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Judith Rogers, Judge.
This is an appeal from an order denying appellant’s request for a change of custody of the parties’ minor children from appellee. On appeal, appellant argues that the chancellor erred in failing to find a significant change of circumstances warranting a change in custody of the parties’ minor children. We disagree and affirm.
The record reveals that the parties were married on November 29, 1986. Three children were born during the marriage. On August 22, 1996, the parties divorced. Appellant was awarded custody of the children. On April 2, 1997, appellee filed a petition for change of custody asserting a significant change in circumstances because appellant had overnight visits with a person of the opposite sex. After a hearing, which is not abstracted, appellee was awarded custody of the children. There was no appeal from that May 7, 1997, decision. Approximately two months later, appellee filed a motion to increase child support and a motion for contempt because appellant had failed to pay support. Appellant counterclaimed for a change of custody. On April 9, 1998, the chancellor denied appellant’s request for a change of custody, and granted the request for an increase in support. Appellant has appealed the chancellor’s ruling denying the change of custody, but does not challenge the increase in child support.
On appeal, appellant argues that the chancellor erred in finding no material change of circumstance since the last hearing. Appellant contends that in the previous order of May 7, 1997, the chancellor found that overnight unmarried guests of the opposite sex in the presence of the children was a basis for a change of custody. Thus, appellant argues that law of the case should apply as a basis for a change of custody because appellee admitted to overnight visits with a woman in the presence of the children.
It does not appear from the abstract that appellant raised the defense of law of the case below before the chancellor. It has been held that the law-of-the-case defense cannot be raised for the first time on appeal. State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997). Because the chancellor was not presented with an argument on this point concerning the law of the case, and made no ruling on it, the issue is barred. Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997). We also decline, due to lack of citation to authority or convincing argument, to address appellant’s argument. See Scollard v. Scollard, 329 Ark. 83, 947 S.W.2d 345 (1997).
Appellant also argues that the chancellor erred in not awarding her custody of the children because the facts in this case satisfy the best-interest test required for a change of custody. We disagree.
In chancery cases, we review the evidence de novo, but we do not reverse the findings of the chancellor unless it is shown that they are clearly contrary to the preponderance of the evidence. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998); Thigpen v. Carpenter, 21 Ark. App. 194, 730 S.W.2d 510 (1987). In child-custody cases, we give special deference to the superior position of the chancellor to evaluate the witnesses, their testimony, and the child’s best interest. Larson v. Larson, 50 Ark. App. 158, 902 S.W.2d 254 (1995). In custody cases, the primary consideration is the welfare and best interest of the children involved; other considerations are secondary. Id. A material change in circumstances affecting the best interest of the child must be shown before a court may modify an order regarding child custody, and the party seeking modification has the burden of showing such a change in circumstances. Hepp v. Hepp, 61 Ark. App. 240, 968 S.W.2d 62 (1998).
Here, the chancellor found:
Based upon the testimony I’ve heard today, there have been some changes of circumstances. Mr. Presley is now married. During the period of time since the last hearing until today, he did some things that his parents didn’t approve of and that I don’t approve it; that is, staying the night with his intended without benefit of clergy. That’s been rectified.
Mrs. Presley has made, some very encouraging changes in her lifestyle. There’s no proof that she is hanging around some of the people and engaged in some of the activities that the Court found so objectionable the last time you all were here before me. The most important thing in care of children is stability, and the children will not become yo-yo’s, ping-pong balls pounding back and forth. I have not heard anything that has convinced me that there has been a sufficient change of circumstances on the 'part of either party to warrant any type of change of custody so the previous order of the court will remain in full force and effect.
And I’m going to say to Mrs. Presley that what I am doing today is in no way critical of what you have accomplished over the last — since the last time that we were here. Because I think it has been commendable, and there was room — a vast room for improvement, and you have improved. But this isn’t a situation where it’s a D.H.S. case where children are removed and you do A, B, C, and D, and the children come back. I looked at the total picture to the total stability of the family and made a judgment based upon that. And it would be more detrimental, I believe, to make a change and change the children’s residence once again, within a little over a year, after all of the upheaval they have been through going through a divorce to start with, which is the fault of each of you. So that is what I have done, and that is the reason I have done it.
The record indicates that it had been only two months since appellee was awarded custody of the children when appellant filed for a change of custody. The record also reveals that the children had changed homes twice in less than a two-year period. The chancellor found that the most important factor, in considering the best interest of the children, was stability so that the children would not become yo-yos between the parents. The chancellor also recognized that there had been some changed circumstances on both sides, but he did not find them sufficient to warrant a change in custody. After reviewing this record and giving great deference to the superior position of the chancellor, we cannot say that the chancellor’s decision was clearly against the preponderance of the evidence. There is no case where we defer as much to the chancellor’s superior ability to view the witnesses and weigh the evidence.
Affirmed.
Robbins, C.J., Pittman, Stroud, and Crabtree, JJ., agree.
Hart, J., dissents.
We do have serious reservations whether law of the case even applies in chancery cases involving custody determinations because the polestar consideration is the best interest of the child, and circumstances are continually changing. | [
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Terry Crabtree, Judge.
This case involves a motion for new trial. A jury sitting in Phillips County Circuit Court returned a verdict in favor of the appellee, David Warren, but failed to award appellee any damages. The court entered judgment for appellee on February 13, 1998. Ten days later, appellee made a written motion for new trial citing Arkansas Rule of Civil Procedure 59(a)(5) & (6). On March 25, 1998, the court entered an order granting appellee’s motion for new trial pursuant to Rule 59. On appeal, the appellant, Lloyd’s of London, challenges that order arguing that the trial judge abused his discretion in granting the motion. We disagree with appellant and affirm.
Appellee alleged that on or about June 7, 1993, his 1986 Isuzu I-Mark automobile was stolen from the front lawn of his parents’ home in West Helena, Arkansas, and dragged by thieves into the street fronting the home, where appellee’s personal prop erty contained within the vehicle was stolen, and the car was set on fire. Appellee filed a claim with appellant under his parents’ homeowner’s insurance policy. Subsequently, an amendment to the claim was submitted with a list of the items that were stolen from appellee’s car. Appellant refused to pay any portion of the claim.
Appellee filed a series of complaints against appellant on the homeowner’s policy issued by appellant to appellee’s father, alleging causes of action for breach of contract, bad faith, and punitive damages. Arguing that he was an “insured” under the policy because he lived with his parents, that the loss of the contents of his vehicle had occurred on the “insured premises,” and that appellant had wrongfully failed to pay for the loss of the contents of the vehicle, appellee filed complaints alleging damages for breach of contract and bad faith in the amount of $14,593.70. Subsequently, he argued that he had suffered lost income as a part-time musician due to appellant’s failure to pay the claim for a musical instrument alleged to have been contained within the vehicle at the time of the loss.
Appellant responded to each of appellee’s complaints, arguing that even if appellee was an insured under the policy, the loss had not occurred on the insured premises. As a result, appellant denied any liability under its homeowner’s policy. At trial, the jury heard the testimony of eight witnesses. After deliberating, the jury returned two completed verdict forms. Ten members of the jury found for appellee on both of his causes of action, but they assessed no damages against appellant on either of the claims. On the second verdict form, signed only by the foreman, the jury returned a unanimous verdict for appellant and assessed no damages.
Appellant argues on appeal that the circuit judge abused his discretion in setting aside the jury verdict and in granting appellee’s motion for new trial. Rule 59(a)(6) of the Arkansas Rules of Civil Procedure provides that a new trial may be granted to all or any of the parties on all or part of the issues on the application of the party aggrieved when the verdict or decision is clearly against the preponderance of the evidence. While the trial court has some discretion in setting aside a jury verdict, there is no longer the broad discretion that the supreme court formerly recognized. Ray v. Green, 310 Ark. 571, 839 S.W.2d 515 (1992). The trial court has limited discretion in the matter, as it may not substitute its view of the evidence for the jury’s except when the verdict is clearly against the preponderance of the evidence. Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996); see Collins v. Treadwell, 54 Ark. App. 100, 923 S.W.2d 882 (1996). The test this court applies in reviewing the trial court’s granting of a motion for new trial is whether the judge abused his discretion; a showing of abuse of discretion is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Richardson v. Flanery, 316 Ark. 310, 871 S.W.2d 589 (1994); Nationwide Mut. Fire Ins. Co. v. Bryson, 60 Ark. App. 293, 962 S.W.2d 824 (1998). The supreme court has described this standard as requiring a showing of “clear” or “manifest” abuse of discretion by acting improvidently or thoughtlessly without due consideration. See Razorback Cab of Fort Smith, Inc. v. Martin, 313 Ark. 445, 856 S.W.2d 2 (1993).
First, appellant asserts that the trial court improperly made reference to an inconsistency in the verdict forms in its order granting a new trial. We note that appellee never contended or raised the issue of the inconsistent verdict forms as a basis for the new trial. Although the trial court made reference to the inconsistent verdict forms, the judge based his order on Ark. R. Civ. P. 59. Therefore, it is not necessary for us to entertain appellant’s argument regarding inconsistent verdict forms.
Appellant further argues that the lower court lacked a sufficient basis to order a new trial and therefore abused its discretion. Appellee requested a new trial based upon the inadequacy of damages and the fact that the jury’s decision was contrary to a preponderance of the evidence adduced at trial. Rule 59(a) of the Arkansas Rules of Civil Procedure allows a motion for a new trial to be granted upon a showing of one of eight reasons. See Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997). One permissible reason is that “the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to law.” Ark. R. Civ. P. 59(a)(6). In this instance, we believe that the trial judge reasonably found that the jury’s verdicts for both appellant and appellee were against the preponderance of the evidence and affirm.
Affirmed.
Robbins, C.J., and Roaf, J., agree. | [
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James R. Cooper, Judge.
The appellant was convicted in a jury trial of being in actual control of a motor vehicle while intoxicated. He was sentenced to serve one year in the Washington County jail, fined $1,000.00, ordered to pay $392.00 in court costs, ordered to comply with the Ozark Guidance Center recommendations and his driver’s license was suspended for a period of ninety days. On appeal, the appellant argues that the trial court erred in allowing the results of the blood alcohol test to be introduced into evidence without a showing that the procedures performed were in compliance with the Arkansas State Department of Health regulations, as required under Ark. Code Ann. § 5-65-204 (Supp. 1991). We agree, and therefore reverse and remand.
Anthony Smith, a patrolman with the Fayetteville Police Department, testified that he was dispatched around 3:00 a.m. on May 8,1991, to the Ramada Inn to investigate a complaint that a couple was having sex in a vehicle in the parking lot. He discovered the appellant and his companion sitting inside a car in the parking lot. He testified that the appellant was sitting on the driver’s side with the engine running. Officer Smith asked the appellant for his driver’s license and asked him to step outside the vehicle. He stated that he could smell alcohol on the appellant. He administered two field sobriety tests to the appellant which he said the appellant failed. He stated that at this point the appellant became very agitated and started screaming that he had just recently undergone open heart surgery. The officer then placed the appellant under arrest. Subsequent to his arrest, the appellant complained of chest pains and was breathing heavily. Officer Smith transported him to the Washington Regional Medical Center emergency room where he was examined by Dr. Beam. He stated that once inside, he advised the appellant of his rights under the implied consent law. The appellant was unable to sign the consent form but gave his verbal consent to have his blood drawn for a blood alcohol test. After the appellant was treated, Officer Smith transported him to the police department. He testified that he forwarded the blood sample to the Arkansas Health Department for testing. Officer Smith received a completed blood alcohol report form from the Arkansas Department of Health which indicated a blood alcohol content of 0.11%.
The State argues that the appellant’s argument is not preserved for appeal due to the lack of a specific objection in the trial court below. We disagree. The record reveals that the appellant objected when the State sought to introduce the blood alcohol report form into evidence. One of the grounds he argued was the lack of evidence that the drawing of the blood was in accordance with the health department rules and regulations which were promulgated to prevent contamination of the blood. The State noted that they had not been given ten days notice required by statute and that the test was self-authenticating. The appellant responded that he was not questioning the chemist but was questioning the drawing of the blood and whether or not it was done in accordance with the regulations. The trial court stated that he understood the appellant’s objection and overruled it.
Under Ark. Code Ann. § 5-6.5-204(c) (Supp. 1991), a provision of our Omnibus DWI Act, chemical analysis of a person’s blood, urine, or breath shall be performed according to methods apjproved by the Arkansas State Board of Health in order to be considered valid under the provisions governing its admissibility as evidence. Mosley v. State, 22 Ark. App. 29, 732 S.W.2d 861 (1987). Substantial compliance with these regulations is sufficient, Goode v. State, 303 Ark. 609, 798 S.W.2d 430 (1990), but such tests must be monitored carefully to assure reliability. Weaver v. State, 290 Ark. 556, 720 S.W.2d 905 (1986).
At trial, there was no evidence presented by the State indicating that the procedure used to draw blood was performed according to a method approved by the State Department of Health. Dr. Beam, the physician who treated the appellant, testified at trial but did not testify regarding the procedures used when the blood was drawn. Furthermore, apparently the phlebot-omist who actually drew the blood was subpoenaed but was not called to testify by the State. The State Department of Health has adopted regulations regarding how blood samples are to be collected, including how the skin is to be cleansed and disinfected and the instruments to be used. See Ark. Dep’t of Health, Arkansas Regulations for Blood Alcohol Testing, § 3.20. In the case at bar, there was no evidence of the type of instruments used to draw the blood or whether they were sterile. There was no evidence of whether a non-alcohol skin sterilant was used or whether the test was contaminated by an alcohol swab used to sterilize the skin. Therefore, we find the evidence insufficient to demonstrate substantial compliance with the regulations and that this prevents the introduction of the test results into evidence. Mosley, supra.
We think the case at bar is analogous to those cases in which a showing that the chemical analysis was made by a method approved by the Director of the State Board of Health and/or the Director of the Arkansas State Police, as required by previous statute, was part of the foundation to be laid for the introduction of the results of such tests or analysis and the burden was upon the State to establish it. Smith v. State, 243 Ark. 12, 418 S.W.2d 627 (1967); Jones v. City of Forrest City, 239 Ark. 211, 388 S.W.2d 386 (1965).
The-State contends that, according to Arkansas Code Annotated § 5-65-206(d) (Supp. 1991), the blood alcohol report form is self-authenticating and is admitted into evidence without the necessity of those involved in the administration of the chemical test being present to testify at trial unless the State is given advance notice that the defendant desires them to be there. Section 5-65-206 provides, in pertinent part:
(d) The records and reports of certifications, rules, evidence analysis, or other documents pertaining to work performed by the blood alcohol program of the Arkansas Department of Health under the authority of this chapter shall be received as competent evidence as to the matters contained therein in the courts of this state subject to the applicable rules of criminal procedure when duly attested to by the program director or his assistant, in the form of an original signature or by certification of a copy. These documents shall be self-authenticating.
