Dorothy Ehlebracht v. James Dailey, In his Official Capacity

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION II

CA02-827

April 30, 2003

DOROTHY EHLEBRACHT AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[IJ00-2120]

V. HON. ALICE GRAY, JUDGE

JAMES DAILEY, In his

Official Capacity

APPELLEE AFFIRMED

Dorothy Ehlebracht appeals the trial court's order granting summary judgment in favor of appellee, James Dailey, Mayor of the City of Little Rock. Appellant argues that the trial court erred in holding that Mayor Dailey was an improper defendant. We affirm because appellant failed to bring up an adequate record on appeal.

On April 21, 2000, the original plaintiff, William O' Donnell, filed a taxpayer's suit against James Dailey in his official capacity as Mayor of the City of Little Rock pursuant to Article 16, Section 13 of the Arkansas Constitution. Mayor Dailey was the only named defendant. The complaint alleged that the City of Little Rock was using public funds to maintain an employee group health insurance plan in violation of Amendment 68, Section1 of the Arkansas Constitution. Amendment 68 prohibits the use of state funds to pay for an abortion except to save the mother's life. O'Donnell alleged that the City's insurance plan

provided coverage for non-therapeutic abortions. He sought to permanently enjoin Mayor Dailey from operating, maintaining, or administering any group health insurance plan for city employees, which provided insurance coverage for abortions for any reason other than to save the life of the mother.

On January 30, 2001, O'Donnell filed a motion for summary judgment stating that he was entitled to summary judgment relief (1) because appellee admitted that "the moneys used to fund the City's group health insurance program are direct revenues derived from taxation"; (2) because appellee admitted that "the group health insurance plan does fund abortions other than those necessary to save the mother's life"; and (3) because the maintenance of a group health insurance plan wherein the insurance carrier pays for non-therapeutic abortions constitutes the paying for an abortion in contravention of Amendment 68, even though the City does not directly remit money to the physician performing the procedure.

In response to appellant's motion for summary judgment, appellee argued that O'Donnell was not entitled to such relief. Appellee asserted that O'Donnell failed to establish that he, as Mayor of the City of Little Rock, or the City had violated Amendment 68 either by utilizing "public funds," as defined by Arkansas case law, to pay any physician, directly or indirectly, for non-therapeutic abortions or by funding non-therapeutic abortions or procedures. Further, appellee argued that the City of Little Rock operated under a citymanager form of government whereby an elected city board of directors, which hires a city manager to oversee the day-to-day operations of the city, is vested with all power and authority for the city. Appellee moved that summary judgment be granted in his favor, or in the alternative, that O'Donnell's complaint be dismissed.

On September 12, 2001, appellant filed a motion to be substituted as the plaintiff in this case. At the hearing on all the parties' motions, appellee raised the issue that he as the Mayor of Little Rock was not the proper party defendant. From the bench, the trial court ruled that appellee was not the proper party defendant, denied appellant's motion for summary judgment, granted appellee's cross-motion for summary judgment, and dismissed appellant's complaint with prejudice. The trial court declined appellant's request to address the merits of the case. On May 17, 2002, the trial court entered an order reflecting its rulings from the bench. It is from this order that appellant appeals.

Appellant argues that the trial court erred in holding that Mayor Dailey was an improper defendant for the relief requested in its complaint and granting appellee's cross-motion for summary judgment on that ground. When reviewing a summary judgment, we view the evidence in the light most favorable to the one against whom summary judgment is granted and consider whether the summary judgment was appropriate based on the evidence presented and whether it left any material question of fact unanswered. Ultracuts Ltd. v. Wal-Mart Stores, Inc., 343 Ark. 224, 33 S.W.3d 128 (2000). A summary judgment should be granted only when it is clear that there is no issue of fact to be litigated. Alberson v. Automobile Club Interinsurance Exch., 71 Ark. App. 162, 27 S.W.3d 447 (2000). Themoving party has the burden of showing that there is no genuine issue of material fact, and all proof submitted must be viewed in the light most favorable to the non-moving party. Id. The moving party must show entitlement as a matter of law. Id.

Unfortunately, we are unable to reach the merits of this case due to appellant's failure to bring up a sufficient record. It is appellant's burden to bring forward a record sufficient to demonstrate that the trial court was in error. Gibbs v. Hensely, 345 Ark. 179, 44 S.W.3d 334 (2001); Lee v. Villines, 328 Ark. 189, 942 S.W.2d 844 (1997); Cannon Remodeling & Painting, Inc. v. Mktg. Co., 79 Ark. App. 432, 90 S.W.3d 5 (2002); LeClere v. State, 70 Ark. App. 235, 16 S.W.3d 276 (2000). Specifically, appellant failed to include the current group health insurance plan utilized by the City of Little Rock, upon which she premised her claim that appellee was operating, maintaining, or administering in violation of Amendment 68. Without a copy of the insurance plan, we cannot properly evaluate appellant's argument. Moreover, appellant's counsel conceded during oral argument that he knew the record was insufficient. Counsel acknowledged that he could have petitioned for leave to complete the record or could have had the case remanded to settle the record; however, he made no effort to correct the deficiency. It is presumed that matters presented in a hearing that are not in the record will support the trial court's finding. Davenport v. Pack, 35 Ark. App. 40, 812 S.W.2d 487 (1991). Therefore, in absence of a complete record, we are compelled to affirm. Gibbs v. Hensely, supra; Lee v. Villines, supra; Cannon Remodeling & Painting, Inc. v. Mktg. Co., supra; LeClere v. State, supra.

Affirmed.

Stroud, C.J., and Roaf, J., agree.