text:
    Ronnie ROE v. STATE of Arkansas, CSEU ex rel. Evelyn Williams
    90-222
    804 S.W.2d 708
    Supreme Court of Arkansas
    Opinion delivered March 4, 1991.

      Robert S. Blatt and William J. Kropp, III, for appellant.

      G. Keith Griffith, for appellee.
   Jack Holt, Jr., Chief Justice.

This is a paternity case in which the appellee, State of Arkansas, County Support Enforcement Unit ex rel. Evelyn Williams (CSEU), sought to establish the appellant, Ronnie Roe, as the father of Mandie A. Williams, who’was born on April 11, 1978, to Evelyn Williams.

At a hearing in the County Court of Crawford County on October 20, 1988, Mr. Roe requested blood testing pursuant to Ark. Code Ann. § 9-10-108 (1987). The County Court granted the request and appointed National Paternity Laboratories, Inc. (NPL) of Dayton, Ohio, to perform the tests. NPL submitted a written report indicating a 97.94 % probability that Mr. Roe was the biological father of Mandie Williams. On January 27,1989, the County Court found Mr. Roe to be the father of Mandie Williams.

A timely appeal was made to the Circuit Court of Crawford County, which subsequently transferred the case to the Chancery Court of Crawford County. A de novo hearing was held on October 6, 1989, as a result of which the chancellor determined that Mr. Roe was the father of Mandie Williams and ordered that he pay child support in the amount of $45.00 per week.

Mr. Roe appeals and alleged two points of error: 1) that the chancellor abused his discretion in admitting into evidence a blood test which, by court order, was performed outside the subpoena power of the court, and 2) that the State’s evidence fails to establish that he is the father of the child. CSEU cross-appeals contending the chancellor erred in not setting support in accordance with the Family Support Chart.

DIRECT APPEAL

Initially, Mr. Roe argues that the chancellor’s admission into evidence of NPL’s report effectively denied him his right to confront and cross-examine the experts who performed the test because the out-of-state laboratory and its experts were outside the subpoena power of the court.

Arkansas Code Ann. § 9-10-108 (Supp. 1989) addresses blood tests in a paternity action and provides in pertinent part as follows:

(a) At the request of either party in a paternity action, the trial court shall direct that the defendant, complainant, and child submit in one (1) or more blood tests or other scientific examinations or tests ... to determine whether or not the defendant can be excluded as being the father of the child and to establish the probability of paternity if the test does not exclude the defendant.
(b) The tests shall be made by a duly qualified physician or physicians, or by another duly qualified person or persons, not to exceed three (3), to be appointed by the court.
(c) (1) The results of the tests shall be receivable in evidence.
(c) (2) (A) A written report of the test results by the duly qualified expert performing the test, or by a fully qualified expert under whose supervision and direction the test and analysis have been performed, certified by an affidavit duly subscribed and sworn to by him before a notary public, may be introduced in evidence in illegitimacy actions without calling the expert as a witness. If either party shall desire to question the expert certifying the results, the party shall have the expert subpoenaed within a reasonable time prior to trial.
(c)(2)(B) If the results of the paternity tests establish a ninety-five percent (95 %) or more probability of inclusion that the defendant is the natural father of the child and after corroborating testimony of the mother in regard to access during the probable period of conception, such shall constitute a prima facie case of establishment of paternity and the burden of proof shall shift to the defendant to rebut such proof.
* * * *
(c)(3) The experts shall be subject to cross-examination by both parties after the court has caused them to disclose their findings.
* * * *
(Emphasis added.)

Further, in Thomas v. Pacheco, 293 Ark. 564, 740 S.W.2d 123 (1987), we held that:

. . . if a county judge is going to use a nonresident firm or individual to perform blood tests in bastardy proceedings, it is his responsibility to see that the person performing the blood test is available for trial, if the proof requires his presence, as though that person were an Arkansas resident; he must be subject to subpoena just as the statute provides.

However, Mr. Roe’s reliance on Thomas v. Pacheco, supra, and Chandler v. Baker, 16 Ark. App. 253, 700 S.W.2d 378 (1985), is misplaced. In Thomas, a non-resident expert subpoenaed by the appellant refused to honor the subpoena; the trial court ruled that under the circumstances a telephone deposition of another doctor was a reasonable alternative, and we found that the trial court abused its discretion in doing so. In Chandler, section 9-10-108 (c)(2) (A) applied only to the State Medical Examiner at the time that case was tried.

In this case, Mr. Roe requested the blood test, yet never attempted to subpoena the experts who conducted the tests at NPL. It was his sole responsibility, under section 9-10-108(c)(2)(A), to have had the experts subpoenaed within a reasonable time prior to trial. Consequently, his inability to confront or cross-examine the experts was brought about by his own inattention to our code requirement to subpoena witnesses under these circumstances. Roe’s claim is without legitimate basis.

Next, Mr. Roe claims that the State’s evidence fails to establish that he is the father of the child. Pursuant to section 9-10-108, a prima facie case of paternity exists after the establishment of test results of a 95 % or more probability of paternity and corroborating testimony of the mother regarding access during the probable period of conception.

In Aldridge v. Tyrrell, 301 Ark. 116, 782 S.W.2d 562 (1990), we noted that on appeal, we consider the evidence in the light most favorable to the appellee, and, although we try chancery cases de novo on the record, we will not reverse a finding of fact by the chancellor unless it is clearly erroneous.

In this case, the test results indicated a 97.94% probability that Mr. Roe is the father of Mandie Williams. Additionally, Evelyn Williams, Mandie’s mother, testified that she had sexual intercourse with Mr. Roe in July 1977 and that she had sex with no other man besides Mr. Roe from June 1977 until she knew that she was pregnant. Although Mr. Roe highlights Ms. Williams’ opinion that conception occurred in August 1977, which would not correlate with a full-term nine month pregnancy resulting in Mandie’s birth on April 11,1978, we agree that Ms. Williams’ testimony establishes access, both in place and time, for conception. Mr. Roe’s blanket denial of having sexual relations with Ms. Williams and testimony that he was out-of-state during the period of conception is a matter of credibility of the witnesses, and we defer to the chancellor’s evaluation. Germer v. Missouri Portland Cement Co., 301 Ark. 277, 783 S.W.2d 359 (1990).

Accordingly, the chancellor’s determination that Mr. Roe is Mandie Williams’ father is not clearly erroneous.

CROSS-APPEAL

CSEU cross-appeals on the basis that the chancellor erred in not setting support in accordance with the Family Support Chart.

Arkansas Code Ann. § 9-10-109 (Repl. 1991) addresses child support following a finding of paternity and provides in pertinent part as follows:

(a) Subsequent to the finding by the chancery court that the defendant is the father of the child, the court shall follow the same guidelines, procedures, and requirements as set forth in the law of this state applicable to child support orders and judgments entered by the chancery court as if it were a case involving a child born of a marriage in awarding custody, visitation, setting amounts of support costs and attorneys’ fees, and directing payments through the clerk of the court.
* * * *

Arkansas Code Ann. § 9-12-312 (Repl. 1991) addresses child support and provides in pertinent part as follows:

(a)(2) In determining a reasonable amount of support, initially or upon review to be paid by the noncustodial parent, the court shall refer to the most recent revision of the family support chart. It shall be a rebuttable presumption for the award of child support that the amount contained in the family support chart is the correct amount of child support to be awarded. Only upon a written finding or specific finding on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the support chart, shall the presumption be rebutted.'

In this case, Mr. Roe testified that he had a net take-home pay of $468.00 per week, and he also had custody of two children from a prior marriage. The chancellor awarded Ms. Williams $45.00 per week in child support; however, in utilizing the Weekly Family Support Chart, see our per curiam In Re: Guidelines For Child Support Enforcement (February 5,1990), we are unable to determine the basis upon which the chancellor made his award, as the amount apparently is not in conformance with the presumptive figures contained in the chart.

In short, the record is insufficient for a de novo review. As there is no written or specific finding that the support amount reflected in the family support chart is unjust or inappropriate, or that there are factors, such as court-ordered support of his other children, that would require a deduction in the assessment of Roe’s weekly take-home pay, we remand to the trial court for a determination of child support in conformance with section 9-12-312 and our guidelines for child support enforcement.

Affirmed in part; remanded in part.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    JEFFERSON HOSPITAL ASSOCIATION, INC., and St. Paul Fire & Marine Insurance Company v. Patsy C. GARRETT, Administratrix of the Estate of Edith O. Crain, Deceased.
    90-155
    804 S.W.2d 711
    Supreme Court of Arkansas
    Opinion delivered March 4, 1991.

      Mitchell, Williams, Selig, and Tucker, by' Richard L. Angel, for appellants.

      Bill R. Holloway, Howard M. Holthojf, and Laurie A. Bridewell, for appellee.
   Robert H. Dudley, Justice.

Plaintiff, Patsy Garrett, as administratrix of her mother’s estate, filed suit against defendant, Jefferson Hospital Association, Inc., and its insurer, defendant, St. Paul Fire & Marine Insurance Company. The complaint alleged the hospital was negligent in leaving the decedent unattended on a bedside commode, and that negligence resulted in a fall which was the proximate cause of her death. The complaint sought damages for the decedent’s medical and funeral expenses, conscious pain and suffering, mental anguish, and loss of consortium. The case was tried to a jury. At the close of the plaintiff’s case, the defendants did not move for a full directed verdict, instead, they moved for a partial directed verdict and argued that the decedent’s survivors did not present evidence of more than normal grief. At the close of all of the evidence they renewed their motion for a partial directed verdict. The jury returned a plaintiff’s general verdict in the amount of $180,000.00. The defendants appeal, and in their first point of appeal argue that the trial court erred in refusing to grant their motion for a partial directed verdict.