(2) Nothing in this section shall be deemed to abrogate a defendant’s right of cross-examination of the person calibrating the machine, the operator of the machine, or any person performing work in the blood alcohol program of the Arkansas Department of Health, who shall be made available by the State if notice of intention to cross-examine is given ten (10) days prior to the date of the hearing or trial.
The State cites Smith v. State, 301 Ark. 569, 785 S.W.2d 465 (1990) and Johnson v. State, 17 Ark. App. 82, 703 S.W.2d 475 (1986) to support this contention. In Johnson, we found that Ark. Stat. Ann. § 75-103.1 (Supp. 1985) [now codified at Ark. Code Ann. § 5-65-206] required that (1) the method of testing be approved by the Board of Health, (2) the machine must have been certified in the three months preceding arrest and (3) the operator must have been trained and certified. We found that the State complied with the statutory requirements for admission of the breathalyzer test results. The State introduced a certificate which approved the method and the machine used, along with an operator’s certificate issued to the officer who administered the test. We held that the statute did not require the State to introduce the installation certificate or the testimony of the senior operator who calibrated the machine as a prerequisite to introduction of the chemical analysis test results. The Arkansas Supreme Court in Smith also found that the statutory law did not require the machine operator’s testimony, or his certificate, as a prerequisite to the introduction of chemical analysis test results. In the present case, however, there is a statutory provision that requires a blood sample to be collected in keeping with certain Board of Health methods in order for the test to be admissible in evidence. There is simply no evidence that the Board of Health regulations were followed in this case, and under the circumstances, we find that the appellant suffered prejudice from the admission of the test result. Therefore, we reverse and remand for a new trial.
Reversed and remanded.
Mayfield, J., agrees.
Robbins, J., concurs. | [
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Melvin Mayfield, Judge.
David Marshall Stone was convicted by a jury of theft of property and sentenced to seven years in the Arkansas Department of Correction. His only argument on appeal is that it was error for the trial court to allow admission of statements he made after being promised leniency by the arresting officer.
The record contains no motion to suppress the statements. Nevertheless, the trial judge held an in camera hearing on the admissibility of the statements. Detective Morris Pate, of the Eureka Springs Police Department, testified that on September 20,1991, he took a statement from appellant. He said he advised appellant of his Miranda rights by reading him the Miranda warning form, and appellant placed his initials beside each right to indicate he understood it. Appellant also signed the form in two places to signify that he both understood his Miranda rights and waived the right to remain silent and to have an attorney present during questioning. The form signed by appellant also states, “No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.” The signed rights form, an audio tape of the interview, and a transcript of the tape were introduced into evidence at this hearing.
On cross-examination Detective Pate said that Officer Sam Parker had arrested appellant and that Pate had no way of knowing whether Officer Parker had promised appellant anything for his confession, but Pate had not. Pate also admitted that he had not inquired whether appellant was under the influence of drugs or alcohol and that it was not customary for him to do so.
Charles Carty, a detective with the Benton police department, testified that he picked up appellant at the Carroll County Sheriffs office in Berryville and transported him to the Benton Police Department. He said he read appellant his rights when he first came in contact with appellant at approximately 5:16 p.m. on September 20, 1991, and that appellant initialed and signed the form. A copy of this form, the audio tape of the statement appellant made in the car on the way back from Berryville, and a transcript of that statement were also introduced into evidence at the hearing. In his statements appellant admitted stealing a car from Lander’s Auto Sales in Benton.
At the beginning of the second statement, appellant was asked if he had been advised of his Miranda rights, if he understood his rights, and if he had a problem with making a statement. Appellant answered that he understood his rights and wanted to make a statement. He was then asked, “Okay, there’s no threats or promises made to you?” Appellant answered, “No.”
Officer Carty testified on cross-examination that he had not made any promises to appellant and that appellant had specifically denied that he was under the influence of alcohol or drugs before the second statement was made.
The appellant testified that he was arrested in Eureka Springs by Officer Parker at approximately 5:30 a.m. on September 20, and taken to the Carroll County Detention Facility. Defense counsel then asked appellant,
Q. Did you agree to give them a statement?
A. Officer Parker, as we were standing outside the hotel, told me that it would be in my best interest and that the prosecutor, whomever, would go easier on me if I went ahead and told the truth up front and that’s what I did.
Q. So you gave this statement on condition or for being treated leniently?
A. Yes.
Q. And that’s what the officer told you would happen?
A. That’s word for word what he told me.
Q. And that’s the reason you gave the statement?
A. Yes.
On cross-examination appellant admitted signing Exhibits 1 & 3, the Miranda rights forms, and testified that he understood his rights but made the statements anyway. He also testified that neither Detective Pate nor Detective Carty made him any promises. He said:
I voluntarily gave him [Detective Carty] a statement, remembering what Mr. Parker had said and that was very simple, that if I came up front and told them the truth, that he would do what, not he would, but that the system would be lenient with me.
To the trial judge’s inquiry, “Where is Officer Parker?” the prosecutor replied, “He’s the one that was subpoenaed, Your Honor.” Defense counsel added, “He’s no longer with the Eureka Springs Police Department. He was fired.” The prosecutor then stated, “He’s unemployed and lives in Springdale.” The trial judge then informed counsel that when there is an allegation of coercion everyone who is a witness to the statement must be present to testify but that Officer Parker had not been a witness to either statement that was introduced into evidence. The judge concluded that the statements were voluntary and that Officer Parker made no promises to appellant which would supersede the waiver of his rights as evidenced by his signature on the Miranda forms.
An in-custody confession is presumed to be involuntary and the burden is on the State to show that the statement was voluntarily made. Smith v. State, 254 Ark. 538, 494 S.W.2d 489 (1973). In determining whether a statement was voluntarily and freely given, we make an independent review of the totality of the circumstances and will reverse only if the trial court’s findings are clearly against the preponderance of the evidence, and conflicts in testimony are for the trial court to resolve as it is in a superior position to determine the credibility of witnesses. Addison v. State 298 Ark. 1, 765 S.W.2d 566 (1989). Whether a confession was made pursuant to a promise of leniency is an issue which, over the years, the Arkansas appellate courts have had to decide on a case-by-case basis. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982).
In Addison, supra, the Arkansas Supreme Court explained:
Pursuant to the “totality of the circumstances” approach, we focus on two basic components: the conduct of the police and the vulnerability of the accused. Some of the factors that we consider in making the determination of whether a confession was voluntary include the youth or age of the accused, lack of education, low intelligence, lack of advice as to constitutional rights, length of detention, repeated and prolonged questioning, and use of physical punishment.
298 Ark. at 6, 765 S.W.2d at 568 (citations omitted.) Some police promises of reward are so clearly false that it is not necessary to consider the vulnerability of the accused in determining whether the confession was involuntary. Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988). In Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975), the prosecutor had told a defendant that a confession “would not result in more than 21 years incarceration.” The sentence was life. In Teas v. State, 266 Ark. 572, 587 S.W.2d 28 (1979), the defendant had been promised a recommendation of leniency and perhaps even dismissal of the charge, but he was given the maximum sentence. In Hamm, the court described the promises in Freeman and Teas as prosecutorial misconduct.
On the other hand, by focusing on the vulnerability of the accused, the court has found no false promise of reward in such statements as, “it would probably help if you go ahead and tell the truth,” (Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981)); and “things would go easier if you told the truth,” (Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979)). But the appellate court did find false promises of reward in the statements, “I’ll help you any way I can,” (Tatum v. State, 266 Ark. 506, 585 S.W.2d 975 (1979)); and, “I’ll help all that I can,” (Shelton v. State, 251 Ark. 890, 475 S.W.2d 538 (1972)).
In the instant case there is no evidence of appellant’s age or education in the abstract of the hearing but it is obvious from the rights forms introduced into evidence that appellant can read and write his name and his testimony is, as a whole, grammatically correct. He testified that he first made a statement to Officer Parker in the patrol car after Parker had advised him to tell the truth. Appellant then made two additional tape recorded statements in which he admitted stealing the car. There is evidence in the trial transcript that appellant was 29 years old and was a manager trainee at Roadrunner.
Another consideration also comes into play in the instant case, and that is the fact that Officer Parker did not testify. In Smith v. State, 254 Ark. 538, 494 S.W.2d 489 (1973), the Arkansas Supreme Court adopted the rule that whenever an accused offers testimony that his confession was induced by violence, threats, coercion or offers of reward, then the State has a burden to produce all material witnesses who were connected with the controverted confession or give adequate explanation of their absence. 254 Ark. at 542, 494 S.W.2d at 491. In that case, the two defendants accused one of the interrogating officers of physical abuse and threats during interrogation. The other interrogating officer testified that no threats, coercion, intimidation, or promises of leniency were made. The conviction was reversed because the State failed to call the officer appellants had accused and the stenographer who took appellants’ statements in shorthand. The court held these were material witnesses.
In another case, Smith v. State, 256 Ark. 67, 505 S.W.2d 504 (1974), the defendant had accused both interrogating officers of physically abusing him. One of the officers denied the accusations, and the other officer did not testify. This conviction was reversed. The court said:
We have never held, and we do not now hold, that the state must call every witness who had any connection, however remote and inconsequential, with the giving of an in-custody statement. When that participation is significant, however, and the witness would be a “material” one, the rule of Smith v. State, 254 Ark. 538, 494 S.W.2d 489, stands undiluted.
256 Ark. at 72, 505 S.W.2d at 508. See also, Northern v. State, 257 Ark. 549, 518 S.W.2d 482 (1975), reversed and remanded because the alleged abusing officer was absent; but see, Gammel & Spann v. State, 259 Ark. 96, 531 S.W.2d 474 (1976), in which the State had failed to call a witness who was in jail with the defendant and might have shed some light on the defendant’s argument that his statement was involuntary. The court in Gammel and Spann refused to extend the Smith v. State, 254 Ark. 538, 494 S.W.2d 489 (1973), decision beyond its specific language. 259 Ark. at 103, 531 S.W.2d at 479.
In the instant case the arresting officer, who allegedly made the promise of leniency to appellant, was apparently subpoenaed but failed to appear for the trial. The only explanation given was that he had been fired, was unemployed and living in Springdale. The trial judge held that the appellant’s testimony that he had been advised of his Miranda rights, understood them, and had voluntarily signed the waiver of those rights and made his confession, adequately outweighed the failure of the arresting officer to testify. Moreover, the trial judge noted that the arresting officer had not been a witness to either of the two statements of the appellant that were introduced into evidence.
Appellee treats appellant’s argument as asserting that because his testimony of a promise of leniency by Parker was uncontradicted, the trial judge was required to believe it. If this is what appellant is arguing, his premise is incorrect. The trier of fact is not required to accept the uncontradicted testimony of the defendant as truth. The defendant is the person most interested in the outcome of the trial. Zones v. State, 287 Ark. 483, 702 S.W.2d 1 (1985). The trier of fact has the right to accept thatpart of the defendant’s testimony it believes to be true and to reject that part it believes to be false. Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979). Based on all the circumstances discussed above, we affirm.
Affirmed.
Jennings, C.J. and Rogers, J., agree. | [
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John Mauzy Pittman, Judge.
Sheldon Paul Mangiapane attempts to bring this appeal from his conviction of theft by receiving. We do not address the argument raised by appellant because we conclude that he failed to perfect his appeal under Ark. R. App. P. 4.
Appellant was charged with theft by receiving and was found guilty after a jury trial on June 18,1992. Appellant filed his notice of appeal on June 22, 1992, at 8:37 a.m. However, the judgment of conviction was not entered until 8:45 a.m. on June 22.
Rule 4(a) of the Arkansas Rules of Appellate Procedure provides that “a notice of appeal shall be filed within thirty (30) days from the entry of the judgment, decree, or order appealed from.” (Emphasis added.) A judgment is entered within the meaning of Rule 4 when it is filed with the clerk of the court in which the claim was tried. Ark. R. App. P. 4(e). A notice of appeal filed prior to entry of a final judgment is premature and ineffective. Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992). These rules apply equally to criminal cases. In re Belated Criminal Appeals, 313 Ark. 729, 856 S.W.2d 9 (1993); see Watson v. State, 313 Ark. 409, 856 S.W.2d 1; Tucker v. State, 311 Ark. 446, 844 S.W.2d 335 (1993); see also Giacona v. State, 311 Ark. 664, 846 S.W.2d 185 (1993). They also apply to render ineffective even a notice of appeal filed earlier on the same day as the judgment being appealed from. See Kelly v. Kelly, supra (the supreme court overruled that part of State v. Joshua, 307 Ark. 79, 818 S.W.2d 249 (1991), which had held that a notice of appeal filed sixteen minutes before entry of the order appealed from was timely because treated as though filed when the judgment was entered); see also Kimble v. Gray, 40 Ark. App. 196, 842 S.W.2d 473 (1992), aff'd, 313 Ark. 373, 853 S.W.2d 890 (1993) (a notice of appeal filed on, but before the expiration of, the day on which a new trial motion was deemed denied is premature and ineffective under Rule 4(c)).
The timely filing of a notice of appeal is, and always has been, jurisdictional. Whether the question is raised by the parties or not, it is not only the power, but the duty, of. a court to determine whether it has jurisdiction of the subject matter. Hawkins v. State Farm Fire and Casualty Co., 302 Ark. 582, 792 S.W.2d 307 (1990); Giacona v. State, 39 Ark. App. 101, 839 S.W.2d 228 (1992). Because appellant’s notice of appeal was filed prior to the entry of the judgment of conviction, we dismiss the appeal. Appellant, of course, may petition the Arkansas Supreme Court for permission to file a belated appeal. See Ark. R. Crim. P. 36.9; Giacona v. State, 39 Ark. App. 101, 839 S.W.2d 228 (1992).
Dismissed.
Mayfield, J., dissents. | [
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Sam Bird, Judge.
In a previous opinion, May Morgan v. Farm Bureau Mutual Ins. Co. of Arkansas, 88 Ark. App. 52 (2004), we considered Morgan’s appeal from the Faulkner County Circuit Court, which had granted summary judgment in favor of the appellee. We reversed the trial court, concluding that summary judgment was inappropriate because there was a fact issue remaining as to whether the appellant, May Morgan, had a criminal record. Appellee has now filed a petition for rehearing, in which it makes an argument that our original decision was erroneous. After carefully reconsidering the issues, we find that appellee’s argument is persuasive. Therefore, we grant the petition for rehearing and issue this substituted opinion affirming the trial court’s grant of summary judgment.
