Winters v. Elders

Keenan WINTERS v. Joycelyn ELDERS, M.D., and
The University of Arkansas for Medical
Sciences

95-1069                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 29, 1996


1.   Appeal & error -- appellant's abstract flagrantly deficient --
     judgment is bare essential of abstract. -- Where appellant
     failed to abstract the trial court's judgment, his abstract
     was flagrantly deficient under Ark. Sup. Ct. R. 4-2(a)(6); the
     judgment appealed from is a bare essential of an abstract. 

2.   Appeal & error -- rationale for abstracting requirement. --
     The reason for the supreme court's abstracting rule is basic:
     there is only one transcript; there are seven judges on the
     court; and it is impossible for each of the seven judges to
     examine the one transcript.

3.   Appeal & error -- burden on appellant to bring up record
     sufficient to show error. -- Where a copy of the chancellor's
     letter opinion did not appear in the record, appellant could
     not demonstrate error; the burden was on appellant to bring up
     a record sufficient to show that the chancellor erred.

4.   Appeal & error -- appellant's petition to complete record did
     not satisfy due-diligence standard. -- Where appellant filed
     a petition for writ of certiorari to complete the record after
     the appeal was orally argued, the supreme court held that any
     attempt to supplement the record after the case has been
     submitted does not satisfy the supreme court's due-diligence
     standard set forth in Hedge v. State, 317 Ark. 104, 877 S.W.2d 90 (1994).


     Appeal from Pulaski Chancery Court, Fifth Division; Ellen
Brantley, Chancellor; affirmed.
     Oscar Stilley, for appellant.
     Fred H. Harrison, Gen. Counsel, and Jeffrey A. Bell, Assoc.
Gen. Counsel, for appellees.April 29, 1996   *ADVREP2*








KEENAN WINTERS,
                    APPELLANT,

V.

JOYCELYN ELDERS, M.D., and THE
UNIVERSITY OF ARKANSAS FOR
MEDICAL SCIENCES,
                    APPELLEES,





95-1069


APPEAL FROM THE PULASKI COUNTY
CHANCERY COURT, FIFTH DIVISION
(E-93-5523)


HONORABLE ELLEN BRANTLEY
CHANCERY JUDGE




AFFIRMED.



                 CHIEF JUSTICE BRADLEY D. JESSON


     The appellant, Keenan Winters, brought an illegal exaction
suit against appellees Dr. Joycelyn Elders and the University of
Arkansas for Medical Sciences ("UAMS").  Winters claimed that, for
the years 1988 through 1993, while serving as Director of the
Arkansas State Department of Health ("Health Department"), Dr.
Elders illegally received dual compensation from UAMS and the
Health Department.  The chancellor granted Dr. Elders's and UAMS's
motion for summary judgment and dismissed Winters's complaint.  He
raises three issues on appeal.  We affirm.
     We must affirm this appeal without reaching the merits due to
two procedural flaws.  First, because Winters has failed to
abstract the trial court's judgment, his abstract is flagrantly
deficient under Ark. Sup. Ct. R. 4-2(a)(6).  We have long held that
the judgment appealed from is a bare essential of an abstract. D.
Hawkins, Inc. v. Schumacher, 322 Ark. 437, 909 S.W.2d 640 (1995);
Bohannon v. Arkansas State Bd. of Nursing, 320 Ark. 169, 895 S.W.2d 923 (1995); Logan County v. Tritt, 302 Ark. 81, 787 S.W.2d 239
(1990); Jolly v. Hartje, 294 Ark. 16, 740 S.W.2d 143 (1987); Zini
v. Percival, 289 Ark. 343, 711 S.W.2d 477 (1986); Farrco
Construction et al. v. Coleman, 267 Ark. 159, 589 S.W.2d 573
(1979); Wells v. Paragon Printing Company, 249 Ark. 950, 462 S.W.2d 471 (1971). See also, Smith, Arkansas Practice Abstracting the
Record, 31 Ark. L. Rev. 359 (1977).  As we have stated many times,
the reason for our abstracting rule is basic -- there is only one
transcript, there are seven judges on this court, and it is
impossible for each of the seven judges to examine the one
transcript.  Bunn v. State, 320 Ark. 516, 898 S.W.2d 450  (1995);
Franklin v. State, 318 Ark. 99, 884 S.W.2d 246 (1994); Dixon v.
State, 314 Ark. 378, 863 S.W.2d 282 (1993). 
     A second deficiency in Winter's appeal is that a copy of the
chancellor's letter opinion does not appear in the record.  Winters
notes in his abstract that this letter opinion was "inadvertently
omitted" from the record, and abstracts what he purports to be the
entirety of the letter opinion.  The absence of the letter opinion
from the record is particularly problematic in this case, as
Winters attacks  specific findings in the chancellor's opinion in
each of his three allegations of error: (1) the chancellor erred in
finding that Dr. Elders's compensation from both UAMS and the
Health Department did not violate Arkansas law; (2) the chancellor
erred in finding that he was not entitled to summary judgment as to
whether the contracts at issue were utilized to avoid the purpose
or spirit of the Regular Salary Procedures and Restrictions Act;
and (3) the chancellor erred in finding that Dr. Elders had a valid
defense to the repayment of sums in excess of the line-item maximum
for her position as Director of the Health Department.  The letter
opinion is omitted from the record, and, accordingly, Winters
cannot demonstrate error.  The burden was on the appellant to bring
up a record sufficient to show that the chancellor was wrong.  See
King v. Younts, Chief of Police, 278 Ark. 91, 643 S.W.2d 542
(1982); Armbrust v. Henry, 263 Ark. 98, 562 S.W.2d 598 (1978);
A.R.A.P. 6(b).    
     In Hedge v. State, 317 Ark. 104, 877 S.W.2d 90 (1994), the
appellant asked us to issue a writ of certiorari to the court
reporter to produce "part of the trial proceedings" that were not
in the record.  His request came more than three months after the
record was lodged and less than two weeks before his briefs were
due.  While we granted the petition and a motion to stay the
briefing schedule, we noted that:
     hereafter counsel will be expected to examine the record
     before, or immediately after, it is lodged in this court
     to determine that nothing essential (and designated) is
     omitted, if so, to specifically identify the omitted
     material, and to exercise due diligence in moving to
     supplement the record.
  
(Emphasis added.)  Our opinion in Hedge was intended to put the
members of the bar on notice that we would require parties to
exercise due diligence in presenting motions to supplement the
record with omitted materials.  While Winters filed a petition for
writ of certiorari to complete the record after the case was orally
argued, any attempt to supplement the record after the case has
been submitted does not satisfy our due-diligence standard. 
     Affirmed.
     Brown, J., not participating.
     Special Justice John R. Eldridge, III, joins in this opinion.