PAUL E. DANIELSON, Justice.
Appellants Monticello Healthcare Center, LLC d/b/a Monticello Healthcare Center; Perennial Healthcare Management, LLC; Perennial Leaseholdings 6, LLC; Perennial Health Care Holdings, LLC; V. James Santarsiero; Sharon Drake, in her capacity as administrator of Monticello Healthcare Center; John Doe I; John Doe II; John Doe III; John Doe IV; and John Doe V (hereinafter collectively "MHC") interlocutorily appeal three separate orders of the circuit court in a medical-malpractice action brought by appellee Jerry Goodman, as special administrator of the Estate of Leona Goodman and on behalf of the wrongful-death beneficiaries of Leona Goodman. MHC asserts three points on appeal: (1) that the circuit court abused its discretion when it enjoined MHC from transferring assets; (2) that the circuit court abused its discretion when it enjoined MHC and its insurers from paying attorneys' fees for the defense of this case; and (3) that the circuit court lacked authority to order MHC to produce a complete history of attorneys' fees paid. We hold that MHC's appeal of the first
The relevant facts are these. On July 11, 2008, Goodman filed a complaint alleging twelve claims against MHC relating to the death of Leona Goodman, who was a resident of Monticello Healthcare in Monticello, Arkansas. On May 28, 2010, Goodman moved for an injunction or temporary restraining order, asking the circuit court to "immediately enter an injunction or temporary restraining order preventing Defendants or their agents and counsel from taking any action associated with any sale or attempted sale of any entity or asset of any Defendant pending further order of the Court." Alternatively, Goodman sought a discovery bond or other bond of sufficient sum to prevent the possibility of irreparable harm from the sales. Attached to the motion was an affidavit from Bruce Engstrom, a certified public accountant, who was engaged by Goodman to review certain financial and organizational information relating to MHC. In his affidavit, Mr. Engstrom opined that if a sale were permitted to proceed,
A hearing was held on the motion on June 2, 2010, and, five days later, on June 7, 2010, the circuit court filed a restraining order ("Order No. 1"). In that order, the circuit court enjoined all defendants
On June 9, 2010, Goodman filed an amendment to his complaint, asserting that MHC's wasting insurance-policy provision was void and requesting an injunction against MHC and its insurance company prohibiting them from attempting to limit Goodman's right to recover anything less than the full, originally stated amount of the insurance policy. That same day, the circuit court issued an order:
An additional amendment to the complaint was filed on June 11, 2010, in which Goodman asserted that MHC was attempting to transfer assets contrary to the provisions of the fraudulent-transfer statutes of Arkansas, and on June 15, 2010, a telephone conference was had, which was recorded.
On June 21 and 22, 2010, the MHC defendants filed motions to reconsider or, in the alternative, responses to the motion for injunction or temporary restraining order. In the motions, MHC asserted that the "broad nature" of the circuit court's order of June 7
It averred that the restraining order would cause substantial damages and that Goodman should be required to file a bond.
On the afternoon of June 22, the circuit court filed a second restraining order ("Order No. 2"), based on the telephone conference of June 15. In Order No. 2, the circuit court "on the Motion of the Court," joined "certain third parties," including the State of Arkansas, Arkansas Department of Health and Human Services (ADHHS), and the Office of Long Term Care (OLTC). It then, "[u]pon the Motion of the Court," ordered and directed them
Also upon motion of the court, the circuit court further ordered and directed the State, ADHHS, and OLTC be "enjoined and restrained from granting any approval for a new nursing home or granting a new license or authorizing any other change" in operational control of the nursing home at issue. In addition, the circuit court, on its own motion, restrained and enjoined the insurance companies involved, American Safety Indemnity Company, Lexington Insurance Company, and Illinois Union Insurance Company, from
The same afternoon, the circuit court entered an additional order concerning the pretrial conference call of June 15 ("Order No. 3"). In that order, the circuit court noted that it had, on its own motion, "sought the net figures that the insurance company or ... companies have paid concerning claims, attorneys' fees, and settlements and other information." The court further observed that a letter from one defense attorney received in response to the request was to be made a part of the record. The circuit court then ordered Mr. Santarsiero to submit, in camera, the retainer agreement he had with the law firm representing him. Additionally, the circuit court ordered and directed the Perennial defendants in the case to
It further directed that MHC
And again, the circuit court, on its own motion, added parties to the suit, this time including American Safety Indemnity Company, Lexington Insurance Company, and Illinois Union Insurance Company.