Procedurally, it is not necessary for us to discuss the merits of the defendants’ argument. The plaintiff proved that the estate had medical and funeral expenses; the surviving husband suffered a loss of consortium; and the decedent had conscious pain and suffering. These elements of damage were independent of the mental anguish suffered by the survivors. The case was submitted to the jury on a general verdict rather than on interrogatories. See ARCP Rule 49(a). Consequently, we do not know, and will not assume, that the jury awarded any damages for the mental anguish of the survivors. Therefore, even if the defendants were correct in their legal arguments we would not reverse this case. However, the defendants also are in error on their legal arguments. In order to address their legal arguments we first set out the facts.

Edith Crain, the decedent, was admitted to the defendant hospital on Thursday, July 18, 1985. There it was determined that she had an arrhythmic heartbeat which necessitated the immediate implantation of a temporary pacemaker. A permanent pacemaker was inserted the next day. She progressed well after the surgery, and was expecting to return home on Monday, July 22. On Sunday, July 21, members of her family stayed with her until approximately 10:00 p.m. Very early the next morning she signaled the nurses with her call light because she needed to use the bedside commode. The nurse responding to the call helped Mrs. Crain get on the commode; told her she would wait outside until Mrs. Crain needed to get back in bed; received another request for help from a patient across the hall; went to check on the other patient; heard a noise; went back to Mrs. Crain’s room; and found her on the floor beside her bed. The nurses determined the extent of Mrs. Crain’s injuries and got her back to bed. (The defendants do not appeal the finding that they were negligent.)

At approximately 6:00 a.m. that same morning, Mrs. Crain’s son, Birt, Jr., arrived at her room. She reported her fall, and he saw that one side of her face was swollen and “completely black and blue.” The swelling and discoloration eventually progressed down the side of her neck. There was also a marked difference in her attitude and condition. She was discharged from the hospital on July 26, but she did not improve. In fact, her course went from bad to worse. She was lethargic and stayed in bed ninety percent of the time. On August 8,1985, she returned to the emergency room of the hospital. She was vomiting and “talking out of her head,” exclaiming “hold me, hold me.” She screamed every time she was touched. Subsequently, a neurosurgeon performed a cranial burr. It involved drilling holes in her skull in an attempt to drain fluid which might have accumulated. She could not move. She could not talk. She communicated by squeezing family members’ hands. She remained at appellant hospital until August 26 when she was moved to Baptist Medical Center in Little Rock. She died on October 9,1985, never having left Baptist Medical Center.

Defendants argue that the trial court erred in denying their motion for a partial directed verdict on the issue of mental anguish suffered by the decedent’s survivors. The argument has no merit.

In determining whether to grant a motion for directed verdict, the trial court must view the evidence, and all reasonable inferences derived from it, in the light most favorable to the party opposing to the motion. Grain Dealers Mut. Ins. Co. v. Porterfield, 287 Ark. 27, 695 S.W.2d 833 (1985). The evidence must be given its highest and strongest probative value, and the motion must be granted if the evidence is so lacking in substance that it would require a jury verdict to be set aside. Id. There was sufficient evidence here for the issue of mental anguish of the survivors to go to the jury.

Mental anguish means the mental suffering resulting from emotions such as grief and despair. It must be real and with cause and be more than the normal grief occasioned by the loss of a loved one. AMI Civil 3d, 2215. In Martin v. Rieger, 289 Ark. 292, 711 S.W.2d 776 (1986), we explained the difficulty that accompanies application of the mental anguish statutes to particular factual settings:

The General Assembly has clearly stated that the public policy of this State is to allow recovery for wrongful death and for the mental anguish of survivors of the deceased. . . . The application of the mental anguish statutes to particular fact situations has given us difficulty through the years simply because mental anguish of all survivors is a natural incident of practically every wrongful death. We have construed the statutes to mean that the proximity of relationship between the deceased and the survivors is the most significant factor in determining whether recovery is allowable. Distant relatives generally have no more than normal grief and will not be allowed to recover without establishing something more.

(Emphasis added.)

We have set forth thirteen factors which a jury may consider in evaluating the relationship between the deceased and the survivors. Martin v. Rieger, 289 Ark. at 296; St. Louis S.W. Ry. Co. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1986); AMI Civil 3d, 2215. It is not necessary to list all of them here. The survivors in the instant case are the deceased’s husband, Birt, Sr., and her two adult children, Birt, Jr. and Patsy. Birt, Sr., testified that he and the decedent were married for fifty-one years; she helped him in the fields; one year she brought in the whole crop when he was sick; she cooked, cleaned, ironed, and gardened for him; they never fussed; he stayed with her at the hospital, sleeping there many nights; and since she’s been gone, “everything is just blank.” Patsy testified that she saw her mother almost every day; they were very close; since the mother’s death, Patsy has had to have help from her pastor; and her doctor has also given her medication because she has been depressed and has trouble sleeping. Birt, Jr., testified that he lived with his parents until he got married in 1968, and that he subsequently moved behind their house; he visited with his mother every day; he experienced emotional problems after her death and has had many sleepless nights.

Clearly, at least four of the factors were established by this testimony: (1) there were strong familial and marital ties of affection; (2) there was frequent association and communication; (3) the attitude of decedent and survivors was loving and close; and (4) the survivor’s grief was intense. In short, there was substantial evidence in support of an award for mental anguish for any and all of the survivors, and the trial court was correct in refusing to direct a verdict on this claim.

The other point raised by defendants is that the jury’s verdict was excessive. It is well established that the jury has great discretion in determining the amount of damages in wrongful death cases, and we will not disturb their verdict unless it is shown to have been influenced by prejudice or passion, or it is so grossly excessive as to shock the conscience of the court. Martin v. Rieger, 289 Ark. 292, 711 S.W.2d 776 (1986). Defendants have not established that the amount of the verdict was influenced by either passion or prejudice, and the amount of the verdict does not shock our conscience.

Affirmed.

Glaze, J., not participating.


author: Steele Hays, Justice.

text:
    The HASKINS LAW FIRM v. AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY, et al.
    90-239
    804 S.W.2d 714
    Supreme Court of Arkansas
    Opinion delivered March 4, 1991.

      Wayne Juneau, for appellant.

      Wright, Lindsey & Jennings, by: Roger A. Glasgow and Kathryn Pryor Gearhart, for appellee.
   Steele Hays, Justice.

This dispute arises under the Attorney’s Lien Law, Ark. Code Ann. § 16-22-301-304 (Supp. 1989).

On September 14, 1984, Ms. Fritzi Ketcher-Montgomery was injured in a collision with James L. Redditt, an insured of American National Property and Casualty Insurance Co., (ANPAC). Ms. Ketcher-Montgomery hired The Haskins Law Firm (Haskins) and agreed to a contingent fee of 33 '/h percent of all sums recovered. Approximately a year later, on November 20, 1985, she terminated her agreement with Haskins and hired Guy Jones, Jr. On December 2,1985, Haskins sent certified letters to ANPAC advising that Haskins no longer represented Mrs. Ketcher-Montgomery, but also claiming an attorney’s lien on behalf of Haskins against any settlement. On December 16,1985, Guy Jones wrote to ANPAC that he was “trying to work out” an agreement with Haskins and in February Jones wrote to Haskins offering to “assure and guarantee for an attorneys lien on your part $4,000, to cover the time and expense your firm or office has been out.” Jones continued, “After talking with Ms. Ketcher about a division of the fee, she was very adamant about your firm having nothing whatsoever to do further with her claim and has authorized me to assure the lien amount.” Haskins responded: “Your offer to assure and guarantee our attorney’s lien on our part in the amount of $4,000, is accepted.”

In October of 1987, the claim was settled for $50,000, ANPAC’s policy limits. No notice of the settlement was given to Haskins by any of the parties to the settlement. Some two years later, after learning of the settlement, Haskins wrote to Jones and Ketcher-Montgomery demanding payment of the $4,000. When payment was not forthcoming, Haskins filed suit in chancery court against ANPAC, Jones, and Ketcher-Montgomery, seeking judgment against all parties in the amount of $16,666.66, representing one-third of the settlement figure. ANPAC generally denied the allegations and sought a judgment over against Ketcher-Montgomery and Jones.

Haskins moved for summary judgment against ANPAC, resulting in an order denying Haskins any recovery against ANPAC, but awarding Haskins a judgment against Jones for $4,000, plus costs and an attorney’s fee. Haskins appeals asking that the order be reversed and for judgment against ANPAC for $16,666,666.

Haskins first argues this case is governed by Lockley v. Easley, 302 Ark. 13, 786 S.W.2d 573 (1990). But there are material differences between the two cases. In Lockley there was no substitution of counsel and no agreement to accept a different fee. Mrs. Carter (formerly Mrs. Lockley) hired Michael Easley to recover moneys due under a decree of divorce from a former husband. The fee agreement was for a contingent fee of one-third of any recovery. Easley filed a petition to show cause and $6,000 was offered in settlement. At that point Mrs. Carter indicated to Easley her intention to drop the matter and she directed him to dismiss the pending petition. Easley did as she instructed and then billed Mrs. Carter for time and expenses, $297.50. Easley later learned that not long after the dismissal, Mrs. Carter had received a payment of $6,000 and had signed an agreement with her former husband in the office of his attorney releasing all claims against him. Easley sought and recovered a judgment of $2,000 (less $297.50) against Mr. Lockley and Mrs. Carter pursuant to the attorney’s lien statutes. Mrs. Carter argued on appeal that Easley had waived any claim to the contingent fee by billing and collecting for his services on an hourly basis. We found that argument unconvincing:

But the chancellor found that Easley had submitted the statement for $297.50 in good faith and before he discovered the facts concerning the payment and settlement, and concluded that his rights under the contractual agreement with Mrs. Carter could not be thereby defeated. We believe that was correct and appellants have not cited authority requiring a different result.