As a preliminary matter, although appellant’s notice of appeal and the record filed with the clerk of this court show that the appellee is Farm Bureau Mutual Insurance Company of Arkansas (Farm Bureau Mutual), it is obvious from the parties’ pleadings and the court’s orders filed in the case, and it appears to be agreed by the parties, that the intended appellee is Southern Farm Bureau Casualty Insurance Company (Southern Farm Bureau), a fact also recognized in this court’s previous opinion. To briefly explain, this action was originally commenced by May Morgan to recover benefits under an automobile insurance policy alleged to have been issued to her by Farm Bureau Mutual. When Farm Bureau Mutual answered, alleging that it did not issue the subject policy, but that it was issued, instead, by Southern Farm Bureau, Morgan amended her complaint to make Southern Farm Bureau the defendant and, simultaneously, moved to dismiss her complaint against Farm Bureau Mutual. Thereafter, Southern Farm Bureau filed its motion for summary judgment, and the court eventually entered its order granting summary judgment in favor of Southern Farm Bureau. Morgan appeals from that order. Therefore, in this substituted opinion, we take this opportunity to correct the style of the case to be “May Morgan v. Southern Farm Bureau Cas. Ins. Co.” and to delete the name Farm Bureau Mutual Insurance Company of Arkansas as a party to this appeal. In this opinion, reference will be made to Southern Farm Bureau as the sole appellee, regardless of what name formerly identified the appellee.
In Cox v. Keahey, 84 Ark. App. 121, 128, 133 S.W.3d 140, 143 (2003), we recounted the well-settled standard of review for summary-judgment cases:
The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is not a genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. [Alberson v. Automobile Club Interins. Exch., 71 Ark.App. 162, 27 S.W.3d 447 (2000)]. All proof submitted with a motion for summary judgment must be viewed in the light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. McWilliams v. Schmidt, 76 Ark. App. 173, 61 S.W.3d 898 (2001). Summary judgment is not appropriate where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. Lee v. Hot Springs Village Golf Schs., 58 Ark.App. 293, 951 S.W.2d 315 (1997).
The facts giving rise to this appeal are that on September 25, 2002, May Morgan made application to Southern Farm Bureau for a policy of automobile insurance, insuring an automobile owned by her. The application contained questions asking whether the applicant or any member of her household had ever been arrested or convicted of a felony. Morgan answered both of those questions “No.” Several months later, when Morgan made a claim for damages to the automobile resulting from a single-car collision, Southern Farm Bureau notified her that, because of her “misrepresentation of a material fact,” the policy for which she applied would not be issued. Southern Farm Bureau also tendered to Morgan a check for the premium she had paid with her application. Morgan filed suit alleging a cause of action under the policy for damages to her car and a cause of action for damages on account of Southern Farm Bureau’s bad faith in refusing to issue the insurance policy.
Southern Farm Bureau answered the complaint, alleging that Morgan had made material misrepresentations in her application for the insurance policy. Thereafter, Southern Farm Bureau filed its motion for summary judgment to which it attached, as exhibits, the depositions of May and Tommy Morgan and the affidavit of its underwriter.
The Morgans’ depositions established that May knew that Tommy had an extensive criminal record, including a number of arrests, and at least one felony conviction for which he served a term in prison. In her deposition, Morgan admitted that she knew about Tommy’s record when she completed the insurance application, but she stated that she “wasn’t thinking about it.” Tommy Morgan was more succinct in his deposition, stating that his felony record was “none of their business,” and that it was “something we don’t go around telling” because it presented problems that he eliminated by “just keep[ing] it to myself.” The underwriter’s affidavit stated that questions posed to applicants for insurance policies seek information that Southern Farm Bureau considers highly significant to the risk, that Southern Farm Bureau relies upon the answers given by the applicants in evaluating whether to accept the risk, and that Southern Farm Bureau would not have issued the policy “had the truth of the criminal records of Tommy and May Morgan been revealed.”
Morgan’s response to the motion alleged that because the underwriter was not a disinterested witness, his affidavit could be considered disputed, and that the materiality of the alleged misrepresentation was a genuine issue of material fact.
The trial court granted Southern Farm Bureau’s motion for summary judgment, finding that Morgan intentionally and falsely misrepresented that she and her husband, Tommy Morgan, had never been arrested and that her husband had never been convicted of a felony, whereas their depositions revealed that both had been previously arrested and that Tommy Morgan had “an extensive criminal record which included several felony convictions.” The court relied on Ferrell v. Columbia Mut. Casualty Ins. Co., 306 Ark. 533, 816 S.W.2d 593 (1991) (an applicant’s misrepresentations about an authorized driver’s record of moving traffic violations were material to the issuance of an automobile insurance policy) as authority for the proposition that misrepresentations about one’s arrest or criminal records are material to the risk.
Morgan appeals the trial court’s grant of summary judgment, raising two points: (1) the trial court erred in accepting the affidavit of appellee’s employee as uncontroverted; and (2) the trial court erred in finding a material misrepresentation of fact in the absence of proof of materiality.
Morgan is clearly wrong on her first point for reversal, that the trial court erred in accepting the agent’s affidavit as uncontroverted. It is well settled that uncontroverted affidavits filed in support of a motion for summary judgment are accepted as true for purposes of the motion. Alexander v. Flake, 322 Ark. 239, 910 S.W.2d 190 (1995); Inge v. Walker, 70 Ark. App. 114, 15 S.W.3d 348 (2000). Morgan cites two cases, Motors Ins. Corp. v. Tinkle, 253 Ark. 620, 488 S.W.2d 23 (1972) and Old Republic Ins. Co. v. Alexander, 245 Ark. 1029, 436 S.W.2d 829 (1969), for the proposition that the testimony of an interested witness is never considered to be uncontroverted. Those cases are distinguishable, however, because there the supreme court was considering the weight to be given to the testimony of an interested witness at trial and not in the context of an affidavit in support of a motion for summary judgment.
We also disagree with Morgan on her second point, that the trial court erred in finding a material misrepresentation of fact in the absence of proof of materiality. As already noted, the underwriter’s affidavit established that, in assessing the risk and deciding whether to issue a policy, Southern Farm Bureau relied upon the information provided by applicants in their responses to questions about their arrest and criminal records. Except for her unsupported assertion that there exists a genuine issue as to a material fact, Morgan presented to the trial court neither a contradictory affidavit nor authority for her argument that such misrepresentations are not material.
Morgan cites Brooks v. Town & Country Mut. Ins. Co., 294 Ark. 173, 741 S.W.2d 264 (1987), in arguing that the materiality of a misrepresentation is a question of fact. Flowever, Morgan’s reliance on Brooks is misplaced. In Brooks, the supreme court held that the trial court, sitting as fact-finder, had erred in finding, in the absence of any evidence, that a material misrepresentation of fact had occurred when Mrs. Brooks failed to reveal in her homeowner policy application that she had experienced a previous fire loss. Unlike the case now before us, Brooks involved an appeal from a verdict after trial and was not an appeal from a grant of summary judgment. But more importantly, in the case at bar, which is a summary-judgment case, there was proof before the court in the form of the underwriter’s affidavit that the false information that Morgan provided was significant to Southern Farm Bureau in its assessment of the risk to be assumed, and material to its decision of whether to issue the policy.
Finding no merit in either of appellant’s points on appeal, we hold that the trial court’s grant of summary judgment was appropriate.
Affirmed.
Vaught, Crabtree, and Roaf, JJ., agree.
Stroud, C.J., and Hart, J., would deny the petition for rehearing.
Simultaneously with May Morgan’s application for the automobile insurance policy with Southern Farm Bureau, an application to Farm Bureau Mutual was being completed by her husband,Tommy Morgan, for a homeowner’s insurance policy on their home. However, this appeal relates only to the automobile policy. | [
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John E. Jennings, Chief Judge.
The claimant in this workers’ compensation case, Martha Adams, sustained an admittedly compensable injury September 25,1989, while working for Arkansas Methodist Hospital. She was diagnosed as having chronic lumbosacral strain with associated degenerative lumbar disc disease. In 1970, Ms. Adams had herniated a lumbar disc while employed with Emerson Electric. As a result of that injury, a laminectomy was performed.
Dr. Ray Tyrer, a neurosurgeon, eventually gave Ms. Adams an anatomical rating of 7 % to the body as a whole resulting from the September 1989 injury. This rating was accepted by the hospital.
On August 29,1991, a hearing was held before the administrative law judge and the parties stipulated that Ms. Adams had sustained a 15 % permanent partial disability as a result of the injury with Emerson in 1970. The ALJ found that the claimant had sustained an additional 18 % wage loss disability as a result of the September 1989 injury and held that the Second Injury Fund was responsible for paying the wage loss disability.
On de novo review, the full Commission also found that Ms. Adams had sustained an 18 % wage loss disability but held that the Second Injury Fund had no liability. The hospital appeals the Commission’s order, contending (1) that the Commission erred in finding that the claimant had sustained an 18% wage loss disability, and (2) that the Commission erred in absolving the Second Injury Fund from liability. We affirm on the first issue but reverse and remand on the second.
The hospital’s first contention is based on the provisions of Ark. Code Ann. § 11-9-704(c) (Supp. 1991). The statute provides that “Any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings.” Arkansas Code Annotated section 11-9-522(b) (1987) provides, in part:
In considering claims for permanent partial disability benefits in excess of the employee’s percentage of permanent physical impairment, the Commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee’s age, education, work experience, and other matters reasonably expected to affect his future earning capacity.
We think it is clear that the reference to “physical impairment” in Ark. Code Ann. § 1 l-9-704(c)(1) refers to a determination of anatomical disability as opposed to a loss of a wage earning capacity under § 11-9-522(b). This was at least implied by our opinion in Reeder v. Rheem Mfg. Co., 38 Ark. App. 248, 832 S.W.2d 505 (1992).
In the case at bar the appellant hospital had already accepted the anatomical rating of 7 % given by Dr. Tyrer. In determining Ms. Adams’ loss in wage earning capacity the Commission correctly considered “the claimant’s age, education, work experience, and all other factors reasonably expected to affect her future earning capacity.” “Objective and measurable physical or mental findings” are necessary to support a determination of “physical impairment.” Ark. Code Ann. § 11-9-704(c)(1) (Supp. 1991). They are not necessary to support a determination of wage loss disability.
As to the hospital’s second contention, the Commission held that the Second Injury Fund had no liability under the circumstances. The Commission said:
The second issue on appeal involves liability for payment of those benefits. The Administrative Law Judge found that the Second Injury Fund was liable for those benefits; we disagree. The requirements for finding Second Injury Fund liability were set forth by the Arkansas Supreme Court in Mid-State Construction Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988). Those requirements are that (1) claimant suffer a compensable injury at his present place of employment; (2) that prior to the injury claimant have a pre-existing disability or impairment; and (3) that the disability or impairment must combine with the recent compensable injury to produce the current disability status. We find insufficient evidence that this claimant had a pre-existing disability or impairment. First, it is important to note that the court has distinguished between “disability” and “impairment”. Weaver v. Tyson Foods, 31 Ark. App. 147, 790 S.W.2d 442 (1990). “Impairment” applies to conditions which are not work-related, and “disability” is defined as incapacity because of injury, to earn the wages which the employee was receiving at the time of the injury. A.C.A. § 11-9-102(5); Weaver, supra, Danny McWilliams v. Arkansas Highway & Transportation Dept., Full Commission opinion filed December 6, 1991 (D801186). Here, there is no question but that the claimant’s prior injury was work-related. Therefore, in order for the second requirement in Mid-State to be met, there must be evidence that the claimant suffered a loss in wage earning capacity as a result of that injury. Weaver, supra. We find insufficient evidence that the claimant suffered any loss in wage earning capacity as a result of the prior back injury in 1970. Although the claimant underwent surgery and received a permanent physical impairment rating in an amount equal to 15 % the body as a whole as a result of that injury, no medical evidence has been offered indicating that any physical limitations were placed upon claimant as a result of that injury. Further, claimant testified that she could not remember any physical.limitations being placed upon her. Also, claimant testified that following the injury and surgery, she was able to return to work for Emerson Electric performing the same job. Although claimant subsequently terminated her employment with Emerson Electric, she did so for personal reasons. In addition, it is also significant to note that claimant testified that she had very good results following the surgery in 1970 which allowed her to engage in any activities which she desired.
Given this evidence, as well as a lack of credible evidence to the contrary, we find that claimant did not suffer a loss in wage earning capacity as a result of her 1970 injury. For us to find that claimant suffered a loss in wage earning capacity we would have to speculate that such a loss occurred. Speculation and conjecture, no matter how plausible, are not to be substituted for credible evidence by this Commission. Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1979). Having found insufficient evidence that the claimant suffered a loss in wage earning capacity as a result of the injury in 1970, the claimant did not suffer from a pre-existing disability or impairment and the second requirement for Second Injury Fund liability has not been met. Therefore, we find that the Second Injury Fund is not liable for benefits in this case.
We cannot agree with the Commission’s conclusion. The applicable statute, Ark. Code Ann. § 11-9-525(b)(3) (1987), provides, in pertinent part:
(3) If any employee who has a permanent partial disability or impairment, whether from compensable injury or otherwise, receives a subsequent compensable injury resulting in additional permanent partial disability or impairment so that the degree or percentage of disability or impairment caused by the combined disabilities or impairments is greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of combined disabilities or impairments, then the employer at the time of the last injury shall be liable only for the degree or percentage of disability or impairment which would have resulted from the last injury had there been no preexisting disability or impairment.
In the case at bar the record contains the order of the administrative law judge approving, on behalf of the Commission, a 1971 joint petition between Ms. Adams and Emerson Electric Company. The order recites: “Based upon the evidence in this case, it is established that the claimant has suffered a 15 % permanent partial disability to the body as a whole. . . .” That finding, on behalf of the Commission, necessarily carries with it a determination of loss of earning capacity at the time of the entry of the order. Once the Commission has made a determination of the existence of permanent partial disability, whether as a result of a hearing after the issues have been controverted or on a hearing to approve a joint petition, we do not think that the issue is subject to reexamination in the context of the Second Injury Fund statute. In the language of § 1 l-9-525(b)(3), Ms. Adams was an employee who had “a permanent partial disability” prior to her 1989 “subsequent compensable injury.”
We conclude that the Commission erred in finding that the second requirement of Mid-State Construction was not met. Because the Commission did not rule on the third requirement of Mid-State, i.e., whether the disability combined with the recent compensable injury to produce the current disability status, we remand the case to the Commission to make that determination.
Affirmed in Part; Reversed and Remanded in Part.
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John E. Jennings, Chief Judge.
At about 3:00 a.m. on January 10,1992, Kenneth Johnson was drivinga 1979Chevrolet Malibu on Markham Street in Little Rock. He was stopped by Little Rock Police Officer Greg Birkhead, who suspected the car might be stolen. During a pat-down search Officer Birkhead found a knife and a quantity of cocaine in Johnson’s pocket. The appellant was subsequently charged with possession of cocaine with intent to deliver.
Johnson filed a motion to suppress, contending that the officer had no reasonable suspicion to stop him. The trial court denied the motion and Johnson entered a conditional plea of guilty under Ark. R. Crim. P. 24.3(b). He was sentenced by the court to five years imprisonment under Act. 378 of 1975.
The sole issue presented is whether Officer Birkhead had reasonable suspicion to stop the appellant’s car. We hold that the circuit court’s decision that there was reasonable suspicion is not clearly against a preponderance of the evidence and affirm.
