text:
    Phillip TRAVIS v. STATE of Arkansas
    CR 96-1466
    944 S.W.2d 96
    Supreme Court of Arkansas
    Opinion delivered May 5, 1997
    [Petition for rehearing denied June 9, 1997.]

      Rice, Adams & Pace, P.A., by: Kelly M. Pace, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

The appellant was convicted of rape and residential burglary. On appeal, he raises six point of error. We find no error and affirm.

At trial, the seventeen-year-old victim testified that on February 27, 1996, she was at home along with her brother, Christopher, who was eight. After the victim went to sleep with her brother late that night, she woke up to find a man holding a knife in her room. She described the individual as skinny and about six feet tall, with braided hair, and a large nose and lips. He wore a jacket or thick shirt with a blue and black square pattern. While the lights were not on in her room, she said that light came through her window because the blinds did not cover the entire window.

The victim'testified that her attacker told her to get up, placed the knife around her neck, and took her into her brother’s room, where he forced her to perform oral sex. He then made the victim get on the floor, ripped her panties, and attempted vaginal intercourse while he wore a condom. As she was being raped, she heard her brother yelling and pushing on the door, attempting to get into the room. When Christopher became quiet, the attacker ran out of the house.

The victim first called her boyfriend, Raymond Williams, who came over to the house. She then called the police sometime after 4:00 a.m. She told the police that she thought she might know who raped her from the way he looked and his voice. She explained that a man had been calling her over the phone prior to the rape; this man had explained to her during these phone conversations that he had obtained her number from Shelby Smith. This caller had described himself to her as fight-skinned, with braided hair, similar in looks to two rappers, one named “Mystical” and another from the group “Criss Cross.” The caller also told her that he wanted to come over to her house and that he lived at his sister’s house, which was behind the victim’s home. The victim told the caller that she had a boyfriend. The victim also told the caller when and where her mother worked. Eventually these phone calls became a problem, and the victim asked Shelby Smith to tell the caller to stop calling her. The victim testified that she was positive that the voice on the phone was the same as that of her assailant on the night of the rape.

On the day of the rape, the police went to the victim’s house and showed her a photo spread of six suspects. The victim immediately identified picture number three, Travis, as her attacker. She said she was positive picture number three was her assailant. The next day, she went to the police station where she was shown the same photo spread again, picking number three. The victim and her brother also made in-court identifications of Travis. The jury convicted Travis of rape and burglary, sentencing him to eighty and twenty years imprisonment, respectively. Travis now brings the present appeal, raising six points of error.

i. Sufficiency of the Evidence.

Travis initially challenges the sufficiency of the evidence to support his convictions. However, Travis has failed to preserve this issue for appellate review. At the close of the State’s case, defense counsel moved as follows:

In this case specifically, I guess, the State has failed to prove or to even show that there is any evidence to indicate that Phillip Travis specifically has engaged in any activity that would be constituted as rape and burglary in this matter.

The trial court denied this motion, and the defense later renewed at the end of their case:

Your honor, at this time I would like to renew my motion for directed verdict. Specifically that I stated, I don’t believe the State’s presented evidence to go to meet their burden on both counts of the residential burglary and the rape charge. Specifically I don’t believe, other than some broad generalized statements made from [the victim], there’s any other evidence at all connecting Phillip Travis to a crime.

Again, this motion was denied.

A directed-verdict motion based on insufficiency of the evidence must specify the respect in which the evidence is deficient. Ark. R. Crim. P. 33.1. As we stated in Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994), “a motion for a directed verdict in a criminal case must state the specific ground of the motion.” This court has also explained that the proof of the element of the crime that is alleged to be missing must be specifically identified in a motion for directed verdict. Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997); Lovelady v. State, 326 Ark. 196, 931 S.W.2d 430 (1996). In Webb, supra, the following motions were held to be general and thus insufficient for appellate review of the sufficiency of the evidence:

Your Honor, the defendant Anthony Webb would move for a directed verdict of acquittal, stating that the State has not provided a prima facie case of capital murder against Anthony Webb and makes a motion that the Court enter a finding of a directed verdict of acquittal on the charges of capital murder both as to Aurora Carney and James Graves and further wants to reallege and readopt the arguments and the contention about the admissions as previously made.
Your Honor, at this time the defense would renew its motion for a directed verdict of acquittal indicating that the State has not provided prima facie evidence of the defendant’s guilt of capital murder of either Aurora Carney or James Graves.

Likewise, the following motion and renewal was rejected as nonspecific so as to preserve sufficiency for appellate review in Lovelady, supra:

The defense would move that the charges against the defendant be dismissed on the basis that the State has failed to meet its burden of proof.

The State cites to Helton v. State, 320 Ark. 352, 896 S.W.2d 887 (1995), where the following motions were not sufficiently specific:

Make a motion at this time for a directed verdict on the charge of rape in that there’s not been significant evidence which would lead to a conclusion by the jury that he’s guilty of rape.
The defense renews its motions for a directed verdict on the grounds previously stated.

In the present case, Travis’s directed verdict motions likewise failed to specifically identify the proof of the element of the crime that was alleged to be missing. We thus decline to reach the merits of Travis’s challenge to the sufficiency of the evidence.

2. Special Judge.

Prior to the beginning of trial, the regular circuit judge was replaced by a special judge, and Travis’s jury trial was conducted before the special judge. On appeal, Travis brings two challenges to the special judge. The first is that the regular circuit judge was peculiarly qualified to hear the case, and thus the special judge should have stepped down. The second is a challenge to the special judge’s election.

On the day of trial, before the special judge, the following colloquy occurred after taking up a number of pre-trial matters:

SPECIAL JUDGE: Okay. All right. Is there anything else that is relevant that could potentially keep this case from proceeding?
PROSECUTOR: Not that Pm aware of.
DEFENSE COUNSEL: I think that since [the regular circuit judge] heard a couple of hearings on this matter and they’re pretty important. I know now the State’s raising some issues about specifically what information should and shouldn’t be kept in and out.
SPECIAL JUDGE: I’ve reviewed the record in that, Mr. Thompson, and unless you’re accusing Mrs. Ator of being untruthful now.
DEFENSE COUNSEL: No, that’s not the point Pm trying to get at. The point is since [the regular circuit judge] has already heard several hearings in this matter, we would rather [the regular circuit judge] try the case.
SPECIAL JUDGE: And if you’re making that motion, you, of course, have that right, and it’s within the Court’s discretion, and that’s going to be denied for right now.

Travis stated that he would “rather” have the regular circuit judge hear the case. The special judge treated this expressed preference as a motion, and denied it. Travis cites to no authority for the proposition that he has the right to a particular trial judge throughout the course of the trial simply because that judge had conducted certain preliminary hearings. The record does not show that the regular judge was peculiarly qualified to try the case. See Daley v. Boroughs, 310 Ark. 274, 835 S.W.2d 858 (1992). Moreover, the special judge specifically stated that she had reviewed the record with regard to the pretrial rulings made by the regular judge. Based on this record, we cannot say that the special judge abused her discretion in refusing to step down.

With regard to Travis’s constitutional attack on the special judge’s election, the State responds that Travis has failed to preserve this issue for review. We agree. Travis argues that he was denied his right “to have a special judge elected according to the Constitution of Arkansas.” For his sole citation to authority, he cites to Ark. Const, art. 7, § 21, governing the procedure for electing special judges, and our Administrative Order No. 1, which further prescribes the manner by which such judges shall be elected.