Haskins argues that its agreement with Jones is analogous to the agreement between Easley and Mrs. Carter. But Easley had no knowledge of the recovery Mrs. Carter had received at the time he billed her for his service, nor was there any discussion between them of an attorney’s lien. In the absence of the attorney’s awareness of this material fact at the time of settling his client’s account, he did not waive any claim to a contingent part of a recovery made without his knowledge. See Schaefer v. Arkansas Medical Society, 853 F.2d 1487 (8th Cir. 1988).

A compromise agreement is conclusive only as to those matters which the parties have fairly intended to include within its terms and the necessary consequences thereof. Meyers, v. Meyers, 210 Ark. 714, 197 S.W.2d 477 (1946). No reasonable inference could be drawn from the circumstances in the Lockley case that attorney Easley intended to accept $297 in payment of services that had resulted in a recovery of $6,000 by his client. See also 6 A. Corbin, Corbin on Contracts § 1296 (1962). “Inconsistent Contracts” (The settlement operates as a discharge by substitution only so far as the inconsistency extends). In contrast, Haskins expressly agreed to accept $4,000 in settlement of its fees, irrespective of the amount of any recovery ultimately realized.

Here we are not dealing merely with a billing for Haskins’ services performed on an hourly basis, as in Lockley, but with an express contracting away of Haskins’ contingent fee for a specific amount. When Haskins agreed to accept $4,000 from Jones, it bargained away its rights to any future recovery that might occur. For by the language of the attorney’s lien statute, the lien applies to “any settlement.” § 16-22-304. We conclude that the intention of the parties was that Haskins substituted a liquidated sum in exchange for surrendering its right to a percentage of any subsequent recovery.

Haskins next argues that if the agreement with Jones/ Ketcher-Montgomery did intend to waive any lien on future settlements or judgments, that agreement was breached by Jones’s failure to pay and Haskins could then revert to its rights in its original agreement for one-third of any settlement or judgment. We disagree.

Under general contract principles, upon the execution of a valid and legally substituted agreement the original agreement merges into it and is extinguished, and failure to perform the substituted agreement will not revive the old agreement. 17 Am. Jur. 2d Contracts § 459 (1964). See also Id. at § 483; Restatement (Second) of Contracts § 279 (1990); 6 A. Corbin, Corbin on Contracts § 1293 (1962); Farelly Lake Levee Dist. v. McGeorge, 172 Ark. 460, 289 S.W. 753 (1926); and Ozark and Cherokee Central Ry. Co. v. Ferguson, 92 Ark. 243, 122 S.W. 624 (1909).

The Restatement (Second) of Contracts § 279 (1990) provides:

(1) A substituted contract is a contract that is itself accepted by the obligee in satisfaction of the obligor’s existing duty.
(2) The substituted contract discharges the original duty and breach of the substituted contract by the obligor does not give the obligee a right to enforce the original duty.

Further, Comment a. to the section reads: If the parties intend the new contract to replace all of the provisions of the earlier contract, the contract is a substituted contract. Was Haskins’ second contract for $4,000 a substituted contract for its original contract? We believe it was. The question is, did Haskins and Jones intend for any rights under the original contract to be reserved or incorporated into the second contract? As noted above, we think it was fairly intended that Haskins release its rights to one-third of any settlement under the original contract, in exchange for a liquidated sum. It is evident the intent of the parties was to substitute the second contract for the first and to accept it in satisfaction of the obligor’s existing duty. Nor has Haskins offered anything below or on appeal to suggest otherwise. Therefore, the terms of the original contract had been extinguished and were not available as an alternative basis for suit.

As its last argument Haskins contends that under the attorney’s lien statutes [Ark. Code Ann. § 16-22-301 through 304 (Supp. 1989)], regardless of any agreement with Jones, it still has recourse against any other parties to the settlement. Specifically, Haskins argues it has a lien for $16,666.66 against ANPAC under the terms of its original contract with Mrs. KetcherMontgomery. Haskins is correct in the contention that it can pursue all parties to the settlement. See § 16-22-303 (b)(1); Lockley v. Easley, supra. We have no difficulty concluding that Haskins has a cause of action against ANPAC under the statute, and we agree, were it not for the agreement with Jones/KetcherMontgomery, Haskins would be arguably entitled to its contingent fee under the above language against ANPAC. However, as discussed previously, Haskins can no longer rely on the terms of the original contract as those were extinguished when the substituted contract was entered into. Therefore Haskins is limited to the stipulated sum of the substituted contract for its remedy, which sum was also determined by the trial court to be a reasonable fee pursuant to Ark. Code Ann. § 16-22-303(b) (1987).

We find that under Ark. Code Ann. § 16-22-303 (Supp. 1989), ANPAC is one of the parties that could be sued for the attorney’s fee of $4,000, and we modify the trial court’s order to the effect that the judgment be entered against both Jones and ANPAC, with ANPAC entitled to a judgment over and against Jones and Mrs. Ketcher-Montgomery.

Affirmed as modified.


text:
    Joani McCULLOUGH v. Mitchell Ray HENDERSON
    90-362
    804 S.W.2d 368
    Supreme Court of Arkansas
    Opinion delivered March 4, 1991.

      /. Scott Covington, for appellant.

      Coxey & Coxey, by: Kent Coxey, for appellee.
   Steele Hays, Justice.

Mitchell Ray Henderson petitioned the Boone Chancery Court to determine that he was the natural father of Cody Charles McCullough, born to Joani McCullough on September 22, 1989. The chancellor held accordingly and ordered visitation, child support, and payment of hospital and medical expenses. Some months later Mitchell Ray Henderson petitioned for a change in the child’s surname from McCullough to Henderson, which Joani McCullough controverted on the premise that it would not be in the best interests of the child. Relying on Ark. Code Ann. § 20-18-401 (1987), the chancellor held he was without discretion in the matter and ordered the name change. Ms. McCullough has appealed. We reverse and remand for a ruling consistent with the best interests of the child.

It appears from the record that at the initial hearing the chancellor indicated a tentative view that the law gave him no latitude, but no definite ruling was made. At a later hearing, some months thereafter, the chancellor announced his ruling:

The Court is sympathetic with the wishes of the mother and for the record I am stating that except for the fact that I think that the law requires me to do so, I probably would not make the name change, but I think under the statute . . . when a Court makes a determination of paternity on the part of the father, the statute says that, or I interpret the statute to say that I shall change the surname to that of the father, the surname of the child, so, I am basing my ruling on that statute and if the Court of Appeals says that is not what it means then that is not what it means .... The statute says shall. When the statute says the Court shall do something the Court has no discretion.

The statute referred to, Ark. Code Ann. § 20-18-401(e) (3) (Supp. 1989), reads:

In any case in which paternity of a child is determined by a court of competent jurisdiction, the name of the father and surname of the child shall be entered on the certificate of birth in accordance with the finding and order of the court.

While we agree with the chancellor that the word “shall” renders the provision mandatory, we do not read the statute as directing that the surname of the child should necessarily become that of the father. We think the statute merely states that the full name of the father and the surname of the child shall be entered on the birth certificate “in accordance with the finding and order of the court.” Nothing in the language suggests the two must be the same. In some cases the father may not even want the two names to agree. While we can conceive of instances where the child should bear the father’s name, we can conceive of as many others wherein the welfare of the child, particularly one of more advanced years, would not be well served. We believe a rule which makes the result automatic would be neither prudent nor consistent with the established traditions of the law, hence, we are unwilling to adopt a construction of the statute which produces rigidity, where such an interpretation is decidedly less than self-evident.

In Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988), we addressed the power of chancery courts to change the names of children in the context of other provisions of our code:

Next, appellant argues that the name change was not in compliance with Ark. Code Ann. § 9-2-101 (1987), the statute setting out the formal procedure for a name change. It is true that the name change was not in compliance with the statute, but it was still a perfectly valid procedure. As we explained in Clinton v. Morrow, 220 Ark. 337, 247 S.W.2d 1015 (1952), and Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978), this statute does not repeal the common law power of a chancery court to change a minor’s name when it is in the best interest of the minor to do so. The statute simply affords an additional method of effecting a name change and is supplementary to the common law. Further, this is a matter in which the chancellor has broad discretion. Clinton v. Morrow, supra.

Here, we have no record of factors which inveigh for or against either surname. But we believe that judgment must be the product of the chancellor’s informed discretion, exercised in response to what is deemed to be in the best interests of the child.

Reversed and remanded for further proceedings consistent with this opinion.


text:
    Carl PRINCE v. STATE of Arkansas
    CR 90-184
    805 S.W.2d 46
    Supreme Court of Arkansas
    Opinion delivered March 4, 1991.

      David L. Dunagin, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant Carl Prince was charged as a habitual offender with the burglary of the Fort Smith Medi-Sav Pharmacy and with theft of property valued in excess of $200.00. He represented himself at trial and was convicted of all counts and sentenced to fifty-five years. None of the six points for reversal have merit.

