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    NATIONAL BANK of COMMERCE, William E. Golden, M.D., and Kimberly A. Golden, M.D., Co-Guardians of the Estate of Emily Jane Golden, Arkansas Department of Human Services v. J. Gerald QUIRK, M.D., Gaylon L. Brunson, M.D., Vikki A. Stefans, M.D., Bernadette Lange, M.D., Richard E. Leitheiser, Jr., M.D., William M. Chadduck, M.D., Diane R. Edwards, M.D., Karen Everett, M.D., Janice W. Allison, M.D., W. Mark Molpus, M.D., and American Physician’s Insurance Exchange
    94-575
    918 S.W.2d 138
    Supreme Court of Arkansas
    Opinion delivered March 18, 1996

      David Hodges, brief only; Bernard Whetstone; and Bob Davidson, for appellants.

      Richard B. Dahlgren, for appellant ADHS.

      Anderson & Kilpatrick, by: Overton S. Anderson and Mariam T. Hopkins, for appellees William M. Chadduck, M.D., and American Physicians Insurance Exchange.

      Shaw, Ledbetter, Hornberger, Cogbill & Arnold, by: Charles R. Ledbetter, for appellee Diane R. Edwards, M.D.

      Mitchell, Williams, Selig, Gates & Woodyard, by: R.T. Beard, III, for appellee Gaylon L. Brunson, M.D.
   Andree Layton Roaf, Justice.

This is a medical malpractice case. The appellants are the co-guardians of Emily Jane Golden (“guardians”) and the Arkansas Department of Human Services (“ADHS”), which provided medical benefits to her. The appellees are ten physicians employed by the University of Arkansas for Medical Sciences (“UAMS”), including two who treated Emily Golden’s mother, Kim Golden, during her pregnancy and delivery, Drs. J. Gerald Quirk and Gaylon L. Brunson, and eight others who provided medical treatment to Emily after her birth. Appellee American Physicians Insurance Exchange, (“APIE”) is the malpractice carrier for the physicians. The guardians filed suit against the physicians, alleging that Emily Golden suffered injuries as a result of negligence during her delivery and in the failure to subsequently diagnose her birth injuries. The trial court granted summary judgment to two of the physicians and dismissed the complaint as to one physician during the trial; a jury returned a verdict in favor of the remaining physicians. The guardians appeal the denial of their motion for new trial and the orders granting the summary judgments and dismissal. ADHS appeals the denial of its motion to intervene. We agree that the trial court erred in excluding the depositions of two of the guardians’ obstetrical experts and in denying ADHS’s motion to intervene. We affirm in part and reverse and remand for new trial as to Drs. Quirk and Brunson, and to allow the intervention of ADHS.

Emily Jane Golden was born at the UAMS hospital on October 3, 1985. This action was commenced on October 26, 1992, after Emily’s parents obtained a diagnosis that she suffered a spinal cord injury at birth. Dr. Kim Golden, Emily’s mother, had asked Dr. J. Gerald Quirk, an obstetrician on the UAMS medical school ¡Faculty, to handle her pregnancy and delivery. Emily was delivered approximately seven and a half months into the pregnancy. Dr. Quirk elected to perform a vaginal delivery rather than a cesarian section, and he used forceps during the delivery. Another obstetrician, Dr. Gaylon L. Brunson, had examined Kim Golden during her premature labor while Dr. Quirk was out of town. The Goldens contend that Emily’s spinal cord was stretched at birth, and that her vertebra may have been fractured. They further contend that the remaining physicians named in the lawsuit, also UAMS employees or residents at the time, were negligent in failing to discover the extent of Emily’s injuries. The child was ultimately diagnosed as having a spinal cord injury, as opposed to cerebral palsy, when she was 7 years of age. The Goldens also sued APIE pursuant to the Arkansas Direct Action statute, as insurer of the state employee physicians. The trial court granted APIE’s motion to dismiss prior to trial, granted summary judgment to two of the physicians who examined Emily after her birth, Drs. Allison and Molpus, and dismissed the complaint during the trial as to Dr. Everett, another physician who examined Emily. The appellant ADHS moved to intervene pursuant to Ark. Code Ann. § 20-77-304 (Repl. 1991) in order to recover medicaid benefits paid on behalf of Emily after her medical insurance had been exhausted. The trial court denied the motion on the basis that ADHS’s claims were derivative of Emily’s parents’ claims for recovery of her medical expenses, and those claims were time barred.

1. Exclusion of deposition testimony

The guardians first contend that the trial court improperly excluded depositions of two of their experts contrary to the rules of civil procedure. This issue bears only on the case against Drs. Quirk and Brunson because the excluded expert testimony concerned only the issue of their negligence in treating Kim Golden during her labor and delivery. After the original complaint was filed, APIE filed a motion for a pretrial scheduling order requesting that it be allowed to take the discovery depositions of the guardians’ expert witnesses prior to and in a separate proceeding from any evidentiary depositions. The guardians’ counsel objected that the rules of civil procedure did not distinguish between discovery and evidentiary depositions and asserted they would not waive the wording of Ark. R. Civ. P. 32.

At a hearing on the motion, the guardians again argued the rules of civil procedure did not distinguish between discovery and evidentiary depositions. The trial court entered a scheduling order which provided that the defendants were entitled to take “discovery” depositions of all the plaintiffs’ expert witnesses and that the depositions “shall not be used as direct testimony at trial unless the witness is deceased.” The order further provided that, if it was determined that a witness would be otherwise unavailable to attend trial, “plaintiff shall notify all defense counsel so that an evidentiary deposition can be scheduled subsequent to and in a. separate proceeding from the discovery deposition.”

Prior to the start of the trial, the guardians filed motions seeking permission to read at trial the depositions of Dr. Frank Miller, who had been present during Kim Golden’s labor, and Dr. Melvyn J. Ravitz, both experts for the case against Drs. Quirk and Brunson. The motions asserted that Dr. Miller’s deposition was taken at his office in Lexington, Kentucky, and that Dr. Ravitz was an obstetrician in Manasquan, New Jersey. The motion further stated Dr. Ravitz was suffering from a medical problem and was unable to attend the trial. The trial court denied the guardians’ motion to introduce the depositions of Dr. Ravitz and Dr. Miller based on the pretrial order. The trial court found that exceptional circumstances did not exist in the case of Dr. Ravitz and appellees were not given notice pursuant to the pretrial order that Dr. Miller’s deposition was to be an evidentiary deposition. We agree that the trial court erred in excluding the depositions.

Rule of Civil Procedure 32 provides in part:

(a) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions: . . .
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: . . .
(B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of this state, unless it appears that the absence of a witness was procured by the party offering the deposition; ....

There is no dispute that both Dr. Miller and Dr. Ravitz were out of state at the time of trial. There is no allegation that the absence of either expert was procured by the appellants. Rule 32 clearly provides for the admission of both depositions.

Drs. Quirk and Brunson assert that the trial court properly denied admission of the depositions for failure to comply with the pretrial order. They rely upon Ark. R. Civ. P. 26, General Provisions Governing Discovery, which provides in part:

(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
(4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which he is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
(ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)(C) of this rule, concerning fees and expenses as the court may deem appropriate. (Emphasis added.)

Drs. Quirk and Brunson assert that Rule 26(b)(4)(A)(ii) allows the trial court discretion to distinguish between discovery and evidentiary depositions.

However, this Court has clearly stated that Rule 32 does not distinguish between discovery and evidentiary depositions. Whitney v. Holland Retirement Ctr., 323 Ark. 16, 912 S.W.2d 427 (1996). We stated that the rule has been construed to provide that any party, not only the party who took the deposition, may use the deposition of a witness, whether or not a party, for any purpose at the trial or hearing, if the party demonstrates to the court the existence of one of the conditions specified in Rule 32(a)(3). Id.

In Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989), we concluded a deposition was properly excluded where the understanding of the parties and the trial court was that plaintiffs counsel would not use a doctor’s discovery deposition as an evidentiary deposition. We determined that the plaintiff had waived Rule 32 under these circumstances. However, in Whitney, supra, we rejected the argument that the parties had an implied agreement regarding discovery and evidentiary depositions.

Clearly, there was no agreement or waiver by the guardians in this instance. Although the trial court ruled the depositions would be for discovery only and not admissible at trial, and Quirk and Brunson may have relied upon that ruling, the guardians emphatically protested the trial court’s ruling and specifically cited the Goodwin case as the reason for their continued objections.

We also agree that the exclusion of the deposition testimony was prejudicial error. Our Medical Malpractice Act provides that in any action for medical injury the plaintiff must prove the applicable standard of care, that the medical provider failed to act in accordance with that standard, and that such failure was a proximate cause of the plaintiffs injuries. Blankenship v. Burnett, 304 Ark. 469, 803 S.W.2d 539 (1991); Ark. Code Ann. § 16-114-206 (1987). The plaintiffs burden of proving the applicable standard of care and the defendant’s failure to comply with that standard requires expert testimony when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge. Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995). Dr. Ravitz’s proffered deposition provided opinions regarding the applicable standard of care, the alleged negligence of Drs. Quirk and Brunson, and proximate causation. Dr. Miller’s deposition was also proffered by the guardians, and it provided that he examined Kimberly Golden in the delivery room on the evening of October 2, 1985. Although Dr. Miller requested that he be considered a fact witness rather than an expert witness, he conducted a cervical exam of Kimberly Golden, discussed the “appropriate” treatment which he prescribed for her uterine contractions, and discussed the procedures he followed during her subsequent pregnancies. In the instant case, the guardians were deprived of expert testimony in a situation in which such testimony was required. See Brumley v. Naples, supra. We agree that the exclusion of critical expert testimony in a medical malpractice case with multiple experts on each side constitutes prejudicial error.