Officer Birkhead testified that on January 10, 1992, he was patrolling around Markham and Chester Streets in Little Rock. At a stop light he pulled up beside the car Johnson was driving and noticed that the left vent window was broken out. Birkhead testified that he immediately suspected the vehicle might be stolen and was trying to run a radio check on the license plate. Birkhead testified:
The light changed to green, and I allowed the vehicle to get up in front of me. I got behind it, and I followed it to Markham and Victory. As it turned the corner, I could get a good angle on the window, and I observed that it was broke out. I suspected the vehicle might be stolen at that point, so I changed my radio channel to a channel eight, which is a secondary traffic channel, and I was going to try and run a check on the license plate.
The vehicle then quickly turned. We turned from Markham onto Victory. We went about a half block, and then he turned right again, which would have been going west bound on Markham again, and picked up the speed. So I couldn’t get a good look at the plate again.
I sat my radio down. I tried to catch up to the vehicle. The vehicle made it to the parking lot, which would be down in the train station where Slick Willy’s the club is. The vehicle did a U-turn and started to come right back at me, so I had no choice then. I was very suspicious at that time.
It appeared the vehicle was trying to elude me, so I cut across in front of it, put my spot light on it, put my take-down lights on it, and then I activated my blue lights and blocked the vehicle. He then came to a stop. I exited my vehicle and approached the vehicle at that time.
Officer Birkhead testified that in his two and one-half years with the Little Rock Police Department he had been involved in the recovery of hundreds of stolen vehicles and that “80 to 90 percent of them” had broken side windows. He also testified that the appellant committed no traffic offense and the car eventually turned out not to have been stolen.
“Reasonable suspicion,” which is something less than probable cause, is required to constitutionally justify an investigative stop. Alabama v. White, 496 U.S. 325 (1990); Kaiser v. State, 296 Ark. 125, 752 S.W.2d 271 (1988); Lambert v. State, 34 Ark. App. 227, 808 S.W.2d 788 (1991); Ark. R. Crim. P. 3.1. Reasonable suspicion is defined by Ark. R. Crim. P. 2.1 as “a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.” The existence of reasonable suspicion is to be judged by the “totality of the circumstances.” See Alabama v. White, 496 U.S. 325 (1990).
Two recent cases from other jurisdictions are almost directly on point and reach opposing conclusions. In People v. Elam, 179 A.D.2d 229, 584 N.Y.S.2d 780 (N.Y. App. Div. 1992), two police officers stopped the defendant’s car after having noticed a broken rear vent window which caused them to believe that the car might be stolen. There was also evidence that the vehicle was being driven “rather erratically” and “pretty fast,” although there was no indication that the defendant committed any traffic offense. A five judge panel of the appellate division of the New York Supreme Court held in a 4-1 decision that the trial court erred in finding reasonable suspicion to stop.
In Commonwealth v. Epps, 415 Pa. Super. 231, 608 A.2d 1095 (1992), a three judge panel of the Pennsylvania Superior Court held that the observation of a broken rear vent window was sufficient by itself to provide reasonable suspicion to justify an investigatory stop. In Epps, the officer testified that he knew from his experience in investigating automobile thefts that entry for purposes of theft is routinely gained by breaking one of the vent windows, rather than one of the larger, more conspicuous windows of the car.
In Elam, where the car turned out not to have been stolen, the Court said the officer simply had a hunch that the defendant had stolen the car. In Epps, where the car actually was stolen, the Court said this was not merely a hunch but rather an “articulable, particularized suspicion.”
In the case at bar we are not persuaded that the trial judge’s finding of reasonable suspicion is clearly against a preponderance of the evidence. That suspicion was based not merely on the observation of the broken vent window but also on the officer’s experience with stolen vehicles as well as his percep tion that the appellant was trying to evade him. This was enough to constitutionally justify an investigatory stop.
Affirmed.
Mayfield and Rogers, JJ., agree. | [
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John Mauzy Pittman, Judge.
Kimberly Kay Jones appeals from a decree of the Crawford County Chancery Court ordering appellee, Brian Keith Jones, to pay $112.00 per week in child support for the parties’ two minor children. Appellant also appeals from that part of the divorce decree awarding appellee the right to claim the children as dependents for income tax purposes. After a hearing in April 1992 regarding temporary support and related issues, the chancellor ordered appellee to pay $78.00 per week in child support based upon appellee’s testimony at trial that his approximate net weekly income was $296.68 per week. The chancellor ordered appellee to keep health insurance in effect for the benefit of the children; to be solely responsible for all extraordinary medical and dental expenses of the children; to make all of the mortgage payments on the marital home, the exclusive use of which was awarded to appellant; and to pay the debt on appellant’s 1989 Chevrolet Corsica automobile. The chancellor also held that the parties were to equally divide any tax refunds received for 1991.
At the temporary hearing, counsel for appellee stated that, in the past, appellee had received bonuses and overtime pay but, at that time, appellee’s current weekly net take home pay was $296.00. Appellant disputed this figure. The court found that, for the purposes of that hearing, appellee was taking home $296.00 per week and, according to the child support chart, wás obligated to pay $78.00 per week for the two children.
At the hearing held on August 4,1992, appellee produced a pay stub for the work week ending July 25, 1992, which showed that appellee’s net pay was $383.45. This pay stub indicated that appellee had worked seven hours overtime; had earned $18,035.98 during the year to date; had paid $1,726.60 in federal income tax to date; had paid $1,385.38 in social security tax to date; and had paid $870.37 in state income tax to date. Appellant introduced the parties’ 1991 federal income tax return, which showed their total income at $33,996.00 and indicated that a refund was owed to the parties in the amount of $986.00. Also included in the record is a copy of the 1991 1099-G form submitted by the state, indicating a refund in the amount of $499.00.
Appellant also introduced the following worksheet:
Wage Information from 1991 Federal Tax Return:
$32,945.00
2,042.00 Social Security withheld
$30,903.00
1,646.00 State withholding
$29,257.00
3,692.00 Federal withholding
$25,565.00
270.00 Insurance deduction
$25,295.00
$25,295.00 divided by 52 weeks = $486.00 weekly income
$486.00 = $116.00 c/s per week
Wage Information from check stub from week ending 06/20/92:
$15,124.48 Year-to-Date income
1,458.29 Federal withholding
$13,666.19
1,157.02 FICA
12,509.17
729.26 State withholding
$11,779.91
135.00 Insurance deduction
$11,644.91
$11,644.91 divided by 25 weeks = $465.80 weekly income
$465.80 = $112.00 c/s per week
Appellant also introduced pay stubs from appellee’s employer dated June 13, 19, and 20, 1992, indicating bonuses, regular work time, and overtime. Appellant testified that the $296.00 net take-home pay that appellee had claimed to make at the temporary hearing was not correct; she stated that his average weekly take-home pay, based on her own personal knowledge from his earnings in 1991, amounted to $486.00 per week. She testified that the mortgage payment was $554.00 per month; the insurance on the house was $62.00 every three months; and the annual real property taxes amounts to $496.00.
Appellee testified that, although he had been working five and six days per week, his work schedule was not predictable and, on some days, he was sent home early and ended up working less than forty hours per week. He stated that, at the time of the hearing, he was working a short week and had been scheduled for four days each week since the fall of 1991. He stated that he had been making the house payment and appellant’s car payment, and had been forced to borrow money from his parents in order to meet his child support obligations. He testified that his net pay the week before the hearing was $383.00 and that his average net pay per week was $465.80.
In the final decree entered October 16, 1992, the chancellor awarded custody of the two children to appellant and gave reasonable visitation with the children to appellee. The chancellor ordered appellee to pay $112.00 per week (the chart amount for weekly take-home pay of $460.00) in child support through a wage assignment. The chancellor also held that appellee must provide health insurance for the children and that, as soon as it is available at her place of employment, appellant must also do so. The chancellor ordered the parties to share extraordinary health expenses for the children not covered by either party’s health insurance. The chancellor also held that appellee shall be entitled to claim the two children as dependents for income tax purposes. In the decree, the chancellor ordered the parties to sell their marital home within ninety days and ordered each party to make one-half of the mortgage, taxes, and insurance payments on the house.
On appeal, appellant first argues that the chancellor erred in determining the amount of child support at both hearings.
The controlling law on what is required to determine the amount of child support is set forth in Ark. Code Ann. § 9-12-312(a)(2) (Supp. 1991):
In determining a reasonable amount of support, initially or upon review to be paid by the noncustodial parent, the court shall refer to the most recent revision of the family support chart. It shall be a refutable presumption for the award of child support that the amount contained in the family support chart is the correct amount of child support to be awarded. Only upon a written finding or specific finding on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the support chart, shall the presumption be rebutted.
“Reference to the chart is mandatory, and the chart itself establishes a rebuttable presumption of the appropriate amount which can only be explained away by written findings stating why the chart amount is unjust or inappropriate.” Black v. Black, 306 Ark. 209, 214, 812 S.W.2d 480, 482 (1991). The chancellor, in his discretion, is not entirely precluded from adjusting the amount as deemed warranted under the facts of a particular case. Waldon v. Waldon, 34 Ark. App. 118, 806 S.W.2d 387 (1991). The presumption may be overcome if the chancellor determines, upon consideration of all the relevant factors, that the chart amount is unjust or inappropriate. Id. The relevant factors include food, shelter, utilities, clothing, medical and education expenses, accustomed standard of living, insurance, and transportation expenses. Id. The amount of child support lies within the sound discretion of the chancellor, and we will not disturb the chancellor’s finding absent an abuse of discretion. Grable v. Grable, 307 Ark. 410, 821 S.W.2d 16 (1991).
At the temporary hearing, appellee testified that his net take-home pay was approximately $296.00 per week. The chancellor agreed and awarded temporary child support according to the chart based on this amount. On appeal, appellant argues that this fact was shown to be untrue by the evidence produced four months later at the final hearing. Chancery cases are reviewed de novo on appeal, and the appellate court will not disturb the chancellor’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence, and because the question of the preponderance of the evidence turns largely on the credibility of the witnesses, the appellate court will defer to the chancellor’s superior opportunity to assess credibility. Appollos v. Int'l Paper Co., 34 Ark. App. 205, 808 S.W.2d 786 (1991); Ark. R. Civ. P. 52(a).
We note that the evidence produced at the final hearing in August related to the parties’ 1991 income and also showed appellee’s weekly and year-to-date earnings through the summer of 1992. This evidence showed a greater average amount of take-home pay than the amount to which appellant testified in April 1992 at the first hearing. Nevertheless, the temporary hearing occurred four months before the final hearing, where evidence showed appellee to have a higher take-home pay. There was evidence to support the chancellor’s finding in the temporary order, and we cannot say that this finding is clearly against the preponderance of the evidence.
We also note that, in the temporary order, appellee was not only ordered to pay child support according to the family support chart, based upon his net income as found by the chancellor, but he was also ordered to make the entire mortgage, taxes, and insurance payments on the marital home where appellant and the children continued to live. Additionally, he was ordered to provide health insurance and medical care for the children and to make appellant’s car payment. Even if appellant had shown that the finding as to appellee’s net take-home pay in April 1992 was clearly against the preponderance of the evidence, we would not reverse on this issue in light of the substantial additional payments that appellant made on behalf of the children during that time period. Error is no longer presumed to be prejudicial; unless the appellant demonstrates prejudice, we do not reverse. Hibbs v. City of Jacksonville, 24 Ark. App. 111, 749 S.W.2d 350 (1988).
Appellant also argues in her first point on appeal that the chancellor did not properly determine appellee’s weekly take-home pay, because he did not include in appellee’s income the 1991 tax refund received by appellee in 1992 and the monetary value of the two dependent exemptions. First, we note that, at most, appellee was entitled to only one-half of the income tax refund for the year 1991. Additionally, appellant produced no evidence that appellee would be entitled to a refund for the tax year 1992, when the decree establishing child support was entered, or that appellee’s receipt of a tax refund would be a recurring event. The burden is upon the appellant to bring up a record sufficient to demonstrate that the trial court was in error, Smith v. Smith, 32 Ark. App. 175, 798 S.W.2d 442 (1990), and, where the appellant fails to meet this burden, the appellate court has no choice but to affirm the trial court. McLeroy v. Waller, 21 Ark. App. 292, 731 S.W.2d 789 (1987). Appellant has cited, and we have found, no Arkansas case holding that prior tax refunds paid months before a divorce hearing must be included in income for purposes of calculating child support to be paid in the future. We therefore find no error in the chancellor’s refusal to include appellee’s receipt of one-half of the 1991 income tax refund in appellee’s income.
Appellant also argues that, because appellee would receive a benefit from claiming the children as dependents for income tax purposes, this benefit should be added to his net income for purposes of determining child support. Appellee responds to this argument by stating that, if he cannot claim the children as dependents, his weekly tax withholding will go up and his net take-home pay will go down, thereby warranting a reduction in his child support obligation according to the family support chart. We note that appellant introduced no evidence to show the actual monetary value of these exemptions to appellee and, therefore, failed to bring up a record sufficient to demonstrate error in this regard. See Smith v. Smith, supra. Accordingly, we affirm the chancellor on this issue.
In her second point on appeal, appellant argues that the chancellor erred in awarding appellee the right to claim the children as dependents because this matter was not raised by either party in the pleadings or testimony. We disagree. In Freeman v. Freeman, 29 Ark. App. 137, 778 S.W.2d 222 (1989), we held that the right to claim the parties’ children as tax exemptions is accurately characterized as a matter of child support. In his complaint, appellee requested that he be ordered to pay child support according to the family support chart if appellant was awarded custody of the children; in her counterclaim for divorce, appellant also requested that appellee be ordered to pay child support according to the family support chart. Clearly, the issue of the right to claim the children as dependents for tax purposes was within the issues at trial and could be addressed by the chancellor in the final decree.
In her third point on appeal, appellant argues that the chancellor erred in awarding appellee the right to claim the children as dependents for income tax purposes because he lacked authority to award the federal income tax dependency exemptions to appellee, the non-custodial parent, under 26 U.S.C.A. § 152(e) (Supp. 1993), which provides in subsections (1) and (2) as follows:
(e) Support test in case of child of divorced parents, etc.-
(1) Custodial parent gets exemption.-Except as otherwise provided in this subsection, if-
(A) a child (as defined in section 151 (c)(3)) receives over half of his support during the calendar year from his parents-
(i) who are divorced or legally separated under a decree of divorce or separate maintenance,
(ii) who are separated under a written separation agreement, or
(iii) who live apart at all times during the last 6 months of the calendar year, and
(B) such child is in the custody of one or both of his parents for more than one-half of the calendar year, such child shall be treated, for purposes of subsection (a), as receiving over half of his support during the calendar year from the parent having custody for a greater portion of the calendar year (hereinafter in this subsection referred to as the “custodial parent”).
(2) Exception where custodial parent releases claim to exemption for the year.-A child of parents described in paragraph (1) shall be treated as having received over half of his support during a calendar year from the noncustodial parent if-
(A) the custodial parent signs a written declaration (in such manner and form as the Secretary may by regulations prescribe) that such custodial parent will not claim such child as a dependent for any taxable year beginning in such calendar year, and
(B) the noncustodial parent attaches such written declaration to the noncustodial parent’s return for the taxable year beginning during such calendar year.
