-A, 869 S.W.2d 6, 9 (1994) (supplemental opinion on denial of

rehearing), we retreated from that overreaching language in Lupo v. Lineberger, 313 Ark. 315,

317, 855 S.W.2d 293, 294 (1993). Conner, 355 Ark. at 428, 139 S.W.3d at 480. We have

explained that with respect to requests for extraordinary relief, such as writs of certiorari, the

point is that we cannot, and should not, review cases in a piecemeal fashion. See id. at 429,

139 S.W.3d at 480. Likewise, we have been steadfast in holding that certiorari may not be

used as a substitute for appeal. See, e.g., Parsons, supra; Conner, supra; Arnold v. Spears, 343 Ark.

517, 36 S.W.3d 346 (2001); Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995); Gran v.

Hale, 294 Ark. 563, 745 S.W.2d 129 (1988); Burney v. Hargraves, 264 Ark. 680, 573 S.W.2d

912 (1978).

       Granting extraordinary relief in this case would permit a piecemeal appeal that merely

tests the correctness of an interlocutory order. Conner, supra. Furthermore, we have explained

that although an issue may be important, if the decision does not conclude the merits of a

case, any appeal would be premature. Id. In the instant case, the issuance of a writ of

certiorari would allow an extraordinary writ to serve as a substitute for an appeal and would


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effectively endorse piecemeal appellate review. This we will not do. Because we conclude

that the petitioners have an adequate remedy in the form of an appeal,3 we deny without

prejudice their petition for writ of certiorari.

       Writ of prohibition denied; writ of certiorari denied without prejudice.

        Friday, Eldredge & Clark, LLP, by: Jason Hendren;
        Olly Neal; and
        Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Ken Cook and Benjamin D.
Jackson, for petitioners.

       Dustin McDaniel, Att’y Gen., by: Regina Haralson, Ass’t Att’y Gen., for respondent.




       3
        We note that after the parties’ briefs were submitted to this court, the petitioners filed
a “Motion to Take Judicial Notice,” in which they contend that our decision in the recent
case of Cooper v. Circuit Court of Faulkner County, 2013 Ark. 365, ___ S.W.3d ___, supports
their argument that an appeal is not an adequate remedy in this case. The petitioners
mischaracterize our holding in Cooper.

       In Cooper, this court reviewed a circuit court’s order that (1) required the petitioners
to pay fees and costs as a condition of granting their motion for continuance and (2)
prohibited the petitioners from filing any additional pleadings in the circuit court until the fees
and costs were paid in full. We discussed the prohibition of filing additional pleadings and, on
that basis, we concluded that an appeal was not an adequate remedy:

       First, it is clear to this court that Cooper and Dowell have no other remedy. The
       January 31, 2013 order prohibiting the filing of additional pleadings is not a final,
       appealable order. Although it is a part of a continuance order which would normally be
       appealed at the conclusion of litigation, in the interim time, Cooper and Dowell have no other
       recourse to obtain relief from the prohibition portion of the order.

Cooper, 2013 Ark. 365, at 9, ___ S.W.3d at ___ (emphasis added). Moreover, we specifically
declined to reach the issue of whether the circuit court exceeded its jurisdiction and
committed a manifest, clear, and gross abuse of discretion when it ordered the petitioners to
pay $21,345 in fees and costs. Id. at 9–10, ___ S.W.3d at ___ (noting that the conditions
imposed in the order were inextricably intertwined and could not be parceled out individually
and thus directing the circuit court to rescind the order in its entirety). In sum, Cooper is of
no help to the petitioners in the instant case.



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