2. Medical Malpractice Act

The guardians assert that Ark. Code Ann. § 16-114-207(3) (1987), a part of the Medical Malpractice Act, is unconstitutional. This section of the act provides that no medical care provider shall be required to give expert testimony at trial against himself or herself.

The arguments on this point raised in the trial court consist of the following. In a motion for authority to ask the defendant doctors to give expert opinion testimony at their depositions, the guardians asserted § 16-114-207(3) did not apply to discovery. A hearing was held regarding this motion, and during the discussion, counsel for the guardians stated,

[l]et me just state this for the record. I think this whole statute is unconstitutional. This same issue was before Judge Bogard in another case. He ruled this entire statute unconstitutional. If the Court is going to rule against me on this point, I would like to make that argument and present a brief on that point so I can preserve my record on that to go to the Supreme Court with it. But I think the whole statute is unconstitutional. (Emphasis added).

The trial court commented his inclination was to allow the guardians to question the defendants about their opinions as to the standard of care but not to allow use of this testimony at trial.

Subsequently, the guardians filed a third amended complaint which alleged in part:

the so-called Arkansas Medical Malpractice Act . . . and each and every section thereof, (1) Discriminates in favor of medical providers over others and, therefore, violates the equal protection clause of both the Federal and Arkansas constitutions (Ark. Const. Art. II, Sec. 3; U.S. Const. Amend. XIV), (2) Denies prompt access to the courts thereby depriving persons of the lawful right to redress (Ark. Const. Art. II, Sec. 13), (3) Constitutes special legislation (Ark. Const. Art. V, Sec. 25), (4) Violates the privileges and immunities clause of both the United States (U.S. Const. Amend. XIV) and the Arkansas Constitution (Ark. Const. Art. II, Sec. 18), (5) Violates the Arkansas Constitution in attempting to limit amounts of recoveries. (The Arkansas Constitution, at Art. V, Sec. 32, provides: “that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property.”), and (6) Violates the Supersession Rule.

In response to a motion in limine filed by Quirk, the guardians stated in part, “In the first place, plaintiffs contend that the so-called Medical Malpractice Act is unconstitutional.” At a pretrial hearing on the motion in limine, during the course of his argument, counsel for the guardians stated, “we would restate our position once again, that this particular statute, . . ., is unconstitutional.” The trial court stated, “I’ll hold that it is constitutional.” Finally, in the hearing on the motion for new trial, the guardians proffered the order finding Ark. Code Ann. § 16-114-207(3) unconstitutional in another medical malpractice case. The order simply stated that § 16-114-207(3), “(1) discriminates in favor of medical providers, (2) usurps the authority of the courts to establish rules of practice, pleadings and procedure, and (3) violates the equal protection clause and the privileges and immunities clause of the Arkansas and United States Constitution, therefore, that section of the Act is unconstitutional.” There is no other indication in the abstract that the guardians presented any further argument or brief to the trial court.

We first note that this constitutional issue was not properly briefed and argued to the trial court. See Prater v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987). This Court will not strike down a legislative act on constitutional grounds without first having the benefit of a fully developed adversary case. Drummond v. State, 320 Ark. 385, 897 S.W.2d 553 (1993). Moreover, the guardians did not raise the specific constitutional arguments they now seek to advance in this appeal. Harris v. State, 320 Ark. 677, 899 S.W.2d 459 (1995); see also Whitney v. Holland Retirement Ctr., Inc., 323 Ark. 16, 912 S.W.2d 427 (1996). At trial, they merely made conclusory statements that the statute was unconstitutional. This argument is therefore procedurally barred.

3. Cross-examination of Dr. Quirk

The guardians contend that the trial court erred in limiting the cross-examination of Dr. Gerald Quirk. They raise three evidentiary questions under this point. They contend that the trial court prevented them from cross-examining Dr. Quirk about his “attitudes and temperament,” his “charting practices,” and his past employment as a medical expert. Although we have already determined the judgment as to Dr. Quirk must be reversed, we discuss this argument as it is likely to arise at trial on remand.

The guardians state that Dr. Quirk testified in a previous case that he was a “street fighter” from New York and this attitude was expressed in his daily life and in his verbal jousting with opposing attorneys. They assert that Quirk’s temperament caused him to obstinately refuse to modify his manner of performing the delivery once complications arose and to instead employ physical force by using forceps to complete the delivery of Emily. The guardians further contend that these attitudes and temperament were part of the foundation of their case, and were relevant and probative to the issue of Quirk’s credibility.

At a pretrial hearing, the trial court concluded that testimony regarding Dr. Quirk’s “verbal discourse with lawyers” was highly prejudicial. The trial court further stated that if the defendant were being called as an expert witness, the fact that he enjoyed engaging in verbal street fighting with lawyers in the courtroom would be admissible to show bias and prejudice, but as a fact witness, such testimony, “is not probative but is prejudicial.” At trial, when the guardians once again sought to cross-examine Dr. Quirk regarding his attitude and temperament, the trial court simply stated the questions were not relevant to the case.

A trial court’s ruling on the relevancy of evidence will not be reversed absent an abuse of discretion. Thompson v. Perkins, 322 Ark. 720, 911 S.W.2d 582 (1995). Further, we will not reverse a trial court’s weighing of probative value against unfair prejudice under Rule 403 unless there has been a manifest abuse of discretion. Id. Here the appellants have failed to demonstrate an abuse of discretion regarding either determination.

The guardians next submit the trial court improperly excluded evidence of Dr. Quirk’s “charting practices.” They assert that during his deposition, Dr. Quirk stated that he “does ‘skillful charting,’ in that he never charts anything unfavorable about himself.” As an example they allege that Dr. Quirk once misdiagnosed a baby as being dead, and later charted inaccurate information to hinder any later inquiry into the incident.

Even assuming the guardians’ characterization of the incident is accurate, the trial court did not abuse its discretion in excluding the evidence. At the pretrial hearing, the guardians argued Dr. Quirk’s charting practice was a “habit” and pertinent to show a practice of fraudulent charting. The trial court concluded Dr. Quirk was not on trial for the incident regarding the baby and it was not admissible, stating that “perhaps the charting might be admissible. But the facts that were told to me would absolutely prejudice the jury in this case.” The trial court further stated that “I don’t think the probative value anywhere closely measures to the prejudicial effect.”

On appeal, the guardians do not assert that the trial court abused its discretion regarding the prejudicial effect of the testimony; they simply assert the testimony is admissible under Ark. R. Evid. 404 and 608 which address character evidence. However, it is within the trial court’s discretion to exclude otherwise admissible testimony under Ark. R. Civ. P. 403. Thompson, supra. We cannot say that the trial court abused its discretion in excluding the testimony.

For their third point, the guardians contend the trial court erred in excluding evidence of Quirk’s past employment as a medical expert. They submit Quirk worked in the past as a medical expert witness on a “very large number of cases for a plaintiffs attorney.” The trial court initially concluded Quirk was a fact witness, not an expert witness, and Ark. Code Ann. § 16-114-207(3) provided he could not be required to give an opinion against himself. However, the trial court further stated that cross-examination of Dr. Quirk about his testifying as an expert witness would not be relevant and the prejudicial value would outweigh any probative value.

On appeal, the guardians submit the testimony was clearly admissible under § 16-114-207(3) and “was probative on several other counts as well.” The guardians state that the evidence demonstrated Quirk had not merely testified on occasion; he had worked on approximately 200 cases for a single plaintiffs attorney and received $250 an hour for that work. Here, the guardians have also failed to demonstrate that the trial court abused its discretion in concluding the testimony was not relevant. See, Thompson, supra. Dr. Quirk’s past experience as a medical expert for a plaintiff’s attorney, though it may have been extensive, was not relevant in this case.

4. Res ipsa loquitur

The guardians next declare that the trial court erred in refusing Arkansas Model Instruction (AMI) 610 because all of the required elements of res ipsa loquitur are present in this case. At trial, the appellants proffered a jury instruction which provided,

With respect to the question of whether Dr. Gerald Quirk was negligent in the use of forceps in this case, the plaintiffs have the burden of proving each of the following two propositions: First, that the alleged injury to Emily Jane Golden’s vertebrae was attributable to the use of forceps which were under the exclusive control of Dr. Quirk. Second, that in the normal course of events, no injury would have occurred to Emily Jane Golden’s vertebrae if Dr. Quirk had used ordinary care while the forceps were under his exclusive control. If you find that each of these two propositions has been proved by the plaintiffs, then you are permitted, but not required, to infer that Dr. Quirk was negligent.

See AMI 610 (3rd. ed.). Once again, we discuss this issue as it is likely to arise on remand.

In Schmidt v. Gibbs, 305 Ark. 383, 807 S.W.2d 928 (1991), this Court clearly stated that the doctrine of res ipsa loquitur may apply in cases of medical malpractice on the part of any and all medical care providers as defined by the Medical Malpractice Act if the essential elements for application of the doctrine exist. We noted that the theory of res ipsa loquitur may be invoked when: (1) the defendant owes a duty to the plaintiff to use due care, (2) the accident is caused by the thing or instrumentality under the control of the defendant, (3) the accident which caused the injury is one that, in the ordinary course of things would not occur if those having control and management of the instrumentality used proper care, and (4) there is an absence of evidence to the contrary. Id. In Schmidt, however, we concluded the appellant was not entitled to the application of the doctrine where there was “evidence to the contrary,” in the form of expert testimony, which indicated the use of “proper care” by two of the defendants.