For purposes of this subsection, the term “noncustodial parent” means the parent who is not the custodial parent.
Appellant argues that, under this code section and the Supremacy Clause of the United States Constitution, state courts are without authority to grant the non-custodial parent the right to claim the children as tax exemptions. Appellant argues that, in granting appellee these exemptions, the chancellor exerted the power of taxation, which has been preempted by the federal government and is not subject to state control.
Appellant cites Blanchard v. Blanchard, 261 Ga. 11, 12-13, 401 S.E.2d 714, 717 (1991), in support of her argument that the state courts lack authority to award non-custodial parents the right to claim the children as tax exemptions. There, the Georgia Supreme Court held that, since state courts cannot exert the power of taxation, they cannot award the right to claim the exemption to the non-custodial parent. The majority of state courts which have decided this issue, however, have held that state courts may still make this determination. See Monterey County v. Cornejo, 53 Cal.3d 1271, 812 P.2d 586, 592, 283 Cal.Rptr. 405 (1991). In Serrano v. Serrano, 213 Conn. 1, 6, 566 A.2d 413, 415-16 (1989), the Connecticut Supreme Court explained:
Our analysis of whether state law frustrates the purpose of § 152(e) must start from certain well established principles of federal law. The United States Supreme Court has repeatedly held that, because the field of domestic relations has traditionally been regulated by the states, the standard for demonstrating a preempting conflict between federal law and a state domestic relations provision is high: “On the rare occasion when state family law has come into conflict with a federal statute, this Court has limited review under the Supremacy Clause to a determination whether Congress has ‘positively required by direct enactment’ that state law be preempted. Wetmore v. Markoe, 196 U.S. 68, 77, [25 S.Ct. 172, 175, 49 L.Ed. 390] (1904). A mere conflict in words is not sufficient. State family and family-property law must do ‘major damage’ to ‘clear and substantial’ federal interests before the Supremacy Clause will demand that state law be overridden.
There, the court noted that the 1984 amendments to the Internal Revenue Code set forth in 26 U.S.C.A. § 152(e) were adopted by Congress to ease the Internal Revenue Service’s administrative burden:
[S]tate courts have been allocating the exemption for decades. Moreover, as the defendant concedes, state courts developed the practice long before the Internal Revenue Code made explicit reference to it by adopting the first version of § 152(e) in 1967. In light of the great deference accorded to state courts in the area of domestic relations, we are persuaded, as the courts in a significant number of jurisdictions have held . . . that Congress would have explicitly prohibited states from allocating the exemption if it had intended to do so.
. . . [T]he purpose of the 1984 amendments was to extricate the Internal Revenue Service from the burdensome administrative function of determining the value of the child support contributions of the parties. The amendments accomplished this purpose by eliminating the exceptions that required a determination of how much the parties contributed. Thus, under the current version of § 152(e), the Internal Revenue Service no longer need determine whether a noncustodial parent to whom a state court has allocated the exemption has made child support contributions worth at least $600. In addition, the amend ments eased the administrative burden on the Internal Revenue Service by requiring that a noncustodial parent claiming the exemption attach a declaration from the custodial parent promising not to claim the exemption, thereby ensuring that both parents could not simultaneously claim the exemption.
The trial court’s order in no way frustrates the congressional objective of eliminating the involvement of the Internal Revenue Service in disputes concerning the allocation of the dependent child exemption. Under the order, the allocation is made without any involvement by the Internal Revenue Service. The trial court’s allocation imposes no cost on the federal government but rather facilitates the goal of administrative certainty by requiring that the defendant execute a declaration indicating that she will not claim the exemption. Since we find no conflict between § 152(e) and the trial court’s order, we conclude that § 152(e) is not preemptive of the practice of allocating the dependent child exemption.
213 Conn. at 9-11, 566 A.2d at 417-18 (citations omitted).
We hold that the Supremacy Clause does not prohibit state courts from providing for the allocation of dependency tax exemptions so long as they do so through the exercise of their contempt powers. In making these determinations, chancellors may, without offending federal law, direct the custodial parent to sign a written declaration that he or she will not claim their children as dependents for tax purposes. See 26 U.S.C.A. § 152(e)(2). Although such orders by the chancellor cannot change the allocation of dependency exemptions as far as the Internal Revenue Service is concerned, compliance with such orders by custodial parents may be enforced through the chancery courts’ contempt powers.
Although we have the power to decide chancery cases de novo on the record before us, we may, in appropriate cases, remand such cases for further action. Black v. Black, 306 Ark. at 215, 812 S.W.2d at 483. We think that this case should be remanded for the chancellor to reconsider the dependency tax exemption issue. If, on remand, he deems it appropriate, the chancellor may, in keeping with the Internal Revenue Code, direct appellant to sign the necessary written release. If the chancellor decides on remand, however, not to require appellant to release the exemptions, he must consider the fact that the loss of the dependency exemptions would, most likely, cause appellee to be liable for more income taxes and would necessitate increased withholding of federal and state taxes from his pay checks. Since that would reduce his take-home pay, an appropriate adjustment of his child support obligation would be in order. Therefore, the chancellor may take evidence regarding the reduction in appellee’s take-home pay if the chancellor decides not to order appellant to release the dependency exemptions to appellee.
Affirmed in part; remanded in part.
Mayfield and Robbins, JJ., agree.
Appellant has not argued that, in granting appellee these exemptions, the chancellor violated the terms of the Arkansas Supreme Court’s per curiam order, In re: Guidelines for Child Support Enforcement, 305 Ark. 613, 804 S.W.2d XXIV (1991). In that per curiam, the supreme court stated: “Allocation of dependents for tax purposes belongs to the custodial parent unless the parties otherwise agree. See Sec. 152(e) of the Internal Revenue Code.” 305 Ark. at 617-18, 804 S.W.2d at XXVIII. Because, in regard to this point on appeal, appellant has made no argument concerning state child support guidelines, we need not decide the effect of this per curiam on this appeal. | [
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John Mauzy Pittman, Judge.
This appeal is from an order of the Dallas County Circuit Court which awarded appellant judgment against defendant Joe Alexander but not against appellees, Avanell Looney and Rita Alexander. Appellant contends that, under the terms of Ark. Code Ann. § 4-27-204 (Repl. 1991), appellees were strictly liable for J&R Construction, Inc.’s debt to him. We initially certified this case to the Arkansas Supreme Court pursuant to Rule l-2(a)(3) of the Rules of the Arkansas Supreme Court [formerly Ark. Sup. Ct. Rule 29(l)(c)] as one involving construction of a statute. However, the supreme court declined to accept jurisdiction and remanded the case to this court for decision. We affirm.
On February 1,1988, appellant, Robert L. Harris, sold his business and its assets to J&R Construction. The articles of incorporation for J&R Construction were signed by the incorpo-rators on February 1,1988, but were not filed with the Secretary of State’s office until February 3,1988. In 1991, J&R Construction defaulted on its contract and promissory note, and appellant sued the incorporators of J&R Construction, Joe Alexander and appellees, Avanell Looney and Rita Alexander, for judgment jointly and severally on the corporation’s debt of $49,696.21. In his amended complaint, appellant alleged that the incorporators were jointly and severally liable for the debt of J&R Construction because its articles of incorporation had not been filed with the Secretary of State’s Office at the time Joe Alexander, on behalf of the corporation, entered into the contract with appellant. After a bench trial, the circuit court held that Joe Alexander was personally liable for the debts of J&R Construction because he was the contracting party who dealt on behalf of the corporation. The court refused, however, to hold appellees, Avanell Looney and Rita Alexander, liable, because neither of them had acted for or on behalf of the corporation pursuant to Ark. Code Ann. § 4-27-204 (Repl. 1991).
On appeal, appellant contends that the trial court erred in not holding appellees jointly and severally liable, along with Joe Alexander. It was undisputed that the contract and promissory note were signed by Joe Alexander on behalf of J&R Construction and that J &R Construction had not yet been incorporated when the contract was executed. Appellant concludes that, because Arkansas law imposes joint and several liability on those purporting to act as or on behalf of a corporation knowing there is no incorporation, the trial court erred in not also awarding him judgment against appellees.
In support of his argument, appellant cites Thompson v. Robinson Tube Fabricating Co., 238 Ark. 996, 386 S.W.2d 926 (1965), where the supreme court held that:
“[Wjhere an incorporator signs a contract or agreement in the name of the corporation before the corporation is actually formed and the other party to the agreement believes at the time of the signing that the corporation is already formed, then the incorporators are responsible as a partnership for the obligations contained in the contract or agreement, including damages resulting from any breach of the contract on their part. . . .”
238 Ark. at 998, 386 S.W.2d at 928. See also Burks v. Cook, 225 Ark. 756, 284 S.W.2d 855 (1955); Whitaker v. Mitchell Mfg. Co., 219 Ark. 779, 244 S.W.2d 965 (1952); Gazette Publishing Co. v. Brady, 204 Ark. 396, 162 S.W.2d 494 (1942); but see Rainwater v. Childress, 121 Ark. 541, 182 S.W. 280 (1915) (holding that signers to a subscription contract are not liable as stockholders in a de facto corporation). These cases, however, were decided before the Arkansas General Assembly had specifically addressed the issue of liability of individuals for preincorpo-ration debt.
In 1987, the Arkansas General Assembly passed Act 958 which adopted the Arkansas Business Corporation Act. Section 204 of this Act, Ark. Code Ann. § 4-27-204, concerns liability for pre-incorporation transactions and is identical to Section 2.04 of the Revised Model Business Corporation Act. It states: “All persons purporting to act as or on behalf of a corporation, knowing there was no incorporation under this Act, are jointly and severally liable for all liabilities created while so acting.” The official comment to § 2.04 of the Revised Model Business Corporation Act explains:
Earlier versions of the Model Act, and the statutes of many states, have long provided that corporate existence begins only with the acceptance of articles of incorporation by the secretary of state. Many states also have statutes that provide expressly that those who prematurely act as or on behalf of a corporation are personally liable on all transactions entered into or liabilities incurred before incorporation. A review of recent case law indicates, however, that even in states with such statutes courts have continued to rely on common law concepts of de facto corporations, de jure corporations, and corporations by estoppel that provide uncertain protection against liability for preincorporation transactions. These cases caused a review of the underlying policies represented in earlier versions of the Model Act and the adoption of a slightly more flexible or relaxed standard.
Incorporation under modern statutes is so simple and inexpensive that a strong argument may be made that nothing short of filing articles of incorporation should create the privilege of limited liability. A number of situations have arisen, however, in which the protection of limited liability arguably should be recognized even though the simple incorporation process established by modern statutes has not been completed.
. . . [I]t seemed appropriate to impose liability only on persons who act as or on behalf of corporations “knowing” that no corporation exists. Analogous protection has long been accorded under the uniform limited partnership acts to limited partners who contribute capital to a partnership in the erroneous belief that a limited partnership certificate has been filed. UNIFORM LIMITED PARTNERSHIP ACT § 12 (1916); REVISED UNIFORM LIMITED PARTNERSHIP ACT § 3.04 (1976). Persons protected under § 3.04 of the latter are persons who “erroneously but in good faith” believe that a limited partnership certificate has been filed. The language of section 2.04 has essentially the same meaning.
While no special provision is made in section 2.04, the section does not foreclose the possibility that persons who urge defendants to execute contracts in the corporate name knowing that no steps to incorporate have been taken may be estopped to impose personal liability on individual defendants. This estoppel may be based on the inequity perceived when persons, unwilling or reluctant to enter into a commitment under their own name, are persuaded to use the name of a nonexistent corporation, and then are sought to be held personally liable under section 2.04 by the party advocating that form of execution. By contrast, persons who knowingly participate in a business under a corporate name are jointly and severally liable on “corporate” obligations under section 2.04 and may not argue that plaintiffs are “estopped” from holding them personally liable because all transactions were conducted on a corporate basis.
Model Business Corporation Act Ann. § 2.04 official cmt. at 130.2-33 (3d ed. 1992).
In passing this Act, the Arkansas General Assembly adopted a heightened standard for imposing personal liability for transactions entered into before incorporation. The Act requires that, in order to find liability under § 4-27-204, there must be a finding that the persons sought to be charged acted as or on behalf of the corporation and knew there was no incorporation under the Act.
The evidence showed that the contract to purchase appellant’s business and the promissory note were signed only by Joe Alexander on behalf of the corporation. The only evidence introduced to support appellant’s allegation that appellees were acting on behalf of the corporation was Joe Alexander’s and Avanell Looney’s statements that they were present when the contract with appellant was signed; however, these statements were disputed by appellant and his wife. Appellant testified that he, his wife, Kathryn Harris, and Joe Alexander were present when the documents were signed to purchase his business and he did not remember appellee Avanell Looney being present. Kathryn Harris testified that appellees were not present when the contract was signed.
The trial court denied appellant judgment against appellees because he found that appellees had not acted for or on behalf of J&R Construction as required by § 4-27-204. The findings of fact of a trial judge sitting as the factfinder will not be disturbed on appeal unless the findings are clearly erroneous or clearly against the preponderance of the evidence, giving due regard to the opportunity of the trial court to assess the credibility of the witnesses. Arkansas Poultry Fed’n Ins. Trust v. Lawrence, 34 Ark. App. 45, 805 S.W.2d 653 (1991). From our review of the record, we cannot say that the trial court’s finding in this case is clearly against the preponderance of the evidence, and we find no error in the court’s refusal to award appellant judgment against appellees.
Affirmed.
Jennings, C.J., and Rogers, J., agree.
Arkansas Code Annotated § 4-27-203 (Repl. 1991), which provides that, “[u]nless a delayed effective date is specified, the corporation’s existence begins when the articles of incorporation are filed.” | [
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Andree Layton Roaf, Judge.
Jamie Mann, a bail bondsman, appeals from the Pulaski County Circuit Court’s decision following an appeal to that court from the Arkansas Professional Bail Bondsman Licensing Board. On September 18, 2000, the Board revoked Mann’s license after finding that he had violated Ark. Code Ann. § 17-19-210(a)(3) (Repl. 1995), which states that the Board may suspend or revoke a license if the licensee has committed a fraudulent or dishonest act or practice, or has demonstrated incompetence or untrustworthiness. The circuit court affirmed the Board’s finding that Mann had violated the statute but modified the penalty to a suspension of his license for one year. We affirm the Board’s finding that he violated the statute. Because the Board has not appealed the modification of its decision, we do not disturb the circuit court’s reduction of the penalty.
Sharon Patton was arrested in Fulton County on drug charges in June 2000 and was released on her own recognizance. On June 28, 2000, Mrs. Patton called Daniel Brown of First Arkansas Bail Bonds, Inc. (First Arkansas), and told him that she would need a bond because she was required to turn herself in to the sheriffs office the next day. On June 29, 2000, on behalf of First Arkansas, Mr. Brown wrote a $30,000 bond for Mrs. Patton. She and her friend, James Foster, signed a promissory note, security agreement, and indemnity agreement. Mrs. Patton and her husband, Richard Patton, also gave First Arkansas a mortgage on their real property in Fulton County to secure the bond.
