author: Jack Holt, Jr., Chief Justice. Robert H. Dudley, Jack Holt, Jr., Chief Justice.

text:
    Kenneth BENSON and Louann Benson v. SHULER DRILLING COMPANY, Inc.
    93-822
    871 S.W.2d 552
    Supreme Court of Arkansas
    Opinion delivered February 28, 1994
    [Supplemental Opinion on Denial of Rehearing April 18, 1994.]

      Robert L. Depper, Jr. and Denver L. Thornton, for appellants.

      Bridge, Young, Matthews & Drake, PLC, by-: Stephen A. Matthews and Ruth Ann Wisener, for appellee.
   Jack Holt, Jr., Chief Justice.

This lawsuit arose when a saltwater tank owned by Shuler Drilling Company (“Shuler”), which was being serviced by Mr. Kenneth Benson, an employee of Arkansas Service Company, exploded, injuring him. Mr. Benson and his wife sued Shuler claiming that the explosion was the result of Shuler’s negligence. A crucial factual question at trial was whether Mr. Benson was on the catwalk on the side of the tank or on the ground near the tank when the explosion occurred. The jury found in favor of Shuler. We reverse and remand.

I. Admission of physician’s discharge summary

A. A.R.E. Rule 803 (4) Medical Records Exception to Hearsay Rule

For their first allegation of error, the Bensons contend that the trial judge erred in refusing to grant their motion in limine as to certain sections of Dr. Callaway’s deposition relating to his medical records. Dr. Callaway was Mr. Benson’s orthopedic surgeon whose deposition was admitted into evidence in lieu of his live testimony.

Of primary concern is Dr. Callaway’s written discharge summary, which provides in pertinent part: “The patient is a 22 year old white male in an oil tank explosion, fell from the cat walk around the oil tank down to the ground.”

When asked who had informed him that Mr. Benson had fallen from the catwalk, Dr. Callaway spoke in contradictory terms: “I assume that it came out in the subsequent, when he was able to talk about it, or someone told us. . . .1 would not know where else I would have gotten it except from Mr. Benson, unless a relative or somebody — I’m sure that once he was able to discuss it, we discussed the mechanism of injury, and that may be where that came from, but at this point, I don’t have any documentation to tell me how I got that information.” On the other hand he stated: “When opposing counsel asked me about the catwalk fall and that thing, I said I just assumed that Mr. Benson told me that, but I can’t state that with any degree of certainty. I don’t know where we got it, but I didn’t pick it out of the air someplace. Somebody told me, or I got the information from some place.”

In addition, it is unclear from the record when Dr. Callaway was informed that Mr. Benson had fallen from the catwalk. The written history, taken in the emergency room, reflects that Dr. Callaway was not informed at the time of Mr. Benson’s admission that he had allegedly fallen from a catwalk: “The patient is a 21 year old white male involved in an oil field explosion in which he sustained injuries to both arms and both lower extremities. Exact mechanism of injury is not known.” (Emphasis added.) In his deposition, Dr. Callaway explained that he had taken a history from him “as best he could at that time with his injuries and all”

Dr. Callaway acknowledged that it is helpful for him to learn of the cause of a patient’s injuries immediately and stated:

In the extent in this case or in many cases, it was in the emergency room, that the nature of the injury and the mechanism of injury is sometimes important in assessing the severity of the injury. A high velocity crush injury is going to be much more severe even though the x-rays and appearances may be very similar to a low velocity injury in the emergency room.

Yet, Dr. Callaway did not indicate that he had relied upon the information that Mr. Benson had fallen from the catwalk in making his diagnosis or prescribing treatment. Judging from the doctor’s testimony and his case history report, it is readily apparent that Dr. Callaway did not have this information upon Mr. Benson’s admission nor did he utilize it in making his diagnosis and prescribing treatment.

Because of Dr. Callaway’s uncertainty as to who made the statements or when they were made, Mr. Benson filed a motion in limine prior to trial, seeking to exclude portions of testimony contained in Dr. Callaway’s deposition, namely matters relating to Mr. Benson’s cause of injury. The trial court examined his testimony on a line-by-line basis, excluding certain portions but admitting the information relating to his discharge summary which attributed his injury to a fall from the catwalk. We have stated that motions in limine are to enlighten the court and advise counsel of the specific nature of the anticipated evidence so that the court may intelligently act on such motions. Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993); Schichtl v. Slack, 293 Ark. 281,737 S.W.2d 628 (1987). Motions in limine are not ordinarily used to extinguish an entire claim or defense. Rather, they are usually used to prohibit the mentioning of some specific matter, such as an inflammatory piece of evidence, until the admissibility of that matter has been determined out of the hearing of the jury. Schichtl, supra, (citing Lewis v. Buena Vista Mutual Ins. Ass’n, 183 N.W.2d 198 (Iowa 1971)).

It follows, then, that one who offers evidence has the burden of showing its admissibility. See Arkansas State Highway Comm. v. Roberts, 246 Ark. 1216, 441 S.W.2d 808 (1969). When a party asks for a motion in limine to exclude evidence because it is hearsay, the burden is on the “offering party to prove the admissibility of the evidence.” See Robin L. Lafferty, Comment, Motion in Limine, 29 Ark. L. Rev. 215, 226 (1975)(citing Aetna Casualty and Surety Co. v. Finney, 346 S.W.2d 917 (Tex.Civ.App. 1961)). This burden was not met in this case.

Since the introduction of evidence is a matter within the sound discretion of the trial judge, we must determine whether or not he abused his discretion in allowing the discharge summary in evidence before we reverse his findings, and in the absence of abuse of that discretion, we will not reverse. See Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986). See Robinson v. State, 314 Ark. 243, 861 S.W.2d 548 (1993); Gipson v. Garrison, 308 Ark. 344, 824 S.W.2d 829 (1992).

In support of their argument that the trial court abused its discretion and committed error in admitting the discharge summary, the Bensons cite A.R.E. Rule 803 (4):

Hearsay exceptions — Availability of declarant immaterial.
(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensation or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

The Bensons contend that because Dr. Callaway could not say with any certainty when or from whom he had acquired the information that Mr. Benson had fallen from the catwalk and because he could not have relied upon this information “for purposes of medical diagnosis and treatment,” Shuler has not met its burden of proof.

Granted, where an injured party has described how his injury occurred, the basis for this hearsay exception is his strong motivation to be truthful in giving statements for diagnosis and treatment. Carton v. Missouri. Pac. R.R., 303 Ark. 568, 798 S.W.2d 674 (1990). Moreover, it has been suggested that, under these circumstances, a fact reliable enough to serve as the basis for diagnosis is also reliable enough to escape hearsay proscription. United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980). Thus, the trustworthiness of statements made to a physician and offered at trial under the exception may be tested by determining whether the information provided is of a type reasonably relied upon by a physician in diagnosis and treatment, and by determining whether the patient’s motive is consistent with this rule’s purpose. Id. However, when, as here, the declarant is unknown, the reliability of the statement is highly suspect.

Although we have not addressed this precise issue before, the Eighth Circuit Court of Appeals faced a similar situation in Stull v. Fuqua Industries, Inc., 906 F.2d 1271 (8th Cir. 1990). In Stull, there was a factual dispute as to how the seventeen-year-old appellee hurt himself on a riding lawnmower — the question was whether he jumped off the mower or got his foot trapped in the mower. The Eighth Circuit affirmed the trial judge’s decision to exclude a hospital record that stated that the accident occurred when Stull jumped off the lawn mower, explaining:

The medical records exception to the hearsay rule assumes that a person making a statement for the purpose of obtaining medical diagnosis or treatment will likely tell the truth to a medical person and that the statement is therefore inherently reliable. Hence, to fall within the exception, the statement must be obtained from the person seeking treatment, or in some instances from someone with a special relationship to the person seeking treatment, such as a parent.
Here the word “apparently” in the hospital record indicates that the statement about jumping off the mower may not have been made by Stull; it may instead represent conjecture on the part of the person filling out the record. Fuqua introduced no evidence rebutting this possibility. In fact, Dr Wolf, the treating physician, testified that he did not know from whom the statement was obtained. In the absence of any evidence attributing the statement to Stull, the district court acted well within its discretion in excluding the hospital record.

Stull, 906 F.2d at 1273-1274.

Although not binding, the holding of the Eighth Circuit Court of Appeals is persuasive and in applying its rationale to the case at bar, we see that the trial court abused its discretion in admitting Dr. Callaway’s statements from the discharge summary into evidence, for Dr. Callaway could not remember whether or not he obtained this statement from Mr. Benson while he was seeking treatment or from someone who was in a special relationship with him. In short, he could not remember who told him about Mr. Benson falling from a catwalk.

Furthermore, the record is devoid of any indication that Dr. Callaway relied on the information he received that Mr. Benson fell from the catwalk to fashion his diagnosis of Mr. Benson or his treatment. Construing the federal equivalent to A.R.E. Rule 803(4), Professor Weinstein explains that in order to be admissible, these statements need to be for the purposes of diagnosis or treatment:

Statements relating to someone else’s symptoms, pains or sensations would be admissible, provided again, they were made for purposes of diagnosis or treatment. The relationship between the declarant and patient will usually determine admissibility ... As the relationship becomes less close, the statement becomes less reliable, both because the motive to tell the truth becomes less strong, and because even a stranger in good faith may not be able to describe another’s physical pain and suffering as infallibly as an intimate. The court in its discretion pursuant to Rule 403 will have to assess the probative worth of the statement, which will depend on its significance, its contents, by whom it is made, and in what circumstances it was made, and decide whether admission is warranted despite the dangers of prejudice, confusion and waste of time.

