Ford Motor Co. v. Harper

Tom Glaze, Justice, concurring. It is well settled that a writ of prohibition will not he unless the trial court is clearly without authority and petitioner is unquestionably entitled to relief. Our court has clearly held that a discovery order is not the proper subject for this court because the trial court’s jurisdiction allows it to decide such discovery issues. Lupo v. Lineberger, 313 Ark. 315 , 855 S.W.2d 293 (1993). The Lupo court further held that a writ of certiorari is a remedy to quash irregular proceedings “but only for errors apparent on the face of the record — not to look beyond the record to ascertain the actions or merits of a controversy or to control or to review [a] finding of facts.” Id. This court also stated that the petitioner, Dr. Lupo, was not entitled to a writ of certiorari to prevent a trial court from ordering Dr. Lupo to testify at a deposition because a remedy of a protective order was available under Ark. R. Civ. P. 26(c). Id.; see also Farm Service Co-op v. Cummins, 262 Ark. 810 , 561 S.W.2d 317 (1978) (an order for discovery is interlocutory and not appealable, and a writ of prohibition will not he); Ark. Motor Coaches v. Taylor, 234 Ark. 803 , 354 S.W.2d 731 (1962) (an order for discovery is interlocutory and not appealable and a writ of prohibition will not lie to review such order); Ark. State Highway Comm. v. Ponder, 239 Ark. 744 , 393 S.W.2d 870 (1965).

As is readily obvious from the above, this court has long held that discovery issues are matters trial courts have jurisdiction to decide, and they involve interlocutory rulings that are not final and appealable. See Haase v. Starnes, 337 Ark. 193 , 987 S.W.2d 704 (1999); see also Ark. R. App. P. — Civ. 2. In short, discovery issues must be reviewed by this court only when a final order, judgment, or decree is entered. This court has steadfastly followed this approach over the years and have rejected the suggestion to include discovery orders under Rule 2 as an interlocutory order that can be appealed. 1 Eg., see Farm Service Co-op, 262 Ark. 810 , 561 S.W.2d 317 (1978); Lupo v. Lineberger, supra; Cf. Clark v. Clark, 319 Ark. 193 , 890 S.W.2d 267 (1998).

It is noteworthy to mention the case of Curtis v. Partain, 272 Ark. 400 , 614 S.W.2d 671 (1981), where this court followed the California case of Oceanwide Union School Dist. v. Superior Court, 23 Cal. Reptr. 375, 373 P.2d 439 (1962), which used the writ of prohibition procedure to review interim orders in discovery matters. The Curtis case, however, was duly criticized and soundly overturned by this court in Lupo, 313 Ark. 315 , 855 S.W.2d 293 . See also Duncan v. Cole, 302 Ark. 60 , 786 S.W.2d 587 (1990), and Ridenhower v. Erwin, 303 Ark. 647 , 799 S.W.2d 535 (1990).