Arkansas Blue Cross & Blue Shield v. Freeway Surgery Center

Cite as 2023 Ark. App. 25 ARKANSAS COURT OF APPEALS No. CV-22-515

ARKANSAS BLUE CROSS Opinion Delivered January 25, 2023 AND BLUE SHIELD APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIFTH V. DIVISION [NO. 60CV-21-2725] FREEWAY SURGERY CENTER; SCOTT SCHLESINGER, M.D.; FAIR PARK HONORABLE WENDELL GRIFFEN, SURGERY CENTER; CENTERVIEW JUDGE SURGERY CENTER; SOUTH ARKANSAS SURGERY CENTER; MOTION TO DEEM THE RECORD ADVANCED AMBULATORY SURGERY COMPLETE IS GRANTED; BRIEFING CENTER; EXECUTIVE PARK SCHEDULE ORDERED; SHOW-CAUSE SURGERY CENTER OF FORT SMITH; ORDER ISSUED GASTROENTEROLOGY AND SURGERY CENTER OF ARKANSAS; MOUNTAIN HOME SURGERY CENTER; HARRISON SURGERY CENTER; BOZMAN-HOF EYE CENTER; PHYSICIANS DAY A/K/A MCFARLAND EYE CENTER; SPRING CREEK SURGERY CENTER; TAYLOR PLASTIC SURGERY; SURGERY CENTER OF NORTHEAST TEXAS; ADVANCED INTERVENTIONAL PAIN MANAGEMENT; PRECISION SURGICAL OF NORTHWEST ARKANSAS; EXECUTIVE SURGERY CENTER OF LITTLE ROCK; CENTRAL ARKANSAS SURGERY CENTER A/K/A ARKANSAS SPINE AND PAIN; AND ARKANSAS CENTER FOR SURGICAL EXCELLENCE APPELLEES

AND

ALAN MCCLAIN, ARKANSAS INSURANCE COMMISSIONER INTERESTED PARTY

PER CURIAM

Arkansas Blue Cross and Blue Shield moves this court to enforce a writ of certiorari we issued to court reporter Neva Warford to complete the transcript of an oral argument held before the circuit court—a command we first made four months ago. Alternatively, the parties jointly move that we set a briefing schedule based on the “record pleadings” already on file with this court’s clerk and deem the tardy transcript inessential to the appeal under Ark. R. App. P.–Civ. 6(c). Because Warford’s failure to comply with the original writ and subsequent extensions is good cause to accept the parties’ Rule 6 alternative, we grant that request and direct the clerk to set a briefing schedule forthwith. And for the reasons provided below, we order Neva Warford to appear before this court on 7 February 2023, at 9:30 a.m., in the courtroom of the Arkansas Supreme Court and Court of Appeals (Justice Building, 625 Marshall Street, Little Rock, AR 72201), and show cause why she should not be held in contempt for failing to comply with the original writ of certiorari and extensions.

Arkansas Blue Cross and Blue Shield has been trying to appeal an eight-page order entered more than one year ago. On 16 August 2022, as the deadline to lodge the record in this court approached after seven months of extensions by the circuit court, it simultaneously filed in this court a partial record and petition for a writ of certiorari directing court reporter Warford to complete the transcript portion of the record in this civil appeal. We granted the petition on September 7 and ordered, by way of a writ of certiorari, that the supplemental record be completed and filed within thirty days.

When the thirtieth day arrived, Warford had not completed her task, so Blue Cross and Blue Shield moved, on October 7, to enforce the writ. We granted that motion on October 25 and allowed Warford thirty days. 1 But no transcript was prepared. So Blue Cross and Blue Shield returned on November 22 with another request that we enforce the writ. In response, this court extended Warford’s deadline to 6 January 2023 and expressly told her that it was a final extension. 2 Again, she failed to comply, which required Blue Cross and Blue Shield to file another motion—and the parties to pivot to Ark. R. App. P.– Civ. 6(c) as a last-ditch effort to “complete” the record and move this appeal forward.

Despite Blue Cross and Blue Shield’s continued efforts and this court’s prior commands, the designated transcript has remained unavailable for filing because Warford has seemingly ignored this court’s orders. Having received no communication from

1 The docket entry (26 October 2022) states:

Appellant’s motion to enforce writ of certiorari and extend time is granted. Gruber, J., not participating.

Electronic supplemental record is due in thirty days (November 25, 2022). The clerk is directed to set a briefing schedule after the writ is returned and the electronic supplemental record is filed.