Weinstein’s Evidence, Vol. 4 (1993), p. 803-145.

In the absence of any evidence attributing the statement to Mr. Benson or to someone in a special relationship with him, or that Dr. Callaway relied on this statement to fashion his diagnosis or treatment of Mr. Benson, we hold that the trial court abused its discretion in admitting the hospital record into evidence.

B. A.R.E. Rule 803(6) Business Records Exception to Hearsay Rule

Shuler also claims that the discharge summary was admissible under the business records exception contained in A.R.E. Rule 803 (6), which provides:

Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method of circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

We interpreted the business records exception as having seven requirements: (1) a record or other compilation, (2) of acts or events, (3) made at or near the time the act or event occurred, (4) by a person with knowledge, or from information transmitted by a person with knowledge, (5) kept in the course of regularly conducted business, (6) which has a regular practice of recording such information, (7) all as known by the testimony of the custodian or other qualified witness. Terry v. State, 309 Ark. 64, 67, 826 S.W.2d 817, 819 (1992). Rule 803 (6) further provides that business records will be not be admitted if the source of information or the method of circumstances of preparation indicate lack of trustworthiness. Id.

Applying these seven requirements to the discharge summary, we hold that it was not admissible under this exception because the source of information indicates lack of trustworthiness and the record was not made by a person with knowledge of the testimony. Nor was the record made at or near the time the event occurred.

C. Waiver of testimony by “opening the door”

Lastly, Shuler claims that the Bensons “opened the door” on this testimony in Dr. Callaway’s deposition and, therefore, have waived their right to complain about it. Yet, as the Bensons point out in their brief, the parties stipulated prior to the taking of the deposition that “[t]he right to object to the testimony of the witness on the grounds of incompetency, irrelevancy and immateriality is expressly reserved. . . .” Our rules of civil procedure permit parties to stipulate to preserve any objections as to the taking of the deposition until the time of trial. See Ark. R. Civ. R 29; Carlton Bailey, “Usual Stipulations” are Usually a Mistake at the Oral Deposition, 1991 Ark. L. Notes 3. In addition, Ark. R. Civ. P. 32(b) provides that an objection may be made at the trial or hearing to receiving into evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness was then present and testifying. Shelter Mut. Ins. Co. v. Tucker, 295 Ark. 260, 748 S.W.2d 136 (1988). As such, even though the Bensons first explored the medical history in a limited manner during the taking of Dr. Callaway’s deposition, they have a well-established right to make objections and to try to excise portions of his testimony at trial.

II. Bracketed material in AMI 301

Although we reverse and remand this case based on the introduction of the discharge summary, we address the Bensons’ argument regarding AMI 301 as it will, in all probability, be an issue facing the trial court in the event of retrial.

The Bensons contend that the trial court committed reversible error by giving the bracketed portion of AMI 301. The jury instruction given provides:

When I use the word “negligence” in these instructions, I mean the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence in this case. [To constitute negligence an act must be one from which a reasonably careful person would foresee such an appreciable risk of harm to others as to cause him not to do the act, or to do it in a more careful manner.]

The Bensons claim that by giving the bracketed material, the court “eroded and lessened the ‘reasonable care’ standard.” We disagree, for as Shuler emphasizes, Arkansas law recognizes that the failure to guard against an occurrence that is not reasonable to anticipate is not negligence.

Foreseeability is a necessary ingredient of actionable negligence in this state. Dollins v. Hartford Accident & Indemnity Co., 252 Ark. 13, 477 S.W.2d 179 (1972); North Little Rock Transp. Co. v. Finkbeiner, 243 Ark. 596, 420 S.W.2d 874 (1967). There is no negligence in not guarding against a danger which there is no reason to anticipate. First Electric Cooperative Corp. v. Pinson, 277 Ark. 424, 642 S.W.2d 301 (1982). There is a duty on the part of one in charge of a dangerous instrumentality to protect against danger if he knew or should have known that the situation was dangerous. Id.

In the situation before us, the evidence was disputed as to whether the saltwater tank resting on gravel would create static electricity and if so, whether this was the cause of the explosion. Evidence presented at trial also established that Shuler’s saltwater tank was no different than those used by other companies in similar situations. Accordingly, foreseeability of the accident was in issue and the bracketed portion of AMI 301 was justified under the circumstances.

Since this case is being reversed and remanded, we need not address the Bensons’ argument that the verdict for Shuler was not supported by substantial evidence.

Reversed and remanded.

Dudley and Hays, JJ., dissent.

Robert H. Dudley,

dissenting. The majority opinion reverses because “the trial court abused its discretion in admitting the hospital record into evidence.” It is difficult to squarely join issue with the majority opinion because the point of appeal is not about admitting a hospital record into evidence, but rather it is about the admissibility of questions and answers contained in the deposition of Dr. J.C. Callaway, plaintiff Kenneth Benson’s orthopedic surgeon.

The parties agreed to take the evidentiary deposition of Dr. Callaway because he would be unavailable to testify on the scheduled trial date. The deposition was to constitute a part of plaintiffs’ case-in-chief, and, at trial, it was read into evidence for that purpose. In taking the deposition, plaintiffs’ counsel asked about plaintiff Kenneth Benson’s condition when he was initially brought into the emergency room of the hospital. After a few questions, and without objection from the defendant, plaintiffs’ counsel asked, “Did you take a history from him at that time?” Dr. Callaway responded, “As best I could with his injuries and all.” On cross-examination, after the plaintiffs’ attorney had opened the door, the defendant’s attorney asked additional questions about that history. Subsequently, plaintiffs’ attorney filed a motion objecting to the questions and answers about the medical history. See ARCP Rule 32(b). The motion identified by page and line the questions and answers to which plaintiffs objected. The trial court carefully considered each objection and separately ruled on the admissibility of each. Some objections were sustained, while others were overruled. In this point of appeal, the Bensons contend the trial court erred in overruling some of the objections and allowing the jury to hear the answers.

We have often set out the standard of review for a case of this kind: A trial court has discretion in admitting evidence, and, on appeal, we will reverse a trial court’s ruling on the admissibility of evidence only in the case of abuse of that discretion. Warhurst v. White, 310 Ark. 546, 838 S.W.2d 350 (1992). That standard should be applied in this case.

The facts surrounding the trial court’s ruling are as follows. After the deposition had been transcribed, plaintiffs filed their initial motion to exclude the questions and answers as follows: “Plaintiffs would move to exclude the following testimony of Dr. J.C. Callaway for the reasons of hearsay; page 20, line 17; page 20, lines 21-24; page 21, lines 2-8; page 6, lines 9-25; page 15, lines 5-8; page 25, lines 13-19.” In the motion, plaintiffs did not cite a rule of evidence, nor did they cite a single case to the trial court. The abstract does not reflect that plaintiffs filed a brief in support of the motion. The complete objection was contained in the motion, and that was the sole word “hearsay.”

Later, plaintiffs amended their motion as follows: “The Plaintiffs would additionally designate the following testimony of Dr. J.C. Callaway to be excluded: page 21, lines 9-25; page 22, lines 1-3.” Again, neither a rule of evidence nor a case was cited in the motion, nor was a supporting brief filed. The parties did not make an oral argument to the court, so the plaintiff did not supply any additional citations.

The abstract does not reflect that the trial court ever ruled on the motion to exclude the specific questions and answers, and, consequently, we might affirm solely on that basis. Linnell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984). Even so, I would not do so. Rather, I would go to the record, examine the rulings, reach the merits, and affirm the rulings of the trial court because the trial court did not abuse its discretion.

While plaintiffs’ abstract does not reflect that they filed a brief in support of their motion, the record reflects that they did do so. The record discloses that they filed a brief and objected to the admission of the questions and answers on the ground that Dr. Callaway was not certain who gave him the medical history. No other ground for exclusion was ever argued to the trial court. In response to that one argument, the trial court ruled:

These motions dealt with the testimony of Dr. J.C. Call-away, who will be presented to the jury by deposition. Specifically, those exceptions dealt with Dr. Callaway’s testimony on pages 6 of the deposition, page 15 of the deposition, page 20 of the deposition, page 21 of the deposition, page 22 of the deposition, and page 25 of the deposition.
The Court from the motions did some preliminary research and caused rulings to be presented and made. Basically, the Court relied on the Arkansas Rules of Evidence, Rule 803(4), which deals with diagnosis or medical information taken by the medical care provider and Rule 803(6) which deals with recorded statements and business records.
The Court feels that any evidence, either admitted or excluded, would have to be, particularly with regard to Dr. Callaway’s statements, reasonably relied on and reasonably pertinent to the diagnosis or treatment.
There are several authorities for that and the court founded it’s rulings on Huls v. State, 27 Ark. App. 242. Although a criminal case dealt with these statement or statements and I think in that case it was the statement of a victim concerning the defendant throwing something at her and busting her tooth. The court felt that was not necessary because whether it was thrown at her or whatever the situation was, it wasn’t necessary for the purpose of diagnosis or treatment.
The second was United States Iron and Steel, 636 Fed. 2d, 177, an 8th Circuit case [United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980)]. It gave the test of this which hopefully the Court is using.
The Court then reviewed the depositions and on page 6, lines 9 through 25, granted the motion to exclude on the basis that it was not certain to the court or from the deposition who the declarant was, who the source of the statement was received from, that this statement made by Dr. Callaway would be at best speculative, not reliable and not trustworthy.
Secondly, on page 15 the testimony of Dr. Callaway dealt with social security. That is a collateral source and the Court feels that that should be excluded.
Finally, on pages 20, 21, 22, and 25, [the basis of this appeal] the Court felt that all of this or all of these statements by Dr. Callaway were elicited in the questioning of Dr. Callaway and basically he says that the source of these statements, he assumed were from Mr. Benson and he further stated “I would not know where else I got it.”
I think that that was written down on his discharge summary or the statements relating thereto from the discharge summary do have reliability, do have trustworthiness and are admissible under 803(4) and 803(6) and specifically, on page 20 there were lines 17 and lines 21 and 24; on page 21 line 8; on page 22 lines 1 through 3; and on page 25 lines 13 through 19. I think that those should not be excluded arid should be admitted as testified to by Dr. Call-away.