However, Travis failed to make a challenge to the special judge’s election below. We have often held that this court will not address arguments, even constitutional arguments, raised for the first time on appeal. Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997). The elections of special judges, including the reasons for the regular judge’s absence, are presumed to be valid. Daley v. Boroughs, 310 Ark. 274, 835 S.W.2d 858 (1992) (citing Titan Oil & Gas Co. v. Shipley, 257 Ark. 278, 517 S.W.2d 210 (1974)). Moreover, it is the appellant’s burden to produce a record showing that an attack on the election was made in the trial court. Titan Oil & Gas Co. v. Shipley, 257 Ark. 278, 517 S.W.2d 210 (1974).

Because the elections of special judges are presumed to be valid, and because the record fails to show any objection to the special judge’s election below, we are prevented from reaching the merits of Travis’s constitutional challenge.

3. AMCI 2d 9404 Jury Instruction.

For this point, the appellant argues that the trial court erred in instructing the jury about Travis’s potential parole eligibility, pursuant to AMCI 2d 9404. The thrust of his argument is that Arkansas’s statutory sentencing scheme, which includes the law applicable to parole as “evidence relevant to sentencing,” Ark. Code Ann. § 16-97-103(1) (Supp. 1995), is in conflict with our rules. Travis specifically cites Haynes v. State, 311 Ark. 651, 846 S.W.2d 179 (1993) (holding that “neither the trial court nor counsel should comment on parole”) and Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971) (holding that parole should not be discussed because the jury would be inclined to give excessive punishment), in support of his argument that Ark. Code Ann. § 16-97-103(1) is an evidentiary/procedural rule in conflict with our prior rulings, and thus an impermissible infringement by the legislature. This argument is without merit.

Since the enactment of the criminal code, we have said that sentencing is controlled by statute. See Cody v. State, 326 Ark. 85, 929 S.W.2d 159 (1996); Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981). Ark. Code Ann. § 16-97-103(1) was enacted as part of Act 535 of 1993, where the General Assembly made changes in procedures governing jury trials by providing for separate consideration of guilt and sentencing. Among other things, Act 535 defines what is “evidence relevant to sentencing,” part of which includes parole eligibility.

Simply put, Travis fails to cite to any express rule of this court with which Ark. Code Ann. § 16-97-103(1) conflicts. Our holdings to which Travis cites were handed down prior to the enactment of Act 535 of 1993. Because of the deference this court has given to the General Assembly in matters pertaining to sentencing, see Cody, supra, and because Travis fails to cite an express rule of this court which conflicts with Ark. Code Ann. § 16-97-103(1), we affirm as to this point.

4. Denial of Motion for Continuance.

On the day of trial, Travis moved for a continuance arguing that he had not had an adequate opportunity to view the crime scene or to locate individuals who could testify as to weather conditions on the night of the rape. The trial court denied the continuance, which Travis argues is reversible error.

The decision to grant or deny a continuance is within the sound discretion of the trial court, and the decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Turner v. State, 326 Ark. 115, 931 S.W.2d 86 (1996). Continuance motions are in part governed by Ark. R. Crim. P. 27.3, which provides as follows:

The court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.

This court has also identified several factors for the trial court’s consideration in deciding a continuance motion: (1) the diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the attendance of the witness in the event of a postponement; and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. Turner, supra; see also Ark. Code Ann. § 16-63-402(a) (1987). The appellant must also demonstrate prejudice from the denial of the continuance. Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996); Davis v. State, 318 Ark. 212, 885 S.W.2d 292 (1994).

On the day of trial, August 14, 1996, Travis argued that he did not have enough time to investigate lighting conditions on the night in question, claiming that he only discovered such evidence would be relevant when the victim testified at a pretrial hearing on July 19, 1996. However, we note that Travis failed to file an affidavit in substantial compliance with Ark. Code Ann. § 16-63-402(a). See Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995) (“trial court does not abuse its discretion in denying a request for continuance when the motion is not in substantial compliance with Ark. Code Ann. § 16-63-402(a)”). Moreover, based on these facts, we find that Travis has failed to demonstrate how he was prejudiced by the denial of the continuance. We cannot say that the trial court abused its discretion in denying the continuance on the day of trial.

5. Disclosure to Defendant under Ark. R. Crim. P. 17.1(a).

For this point, Travis claims that the trial court erred in allowing the introduction of testimony from the victim’s brother, Christopher, because the State failed to provide him with the brother’s statement, or the substance of his testimony, in violation of the State’s discovery obligations. It is undisputed that the State provided Christopher’s name and address to Travis as a potential witness. Ark. R. Crim. P. 17.1(a)(ii) also requires the State to disclose any written or recorded statements and the substance of any oral statements from the defendant or a codefendant.

The evidence simply suggests that the State had no written or recorded statements from Christopher. Travis instead relies on an exchange between the prosecutor and Christopher during his direct examination, where the prosecutor asks, “Did we talk about what happened to [the victim] in your house?”, to argue that Christopher had somehow provided a written or recorded statement to the State. Flowever, we have held that Ark. R. Crim. P. 17.1 (a)(i) does not require the State to disclose the substance of the testimony of the witnesses it intends to call. Donihoo v. State, 325 Ark. 483, 931 S.W.2d 69 (1996); Holloway v. State, 310 Ark. 473, 837 S.W.2d 464 (1992). We thus affirm as to this point.

6. In-Court Identification.

This court will not reverse a trial court’s ruling on the admissibility of an in-court identification unless the ruling is clearly erroneous under the totality of the circumstances. Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996). In determining whether an in-court identification is admissible, this court looks first at whether the pretrial identification procedure was unnecessarily suggestive or otherwise constitutionally suspect; it is the appellant’s burden to show that the pretrial identification procedure was suspect. Id. A pretrial identification violates the Due Process Clause when there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the culprit. Id. This court will not inject itself into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification. King v. State, 323 Ark. 558, 916 S.W.2d 725 (1996); Moore v. State, 304 Ark. 558, 803 S.W.2d 552 (1991).

For this point, Travis fails to explain in what manner the actual photo lineup was unduly suggestive. Rather, he argues that the victim’s identification is unreliable because she may have obtained a physical description of him from previous telephone calls, and not from actually seeing him during the rape. This is simply a credibility argument, and has nothing to do with how the photo lineup itself may have been unduly suggestive.

A review of the photo lineup shows that it contains photographs of six African-American males, who all have similar hair and facial features. The victim testified that when she was shown the photo spread by the police, no one else suggested who she should pick out. Detective Ingram, who assembled the photo spread, testified that in choosing the pictures, he considered “the age group, the facial features, the type of hair, race, all being pretty much the same.” Based on these facts, Travis has failed to meet his burden to show that the photo lineup was unnecessarily suggestive or otherwise constitutionally suspect. Accordingly, we cannot say that the trial court was clearly erroneous in upholding the admissibility of the in-court identification.

Affirmed.


source: Caselaw Access Project

author: Annabelle Clinton Imber, Justice.

license: Public Domain

text:
    The UNBORN CHILD AMENDMENT COMMITTEE, et al. v. Dr. Harry WARD, et al.
    93-1149
    943 S.W.2d 591
    Supreme Court of Arkansas
    Opinion delivered May 5, 1997

      Rutherford Institute of Arkansas, Inc., by: Lavenski R. Smith and David G. Nixon, for appellants.