This court has now granted the court reporter two extensions from the record’s original due date of August 18, 2022. 2 The docket entry (7 December 2022) states:

Appellant’s second motion to enforce writ of certiorari and extend time. Granted final extension of thirty days (January 6, 2023). Barrett and Hixson, JJ., would issue a show-cause order to the court reporter. Gruber, J., not participating.

This court has now granted the court reporter three extensions from the record’s original due date of August 18, 2022.

Warford to explain the repeated delay and perceived insubordination, good cause exists for this show-cause order. See James Tree & Crane Serv., Inc. v. Fought, 2015 Ark. 6 (show-cause order issued to court reporter); see also Woolford v. State, 2022 Ark. App. 463 (show-cause order issued to court reporter Neva Warford).

Given the recent history with a court reporter’s repeated inability to comply with this court’s writs and orders, Woolford, 2022 Ark. App. 463, we point out, for example, that the Regulations of the Board of Certified Court Reporter Examiners provide for penalties as severe as revoking a reporter’s certification for shirking his or her duties. Regs. Ark. Bd. Certified Ct. Rep. Examiners § 19. 3 If that were not enough, the Arkansas Code of Judicial Conduct requires judges to ensure their employees do not interfere with the timely administration of justice. See, e.g., Ark. Code Jud. Conduct R. 2.12(A) (Supervisory Duties). To that end, this court’s clerk routinely sends our writs and related orders to the

3 Section 19 states in part:

[T]he Board may issue an admonition or revoke or suspend any certificate issued after proper notice and hearing, on the following grounds:

....

c. any intentional violation of, noncompliance with or gross negligence in complying with any rule or directive of the Supreme Court of Arkansas, any other court of record within this State, or this Board.

d. fraud, dishonesty, gross incompetence or habitual neglect of duty.

e. unprofessional conduct, which shall include, but not be limited to:

1. failing to deliver a transcript to a client or court in a timely manner as determined by statute, court order, or agreement[.]

court reporter to whom they are primarily directed and to the presiding circuit judge. Here, the writ and orders that have been issued to Warford and the presiding judge since September 2022 are attached to this order.

NEVA WARFORD IS FURTHER NOTIFIED that her failure to appear on 7 February 2023, at 9:30 a.m., could result in the issuance of a bench warrant for her arrest, with directions to the appropriate law enforcement authority to arrange for her delivery to this court so a show-cause hearing can be conducted as soon as possible.

Motion to deem the record complete is granted; briefing schedule ordered; show-cause order issued.

BROWN, J., dissents without opinion.

GRUBER, J., not participating.

OFFICE OF THE CLERK ARKANSAS COURT OF APPEALS 625 MARSHALL STREET LITTLE ROCKs AR 72201

SEPTEMBER 7,2022

RE:COURT OF APPEALS CASE NO.CV‑22‑515 ARKANSAS BLUE CROSS BLUE SHIELD V.ALAN MCCLAIN,INSURANCE COMMISSIONER;FREEヽ VAY SURGERY CENTER;SCOTT SCHLESINGER,MD; FAIR PARK SURGERY CENTER;CENTERVIEヽ V SURGERY CENTER:SOUTH ARKANSAS SURGERY CENTER;ADVANCED AMBULATORY SURGERY CENTER; EXECUTIVE PARK SURGERY CENTER OF FORT SMITH;GASTROENTEROLOGY AND SURGERY CENTER OF ARKANSASI MOUNTAIN HOME SURGERY CENTER; HARRISON SURGERY CENTER;BOOZMAN― HOF EYE CENTER:PHYSICIAN'S DAY A/K/A MCFARLAND EYE CENTER;SPRING CREEK SURGERY CENTER;TAYLOR PLASTIC SURGERY;SURGERY CENTER OF NORTHEAST TEXAS:ADVANCED INTERVENTIONAL PAIN MANAGEMENT;PRECISION SURGICAL OF NORTHWEST ARKANSAS;EXECUTIVE SURGERY CENTER OF LITTLE ROCK; CENTRAL ARKANSAS SURGERY CENTER A/1CA ARKANSAS SPINE AND PAIN: AND ARKANSAS CENTER FOR SURGICAL EXCELLENCE

THE ARKANSAS COURT OF APPEALSISSUED THE FOLLOWING ORDERS TODAY IN THE A30VE STYLED CASE: ̀̀APPELLANT'S PETITION FORヽ ′RIT OF CERTIORARITO COMPLETE THE RECORD IS GRANTED.GRUBER,J.,NOT PARTICIPATING.''