The majority opinion takes direct issue with the trial court’s finding of fact and implies that there was no evidence whatsoever that plaintiff Kenneth Benson gave the history. The majority opinion states: “In the absence of any evidence attributing the statement to Mr. Benson or someone in a special relationship with him, or that Dr. Callaway relied on this statement to fashion his diagnosis or treatment of Mr. Benson, we hold that the trial court abused its discretion in admitting the hospital record into evidence.” That statement reflects the issue between the majority opinion and this dissent. The issue is whether the trial court abused its discretion in ruling that there was sufficient evidence to allow Dr. Callaway to testify about the medical history.

The majority opinion discusses other issues, and they can be quickly laid aside. We have often written that we will not consider arguments raised for the first time on appeal. Babbitt v. Quick-Way Lube & Tire Inc., 313 Ark. 207, 853 S.W.2d 273 (1993). The majority opinion goes far beyond the one issue raised in the trial court. The majority opinion reverses in part because of a Rule 403 weighing of probative worth against the danger of prejudice. The notion that a 403 weighing should have been conducted is raised for the first time in the majority opinion. Plaintiffs did not ask for a 403 weighing, and the argument should not be considered for the first time on appeal. To do so is very unfair to appellee, for it has not been given the opportunity to make a record on the issue.

Additionally, the majority opinion holds, in part, that the defendant, as a matter of law, had the burden of showing the admissibility of the evidence and that it failed to meet that burden. The majority opinion cites a case decided before the adoption of the Uniform Rules of Evidence. Arkansas State Highway Comm’n v. Roberts, 246 Ark. 1216, 441 S.W.2d 808 (1969). Even though the Arkansas Rules of Evidence do not address the burden of proof, the statement is subject to question, because all relevant evidence is now admissible unless excluded by a rule of evidence or by law. A.R.E. Rule 402. Under the Rules it would seem that the opponent of evidence must invoke some rule of evidence that excludes the evidence, and, if it is applicable, then the proponent must make the evidence satisfy the rule. Regardless of the correct rule about the burden of proof, the argument should not be considered, because, like the others, it is raised for the first time on appeal. This part of the holding in the majority opinion should also be laid aside.

There is only the one issue before this court. The record of evidence on that issue is just as the trial court found: On direct examination, plaintiffs’ counsel asked about plaintiff Kenneth Benson’s condition when he was brought to the hospital. A few questions later plaintiffs’ counsel asked Dr. Callaway the following:

Q Did you take a history from him at this time?
A As best I could with his injuries and all.

Later, on cross-examination, defendant’s counsel asked, and the doctor answered:

Q Yes. You spoke earlier of history, the history that you have, I believe you said, such as you were able to obtain or something like that. Is history important to you in treating a patient?
A In the extent in this case or in many cases, it was in the emergency room, that the nature of the injury and the mechanism of injury is sometimes important in assessing the severity of the injury. A high velocity crush injury is going to be much more severe even though the x-rays and appearances may be very similar to a low velocity injury in the emergency room.
Q So you try from whatever source you can to get the best information you can about what caused the injury, is that correct?
A At this time, of course, there wasn’t much—
Q I’m not taking about this particular case.
A Yes, we try to ascertain how much the patient was injured and particularly the mechanism of injury and whether it was a high velocity or low velocity type injury.
Q In your discharge summary, which you dictated October the 7th, 1984, you wrote, quote, “The patient is a 22 year old white male in an oil tank explosion.” I think maybe the word “injured” is left out, “. . .in an oil tank explosion, fell from the catwalk around the oil tank down to the ground sustaining a fracture of the left femur, a com-minuted fracture of the lateral femoral condyle on the left and posterior dislocation of the right hip,” unquote. Do you know who told you that he fell from a catwalk?
A I assume that is came out in the subsequent, when he was able to talk about it, or someone told us but —
Q You wrote this on October 7th, after the accident on September 24th, and that was the time he was discharged from the hospital. Do you assume that Mr. Benson gave you this information?
A I would not know where else I would have gotten it, unless a relative or somebody — I’m sure that once he was able to discuss it, we discussed the mechanism of injury and that may be where that came from, but at this point, I don’t have any documentation to tell me how I got that information.
Q But you did write on October 7th, 1984, that “he fell from the catwalk around the oil tank down to the ground,” is that correct?
A If that is what it says, it is correct as far as I know.
Q Well, would you like at your—
A I read it just a few minutes ago.

The trial court read the foregoing questions and answers, examined them in light of the sole objection regarding uncertainty about who gave the information, and ruled “basically he says that the source of these statements, he assumed were from Mr. Benson and he further stated T would not know where else I got them.’” The trial judge thought the doctor’s testimony about the history was certain enough to allow the evidence to be admitted, and the weight to be given the evidence would be left up to the jury. It is inconceivable that the majority opinion says the ruling constituted an abuse of discretion, and, in addition, the ruling has a basic fairness about it. On direct examination, plaintiffs’ counsel asked whether Dr. Callaway had taken a history from Kenneth Benson, and, after finding that he had done so, questioned him on the subject. On cross-examination, defendant’s counsel asked about the details of the history. Plaintiffs objected to the detailed information. The trial court read the deposition and recognized that the jury would hear plaintiffs’ question about taking a history and the answer that the doctor had taken a history from the plaintiff Kenneth Benson, but would never hear the details of that history. It was obvious that plaintiffs wanted the jury to know that the doctor had taken a history, but they did not want the jury to know what it was. In comparable cases we have said that one who opens up a line of questioning should not be heard to complain of that for which he was responsible. Bull Shoals Community Hosp. v. Partee, 310 Ark. 98, 832 S.W.2d 829 (1992). That is only fair.

In summary, the trial court had discretion in allowing the relevant testimony into evidence, and the trial court did not abuse its discretion in allowing the testimony. Accordingly, I dissent from the majority opinion.

Hays, J., joins in this dissent.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING APRIL 18, 1994

Robert L. Depper, Jr., for appellants.

Bridges, Young, Matthews & Drake, P.L.C., by: Stephen A. Matthews, for appellee.

Jack Holt, Jr., Chief Justice.

In its petition for rehearing,

the appellee Shuler Drilling Company, Inc.’s (Shuler) sole point of contention is that this court erred in holding that the Bensons “did not open the door” to the testimony from Dr. Callaway regarding the medical records. In this regard, we noted that “as the Bensons point out in their brief, the parties stipulated prior to the taking of the deposition that ‘[t]he right to object to the testimony of the witness on the grounds of incompetency, irrelevancy and immateriality is expressly reserved .. .’” Shuler claims that since the stipulation does not appear in the record, this holding was based on assumed facts not in the record. This is partially correct.

Dr. Callaway’s deposition was read into the record at trial. Thus, it appears in the transcript, but without the stipulations in question. Examination of the files and record in this case reflect that although Bensons’ exhibits one through six and Shuler’s exhibit one are in the packet, and the exhibit sheet prepared by the court reporter lists the deposition as being included, the deposition, Bensons’ exhibit seven, is no where to be found. In the Bensons’ brief, they cite us to page two of the deposition for the stipulations; however, this citation is of no moment since the deposition is not avail able. Thus'we stand in error as to the stipulation.

Regardless, Shuler’s argument does not justify granting its petition for rehearing because we spelled out in our opinion another basis for our holding in Bensons’ favor. Ark. R. Civ. P. 32(b) provides that an objection may be made at the trial or hearing to receiving into evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness was then present and testifying. Since Shuler’s counsel complied with Rule 32(b), our mistaken assertion as to a stipulation between the parties is of no consequence.

Affirmed.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES v. Robert HARDY
    93-153
    871 S.W.2d 352
    Supreme Court of Arkansas
    Opinion delivered February 28, 1994

      G. Keith Griffith, for appellant.

      Eddie N. Christian, for appellee.
   Robert H. Dudley, Justice.

The Arkansas Department of Human Services filed this paternity suit on behalf of Brenda Elliott, the mother of the child, and asked that Robert Hardy be found to be the father and that he be ordered to pay past and future child support. The chancellor heard the proof, decided the case, signed a final order setting out his ruling, and, in a second order, decreed that the final order was sealed. The Department appealed to the court of appeals. The court of appeals questioned whether it had jurisdiction and certified the case to this court for an interpretation of the various rules. We remanded the case for the parties to brief the issues of whether the chancellor validly sealed the final order and whether the appellate court obtained jurisdiction. Arkansas Dep’t of Human Servs. v. Hardy, 314 Ark. 537, 866 S.W.2d 820 (1993). Their briefs have now been received, and the case is again submitted to us. We take jurisdiction, and reverse, modify, and remand.