      Fred H. Harrison, General Counsel, University of Arkansas, and Winston Bryant, Att’y Gen., by: Jeffrey A. Bell, Deputy Att’y Gen., for appellees.
   Annabelle Clinton Imber, Justice.

Amendment 68 to the Arkansas Constitution prohibits the use of public funds to pay for abortions, except to save the mother’s life. The appellants allege that the performance of abortions at UAMS, other than for the purpose of saving the mother’s life, violates Amendment 68. The chancery court enjoined UAMS from performing abortions, other than those to save the mother’s life, unless the patient paid for the abortion in advance, or furnished sufficient guarantee of payment by a third-party provider. We affirm.

In the 1988 general election, the Arkansas electorate adopted Amendment 68 to the Arkansas Constitution by a vote of 398,107 for and 368,117 against. In its entirety, the amendment provides as follows:

§ 1. Public funding.
No public funds will be used to pay for any abortion, except to save the mother’s life.
§ 2. Public policy.
The policy of Arkansas is to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution.
§ 3. Effect of amendment.
This amendment will not affect contraceptives or require an appropriation of public funds.

On August 8, 1991, the Unborn Child Amendment Committee, Jerry Cox, the Family Council, Larry Page, and the Christian Civic Foundation filed a complaint in Pulaski County chancery court seeking declaratory relief against the University of Arkansas for Medical Sciences. The Committee alleged that abortions were performed at UAMS, some of which were not for the purpose of saving the mother’s life, in violation of Amendment 68. The complaint specifically alleged that these abortions were in violation of Sections 1 and 2 of Amendment 68, and stated that such abortions constituted an illegal exaction. Among other things, the Committee requested that the chancellor declare as “public funds” all funds received or expended by UAMS, a declaration that all abortions performed at UAMS necessarily involve the expenditure of “public funds,” and a declaration that all abortions performed at UAMS not necessary to save the life of the mother were in violation of Sections 1 and 2 of Amendment 68. The Committee also sought injunctive relief against UAMS prohibiting all abortions except those to save the mother’s life.

In July of 1991, the chancellor entered a preliminary injunction that prohibited UAMS from performing abortions other than those to save the mother’s life, unless the patient paid in advance for the cost of the abortion, or furnished sufficient guarantee of payment by a third-party provider. The case was eventually consolidated with two substantially similar cases against UAMS, brought by plaintiffs Ralph Forbes and Melissa Knowlton. Both the Committee and UAMS moved for summary judgment. After a hearing on the matter, the chancellor rendered her order on June 30, 1993, which denied both motions for summary judgment, but issued an order and permanent injunction that substantially reflected the preliminary injunction.

The chancellor found that funds appropriated to UAMS, as well as revenues received from patients, were “public funds” as that term was used in Amendment 68. Accordingly, UAMS’s use of funds from full-paying patients to cover the cost of abortions for those patients who did not pay in full was prohibited by the amendment. However, the chancellor ruled that the amendment did not prohibit the performance of abortions at public facilities or by public employees, nor did it prohibit UAMS from performing abortions for patients who either paid for their abortions or who secured payment from a third-party provider. Accordingly, the chancellor enjoined UAMS from performing abortions, other than those to save the life of the mother, unless the patient paid for the cost of the abortion in advance or sufficiently guaranteed payment by a third-party provider. UAMS was also directed to take all steps reasonably necessary to ensure that all those paying for abortions do in fact pay for the direct and indirect costs of the abortion procedure. To that end, the trial court ordered UAMS to maintain cost figures based on all usual and customary calculations that would be made by a prudent individual making such a cost assessment. The trial court also declined to hold that Amendment 68, section 2, was anything more than a statement of public policy which was not a self-executing provision. On June 30, 1993, the Committee filed its notice of appeal from this order and permanent injunction.

Subsequently, a lawsuit was filed challenging Amendment 68 in the United States District Court, Eastern District of Arkansas, Little Rock Division, styled Little Rock Family Planning Sews., P.A. v. Dalton, No. LR-C-93-803. At issue in that case was whether Amendment 68 conflicted with the fiscal-year 1994 version of the Hyde Amendment, The Department of Labor, Health & Human Services, & Education, & Related Agencies Appropriations Act of 1994, § 509, Pub. L. No. 103-112, 107 Stat. 1082, 1113 (1993). This version of the Hyde Amendment amended Title XIX of the Social Security Act of 1965 (commonly referred to as the Medicaid program) to prohibit federal reimbursements to participating states for an abortion unless “such procedure is necessary to save the life of the mother or that the pregnancy is the result of an act of rape or incest.” Id.

On July 25, 1994, the district court held that under the Supremacy Clause, the Hyde Amendment preempted Amendment 68. Little Rock Family Planning Servs., P.A. v. Dalton, 860 F. Supp. 609 (E.D. Ark. 1994). While recognizing that states were not constitutionally required to pay for abortions, compliance with the Hyde Amendment (and hence eligibility for federal Medicaid funding), required that Amendment 68 establish two additional classes of funding for rape and incest victims. The district court reasoned that it was powerless to rewrite Amendment 68, and thus concluded that “the Amendment must be stricken in its entirety, to enable the people or their elected representatives to decide how Arkansas will cover abortion in the state Medicaid program so that it will not conflict with federal law.” Id.

UAMS then moved to stay the proceedings in the present case pending the disposition of the appeal in the federal case. This court denied the motion, and the present case was submitted and argued orally on September 19, 1994. However, we reconsidered the motion and opted to stay further proceedings, in addition to staying the order and permanent injunction ordered by the trial court. Unborn Child Amendment Comm. v. Ward, 318 Ark. 165, 883 S.W.2d 817 (1994).

On July 25, 1995, the Court of Appeals for the Eighth Circuit affirmed the district court. Little Rock Family Planning Servs., P.A. v. Dalton, 60 F.3d 497 (8th Cir. 1995). The United States Supreme Court granted certiorari in part, and reversed the Eighth Circuit. Dalton v. Little Rock Family Planning Sews., P.A., 116 S. Ct. 1063 (1996) (per curiam). The Court held that the district court’s order striking Amendment 68 in its entirety was over-broad. Because the challenge to Amendment 68 only involved its conflict with Title XIX, “it was improper to enjoin its application to funding that does not involve the Medicaid program.” Id. Furthermore, the Court emphasized that the Hyde Amendment was not permanent legislation, but instead part of the appropriation statute for certain executive departments in a given fiscal year. Because there had been different versions of the Hyde Amendment in the past, the temporal scope of the district court’s order was overbroad, given that a different version of the Hyde Amendment might be enacted in the future. Finally, to the extent that Section 1 of Amendment 68 had substantial application allowed under the Supremacy Clause, Sections 2 and 3 of the amendment were viable as well. In sum, the Supreme Court reversed the Eighth Circuit decision affirming the scope of the injunction, and remanded for the entry of an order enjoining Amendment 68 only to the extent that it conflicted with federal law. On August 9, 1996, the district court entered an order providing that “Arkansas Amendment 68 is. . . null and void, and its enforcement enjoined, to the extent it prohibits the use of state funds to pay for abortions for Medicaid eligible victims of rape or incest, for so long as the federal law mandates Medicaid funding for abortions for Medicaid eligible victims of rape or incest.”