Mrs. Patton agreed to meet Mr. Brown at his office at 6:00 p.m. on June 30, 2000, to pay the bond’s $3,000 premium. Mrs. Patton, however, did not appear at Mr. Brown’s office as they had agreed. Later that night, Mr. Foster called Mr. Brown and told him that another bonding company had written a second bond for Mrs. Patton and had canceled the First Arkansas bond.
Mann is an employee of Affordable Bail Bonds, Inc. (Affordable). Mann, on behalf of Affordable, wrote the second $30,000 bond for Mrs. Patton, on a long-term payment plan, on June 30, 2000. On July 1, 2000, Mrs. Patton wrote a letter to Mr. Brown, in which she stated: “On the date of conversation, I exercised my lawful right to change bail bond agents within the 3 day civil rights limitations. Since no money was exchanged on the above mentioned bond, I did have this right.”
Mr. Brown filed a complaint against Mann with the Board on July 10, 2000, which stated in part:
On July 1, 2000, Brad Parnell who is an agent with First Arkansas Bail Bond called Sharon Patton to question her about what had happened. She told him that Affordable Bail Bonds had agreed to write the bond on a long term payment plan and all she had was $800.00 and she gave that to them. She also stated that according to Jamie Mann, she had civil rights and she could void our contract within three days....
On July 6, 2000 I contacted Sharon Patton again to get the matter resolved. I asked her to explain to me what had happened. She stated “Jamie Mann called me and asked if I had paid any money to First Arkansas and I replied no, I am on my way to pay them $800.00.” He advised her not to pay us any money because our contract was no good if no money has changed hands. He the [sic] advised her to go to the jail and surrender herself and he would write the bond on a long term payment plan on the premium.
The Board notified Mann of the complaint, and he filed a responsive affidavit in which he denied any wrongdoing. After sending Mann notice of probable cause to conduct a hearing, the Board conducted a hearing on September 8, 2000. Its decision included the following findings of fact:
7. Later that night [June 30, 2000], Mr. Brown received a call from co-signer James Foster stating that another bonding company had written a second bond for Mrs. Patton and the other bail bondsman had “canceled the bond” written by Dan Brown and First Arkansas.
8. On July 1,2000, Mr. Brown and Brad Parnell, another agent for First Arkansas, learned that Jamie Mann and Affordable had written the second bond for Mrs. Patton on a long-term payment plan. Mr. Brown and Mr. Parnell also learned that Respondent Jamie Mann had advised Mrs. Patton that she had “civil rights” and could void her contract with First Arkansas within three days of the day the bond was written.
9. On July l,2000,Mrs.PattonforwardedalettertoMr.Brown stating she was exercising “her lawful right to change bail bond agents within the three day civil rights limitations” and stating she had this right since no money had exchanged hands on the bond written by Mr. Brown.
10. Respondent Jamie Mann encouraged Mrs. Patton to surrender herself so her bond with First Arkansas would be canceled and he could bond her out a second time. Respondent Jamie Mann provided legal advice to Mrs. Patton regarding the consequences of attempting to cancel her bond with Mr. Brown and First Arkansas.
11. Mr. Brown and First Arkansas never agreed to have Mrs. Patton’s bond written by Mr. Brown on June 29,2000 canceled.
The Board concluded that Mann had violated Ark. Code Ann. § 17-19-210(a)(3) and revoked his license. It did not hold Affordable responsible for Mann’s acts. Mann appealed the Board’s decision to the circuit court, which found that substantial evidence supported the Board’s findings of fact and its conclusion that Mann had violated Ark. Code Ann. § 17-19-210(a)(3). It found the revocation of Mann’s license, however, to be “unduly harsh” and modified the penalty to a one-year suspension. Mann appealed from the circuit court’s decision; however, the Board has not filed a cross-appeal of the decision modifying its penalty.
Arkansas Code Annotated section 25-15-212(h) (Repl. 2002) provides that we may reverse or modify an administrative agency’s decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the agency’s statutory authority; (3) made upon unlawful procedure; (4) affected by other error or law; (5) not supported by substantial evidence of record; or (6) arbitrary, capricious, or characterized by abuse of discretion. See Dep’t of Human Servs. v. Parker, 88 Ark. App. 222, 197 S.W.3d 33 (2004).
Our review is limited in scope and is directed not to the circuit court but to the decision of the administrative agency. Tomerlin v. Nickolich, 342 Ark. 325, 27 S.W.3d 746 (2000). It is not the role of the circuit courts or the appellate courts to conduct a de novo review of the record; rather, review is limited to ascertaining whether there is substantial evidence to support the agency’s decision. Id. Substantial evidence has been defined as valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion and force the mind to pass beyond conjecture. Id. The challenging party has the burden of proving an absence of substantial evidence. Id. To establish an absence of substantial evidence to support the decision, the chai- lenging party must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. Id. The question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made. Id. It is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord the evidence. Id. We review the entire record in making this determination. Id. In reviewing the record, we give the evidence its strongest probative force in favor of the agency’s ruling. Van Curen v. Arkansas Prof'l Bail Bondsman Licensing Bd., 79 Ark. App. 43, 84 S.W.3d 47 (2002). Between two fairly conflicting views, even if the reviewing court might have made a different choice, the Board’s choice must not be displaced. Id.
Administrative actions may be considered arbitrary and capricious when they are not supported by any rational basis or hinge on a finding of fact based on an erroneous view of the law. Id. To set aside an agency decision as arbitrary and capricious, the party challenging the action must prove that it was willful and unreasoned action, without consideration, and with a disregard of the facts and circumstances of the case. Id. The requirement that an administrative decision not be arbitrary and capricious is less demanding than the requirement that it be supported by substantial evidence. Id. An action is not arbitrary simply because the reviewing court would have found differently. Id. If the Board’s decision to revoke Mann’s license is supported by substantial evidence, it necessarily follows that it is not arbitrary and capricious. Id.
Bail bondsmen and bail-bond companies are required to conduct their bail-bond businesses in conformity with the statutes governing the profession, Ark. Code Ann. § 17-19-101 through 17-19-402 (Repl. 2001 and Supp. 2003), and the rules and regulations promulgated pursuant to Ark. Code Ann. § 17-19-106 (Repl. 2001), the Arkansas Professional Bail Bond Company and Professional Bail Bondsman Licensing Act. The Act provides that the Board has the authority to administer and enforce the statutes, as well as the rules and regulations promulgated thereunder, in order to carry out its duty of licensing and regulating professional bail bondsmen and professional bail-bond companies. See Arkansas Prof'l Bail Bondsman Licensing Bd. v. Frawley, 350 Ark. 444, 88 S.W.3d 418 (2002).
Administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures to determine and analyze underlying legal issues affecting their agencies, and this recognition accounts for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency. Arkansas Prof'l Bail Bondsman Licensing Bd. v. Oudin, 348 Ark. 48, 69 S.W.3d 855 (2002). Because decisions regarding the licensing of bond companies and their employees turn on executive wisdom, it is appropriate to limit the scope of review on appeal. Tomerlin v. Nickolich, supra.
With these principles in mind, we consider Mann’s argument on appeal that the Board’s findings are not supported by substantial evidence. Mann asserts that the simple act of knowingly writing a second bond is not expressly prohibited by statute or regulation. Mann also contends that the Board violated his due-process rights in revoking his license because his actions were not prohibited by law. The abstract and addendum do not demonstrate that the Board ruled on this argument. Failure to obtain a ruling will preclude even a constitutional issue’s being considered on appeal. Technical Servs. of Ark., Inc. v. Pledger, 320 Ark. 333, 896 S.W.2d 433 (1995).
Arkansas Code Annotated section 17-19-210(a)(3) provides that the Board may revoke a bondsman’s license if he has committed any fraudulent or dishonest acts or practices or has demonstrated his incompetence or untrustworthiness to act as a licensed bondsman. Mann denied having done anything improper or untrustworthy but admitted that he had agreed to write Mrs. Patton’s second bond and had completed the paperwork, “short of writing the bond,” when he met her at the jail on the evening of June 30, 2000. He argued that he had not actually written the second bond before the first bond “was surrendered” and denied telling Mrs. Patton that she had the legal right to cancel the first bond.
At the hearing, Mrs. Patton was less sure of Mann’s advice than she had been when the Board’s investigator interviewed her about her “civil rights,” and about his encouragement to surrender herself on First Arkansas’s bond so that it would be canceled. She admitted that she had told the investigator on July 31, 2000, that Mann had been aware of the original bond and that he had informed her that, if she had not yet given Mr. Brown any money, she had a “three-day civil right” to change bondsmen. Mr. Foster also admitted at the hearing that he had previously informed the investigator about a discussion of this alleged right with Mann.
Obviously, the Board did not believe Mann’s denial of having told Mrs. Patton that she could cancel the first bond within three days. In light of Mrs. Patton’s and Mr. Foster’s reluctant admissions that they had told the Board’s investigator that Mann had done so, and deferring to the Board’s prerogative to assess the credibility of the witnesses and weigh the evidence, we hold that the Board’s findings that Mann encouraged Mrs. Patton to cancel her first bond and that he violated the statute are supported by substantial evidence.
Mann further contends that, even if there is substantial evidence that he violated the statute, the revocation of his license was an abuse of the Board’s discretion. He asserts that a more appropriate penalty would have been a fine as permitted by Ark. Code Ann. § 17-19-211 (Repl. 2001). In response, the Board states that revocation was appropriate because Mann’s license had been suspended within the previous twenty-four months. At the hearing, the assistant attorney general asked the Board to find Mann guilty and “revoke his license, just as [it] did before.” Arkansas Code Annotated section 17-19-210(d) provides: “If the board finds that one (1) or more grounds exist for the suspension or revocation of a license and that the license has been suspended within the previous twenty-four (24) months, then the board shall revoke the license.” The issue of his earlier suspension, however, was not fully developed before the Board, and therefore, we will not consider it.
With regard to the Board’s decision to revoke Mann’s license, we note that the Board has not appealed from the circuit court’s modification of the revocation to a one-year suspension, which was within the circuit court’s powers set forth in Ark. Code Ann. § 25-15-212(h). See Baxter v. Arkansas State Bd. of Dental Exam’rs, 269 Ark. 67, 598 S.W.2d 412 (1980); Arkansas State Bd. of Pharmacy v. Isely, 13 Ark. App. 111, 680 S.W.2d 718 (1984). The Board, of course, had the burden of appealing from the circuit court’s reduction of the penalty but failed to do so. Because it did not file a cross-appeal, we are without jurisdiction to address the argument made in its brief that this court should reinstate its penalty, the revocation of Mann’s license. Brown v. Minor, 305 Ark. 556, 810 S.W.2d 334 (1991). See also Boothe v. Boothe, 341 Ark. 381, 17 S.W.3d 464 (2000); Slaton v. Slaton, 336 Ark. 211, 983 S.W.2d 951 (1999); Egg City of Ark., Inc. v. Rushing, 304 Ark. 562, 803 S.W.2d 920 (1991). See also Wren v. Sanders Plumbing Supply, 83 Ark. App. 111, 117 S.W.3d 657 (2003); McHalffey v. Nationwide Mut. Fire Ins. Co., 76 Ark. App. 235, 61 S.W.3d 231 (2001); Broadhead v. McEntire, 19 Ark. App. 259, 720 S.W.2d 313 (1986). In Van Curen v. Arkansas Professional Bail Bondsman Licensing Board, supra, we affirmed the circuit court’s affirmance of the Board’s revocation of the bondsman’s license but refused to address that portion of the circuit court’s decision reversing the Board’s directive that the bondsman return a bond premium because the Board had not cross-appealed from that aspect of the court’s decision.
Accordingly, we hold that the effect of the Board’s failure to cross-appeal from the circuit court’s reduction of the revocation of Mann’s license to a one-year suspension is to leave the court’s modification of the penalty intact. See also Arkansas State Bd. of Pharmacy v. Isely, supra (declining to address the two findings of the Board that the circuit court found to be supported by substantial evidence because neither party had appealed on those issues). We thus need not address Mann’s argument that the revocation of his license was an abuse of the Board’s discretion.
For these reasons, we affirm the Board’s decision as modified by the circuit court.
Affirmed.
Robbins and Bird, JJ., agree.
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Robert J. Gladwin, Judge.
Appellant Arkansas Depart-E jnent of Human Services (DHS) appeals the entry of an order of the Lincoln County Circuit Court that found appellee Ronald Parker should have his name removed from the child-abuse registry. The ruling was based upon the circuit judge’s finding that Parker, as a stepparent acting at the direction of and in concert with the natural mother in their household, was merely disciplining the children. Because the judge found that the administrative law judge (ALJ) erred in not including Parker in the exception allowing for reasonable and moderate discipline by a parent or guardian, he expunged Parker’s name from the child-abuse registry. From that decision comes this appeal with DHS arguing that the agency’s decision should be reinstated. We disagree.
This court’s review is limited in scope and is directed not to the decision of the circuit court but to the decision of the administrative agency. Arkansas Cont. Lic. Bd. v. Pegasus Renovation Co., 347 Ark. 320, 64 S.W.3d 241 (2001); Tomerlin v. Nickolich, 342 Ark. 325, 27 S.W.3d 746 (2000). Review is limited to ascertaining whether there is substantial evidence to support the agency’s decision. Tomerlin v. Nickolich, 342 Ark. at 331, 27 S.W.3d at 749; Arkansas Bd. of Exam’rs v. Carlson, 334 Ark. 614, 976 S.W.2d 934 (1998); Arkansas Dep’t of Human Servs. v. Thompson, 331 Ark. 181, 959 S.W.2d 46 (1998). We review the entire record in making that determination. Arkansas Bd. of Exam’rs v. Carlson, supra.
Administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures to determine and analyze underlying legal issues affecting their agencies, and this recognition accounts for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency. Tomerlin v. Nickolich supra. Administrative decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. McQuay v. Arkansas State Bd. of Architects, 337 Ark. 339, 989 S.W.2d 499 (1999). These standards are consistent with the provisions of the Administrative Procedure Act codified at Ark. Code Ann. §§ 25-15-201 to 25-15-214.
Under the Administrative Procedure Act, the circuit court or appellate court may reverse the agency decision if it concludes:
(h) [T]he substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
Ark. Code Ann. § 25-15-212(h) (Repl. 1996).