The guardians’ proposed jury instruction relates to the question of whether Dr. Quirk was negligent in the use of forceps, resulting in an injury to Emily Jane Golden’s vertebrae. However, there was substantial “evidence to the contrary” that an accident was caused by the thing or instrumentality under the control of the defendant or that an accident even occurred during the delivery of Emily Golden. Tanna Lentz Barnes, the nurse who assisted with the delivery, testified that she did not recall Dr. Quirk yanking the baby out with the forceps. Dr. Larry Gilstrap, a professor of obstetrics and gynecology who testified for the appellees, stated that it was appropriate and within accepted care for Dr. Quirk to have performed the outlet forceps delivery. Dr. Gilstrap further testified that it was his opinion with a reasonable degree of medical certainty that Emily Golden did not have a fractured neck at birth. Dr. Gerald Fenichel, a pediatric neurologist who testified for the appellees, stated that it was his “opinion within a reasonable degree of medical certainty that Emily Golden did not have a fractured neck at birth as a result of a low forceps delivery by Quirk.”

Dr. David McKelvey, an obstetrician-gynecologist who testified for the appellees, stated excessive force was not used in delivering the baby. Finally, Dr. Tom Naidich, an expert in neuroradiology who testified for the appellees, stated that what is seen at the cervical vertebrae in the films, MRI scans, and CT scans of Emily Golden was not the result of trauma at delivery. The trial court properly refused the proffered instruction.

5. Limitation of Closing arguments

At the end of the trial, the trial court stated that he was inclined to allow the plaintiffs forty minutes for closing argument, each defense attorney twenty minutes, and then ten minutes for the plaintiffs in rebuttal. Counsel for the guardians commented that forty minutes seemed unrealistic. The next day, prior to the beginning of closing arguments, the trial court stated he had decided to allow the plaintiffs a full hour, but only twenty minutes of that time could be used for rebuttal. Each of the defendants was still limited to twenty minutes in closing argument.

On appeal, the guardians assert that the trial court erred in limiting the time because it is clear that the circumstances of this case necessitated a longer closing argument. However, the guardians did not object to the trial court’s limitation upon closing argument. Thus, the issue is not preserved for appeal. Kempner v. Schulte, 318 Ark. 433, 885 S.W.2d 892 (1994). Although counsel for the guardians initially commented that forty minutes seemed unrealistic, the trial court reconsidered and extended the time to one hour. The guardians’ counsel made no other comments regarding the limitation.

The guardians further assert that the trial court erred in prohibiting them from arguing damages in the rebuttal portion of their argument. Following the conclusion of the defendants’ opening arguments, one of the defendants asserted that since none of the defendants mentioned damages during closing arguments, plaintiffs should be prohibited from discussing damages during the rebuttal. The trial court agreed and ruled that the plaintiffs could not argue damages in their rebuttal.

A trial court has wide discretion in controlling, supervising, and determining the propriety of counsels’ arguments, and an appellate court will not reverse absent a showing of manifest abuse. Allred v. Demuth, 319 Ark. 62, 890 S.W.2d 578 (1994). Moreover, here the guardians cannot show they were prejudiced by the ruling. The jury returned a verdict in favor of the defendants on the issue of liability; therefore, the jury was never required to consider the issue of damages. See Peters v. Pierce, 314 Ark. 8, 858 S.W.2d 680 (1993). This Court will not reverse in the absence of a showing of prejudice. Id.

6. Dismissal of Insurer

The guardians contend that the trial court erred in dismissing APIE. APIE was made a party to the litigation, pursuant to Ark. Code Ann. § 23-79-210 (a)(1) (Repl. 1992) and § 19-10-305(a) (Repl. 1994), as malpractice insurance carrier for defendant physicians. APIE moved to dismiss on the basis that the direct-action statute, § 23-79-210, did not authorize the filing of a direct-action lawsuit against a liability insurance carrier for an individual. APIE also asserted in a supplemental brief that Act 292 of 1993 amended § 19-10-305 and clarified that direct-action statutes were not allowed against liability insurers for state employees. The trial court concluded that in Act 292 of 1993 the legislature had spoken clearly on this matter; therefore the complaint against APIE should be dismissed.

Arkansas Code Annotated § 23-79-210(a) (Repl. 1992) provides:

(a)(1) When liability insurance is carried by any cooperative nonprofit corporation, association, or organization, or by any municipality, agency, or subdivision of a municipality or of the state, or by any improvement district or school district, or by any other organization or association of any kind or character and not subject to suit for tort, and if any person, firm, or corporation suffers injury or damage to person or property on account of the negligence or wrongful conduct of the organization, association, municipality or subdivision, its servants, agents, or employees acting within the scope of their employment or agency, then the person, firm, or corporation so injured or damaged shall have a direct cause of action against the insurer with which the liability insurance is carried to the extent of the amounts provided for in the insurance policy as would ordinarily be paid under the terms of the policy.

In Carter v. Bush, 296 Ark. 261, 753 S.W.2d 534 (1988), we commented that our direct-action statute is limited to the insurance carriers of cooperative non-profit organizations, municipalities, agencies or subdivisions of municipalities or of the state, improvement districts, school districts, or other organizations of any kind or character not subject to suit in tort. See also Jarboe v. Shelter Insurance Company, 317 Ark. 395, 877 S.W.2d 930 (1994). We further commented that the statute makes no mention of individuals. Carter, supra

On appeal, the guardians contend APIE is not the insurance carrier for the individual doctors, but rather it is the insurer for UAMS, a state agency, and the doctors are covered as employees of the agency. However, the complaint did not allege that APIE was brought in as the insurer for UAMS, or that the Medical Center was negligent.

The guardians also assert that the amended sections of § 19-10-305 are unconstitutional as applied retroactively to any suits pending on the effective date of Act 292. Act 292 of 1993 provides in part:

SECTION 1. Arkansas Code 19-10-305 is hereby amended to read as follows:
“19-10-305. Immunity of state officers and employees - Status as employee.
(a) Officers and employees of the State of Arkansas are immune from liability and from suit, except to the extent that they may be covered by liability insurance, for damages for acts or omissions, other than malicious acts or omissions, occurring within the course and scope of their employment.
SECTION 3. This act shall have a retroactive application to the effective date of Act 542 of 1991 to avoid the misinterpretation of the intent of Act 542 as permitting suits directly against liability insurers of state and local government officials and employees. This act is intended to have retroactive effect so as to apply to any suits pending as of the effective date of this act. (Emphasis added.)

Act 292 added only the underlined portion of the statute. The guardians simply state that “such retroactive application violates Appellants’ rights under the due process clauses of both the Arkansas and United States Constitutions, Ark. Const. art. 2, Section 8, and U.S. Const. Amend. V.”

We first note that where an appellant cites no authority, nor makes a convincing argument, and where it is not apparent without further research that the point is well taken, we will affirm the decision of the trial court. State Farm Mut. Auto Ins. Co. v. Beavers, 321 Ark. 292, 901 S.W.2d 13 (1995). Second, this Court has previously concluded that the direct action statute only allows suits against insurers for the negligence of their insureds when the insured is a charitable organization or governmental entity. Jarboe, supra. More significantly, Act 292 simply added the clause “except to the extent that they be covered by liability insurance” as qualifying an employee’s immunity. Consequently, there is no retroactive application because in Carter v. Bush, supra, this Court recognized in 1988 that employees have only a qualified immunity and that actions can be maintained against them to the extent they are protected by insurance.

7. Summary Judgment

The guardians contend the trial court erred in granting summary judgment in favor of Dr. Janice Allison and Dr. Mark Molpus. Drs. Allison and Molpus moved for summary judgment on the basis that they were residents in radiology training at all times relevant to the lawsuit and the guardians failed to present any expert testimony showing that they deviated below the standard of care for residents in training. The guardians responded that Allison and Molpus were fully licensed doctors at all times relevant to the lawsuit and that there was testimony that both misread an MRI as normal. The trial court granted summary judgment in favor of Allison and Molpus.

On appeal, the guardians submit they provided extensive deposition testimony which created a fact question as to the negligence of Allison and Molpus. They also assert that the two defendants moved for summary judgment without any supporting affidavits or depositions only because no expert witness testified they deviated below the standard of care for residents in training.

The standard for review of a summary judgment is whether the evidentiary items presented by the moving party in support of the motion left a question of material fact unanswered and, if not, whether the moving party is entitled to judgment as a matter of law. Baker v. Milam, 321 Ark. 234, 900 S.W.2d 209 (1995). This Court views all proof in the light most favorable to the party opposing the motion, resolving all doubts and inferences against the moving party. Id. However, when the movant makes a prima facie showing of entitlement to summary judgment, the respondent must meet that proof with proof showing a genuine issue as to a material fact. Id.

Here, Allison and Molpus did not dispute the facts presented by the guardians, but argued they were entitled to summary judgment'as a matter of law since there was no testimony that they deviated below the applicable standard of care. Arkansas Code Annotated § 16-114-206 (1987) provides that in any action for medical injury the plaintiff must prove the applicable standard of care, that the medical provider failed to act in accordance with that standard, and that such failure was a proximate cause of the plaintiffs injuries. Blankenship v. Burnett, 304 Ark. 469, 803 S.W.2d 539 (1991). The plaintiffs burden of proving the applicable standard of care and the defendant’s failure to comply with that standard requires expert testimony when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge. Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995).

On appeal, the guardians offer no argument that either Allison or Molpus deviated below the required standard of care. In fact, as to Allison, they do not even mention the standard of care. As to Molpus, they argue that Dr. Henry Pibram testified it was below the standard of care for the staff radiologist not to comment on a mass depicted in the MRI. However, Dr. Pibram admitted he did not know what the standard of care was for a resident. The guardians have not established on appeal that they presented any evidence of the standard of care required of Allison and Molpus. They have not cited any evidence in the record to support the theory that residents should be held to the same standard as other licensed doctors. Consequently, Allison and Molpus were entitled to judgment as a matter of law; the trial court did not err in granting the summary judgments.