APPELLANT'S SUPPLEMENT TO PETIT10N FORヽ ′RIT OF CERT10RARI TO COMPLETE THE RECORDIS MOOT.GRUBER,J、 NOT PARTICIPATING."

RIT Ⅵ′ ISSUED:RETURNABLEIN THIRTY DAYS(OCTOBER 7,2022).THE CLERK IS DIRECTED TO SET A BRIEFING SCHEDULE AFTER THE WRITIS RETURNED AND THE ELECTRONIC SUPPLEMENTAL RECORD IS FILED.

SINCERELY,

CLERK CCi STEVENヽ V.QUATTLEBAUM AND JOSEPH R.FALASCO BOOTH RAND DANIEL W.VAN HORN NEVA J.WARFORD,OFFICIAL COURT REPORTER(W/ORIGINAL WRIT) HONORABLE WENDELL GRIFFEN,JUDGE(W/COPY OF WRIT) PULASKI COUNTY CIRCUIT CLERK(W/ORIGINALヽ /RIT) (60CV‑21‑2725)

WRIT RETURNABLEIN 30 DAYS ON OCTOBER 7,2022 CERT10RARIFOR COル IPLETE ELECTRONIC RECORD STATE OF ARKANSAS ) COURT OF APPEALS ) 60CV‑21‑2725 ) COURT OF APPEALS CASE NO.CV‑22‑515 THE STATE OF ARKANSAS

TO THE CLERK AND COURT REPORTER,GREETINGS: VHEREAS,IN A CASE PENDING IN SAID PULASKICOUNTY CIRCUIT COURT, ヽ STATE OF ARKANSAS,WHEREIN ARKANSAS BLUE CROSS AND BLUE SHIELD,APPELLANT AND ALAN MCCLAIN,INSURANCE COMMISS10NER;FREEWAY SURGERY CENTER; SCOTT SCHLESINGER,M.D.:FAIR PARK SURGERY CENTER;CENTERVIEW SURGERY CENTER:SOUTH ARKANSAS SURGERY CENTER;ADVANCED AMBULATORY SURGERY CENTER;EXECUTIVE PARK SURGERY CENTER OF FORT SMITH;GASTROENTEROLOGY AND SURGERY CENTER OF ARKANSAS;MOUNTAIN HOME SURGERY CENTER;HARRISON SURGERY CENTERIBOOZMAN― HOF EYE CENTER:PHYSICIAN'S DAY A/K/A MCFARLAND EYE CENTER;SPRING CREEK SURGERY CENTER;TAYLOR PLASTIC SURGERY;SURGERY CENTER OF NORTHEAST TEXAS:ADVANCED INTERVENT10NAL PAIN MANAGEMENT; PRECISION SURGICAL OF NORTHWEST ARKANSAS;EXECUTIVE SURGERY CENTER OF LITTLE ROCK;CENTRAL ARKANSAS SURGERY CENTER Aハ CA ARKANSAS SPINE AND PAIN:AND ARKANSAS CENTER FOR SURGICAL EXCELLENCE, APPELLEES JUDGMENT WAS RENDERED,AND APPELLANT PRAYED AN APPEAL FROM SAID JUDGMENT TO THE COURT OF APPEALS.YOU ARE,THEREFORE,HEREBY COMMANDED THAT YOU CERTIFY T0 0UR COURT OF APPEALS,FORTHWITH,A FULL,TRUE AND COMPLETE ELECTRONIC TRANSCRIPT OF THE RECORD AND PROCEEDINGS OF SAID COURT OF PULASKI COUNTY CIRCUIT COURT,THAT OUR COURT OF APPEALS,UPON CONSIDERAT10N OF A COMPLETE RECORD,MAY CAUSE TO BE DONE THEREIN WHAT SHOULD BE DONE.HEREOF FAIL NOT AND MAKE DUE RETURN OF THIS WRIT UNDER YOUR OFFICIAL SEAL. IN TESTIⅣ 10NYヽ VHEREOF,I,STACEY PECTOL,CLERK OF THE SUPREME COURT AND COURT OF APPEALS,HEREUNTO SET MY HAND AND AFFIX THE SEAL OF SAID COURT、 AT MY OFFICEIN THE CITY OF LITTLE ROCK,THIS AY OF SEPTEMBER,2022.