The same day, MHC filed its notice of appeal of Order No. 1, and it amended that notice of appeal on June 23, 2010. Also on June 23, Goodman filed a letter to the circuit court, asking it to sign a proposed order rescinding the restraining order of June 7, so as to render MHC's appeal of that order moot, and leaving all other orders in effect. That same day, MHC filed its notice of appeal regarding Orders No. 2 and 3. And, too, the circuit court entered an order, in response to Goodman's request, setting "aside its order restraining the transfer of this facility and any State action in approving or accomplishing the same" and stating that "[a]ll other orders, not injunctive in nature, remain."
On June 28, 2010, MHC moved to vacate or set aside Order No. 2, which restrained the payment of attorneys' fees. Goodman responded asking for a hearing on the motion and stating that "[i]n view of the actions of the Court, rescinding the Restraining Orders, the arguments and merits of the Motion to Reconsider are not applicable." Subsequently, on July 2, 2010, the circuit court entered an order of
MHC argues, for its first point on appeal, that the circuit court abused its discretion when it entered Order No. 1, restraining the transfer of any assets, for the following reasons: (1) the order was impermissibly vague; (2) the order did not require Goodman to post a bond; (3) Goodman did not demonstrate irreparable harm; (4) Goodman did not demonstrate a likelihood of success on the merits; (5) the order was an unconstitutional prejudgment attachment; and (6) the Uniform Transfer Act did not apply. Goodman rejects each of MHC's assertions and responds that this issue is moot, as Order No. 1 was set aside by the June 23 order of the circuit court. MHC replies that the circuit court's order of June 23, 2010, did not render this first issue moot and urges that the June 23 order is ambiguous, at best.
This court reviews injunctive matters de novo. See Aviation Cadet Museum, Inc. v. Hammer, 373 Ark. 202, 283 S.W.3d 198 (2008). The decision to grant or deny an injunction is within the discretion of the circuit court. See id. We will not reverse the circuit court's ruling granting or denying an injunction unless there has been an abuse of discretion. See id. In reviewing the circuit court's findings, we give due deference to the circuit court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. See id.
As an initial matter, we must determine whether MHC's appeal of Order No. 1 is moot. We conclude that it is. A review of Order No. 1 reveals that it was based upon a hearing held June 2, 2010, and it enjoined MHC from transferring any interest in, or asset of, any MHC defendant until the posting of a bond in order to assure at least a partial collection of any settlement or judgment for Goodman. However, on June 23, the circuit court entered an order, which provided:
Here, MHC urges that the circuit court abused its discretion in entering Order No. 1; however, by virtue of the circuit court's June 23 order, it is clear that the circuit court set aside Order No. 1, which enjoined any transfer of interests or assets by MHC. By its plain language, the circuit court's order identified the June 7 order and set it aside. Accordingly, it is evident that any decision rendered as to the validity or meaning of Order No. 1, which was subsequently set aside by the circuit court, would have no practical legal effect upon the case. Nor does either exception to the mootness doctrine apply, as the issuance or meaning of this injunction is not capable of repetition, yet evading review, where it is dependent on the facts of the instant case. In addition, the validity of the instant injunctive Order No. 1 does not concern an issue that would raise considerations of substantial public interest, which, if addressed, would prevent future litigation because, again, it is pertinent to the instant set of facts. For these reasons, we hold that MHC's appeal of Order No. 1, which was subsequently set aside by the circuit court in its order of June 23, is moot.