8. Dismissal of Dr. Everett

The guardians argue that the trial court erred in dismissing Dr. Karen Everett upon her motion for directed verdict. Dr. Karen Everett was a neurology resident when she conducted an examination of Emily Golden on August 4, 1989. Dr. Bernadette Lange was the staff pediatric neurologist who supervised Dr. Everett. Dr. Everett signed the report regarding Emily Golden, and the report was counter-signed by Dr. Lange. The guardians assert Dr. Everett’s examination ignored symptoms that Emily Golden had a spinal cord injury and did not recommend any follow up treatment. On appeal, the guardians submit that the “total evidence” justified submitting Dr. Everett’s negligence to the jury.

In determining whether a directed verdict should have been granted, we review the evidence in the light most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. Morehart v. Dillard Dep’t Stores, 322 Ark. 290, 908 S.W.2d 331 (1995). A motion for directed verdict should be granted only if there is no substantial evidence to support a jury verdict. Id. Where the evidence is such that fair-minded persons might reach different conclusions, then a jury question is presented, and the directed verdict should be reversed. Id.

The guardians principally rely upon the testimony of Dr. John Menkes, a pediatric neurologist, who testified as an expert for the guardians. During direct examination, he testified that it was below the standard of care not to bring Emily Golden back for further examination. On cross-examination, Dr. Menkes testified that Dr. Everett and Dr. Lange did not violate any standard of care in not detecting a spinal cord lesion on August 4, 1989, and that his only criticism was that they should have brought the child back for a follow-up examination.

Dr. Menkes further testified that Dr. Everett originally wrote “RTC,” return to clinic, which was scratched out when Dr. Lange determined a follow-up visit was not necessary. Dr. Menkes testified that his criticism of Dr. Everett was that she should have overruled Dr. Lange and insisted the child return to the clinic. However, Dr. Menkes further stated that if it is the customary practice at UAMS for the staff doctor, and not the resident, to have the final word, then Dr. Everett would not have such authority; Dr. Menkes did not know the customary practice at UAMS.

In granting the directed verdict, the trial court commented that Dr. Menkes’s criticism concerned the return to the clinic and concluded Dr. Menkes was not familiar with the standard of care at the University of Arkansas Medical School as to the duties of a resident in this situation. Once again, the guardians failed to present proof of the applicable standard of care and of the defendant’s failure to comply with that standard. Blankenship v. Burnett, 304 Ark. 469, 803 S.W.2d 539 (1991); Brumley v. Naples, supra.

9. Exclusion of medical expenses

The guardians assert the trial court erred in excluding Emily Jane Golden’s medical expenses. The trial court granted summary judgment in favor of the defendants and barred the guardians from recovering medical expenses for Emily Golden. The trial court concluded the claim for recovery of medical and related expenses incurred during the child’s minority is that of her parents only and because the parents failed to assert their claim within two years of the date of the negligent acts, the claims were barred by the statute of limitations.

The trial court concluded the child is not given an independent right to recover the cost of the medical treatment. In Parrott v. Mallett, 262 Ark. 525, 558 S.W.2d 152 (1977), this Court noted that in case of injury to a minor child, there are two separate and distinct causes of action: one in favor of the infant for his injuries and one in favor of the parent for losses suffered by the parent. We went on to state:

We have not specifically stated that recovery cannot be had in an action on behalf of a minor child for medical expenses incurred and to be incurred during his minority, where he has not paid them and is not liable for them. By an overwhelming weight of authority, it is held that no award for such damages may be made in an action brought on behalf of the child, where the child is unemancipated and not responsible for his own debts and has not paid the bill for such expenses.

Thus, the trial court correctly concluded Emily Golden did not have an independent right to recover medical expenses.

As to the right of William and Kimberly Golden to recover expenses incurred on account of the injury to Emily Golden, the trial court concluded the statute of limitations barred such an action. Ark. Code Ann. § 16-114-203 (Supp. 1995) provides:

(a) Except as otherwise provided in this section, all actions for medical injury shall be commenced within two (2) years after the cause of action accrues.
(b) The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time.

The guardians concede that the last wrongful act complained of occurred in January of 1991. William and Kimberly Golden did not even become parties to the action, and then only as guardians, until the Second Amended Complaint which was filed on February 18, 1993. Thus, the trial court correctly determined that their claims were time barred.

10. Intervention of ADHS

Appellant ADHS argues that the trial court erred in denying its motion to intervene. On November 8, 1993, ADHS filed a motion to intervene pursuant to Ark. R. Civ. P. 24(a)(1) and Ark. Code Ann. § 20-77-304 (Repl. 1991). The complaint asserted Emily Golden had applied for and received benefits administered by the Medicaid program and she had assigned any recovery from the defendants to ADHS. The complaint further asserted that Ark. Code Ann. § 20-77-301 et seq. imposes such an assignment as a matter of law and creates an absolute lien in favor of ADHS. The trial court denied the motion for intervention on the basis that ADHS’s claims were derivative of the parents’ claims for recovery of medical expenses incurred during the minority of Emily Golden. The trial court found that because the parents’ claims were barred, ADHS’s derivative claim was also time barred.

Appellant ADHS contends it has a right (1) to initiate an action on its own behalf, irrespective of the actions of others, and (2) to intervene in an existing action brought by or on behalf of a Medicaid recipient. We hold the trial court erred in denying the motion for intervention, as ADHS’s claims are clearly not derivative of the claims of the parents.

Arkansas Code Annotated § 20-77-301 (Repl. 1991) provides in part:

(a) When medical assistance benefits are provided or will be provided to a medical assistance recipient because of injury, disease, or disability for which another person is liable, the appropriate division of the Department of Human Services shall have a right to recover from the person the cost of benefits so provided. The department may, to enforce the right, institute and prosecute legal proceedings against the third person who may be liable.
(b) No action taken on behalf of the division pursuant to this section or any judgment rendered in the action shall be a bar to any action upon the claim or cause of action of the recipient, his guardian, personal representative, estate, or survivors against the third person who may be liable for the injury. Nor shall any action operate to deny to the recipient the recovery for that portion of any damages not covered hereunder.

(Emphasis added.) Further, Ark. Code Ann. § 20-77-306 (Repl. 1991) provides in part:

All parties who were legally liable for any or part of any medical cost of an injury, disease, disability, or condition requiring medical treatment for which the medicaid program, established by Acts 1965 (2nd Ex. Sess.), No. 14, § 7 [superseded], has paid, or has assumed liability to pay, shall be liable to the Department of Human Services for the amount of their liability to the extent that the Department of Human Services has paid or agreed to pay.

Thus, it is clear that ADHS has an independent right to recover the cost of benefits provided from persons who are liable for injury to a medicaid recipient.

In the instant case, ADHS sought to intervene in the action filed on behalf of Emily Golden, pursuant to Ark. Code Ann. § 20-77-304 (Repl. 1991), asserting that Emily assigned any recovery from the defendants to ADHS pursuant to Ark. Code Ann. § 20-77-307 (Supp. 1995). Section 20-77-307 provides in part:

(a) As a condition of eligibility, every Medicaid applicant shall automatically assign his or her right to any settlement, judgment, or award which may be obtained against any third party to the Arkansas Department of Human Services to the full extent of any amount which may be paid by Medicaid for the benefit of the applicant.
(b) The application for Medicaid benefits shall, in itself, constitute an assignment by operation of law.
(c) The assignment shall be considered a statutory lien on any settlement, judgment, or award received by the recipient from a third party.

Further, § 20-77-304 provides in part:

(a) If either the medical assistance recipient or the division brings an action or claim against a third person, the recipient or department shall, within thirty (30) days of filing the action, give to the other party written notice of the action or claim by personal service or registered mail. . . .
(3) If an action or claim is brought by either the department or recipient, the other may, at any time before trial on the facts, become a party to the action or shall consolidate his action or claim with the other if brought independently,

(Emphasis added.)

The appellees contend ADHS has no independent cause of action; however, that assertion is directly contradicted by § 20-77-301. Further, § 20-77-304(3) clearly contemplates ADHS may become a party to the action brought by the guardians. The trial court erred in denying the intervention; we reverse.

The guardians have also asked that we retax costs pursuant to Ark R. App. P. 6(c) because the appellees filed a Designation of Record which resulted in the inclusion of unnecessary material not used by any parties in this appeal, at an additional cost to appellants of $15,699.50. The appellees point out that the guardians initially listed 23 issues they intended to raise on appeal. The brief filed by the guardians contained only ten of these issues. Appellees further contend that among the issues raised by the guardians were vague and overbroad points which required the designation of virtually all liability testimony. We cannot say that the appellees were unreasonable in their belief that the additional portions of the record were needed for consideration of the issues initially raised by the guardians. Accordingly, the guardians’ motion to retax costs is denied.

Affirmed in part; reversed and remanded in part.

Glaze and Brown, JJ., not participating.

Special Justices James McLarty and W. Kelvin Wyrick join in this opinion.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Darrel HILL v. STATE of Arkansas
    CR 96-33
    917 S.W.2d 537
    Supreme Court of Arkansas
    Opinion delivered March 18, 1996

      Appellant, pro se.

    No response.
   Per Curiam.

Appellant Darrel Hill was convicted of capital felony murder and attempted capital murder. His original death sentence was vacated; however, upon retrial, he was again sentenced to death. Hill filed a notice of appeal from the resentencing, and the record has been lodged with this Court. On February 27, 1996, Hill filed a pro se “Motion to Stop Appeal Process.” The motion provided that Hill wanted “all appeals in my case to be stopped.” On March 1, 1996, counsel for the appellant filed a motion requesting that a mental evaluation be ordered to determine whether Hill is capable of making a voluntary and knowing waiver of his right to appeal. Counsel for appellant also moved to stay the briefing time for Hill’s appeal.

We remand the matter for findings by the trial court on the questions of whether Hill has been advised by counsel with respect to abandoning his appeal and whether Hill will submit himself to a judicial review to be held in the trial court to consider whether he fully appreciates his position and can make a rational choice with respect to pursuing or abandoning issues on appeal concerning the sentence of death. Echols v. State, 321 Ark. 497, 902 S.W.2d 781 (1995).