I

The Information

Prince contends the information is fatally flawed because it failed to conclude each count with a contra pacem clause (“against the peace and dignity of the State of Arkansas”), as required by Ark. Const, art. 7, § 49. The information was a printed form and the clause was printed on the lower portion of the page as in Caldwell v. State, 295 Ark. 149, 747 S.W.2d 99 (1988). However, we will not address this allegation because the proper time to object to the sufficiency of an indictment or information is prior to trial, Ark. Code Ann. § 16-85-705 (1987), whereas Prince’s objection was first raised in a post-trial motion. Rogers v. State, 289 Ark. 257, 711 S.W.2d 461 (1986).

II.

Discovery

Prince argues the state failed to comply with discovery under Ark. R. Crim. P. Rules 17 and 19. However, with one possible exception, he made no objection at trial to the alleged failures. He did object to the state calling a witness late in the case, but on a basis wholly different from the one now argued. His objection to the trial judge was that he could have obtained a fingerprint expert to challenge the testimony of this witness. His other objections, made for the first time after trial, cannot be considered on appeal. See Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990). Moreover, Prince did not explain how he was prejudiced at trial by any of the avowed discovery violations. Without a showing of prejudice, this court will not reverse. Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990).

III.

Trial Preparation

Prince alleges that he was deprived of access to law books, evidence and witnesses to prepare for trial which denied him of his “Constitutional right to due process of law in a fair trial.” The state contends Prince is procedurally barred from asserting this issue on appeal because he did not specifically raise it before the trial court. The state is essentially correct, though Prince did request access to law books and the telephone in two letters to the trial judge and in a pretrial hearing. Even so, no reversible error has been shown. Prince waived his right to counsel, but David Dunagin, Deputy Public Defender, was appointed to advise him and obtain legal materials for him. Additionally, the trial court allowed Prince to make telephone calls to witnesses, however, he chose to contact only one witness, his father, whom he also interviewed in person. This satisfies the requirement that the accused have access to adequate libraries or adequate assistance of persons trained in the law. See United States v. West, 557 F.2d 152 (8th Cir. 1977); United States v. Sammons, 918 F.2d 592 (6th Cir. 1990); 2 J. Cook, Constitutional Rights of the Accused § 8.2 n.6 (2d ed. 1986).

IV.

Evidence

Prince claims the trial court erred-in admitting into evidence certain pharmaceutical substances seized by the police in a search of a cabin owned by Mr. Eugene Blackwell, the father of Prince’s girlfriend, Melody Blackwell. According to Prince, it was error to admit the controlled substances because they were found in a shed on the Blackwell property and, hence, beyond the scope of the consent search of the Blackwell cabin. But Prince did not request suppression of the drugs due to an illegal search and seizure, and “[ojnly specific objections made at trial are preserved for appeal.” Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990).

Prince also contends the trial court erred in admitting the pharmaceutical substances because they were irrelevant and their prejudicial effect outweighed any probative value under Ark. R. Evid. 403. Jimmy O’Quinn, a Medi-Sav pharmacist, testified that the pharmaceutical substances recovered from the Blackwell property had been stolen from the Medi-Sav Pharmacy on February 7, 1989. Bill Hollihan, a detective with the Fort Smith Police Department, linked the substances to Prince. Hollihan testified that one vial containing drugs was found in the Blackwell residence where numerous items of Prince’s clothing were also found and the remainder of the controlled substances was found in Blackwell’s shed in a cardboard box with Prince’s name and address on it.

The trial court has discretion in the admission of evidence and we do not reverse unless an abuse of discretion has been shown. Hughs v. State, 303 Ark. 340, 797 S.W.2d 419 (1990). No abuse has been shown by the acceptance of this evidence, which had obvious probative value.

V.

Affirmative Defense

Prince contends he should have been allowed to present evidence that he was acquitted of the charge of possession of the drugs in an earlier trial in Crawford County. Hence, he maintains that he had an affirmative defense of collateral estoppel. The argument is based on the premise that Prince was acquitted of the drug possession charge, because a former prosecution is an affirmative defense if it resulted, among other things, in an acquittal. Ark. Code Ann. § 5-1-113 (1987); Bly v. State, 267 Ark. 613, 593 S.W.2d 450 (1980). But during a pretrial hearing Prince repeatedly insisted that the Crawford County trial had ended in a hung jury, which is not the equivalent of acquittal for purposes of establishing a former jeopardy or collateral estoppel to bar retrial. 3 W. LaFave and J. Israel, Criminal Procedure § 24.2(b) (1984); Young v. State, 287 Ark. 361, 699 S.W.2d 398(1985). Moreover, while Prince did argue to the trial court that he had been acquitted, he failed to offer any evidence and his unsupported assertion is the only indication of acquittal in the record. Since a plea of former acquittal or conviction is an affirmative defense, the burden is on the accused to sustain the plea. Richards v. State, 108 Ark. 87, 157 S.W. 141 (1913). The accused “must prove not only the former jeopardy conviction, or acquittal, but also the identity of the offenses and the jurisdiction of the court in the former trial.” 21 Am Jur. 2d Criminal Law § 466 (1981). Since the record does not reflect evidence of Prince’s acquittal beyond his own contention, it was not error to exclude it.

VI.

Motion for a Directed Verdict

Prince submits the trial court erred in refusing to direct a verdict on the burglary and theft of property charges. Motions for directed verdict are challenges to the sufficiency of the evidence and on appellate review we determine whether the verdict is supported by substantial evidence. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). Whether direct or circumstantial, substantial evidence must be of sufficient force that it compels a conclusion with reasonable and material certainty. Id. In deciding whether’ there is substantial evidence to support the verdict, the evidence is reviewed in a light most favorable to the appellee. Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977). We need to consider only that evidence which supports the verdict of guilt. Brown v. State, 278 Ark. 604, 648 S.W.2d 67 (1983).

Prince argues the state failed to prove the offense of burglary because it did not show that he unlawfully entered the Medi-Sav Pharmacy. A person commits burglary if that person enters or remains unlawfully in an occupiable structure of another person with the purpose of committing any offense punishable by imprisonment while in the structure. Ark. Code Ann. § 5-39-201 (1987). Melody Blackwell testified that in February of 1989 she and Prince went out driving and stopped on a side street behind the Medi-Sav Pharmacy. After they stopped, Prince got out of her truck and was gone for a short time. When he returned he had a gray bag that contained “bottles and some stuff,” and said, “Let’s get outta here. Let’s go.” Blackwell also said she had taken Prince to her father’s cabin in Crawford County in February 1989. Detective Hollihan testified about the search of the Blackwell property, in February of 1989, that produced the Medi-Sav pharmaceutical drugs. Prince’s clothing was found in Blackwell’s cabin where Ms. Blackwell testified he had been staying with her. A cardboard box was found with the drugs on the Blackwell property. The box had Prince’s name and current mailing address on it. Jimmy O’Quinn, the store’s pharmacist, established that the drugs found on the Blackwell property were stolen from the Medi-Sav Pharmacy. This evidence, showing Prince was in possession of recently stolen property coupled with the proof of his proximity to the scene of the crime constitute substantial evidence of burglary of the Medi-Sav Pharmacy. Nee Dawan v. State, 303 Ark. 217, 795 S.W.2d 50 (1990); Lane v. State, 288 Ark. 175, 702 S.W.2d 806 (1986).

Prince also contends that the state failed to prove the items stolen had a value in excess of $200.00 or that he ever possessed the items taken from the pharmacy. But Jimmy O’Quinn testified to a value of more than $200.00. His testimony satisfied the value element of the theft charge.

As for the allegation that the state failed to show Prince ever possessed the stolen pharmaceuticals, the facts previously noted support a contrary finding. There was no error in the trial court’s failure to direct a verdict in Prince’s favor because there was evidence sufficient to support the verdict of guilty on both the burglary and theft of property charges.

Affirmed.


author: David Newbern, Justice.

text:
    Marlin A. POWELL and Nancy H. Powell v. Hugh F. BURNETT, M.D.
    90-152
    805 S.W.2d 50
    Supreme Court of Arkansas
    Opinion delivered March 4, 1991
    [Rehearing denied April 1, 1991.]

      James S. Cox & Associates, and Boswell, Tucker & Brewster, by; Ted Boswell, for appellant.

      Friday, Eldredge & Clark, by: Laura Hensley Smith, for appellee.
   David Newbern, Justice.

This is a medical malpractice case. The appellants, Marlin A. and Nancy H. Powell, husband and wife, alleged that Dr. Hugh F. Burnett was negligent in performing artery bypass surgery to correct Mr. Powell’s abdominal aneurysm. The case was tried to a jury which returned a verdict in favor of Dr. Burnett. The Powells contend the trial Court erred by (1) not granting a mistrial when counsel for Burnett asked a doctor testifying on behalf of the Powells about a case in which the witness was a defendant, (2) by allowing a doctor testifying in favor of Burnett to go beyond the “ultimate issue” and tell the jury how it should decide, and (3) by allowing a witness for Burnett to testify as to Burnett’s reputation for truthfulness. We hold that (1) the error on which the motion was based was insufficient to cause a mistrial, especially in light of an admonition by the Court to the jury to disregard the question and the answer, (2) there was no timely objection to the testimony telling the jury how to decide, and thus no reversible error, and (3) the evidence as to Burnett’s reputation for truthfulness was properly admitted, as the Powells had placed the matter in issue. The judgment is affirmed.