The initial issue is whether the trial court entered a final order so that we have appellate jurisdiction. Rule 58 of the Arkansas Rules of Civil Procedure provides that “[ejvery judgment or decree shall be set forth on a separate document. A judgment or decree is effective only when so set forth and entered as provided in Administrative Order Number 2.” Administrative Order Number 2, in the material part, provides that a judgment or decree shall be “filed in the folio assigned to the a'ction and shall be marked with its file number.” Rule 4(e) of the Arkansas Rules of Appellate Procedure, which concerns the time for filing a notice of appeal, provides that an order is “entered” when it is “filed with the clerk of the court in which the claim was tried.” The date a judgment is filed with a court clerk is denoted by the clerk marking or stamping the date and the word “filed” on the document. See Shaefer v. McGhee, 284 Ark. 370, 681 S.W.2d 353 (1984).

The final order in this case was set forth on a separate document as required by Rule 58. It contains the case number on the front page as well as the date the judge signed the order. It was filed with the clerk, and the clerk placed it in the folio assigned to the action, as required by Administrative Order Number 2. However, the clerk did not separately mark the final order because it was sealed in the envelope. Instead, the clerk taped a copy of the second order securely to the sealed envelope containing the final order. The second order provides: “The [final] Order made and entered by this court on the 19th day of October, 1992, is hereby sealed and filed in-camera and shall not be opened except by order of court of competent jurisdiction.” The final order bears the identical style and date.

The issue is whether the final order was sufficiently marked by either the chancellor or the clerk to constitute entry. The clerk placed her filemark on the second order and then securely taped a copy of that second order onto the face of the envelope containing the final order so that there can be no doubt about the authenticity of the final order or the date it was handed to the clerk for placement in the folio. Consequently, we hold there was a sufficient marking of the final order to constitute an entry for purposes of this appeal. This holding is limited to the facts of this case, and, as can be seen from the next section of this opinion, it is a problem that should not arise again.

The foregoing issue came about because the chancellor sealed the final order, and, contrary to the arguments of both parties, we know of no authority for the sealing of a final order. One of the basic principles of a democracy is the people have a right to know what is done in their courts. Correlative of this principal is the vital function of the press to subject the judicial process to extensive public scrutiny and comment. See Arkansas Television Co. v. Tedder, 281 Ark. 152, 662 S.W.2d 174 (1983). Secret final orders could defeat this synergy of the peoples’ right and the press’s function, especially in cases in which the State is a party, as in this case. In Sheppard v. Maxwell, 384 U.S. 333 (1966), the Supreme Court wrote that when public court business is conducted in private, it becomes impossible to expose corruption, incompetence, inefficiency, prejudice, and favoritism. For this reason traditional Anglo-American jurisprudence distrusts secrecy in judicial proceedings and favors a policy of maximum public access to proceedings and records of judicial tribunals. We have no hesitancy in holding the final order in this case should not have been sealed.

There is no rule providing for secret final orders, but parts of files may be sealed, and some hearings may be closed to the public. The General Assembly has provided the general rule that “every person may freely attend the sittings of every court.” Ark. Code Ann. § 16-10-105 (1987). However, other statutes provide that particular proceedings may be closed under certain circumstances. See, e.g., Ark. Code Ann. § 4-75-605 (Repl. 1991) (for cases involving trade secrets); § 9-9-217 (Repl. 1993) (involving adoption proceedings); § 9-27-325 (Repl. 1993) (for juvenile proceedings); and § 16-13-318 (1987) (involving domestic relations cases). Section 9-27-217 provides, “Adoption records shall be closed, confidential, and sealed unless authority to open them is provided by law or by order of the court for good cause shown.” (Emphasis added.)

Without determining which branch of government has the power to make laws or rules providing that parts of files can be sealed or court proceedings can be closed, we note that Rule 26 of the Arkansas Rules of Civil Procedure provides for protective orders closing depositions, for protection of trade secrets, and for filing specified documents in sealed envelopes. In addition, Rule 6-3 of the Rules of the Supreme Court provides for anonymity in certain appellate proceedings by the use of the initials of the first and last name of children involved in adoption or juvenile proceedings. We often utilize this rule for appeals in adoption proceedings after the final order has been entered. See, e.g., In Re Adoption of K.F.H. and K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993). We have recognized the inherent authority of a trial court to issue appropriate protective orders to control court records, and, thus, the right to inspect public records is not absolute. See City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990). Many jurisdictions have made similar holdings. See, e.g., Deere & Co. v. Finley, 431 N.E.2d 1201 (Ill. App. Ct. 1981); Church of Scientology v. Armstrong, 283 Cal. Rptr. 917 (Cal. Dist. Ct. App. 1991); & Werfel v. Fitzgerald, 260 N.Y.S.2d 791 (N.Y. App. Div. 1965).

The inherent authority to seal parts of court files is tempered by the requirements that a request for sealing part of a file must be particularized, that there must be some good cause for sealing part of a file, such as a trade secret, and that it should be in effect for only so long as is necessary to protect the specified interest. If a trade secret has no value after five years, the protective order should be for no longer than five years. Deere & Co. In Giltner v. Stark, 219 N.W.2d 700, 707 (Iowa 1974), the court ruled that factual details of a divorce action might be sealed long enough “to permit the conciliation process to have some hope of success,” but after that time the files were to be open. For the related requirement of particularization of a need for closure of a courtroom see Arkansas Television Company v. Tedder, 281 Ark. 152, 662 S.W.2d 174 (1983) and Arkansas Newspaper, Inc. v. Patterson, 281 Ark. 213, 662 S.W.2d 826 (1984). In summary, the trial court had no authority to seal the final order in this case, and we order it unsealed.

The chancellor ruled that Robert Hardy is the father of the child. There is no cross-appeal of that issue. The only assignments of error are those raised by the Department on direct appeal. In the first of these assignments, the Department contends that the chancellor erred in fixing the amount of child support. The chancellor ordered the father to pay $300 per month. The Family Support Chart in effect at the time of the trial judge’s ruling, see Guidelines For Child Support Enforcement, appendix to ARCP, provides for child support of $824 per month according to the Department. The Department’s computation under the chart is not contested by Hardy.

The chancellor ruled that it would be inequitable to follow the chart. We have said that reference to the family support chart is mandatory, but awarding the amount set by the chart is not mandatory if it would be unjust or inequitable to do so, and if the reasons for not doing so are set out in written findings. Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992). In such a case, the factors to be considered in determining the amount of support are listed in the per curiam setting out the Family Support Chart. See In Re: Guidelines For Child Support, 314 Ark. 644, 863 S.W.2d 291 (1993). In this case the chancellor ruled that it would be inequitable to award the amount provided by the chart because: (1) the mother only requested $300 per month, (2) there is not, and never will be, a father-son relationship, and (3) the child will be a recipient of “governmental medicaid, dental and hospital insurance.” The chancellor abused his discretion in making the ruling. The finding that the mother only requested child support of $300 per month was clearly erroneous. The mother requested past child support of $300 per month, but requested child support from the date of the hearing in the amount provided by the chart. The second factor, involving the father-son relationship, was incorrectly applied. That factor as used in the guidelines is to give a noncustodial parent some financial relief when the child or children spend an extraordinary amount of time with the noncustodial parent. In such a case, the noncustodial parent will obviously spend more on child support than is usual, and the custodial parent will be relieved of some of the expenses of raising the child or children. In such cases, support payments to the custodial parent may be reduced. However, that factor is not applicable to this case.

We summarily dispense with the third factor cited by the chancellor, that the father is relieved of part of the required child support because of “governmental medicaid, dental and hospital insurance.” Medicaid is a governmental program designed in part to provide aid to dependent children whose income or resources are not sufficient to meet the costs of necessary medical care. See Arkansas Dep’t of Human Servs. v. Walters, 315 Ark. 204, 866 S.W.2d 823 (1993). It would be incongruous to hold that a father is relieved of child support because his child is receiving public assistance as a result of the father’s failure to pay the full amount of child support. Consequently, we modify the ruling of the chancellor and order that child support be set at $824 per month commencing with the date of the final order.

The Department’s second assignment is that the chancellor erred in refusing to make an award of back child support. The child was born on February 8, 1986. At that time the mother was married to another man and contended that the child was fathered by her husband. She was soon divorced, and the husband was found not to be the father of the child. It was not until September 24, 1991, that the Department filed this complaint. Hardy is being required by this opinion to pay a large amount of support commencing with the date of the final decree. In Green v. Bell, 308 Ark. 473, 479-80, 826 S.W.2d 226, 230 (1992), in discussing back child support, we said, “the question is simply what is fair,” and quoted from Ryan v. Baxter, 253 Ark. 821, 824-25, 489 S.W.2d 241, 244 (1973), as follows:

The granting or denial of such a recovery rests upon the equities in a particular case. We have in several cases, recognized the equitable nature of such an award. Thus, in order to find that the chancellor committed reversible error, we would have to hold that his finding as to where the equities lay was against the preponderance of the evidence.

We cannot say that under the circumstances of this case the chancellor’s determination as to where the equities lay was against the preponderance of the evidence.