As in Echols, if the trial court determines that Hill has reached his decision with benefit of counsel and will submit himself to a judicial review of his capacity to abandon the appeal of his death sentence, the trial court is directed to hold a competency hearing. An appellant sentenced to death will be permitted to abandon a state appeal of a death sentence only if he has been judicially determined to have the capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation of the death sentence; that is, he must be determined to have the capacity to understand the choice of life or death and to knowingly and intelligently waive any and all rights to appeal the death sentence. See Echols v. State, supra.

If a competency hearing is held and the trial court determines Hill has made a knowing and intelligent waiver of the issues pertaining to the death sentence, the record of the hearing and the court’s findings shall be returned to this Court for review. We will review the proceeding to determine whether Hill had the capacity to understand the choice between life and death and to knowingly and intelligently waive his rights to challenge the sentence of death on appeal. See Echols v. State, supra.

The motion to stay briefing time is granted.

Remanded.


author: Robert L. Brown, Justice,

text:
    Kathryn Lynn KING v. Carl KING
    96-237
    920 S.W.2d 3
    Supreme Court of Arkansas
    Opinion delivered March 18, 1996

      Paul L. Dickerson, for appellant.
    No response.
   Robert L. Brown, Justice,

dissenting. Counsel for Kathryn Lynn King filed a motion for rule on the clerk to allow him to lodge the record in this case. According to the motion, counsel who practices law in Texarkana obtained an order of extension from Judge John Lineberger, who is a chancellor for the Fourth Judicial District in Fayetteville, prior to the expiration of the time for filing. That order was then received by the Polk County Circuit Clerk in the Eighteenth Judicial District via facsimile transmission before time expired. The motion further states that the attorney’s office telephoned the clerk’s office to verify that the order had been timely filed, and the circuit clerk’s office gave assurances that it had. In truth, the order granting the extension was not filed until one day after the expiration of the deadline. The majority would deny this motion. I would remand for an evidentiary hearing, and for that reason I dissent.

The general rule is that an attorney is responsible for filing the record, not the trial judge, the court reporter, or the circuit clerk. Norman v. State, 323 Ark. 444, S.W.2d (1996); Lewis v. State, 295 Ark. 165, 747 S.W.2d 91 (1988). Likewise, it is the attorney’s responsibility to ensure that the order granting an extension of time to file the record is actually entered even though it may have been signed by the trial court and sent to the clerk prior to the expiration of the filing period. See Willis v. State, 323 Ark. 41, 912 S.W.2d 430 (1996) (facsimile received by clerk but not actually entered before deadline expired was untimely); Voyles v. Voyles, 311 Ark. 186, 842 S.W.2d 21 (1992); Sullivan v. Wickliffe, 284 Ark. 33, 678 S.W.2d 771 (1984). We have, however, carved out an exception to the rule in instances where actions by the court clerk somehow thwarted the attorney in performing his duties. I believe this is just such a case.

In Brown v. State, 300 Ark. 201, 777 S.W.2d 585 (1989), an order extending the time to file the record for appeal was entered, but the record was received four days late. Counsel for Brown filed a motion for rule on the clerk. The attorney alleged:

[T]hat he was prevented from meeting his responsibility for filing a timely record in that the circuit clerk has been instructed by the circuit judges “to not turn over the transcripts in any criminal cases to defense attorneys appealing them, but to take care of mailing the transcripts themselves.”

Brown v. State, 300 Ark. at 202, 777 S.W.2d at 586. We remanded the case to the trial court because if the allegation was true and the attorney was prevented from performing his duty, good cause existed to grant the motion.

This is not to say that blind reliance on statements by the circuit clerk will circumscribe the rule, for we have ruled to the contrary. See, e.g., Lewis v. State, supra. (holding attorney responsible for an untimely filing, even though he relied on the circuit clerk’s oral and written representations about when the time for filing the record began to run); Welder v. Mercer, 247 Ark. 999, 448 S.W.2d 952 (1970) (holding attorney responsible for an untimely filing, where the filing fee was not paid even though deputy clerk agreed to mail the transcript for the attorney). These cases show that reliance on the clerk by itself may not be enough.

However, I believe that the attorney did what was reasonable under these circumstances. He realized that the record would not be prepared in time, and he obtained an order of extension from the trial judge, who presumably was in Fayetteville. The order was then timely received by the circuit clerk via facsimile transmission. In the motion, the attorney who is an officer of the court represented to this court that his office made a follow-up telephone call to the Polk County Circuit Clerk’s office, and personnel there assured him that the order had been signed, filed, and granted. This was not a situation where counsel could go down to the courthouse to verify the filing because the filing was to occur in another county.

The attorney’s actions were reasonable and satisfy the procedure suggested by the court of appeals in Tracor/MBA v. Artissue Flowers, 41 Ark. App. 186, 850 S.W.2d 30 (1993). In Tracor/MBA, the Court of Appeals stated that the document which was transmitted by way of facsimile machine should be sent early enough so that a follow-up telephone call could verify its receipt and allow other action, if necessary, to perfect the filing. According to counsel for the appellant, the assurance from the circuit clerk’s office that the document had been filed misled him and prevented him from fulfilling his obligations. I would remand this case to the trial court to determine whether counsel was indeed misled, as was done in Brown v. State, supra.

For these reasons, I respectfully dissent.

Roaf, J., joins.


text:
    Vastie MAYFIELD v. STATE of Arkansas
    CR 95-937
    918 S.W.2d 125
    Supreme Court of Arkansas
    Opinion delivered March 18, 1996

      Paul Johnson, for appellant.
    No response.
   Per Curiam.

The procedural facts, according to appellant’s motion, reflect the following. The judgment of conviction was entered on November 1, 1994. A “notice of appeal” was filed by a “Reverend” Stephen Womack on November 21, 1994. On November 23, 1994, counsel for appellant filed a motion to set aside the notice of appeal and also filed a motion to set aside the judgment of conviction. More than thirty days passed with no action by the trial court on either motion, yet no notice of appeal was timely filed by appellant.

On March 6, 1995, the trial court ruled that the original notice of appeal was ineffective and entered an order denying appellant’s motion to set aside the judgment of conviction. Appellant alleges that he “promptly” filed a notice of appeal. Sometime later, appellant tendered a record to the clerk of this court, but the clerk refused to file it because it was untimely.

Our automatic case tracking system, or docket book, reflects that on August 8, 1995, appellant filed a motion for a rule on the clerk. On September 18, 1995, we denied the motion “without prejudice to filing a motion for a belated appeal.” On February 13, 1996, the clerk sent a letter to appellant’s attorney requesting a status report. Finally, on February 21, 1996, over fifteen months after the judgment of conviction, appellant filed the motion for belated appeal now before us.

In this case the notice of appeal was not timely given; in addition, the record was tendered more than seven months after the entry of judgment. See Ark. R. App. P. 5(b). It is an attorney’s duty to timely give a notice of appeal and file the record. Patton v. State, 320 Ark. 271, 895 S.W.2d 531 (1995). The attorney did neither in this case. Further compounding those errors, after we denied the rule on the clerk and directed counsel to file a motion for a belated appeal, counsel waited another five months to file this motion for belated appeal.

We grant the motion, and direct that a copy of this per curiam be filed with the Committee on Professional Conduct. See In re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).


text:
    Dan MORRISSEY v. STATE of Arkansas
    CR 96-245
    917 S.W.2d 167
    Supreme Court of Arkansas
    Opinion delivered March 18, 1996

      J. Blake Hendrix, for appellant.
    No response.
   Per Curiam.

Appellant Dan Morrissey was convicted in a bench trial in 1994 of attempted rape and sentenced to seven years imprisonment; no appeal was taken. Morrissey has filed a timely motion for belated appeal. See Rule 2(e) of the Revised Rules of Appellate Procedure — Criminal; A.R.Cr.P. Rule 36.9 (predecessor of Rule 2(e)). When a good reason for the omission is shown by affidavit, this Court may act upon and decide a case in which the notice of appeal was not given. Rule 2(e) of the Revived Rules of Appellate Procedure — Criminal; A.R.Cr.P. Rule 36.9 (superseded); see also Davis v. State, 319 Ark. 171, 889 S.W.2d 769 (1994) (decided under A.R.Cr.P. Rule 36.9).

In the instant case, Morrissey contends his failure to file a timely notice of appeal was predicated on erroneous advice by his trial counsel. Morrissey’s affidavit states that he strongly expressed to his trial counsel his desire to appeal. However, according to the affidavit, Morrissey’s counsel informed him that he stood the risk of being again charged with rape, rather than only attempted rape, where he could face a life sentence. Morrissey also submits he was advised that appealing his sentence would be futile because he would go before the same judge. Morrissey avers that his trial counsel did not advise him that the trial judge could sentence him to a harsher sentence only if some additional conduct had occurred since the sentencing.

In sum, Morrissey submits that his trial counsel’s advice constituted ineffective assistance of counsel and such a reason constitutes good cause for the failure to file a notice of appeal. Morrissey’s trial counsel, Ed Webb, has not responded to the motion. However, there is no indication that Mr. Webb was ever served with a copy of the motion. Consequently, we remand this case to the trial court for an evidentiary hearing and Findings of Fact and Conclusions of Law on the question of whether Morrissey knowingly waived his right to appeal the conviction. See Salam v. State, 300 Ark. 630, 781 S.W.2d 30 (1989).


text:
    Joel P. SMITH v. STATE of Arkansas
    CR 96-261
    917 S.W.2d 168
    Supreme Court of Arkansas
    Opinion delivered March 18, 1996

      Robert S. Tschiemer, for appellant.
    No response.
   Per Curiam.

Appellant, Joel P. Smith, by his attorney, has filed for a belated appeal.