MHC next argues that the circuit court abused its discretion when, on the circuit court's own motion, the circuit court enjoined MHC and its insurers from paying their attorneys any fees for their defense of the case in Order No. 2. It contends that the circuit court abused its discretion because (1) Goodman did not show irreparable harm or an inadequate remedy at law; (2) Goodman did not show a likelihood of success on the merits; (3) the circuit court did not give MHC notice and an opportunity to be heard; (4) the circuit court did not require Goodman to post security; (5) the circuit court had no authority to enjoin the nonparty insurers; (6) Goodman had no standing at the time to pursue declaratory relief as to the insurance policies; and (7) the insurers were not parties to the action. In response, Goodman claims that Order No. 2 was also set aside by the circuit court in its June 23 order, and he disputes MHC's claims on appeal.
Again, we must address the issue of mootness first, as the question has been posed as to whether the circuit court's order of June 23 renders moot MHC's appeal of Order No. 2, which restrained MHC and its insurers from paying their attorneys any further attorneys' fees. As already set forth above, the appellate courts of this state, as a general rule, will not review issues that are moot, because to do so would be to render an advisory opinion and this we will not do. See Kinchen, 367 Ark. 71, 238 S.W.3d 94.
We simply cannot say that MHC's appeal of Order No. 2 is moot. The plain language of the June 23 order references setting aside only "its order restraining the transfer of this facility and any State action in approving or accomplishing the same." Nor is any mention made of setting aside the circuit court's order enjoining
We turn then to MHC's claim, with respect to Order No. 2's restraint of the payment of attorneys' fees, that Goodman did not make a showing of irreparable harm; it is correct. A review of Order No. 2 reveals that the circuit court restrained the payment of attorneys' fees by MHC's insurers "[u]pon the Motion of the Court." However, our rules make clear that an application for injunctive relief must be made to the circuit court prior to a grant of relief. Arkansas Rule of Civil Procedure 65 provides, in pertinent part:
Ark. R. Civ. P. 65(a)(1) (2010) (emphasis added). Here, Goodman amended his complaint on June 9, 2010, and asked the circuit court to declare the wasting policy provision held by MHC void. Within this request for declaratory relief, Goodman stated:
Notwithstanding the circuit court's statement that it entered the order on its own motion and assuming that Goodman's request contained within his amended complaint was indeed an application for injunctive relief, the circuit court was required to consider two things in determining whether to issue a preliminary injunction under Ark. R. Civ. P. 65:(1) whether irreparable harm will result in the absence of an injunction or restraining order, and (2) whether the moving party has demonstrated a likelihood of success on the merits. See Baptist Health v. Murphy, 365 Ark. 115, 226 S.W.3d 800 (2006). Here, it is clear that neither was asserted, much less shown; therefore, we hold that the circuit court abused its discretion in issuing injunctive relief.
Ark. R. Civ. P. 65(e) provides:
A review of the order reveals no findings regarding either irreparable harm, or a likelihood of success on the merits. However, Goodman's request for injunctive relief contained within his amended complaint did not assert that he would suffer irreparable harm, nor did it assert a likelihood of success on the merits; rather, the amendment to the complaint merely asserted the bases on which Goodman believed the MHC wasting policy should be declared void. Moreover, a review of the telephone conference following which the order was entered reveals minimal statements by counsel for Goodman; no argument was made in relation to injunctive relief, nor was there any presentation of facts by Goodman supporting irreparable harm or a likelihood of success on the merits. In fact, the restraint of attorneys' fees was developed and ordered by the circuit court itself:
In Baptist Health v. Murphy, 362 Ark. 506, 209 S.W.3d 360 (2005) (per curiam), this court reversed and remanded the case to the circuit court for its failure to comply with Rule 65(e), holding that "[w]ithout findings on the issue of the likelihood of success on the merits, we are unable to determine whether the circuit court abused its discretion in granting the preliminary injunction." 362 Ark. at 511, 209 S.W.3d at 363. Because the Drew County Circuit Court failed to make such findings in Order No. 2, this court could remand the matter for the circuit court to do so. However, that would seem an exercise in futility, where no evidence was asserted or presented to the circuit court attempting to support irreparable harm or a likelihood of success on the merits and where the circuit court essentially entered the order on its own.