The Department’s third assignment is well taken. In fact, it is conceded by Hardy. In the point, the Department contends that the chancellor erred in not ordering income withholding. Section 9-10-112(b)(1) of the Arkansas Code Annotated provides that support orders must include a provision for income' withholding, absent a finding of good cause, in all cases filed pursuant to Title IV-D of the Social Security Act after October 1, 1989. This case fits within that category, and the chancellor did not make the required finding.

The Department’s fourth, and final, assignment is that the chancellor erred in refusing to order the father to provide health insurance for the child. Our per curiam of May 13, 1991, setting out the child support guidelines provides: “In addition to the award of child support, the court order shall provide for the child’s health care needs, which would normally include health insurance if available to either parent at a reasonable cost.” In Re: Guidelines for Child Support Enforcement, 305 Ark. 613, 617, 804 S.W.2d XXIV, XXVII (emphasis added). Consequently, the chancellor'was obligated to make some sort of provision for health care coverage for the child. The chancellor may have thought he was complying with this provision when he found that the child would receive medicaid. However, there was no determination whether or not either parent has health insurance available to him or her at a reasonable cost, and we are unable to decide this issue on the record before us. Consequently, we remand for a determination of the child’s health care.

We reverse in part, modify in part, remand for proof on the issue of health care, and remand for entry of orders consistent with this opinion.


author: David Newbern, Justice.

text:
    Gary D. PIERCEFIELD v. STATE of Arkansas
    CR 93-646
    871 S.W.2d 348
    Supreme Court of Arkansas
    Opinion delivered February 28, 1994

      Rex W. Chronister, P.A., by: Andrew A. Flake, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Gary D. Piercefield appeals from a conviction for Possession of Methamphetamine with the intent to distribute. His first point on appeal challenges the sufficiency of the evidence. Due to the overwhelming and uncontested evidence presented by the State, we hold the evidence to be sufficient. He also challenges the Trial Court’s admission into evidence of two bags of methamphetamine and his statement to the effect that he was the owner of the bags. The Trial Court correctly denied the motions to suppress. Mr. Piercefield further claims the Trial Court erred by admitting hearsay testimony. The testimony complained of does not meet the definition of hearsay and was properly allowed. The conviction is affirmed.

On the night of June 20, 1992, Mr. Piercefield was driving his motorcycle down the highway. A police officer, alerted by the weaving of the motorcycle, attempted to stop him. Mr. Pierce-field did not heed the officer’s blue lights and sped away at speeds in excess of 100 miles per hour. He did not stop until he ran off into a ditch.

The pursuing officer, during his inspection of the wrecked motorcycle, discovered two packets of white powder approximately five steps from the motorcycle. Mr. Piercefield was arrested and taken to a hospital for treatment of his injuries. Upon his release from the hospital, approximately three and one-half hours later, he was given his Miranda warnings. He agreed to waive his rights and confessed to owning the bags of white powder, which contained almost two ounces of nicotinamide vitamin and methamphetamine. The bags of methamphetamine and the admission of ownership were allowed into evidence at the trial over Mr. Pierce-field’s objection.

1. Sufficiency of the evidence

Mr. Piercefield moved for a directed verdict at the close of all the evidence on the ground that he possessed less than one ounce of methamphetamine, that the State had not produced any other evidence of intent to deliver, and that the evidence presented was insufficient to support the verdict.

The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another. Coleman v. State, 314 Ark. 143, 860 S.W.2d 747 (1993). In determining whether substantial evidence exists, we review the evidence in the light most favorable to the appellee. Id. Under Ark. Code Ann. Sec. 5-64-401 (a)(i), the measurable amount of the methamphetamine for the purpose of inferring intent includes the amount of the pure drug plus all adulterants.

The fact that the bags of methamphetamine were not found on Mr. Piercefield’s person is only some evidence whether the appellant possessed them. The only issue concerning possession before the Trial Court was one of credibility. That was for the jury to decide. Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981). Intent may be inferred under Ark. Code Ann. §5-64-401 (d) (Supp. 1993) from the fact that Mr. Piercefield possessed more than 200 milligrams of a stimulant drug. The evidence presented is sufficient to affirm the Trial Court’s denial of the motion for directed verdict.

2. Hearsay

Mr. Piercefield contends the Trial Court erred by allowing a witness for the State to give hearsay testimony based on Mr. Piercefield’s medical records. This objection stems from the fact that the Trial Court allowed officer Machund to give testimony concerning whether or not he believed Mr. Piercefield had suffered a head injury after he admitted he had looked at the medical records.

Arkansas R. Evid. 801 defines hearsay as “a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence as truth of the matter asserted.” After ascertaining that the officer had seen Mr. Pierce-field’s medical record at the hospital, the prosecutor began a question as follows, “Based on what you have seen, read and heard, and been told ■ — .” The question was interrupted by objection. The Trial Court, at the bench cautioned that it sounded like the prosecutor was about to elicit hearsay. The question was rephrased, “Do you have any reason to believe that Mr. Pierce-field suffered from any sort of head injury that night?” The testimony did not fit the basic definition of hearsay. The witness did not say what was said in the medical records. While it could be inferred that he was basing his opinion in part on the medical records, the statement was not one made by other than the declarant.

3. Suppression of the confession

Mr. Piercefield asserts that the State did not meet its burden of proving that the in-custody statement was given knowingly, intelligently and voluntarily. He argues he was incapable of a knowing and voluntary waiver due to his confused mental state.

At trial, the burden is upon the State to demonstrate that a defendant knowingly and voluntarily waived his rights. Bogard v. State, 311 Ark. 412, 414, 844 S.W.2d 347, 349 (1993). This Court independently reviews the totality of the circumstances surrounding a confession to determine if the accused knowingly, voluntarily, and intelligently waived his constitutional rights. Moore v. State, 303 Ark. 514, 519, 798 S.W.2d 87, 91 (1990). The Trial Court’s determination will be reversed only if it is clearly against the preponderance of the evidence. Id. The evidence presented at trial will be viewed in the light most favorable to the State. Id.

The State’s evidence consisted of a form initialed and signed by Mr. Piercefield which waived his Miranda rights, testimony from two police officers that Mr. Piercefield was coherent when he signed the form some three and one-half hours after the accident, and testimony from officers that he admitted possession and ownership of the bags of methamphetamine after his rights were explained to him and after he signed the waiver.

Mr. Piercefield did not introduce any evidence to controvert that produced by the State. Given the totality of the circumstances, the Trial Court’s finding of a knowing and intelligent waiver was not against the preponderance of the evidence.

4. Suppression of evidence

Mr. Piercefield objected to the admission of the two bags of methamphetamine on the ground that the arresting officer made an illegal stop which should have resulted in the suppression of any evidence produced from the stop. He states, without citation to any authority, that because there was no violation of a statute prior to the officer’s attempt to stop him, the stop was illegal and the evidence obtained due to the arrest should have been suppressed.

An officer does not have to witness the violation of a statute in order to stop a suspect. Smith v. State, 301 Ark. 569, 785 S.W.2d 465 (1990). The authority for this holding is found in Ark. R. Crim. R 3.1. Under this rule, a law enforcement officer may stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony or (2) a misdemeanor involving danger of forcible injury or damage to property.

The arresting officer noticed the motorcycle weaving from the centerline of the highway to the shoulder. The officer noted that it was a late hour and was concerned that the driver might be driving while intoxicated. Under these conditions, the arresting officer had a reasonable suspicion to stop the appellant, to say nothing of the fact that when ultimately “stopped” and approached by Officer Machund, Mr. Piercefield had been observed driving far in excess of the speed limit.

Affirmed.

Corbin, J., not participating.


text:
    Charles Laverne SINGLETON v. Roger ENDELL, Director, Arkansas Department of Correction
    93-950
    870 S.W.2d 742
    Supreme Court of Arkansas
    Opinion delivered February 28, 1994
    [Rehearing denied March 28, 1994.]

      Jeff Rosenzweig, for appellant.

      Winston Bryant, Att’y Gen., by: Pamela Rumpz, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

On June 1, 1979, the appellant, Charles Laverne Singleton, stabbed Mary Lou York to death at York’s Grocery Store in Hamburg. He was convicted of the crime on October 30, 1979. We described the evidence against Mr. Singleton as “overwhelming” and affirmed his conviction of capital felony murder and sentence to death. Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981), cert, denied, 456 U.S. 938 (1982).

In the 14 years since his conviction Mr. Singleton has pursued numerous remedies in Arkansas and federal courts. The most recent action from which this appeal arises is for a declaratory judgment to the effect that Mr. Singleton is entitled to a hearing, in keeping with the United States Supreme Court decision in Ford v. Wainwright, 477 U.S. 399 (1986), to determine whether he is insane and thus not to be executed. The Trial Court denied the relief requested. We affirm the Trial Court’s decision.

In his petition to the Trial Court, Mr. Singleton alleged that the State has been administering antipsychotic medication to him. Exhibits attached to the petition included a number of medical reports by prison physicians indicating that antipsychotic medication has been administered from 1988 through 1992. One report states that Mr. Singleton asked to be taken off the medication because he was to see some “federal doctors.” The physician who wrote the report stated Mr. Singleton wanted to appear “crazy.” One other report indicated Mr. Singleton asked when he could be taken off the medication and was told it should be continued. The reports state that he is not exhibiting psychotic symptoms and is in “remission.” No report indicates that Mr. Singleton refused medication or objected to it, other than as noted above.