Substantial evidence is defined as “valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion, and force the mind to pass beyond conjecture.” Tomerlin, 342 Ark. at 333, 27 S.W.3d at 751 (quoting Arkansas State Police Comm’n v. Smith, 338 Ark. 354, 362, 994 S.W.2d 456, 461 (1999)). To establish an absence of substantial evidence, the challenging party must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. Id. We review the entire record in making this determination. Arkansas Alcoholic Beverage Control Bd. v. Muncrief, 308 Ark. 373, 825 S.W.2d 816 (1992). Although an agency’s interpretation of a statute is highly persuasive, where the statute is not ambiguous, we wih not interpret it to mean anything other than what it says. Social Work Licensing Bd. v. Moncebaiz, 332 Ark. 67, 71, 962 S.W.2d 797, 799 (1998).
With these rules of law, the evidence that was presented at the administrative level must be examined. On January 21, 2003, an abuse hotline report was made indicating that appellant’s stepchildren had been abused. Appellant admitted that he used a belt to spank eight-year-old H.H., six-year-old C.P., and three-year-old I.P. for misbehaving Appellant was married to their mother, and the children resided in their home. On that particular day, the children’s mother told appellant that the children had misbehaved ah day and, after having given them three warnings, she gave them “one lick,” which was ineffective. After discussing what to do, they agreed that he would give them “three licks” with a belt, and acting in a rational manner, he administered that punishment. Both appellant and his wife denied that any child was slapped.
The hotline call was attributed to the children’s maternal grandmother, who did not like appellant. A family services worker came out the next day to investigate. She was told by H.H. and I.P. that their stepfather slapped I.P. in the face for her misbehaving, but C.P. denied that it occurred. They all believed that they had been spanked with a belt for disobeying their mother. The worker said that she observed and photographed the children’s behinds and noted that there were linear bruise marks consistent with a belt on H.H. and C.P. There were no marks on I.P.’s face or buttocks. The photos were not admitted into evidence. The worker opined that the marks were “minor and transient” and that the abuse investigation should be found untrue.
On this evidence, the agency found that a preponderance of the evidence supported a finding of abuse against appellant with regard to only H.H. and C.P. because of the spanking with a belt. The ALJ defined abuse in this context as any person inflicting on a child “any injury which is at variance with the history given.” Ark. Code Ann. § 12-12-503(2)(A)(iv) (Repl. 2003) (emphasis in administrative opinion.). The ALJ further cited to subsection (2)(C)(i), (iii), and (iv) (Repl. 2003) which provides that abuse does not include:
[Discipline of a child when it is reasonable and moderate and is inflicted by a parent or guardian for purposes of restraining or correcting the child . . . Reasonable and moderate physical discipline inflicted by a parent or guardian shall not include any act that is likely to cause and which does cause injury more serious than transient pain or minor temporary marks . . . The age, size, and condition of the child and the location of the injury and the frequency or recurrence of injuries shall be considered when determining whether the physical discipline is reasonable or moderate [.]
(Emphasis in administrative opinion.)
The administrative officer specifically found that appellant, as a stepfather, did not enjoy the protection of this reasonable-and-moderate-discipline exception. He appealed, and the circuit court found that he did fall within the discipline portion of the statute. DHS appealed to our court.
The argument on appeal by DHS focuses on DHS’s belief that appellant slapped three-year-old I.P. in the face to uphold the finding of abuse, a finding not made by the ALJ. This is specifically a basis to find abuse, with or without injury, where the child is age six or under. Ark. Code Ann. § 12-12-503(2)(A)(vii)(a) (Repl. 2003). However, we are limited to the ALJ’s findings: that only H.H. and C.P. suffered “an injury at variance with the history.” I.P. was not the subject of this administrative finding.
DHS also argues that the ALJ was correct to exclude the exception. Appellant initially claims that appellee failed to preserve this issue for appeal. We hold that this issue is preserved.
Appellee argues that the ALJ incorrectly found that he committed abuse. He contends that there is no substantial evidence to support the ALJ’s finding.
The ALJ, in making his finding, defined the abuse in this context as any person inflicting on a child “any injury which is at variance with the history given.” The bruising here was not at variance with the history given. It was undisputed that appellee spanked the two older children, and as a result they sustained bruises on their buttocks. That injury is entirely consistent with the history given. As a result, we hold that the ALJ’s finding was arbitrary, capricious, and an abuse of discretion.
The ALJ also found that appellee should not be afforded the protection of the discipline exception of Ark. Code Ann. § 12-12-503(2)(C)(i) because he was not a parent. The statute defines “parent,” and appellant does not fit into that category; however, it does not define “guardian.” Appellant suggests that we look to Ark. Code Ann. § 28-65-101 (Repl. 2004) which provides that a “guardian” is one appointed by the court to have the care and custody of the person or the estate, or of both, or of an incapacitated person. We believe that the definition of “guardian” found in the criminal code regarding sexual offenses is more on point. Arkansas Code Annotated section 5-14-101(10) (Repl. 1997) provides:
Guardian means parent, step-parent, legal guardian, legal custodian, foster parent or anyone who, by virtue of a living arrangement is placed in an apparent position of power or authority over a minor.
Certainly, considering the definition found in the criminal statute, which is more akin to the child-abuse statute, appellee was a guardian because he was a stepparent and one who lived with the children in an apparent position of authority.
Finally, both parties cite ADHS v. Caldwell, 39 Ark. App. 14, 832 S.W.2d 510 (1992), where our court held that a student receiving three average “licks” with a paddle at school that resulted in bruising on the buttocks did not warrant a school official being placed on the child-abuse registry. That case is not relevant to our analysis because the exception applied to a school official, which is not the issue in the case at bar.
For the reasons stated above, we hold that the ALJ’s decision is not supported by substantial evidence and, accordingly, affirm the circuit court’s decision.
Affirmed.
Robbins and Vaught, JJ. agree. | [
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Karen R. Baker, Judge.
At a bench trial in Pulaski County Circuit Court, appellant, Fred Phillips, was convicted of breaking or entering in violation of Arkansas Code Annotated section 5-39-202 (Repl. 1997) and theft of property in violation of Arkansas Code Annotated section 5-36-103(a)(1), (b)(4) (Repl. 1997). He was sentenced to a term of 120 months in the Arkansas Department of Correction. Appellant’s sole point on appeal is a challenge of the sufficiency of the evidence based on the State’s fingerprint evidence.
The State’s case against the appellant was entirely circumstantial, consisting of appellant’s fingerprints found inside the passenger door of the car along the top edge of the window where the window meets the rubber seal. The supreme court has affirmed convictions where the only evidence the State presented against the defendants was their fingerprints found inside the building. See Howard v. State, 286 Ark. 479, 695 S.W.2d 375 (1985) (appellant’s fingerprints were found on the glass rim of a wall inside the store where the robber had vaulted into the office booth); Ebsen v. State, 249 Ark. 477, 459 S.W.2d 548 (1970) (a burglar broke a pharmacy’s plate glass window to gain entry, and appellant’s fingerprints were found on a large piece of broken glass found inside the building).
The test for determining the sufficiency of the evidence is whether substantial evidence, direct or circumstantial, supports the verdict. Dye v. State, 70 Ark. App. 329, 331, 17 S.W.2d 505, 507 (2000). Substantial evidence is that which is of sufficient force to compel reasonable minds to reach a conclusion beyond suspicion and conjecture. Id. Circumstantial evidence may constitute substantial evidence to support a conviction. Medlock v. State, 79 Ark. App. 447, 456, 89 S.W.3d 357, 363 (2002). The evidence must exclude every other reasonable hypothesis than that of the guilt of the accused, and the question of whether it does is for the trier of fact to decide. Id. On review, this court must determine whether the fact-finder resorted to speculation and conjecture in reaching its verdict. Id. It is in the province of the fact-finder to determine the weight of the evidence and the credibility of witnesses. Johnson v. State, 337 Ark. 196, 202, 987 S.W.2d 694, 698 (1999).
Applying the case law to the facts of this case, we cannot say that the fact-finder resorted to speculation and conjecture in reaching its verdict. On April 17, 2002, Detective Mickey Schuetzle with the North Little Rock Police Department found his personal car in his apartment parking lot with the passenger door partially open. He testified that the vehicle had been secured the previous evening around 9:00. He approached the car and discovered that it appeared to have been broken into, and that items of personal property were strewn about inside the car, and eventually ascertained that approximately fifty compact discs were taken from his car. He did not observe any damage to the car door.
Upon discovering that his car had been broken into, Detective Schuetzle notified his supervisor and began to process the car for physical evidence. The Detective’s police car was parked next to his personal car and contained all the items necessary to collect the evidence. He took photographs of the exterior of the car, showing the condition and position of the door. He dusted the interior of the passenger-side window for fingerprints and located several prints along the top edge of the passenger window, where the window meets the convertible’s rubber seal. Detective Schuetzle removed the prints with fingerprint tape and attached the tape to fingerprint evidence cards. He did not fill out the back of the fingerprint-evidence cards, but stated the only place in the car that he took fingerprints was from the interior of the passenger window. He took the fingerprint-cards directly to the North Little Rock Police Department, where he completed an evidence envelope and sealed the fingerprint-cards awaiting their submission to the crime lab. He then placed the sealed envelope in a locked filing cabinet until he could take it to the state crime lab.
The analysis of the fingerprint evidence cards by the Arkansas State Crime Laboratory revealed three valuable prints, and one with sufficient value that could be entered into the Automatic Fingerprint Identification System. The fingerprints collected from the interior passenger window of the car matched appellant’s fingerprints.
Appellant’s argument for reversal relies upon the Standridge v. State, 310 Ark. 408, 837 S.W.2d 447 (1992), in which the court held that a fingerprint found on an easily movable cup located several feet away from marijuana plants was insufficient to compel the conclusion that the defendant was engaged in the manufacture of marijuana. Our supreme court found it significant that the State’s fingerprint expert stated that the cup could have been located anywhere in the world when the defendant touched it. The witness also testified that the print could have been made up to a year earlier.
Unlike Standridge, appellant’s fingerprints were not found on an easily moveable object, but were located at the apparent location of entry to the car, the location of the crime, on the interior of the car’s window. The photographs of the car that Schueltze took just after discovering the break-in show that its exterior was covered with dew, but the interior of the car was dry. The fingerprint analyst testified that a fingerprint or latent print is nothing more than almost one hundred percent water. The analyst testified that moisture is detrimental to obtaining a print, unless the print is a greasy print in which case there’s a possibility that the print would not be totally destroyed by the moisture. While the analyst also testified there was no way of telling whether the print analyzed was from grease or moisture, there was no evidence that there was moisture in the interior of the car from where the print was taken.
Because appellant’s fingerprint was located at the apparent point of entry into the car, the fingerprint was placed while the window was dry and it was not degraded by the morning dew, and from its location and position the trier of fact could reasonably infer that the person had pried the window back to gain entry to the car where there was no damage to the car door itself, we cannot say that the fact-finder resorted to speculation and conjecture.
Accordingly, we affirm.
Pittman, Robbins and Vaught, JJ., agree.
Hart and Roaf, JJ., dissent. | [
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Karen R. Baker, Judge.
This is an appeal from an order denying costs and attorney fees to a party who successfully obtained judicial enforcement of rights pursuant to the Arkansas Freedom of Information Act. While we affirm the denial of expenses as explained below, we first address the fact on May 12,2004 that the Arkansas Department of Human Services (“the Department”) submitted a motion to dismiss this appeal, based upon appellant’s failure to file trial transcripts as part of the record on appeal. This court by letter order passed on the motion until the case was submitted. The Department resubmitted that motion on September 27, 2004, and the case was submitted to us on September 29, 2004. Appellant responded that none of the testimony adduced at the hearing concerned the legal issue on appeal. If the Department believes a record to be insufficient, the appropriate remedy is to supplement the appeal record, not to request dismissal of the appeal. See Cobbs v. Arkansas Dep’t of Human Servs, 87 Ark. App. 188, 189 S.W.3d 487 (2004); Ark. R. App. P.—Civil 3, 6.
Appellant, Mark George, filed a lawsuit to obtain public records from the Arkansas Department of Human Services pursuant to the Arkansas Freedom of Information Act. A hearing was held on April 25, 2003, and the trial court found appellant to be the prevailing party, but refused to award attorney fees, finding that it had no authority to do so. On that same day, but after trial, appellant amended his complaint to specifically name Roy Jeffus as a party in both his individual capacity and as Interim Director of the Division of Medical Services of the Department and served Roy Jeffus with the amended complaint on April 29, 2003. The Department and Mr. Jeffus answered the amended complaint on April 30, 2003, in a joint answer signed as submitted by the Department by Chief Deputy Counsel.
The answer affirmatively pled that the parties rested and that the trial court announced its decision prior to the filing of the amended complaint, and that post-trial complaint amendments are to conform the pleadings to issues tried by express or implied consent. The answer asked that the amendment be struck, but no motion to strike was ever filed. The written order memorializing the court’s ruling was filed on July 14, 2003, and lists only the Department as the defendant.
Motions for fees were filed July 25 with the amended title of the cause of action including Mr. Jeffus, with appellant asking the court to assess the fees against Mr. Jeffus and alleging that the FOIA does not exempt officers or employees of state agencies from its provision on costs and attorney fees. The Department answered with just the Department listed as a Defendant. On page three of its Brief in Support regarding fees at the trial level, the Department noted that the amendment was filed solely as a predicate to appellant’s pending motion seeking costs and attorney fees, and since there was no proceeding or adjudication regarding Mr. Jeffus personally, there was no basis for an award against Mr. Jeffus.
The trial court itself prepared a precedent filed September 26, 2003, denying the Motion for Costs and Attorney Fees and citing Ark. Code Ann. § 25-19-107(d) and its prohibition that “. . . no expenses shall be assessed against the State of Arkansas or any of its agencies or departments.” The trial court’s precedent identified the Department and Roy Jeffus as “Respondent.”
No order specifically accepted the amendment. No separate motion to strike was filed and no order striking the amended complaint and answer was ever entered.
The style of the appeals case identifies the appellee as Roy Jeffus, in his individual capacity and in his official capacity as Interim Director of the Division of Medical Services of the Department, and Chief Counsel of the Department submitted the Brief of Appellee. The Department is not an appellee, but submits the brief on behalf of appellee. Appellant’s point on appeal is that the circuit court erred in concluding that a state officer is a state agency or department against whom reasonable attorney’s fees and litigation expenses may not be awarded under the Arkansas Freedom of Information Act. The appellee argues that a suit against Mr. Jeffus in his individual capacity cannot be maintained because he was not individually included at the time of the trial.
Appellant amended his original complaint to include Mr. Jeffus, stating that Mr. Jeffus would have been named originally as a party but for an agreement between the counsel for the Department and counsel for appellant stating that it would not be necessary for appellant to sue Mr. Jeffus individually in order for appellant to recover attorney fees. Rule 15 of the Arkansas Rules of Civil Procedure permits amendments to conform to the pleadings “when issues not raised by the pleadings are tried by express or implied consent of the parties.” In such a situation, those issues “shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment[.]” However, this Rule presupposes that these issues were “tried by express or implied consent of the parties.” See, e.g., Shinn v. First Nat’l Bank of Hope, 270 Ark. 774, 606 S.W.2d 154 (Ark. App.1980) (noting that the rule has been interpreted as permitting a defendant to raise a counterclaim, even after judgment, so long as it was clear that all the relevant evidence was in the record or the issue was clearly one the parties contemplated as being before the court).It is unclear from the record whether the trial court acknowledged the amended complaint and accepted that the parties had expressly or impliedly tried the matter including Mr. Jeffus. However, we need not address the issue because even if Mr. Jeffus had been properly included as a party, appellant could not prevail.