As a result of the surgery, Marlin Powell suffered loss of bowel and bladder control, necrosis of buttock tissue, and other injuries caused by cessation of the flow of blood to his pelvic region and lower extremities. Burnett contended the injuries were unavoidable because he had to tie off arteries due to other, unanticipated aneurysms he encountered after the surgery began. The Powells contended the extended surgery was unnecessary and was intended for a different patient but was mistakenly, negligently, performed on Marlin Powell. They offered evidence that Burnett’s surgery notes made no reference to the additional, unanticipated aneurysm he said he found, and that Burnett was thus not telling the truth.

1. Mistrial

During cross-examination, counsel for Burnett asked Dr. Mills, a witness for the Powells, whether he recalled a case involving Joyce Parker. He replied that he did, and then counsel asked, “It’s a case against you personally, was it not?” The Powells’ counsel sought a mistrial. Counsel for Burnett argued she was inquiring about Dr. Mills’s testimony in the other case to show that he used a different standard there with respect to record keeping than he was advocating in this case as the norm.

The focus of the Powells’ accusation against Dr. Burnett was that the “operative notes” he made about the surgery contained nothing about the additional aneurysms he later said caused him to tie off the blood supply. Dr. Mills testified, in effect, that a doctor should write down everything occurring in the course of surgery. The purpose of cross-examining Dr. Mills with respect to the Joyce Parker case, in which he had been a defendant, was to impeach him by showing that he had once testified to the contrary. In the course of the discussion in the judge’s chambers, it became apparent that in the Joyce Parker case, the question was whether Dr. Mills had had a conversation with his patient on a certain day when he asserted he had informed her of possible complications from surgery. Apparently there was no “nurse’s note” showing that he had visited the patient at the time he contended he had informed her or obtained her “informed consent” to the surgery.

At the point it became clear that all Dr. Burnett’s counsel had to cross-examine Dr. Mills about the “nurses’ notes” rather than physicians’s “progress notes” or “operative notes,” the judge ruled that the cross-examination would be too “collateral;” however, the judge clearly stated that Burnett’s counsel could cross-examine about the matter of notations regarding “informed consent” of the patient. The judge ruled that Dr. Mills’s testimony was subject to impeachment, but that the fact that the previous testimony was given in a case in which Dr. Mills was the defendant was irrelevant.

Upon returning to the presence of the jury, the Court instructed that the jury was to disregard the question and response indicating that Dr. Mills had been a defendant. Burnett’s counsel proceeded to ask questions based on Mills’s testimony in the case of Joyce Parker. The questions and answers made it obvious that Mills was the defendant in that case, but no further objections were made by counsel for the Powells.

The only legal standard argued to the trial court was that of A.R.E. 403, although the Rule was not mentioned by name or number. The discussion in the judge’s chambers was long, and his ruling was somewhat fluid or evolving. The Court seemed to agree with Burnett’s counsel that the fact that Mills was a defendant in a case where he might have stated a different standard of care was relevant because it revealed his possible reason for stating a different standard. He referred to “damage” having been done. After refusing the mistrial, he asked counsel’s help in solving the problem in a manner which would cause the fewest further problems. The wording of the admonition given to the jury was suggested by counsel for the Powells. Dr. Burnett’s counsel said several times that she planned to go further with her examination of Dr. Mills on the basis of the Parker case transcript and that it would become obvious that Mills was the defendant in that case. The Court remarked that it would be necessary to evaluate the questions when asked and answers when given.

The contention, again, is that informing the jury that Dr. Mills had been sued for malpractice was so prejudicial as to outweigh the probative value of his testimony stemming from the Joyce Parker case. The Powells asserted that the sole purpose of Burnett’s counsel was to introduce the fact that Dr. Mills had been a defendant in a malpractice action. This, they say, is borne out by the fact that Burnett’s lawyer was unable to refer to anything in the Joyce Parker case other than an instance of Dr. Mills possibly excusing incompleteness of notes made by a nurse in connection with that case rather than progress notes or operative notes for which Mills would have been directly responsible.

On appeal, the Powells argue Rule 403 specifically, saying that relevant evidence may be excluded under the Rule, citing Cullum & Boren v. Peacock, 267 Ark. 479, 592 S.W.2d 442 (1980), and Golden v. State, 10 Ark. App. 362, 664 S.W.2d 496 (1984). In both cases it was held on appeal that the trial Court erred in admitting evidence the probative value of which was outweighed by the danger of unfair prejudice. Neither case held that a mistrial should have been granted.

Although, as the Powells have pointed out, the Court apparently thought that “damage” was done by the question and answer revealing that Dr. Mills was once sued for malpractice, we have been cited to no holding that such a revelation is unfairly prejudicial impeachment. If it is unfairly prejudicial, the admonition may have cured it at least up until the time the further questions and answers from the Joyce Parker transcript made the fact obvious.

A trial court has considerable discretion in deciding whether to grant a mistrial, Dickerson Const. Co. v. Dozier, 266 Ark. 345, 584 S.W.2d 36 (1979). It is an extreme remedy to be taken only when it is apparent that justice cannot be served by continuing the trial. Morton v. Wiley, 271 Ark. 319, 609 S.W.2d 332 (1980). That is especially so where an admonition has been given in an attempt to cure erroneously admitted testimony. We find no abuse of discretion in the refusal of a mistrial.

2. Testimony telling the jury the result to be reached

While testifying as a witness on behalf of Dr. Burnett, Dr.. Crow stated that the complication experienced by Mr. Powell was very rare “and for this to be construed as malpractice in any court would be a great disservice to any future patient that we have with aneurysm disease.” The Powells contend this Court has made it clear that, while an expert may give his opinion embracing the ultimate issue in the case, it is impermissible for him to “instruct the jury as to the proper verdict” to be reached. See Aetna Cas. & Sur. Co. v. Broadway Arms., 281 Ark. 128, 664 S.W.2d 463 (1984); Grambling v. Jennings, 274 Ark. 346, 625 S.W.2d 463 (1981).

We decline to consider this point, as no objection was made when the testimony was elicited. The Powells cite Walt Bennett Ford, Inc. v. Brown, 283 Ark. 1, 670 S.W.2d 441 (1984), for the proposition that a specific ground of objection need not be stated when the error is obvious from the context. That is a correct citation of the case, but it does not mean that no objection need be made, only that a specific ground need not be stated.

During oral argument before us, counsel for the Powells noted that a tactical decision had been made not to object to Dr. Crow’s testimony because it would look to the jurors as if counsel were trying to suppress the testimony of a “home town” doctor. While we sympathize with the tactical position in which counsel was placed, we know of no authority which would permit reversal on the basis of an objection counsel would like to have made but chose not to for tactical reasons.

By motion in limine, Dr. Burnett’s counsel was prohibited from inquiring as to Burnett’s general reputation as a surgeon. The Powells contend the Court’s order was violated by questions asked by Dr. Burnett’s counsel of Dr. Jouett, an expert witness presented by the Powells, as follows:

3. Reputation for truthfulness

Q Have you ever known of Dr. Burnett to lie about his care and treatment of a patient?
A No.
Q Have you ever heard of him doing surgeries that were absolutely unnecessary?
A No.
Q Do you know of his reputation in the community?
A It’s good. It’s excellent.
***
Q Are you familiar with his reputation as a vascular surgeon in this community?
[Objection sustained.]
***
Q Have you ever known Dr. Burnett to not be truthful in his treatment of patients?
A I have not.
Q Have you ever known of Dr. Burnett to perform unnecessary surgery?
A I have not.
[Objection overruled.]

Whether Dr. Burnett was telling the truth as to what he saw and what he did during the operation was made an issue by the Powells, thus making the testimony in response as to Dr. Burnett’s reputation for truthfulness specifically admissible in accordance with A.R.E. 608(a). See Brown v. Conway, 300 Ark. 567, 781 S.W.2d 12 (1989); Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989). The question as to Dr. Burnett’s general community reputation was improper; no objection was made. The question about Dr. Burnett’s reputation as a vascular surgeon was improper; an objection was sustained. The question whether Dr. Jouett knew of Dr. Burnett performing unnecessary surgery was proper, as it went to the question of truthfulness raised by the Powells’ the objection was properly overruled.

Citing Alexander v. Chapman, 289 Ark. 238, 711 S.W.2d 765 (1986), the Powells contend counsel for Burnett “intentionally violated the pre-trial order in an effort to draw objections from counsel for the Powells. Counsel for the Powells was left in the precarious position of objecting to questions regarding . . . [Dr. Burnett’s] overall competence and general reputation, thereby alienating the jury.”

In our opinion in the Alexander case, we referred to the situation there as “unique.” We noted instances where counsel for the appellee had violated an in limine order, but concluded they became “more significant” when combined with the fact that counsel for the appellee had simply refused to follow the court’s order to stop asking leading questions. That resulted in 28 objections, 14 of which were sustained, nine of which were overruled, three were not ruled upon, and two were withdrawn. The judge, in attempting to deal with the problem, admitted to counsel that he had lost control of the trial, and we found prejudice from the cumulative effect of the leading plus violations of an in limine order.

In this case the problems as described in the Powells’ brief, was far less severe. If there was a concerted effort by Burnett’s counsel to ride roughshod over the judge, it is not evident from the cited parts of the record, and it does not reach the level of prejudice sufficient for reversal which we found in the Alexander case.

Affirmed.


text:
    Leon TIDWELL, Sr. v. QUIK-TO-FIX PRODUCTS, INC. and Grecian Steak House
    90-245
    804 S.W.2d 717
    Supreme Court of Arkansas
    Opinion delivered March 4, 1991
    [Rehearing denied April 1, 1991.]

      J.R. Nash, for appellant.

      Rieves & Mayton, by: Elton Rieves IIT, and Huckabay, Munson, Rowlett & Tilley, by: Beverley A. Rowlett, for appellees.
   David Newbern, Justice.