On January 27, 1997, the Committee moved this court to release the stay on the proceedings, arguing that the federal case was now concluded rendering the present appeal ripe for adjudication; UAMS likewise joined in this request. We agree and now reach the merits of the Committee’s appeal. However, we must first take note of the United States Supreme Court’s holding in Dalton, supra. Whatever construction we now give to Amendment 68, with regard to Medicaid patients in situations involving rape or incest, the amendment must give way to the Hyde Amendment to Title XIX so long as Arkansas participates in the Medicaid program, and the current version of the Hyde Amendment remains in effect. Dalton, supra.

Í. Appellate Jurisdiction.

The Committee first purports to appeal from the chancellor’s denial of its motion for summary judgment. It is well settled that this court does not review the denial of a motion for summary judgment. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997); Ball v. Foehner, 326 Ark. 409, 931 S.W.2d 142 (1996); Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996). However, we nonetheless reach the merits of the Committee’s case as an appeal from the trial court’s order and permanent injunction.

2. The Committee’s Challenges Under Amendment 68.

On appeal, the Committee brings a number of challenges to the chancellor’s order and permanent injunction. All of these points relate to the plain language of Amendment 68, Section 1, and whether “public funds” are being used to “pay for” abortions. The Committee’s broadest argument is that Amendment 68 constitutes a per se bar to the use of any public facilities or public employees to perform an abortion. Thus, when these facilities and employees are either directly or indirectly used in the performance of an abortion, public funds are being used to pay for the cost of an abortion. The Committee contends alternatively that if Amendment 68 does not constitute a per se bar, then the chancellor’s order and injunction, which allows a patient to pay in advance or to furnish guarantee of payment by a third-party provider violates Amendment 68 because UAMS cannot determine the cost of an abortion. Additionally, a patient may pay in advance and then incur additional costs in the abortion procedure that were not calculated in the original charge. If the patient cannot pay the additional cost, the Committee maintains that the state is using public funds to pay for the cost of an abortion. The Committee also argues that even if a third-party provider guarantees later payment, the state is effectively financing the cost of an abortion in the interim. Finally, the Committee bolsters its arguments with Section 2 of the amendment, its statement of public policy. The Committee asserts that the level of state involvement in abortions allowed under the trial court’s order and injunction is in violation of the amendment’s express statement of public policy.

a. Amendment 68, Section 2 Public Policy.

We initially address the Committee’s reliance on Section 2 of the amendment. In Knowlton v. Ward, 318 Ark. 867, 889 S.W.2d 721 (1994), we held that Section 2 was indeed a mere expression of Arkansas’s public policy. There we said that Section 2 “does not provide any means by which the policy is to be effectuated and therefore cannot be considered a self-executing provision.” Id. Accordingly, we decline to construe Section 2 as prohibiting the injunction imposed by the chancellor on UAMS.

b. Amendment 68, Section Í —■ Per Se Violation Analysis.

We next consider the Committee’s contention that the performance of abortions at UAMS is a per se violation of Amendment 68. The Committee agrees with the trial court’s finding that “[t]he term ‘public funds’ as used in Amendment 68, Section 1 of the Constitution does not refer to tax revenues, but rather to any public monies belonging to the State.” Such a construction of “public funds” is consistent with our prior cases. See Sebastian County Chapter v. Weatherford, 311 Ark. 656, 846 S.W.2d 641 (1993) (giving term “public funds” as used in FOIA its plain and ordinary meaning - “moneys belonging to government.”). The Committee nonetheless argues that the chancellor’s order and injunction — permitting abortions where the individual pays in advance or furnishes guarantee of payment by a third-party provider ■— is an erroneous interpretation of Amendment 68’s prohibition of the use of public funds to pay for any abortion except to save the mother’s life.

In examining the language contained in Amendment 68, Section 1, we have stated as follows:

Section 1 of Amendment 68 proscribes the use of public funds to “pay for any abortion.” In construing the meaning of this provision we apply the same rules governing the construction of legislative statutes. Gazaway v. Greene County Equalization Board, 314 Ark. 569, 864 S.W.2d 233 (1993); Faubus v. Kinney, 239 Ark. 443, 389 S.W.2d 887 (1965). The fundamental rule is that the words of the constitution or statute should ordinarily be given their obvious and natural meaning. Gipson v. Maner, 225 Ark. 976, 287 S.W.2d 467 (1956). If the language used in a constitutional provision is plain and unambiguous, the court should not seek other aides of interpretation in determining the intent of the framers and voters. Ellison v. Oliver, 147 Ark. 252, 227 S.W. 586 (1921).

Knowlton v. Ward, 318 Ark. 867, 889 S.W.2d 721 (1994). In Knowlton, supra, this court further explained that “ [i]t hardly seems possible that any other language could be used to explain more plainly or unambiguously the purpose or meaning of the phrase, ‘to pay for any abortion.’” Accordingly, for any entity to be in violation of Amendment 68, Section 1, the challenging party must provide the following proof:

1. That abortions were performed at the entity that were paid for with public funds; or
2. That the entity paid for, with public funds, abortions that were performed elsewhere.

Knowlton, supra.

Knowlton provides an illustration of how this standard works. As stated above, Knowlton was actually a companion case to the present case. Knowlton initially sued both UAMS and the Arkansas Genetics Program, which was a part of UAMS. Knowlton specifically alleged that AGP provided abortions in violation of Amendment 68. UAMS moved for partial summary judgment and to dismiss AGP as a party, which the chancellor granted. The dismissal of AGP occurred prior to the consolidation of Knowlton’s case with that of the Committee and Forbes.

The evidence revealed that AGP did not actually perform abortions, but that it provided medical care in support of individuals affected with various genetic disorders and birth defects, and that it informed families who have, or might have, pregnancies that are at risk of an adverse outcome. Knowlton argued that Amendment 68 not only prohibited the use of public funds to pay for the performance of abortions, but that “it also prohibits the use of public funds to pay for any activity that might further or advance the performance of abortions.” Knowlton, supra (emphasis in original). This court concluded that Section 1 was plain and unambiguous, and that Knowlton had simply failed to offer proof to support her case under the section. We stated that “[t]he plain and unambiguous meaning of [Section 1] does not prohibit the ‘testing, diagnosis, and counseling to families during the preconceptional, prenatal and postnatal periods’ that is performed by AGP.” Knowlton, supra.

Similarly, in Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992) (per curiam), the petitioner was involved in a juvenile proceeding where she was placed in the custody of DHS because she was in substantial risk of serious harm. The trial court ruled that the juvenile could not terminate her pregnancy without an order of the court relying in part on Amendment 68:

Amendment 68 also prohibits the use of public funds for an abortion. The State of Arkansas has already, and will continue expending public funds for the care of the minor during pregnancy and would indirectly or direcdy expend funds for the care of the minor child while in custody of the state after termination of the pregnancy in violation of Amendment 68.

Id.

On petition for writ of certiorari to this court, we vacated the portion of the juvenile judge’s order enjoining the juvenile or her attending physicians from terminating her pregnancy. In doing so, we dismissed the trial court’s reliance on Amendment 68 as irrelevant, because the juvenile had failed to request public funds.

As is apparent from Knowlton, supra, and Crabtree, supra, Amendment 68, Section 1 does not prohibit the use of public funds to pay for any activity that might further or advance the performance of abortions. Instead, it prohibits the use of public funds to “pay for” abortions, except where necessary to save the life of the mother. Black’s Law Dictionary, 6th ed. (1990), defines the verb “pay” in part as “[t]o compensate for goods, services or labor.” Webster’s Ninth New Collegiate Dictionary (1991) defines “pay” as “to make due return to for services rendered,” or “to give in return for goods or service.” Thus, the phrase “pay for” plainly implicates an exchange in return for services. Under the Committee’s theory, the salaries of UAMS employees, the public funds used to construct and maintain UAMS buildings, and the monies used to purchase medical supplies are all being used to pay for abortions when abortions are allowed to take place at UAMS. This broad construction of Section 1 is far beyond the scope of the plain meaning of the word “pay.”