It is clear that, at most, the circuit court had before it an allegation that MHC's insurance coverage consisted of a wasting policy, which if depleted by the costs of defense might diminish any possible future recovery by Goodman. However, harm is normally considered irreparable only when it cannot be adequately compensated by money damages or redressed in a court of law. See United Food & Commercial Workers Int'l Union v. Wal-Mart Stores, Inc., 353 Ark. 902, 120 S.W.3d 89 (2003). Goodman had no judgment at the time the restraining order was entered; therefore, it was unlikely that he would be irreparably harmed by any depletion of the policy proceeds to which he was not yet entitled. Here, the colloquy between the circuit court and counsel for the parties makes clear that the circuit court acted, in large part, of its own volition in issuing the restraining order, which is further indicated by the circuit court's entry of the restraining order,
MHC argues, for its final point on appeal, that the circuit court lacked authority to order MHC, in Order No. 3, to provide a complete history of attorneys' fees paid. MHC asserts that "a complete history" of fees paid, as ordered by the court, would require it to turn over attorney-client privileged information. Goodman counters that the circuit court's order was not injunctive in nature, but was an interlocutory discovery order that is not appealable except upon final judgment. We agree.
In Order No. 3, the circuit court, among other directives, ordered and directed MHC to
Prior to the order, the circuit court had, on its own motion, requested the net figures that the insurance companies had paid concerning claims, attorneys' fees, settlements in other cases, and other information. In compliance with that directive, defense counsel submitted a letter that provided the following:
We must first determine whether the circuit court's order to produce a complete history of fees is an appealable order. As noted, Goodman contends that it is not an injunctive or restraining order, which is appealable under Arkansas Rule of Appellate Procedure-Civil 2(a)(6) (2010). This court has defined "injunction" as "a command by a court to a person to do or refrain from doing a particular act." IBAC Corp. v. Becker, 371 Ark. 330, 333, 265 S.W.3d 755, 758 (2007). It is mandatory when it commands a person to do a specific
Here, the circuit court's order commands MHC to do a particular act — provide the circuit court and Goodman with a complete history of the funds paid under MHC's insurance policies. However, the mere fact that a circuit court orders something to be done in the progress of a case does not make that order a mandatory injunction. See Tate v. Sharpe, 300 Ark. 126, 777 S.W.2d 215 (1989). That is because
Id. at 129, 777 S.W.2d at 216-17 (internal citations omitted). While the order at issue addressed an inquiry raised by the circuit court, it did not serve to determine an issue in the complaint, i.e., whether negligence occurred or whether the insurance policy held by MHC was void. For that reason, it was not a mandatory injunction and, thus, is not appealable under Ark. R.App. P.-Civ. 2(a)(6). We turn then to the consideration of this order as an order of discovery. We have held that an order of discovery is not interlocutorily appealable. See Ford Motor Co. v. Harper, 353 Ark. 328, 107 S.W.3d 168 (2003) (holding that this court lacks jurisdiction to consider an interlocutory appeal relating to a discovery matter). But, too, we have held that neither a writ of prohibition nor a writ of certiorari will lie.
This court has previously held that because issues of discovery are squarely within a circuit court's jurisdiction, a writ of prohibition will not lie to solve a discovery problem. See Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993). Nor will this court issue a writ of certiorari in such an instance. MHC claims that compliance with the circuit court's order would require it
For these reasons, it seeks relief from this court.
Yet, in Chiodini v. Lock, 373 Ark. 88, 281 S.W.3d 728 (2008), we held that because a circuit court's discovery ruling is a matter well within the circuit court's jurisdiction and discretion, a writ of certiorari would not lie to correct any perceived error in the circuit court's ruling. In addition, we have observed that we have previously denied petitions for writs of
239 Ark. at 745-46, 393 S.W.2d at 871. For these same reasons, a petition for writ of certiorari will not lie here. Accordingly, we dismiss this portion of MHC's appeal.
Moot in part; reversed in part; dismissed in part.