This is a negligence case in which the jury returned a verdict in favor of the defendants, now appellees, Quik-To-Fix Products, Inc., and Grecian Steak House. The action was brought by the appellant, Leon Tidwell, Sr., who claimed to have suffered injuries due to glass or hard plastic found in meat he purchased at Grecian Steak House which had been supplied by Quik-To-Fix. Mr. Tidwell alleges three errors were committed by the trial judge: (1) refusal to allow Tidwell to impeach testimony of a Quik-To-Fix production supervisor with information from government documents, (2) refusal to halt cross-examination of Tidwell which was designed to reveal a collateral source of recovery for his injury, and (3) refusal to allow Tidwell to introduce evidence of poor sanitation and maintenance in the Quik-To-Fix production process. We hold the Court did not abuse its discretion in rejecting the evidence proffered for impeachment. As to the second point, we hold that because there was no mention of the collateral source of recovery except by counsel for Tidwell, no error occurred. The third point is not considered because it was not argued during the trial. The decision is affirmed.

On May 25,1984, Mr. Tidwell, his wife, and another couple ate at the Grecian Steak House. Mr. Tidwell testified he felt a sharp object as he swallowed meat and that he broke a tooth on a hard object in the meat. He said he examined the meat remaining on his plate and found glass or a hard plastic object which he removed, wiped off, and handed to a waitress who took it away. The waitress testified she found such an object imbedded in uneaten meat from Tidwell’s plate but denied that Tidwell had given her a separate object he claimed to have found.

Mr. Tidwell suffered nausea and a stomach ache later that evening. He testified he began “passing blood.” He saw a physician three times in the following two weeks, and on his last visit, his pain had spread to his chest. He was advised he was having a heart attack and was rushed to a hospital. He contended that his concern over having ingested glass and passing blood, coupled with his previously having suffered an ulcer, caused him to have the heart attack and the resultant medical expense and pain and suffering.

1. Impeachment

Jessee Dominquez, Production Supervisor for Quik-To-Fix, was called as a witness by Mr. Tidwell. He testified he had been in his position for 12 years. He was asked about federal guidelines regarding meat production operations. He related there had been “normal problems.” In a confusing question and answer series, he stated there had been some maintenance problems in the last three years but not in the last 12. He admitted that at one point there had been a problem about oven condensation dripping on the meat product and a problem about having flies in the room where meat was being ground. He denied that flies had been ground into the meat.

Counsel for Mr. Tidwell attempted to introduce as an exhibit documents acquired from the United States Department of Agriculture labeled “inspection reports. . . but not considered to be violation reports.” In considering whether to accept the exhibit, the Court noted that the incident complained of was in 1984 while the documents dealt with Quik-To-Fix operations in 1986 and after, and they were ruled inadmissible.

In support of his contention that it was improper to reject the USDA materials, Tidwell cites Missouri Pac. R.R. Co. v. Watt, 186 Ark. 86, 52 S.W.2d 634 (1932). There it was held that questions asked of a railroad company flagman tending to show he had failed to do his duty at an intersection where a collision had occurred were proper. It was also stated in the opinion that questions about the witness’s “negligence on a former occasion” could be asked. The case is inapplicable here. Tidwell’s counsel was allowed to ask questions about Dominquez’s conduct prior to the incident in question. That is not the issue. The issue here is whether the impeachment materials should have been admitted.

The impeachment questions in the Missouri Pac. R.R. Co. case went directly to the conduct of a railroad employee in conjunction with the incident under consideration. In this case, the questions asked of Dominquez were not only with respect to incidents which occurred long after the one in question, but none of the USDA materials on which the questions were based suggested conduct which could have resulted in glass or hard plastic being found in Quik-To-Fix products.

The only other authority cited by Tidwell on this point is Boreck v. State, 277 Ark. 72, 639 S.W.2d 352 (1982). The case is cited for this proposition: “A broad view of cross-examination is especially important where it might reveal bias on the part of a key witness.” Here is what our opinion stated:

The trial judge has considerable discretion in determining the scope of cross-examination. Rules 403 and 611(b) Unif. Rules of Evid. . . . Shepherd v. State, 270 Ark. 457, 605 S.W.2d 414 (1980). However, we have consistently taken a broad view of the right of an accused in a criminal prosecution to be confronted with the witness against him.

Needless to say, this is not a criminal case, and we can find no violation of the Court’s discretion in deciding that the impeachment value of the evidence sought to be presented was considerably outweighed by possible prejudice, given the fact that the evidence had to do with events which occurred long after the one which was the subject of Mr. Tidwell’s claim.

2. Collateral source evidence

Counsel for Quik-To-Fix and Grecian Steak House cross-examined Tidwell about his physical condition previous to the heart attack on the basis of his complaints to the Social Security Administration, including references to chest pain which occurred before May 25, 1984. Tidwell’s counsel objected on the basis that the jury would become aware that Tidwell was receiving compensation from a collateral source. The Court ruled that the cross-examination based on incidents of medical and physical complaints made by Tidwell would be proper if there were no mention of Social Security. The cross-examination proceeded with questions about previous medical history and no mention of Social Security, although counsel for Quik-To-Fix and Grecian Steak House apparently was referring to some sort of file as the questions were asked.

Upon redirect examination, Mr. Tidwell’s counsel referred to counsel for Quik-To-Fix and Grecian Steak House as having “waved this thing in front of the jury for twenty or thirty minutes. . . . Obviously he wants the jury to know that you were able to get Social Security benefits.” He then expanded on the point by asking how much Tidwell was being paid in benefits and by asking about his visits with doctors in conjunction with his disability and Social Security medical information requirements.

Obviously, it was Tidwell’s counsel who revealed the fact that Tidwell was receiving Social Security benefits. While it is argued that his adversary was “waving” the Social Security file around, we have no way of knowing the extent, if any, to which the jury may have been made aware of the nature of whatever counsel may have referred to in the process of cross-examining Mr. Tidwell.

The only authority cited in support of this point consists of two cases in which we explained the collateral source rule. East Texas Motor Freight Lines, Inc. v. Freeman, 289 Ark. 539, 713 S.W.2d 456 (1986); Evans v. Wilson, 279 Ark. 224, 650 S.W.2d 569 (1983). They are of no help in deciding the issue here. We know of no basis to hold the Court’s ruling permitting the questions to be asked was erroneous.

3. Rejection of evidence of other negligence

Mr. Tidwell argues that the evidence of other instances of negligence resulting in poor maintenance and unsanitary conditions at Quik-To-Fix, which he unsuccessfully attempted to use to impeach the testimony of Mr. Dominquez, should have been admitted as part of his case in chief. We can find no point in the record at which the USDA materials were presented to the Court on any basis other than as impeachment of Dominquez’s testimony. No argument was presented to the effect that the documents should have been admitted because of their independent probative value.

We do not consider arguments made for the first time on appeal. Helm v. Mid-America Indus., Inc., 301 Ark. 521, 785 S.W.2d 209 (1990); Lovell v. Magnet Cove School Dist. No. 8, 301 Ark. 94, 782 S.W.2d 41 (1990).

Affirmed.


author: Tom Glaze, Justice. Robert L. Brown, Justice;

text:
    URREY CERAMIC TILE CO., Inc. v. Robert E. MOSLEY, Thelma Mosley His Wife, First National Bank of Magnolia, Arkansas, Paul W. Sanders, Individually, and Paul Wayne Sanders Contracting Inc.
    90-144
    805 S.W.2d 54
    Supreme Court of Arkansas
    Opinion delivered March 4, 1991

      Reuben C. Pinkston, Jr., for appellant.

      Keith, Clegg & Eckert, by: W.A. Eckert, for appellee.
   Tom Glaze, Justice.

This appeal primarily involves a materialman’s lien claim and the constitutionality of Ark. Code Ann. § 18-44-115(f) (1987). Generally, under § 18-44-115(a)-(d) (1987), the principal contractor, prior to any materials being supplied, must give notice to the property owners of any potential lien claimants under his contract before a lien can be acquired against the owners’ property. Provision (f) of § 18-44-115 exempts a licensed contractor doing industrial or commercial construction from having to give such notice to property owners.

In the present case, appellees Robert and Thelma Mosley, as property owners, contracted with appellee Paul Sanders Contracting, Inc. (Sanders), as the principal contractor, to construct a commercial building. Appellant, a licensed contractor, had contracted with Sanders to furnish and install tile required in the Mosley project. Neither Sanders nor the appellant gave any notice required under § 18-44-115. Thus, when the Mosleys paid Sanders the full amount of the contract, $361,000.00, and Sanders failed to pay appellant, the appellant brought this suit against the Mosleys and Sanders for labor and materials and to establish, among other things, its materialman’s lien against the Mosley’s property. In doing so, appellant claimed § 18-44-115(f) did not require it to give the Mosleys any notice as a predicate to obtaining its lien.

The Mosleys defended appellant’s suit by filing a summary judgment motion, arguing that the notice exemption for licensed contractors doing commercial construction in § 18-44-115(f) violated the equal protection clause, and therefore was unconstitutional. Agreeing that the statutory provision was unconstitutional, the trial court found the materialman’s lien to be unenforceable, and it dismissed appellant’s suit with prejudice. On appeal, the appellant argues that the appellees did not have standing to challenge the constitutionally of § 18-44-115(f) and that the trial court erred in finding that statutory provision unconstitutional. We see no merit in the appellant’s arguments and therefore affirm.