We have already held that Amendment 68 does not prohibit the use of public funds to pay for any activity that might further or advance the performance of abortions. See Knowlton, supra; Crabtree, supra. The Committee’s assertion that Amendment 68 generally prohibits the use of public buildings or the use of publicly paid employees to perform abortions ignores the plain language of Amendment 68. The use of public funds must go to “pay for” an abortion in order for the prohibition to apply. Amendment 68 does not prohibit the use of things paid for by public funds, but it does plainly prohibit payment for abortions with public funds.

This conclusion is supported by an examination of laws in other jurisdictions that have expressly prohibited not only the use of public funds to pay for abortions, but also the use of public buildings or public employees to perform abortions. For example, UAMS cites Webster v. Reproductive Health Servs., 492 U.S. 490 (1989), where the United States Supreme Court upheld Missouri statutes limiting public resources that could be used to perform abortions. The Missouri statutes upheld in Webster expressly prohibited a public employee from performing or assisting with an abortion, except to save the mother’s life. Similarly, the law expressly prohibited the use of a public building to perform an abortion, and the use of “public funds, employees, or facilities for the purpose of ‘encouraging or counseling’ a woman to have an abortion except to save her life.” The Court ultimately reasoned that:

Having held that the State’s refusal to fund abortions does not violate Roe v. Wade, it strains logic to reach a contrary result for the use of public facilities and employees. If the State may “make a value judgment favoring childbirth over abortion and . . . implement that judgment by the allocation of public funds,” (citation omitted), surely it may do so through the allocation of other public resources, such as hospitals and medical staff.

Id. (emphasis added). Thus, the Webster Court recognized how the Missouri statutes encompassed different public resources. Not only did they permissibly prohibit public funding, but they also prohibited the use of public facilities and public employees.

By its plain language, the Missouri prohibition considered in Webster appears broader than the one found in Amendment 68. Similarly, other states have seen fit to place broad limits on the amount of public resources that may be expended with regard to abortions. For example, La. Rev. Stat. Ann. § 1299.34.5 (enjoined from enforcement insofar as it conflicts with Hyde Amendment to Title XIX, Hope Medical Group v. Edwards, 860 F. Supp. 1149 (E.D. La. 1994)), provides in part that:

[N]o public funds, made available to any institution, board, commission, department, agency, official, or employee of the state of Louisiana. . . whether such funds are made available by [any government subdivision], or from any other public source shall be used in any way for, to assist in, or to provide facilities for an abortion, except when the abortion is medically necessary to save the mother’s life.

(Emphasis added.) The prohibition found in Amendment 68, Section 1 appears more narrow than the one contained in the Louisiana statute. Compare Ky. Rev. Stat. Ann. § 311.715 (“no public funds shall be used for the purpose of obtaining an abortion”) and N.D. Cent. Code § 14-02.3-01 (“no funds of this state. . . may be used to pay for the performance, or for promoting the performance, of an abortion”) with Ky. Rev. Stat. Ann. §311.800(1) (“no publicly owned hospital. . . shall perform or permit the performance of abortions”) and N.D. Cent. Code § 14— 02.3-04 (“no person may authorize or perform an abortion in a hospital owned, maintained, or operated within the state by the state”); see also Ariz. Rev. Stat. Ann. § 35-196.02 (“no public funds. . . may be expended for payment to any person or entity for the performance of any abortion. . . .”); Colo. Const. Art. V., § 50 (“No public funds shall be used. . . to pay or otherwise reimburse, either directly or indirectly, any person, agency or facility for the performance of. . . [an] abortion”); Ohio Rev. Code Ann. § 5101.55(C) (“public funds shall not be used to subsidize an abortion”); Pa. Stat. Ann. tit. 62, § 453 (“no [public] funds. . . shall be expended by any State or local government agency for the performance of abortion.”); S.D. Codified Laws Ann. § 28-6-4.5 (“No funds of the state. . . shall be authorized or paid to or on behalf of any person or entity for or in connection with any abortion. . . .”).

Giving the phrase “pay for” its plain and ordinary meaning — compensation for a service — we reject the Committee’s argument that Amendment 68 erects a per se bar to abortions performed at UAMS other than those to save the life of the mother, where patients pay for the cost in advance or furnish guarantee of payment by a third-party provider. Simply put, if a patient or third-party provider pays for the cost of an abortion per the chancellor’s order and permanent injunction, it cannot then be said that public funds are being used to pay for that abortion. Thus, there is no per se Amendment 68 violation when such an abortion is performed in a public hospital or by a public employee. Therefore, we affirm the chancellor’s ruling that Amendment 68 does not prohibit the performance of abortions at public facilities and by public employees, and does not prohibit UAMS from performing abortions for patients who either paid for their abortions or secured payment from a third-party provider.

c. Amendment 68, Section Í As Applied Violation Analysis.

The Committee further contends that UAMS cannot determine the cost of an abortion, thereby preventing UAMS from accurately charging patients for the cost of the procedure. A corollary of this argument is that the state will effectively finance abortions in violation of Amendment 68 when actual charges remain unpaid by patients, or in the interim period where payment of charges is guaranteed by a third party. The Committee, as the challenger in this case, bears the burden of proving that UAMS cannot determine the cost of an abortion, or that the amount UAMS charged does not cover the actual cost of the procedure.

Dr. Harry Ward, the chancellor of UAMS and a named defendant-appellee, testified that a separate line for indigent care in the appropriations bill for UAMS would not be used for the OB-GYN service because it was a self-supporting service. Likewise, there were no staff-members in the OB-GYN department who were there specifically to perform abortions. According to Dr. Ward, “if this [abortion] program was closed tomorrow, there would be no change of staff or anything.” Physician’s salaries are calculated from a figure initially recommended by the dean of the College of Medicine, and are paid in part by the state and in part by the cash funds generated through the Medical College Physicians Group (MCPG). Likewise, there was no equipment specifically designated for use in abortions at UAMS. In other words, the equipment used for abortions was also used throughout the entire OB-GYN program.

Regarding billing for services at UAMS, Dr. Ward explained that patients received two bills. One was from the hospital, and the other was from the physician. The physician’s bill was prepared by and paid into the MCPG. In his deposition, Howard Rutenberg stated that various overhead and indirect factors were considered in arriving at the amount that the hospital charged for its services. Factors such as the cost of acquiring and servicing equipment, and the cost of supply items used in association with the equipment, and the costs of manpower were all figured in. When asked how UAMS charges compared with comparable charges in the community, Rutenberg answered that UAMS charges were generally higher, because UAMS was a teaching facility and as such had to cover education costs not existing at other hospitals. David Fleron stated that the hospital covered its direct costs “and then some.” In fact, the UAMS campus needed the additional revenue to function, because the hospital generated 65 to 70 percent of the total revenue for the campus.

Dr. Ward testified that UAMS, as well as all other hospitals, used an accounting system known as “cost-transfer” in determining the amount a patient is charged. When certain patients do not pay their bill in full, the deficit is made up by patients who are paying their full charges. Dr. Ward further testified that about sixty percent of patients in the abortion program fully paid, and that these full-paying patients provided UAMS with enough revenue to cover those patients who did not pay in full.