His attorney, Robert S. Tschiemer, admits that the failure to file the record in time was due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In re Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Robert H. Dudley, Justice.

text:
    Deangelo ALLEN v. STATE of Arkansas
    CR 95-1042
    918 S.W.2d 699
    Supreme Court of Arkansas
    Opinion delivered March 25, 1996

      Bart E. Ziegenhorn, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant Deangelo Allen, Earnest Phillips, Jr., and Quincy Wright were charged with the capital murder of Otto Jeter. Appellant was tried separately, convicted of capital murder, and sentenced to life imprisonment without parole. We affirm the judgment of conviction.

Because appellant contends that the evidence is insufficient to sustain the conviction, we set out the evidence with all inferences favorable to appellee. See Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). Tony McKenzie, a friend of appellant, testified that on the afternoon of the murder, Phillips, Wright, and appellant came to his house. Sometime after dark, the four of them got into Phillips’s car. McKenzie drove appellant, Phillips, and Wright to the intersection of Seventh and Broadway Streets in West Memphis where Phillips asked McKenzie to let them out so he could “sting a fool,” or rob someone. McKenzie testified that he told Phillips he wanted no part of a robbery. He stated that when Phillips made the statement, Phillips was in the passenger side of the front seat and appellant and Wright were in the back seat. After letting the three of them out, McKenzie drove to his girlfriend’s house. He stayed there until 11:35 p.m., got back into Phillips’s car, and started back to his house. On the way back he saw appellant, Phillips, and Wright at a four-way intersection. McKenzie said that, as he stopped to let them in the car, he saw that Phillips’s shirt was ripped and that he was throwing something away. In addition, it looked like Phillips had plastic wrapped around his hand. When they got into the car, Wright had his hands tucked up under his shirt and appellant was sweating. McKenzie drove to his home, and Phillips drove the car away with Wright and appellant as passengers.

McKenzie additionally testified that Phillips later told him that he had killed a man and that he “couldn’t take it,” but gave no other details of the murder. Phillips had a pistol in his possession when he made the statement.

Eric Marshall, another acquaintance, testified that appellant told him that the three defendants heard that Jeter had won some money gambling. Appellant told him they went to Jeter’s house, told Jeter that they had car trouble, and Jeter opened the door and let them in. He said Phillips took a potholder from the wall and used it to cover a pistol. Phillips pulled the trigger, the pistol snapped, and Jeter asked them if they were playing trick or treat. Marshall said that appellant told him that Phillips pulled the trigger a second time, the pistol fired, they searched the house and took some guns, and McKenzie picked them up. Marshall testified that appellant was shaky and had tears in his eyes when he talked about the crime.

Appellant made an incriminating statement that was videotaped and shown to the jury. This statement contained details that were inconsistent with other witnesses’ testimony. Appellant stated that he, McKenzie, Phillips, and Wright got into Phillips’s car. McKenzie was driving. He said the car blew out a tire just before they reached Ninth Street. Phillips told McKenzie, the driver, to stay with the car while the rest of them went for help. He said that he asked Phillips where they were going and Phillips told him that he would “see when they got there.” They went to Jeter’s house, and Jeter let them in because he knew Phillips. Appellant said that he went to the bathroom when they first entered the house, and while still in the bathroom, he heard a gunshot. He came out of the bathroom and saw Jeter was bleeding. He said Phillips told him to search Jeter, but he declined.

Appellant said that he saw Phillips and Wright search the house and watched them find a Crown Royal sack filled with fifty-cent pieces. He said they offered him some of the money, but he declined to take it. He said Phillips and Wright found three or four twenty-two caliber revolvers in another room. One of the pistols was found under a bed. In a third room, they found more money. He said that he had been unaware of the plan to rob Jeter before they went into the house.

Quincy Wright also gave an incriminating statement which was videotaped and shown to the jury. In it, Wright said appellant was sitting on the couch immediately before the shooting.

Jeter’s corpse was found lying face down in the living room by Beulah Weatherspoon, a neighbor. Ms. Weatherspoon’s son, Rodney Weatherspoon, checked Jeter’s pulse but found none, and saw that there was dried blood on his head, his back, and the back of his pants. He testified that the house had been ransacked, as though someone had been looking for something. Drawers had been opened and were on the floor, clothing was strewn all over the floor, mattresses had been thrown off the bed, and closet doors were open.

West Memphis police detective Bryn Ridge testified that when he arrived at the scene, he noticed that there did not appear to have been a forced entry. The key was in the lock on the inside of the security door. The television was on. He said that he found Jeter lying in the floor, apparently shot in the head. He said the entire house was ransacked except for the kitchen. The medical examiner’s report showed that Jeter died from a gunshot wound to the head.

Jeter’s widow testified that when she returned home, the money Jeter had won gambling was missing. His empty billfold was found away from his body. She testified that forty dollars’ worth of half dollars contained in a Crown Royal bag and some pistols were missing.

The State sought to prove that appellant aided in the robbery and is liable for capital murder because the person for whom he was an accomplice, Phillips, killed Jeter in the course of the felony. The relevant statute provides that one commits capital murder if:

(1) Acting alone or with one (1) or more other persons, he commits or attempts to commit. . . robbery . . . and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life [.]

Ark. Code Ann. § 5 — 10—101 (a)(1) (Repl. 1993 & Supp. 1995).

To prove that appellant was an accomplice to capital murder, the State had to prove that “with the purpose of promoting or facilitating the commission of an offense,” appellant “solicited], advise [ed], encourage [ed], or coerce[d]” another person to commit capital murder or “aid[ed], agree[d] to aid, or attempted] to aid the other person in planning or committing” capital murder, or “having a legal duty to prevent the commission of” capital murder, “failfed] to make proper effort to do so.” Ark. Code Ann. § 5-2-403(a).

There was substantial evidence from which the jury could have found a motive from the testimony that the three codefendants knew Jeter had won money gambling, and could have concluded that appellant aided or attempted to aid in the commission of the robbery from the proof of his actions in getting in the car, voluntarily getting out near Jeter’s house, walking up to Jeter’s house, and then going inside. There was substantial evidence from his statements to others that he was more than an innocent bystander and that he knew, in detail, the items taken. The jury was not required to believe appellant’s version of the event because credibility of witnesses is the exclusive province of the trier of fact. Bryant v. State, 314 Ark. 130, 862 S.W.2d 215 (1993).

Appellant next argues that the trial court erred by allowing Phillips to assert his Fifth Amendment right against self-incrimination. We do not reach the issue. Appellant made no objection in the trial court to Phillips’s assertion of the Fifth Amendment, and we do not address arguments made for the first time on appeal. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). Even in cases where life without parole is imposed, this court’s duty is only to examine the record for error in objections made at trial and decided adversely to an appellant. Ark. Sup. Ct. R. 4-3(h); Spears v. State, 321 Ark. 504, 905 S.W.2d 828 (1995). In addition, appellant made no proffer of Phillips’s testimony, and we have no way of knowing “the nature of the statement and the exposure it invites,” which is the prerequisite for determining whether a Fifth Amendment privilege exists. See In re Gault, 387 U.S. 1, 49 (1967). Further, in Orr v. State, 288 Ark. 118, 703 S.W.2d 438 (1986), we said “ ‘where error is assigned in the refusal of the court to hear the testimony of a witness, the record must disclose the substance or purport of the offered testimony, so that this court may determine whether or not its rejection was prejudicial.’ ” Id. at 125, 703 S.W.2d at 441 (quoting Latourette v. State, 91 Ark. 65, 67, 120 S.W 411, 411 (1909)).

An examination of the record has been made in accordance with Ark. Sup. Ct. R. 4-3 (f), and we have determined that there were no rulings adverse to appellant that constituted prejudicial error.

Affirmed.


author: ROBERT H. Dudley, Justice.

text:
    Robert H. THOMAS v. ARKANSAS BOARD of CORRECTION and COMMUNITY PUNISHMENT; Jim Guy Tucker, Governor of Arkansas; and Winston Bryant, Attorney General of Arkansas
    95-1139
    918 S.W.2d 156
    Supreme Court of Arkansas
    Opinion delivered March 25, 1996

      Robert L. Thomas, for appellant.

      Winston Bryant, Att’y Gen., by: Olan W. Reeves, Sr. Asst. Att’y Gen., for appellee.
   ROBERT H. Dudley, Justice.

Appellant, an inmate in the penitentiary, filed this suit against the Board of Correction and Community Punishment, the Governor, and the Attorney General. He sought a declaratory judgment that two 1993 acts, as applied to him, would constitute a violation of the ex post facto doctrine. He additionally sought mandamus, class certification, and damages. The trial court ruled on the merits and denied relief. We remand for the trial court to dismiss.

Appellant committed the crime of rape in 1989. He contends that his sentence is governed by the law in effect at the time of the offense, and, under that law, the period to be served in the penitentiary could be shortened with “meritorious good time.” See Ark. Code Ann. §§ 12-29-201 and -202 (1987). He next contends that the statutes providing for meritorious good time were repealed by Acts 536 and 558 of 1993, codified as Ark. Code Ann. §§ 12-29-201 and -202 (Repl. 1995), and that in August 1993, Larry Norris, Acting Director of the Arkansas Department of Correction, wrote a memorandum which provided that under the provisions of Act 536 of 1993, some good time will be phased out. He concludes that the effect of the 1993 acts will be to lengthen the period of time he must serve in the penitentiary because “meritorious good time” has been eliminated, and, consequently, the 1993 acts are prohibited as ex post facto laws. The trial court held that statutes which take away appellant’s ability to earn meritorious good time are not ex post facto laws.