First, we address the appellant’s argument that the Moselys do not have standing to challenge the constitutionality of § 18-44-115(f). Specifically, the appellant argues that we should not address the Moselys’ equal protection argument because they are not in one of the classes, licensed contractors or unlicensed contractors, affected by provision (f); thus, they are asserting rights that are personal to others. We do not agree.

This court has held that to have standing to challenge the constitutionality of a statute, it must be unconstitutional as applied to the litigant. A party may not obtain a decision on the validity of a statute on the ground that it impairs the rights of others. Mahurin v. Oaklawn Jockey Club, 299 Ark. 13, 771 S.W.2d 19 (1989). But, one whose rights are affected by a statute has standing to challenge it on constitutional grounds. Macgruder v. Arkansas Game & Fish Comm’n, 287 Ark. 343, 698 S.W.2d 299 (1985).

In Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981), we held that a beneficiary of a will had standing to argue that the statute permitting a widow to take her dower or one-third interest against the will violated the equal protection clause because no similar provision was provided for males. In holding the beneficiary had standing, this court stated the key to deciding whether the beneficiary had standing to challenge the statute’s constitutionality was whether the party (beneficiary) stood to lose financially. Id. Likewise here, if the notice exemption provided for licensed contractors in provision (f) is found to be constitutional, then the Mosleys’ property is subject to a materialman’s lien claim, of which they had no prior notice. In these circumstances, the Mosleys unquestionably stand to lose financially.

In addition, the Mosleys were also affected by provision (f) in another respect. As indicated previously, the primary purpose of § 18-44-115 is to give property owners notice of possible lien claims against their property. With advance notice, property owners can make provisions to protect their property from such claims. Provision (f) took away the Mosleys’ right to notice, therefore we agree with the trial court’s finding that the appellees had standing to challenge the constitutionality of the statute.

Since we hold that the appellees have standing, we address their argument that § 18-44-115(f) violates the equal protection clause. In pertinent part, § 18-44-115 provides the following:

(a) No lien may be acquired by virtue of this subchapter unless the owner or his authorized agent has received, by personal delivery, or by certified mail return receipt signed by addressee only requested a copy of the notice set out in subsection (c) of this section, as evidenced by the signature of the owner, prior to the furnishing of the material, fixture, engine, boiler, or machinery. The notice required by this section shall not require the signature of the owner or his authorized agent in instances where the notice is delivered by certified mail.
(b) It shall be the duty of the principal contractor to give the owner or his authorized agent the notice set out in subsection (c) of this section on behalf of all potential lien claimants under his contract prior to the supplying any materials, fixtures, engines, boilers, or machinery. Any potential lien claimant may also give notice. However, no lien may be acquired for any material, fixture, engine boiler, or machinery furnished prior to the receipt of notice by the owner or his authorized agent.
* * *
(f) The provisions of this section shall not be applicable to commercial and industrial construction performed by contractors licensed under § 17-22-101 et seq.

This court has stated that all reasonable doubt must be resolved in favor of the constitutionality of a statute, and the burden of proving a statute to be unconstitutional is upon the party challenging it. Citizens Bank v. Estate of Pettyjohn, 282 Ark. 222, 667 S.W.2d 657 (1984). And, if it is possible for this court to construe a statute as to meet the test of constitutionality, it will do so. Taylor v. Finch, 288 Ark. 50, 701 S.W.2d 377 (1986) .

The appellees argue and the trial court held that provision (f) is unconstitutional because it granted a special privilege to a “class” of people (licensed contractors) not belonging to all. As set out above, provison (f) exempts licensed contractors performing commercial and industrial construction from giving notice to property owners. Of course, the equal protection clause does not prohibit all statutory classification. Yarbrough v. Ark. State Hwy. Comm’n, 260 Ark. 161, 539 S.W.2d 419 (1976). Classification is permissible if it has a rational basis and is reasonably related to the purpose of the statute. Dicks v. Naff, 255 Ark. 357, 500 S.W.2d 350 (1973), cert. den., 415 U.S. 958 (1974).

In reviewing, § 18-44-115, we see no rational basis for the classification of licensed contractors performing commercial and industrial construction from other contractors. The purpose of this statutory provision was to give property owners notice, as required by the due process clause, of possible lien claims against their property. See generally Nickles, Creditor’s Professional Remedies and Debtor’s Due Process Rights: Statutory Liens in Arkansas, 32 Ark. L. Rev. 185 (1978).

Appellant argues that commercial property owners are more sophisticated than residential owners and that § 18-44-115(f) merely recognizes that such commercial owners, contracting with licensed contractors, are more capable of protecting themselves against potential lien claims. We cannot agree.

First we are not persuaded that a person hiring a licensed contractor to do commercial or industrial construction needs less protection than a person doing residential construction. Such an argument erroneously assumes that all persons building commercial or industrial facilities are more sophisticated than those involved in residential construction — a presumption that we cannot indulge. Second, while we are aware that licensed contractors are subject to strictures and qualifications that unlicensed contractors are not, see Ark. Code Ann. §§ 17-22-301 — 315 (1987) , we fail to see how those requirements aid property owners in obtaining the notice necessary to protect themselves against potential lien claims against their property.

Finally, the mere fact that a contractor is licensed and is performing commercial or industrial construction does not remove the property owner’s constitutional right to have notice of lien claims so the owner can protect his or her property. On this point, we recognize that the trial judge did not address the notice question in due process terms. However, in making their constitutional argument below, the Mosleys not only relied on their equal protection argument, but also broadly cited to the fourteenth amendment to the United States Constitution when discussing § 18-44-115(0 and its failure to provide notice to property owners. In any event, even though the trial court failed to mention in its decision provision (f)’s failure to afford property owners due process, we will affirm the trial court’s judgment if it is right even though the court announced the wrong reason for its ruling. See, e.g., Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984).

For the reasons stated above, we affirm.

Brown, J., concurs.

Robert L. Brown, Justice;

concurring. I would affirm solely on the basis of lack of notice to the property owners, that is, on due process grounds.

       Although not relevant here, any potential lien claimant may, of course, give notice so as to perfect his lien. See § 18-44-115(b).

       We note the trial court made other rulings not at issue in this appeal. In this connection, the trial court found that the laborer’s lien was unenforceable because the appellant’s evidence failed to show the labor costs less profits. The trial court awarded a judgment in favor of the appellant against Paul Sanders Construction, Inc. and Paul Sanders, individually, for $12,120.00.


author: Donald L. Corbin, Justice.

text:
    Dorothy M. BLACK v. Charles C. CRAWLEY, et al.
    90-145
    804 S.W.2d 366
    Supreme Court of Arkansas
    Opinion delivered March 4, 1991.

      Charles Phillip Boyd, Jr., for appellant.

      Barrett, Wheatley, Smith & Deacon, by: J.C. Deacon and Paul C. McNeil, and Wolff Ardis, for appellee.
   Donald L. Corbin, Justice.

Appellant, Dorothy M. Black, as parent and next friend of April Renee Black, her minor daughter, filed a complaint against Dr. Charles C. Crawley in St. Francis County Circuit Court on March 9, 1988. Appellant sought to recover damages in her own behalf and that of her daughter for medical malpractice allegedly committed by Dr. Crawley during the delivery and treatment of her daughter in 1981. Appellant subsequently filed an amended complaint and a second amended complaint, in which she added as parties defendant another doctor, along with Dr. Crawley’s corporate employer and its insurance carrier. On February 28, 1990, plaintiff Dorothy M. Black’s personal claim as parent was dismissed because of the running of the Arkansas two-year statute of limitations for actions for medical injury. Ark. Code Ann. § 16-114-203 (1987). This appeal comes from the dismissal of that claim.

We dismiss the appeal pursuant to Ark. R. Civ. P. 54(b) because the order appealed from is not an appealable order. Rule 54(b) provides in part:

[W]hen multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. [Emphasis added.]

Here, the order dismissing appellant simply states: “ [t] he Motion to dismiss any claim of Dorothy Black, individually, is granted by reason of limitations.” While it does dismiss fewer than all the parties plaintiff, the order neither reflects that any determination was made concerning just reason for delay nor expressly directs the entry of judgment.

Although Dorothy Black’s claim was dismissed, April’s claim is still pending on the record that is now before us. Because there was no compliance with the requirements of Rule 54(b) for entry of a final judgment, Dorothy Black’s appeal must be dismissed. Middleton v. Stilwell, 301 Ark. 110, 782 S.W2.d 44 (1990); Bradley v. French, 297 Ark. 567, 764 S.W.2d 605 (1989).

Appeal dismissed.


author: Robert L. Brown, Justice.

text:
    ARKANSAS ACTIVITIES ASSOCIATION (an Unincorporated Association), Lamar Cole, Executive Director, et al. v. Shane William MEYER
    90-305
    805 S.W.2d 58
    Supreme Court of Arkansas
    Opinion delivered March 4, 1991

      McMillan, Turner & McCorkle, for appellants.

      Samuel F. Beller, for appellee.
   Robert L. Brown, Justice.

This dispute involves the power of the courts to interfere with the rules of a voluntary regulatory agency, the Arkansas Activities Association (“AAA”), which is established and supported by local junior and senior high school systems. More specifically, the case involves the AAA’s appeal from an adverse chancery court decision denying the application of its age rule to appellee Shane William Meyer and enjoining the AAA from prohibiting Meyer’s participation in interscholastic activities including athletics.