CLERK ORIGINALS TO CLERK AND COURT REPORTER(W/COPY OF PETIT10N)

CCi STEVEN W QUATTLEBAUM AND JOSEPH R.FALASCO B00TH RAND DANIELヽ ′.VAN HORN HONORABLE WENDELL GRIFFEN,JUDGE(W/COPY OF PETITION)

CIRCUIT CLERK'S RETURN STATE OF ARKANSAS, COUNTY OF ,1 CLERK OF THE COURT OF PULASKI COUNTY CIRCUIT COURT.HEREBY CERTIFY THAT(PLEASE CHECK ONLY ONE OF THE FOLLOWING TW0 0PT10NS):

1.□ I HAVE MADE AND CERTIFIED A FULL,TRUE AND COMPLETE RECORD OF DIMINUTION WITHIN SUGGESTED,WHICH IS HERETO ATTACHED.

2.□ I HAVE NO DOCUMENTS RESPONSIVE TO THE WRIT:THEREFORE,I HAVE ATTACHED NO DOCUMENTS TO THIS RETURN.

IN TESTIⅣ 10NY WHEREOF,IHERETO SET MY HAND AS CLERK, AND AFFIX THE SEAL OF SAID COURT OF PULASKICOUNTY CIRCUIT COURT、 THIS DAY OF ,A.D.

CLERK

COURT REPORTER'S RETURN STATE OF ARKANSAS, COUNTY OF ,I. OFFICIAL COURT REPORTER. HEREBY CERTIFY THAT(PLEASE CHECK ONLY ONE OF THE FOLLOWING TW0 0PT10NS):

l・ IHAVE MADE AND CERTIFIED A FULL,TRUE AND COMPLETE TRANSCRIPT OF □ DIMINUTION WITHIN SUGGESTED,WHICH IS HERETO ATTACHED.

2.□ I HAVE NO DOCUMENTS RESPONSIVE TO THE WRIT;THEREFORE,IHAVE ATTACHED NO DOCUMENTS TO THIS RETURN.

IN TESTIP10NY WHEREOF,I HERETO SET MY HAND AS COURT REPORTER,AND AFFIX MY SEAL,THIS DAY OF .AD.20

COURT REPORTER

FORMAL ORDER

STATB OIT ARKANSAS, )

) SCT COURT OF APPEALS )

BÐ IT REMEMBERED, THAT A SESSION OF THE COURT OF APPEALS BEGUN AND HELD IN THE CITY OF LIT'TLE ROCK, ON OC'TOBER 26, 2022, AMONGST OTHERS V/ERE TI{Ë F'OLLOWING PROCEEDINGS, TO-WIT:

COURT OF APPEALS CASE NO, CV-22.515

ARKANSAS BLUECROSS AND BLUE SHIELD APPELLANT

V. APPEAL, FROM PULASI(I COTJNTY CIRCUIT COIJRT, FIFTH DIVISION - 60cv-21-272s

ALAN MCCLAIN, INSURANCE COMMISSIONER; FREEWAY SURGERY CENTER; SCOTT SCHLE,SINGER, M.D.; FAIR PARK SURGERY CENTER; CENTERVIEW SURGERY CENTE,R; SOUTH ARI(ANSAS SURGERY CENTER;ADVANCED AMBULATORY SURGERY CENTER; EXECUTIVE PARI( SURGERY CENTER OF FORT SMITH; GASTROENTEROLOGY AND SURGERY CENTER OF ARKANSAS; MOUNTAIN HOME SURGERY CENTER; HARRISON SURGERY CENTER; BOOZMAN-HOF EYE CENTER; PHYSICIAN,S DAY A'IKIA MCFARLAND EYE CEN1ER; SPRING CREEK SURGERY CENTER;TAYLOR PLASTIC SURGERY; SURGERY CENTI]R OF NORTHEAST TEXAS; ADVANCE,D INTERVENTIONAL PAIN MANAGEMEN.T; PRE,CISION SURGICAL OF NORTHWEST ARKANSAS; EXE,CUTIVE SURGERY CENTER OF LITTLE, ROCI(;CENTRAL ARKANSAS SURGERY CENTE,R AIKIA ARKANSAS SPINE AND PAIN;AND ARKANSAS CENTER FOR SURGICAL EXCELLENCE APPELLEES

APPELLANT'S MOTION TO ENFORCE WRIT OF CER'|IORARI AND EXTEND'|IMFJ IS GRANTED. GRUBER, J., NOT PARTICIPATING.

ELECTRONIC SUPPI-EMENAL RECORD IS DUE IN THIRTY DAYS (NOVEMBER 25, 2022). '|I-IE CLERK IS DIRECTED TO SET A BRIE,FING SCHEDTJL,E AF'IER THE WRIT IS RETUIìNED AND THE ELECTRONIC SUPPLE,MENTAL RECORD IS FILED.