Appellant offered no proof at trial that he has been denied meritorious good time. He offered a copy of a memorandum by the Acting Director that provides that some “good time” will be phased out, but, on December 30, 1993, which was after the memorandum was written and before the effective date of the 1993 acts, the Board of Correction and Community Punishment approved a regulation on the express subject of “meritorious good time.” In the material part, it provides:

G. Effective Date
1. Inmates whose offense date is prior to January 1, 1994, shall earn good time (including good time applied to the length of sentence) in accordance with the good time law in effect on the date of the offense.
2. Inmates whose offense date is on or after January 1, 1994, shall earn good time in accordance with Act 549 and Act 536 of 1993, Regular Session.

Arkansas Department of Correction and Community Punishment Regulation DOC 826, DCP 7.9 (approved Dec. 30, 1993, effective Jan. 1, 1994) (superseding Ark. 826, dated July 17, 1991).

By the unmistakable wording of the regulation, the Department does not intend to retroactively apply the 1993 acts to deprive appellant of meritorious good time. Appellant offered no proof to show that the Acting Director’s memorandum has deprived him of meritorious good time. He presented no evidence to show that he has earned meritorious good time which has not been allowed. Under the clear language of the regulation, appellant still has the opportunity to earn meritorious good time in accord with the law in effect on the date of his offense. He does not contend that the Department has erroneously calculated his good time by failing to follow this regulation. There is simply no case or controversy involving the application of the 1993 acts to appellant. A holding by this court would have no practical legal effect on an existing case.

A case is moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. Arkansas Intercollegiate Conf. v. Parnham, 309 Ark. 170, 174, 828 S.W.2d 828, 831 (1992). As a general rule, this court does not address moot issues. A.P. Leonards v. E.A. Martin Mach. Co., 321 Ark. 239, 900 S.W.2d 546 (1995); Johnson v. State, 319 Ark. 3, 888 S.W.2d 661 (1994). There are some exceptions to the general rule, such as cases which are capable of repetition yet evade review, see Nathaniel v. Forrest City Sch. Dist., 300 Ark. 513, 780 S.W.2d 539 (1989), and cases involving the consideration of public interest and prevention of future litigation, see Duhon v. Gravett, 302 Ark. 358, 790 S.W.2d 155 (1990), but these exceptions do not apply to the present case. Accordingly, we remand for dismissal.

Remanded.


author: DAVID Newbern, Justice.

text:
    Michael CLAY v. STATE of Arkansas
    CR 95-1145
    919 S.W.2d 190
    Supreme Court of Arkansas
    Opinion delivered March 25, 1996

      Bart E. Ziegenhorn, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   DAVID Newbern, Justice.

Michael Clay was convicted of capital murder and sentenced to life imprisonment without parole. We reversed the conviction and remanded the case. Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994). He was retried, convicted, and sentenced to life imprisonment without parole for capital felony murder. Mr. Clay argues two points of appeal. He first contends the evidence was insufficient to establish the allegation that he murdered Glynda Wallace in the course of committing a felony as required for conviction pursuant to Ark. Code Ann. § 5-10-101. We hold the evidence was sufficient. His second point is that it was error for the Trial Court to admit evidence of a ballistics test because the State had not properly proved the weapon to which the testimony related belonged to him and because the weapon could not be produced at the trial. We hold the evidence connecting the weapon to Mr. Clay was sufficient. We affirm the judgment.

The State’s evidence in the second trial showed these facts. On August 14, 1990, the body of Glynda Wallace was found near Macedonia Road in Gilmore. Ms. Wallace died as the result of a gunshot wound. On August 20, 1990, the burned shell of Ms. Wallace’s Pontiac was located in a rice field.

The Crittenden County Sheriffs Department received an anonymous tip that Michael Clay was seen driving the victim’s car. On Thursday, August 23, 1990, Officer John Murray of the Crit-tenden County Sheriff’s Department asked Mr. Clay to come in for questioning concerning the theft of the victim’s vehicle. Mr. Clay voluntarily accompanied Officer Murray to the Sheriff’s Department. He waived his rights and said the car belonged to his friend, Leslie Shaw. Later that evening Mr. Clay was detained again by the Sheriff’s Department. He again waived his rights and made a taped statement in which he claimed that he bought the car from his uncle. At that point, Mr. Clay was charged with theft by receiving of Ms. Wallace’s vehicle.

After being charged, Mr. Clay escaped from the jail and was not apprehended until Saturday, August 25, 1990. On that date, he was questioned further regarding his possession of the vehicle and the murder of Ms. Wallace. He waived his rights and made another taped statement in which he claimed he was in the car when Ms. Wallace was murdered by his friend Robert who later gave him the car.

In his first two taped statements, Mr. Clay stated that he attempted to have the vehicle inspected at a service station in Turrell, Arkansas. Dale Doss, a service-station attendant, later testified that he remembered conducting an inspection of a Pontiac Grand Am at Mr. Clay’s request on August 18, 1990.

Mr. Clay was held overnight and was questioned again on the following evening, Sunday, August 26, 1990. At that time, Mr. Clay waived his rights again and gave a taped statement in which he stated:

I was walking down to Gilmore. I seen this lady had a flat. She needed some help. I helped her. I asked her to give me a ride. She said no. I got my gun out, and I asked her to give me a ride. She gave me a ride. We went on down the road. She said I would have to jump out before she stopped, because she ain’t stopping, she ain’t going to Gilmore. I went to jump out, and next thing I know my gun went off.

Mr. Clay then stated that his friend, Robert Turner, burned the car.

1. Evidence of underlying felony

Mr. Clay made timely motions for a directed verdict on the ground that the prosecution failed to prove capital felony murder because there was no substantial evidence that Ms. Wallace was murdered in the course of and in furtherance of a felony. He contends the motions should have been granted because the State’s proof indicated only that the robbery was an “afterthought” to the murder, and not its motivating purpose.

In support of his argument, Mr. Clay relies on the fact that the statements that were introduced during his second trial, while contradictory, indicate only that the shooting was accidental, and not in the furtherance of a robbery. He argues, citing Grigsby v. State, 260 Ark. 499, 542 S.W.2d 275 (1976), that his possession of Ms. Wallace’s vehicle cfter the homicide does not necessarily indicate that he is guilty of capital felony murder. We rejected a similar claim in the Grigsby case and said:

Appellant argues that his motion for directed verdict and reduction of his charge to one of first degree murder should have been granted. This argument is based upon his contention that the only evidence about what happened at the time of the killing showed that he took Childers’ property after the killing, and that there is no evidence that this taking was anything other than an afterthought. For us to rule as a matter of law that the robbery was an afterthought would require that portions of Grigsby’s statement, which was mostly exculpatory, be taken at face value. If indeed Grigsby murdered Childers, and the killing was not accidental, it would be difficult to believe that anything other than robbery motivated the killing. Suffice it to say that the circumstantial evidence here furnishes adequate support for the jury’s finding that Childers was killed in the perpetration of a robbery. See Upton v. State, 257 Ark. 424, 516 S.W.2d 904.

See also Pomerleau v. State, 303 Ark. 275, 795 S.W.2d 929 (1990), and Owens v. State, 283 Ark. 327, 675 S.W.2d 834 (1984), in which we said the State need only prove that the robbery and the murder were parts of the same transaction, or occurred' within the same brief interval, to support a conviction of capital felony murder. In such cases, we do not, in the language of the Grigsby decision, require the State to show a “strict causal relationship between the felony and the homicide.” Mr. Clay’s statement, when combined with his subsequent conduct with respect to the Ms. Wallace’s automobile, was sufficient to show the murder and robbery occurred together.

2. Ballistics evidence

James Funderburg, a drug task force officer who assisted in the investigation of Ms. Wallace’s death, testified he went to the home of Mr. Clay’s father’s, Ishmael Clay. He advised Ishmael Clay that “if he had any knowledge of where his son was and had any knowledge of the weapon that was used” it would be to his son’s benefit to surrender. John Murray, a sheriff’s department investigator, testified that Ishmael Clay brought to the sheriff’s department a .25 caliber automatic pistol with the serial number MK18579.

Robert Turner, the friend Mr. Clay at one point accused of having participated in the murder, testified he saw Mr. Clay with a .25 caliber pistol a few days after the murder.

Officer Murray said he gave the weapon he had received from Ishmael Clay to Officer Mickey Strayhorn, who testified that he received a .25 caliber, semi-automatic, Excam pistol, model GT27, serial number MK18579, and that he locked it in an evidence locker until he could deliver it to the State Crime Lab in Litde Rock.

Ron Andrejack, a ballistics examiner with the State Crime Laboratory, testified the gun he received from the Sheriff’s Department was an Excam, Model GT27, blue semi-automatic pistol bearing the serial number MK18579. Mr. Andrejack stated, based upon tests he conducted, that weapon fired a bullet that was recovered from Ms. Wallace’s body.

Although Ishmael Clay did not testify as to his acquisition of the pistol, the fact that he brought the pistol to the sheriff’s department apparently after having been asked about his son, the killing, and “a weapon,” was sufficient to allow the jury to consider it. In view of the solid chain of evidence between Ishmael Clay and Mr. Andrejack, it was insignificant that the State was unable to produce the pistol at the trial. The issue is whether the Trial Court abused its discretion in admitting the evidence. Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991). No abuse occurred.

The record of the trial has been reviewed in accordance with Arkansas Supreme Court Rule 4-3 (h). No errors resulting in rulings prejudicial to Mr. Clay have been found.

Affirmed.


author: TOM GLAZE, Justice.

text:
    Floyd G. VILLINES, III, as County Judge of Pulaski County, et al. v. Jim Guy TUCKER, Governor of the State of Arkansas
    95-642
    918 S.W.2d 153
    Supreme Court of Arkansas
    Opinion delivered March 25, 1996

      Nelwyn Davis and Duncan & Rainwater, by: Mike Rainwater, for appellants.

      Winston Bryant, Att’y Gen., by: Angela S. Jegley, Senior Asst. Att’y Gen., for appellee.
   TOM GLAZE, Justice.