The facts are not contested by the parties. In September of 1980 the AAA, which has 495 public and private junior and senior high schools as its members, adopted an age rule for interscholastic events:

B. Senior High. A senior high student whose 19th birthday is on or before October 1, may not participate in an interscholastic event.
NOTE: Grandfather Clause. This rule may be waived for a senior high school student who is ineligible by the above rule due to events that occurred before adoption (September 1980). He may participate until the day he is 20 years old, if normal progression has occurred since 1980 and upon approval of the AAA Executive Director.

Meyer is a student at Highland High School, which is located in Ash Flat. Highland High is an AAA member. Meyer was born on July 10,1971, and was age nineteen at the beginning of his senior year and as of October 1, 1990, which disqualified him from interscholastic events under the AAA age rule. Meyer runs afoul of the age rule because although he entered public schools before September 1980 (the operative date for the grandfather clause under the rule), he repeated the fifth grade in academic year 1983-84. This repetition was not the decision of the school administration but was instead at his mother’s request. Meyer’s mother was not aware of the AAA age rule in 1983, and the AAA took no steps to inform parents of elementary students of the rule at that time.

Meyer was notified about the age rule during his junior year in high school, and on February 28,1990, he petitioned the AAA Executive Director, Lamar Cole, for a hardship exception to the rule. The petition was denied, and the AAA Executive Committee affirmed that decision on March 15,1990. Meyer then filed a petition for injunctive relief against the AAA in chancery court. After a full hearing on his petition, the chancellor, on July 2, 1990, permanently enjoined the AAA from halting Meyer’s participation in interscholastic activities for the 1990-91 school year and further permanently enjoined the AAA from requiring the school to forfeit any AAA regulated activity in which Meyer participated. In a letter opinion which accompanied the chancellor’s order, he found that the age rule itself was rational based on safety considerations but then went on to make additional findings relative to the grandfather clause:

b. It does not appear to this court that the AAA was rational in making an exception to the rule grandfathering students in who would otherwise be ineligible after the adoption date of said rule.
c. Since the rule was adopted to protect students and an exception was made to the rule grandfathering students in until their 20th birthday regardless of their size, mental status, or athletic ability as long as normal school progression had occurred, each case should be determined with the safety and fairness of other students in mind.
d. Shane Meyer was held back in the 5th grade by his parents, not the school, therefore, he should have passed on to the 6th grade.
e. Shane Meyer has progressed normally, since being involved in activities under the AAA rules and regulations.
f. Shane Meyer’s mental or physical ability does not present an unfair or unsafe condition to other students should he be permitted to participate under the grandfather exception.

We disagree with the chancery court’s analysis of the grandfather clause, and we reverse the chancellor’s order and vacate the permanent injunction.

The AAA first raises the argument that the courts are powerless to interfere in the affairs of voluntary organizations. As a general rule the AAA is correct. It is well settled that the power of the courts to review the actions of voluntary associations is extremely limited, and the courts will avoid interference with such associations except in case of “fraud, lack of jurisdiction, or the invasion of property or pecuniary rights or interests.” Bruce v. South Carolina High School League, 189 S.E.2d 817, 819 (S.C. 1972). The Bruce court went on to say that the decisions of associations and their tribunals will be accepted by the courts as conclusive “in the absence of mistake, fraud, illegality, collusion, or arbitrariness.” Id.

Appellee Meyer, nonetheless, contested the grandfather clause of the AAA age rule on a variety of constitutional grounds including arbitrariness and capriciousness, denial of due process, deprivation of pursuit of happiness and enjoyment of life, and violation of equal protection of the laws. The constitutional issues raised easily place the matter within the narrow criteria where judicial review is appropriate.

A threshold question is whether the allegations of constitutional deprivation involve state action. Here, we are concerned with a voluntary association; while it is not a state agency, the association had significant contacts and relationships with the public schools of this state. For example, the AAA membership consists of the superintendents and principals of the 495 member schools who are responsible for adopting the rules which regulate interscholastic activities at those schools. Under such circumstances state action has been found to exist. See, e.g., Barnhorst v. Missouri State High School Activities Ass’n., 504 F. Supp. 449 (W.D. Mo. 1980). We hold that it exists in this case due to the close and symbiotic relationship between the AAA and the Arkansas public school system.

The AAA argues that Meyer’s right to participate in interscholastic events is more a privilege than a constitutional right. While that may be, the distinction between rights and privileges, where governmental benefits are concerned, has been largely discarded by the United States Supreme Court. See Graham v. Richardson, 403 U.S. 365 (1971). Be that as it may, there is clearly no constitutional right to play sports or engage in other school activities. See Barnhorst v. Missouri State High School Activities Ass’n, supra. It legitimately falls within the purview of a voluntary association like the AAA, acting in conjunction with the schools, to regulate such activities. However, to the extent that rules are adopted by the AAA they must satisfy constitutional principles as applied and may not impinge on due process or equal protection rights. A student has the right to have his or her request to participate in student athletics reviewed under rules that are constitutional. Id. Here, Meyer’s assertion is the AAA’s grandfather clause fails to pass constitutional muster as applied to his situation.

The crux of this case, then, is whether a rational basis exists for the grandfather clause under the age rule. Neither party contests the age rule itself or the policy rationale supporting the rule. But Meyer contends the grandfather clause unfairly discriminates against him and in favor of nineteen-year-olds who did normally progress through school after September 1980, and, therefore, it violates the Equal Protection Clause of the state and federal constitutions. Both Meyer and the AAA agree that the test for determining whether the classification between students normally progressing and those who do not under the grandfather exception is whether the exception bears a rational relationship to a legitimate state interest.

In a situation bearing striking similarities to the present case, the Fifth Circuit Court of Appeals refused to find that a distinction drawn by a high school athletic association between repeating a grade voluntarily and a mandatory repetition due to academic failure was either inherently suspect or an encroachment of a fundamental right under the Equal Protection Clause. Mitchell v. Louisiana High School Ass’n, 430 F.2d 1155 (5th Cir. 1970). There, the issue was whether three students who had voluntarily repeated a grade lost their fourth year of eligibility to play sports in high school. The association rule was clear in saying that the three students who voluntarily repeated did lose their eligibility. But the rule also provided that it did not apply to students repeating a grade due to academic failure.

The three students contested the rule, specifically the classification between academic failure and voluntary repetition. The court found that the classification was grounded in and related to a legitimate state interest which was “to minimize the hazard of having usual high school athletes competing with older, more skilled players.” 430 F.2d at 1158. More specifically, the court said that the repetition of a grade due to academic failure was less likely to be influenced by athletic considerations than voluntary repetition.

The Mitchell case offers substantial guidance in this case. Here, too, there is a legitimate state interest sustaining the AAA rule — the safety of the younger players. There is, further, a legitimate interest in permitting students already in the school system as of September 1980 to play until age twenty, if they normally progress from grade to grade. Failure to progress normally due to a voluntary repetition of a grade could be used as a subterfuge to enable older students to engage in activities like sports during their senior year.

It is true that the grandfather clause allows students already in school as of September 1980 to play sports until age twenty, if they satisfy the “normal progression” requirement. This seemingly undermines the purpose of the rule in that it permits nineteen-year-olds to engage in interscholastic sports with all of the implied safety risks. At the same time the grandfather exception is grounded in legitimate public policy. To have changed the rules in September 1980 and thereby denied to existing students who started school late the right to engage in certain school activities would have been a deprivation of their rights without notice. The rights of such existing students who were older than their classmates as of September 1980 must also be protected against any arbitrary severance of their rights occasioned by the new rule.

We have continuously upheld the legitimacy of grandfather clauses and the policy behind them. See, e.g., Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991). Legislators have the right to make distinctions in their enactments between existing rights and conditions and those that may come into existence in the future, when there is a rational basis for that distinction. Valley Bank v. State, 335 A.2d 652 (N.H. 1975). We hold that a rational relationship to a legitimate state interest exists for the grandfather clause in the AAA age rule, that is, that existing students in September 1980 not be penalized by the adoption of a new rule so long as they progress normally through school from that date forward. Meyer, ironically, argues that the grandfather clause is invalid on constitutional grounds. But without the grandfather clause, he has no recourse for a hardship exception, since he was clearly nineteen and ineligible for 1990-91 activities under the rule itself.

The grandfather exception to the AAA age rule is uniformly applied by the association in that all students “grandfathered in” must satisfy the normal progression requirement as of September 1980. Meyer failed to do so and because of that is rendered ineligible. In addition to uniform application the exception has a legitimate reason for its genesis as discussed above. Under these circumstances we find no grounds for a finding of arbitrary or capricious behavior on the part of the AAA.

It is true that Mrs. Meyer was not aware of the AAA age rule in 1983, when she held her son back to repeat the fifth grade, and it is further true that the AAA did not advise parents of elementary students of the age rule at that time. But that information was available to her had she sought it out from the school administration or the AAA. She did not, and this leads to a harsh result for her son. We hold, however, that the lack of notice to Mrs. Meyer in 1983 does not rise to the magnitude of a constitutional deprivation of due process of law under either the state or federal constitutions. See Mitchell v. Louisiana High School Ass’n, supra (failure to give notice of an association rule was not a violation of due process under the federal constitution).

Finally, we cannot agree that Meyer normally progressed through school after September 1980, when he repeated the fifth grade in 1983-84. This simply is not normal progression. The fact that he did so at his mother’s behest rather than the school’s is not a persuasive argument. The safety policy set out in the age rule is clearly jeopardized by a repetition of grades, regardless of the reason for that repetition.

We hold today that the court clearly erred in finding no rational basis for the age rule’s grandfather clause and further erred in concluding that Meyer progressed normally through school after September 1980. The permanent injunction is therefore vacated and this case is dismissed.

Reversed.

Glaze, J., concurs.