Summary
In Hamilton v. Jeffrey Stone Co., 25 Ark. App. 66, 752 S.W.2d 288 (1988), the Court thoroughly examined these questions in light of the evidence presented in that case, and the Court rejected the claimant's arguments.
Summary of this case from Gibson v. McGeorge ConstructionOpinion
Eileen W. Harrison, Little Rock, for appellant.
Michael E. Ryburn, Little Rock, for appellee.
PETITION FOR REHEARING
[25 Ark.App. 75-A] PER CURIAM.
Appellant petitions for a rehearing pursuant to Ark.Sup.Ct.R. 20. The basis for his request is an absence from the record of certain exhibits introduced into evidence by him in a rehearing before the administrative law judge pursuant to a remand by this court for the purpose of developing issues of constitutionality of the silicosis limitation statutes. Arkansas Statutes Annotated §§ 81-1314(a)(7) and -1318(a)(2) (Repl.1976). In Hamilton v. Jeffrey Stone Co., 6 Ark.App. 333, 641 S.W.2d 723 (1982), we noted the general rule that the constitutionality of a statute will not be considered if raised for the first time on appeal, citing Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980). Despite the rule in Sweeney and in light of the unusual circumstances of this case, appellant was allowed a rare opportunity "to present and argue his constitutional issue." In that case we emphasized that:
[A]ppellant failed to properly raise before the Commission the issue concerning the constitutionality of §§ 81-1314(a)(7) and 81-1318(a)(2). Because we have never held, until now, that such issues must be raised first at the Commission level, we believe it would be unfair not to remand this cause in order to allow the appellant the opportunity to present and argue his constitutional issue.
Hamilton, 6 Ark.App. at 335-36, 641 S.W.2d at 725.
Following the remand, appellant presented a record and briefs to this court resulting in a denial of his claim in an [25 Ark.App. 75-B] unpublished opinion by this court in Hamilton v. Jeffrey Stone Co., No. 86-309 (Ark.App. May 6, 1987). The Arkansas Supreme Court granted review from our unpublished decision of May 6, 1987, in Hamilton v. Jeffrey Stone Co., 293 Ark. 499, 739 S.W.2d 161 (1987), wherein the supreme court reversed and remanded the case to this court advising that "the record reflects those constitutional issues had been remanded to the Commission, decided by it and were clearly ripe for resolution by the court of appeals in this second appeal." Id. at 502, 739 S.W.2d at 163. On remand, this court determined affirmatively the constitutionality of the silicosis statutes of limitations in Hamilton v. Jeffrey Stone Co., 25 Ark.App. 66, 752 S.W.2d 288 (1988).
The chronology of events in this case clearly indicates that appellant had numerous opportunities to insure the completeness of the record. Now for the first time in his petition for rehearing, appellant argues that he was not put on notice that the record lacked evidence he claims was previously submitted. We refuse to depart from the long standing rule that the burden is upon the appellant to bring up a record sufficient to demonstrate that the trial court was in error. Ark.R.App.P. 6(b). See Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986); City of Star City v. Shepherd, 287 Ark. 188, 697 S.W.2d 113 (1985); SD Leasing, Inc. v. RNF Corp., 278 Ark. 530, 647 S.W.2d 447 (1983); McLeroy v. Waller, 21 Ark.App. 292, 731 S.W.2d 789 (1987). It was appellant's responsibility to bring up a sufficient record and a proper abstract thereof. Appellant now advises this court that the record should be supplemented so as to include certain exhibits that should have been included in the record long ago. We refuse to do so and respectfully deny the petition for rehearing.
Petition denied.