The Pulaski County Judge and Quorum Court and fifty-one other county officials initiated this suit against the Governor, asking the Pulaski County Chancery Court, Sixth Division, to declare unconstitutional certain statutes dealing with the funding of the administration of justice in Arkansas. As background information, the state appropriates money for salaries of trial court judges, prosecuting attorneys, and also partially pays court reporters and some court bailiffs. However, the General Assembly requires the respective counties to fund the other expenses of the trial court system under Ark. Code Ann. § 14-14-802(a)(1) (1987). These other expenses include the costs of courthouse space, operating expenses for the office of the judge and prosecutor, court and prosecuting attorney personnel, public defender staffs, and court clerk staffs and operating expenses. In order to pay these expenses, counties have been statutorily authorized to assess and collect certain costs, fees and fines, but in some instances, these revenues have been insufficient to underwrite all administration-of-justice expenses. As a consequence, some counties have had to resort to the use of general county revenues from property and sales taxes and state turnback funds to pay the balance of such expenses. Because they have been required to utilize county revenues to subsidize the costs of the trial court system in the state, the counties claim the court funding mechanism is unconstitutional. In their complaint, the counties alleged the funding system was unconstitutional in the following three ways:

(1) It allows the state legislature to usurp county legislative authority that violates Ark. Const, amend. 55, §§ 1(a) and 4, and Ark. Const, art. 16, § 40;

(2) the payment of county locally generated funds for the state court system constitutes an illegal exaction that violates Article 16, §§11 and 13; and

(3) it creates a system of local and special legislation that violates Amendment 14 to the state constitution.

After an extensive trial, the trial judge rejected the counties’ constitutional claims. Only the Pulaski County officials appeal the chancellor’s order.

In framing its first point for reversal, Pulaski County combines the above three legal claims made at trial, and states the chancellor erred in holding that the General Assembly can require counties to expend county funds on the state judicial system and in so holding, she also erred in deciding such expenditures are not illegal exac-tions. Pulaski County’s arguments run counter to Arkansas’s settled law.

First, we point to an enabling statutory provision of Amendment 55, § 14-14-802(a)(l), which imposes the duty upon the respective counties to provide for the necessary services of the administration of justice. While Pulaski County contends this statute is unconstitutional and contravenes Amendment 55, § 1(a) because it requires the expenditure of county funds for state and not county purposes, the county is mistaken in characterizing the administration of justice as being only a state purpose or responsibility. In Mears v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1978), this court clearly explained, as follows, the role of the respective counties in providing services for the administration of justice:

In Burrow v. Batchelor, 193 Ark. 229, 98 S.W.2d 946, we held that the salaries of the duly appointed reporter and stenographer for the grand jury and of the duly appointed and acting court reporter in the Fifteenth Judicial Circuit were a part of the necessary expenses of the operation of county government of Franklin County, which was part of the Fifteenth Judicial District. This, of course, was based upon the fact that the services of these reporters were essential to the administration of justice. Counties are civil divisions of the state for political and judicial purposes and are its auxiliaries and instrumentalities in the administration of its government. Lake v. Tatum,, 175 Ark. 90, 1 S.W.2d 554. They are a political subdivision of the state for the administration of justice and local government. Pulaski County v. Reeve, 42 Ark. 54. The very word “county” signifies a circuit or portion of the state resulting from a division of the state into such areas for the better government thereof and the easier administration of justice. 56 Am. Jur. 2d 74, Municipal Corporations, etc. § 5. Nothing in Amendment 55 changes the status of the county insofar as its primary purposes and functions are concerned. The administration of justice within the county is one of the primary reasons for its existence. (Emphasis added.)

See also Mears v. Ark. State Hospital, 265 Ark. 844, 581 S.W.2d 339 (1979) (counties are obligated to pay for costs of the administration of justice where required to do so by the legislature); Venhaus v. State, 285 Ark. 23, 684 S.W.2d 252 (1985); Mackey v. McDonald, 255 Ark. 978, 508 S.W.2d 726 (1974).

By the foregoing authority, this court has made itself clear that our respective counties are responsible for the administration of justice. However, that does not end the inquiry, because when the General Assembly enacts legislation relating to the administration of justice, that law must meet the dictates of Amendment 14 to the Arkansas Constitution prohibiting special and local acts. In this respect, Arkansas’s earlier cases state the rule that laws relating to the administration of justice were to be neither local nor special within the meaning of Amendment 14. However, this court in Littleton v. Blanton, 281 Ark. 395, 665 S.W.2d 239 (1984), modified that rule somewhat. There, the court announced that statutes relating to the administration of justice would no longer be held per se to be neither local nor special within the meaning of Amendment 14. The Littleton court stated that, while the General Assembly has the authority to establish courts within the limits prescribed by the Constitution, it should strive to create a judicial system which would be as uniform as practical throughout the state. The court explained the General Assembly’s responsibilities in this regard as follows:

A densely-populated metropolitan area requires more judges, court personnel and different procedures than does a thinly-populated area. The Legislature has traditionally met the growing judicial needs of an area by statutes which apply only to individual counties, judicial districts or even divisions within districts. But these statutes have not been held to be “local or special” within the meaning of Amendment 14, since they were a part of a judicial system for the entire state and were based upon reasonable considerations such as population, case load, transportation and other nondiscriminatory factors or classifications.

Id. at 405.

In arguing the judicial system is not uniform throughout the state, Pulaski County points to various court personnel and expense statutes enacted by the General Assembly that apply only to specified districts and counties. However, in deciding whether statutes relating to the administration of justice are local or special legislation, the court in Littleton established the following test:

We will continue to hold that statutes designed to meet the judicial needs of an area on a non-discriminatory basis are a part of a judicial system for the entire state and are not local or special within the meaning of Amendment 14, even though such statutes may apply only to individual counties, judicial districts or divisions within districts .... The limited application of the statute must be non-discriminatory and bear a reasonable relation to the subject matter of the legislation. (Emphasis added.)

Id. at 406.

Recognizing the foregoing rule in Littleton, Pulaski County expands its argument by contending the General Assembly’s enactments relating to the administration of justice are discriminatory, and those laws place an unequal burden on the respective counties. In support of its argument, the County points to state audit reports of thirty-one counties that, it asserts, show the administration of justice is a substantial cost to some counties, but in others, no costs are underwritten by general county funds. As an example, Pulaski County argues this evidence reflects that in 1991, it was required to spend $3,373,493.38 of its general funds since the amount of court-related revenues it was authorized to collect was insufficient to pay for the court-related services. On the other hand, Pulaski County claims that, for the same period, Madison County funded its judicial system without using county funds because it had accumulated a surplus of court-related revenues which were more than enough to cover court services. In other terms, Pulaski County says it spent more than $10.00 in per capita costs to deliver services to the judicial system, but Madison County actually accrued over $10.00 per cap-ita income after its court services were delivered.

Pulaski County’s argument fails for at least two reasons. One, as previously discussed above, this court in Littleton emphasized that, in its enactments, the General Assembly should strive for a uniform judicial system. In meeting this objective, however, the General Assembly is not relegated solely to a cost-per-capita test as Pulaski County puts forth in its argument here. Instead, this court in Littleton said that, in providing for a judicial system for the entire state, the General Assembly should consider such matters as population, case load, transportation and other non-discriminatory classifications. Along this same vein, the court also opined that a densely populated metropolitan area requires more judges, court personnel and different procedures than does a thinly populated area. Id. 281 Ark. at 405, 665 S.W.2d at 243.

The County’s proof tends to ignore those factors set out in Littleton, and instead its evidence is limited almost exclusively to the net costs or per capita amount each county has borne in providing services for the court system. A second reason for rejecting Pulaski County’s argument is that, even if we accepted the County’s unequal burden-of-costs analysis, the county’s proof would still be lacking. For instance, the state audit reports do not cover circuit court revenues, yet they did include inapposite information pertaining to municipal revenues. In sum, we hold the chancellor was correct in deciding Pulaski County failed to prove the administration of justice in each county is not uniform across the state.

In conclusion, we address two additional points. The first deals with the chancellor’s conclusion of law that the state can constitutionally require counties to pay the expenses associated with the administration of justice and the counties must appropriate money to meet the state’s requirements. Again, while this rule is generally true, we reiterate that any legislative enactment concerning the administration of justice must ensure fairness, and the factors or classification used by the General Assembly must be nondiscriminatory and free from arbitrariness. Second, we note Pulaski County’s mention of equal protection when discussing its local/ special legislation argument, even though the County never raised any equal protection claim at trial. Pulaski County cites Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983), as its authority for raising this constitutional argument for the first time on appeal. We dispose of this point summarily, by stating that this court must presume legislation is constitutional and rationally related to achieving a legitimate governmental objective. Id. As we have already thoroughly discussed above, the county’s proof simply falls short in showing arbitrariness or an irrational basis in providing for the administration of justice throughout the state.

For the reasons above, we affirm.

       The origin of this exception is discussed in the Littleton case, and the Littleton court, citing Waterman v. Hawkins, 75 Ark. 120, 86 S.W. 844 (1905), called the exception the “Waterman rule.”

       Those cited by the County include Ark. Code Ann. §§ 16-13-1004, 1204, 1404— 1414, 1416, 1418 — 1419, 1504 — 1505, 1905 — 1906, 2605 — 2606, 2704, 2805; Ark. Code Ann. §§ 16-21-119, 145 — 146, 901, 2202, 1201, 1301, 1602 — 1603, 1701, 2202 — 2203; and Act 1193 of 1993.

       While the County contends on appeal that affidavits from the county treasurers should have been admitted pursuant to Ark. R. Evid. 102, we note that when the County preferred the affidavits below, the state put forth a hearsay objection, and the County failed to counter with a legally supportable argument. Because the County failed to raise this Rule 102 argument below, we do not consider it on appeal. Even if such affidavits were admissible, however, the affidavits, as preferred, contain information similar to that contained in the state audit reports and would therefore have little probative value.