Also attached as an exhibit to the petition is an undated affidavit asking that the appeal be dropped because Singleton lacks the courage to kill himself and, death being his only escape, he will let “you,” apparently meaning the State, do it. The affidavit is signed, “God the Father, Adam, the Christ, King Charles Láveme, Lamar, Lamont Singleton.”

Mr. Singleton’s counsel wrote to the appellee, Mr. Endell, the Director of the Department of Correction, asking that Mr. Singleton be evaluated to determine his eligibility for execution. A response on behalf of Mr. Endell, written by Max J. Mobley, Assistant Director, Treatment Services, appeared as an exhibit to the petition. The response, in pertinent part, was as follows:

The Director referred your letter of November 30, 1992, to my attention. I have spoken with the psychiatrist who is the clinical manager of Charles Singleton’s mental health treatment. He indicates that at this time he does not have clinical concerns which would serve as the basis for a referral to the state hospital. Therefore, the Director has no basis to request intervention on the part of the state hospital.

Based on the affidavit and the physician reports, Mr. Singleton asked the Trial Court to declare that he is not competent to be executed, citing Ark. Const, art. 2, § 9, and the Eighth Amendment to the United States Constitution as interpreted in Ford v. Wainwright, supra. He also sought a declaration that the State violates his rights by medicating him to make him appear competent. He asked for an order that the State cease administration of antipsychotic drugs and that the State be ordered to conduct a psychiatric examination in accordance with the requirements found in the Ford case.

In denying the declaratory relief sought, the Trial Court held that Mr. Singleton’s only avenue of relief is prescribed in Ark. Code Ann. § 16-90-506(d)(l) (Supp. 1993). The order noted that Mr. Singleton had sought an evaluation pursuant to that statute and that Mr. Endell had determined, pursuant to the statute, that there were no reasonable grounds to believe that Mr. Singleton was insane and thus declined to refer him to the State Hospital. This procedure was held to have exhausted Mr. Singleton’s state remedies, but the Trial Court noted that Mr. Singleton has petitioned a federal court for the same relief sought here.

The State attached to its response a copy of Mr. Singleton’s petition for habeas corpus in the federal court. The State’s argument in response to Mr. Singleton’s argument in this appeal is that declaratory judgment is not proper because it is the subject of another proceeding, and thus the Trial Court properly denied relief. The State has cited no case in which a declaratory judgment was sought and dismissed because another action seeking essentially the same relief was filed subsequent to the complaint for declaratory judgment.

The only cases we have found in which that situation occurred held that dismissal of the declaratory judgment action was not required. Associated Indemnity Corp. v. Wachsmith, 99 P.2d 420 (Wash. 1940), citing E.W. Bliss Co. v. Cold Metal Process Co., 102 F.2d 105 (6th Cir. 1939). It may make a difference to the propriety of pursuing declaratory relief that the plaintiff filed both the actions in this case. We cannot tell from the Associated Indemnity Corp. case whether that was so in that instance. In any event, we are disinclined to follow the State’s recommendation that we affirm on procedural grounds due to the lack of any cited authority in support of it.

The State’s main argument is that the decision in the Ford case does not require that an inmate in Mr. Singleton’s situation be given a hearing. True, the precise question in the Ford case was whether Ford was entitled to a hearing in a federal court. The answer to that question depended, however, upon the constitutional sufficiency of proceedings in Florida to protect Ford’s Eighth Amendment right not to be executed while insane. We can hardly ignore the United States Supreme Court’s guidance in determining whether the law of this State is constitutionally adequate when challenged. This Court’s duty is to support the Constitution of the United States, and we cannot agree with the State’s apparent position that whatever rights Mr. Singleton may have are to be protected in a federal court but not here.

In Rector v. Clinton, 308 Ark. 104, 823 S.W.2d 829 (1992), a death row inmate claiming to be insane challenged § 16-90-506(d)(1), as it then appeared, as being unconstitutional. We said in a brief per curiam opinion that the circuit court lacked jurisdiction to consider the petition for declaratory relief, mandamus, and prohibition because matters occurring after the commission of the crime, including a claim of “current insanity,” fall within the purview of the Governor in the exercise of clemency. Despite that pronouncement, however, this Court concluded its opinion as follows: “Arkansas law does not pose for execution of a person who may be mentally deficient a standard different from that declared by the United States Supreme Court in Ford v. Wainwright.” Thus, regardless of our conclusion that a circuit court could not stay an execution on the basis of a ground which should be relegated to the area of clemency, we obviously and properly reviewed the constitutionality of our statute governing the manner in which the executive branch should deal with a claim of insanity by a death row inmate. We do so again in this case.

We note that in the petition before the federal court, Mr. Singleton pursues his argument that administration of antipsychotic medication violates his constitutional rights, citing Washington v. Harper, 494 U.S. 210 (1990), and Perry v. Louisiana, 498 U.S. 38 (1990).

The Perry case resulted in the Supreme Court of Louisiana, upon remand from the United States Supreme Court, holding that the administration of such medication to a death row inmate against his will was indeed a constitutional violation. State of Louisiana v. Perry, 610 So. 2d 746 (1992). Mr. Singleton does not mention the Perry case in the argument to this Court.

In Washington v. Harper, supra, an inmate in the Washington prison system argued his right not to be medicated for manic-depressive disorder against his will. Reversing a decision by the Washington Supreme Court, the United States Supreme Court held the safeguards provided by Washington law were sufficient and did not preclude the State from medicating the prisoner prior to the prescribed hearing on the issue if he posed a danger to himself or others. Mr. Singleton mentions Washington v. Harper, supra, only in passing, and we do not regard the issue of the constitutionality vel non of the administration of antipsychotic drugs to Mr. Singleton as being before us. No argument is made on the point, and it is apparent that Mr. Singleton would prefer to present the medication issue exclusively in the federal court.

In his argument here, Mr. Singleton attacks § 16-90-506(d)(l) as being insufficient to comply with the requirements set out in the Ford case in which Mr. Justice Marshall, on behalf of himself and three other Justices, concluded that the execution of an insane person violates the Eighth Amendment. The opinion dwelt upon the means by which a person claiming to be insane could assert the right not to be executed.

In a habeas corpus proceeding, “a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts.” Townsend v. Sain, 372 U.S. 293 (1963). The habeas corpus statute, following this Court’s decision in Townsend, provides that, in general, “a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction . . ., shall be presumed to be correct.” and an evidentiary hearing not required. 28 U.S.C. § 2254(d).

At issue in the Ford case was the Florida law which directed the Governor of that State, when informed that a person under sentence of death may be insane, to appoint a commission of three psychiatrists to examine the prisoner. Upon receipt of the report of the commission, the Governor was required to decide whether the convicted person had the mental capacity to understand the nature of the death penalty and the reasons why it was imposed upon him.

Mr. Justice Marshall’s opinion found several flaws in the Florida mechanism for protecting the right at issue. First, the “state practice does not permit any material relevant to the ultimate decision to be submitted on behalf of the prisoner facing execution.” Second, there is a “denial of any opportunity to challenge or impeach the state-appointed psychiatrists’ opinions.” Third, the Florida law resulted in “placement- of the decision wholly within the executive branch.” The opinion then states:

Having identified various failings of the Florida scheme, we must conclude that the State’s procedures for determining sanity are inadequate to preclude federal redetermination of the constitutional issue. We do not suggest that only a full trial on the issue of sanity will suffice to protect the federal interests; we leave to the State the task of developing appropriate ways tó enforce the constitutional restriction upon its execution of sentences. It may be that some high threshold showing on behalf of the prisoner will be found a necessary means to control the number of nonmeritorious or repetitive claims of insanity. Cf. Pate v. Robinson, 383 U.S. 375 (1966) (hearing on competency to stand trial required if “sufficient doubt” of competency exists). Other legitimate pragmatic considerations may also supply the boundaries of the procedural safeguards that feasibly can be provided. [Footnote omitted.]

As noted above, Mr. Justice Marshall’s opinion expressed his views and those of three other Justices. Two Justices dissented on the ground that there is no constitutional right of an insane person not to be executed. Two justices found no Eighth Amendment protection but concurred in the result on the basis that Florida law had created the right of an insane person not to be executed but had not provided sufficient procedural safeguards to protect that right.

Mr. Justice Powell concurred in the result, agreeing that the Eighth Amendment provides a right of an insane person not to be executed, but his opinion expressed a view which would narrow the procedural means a state must provide to protect the right of an insane person not to be executed. Mr. Justice Powell’s opinion thus expresses the law of the land. Marks v. United States, 430 U.S. 188 (1977).

Mr. Justice Powell agreed that, in order for a state court’s determination of sanity to be given deference in accordance with 28 U.S.C. § 2254(d), it is insufficient that the decision be left to a governor. He also agreed that it is insufficient to rely solely on examination by state appointed psychiatrists. He stated, however, that he “would not require the kind of full-scale ‘sanity trial’ that Justice Marshall appears to find necessary.” The essence of his controlling opinion is this:

. . . petitioner does not make his claim of insanity against a neutral background. On the contrary, in order to have been convicted and sentenced, petitioner must have been judged competent to stand trial, or his competency must have been sufficiently clear as not to raise a serious question for the trial court. The State therefore may properly presume that petitioner remains sane at the time sentence is to be carried out, and may require a substantial threshold showing of insanity merely to trigger the hearing process.
. . . ordinary adversarial procedures — complete with live testimony, cross-examination, and oral argument by counsel •— are not necessarily the best means of arriving at sound, consistent judgments as to a defendant’s sanity.
The State should provide an impartial officer or board that can receive evidence and argument from the prisoner’s counsel, including expert psychiatric evidence that may differ from the State’s own psychiatric examination. [Footnotes omitted.]