Richard Jones, the director of finance at University Hospital, testified that a number of costs incurred in running the hospital were not allocated directly to the hospital’s budget. However, a cost report required by the Health Care Financing Administration was nonetheless prepared to provide a methodology for allocating those indirect costs to the hospital in order to justify reimbursement under the Medicare program. Jones said that he was not aware of any study done at UAMS to determine the cost of an abortion. Moreover, he testified that charges for some services may not cover the cost of those services, whereas charges for other services may exceed their cost. However, he also testified that “when we establish our prices, we establish our prices for all items in total to cover our costs.” Dr. Ward testified that on the physician side of billing, the amount charged for a procedure was figured on a number of different bases, one of which was the “reasonable and customary charges that are approved charges through. . . insurance companies, through. . . third-party payers.” Howard Rutenberg testified that on the hospital side of billing, “We try to cover all of those costs [direct and indirect] in pricing our service.” With regard to the specific charge a patient was billed for an abortion, Dr. Ward testified that the hospital fees were usually somewhere between $1,500 and $2,000.

We agree with the Committee that to the extent UAMS incurs actual costs in performing an abortion, and these costs go uncharged and unpaid, public funds are being used to pay for abortions. This conclusion is reflected in the trial court’s holding that UAMS’s method of cost transfer, where revenues from full-pay patients were used to cover the costs of those who did not make full payment, violated Amendment 68. However, in light of the above-recited evidence, it is plain that the Committee failed to meet its burden to prove that UAMS could not accurately determine the cost of an abortion. Rather, the weight of the evidence suggests that UAMS attempted to cover all of its direct and indirect costs in arriving at a charge for a procedure, both on the hospital and physician side of billing. In fact, it appears that the charges billed by UAMS far exceed costs, since full-pay patients cover the costs of those patients who do not pay. Moreover, the trial court ordered UAMS to “take all steps reasonably necessary” to guarantee that patients pay for their abortions, and that it maintain “appropriate cost figures to ensure that amounts charged to patients cover the direct and indirect costs of an abortion, such cost figures to be a reasonable assessment based on all usual and customary calculations that would be made by a prudent individual making such cost assessment regarding the costs of any procedure to be performed in a hospital.” Thus, to the extent that UAMS may not have included all of its direct and indirect costs in calculating their charge to a particular patient in the past, they must do so now under the express terms of the trial court’s order and injunction. We cannot say that the trial court erred in finding that the direct and indirect costs of an abortion could be reasonably calculated, and ordering UAMS to take all steps reasonably necessary to ensure that its charge does in fact cover those calculated costs.

The Committee next argues that under the chancellor’s order and injunction, the state will effectively finance abortions when actual charges go unpaid, or in the interim period where payment of charges is guaranteed by a third party. Although there is practically no empirical accounting or billing data in the record, the Committee highlights a letter from the office of the general counsel of the University of Arkansas detailing abortions performed at UAMS since the preliminary injunction (and thus under the court-ordered payment system) through June 1, 1992. The letter shows that during this time period, the hospital’s initial charge, inclusive of physician services, was $2,500, even though it was later raised to $4,000. This data shows that ten abortions were performed, three being self-pay, and the rest paid either through Medicaid or Blue Cross/Blue Shield, or through some form of commercial insurance. Of the three self-pay abortions, only one patient had paid her balance in full. One self-pay patient reflected an outstanding balance of $721.05, and the other showed an outstanding balance of $4,484.55. Similarly, three of the patients covered by a third party showed an outstanding balance for their procedures.

Again, we note that to the extent that actual costs of the abortion procedure, either direct or indirect, go unpaid by the patient or third-party provider, there is a violation of Amendment 68. That being said, we note that the Committee failed to obtain a specific ruling from the trial court whether UAMS had in fact violated the preliminary injunction. The evidence that is contained in the letter, that charges have gone unpaid, is not necessarily dispositive of the issue of whether those patients paid for the costs of their procedure. The charges in those cases may have in fact exceeded the cost of the procedure. On the record before us, these facts are simply unknown. Thus, to the extent that there might be evidence suggesting that actual charges have gone unpaid in the past, we decline to reverse the chancellor’s order and injunction on that ground.

Affirmed.

Brown and Thornton, JJ., not participating.

Special Justice JoAnn C. Maxey joins in the opinion.

       Knowlton’s appeal was disposed of in Knowlton v. Ward, 318 Ark. 867, 889 S.W.2d 721 (1994).

       Ward testified to a “sliding-scale” method of billing based on the evaluation of each patient’s financial situation:
      And like all hospitals, we have a sliding scale that’s based on their income and their number of members in the family, and then their bill represents a certain percentage of the overall bill. And a sliding scale could go all the way down to zero. I don’t know how many paid fifty percent of their bill, or seventy-five percent of their bill, or zero of their bill.

       Later evidence suggests that the typical charge for an abortion was in the $4,000 range.


author: Per Curiam.

text:
    CHICKASAW CHEMICAL COMPANY v. Thom E. BEASLEY, Administrator of the Estate of Harry Beasley, Deceased, Vance Beasley, D/B/A Beasley & Son, a Partnership
    97-375
    944 S.W.2d 511
    Supreme Court of Arkansas
    Opinion delivered May 5, 1997

      William P. Rainey, for appellant.

      Easley, Hicky, Cline & Hudson, by: Preston G. Hicky, for appellees.
   Per Curiam.

Appellees, Tom E. Beasley, Executor of the Estate of Harry Beasley, Deceased, and Vance Beasley, d/b/a Beasley & Son, a Partnership (Beasley), move the court for a dismissal of the appeal filed by appellant, Chickasaw Chemical Company. The motion is premised on the fact that the first notice of appeal filed by Chickasaw Chemical was not timely and that the motion for extension of time was also untimely. We agree with Beasley on both counts and grant the motion.

On September 6, 1996, judgment was entered in this matter in favor of Beasley. On September 16, 1996, Chickasaw Chemical filed motions for a new trial and for a judgment notwithstanding the verdict. On September 30, 1996, the motions were denied by the trial court in open court. On October 2, 1996, Chickasaw Chemical filed its notice of appeal.

On October 8, 1996, the order denying Chickasaw Chemical’s motions for new trial and for judgment notwithstanding the verdict was entered by the trial court. On November 18, 1996, Chickasaw Chemical moved for an extension of time to file a notice of appeal. The motion for an extension was heard by the trial court, and on December 2, 1996, an order was entered by the trial court denying the motion. On December 3, 1996, Chickasaw Chemical filed a second notice of appeal from the original judgment, the order denying the post-judgment motions, and the order denying the extension of time in which to file an appeal.

The notice of appeal was not timely filed in this matter. The first notice of appeal was filed on October 2, 1996, before judgment was entered and, thus, was a nullity. Kimble v. Gray, 313 Ark. 373, 853 S.W.2d 890 (1993). See also Ark. R. App. P. — Civ. 4. A notice of appeal was required to be filed within 30 days from the date the order was entered on October 8, 1996, and this was not done. Ordinarily, the trial court would have lost jurisdiction of this matter when a notice of appeal was not filed. Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991). See also Deason v. Farmers & Merchants Bank, 299 Ark. 167, 771 S.W.2d 749 (1989). However, under Ark. R. App. P. — Civ. 4(a), upon a showing of failure to receive a judgment, a party may move for an extension of time to file the notice of appeal:

Upon a showing of failure to receive notice of the judgment, decree or order from which appeal is sought, the trial court may extend the time for filing the notice of appeal by any party for a period not to exceed sixty (60) days from the expiration of the time otherwise prescribed by these rules. Such an extension may be granted before or after the time otherwise prescribed by these rules has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate. (Emphasis added.)

