Central Emergency Medical Services, Inc. v. State of Arkansas

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CENTRAL EMERGENCY MEDICAL SERVICES, INC. v.
STATE of Arkansas

97-811                                                               ___ S.W.2d ___

                              Supreme Court of Arkansas
                          Opinion delivered April 16, 1998


1.     Contempt -- contempt order final and appealable -- appeal was
       from contempt order -- order denying motion to quash not
       appealable. --  A order of contempt is a final, appealable
       order; here appellant did not file its notice of appeal from
       the trial court's order denying its motion to quash, but
       instead from the contempt order; an order denying a protective
       order to quash a subpoena is not a final, appealable order.

2.     Contempt -- payment of fine rendered contempt order moot --
       supreme court does not render advisory opinions -- case
       dismissed. -- Appellant paid the fine which was imposed by the
       trial court for not producing the records and in so doing
       purged its contempt; once it purged its contempt, appellant
       rendered the propriety of the contempt order moot; given that
       the case was moot, the appellant is asking for an advisory
       opinion; the supreme court does not render advisory opinions;
       the appeal was dismissed.


       Appeal from Washington Circuit Court; William Storey, Judge;
appeal dismissed.
       Davis, Cox & Wright, PLC, by:  William Jackson Butt, II and
David L. McCune, for appellant.
       No response.

       Annabelle Clinton Imber, Justice.
       The appellant appeals from an order finding it in contempt of
court for failing to deliver certain documents in its possession in
response to a prosecutorial subpoena.  We dismiss the appeal as
moot because the record demonstrates that the appellant purged its
contempt.
       On November 19, 1996, an information was filed in Washington
County Circuit Court charging Duane Allan Faulkenbury with
attempted murder, later amended to a charge of first-degree
battery.  The record then shows that the prosecutor served the
appellant, Central Emergency Medical Services, Inc., an emergency
medical care and transportation provider, with two subpoenas duces
tecum ordering CEMS's keeper of records to produce all of its
records pertaining to Robert French.  Although it is not clear from
the record, it appears that French was Faulkenbury's victim.  CEMS
had rendered professional services to French.
       CEMS filed a Motion to Quash Subpoena Duces Tecum.  In its
motion CEMS claimed both French's right of privacy in medical
records generated by it with respect to his medical care, as well
as French's physician-patient privilege under Ark. R. Evid. 503. 
Following a hearing on February 18, 1997, the trial court found
that the State was entitled to the information with the
understanding that it would not be disseminated to the public. 
From the bench, the trial court ordered CEMS to produce the
information, and announced that it would "issue a standing
protective order that if [counsel] can agree on the language of
that order which basically provides that in this case and any cases
in the future, that [CEMS] is obligated to produce that information
to the State, the Prosecuting Attorney in this circuit, and the
State is ordered not to disseminate it to the public in any form or
fashion pending further orders of the Court."  Counsel for both
parties responded that this arrangement was agreeable.
       On March 3, 1997, the trial court entered an order of contempt
for CEMS's failure to comply with its bench ruling of February 18,
1997.  The trial court announced that CEMS could purge its contempt
finding by presenting the records to the court no later than
February 25, 1997.  The order concludes with the following
language, "Should CEMS fail to deliver these documents to this
Court by said time and date, a fine shall be imposed upon CEMS in
the amount of $100.00."  The next day, CEMS filed its notice of
appeal from the March 3 contempt order.  A letter from counsel for
CEMS, dated March 12, 1997, to the Clerk of the Washington County
Circuit Court enclosed a check in the amount of $100 for the fine
imposed by the trial court's March 3 contempt order.
       While this is an appeal from a contempt order, the essence of
CEMS's brief (the State has failed to file a brief in response) is
that the trial court erred in declining to find that its medical
records pertaining to French were privileged under the physician-
patient privilege found at Ark. R. Evid. 503.  Specifically, CEMS
contends that a paramedic may be considered a "physician" as that
term is used in Rule 503(a)(2).  We are precluded from reaching
this novel issue due to the mootness of CEMS's case.
       We initially note that CEMS did not file it notice of appeal
from the trial court's order denying its motion to quash, but
instead from the contempt order.  A order of contempt is a final,
appealable order.  See Young v. Young, 316 Ark. 456, 872 S.W.2d 856
(1994).  In a case with a similar procedural history as the present
case, In re Subpoena of Badami, 309 Ark. 511, 831 S.W.2d 905
(1992), we plainly held that an order denying a protective order to
quash a subpoena was not a final, appealable order.  In Badami this
court expressed some concern as to the possibility of multiple
appeals, given that the appellant there could have been found in
contempt following an affirmance of the trial court's order denying
the motion to quash, resulting in yet another appeal.  There is no
such problem in this case.
       However, the record reflects that CEMS paid the fine which was
imposed by the trial court for not producing the records.  Given
the manner in which the trial court couched its order, CEMS had two
choices -- either deliver the records to the prosecutor or be found
in contempt resulting in the imposition of a fine.  CEMS chose the
latter option, paid the fine, and in doing so purged its contempt. 
Once CEMS purged its contempt, it rendered the propriety of the
contempt order moot.  See Minge v. Minge, 226 Ark. 262, 289 S.W.2d 189 (1956) ("Appellant purged himself of the contempt by paying the
delinquent support money, and was released from jail; hence, the
question of whether the court erred in holding him in contempt is
moot.").  Given that the case is moot, the appellant asks us for an
advisory opinion.  This court does not render advisory opinions. 
See Johnson v. State, 319 Ark. 3, 888 S.W.2d 661 (1994). 
Accordingly, we dismiss the appeal.  In doing so, we note that the
issue presented in this appeal does not appear to be one that is
likely to evade our review in the future.
       Appeal dismissed.