It would be difficult for us to hold that § 16-90-506(d)(l) does not fulfill the requirements stated by Mr. Justice Powell. Here is the language of the statute:

When the Director of the Department of Correction is satisfied that there are reasonable grounds for believing that an individual under sentence of death is not competent, due to mental illness, to understand the nature and reasons for that punishment, the director shall notify the deputy Director of the Division of Mental Health Services of the Department of Human Services. The Director of the Department of Correction shall also notify the Governor of this action. The Division of Mental Health Services shall cause an inquiry to be made into the mental condition of the individual within thirty (30) days of receipt of notification. The attorney of record of the individual shall also be notified of this action, and reasonable allowance will be made for an independent mental health evaluation to be made. A copy of the report of the evaluation by the Division of Mental Health Services shall be furnished to the Division of Mental Health Services of the Department of Correction, along with any recommendations for treatment of the individual. All responsibility for implementation of treatment remains with the Division of Mental Health Services of the Department of Correction.
(A) If the individual is found competent to understand the nature of and reason for the punishment, the Governor shall be so notified and shall order the execution to be carried out according to law.
(B) If the individual is found incompetent due to mental illness, the Governor shall order that appropriate mental health treatment be provided. The director may order a reevaluation of the competency of the individual as circumstances may warrant.

We stated the earlier version of the statute was not unconstitutional in our 1992 per curiam opinion in Rector v. Clinton, supra. Act 914 of 1993 rewrote the statute to provide for the notification of counsel for the inmate and “reasonable allowance” for “an independent mental health evaluation.” The current version, applicable in this case, thus differs markedly from the Florida law considered in the Ford case. The Florida Governor specifically directed that attorneys for Ford not participate in the examination in any adversarial manner. He also refused to review materials provided by Ford’s counsel after the examination concluded. As Mr. Justice Marshall reported, that was in keeping with “the present Governor’s ‘publicly announced policy of excluding all advocacy on the part of the condemned from the process of determining whether a person under a sentence of death is insane.’ Goode v. Wainwright, 448 So. 2d 999, 1001 (Fla. 1984).” We cannot know that Mr. Singleton and his counsel would be precluded from participating and presenting evidence of his insanity if such a hearing were held pursuant to § 16-90-506(d)(l). We cannot agree with Mr. Singleton’s conclusion that the statute is constitutionally inadequate.

Five Justices of the United States Supreme Court have concluded that it may be necessary that a state impose a “high” or “substantial threshold” over which a death row inmate must step in order to be entitled to a hearing on the issue of the Eighth Amendment right not to be executed while insane. Except for the bizarre undated affidavit apparently written by Mr. Singleton, the evidence presented to the Trial Court in this case consisted of reports of treating physicians that Mr. Singleton’s psychosis was in remission. We cannot say the “threshold,” imposed in the statute, i.e., “When the Director ... is satisfied that there are reasonable grounds ...” has been crossed. We are not oblivious to the fact that this “threshold” is erected in the executive branch of government. While that may seem incongruous with Mr. Justice Powell’s conclusion that a governor should not have the final say after there has been an examination, we are given no guidance on the matter of whether the initial decision whether there is to be an examination, which seems to us to be equally important, must reside somewhere other than with a member of the executive branch such as the Director of the Department of Correction. The only reasonable alternative, it seems, would be to require that such a decision be made by a court, and that would surely be inconsistent with Mr. Justice Powell’s reticence to require a “sanity trial” in every case.

Again we note that Mr. Singleton has not sufficiently pursued before us, as he is doing in the concurrent federal proceeding, an argument that administering antipsychotic drugs violates his rights. Our holding is solely that Mr. Singleton has not demonstrated that § 16-90-506(d)(l) is unconstitutional or that it has been improperly applied in this case to deny him a sanity examination.

Affirmed.

Corbin, J., not participating.


author: Tom Glaze, Justice.

text:
    ARKANSAS STATE EMPLOYEES INSURANCE ADVISORY COMMITTEE v. ESTATE OF Brent Ronald MANNING
    93-885
    870 S.W.2d 748
    Supreme Court of Arkansas
    Opinion delivered February 28, 1994

      Winston Bryant, Att’y Gen., by: M. Wade Hodge, Asst. Att’y Gen., for appellant.

      Godo & Dossey, by: Samuel M. Reeves, for appellee.
   Tom Glaze, Justice.

This case was instituted in probate court where the parties argued the applicability of this court’s recent decisions in Higginbotham v. Arkansas Blue Cross and Blue Shield, 312 Ark. 199, 849 S.W.2d 464 (1993), and Shelter Mutual Insurance Company v. Bough, 310 Ark. 21, 834 S.W.2d 637 (1992). Brent Manning, a minor, was seriously injured as a result of his motorcycle being struck by a vehicle owned and operated by Bob Hulsizer. Brent’s mother was subsequently appointed Brent’s guardian by the probate court, so she could enter into a proposed settlement of Brent’s tort claim against Hulsizer. Hulsizer was agreeable to settle the claim for $25,000, which reflected the policy limits of his State Farm Mutual Automobile Company insurance policy.

Brent’s father intervened in this probate proceeding, requesting the trial court to allocate the funds from any settlement in accordance with the terms of the subrogation clause of the group health insurance policy the father maintained with the State Employees Insurance Advisory Committee. Because Brent was a dependent of his father and thereby covered by his father’s insurance plan, $37,407.51 of Brent’s medical expenses had been paid by the state employees insurance.

Relying upon this court’s decision in Bough, the probate court entered its order on March 11, 1993, rejecting the Committee’s request for subrogation. In its ruling, the lower court stated the general rule that an insurer is not entitled to subrogation unless the insured had been made whole for his loss and any additional payments would cause the insured to receive a double recovery. The probate court then specifically found that Brent’s loss exceeded the total of the amounts paid by the state insurance and State Farm policies ($37,407.51 plus $25,000 = $62,407:51), and accordingly denied the Committee had any right of subrogation to any part of the monies paid by State Farm to Brent’s estate.

After the probate court’s decision on March 11th, the Committee filed a “motion for reconsideration” citing this court’s March 1, 1993 ruling in Higginbotham and claiming that this more recent holding indicated that the Bough decision was not controlling of the facts here. More specifically, the Committee argued below (and now on appeal) that when an express subrogation clause is contained in the insurer’s policy (not found in Bough), the subrogation agreement is controlling ánd permits the insurer to be reimbursed from the tortfeasor to the extent of the value of benefits or services furnished the insured by the insurer. The Committee’s motion was deemed denied, and the Committee brings this appeal contending the lower court erred in failing to follow the Higginbotham decision.

We are unable to reach the merits of the parties’ arguments as to whether the Bough or Higginbotham decision controls the instant case because the probate court had no subject matter jurisdiction to reach the ruling it rendered. In fairness to the trial court, this jurisdiction issue was not raised below, but Brent does argue it in this appeal. Even if Brent had failed to raise the jurisdiction issue on appeal, this court has said repeatedly that it is not only the right but the duty of this court to determine whether it has jurisdiction of the subject matter. Hilburn v. 1st State Bank of Springdale, 259 Ark. 569, 535 S.W.2d 810 (1976). It is also settled law that subject matter jurisdiction is always open, cannot be waived, can be questioned for the first time on appeal, and can even be raised by this court. Id.

Probate court has exclusive jurisdiction over all matters of guardianship, other than guardians ad litem in other courts. See Ark. Code Ann. § 28-65-107(a) (1987); Forehand v. American Collection Serv., Inc., 307 Ark. 342, 819 S.W.2d 282 (1991). In addition, the court in Forehand has stated that a guardian is under a duty to pay from the estate all just claims against the estate of the ward. See also Ark. Code Ann. § 28-65-317(a)(l) (1987). And under Ark. Code Ann. § 28-65-317(b), any person having a claim against the estate of the ward for services lawfully rendered to the ward or his estate for necessities furnished to the ward, or for the payment of a lawful liquidated claim or demand against the estate of the ward, the probate court, after notice and appropriate hearing, may direct the guardian to pay the claim. See also First State Bank, Gdn. v. Thessing, 241 Ark. 150, 406 S.W.2d 865 (1966). These statutory provisions also bring into focus the settled rule that probate court is a court of special and limited jurisdiction, having only such jurisdiction and powers as are conferred by the constitution or by statute, or necessarily incidental thereto. Eddleman v. Estate of Farmer, 294 Ark. 8, 740 S.W.2d 141 (1987). Finally, upon petition of the guardian of a ward’s estate, the probate court may make an order authorizing the settlement or compromise of any claim by or against the ward or his estate, whether arising out of contract, tort, or otherwise, and whether arising before or after the appointment of the guardian. Ark. Code Ann. § 28-65-318(a) (1987).