As Chickasaw Chemical points out, Rule 4(a) permits a request for an extension of time even after the time for a notice of appeal has expired. But that is conditioned upon failure to receive notice of the order from which the appeal is sought. Chickasaw Chemical maintains that it did not receive a copy of the order denying the motions. Beasley disagrees. Nevertheless, Chickasaw Chemical should have been aware of the deemed-denied date for its posttrial motions and the fact that a notice of appeal was required to be filed within 30 days from that date, which was by November 15, 1996. Neither a notice of appeal nor a motion for extension of time was filed by that date. Under these facts, we conclude that the narrow exception set out in Rule 4(a) does not apply.

Motion granted.

       As a collateral point, the partial record provided by Beasley contains an affidavit from the court reporter in which she states that the tapes and the transcript of the trial in this matter have been lost or stolen.


text:
    Hilberto HERNANDEZ v. STATE of Arkansas
    CR 97-451
    942 S.W.2d 866
    Supreme Court of Arkansas
    Opinion delivered May 5, 1997

      Constance G. Grayson, for appellant.
    No response.
   Per Curiam.

Hilberto Hernandez, by his attorney, has filed a motion for a rule on the clerk.

His attorney, Constance G. Grayson, admits in her motion that the record was tendered late due to a mistake on her part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: David Newbern, Justice.

text:
    DIRECT GENERAL INSURANCE COMPANY, MSI Insurance Company, Direct General Insurance Agency, Inc., A. C. Payne, and John Does 1-275 v. Jolanda LANE
    96-1554
    944 S.W.2d 528
    Supreme Court of Arkansas
    Opinion delivered May 12, 1997

      Mitchell, Williams, Selig, Gates & Woodyard PLLC, by: Byron Freeland, for appellants.

      Allen Law Firm, by: H. William Allen, for appellee.
   David Newbern, Justice.

Direct Insurance Company and the other appellants have brought this interlocutory appeal from the Trial Court’s order certifying a class action. See Ark. R. App. P. — Civ. 2(a)(9). We will refer to the appellants collectively as “Direct Insurance.” Jolanda Lane, the appellee, brought an action against Direct Insurance on her own behalf and proposed to represent two subclasses of individuals who entered into agreements with Direct Insurance for the purpose of financing the premiums for their automobile liability insurance policies. Ms. Lane alleged that she and other individuals were charged a usurious interest rate in violation of Ark. Const, art. 19, § 13, and that certain aspects of the premium-finance agreements violated the federal Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601-1693 (1994), and the regulations promulgated thereunder, including Regulation Z, 12 C.F.R. § 226.1. Ms. Lane sought damages under these federal provisions and under Arkansas usury law.

The Trial Court held a hearing on the certification motion, which was resisted by Direct Insurance. Pursuant to Ark. R. Civ. P. 23, the Trial Court granted Ms. Lane’s motion and permitted her to act as the representative of one subclass of individuals asserting usury claims and a second subclass asserting TILA claims. On appeal, Direct Insurance contends that the Trial Court’s certification order should be reversed because Ms. Lane’s claim is not typical of the claims of the other class members and because Ms. Lane will not fairly and adequately protect the interests of the two subclasses. We hold that the Trial Court did not abuse its discretion in certifying the class action and affirm.

In determining whether to certify a class action, a trial court must consider the factors set forth in Ark. R. Civ. P. 23, which provides in part as follows:

(a) Prerequisites to Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.....

Direct Insurance does not argue that the “numerosity” and “commonality” elements under subdivision (a) of the rule, or the “predominance” and “superiority” elements under subdivision (b) of the rule, are not satisfied. Rather, Direct Insurance asserts only that the Trial Court erred in finding that the “typicality” and “adequacy of representation” elements under Rule 23(a) were satisfied. Given the “longstanding rule that the trial judge has broad discretion in matters of class certification,” Union Nat’l Bank v. Barnhart, 308 Ark. 190, 197, 823 S.W.2d 878, 881 (1992), we conclude that the Trial Court’s order in this case must be affirmed. See also First Nat’l Bank v. Mercantile Bank, 304 Ark. 196, 200, 801 S.W.2d 38, 40 (1990) (“We have consistently recognized that the trial judge has broad discretion as to whether or not a class should be certified.”).

1. Typicality

We explained in Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991), that a representative’s claim is typical of the class members’ claims under Rule 23(a)(3) if the representative’s claim arises from the same wrong allegedly committed against the class. Quoting a passage from Professor New-berg’s treatise on class actions, we said:

Typicality determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct. In other words, when such a relationship is shown, a plaintiffs injury arises from or is directly related to a wrong to a class, and that wrong includes the wrong to the plaintiff. Thus, a plaintiff s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory. When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of varying fact patterns which underlie individual claims.

Summons v. Missouri Pac. R.R., 306 Ark. at 121, 813 S.W.2d at 243, quoting Herbert B. Newberg, Newberg on Class Actions, § 3.13, at pp. 166-67 (2d ed. 1985).

In the Summons case, we rejected the argument that the representatives’ claims were not typical of the class members’ claims simply because the representatives’ allegations as to their injuries and damages differed from the injuries and damages allegedly suffered by the class members. “Although the Summonses’ allegations as to their injuries and damages are different from those they describe for other members of the class,” we said, “their claims are typical in the sense that they arise from the alleged wrong to the class which includes the wrong allegedly done to them, and that is sufficient.” Summons v. Missouri Pac. R.R., 306 Ark. at 121, 813 S.W.2d at 243.

We followed this reasoning in Cheqnet Systems, Inc. v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995). In that case, Ms. Montgomery filed a class-action complaint alleging that Cheqnet violated the Federal Fair Debt Collections Practices Act by charging a fee for returned checks in excess of the amount set by the Act. Cheqnet objected to certification and contended that Ms. Montgomery’s claim was atypical of the other members’ claims because she had never paid the alleged overcharge.

We affirmed the Trial Court’s decision to certify. We rejected Cheqnet’s argument concerning the typicality requirement because we found that

Montgomery’s injuries and damages arise from the same wrong allegedly committed against the class — the collection or attempt to collect for dishonored checks in violation of Arkansas statutory law. The fact that the injuries and damages suffered as a result of the alleged wrongdoing may vary among class members does not make this action fail the typicality requirement, and the fact that Montgomery did not actually pay the overcharge does not keep her claim from being typical of the class since the class is defined as those persons fiom whom appellant collected or attempted to collect a $25 service fee per returned check. Cheqnet’s argument that Montgomery was not damaged involves a fact question that is common to all class members from whom appellant attempted unsuccessfully to collect $25.

Cheqnet Systems, Inc. v. Montgomery, 322 Ark. at 749-50, 911 S.W.2d at 959 (emphasis added).

Finally, in Farm Bureau Mutual Ins. Co. v. Farm Bureau Policy Holders, 323 Ark. 706, 918 S.W.2d 129 (1996), we again stressed that the typicality requirement may be satisfied even where the class representative and the class members stand to recover different amounts of damages. In that case, the plaintiff alleged that Farm Bureau had been wrongfully collecting annual membership dues from its policy holders. We affirmed the Trial Court’s ruling on the typicality question because we found that “the allegation is that dues were wrongfully collected by the companies. Therefore, even though some class members may collect more than others, the claims are still typical because they arise from the same alleged wrong.” Farm Bureau Mutual Ins. Co. v. Farm Bureau Policy Holders, 323 Ark. at 711, 918 S.W.2d at 131.