THIS COURT HAS NOW GRANTED THE COURT REPORTER TWO EXTENSIONS FROM THE, RECORD'S ORIGINAL DUE DATE OF AUGUST 18,2022.

IN TESTIMONY, THAT TI'IE ABOVE IS A TRUE COPY OF TI{E ORDEROF SAID COURT OF APPEALS, RE,N DERED IN THE CASE HEREIN STATED, I, KYLEE.BURTON, CLERK OF SAID COURTOFAPPEALS, HEREUNTO SET MY HAND AND AFFIX THE SEAL OF SAID COURTOF APPEALS, AT MY OFFICE IN TI{E CI'fY OF LITTLE ROC K, TH I S 26TH DAY OF OCTOBE,R,2022.

ß,-æ- CLERK

ORIGINAI- TO CLERK

CC: STEVEN W. QUATTLEBAUM AND JOSEPH R. FALASCO

BOOTII RAND DANIEL W. VAN HORN NEVA J, WARFORD, OFFICIAL COURT REPORTER HONORABLE, WENDELL GRIFFEN, JUDGE

cv-22-51"5

FORMAL ORDER

STAT'A OF ARKANSAS, )

) SCT. COURT OI.- APPEALS )

BE IT REMEMBERED, THAT A SESSION OF THE COURT OF APPEALS BEGUN AND HELD IN THE CITY OF LITTLE ROCK, ON DECEMBER 7, 2022, AMONGST OTHERS WERE TI_IE FOLLOWINC PROCEEDINGS, TO-WIT:

COURT OF APPEALS CASE NO. CV-22-515

ARKANSAS BLUE CROSS AND BLUE SHIELD APPELLANT

V, APPEAL FROM PULASKI COUNTY CIRCUIT COURT, FIFTH DIVISION - 60cv-2t-2725

ALAN MCCLAIN, INSURANCE COMMISSIONER; FREEWAY SURGERY CENTE& SCOTT SCHLESINGER, M.D.; FAIR PARK SURGERY CENTER; CENTERVIEW SURGERY CENTER; SOUTH ARKANSAS SURGERY CENTER; ADVANCED AMBULATORY SURGERY CENTER; EXECUTIVE PARK SURGERY CENTER OF FORT SMITH;GASTROENTEROLOGY AND SURGERY CENTER OF ARI(ANSAS; MOUNTAIN HOME SURGERY CENTER; HARRISON SURGERY CENTER; BOOZMAN.HOF EYE CENTER;PHYSICIAN,S DAY A/IIA MCFARLAND EYE CENTER; SPRING CREE,K SURGERY CENTER;TAYLOR PLASTIC SURGERY; SURGERY CENTER OF NORTFIEAST TEXAS; ADVANCED INTERVENTIONAL PAIN MANAGEMENT; PRECISION SURGICAL OF NORTHWEST ARKANSAS; E,XECUTIVE SURGERY CENTER OF LITTLE ROCK; CENTRAL ARKANSAS SURGERY CENTER AIKIA ARKANSAS SPINE AND PAIN;AND ARKANSAS CENTER FOR SURGICAL EXCELLENCE APPELLEES

APPELLANT'S SECOND MOTION TO E,NFORCE WRIT OF CERTIORARI AND EXTEND TIME. GRANTED FINAI- EXTENSION OF THIRTY DAYS (JANUARY 6,2023), BARRETT AND HIXSON, JJ., WOULD ISSUE A SHOW-CAUSE ORDER TO TI{E COURT REPORTER. GRUBER, J., NOT PARTICIPATING.

THIS COURT HAS NOW GRANTE,D THE COURT REPORTER THREE EXTENSIONS FROM THE RECORD'S ORIGINAL DUE DATE OF AUGTJST 18,2022.

IN TESTIMONY, THAT THE ABOVE IS A TRUE COPY OF THE ORDEROF SAID COURT OF APPEALS, REN DERED IN THE CASE HEREIN STATED, I, KYLEE.BURTON, CLERK OF SAID COURTOFAPPEALS, HEREUNTO SET MY HAND AND AFFIX THE SEAL OF SAID COURTOF APPEALS, AT MY OFFICE IN THE CITY OF LITTLE ROCK, THI S 7TH DAY OF DECEMBER,2OZ2.

ú,tfu CLERK

ORIGINAL TO CLE,RK

CC: STEVEN W. QUATTLEBAUM AND JOSEPH R. FALASCO BOOTH RAND DANIEL V/. VAN HORN NEVA J, WARFORD, OFFICIAL COURT REPORTER FIONORABLE V/ENDELL GRIFFEN, JUDGE