Brent argues the Committee’s petition in this matter is designed to specifically enforce the subrogation provisions of the state’s health insurance plan, and because specific performance is an equitable remedy it is cognizable only in chancery court. Hilburn, 259 Ark. 569, 535 S.W.2d 810; Morton v. Yell, 239 Ark. 195, 388 S.W.2d 88 (1965). This court, however, has steadfastly adhered to the rule that equity will not enforce, by specific performance, a contract relating to personalty unless special or peculiar reasons exist which make it impossible for the injured party to obtain relief by way of damages in an action at law. Morris v. Sparrow, 225 Ark. 1019, 287 S.W.2d 583 (1956); Stacy v. Hsi-Chi Lin, 34 Ark. App. 97, 806 S.W.2d 15 (1991). Here, the Committee’s purported claim or loss would undoubtedly be satisfied by the reimbursement of the monies it has expended for medical expenses in Brent’s behalf. And because such damages are available in an action at law, we see no merit in Brent’s attempt to characterize the Committee’s action or claim as one for specific performance.

The second part of Brent’s jurisdiction argument is not as easily dismissed. In this regard, Brent points to the language in § 28-65-317(b) which permits the probate court to pay claims against the estate of the ward (1) for services rendered to the ward for necessaries or (2) for payment of liquidated claims or demands against the Ward’s estate. The Committee here has not framed its request to the probate court asking it to require the guardian to pay for necessaries provided Brent. Instead, the Committee requested the lower court to permit the Committee to be subrogated to Brent’s rights against Hulsizer to the extent of the services or benefits provided Brent. Brent contested the Committee’s claim to subrogation. In particular, the Committee asked the court to distribute Brent’s settlement proceeds in accordance with the terms of the subrogation clause of the Committee’s insurance plan. The Committee never requested or demanded recovery of any specific money amount(s).

For these same reasons, we also conclude the Committee’s petition fails to assert or meet the requirements of a liquidated claim under § 28-65-317(b). As discussed above, probate court is a court of special and limited jurisdiction and has only such powers as are expressly conferred by statute or the constitution or necessarily incident thereto. Having failed to assert or present a constitutional or statutorily cognizable claim to the probate court, we must set aside the lower court’s order which denied the Committee’s petition.


text:
    Janie S. HICKS v. Ken CLARK
    93-955
    870 S.W.2d 750
    Supreme Court of Arkansas
    Opinion delivered February 28, 1994
    [Rehearing denied April 11, 1994.]

      Pettus Law Firm, P.A., by: Alisa Thorven-Corke, for appellant.

      Arnold Law Firm, by: Thomas S. Arnold and Clarke Arnold, for appellee.
   Tom Glaze, Justice.

On May 22, 1989, the appellant, Janie Hicks, filed a complaint alleging the appellee, Ken Clark, was negligent in permitting one of his cows to roam upon a roadway. Hicks alleged she hit the cow with her automobile, and sustained personal and property injuries for which she sought $61,209.51 in damages. The deputy sheriff failed to serve Hicks’s summons and complaint on Clark until March 29, 1990, or more than ten months after the filing of the complaint. Clark filed no answer, and a default judgment was subsequently entered against Clark on July 17, 1991.

On October 8, 1992, Clark filed a motion to set aside the default judgment. Clark contended that, among other things, he had not been served personally within 120 days of the filing of Hicks’s complaint, as required by ARCP Rule 4(i).

Following a hearing on October 9, 1992, the trial court set aside the default judgment because Clark had not been properly and timely served. It further held that, because Hicks had filed no motion within the 120-day time period seeking an extension of time for service, she was not entitled to refile her action under the one-year savings statute, Ark. Code Ann. § 16-56-126 (1987). The lower court dismissed Hicks’s complaint with prejudice because her action was barred by the three-year statute of limitations, Ark. Code Ann. § 16-56-105 (1987). Hicks appeals from that order of dismissal and one reaffirming it dated February 25, 1993. We affirm.

Our recent decision in Forrest City Machine Works, Inc. v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993), sets out the rules that control here. In Lyons, we related that Arkansas’s rules pertaining to commencement of an action require only that the plaintiff complete service upon the defendant within 120 days from filing the complaint. However, if the plaintiff fails to complete service during that period, he or she may still request that the time be extended to complete service in order to protect the plaintiff against the running of a statute of limitations if that extension is requested within the 120-day period. We further said that, to toll the limitations period and to invoke the one-year savings statute, a plaintiff need only file his or her complaint within the statute of limitations and complete timely service on a defendant. We concluded by saying that even where a court later finds the plaintiff’s timely completed service to be invalid, the plaintiff is not disinherited from benefiting from the one-year saving statute. Accord Cole v. First National Bank of Ft. Smith, 304 Ark. 26, 800 S.W.2d 412 (1990).

In the present case, Hicks altogether failed to meet the requirements of Rule 4(i) and ARCP Rule 3 discussed in Lyons. Hicks simply failed to obtain completed service upon defendant Clark, nor did she request an extension, within the required 120-day period. Instead, Hicks waited over ten months before completing any service on Clark, and this delay and her failure to request a timely extension prevented her from invoking the savings statute. This being so, and the applicable three-year statute of limitations having run, the trial court was correct in dismissing Hicks’s action with prejudice. See also Green v. Wiggins, 304 Ark. 484, 804 S.W.2d 536 (1991).

Hicks’s final argument is that the effect of setting aside her default judgment against Clark was “an arrest of judgment” and § 16-56-126 provides for commencing a new action within one year where the plaintiff suffered a “judgment arrested.” However, Hicks failed to obtain a ruling on this point, and issues left unresolved below cannot be considered on appeal. Morgan v. Neuse, 314 Ark. 4, 857 S.W.2d 826 (1993).

For the reasons discussed, we affirm.

Corbin, J., not participating.


author: Donald L. Corbin, Justice.

text:
    Michael HAWKINS v. CITY OF PRAIRIE GROVE
    CR 93-1053
    871 S.W.2d 357
    Supreme Court of Arkansas
    Opinion delivered February 28, 1994

      John William Murphy, for appellant.

      Boyce R. Davis Assoc., by: Boyce R. Davis, for appellee.
   Donald L. Corbin, Justice.

We treated appellant’s petition for writ of certiorari, filed pursuant to superseded Ark. Sup. Ct. R. 29(6)(a) as a petition for review under the current Ark. Sup. Ct. R. 1 -2(f), and granted review of the Arkansas Court of Appeals’s decision reported as Hawkins v. City of Prairie Grove, 43 Ark. App. 81, 861 S.W.2d 118 (1993). We granted review under Rule l-2(f) because the appeal requires the interpretation of Ark. Code Ann. § 16-17-213 (Supp. 1991) and should therefore have originally been heard in this court. Upon review, we find no error and affirm.

Appellant, Michael Hawkins, was convicted of driving while intoxicated in Prairie Grove Municipal Court on January 18, 1991. He filed a timely notice of appeal with the clerk of the Washington Circuit Court. He also filed a timely affidavit of appeal with the clerk of the municipal court on February 6, 1991. However, the municipal court clerk never filed the transcript with the circuit court. Consequently, the circuit court dismissed the appeal for lack of jurisdiction on June 18, 1992.

In dismissing for lack of jurisdiction, the circuit court relied on Ark. Code Ann. § 16-17-213(a) (1987) and Nowlin v. Merchants Nat’l Bank, 192 Ark. 529, 92 S.W.2d 390 (1936), and concluded that the requirements of the statute are mandatory and jurisdictional and that it is the duty of the appealing party to see that the transcript is lodged in the time limited. On appeal, appellant contends Ark. Code Ann. § 16-17-213(a) (1987) was superseded by 1987 Ark. Acts 431, now codified as Ark. Code Ann. § 16-17-213 (Supp. 1993), and that the new version of the statute shifted the responsibility of perfecting appeals from the appellant to the clerk.

We agree that section 16-17-213 was amended by 1987 Ark. Acts 431, but disagree that the amendment shifted the responsibility of perfecting an appeal away from appellant. Moreover, appellant’s reliance on section 16-17-213 and its 1987 amendment is misplaced. We recently held in Ottens v. State, 316 Ark. 1, 871 S.W.2d 329 (1994), that the timely filing of an appeal from municipal court is controlled by Rule 9 of the Inferior Court Rules. We have stated that Rule 9, which applies to criminal as well as civil cases, Ottens, 316 Ark. 1, 871 S.W.2d 329, is mandatory and jurisdictional and leaves the circuit court without authority to accept untimely appeals. Bocksnick v. City of London, 308 Ark. 599, 825 S.W.2d 267 (1992); Edwards v. City of Conway, 300 Ark. 135, 111 S.W.2d 583 (1989). This court stated further that “it is the duty of the counsel, not the judge, clerk, or reporter, to perfect the appeal.” Id. at 137, 111 S.W.2d at 584. Rule 9(b) states in pertinent part: “the appellant shall have the responsibility of filing such record in the office of the circuit clerk.”

We are aware that the statutes on municipal courts intimate that the responsibility for filing a transcript on appeal falls on the municipal court itself. Ark. Code Ann. § 16-17-213; see Bocksnick, 308 Ark. 599, 825 S.W.2d 267 (citing Ark. Code Ann. § 16-96-505 (1987)). However, section 16-17-213 has been superseded by Rule 9 of the Inferior Court Rules, and we so hold. Supersession Rule, Arkansas Court Rules, p. 689 (1993).

Appellant raises the additional points that the trial court’s decision violates his due process rights, creates confusion, and is a burden to judicial economy. The record on appeal does not reveal that these points were raised below; therefore we will not address them. Even constitutional issues are waived on appeal when not argued below. Whitson v. State, 314 Ark. 458, 863 S.W.2d 794 (1993).

Affirmed.