While we do not necessarily agree with the assessment that Rule 23(a)(3) imposes a “liberal typicality standard,” Kenneth S. Gould, New Wine in an Old Bottle — Arkansas’s Liberalized Class Action Procedure — A Boon to the Consumer Class Action?, 17 U.A.L.R. L.J. 1, 25 (1994)(emphasis added), we hold that the Trial Court did not abuse its discretion in this case by concluding that the typicality prerequisite was satisfied. Ms. Lane’s claims and those of the class members arise from precisely the same wrong allegedly committed by Direct Insurance. Here, the allegations are that Direct Insurance (1) levied a usurious interest rate through the premium-finance agreements in violation of the Arkansas Constitution, and (2) made certain misrepresentations in the agreements concerning the interest rate and other charges and fees in violation of federal statutory and regulatory provisions. Because Ms. Lane’s claims and those of the class members all arise from this alleged misconduct, the typicality requirement is satisfied.

Direct Insurance maintains on appeal that Ms. Lane’s claims are not typical of the other class members’ claims because, in its view, Ms. Lane has not paid any interest and therefore has suffered no damage. Direct Insurance presented this very argument to the Trial Court in seeking summary judgment. The Trial Court denied Direct Insurance’s motion for summary judgment because it believed there was a factual dispute as to whether Ms. Lane had suffered damages. The Trial Court pointed out that Ms. Lane had paid a $15 “policy fee” as part of a $130.75 down payment on her insurance policy. The Trial Court concluded that reasonable minds could differ as to whether the $15 fee constituted interest charged in violation of usury law or the federal provisions mention above.

Generally speaking, a trial court’s order denying a motion for summary judgment is neither reviewable nor appealable. Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996); Amalgamated Clothing v. Earle Indus., Inc., 318 Ark. 524, 886 S.W.2d 594 (1994). Direct Insurance acknowledges this well-settled principle, and it maintains that it is not seeking review of the Trial Court’s denial of summary judgment. Nonetheless, Direct Insurance asks us to find that Ms. Lane has not suffered any damages and that her claim, therefore, is not typical of the class members’ claims under Rule 23(a)(3).

We decline to decertify the two subclasses on the basis of Direct Insurance’s position that Ms. Lane has not suffered damages. In ruling against Direct Insurance on its motion for summary judgment, the Trial Court determined that there is a genuine factual dispute as to whether the $15 fee paid by Ms. Lane was charged by Direct Insurance in violation of the usury laws or the relevant federal provisions. Although we have not been asked to review or reverse this finding of the Trial Court, we would have to disregard it entirely in order to reverse the Trial Court’s certification order on the ground advanced by Direct Insurance. We are reluctant to do so. While the findings made by the Trial Court in connection with its summary-judgment ruling may not control our analysis of the Trial Court’s certification ruling, we simply are not in a position to conclude that Ms. Lane has not suffered damages and is therefore presenting claims that are atypical of the class members’ claims.

Even if it were true that Ms. Lane has suffered little, if any, damages in relation to the other class members, this fact, in light of our holdings in the Summons, Cheqnet, and Farm Bureau cases, does not mean that the typicality prerequisite has not been satisfied. As we have said, Ms. Lane’s claims are typical of those of the class members because they all arise from the same alleged “wrong” committed by Direct Insurance. An alleged disparity between the injuries or damages suffered by the class representative and the class members does not make the action fail Rule 23’s typicality requirement.

Moreover, it is apparent that Direct Insurance, by asserting that Ms. Lane has not suffered any damages, has attempted to defeat class certification by delving into the merits of the case. That is inappropriate. In the Farm Bureau case, we said that the trial court’s proper focus in deciding whether to certify a class “is not ‘whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 . . . are met.’” Farm Bureau Mutual Ins. Co. v. Farm Bureau Policy Holders, 323 Ark. at 709, 918 S.W.2d at 130 (citations omitted). As we observed, “it is totally immaterial whether the petition will succeed on the merits or even if it states a cause of action. . . .” Id. “[A]n order denying or granting class certification is separate from the merits of the case.” Farm Bureau, 323 Ark. at 710, 918 S.W.2d at 130-31. See First Nat'l Bank v. Mercantile Bank, 304 Ark. 196, 801 S.W.2d 38 (1990).

We do not know if Ms. Lane will prevail on the merits of her case, but that question is irrelevant at this point. Even if Ms. Lane ultimately fails to make her case as to damages, the question before the Trial Court was whether the claims of Ms. Lane and the class members arise from the same wrong allegedly committed by Direct Insurance. We cannot say that the Trial Court abused its discretion by answering this question affirmatively.

2. Adequacy of representation

We further hold that the Trial Court did not abuse its discretion by finding that Ms. Lane, in accordance with Rule 23(a)(4), will fairly and adequately protect the interests of the two subclasses that were certified in this case. In First Nat’l Bank v. Mercantile Bank, 304 Ark. 196, 200, 801 S.W.2d 38, 40-41 (1990), we quoted the following passage from Gentry v. C & D Oil Co., 102 F.R.D. 490, 493 (W.D. Ark. 1984), in describing the “adequacy of representation” prerequisite:

The elements of the requirement are: (1) the representative counsel must be qualified, experienced and generally able to conduct the litigation; (2) that there be no evidence of collusion or conflicting interest between the representative and the class; and (3) the representative must display some minimal level of interest in the action, familiarity with the practices challenged, and ability to assist in decision making as to the conduct of the litigation.

We have continued to cite this language for the proposition that the “adequacy of representation” element is satisfied if the representative displays a minimal level of interest in the action, familiarity with the challenged practices, and ability to assist in litigation decisions. See Cheqnet Systems, Inc. v. Montgomery, 322 Ark. at 750, 911 S.W.2d at 959; Union National Bank v. Barnhart, 308 Ark. 190, 198, 823 S.W.2d 878, 882 (1992).

At the certification hearing, Ms. Lane testified that she understood the responsibility she was undertaking by agreeing to become the class representative. She said that she had discussed the matter with her mother and that she had visited with her attorney several times about the case and had reviewed the relevant documents. According to Ms. Lane, she decided to become a class representative out of a desire to prevent Direct Insurance from charging other people excessive interest and fees, and she hopes to recover any amount that is found to be an overcharge. Moreover, the record demonstrates that the Allen Law Firm, which represents Ms. Lane, has extensive experience in conducting class-action litigation. Based on the testimony presented in the hearing and other evidence in the record, the Trial Court clearly acted within its discretion in concluding that Ms. Lane will adequately and fairly represent the interests of the two subclasses.

Direct Insurance contends, however, that Ms. Lane will be unable to protect the interests of the subclasses because she has suffered no damage herself and therefore does not have a sufficient interest in the case. As we mentioned above, we cannot say at this point that Ms. Lane has not suffered damages on account of the alleged misconduct of Direct Insurance, and we stress the inappropriateness of contesting class certification by raising merits-based arguments. Ms. Lane demonstrated that she is committed to pursuing the case against Direct Insurance, and her interest in the action is clearly sufficient to satisfy the requirements of Rule 23(a)(4).

Affirmed.