Pursuant to Ark. Code Ann. § 25-19-107(a), any citizen who is denied the rights granted to him under the FOIA, may appeal from the denial to circuit court. In any such action to enforce the rights granted in the FOIA, the court shall assess against the defendant reasonable attorneys fees and other litigation expenses incurred by a plaintiff who has substantially prevailed. Ark. Code Ann. § 25-19-107(d). However, the statute specifically provides that “no such expenses may be assessed against the State of Arkansas, or any. of its agencies or departments. Id.
The Arkansas Department of Human Services is a department of the State of Arkansas. Furthermore, a suit against a state official in his official capacity is not a suit against that person but is rather a suit against that official’s office. Fegans v. Norris, 351 Ark. 200, 206, 89 S.W.3d 919, 924 (2002). Thus, no award of attorney’s fees may be assessed against a state official in his official capacity under Ark. Code Ann. § 25-19-107(d).
Neither could appellant prevail in an action against Mr. Jeffus in his individual capacity. In his individual capacity, Mr. Jeffus had no administrative control of the data elements from which any record responsive to appellant’s FOIA request would be created or provided. Any request made to Mr. Jeffus as an individual would be outside the scope of the FOIA since the Act pertains to “public” documents and the “custodian” of the public records as “the person having administrative control of that record.” As an individual, Mr. Jeffus would have no administrative control of the public records. He would have control of the public records only in his official capacity.
Consequently, the trial court did not err when it denied appellant’s motion for costs and attorney fees. Accordingly, we affirm.
Hart and Bird, JJ., agree. | [
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John B. Robbins, Judge.
Appellant Keith Tenner was conJ victed of reckless driving and driving while intoxicated, and was ordered to pay fines and costs totaling $800.00. He appeals from his DWI conviction, arguing that the trial court erred in denying his challenge to the admissibility of the result of the chemical test, which indicated a positive urine screen for cannabinoids. Mr. Tenner argues now, as he did below, that the test result was inadmissible because there was no proof that the test was performed according to a method approved by Arkansas Department of Health, or by an individual possessing a valid permit from the Health Department. We agree, and therefore we reverse and remand.
Pursuant to Ark. Code Ann. § 5-65-204(b) (Supp. 2003), a provision of our Omnibus DWI Act, “Chemical analyses of the person’s blood, urine, or breath to be considered valid under the provisions of this act shall have been performed according to methods approved by the Department of Health or by an individual possessing a valid permit issued by the Department of Health for this purpose.” When a defendant challenges the admissibility of evidence under this section, it is the State’s burden to establish the validity of the chemical analysis. See Caffey v. State, 43 Ark. App. 160, 862 S.W.2d 293 (1993).
This case was submitted to the trial court on stipulations by the parties. Mr. Tenner was arrested on December 14, 2001, and charged with reckless driving and DWI. The State introduced a report signed by toxicologist Don Riddle of the Arkansas State Crime Lab, which indicated that Mr. Tenner’s urine tested positive for cannabinoids. In response to Mr. Tenner’s challenge to the admissibility of the report, the State cited Arkansas Dep’t of Health, Arkansas Regulations for Blood Alcohol Testing, § 1.21(b), which provides, “It is not required that the state medical examiner, his staff, or the State Crime Laboratory be certified, nor shall they be limited by these Regulations.” Because the test at issue was conducted by the State Crime Lab, the State argued that Ark. Code Ann. § 5-65-204(b) was inapplicable. In denying Mr. Ten ner’s objection to the admission of the report, the trial court found that “the State Crime Lab has a valid permit to conduct such analysis.”
We agree with Mr. Tenner’s argument that the State failed to establish admissibility of the report. The exclusion referenced by the State is limited to the Health Department’s regulations for alcohol testing. In this case, the chemical analysis was for an intoxicant other than alcohol, and the State failed to identify any applicable exclusion pertaining to the State Crime Lab or its staff. Thus, it was incumbent on the State to show, pursuant to Ark. Code Ann. § 5-65-204(b), that the chemical analysis was performed according to methods approved by the Department of Health or by an individual possessing a valid permit issued by the Department. The State proved neither, and we thus hold that the trial court erred in finding the test to be admissible.
Reversed and remanded.
Gladwin and Vaught, JJ., agree. | [
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Elizabeth W. Danielson, Judge.
The appellants, Lawrence and Betty Fox, executed an oil and gas lease to Diamond Shamrock Corporation, which was subsequently assigned to the appellee/cross-appellant, Noel Nally. The granting clause in the lease gave the appellee the right, among other things, to drill a well and lay pipelines. The appellants and the appellee also executed a “Surface Use Agreement and Damage Release” for the sum of $3,000. .
Pursuant to the lease the appellee drilled a natural gas well and laid a pipeline from the well across the appellants’ property. The appellants then refused to allow the appellee access to the well by blocking the road leading to the well site. The appellee filed suit to enjoin the appellants from blocking his access to the well. The appellants filed a counterclaim seeking damages for the pipeline construction.
The trial court would not allow evidence as to the permanent nature of the damages caused by the pipeline, but did allow evidence as to the cost of restoration of the land to its prior condition. At the close of the evidence, the court entered judgment for the appellants in the amount of $600.
The appellants contend on appeal they should have been allowed to put on evidence of the permanent damage to their property. The appellee, on cross-appeal, contends the trial court erred in allowing testimony as to the restoration costs since there was a surface use and damage release agreement signed by the parties. We find no error and affirm.
The appellants proffered evidence of the fair market value of their land before and after construction of the pipeline. While this is the correct measure of damages if an injury is permanent, St. Louis-San Francisco Railway Co. v. Friddle, 237 Ark. 695, 375 S.W.2d 373 (1964), it is not the measure for an injury that is temporary in nature. When injury to real property is temporary, the measure of damages is the cost of restoring the property to the same condition that it was in prior to the injury. See C.R.T., Inc. v. Brown, 269 Ark. 114, 602 S.W.2d 409 (1980); Arkansas Western Gas Co. v. Foster, 254 Ark. 14, 491 S.W.2d 380 (1973). Because the appellee’s use of the pipeline is limited by the lease provisions and is subject to termination, the damage is temporary in nature and the trial court did not err in refusing to allow evidence of the before and after value of the land.
The appellee contends on cross-appeal that the appellants should not have been allowed to introduce evidence concerning the cost of restoration because the release signed by the parties covered the damages. The appellee had filled in the ditch resulting from the construction, but the appellants testified that the dirt along the pipeline had settled and they had to do additional restoration work at their own cost. The court found that the appellee had a responsibility to restore the property to substantially the same condition that it was in prior to the laying of the pipeline. The $600 award to the appellants for the additional restoration work, which was the responsibility of the appellee, is not an amount coming within the purview of the damages agreement. The court did not err in allowing evidence of the cost of restoration.
Affirmed.
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Melvin Mayfield, Judge.
This is an appeal by ConAgra from a decision of the Arkansas Board of Review holding the appellee-claimants were entitled to unemployment compensation because they were, within the meaning of the Arkansas Employment Security Law, unemployed and not on vacation for the weeks ending June 25 and July 2, 1988.
At a consolidated hearing before the Appeal Tribunal, involving these claimants and 95 other similarly-situated claimants, the appellant’s manager of human resources testified that every year since 1971, except for one, the appellant had designated a vacation period during the summer months to coincide with a shutdown of the plant’s production. Appellant has the right to do this under its bargaining unit contract.' The manager of human resources also testified that it is impossible to schedule individual vacations so the contract provides for a two-week vacation period during the summer to be fixed by appellant. On December 31, 1987, the appellant posted on the employee bulletin board a notice designating the period of June 20, 1988, through July 3, 1988, as the vacation period for 1988. Monday, July 4, 1988, was a paid holiday, therefore, no one returned to work on that day and appellant reopened for production on July 5. Appellees, who worked on the “enchilada line,” were scheduled to return to work on July 6 because, according to the appellant, they worked in a preparation area and no enchilada dinners were scheduled for production on July 5. i
In a telephone hearing conducted for the Board of Review for the claimants in this case, Jerry Honaker testified on behalf of all these claimants that the cooks must come in and “get us ready” before “my time can start”; that the cooks reported in on July 5 at 11:30 p.m.; and that the claimants started at 5:00 a.m. the next morning. Honaker testified further that they normally work from Monday through Friday, but “a lot of times” they do not come in until Tuesday due to the product that is being run on the line.
The Employment Security Division denied benefits and the Appeal Tribunal affirmed finding that appellees were not unemployed but were on vacation during the period from June 20, 1988, through July 2,1988. On appeal to the Board of Review, the decision was reversed and appellees were awarded benefits. The Board concluded:
The evidence does not establish that the first day the claimant was scheduled to return to work after the vacation period was the first work day the claimant would normally have worked after the vacation period. A finding that a claimant was to return to work the first work day that normally would be worked by that claimant after the vacation period ended is necessary to establish that the claimant was on vacation during the vacation period.
In the first place, we do not believe the first sentence of the above conclusion is supported by substantial evidence. The Board’s review of the evidence states as to each of the claimants in this case, “A written statement in the record attributable to the claimant on a Claimant’s Statement Concerning Vacation form indicates that the claimant was scheduled to report back to work on July 6.” The evidence is undisputed that no one worked on Monday, July 4, because it was a holiday. Due to the holiday and the preparation which had to be made by the cooks on July 5, the first day the claimants could have worked was July 6. We see nothing unusual or abnormal about the claimants’ return-to-work date. And in the second place, the second sentence of the Board’s conclusion, set out above, is not a correct statement of the law. Actually, it is the Board’s view of the law, as disclosed by the second statement, that caused the Board to make its first statement. This is shown by the conclusions of the Board, which immediately follow the conclusions set out above:
The evidence indicates that such a return is controlled by the employer’s production requirements. Therefore, to determine a normal return day, the first day after a weekend should be a significant indication of a normal return day after a vacation period. Otherwise, a normal return day would be subject only to a varying production schedule of the employer.
To understand the Board’s conclusions, we need to look at the Arkansas Employment Security Law. Ark. Code Ann. §11-10-214 (Supp. 1989) provides in pertinent part:
(a) As used in this chapter, unless the context clearly requires otherwise, an individual shall be deemed “unemployed” with respect to any week during which:
(1) He performs no services; and
(2) No wages are payable to him with respect to that week . . . ; and
(3) He is not on vacation. A “vacation” shall be defined as a period of temporary suspension of regular work, the period having been scheduled by, or with the consent of, the employer solely for reasons of vacation during which time the employee is either receiving vacation pay, has been paid, or will be paid vacation pay for the period at a later date or would be entitled to vacation pay for the period if he had sufficient seniority or hours of work and he is not on layoff. However, an individual who, for the sole purpose of phasing down production, is placed on a short-term layoff of three of his work days, or less, duration immediately preceding a vacation as defined in this subdivision and who is to return to work the first work day that normally would be worked by that employee after the vacation period ends shall be considered to be on vacation during the vacation period.
Here there is evidence that appellant had designated the two-week period as the “designated vacation period” and that no production was scheduled for those two weeks. It is not contended that the claimants did not receive vacation pay for the two-week period or that they did not receive holiday pay for July 4th. Nor is there any evidence that any of these claimants was placed on a “short-term layoff of three of his work days, or less, duration immediately preceding a vacation.” The evidence shows that each of them fits squarely within the definition of being on “vacation” as that term is defined in the above statute. They were on “a period of temporary suspension of regular work, the period having been scheduled by,... the employer solely for reasons of vacation during which time the employee is ... receiving vacation pay . . . and he is not on layoff.”
The conclusions to the contrary reached by the Board of Review are explained by the brief filed for the appellee-claimants by the Director of Labor. In that brief it is argued that the Employment Security Law was amended by Act 753 of 1987 to add the last sentence as above quoted from Ark. Code Ann. § 11-10-214, supra. The purpose of that sentence, the appellees’ brief states, was to add a “phase down” provision. The brief also states:
It is the Appellees’ contention that had the legislature intended for the Employment Security Law to provide for a phase up it would have stated so in the law.
So, it is clear that the Board agreed with the view taken in appellees’ brief and simply decided that the legislature intended by its silence that employees who return from vacation must be returned to work immediately without any “phase up” time. To reach this result, however, it is necessary to read language into the law that is not there. It is also necessary to find that the claimants in this case would have gone to work on Monday, July 5, if the plant had not been shut down for the vacation period and that is not supported by substantial evidence. We understand the argument in the appellees’ brief that to allow a “phase up” period after a plant has been shut down for a vacation period might conceivably leave workers out of work for several days; however, that is not the situation under the evidence in this case.
The decision of the Board of Review is reversed and this case is remanded with directions for the Board to deny the appellees’ claims for unemployment compensation.
Reversed and remanded.
Cooper and Danielson, JJ., agree. | [
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John E. Jennings, Judge.
This is an appeal from an order of the circuit court of Union County dismissing the complaint of the appellant, Emma Jean Norman, which sought judgment for $23,000.00 plus interest. The relevant facts were briefly and fairly summarized by the trial court in its letter opinion:
Mary Etta Green died on March 31,1987, at the age of 86 after a long illness. She was survived by her stepson, Raymond Green, who along with his wife are defendants. The plaintiff, Emma Jean Norman, is a nurse’s assistant who works in the South Arkansas Medical System caring primarily for the elderly. She met Mary Etta Green possibly in the 70’s, however, when Ms. Green became ill in the summer of 1986, was asked by Ms. Green to move in with her. Emma Jean Norman is married and she and her husband maintain a separate residence in Crossett.
On December 17, 1986, Ms. Green asked Ms. Norman to go to the bank and bring her a green bag. Ms. Norman was given a letter authorizing her to enter Ms. Green’s safety deposit box. It was at this point that Ms. Norman discovered that Ms. Green had $23,000.00 in the green bag. Ms. Norman removed $520.00 from the bag and took it to Ms. Green. Thereafter a lease agreement was entered into by Ms. Green and Ms. Norman in effect stating that upon the death of either the property in the box should pass to the survivor. Ms. Norman entered the safety deposit box again on 16 March, 1987, testifying that Ms. Green wanted her to check its contents in that she was concerned with Raymond Green getting into the box. Fourteen days later Ms. Green died. On 22 April, 1987, Raymond Green had the safety deposit box drilled and he removed the $23,000.00. Thereafter, Ms. Norman brought this suit for the money.
The contention on appeal is that upon the death of Ms. Green, Ms. Norman became the sole owner of the monéy contained in the safe deposit box. We affirm the decision of the trial court.
The court made the following specific findings of fact:
(1) The money was solely the property of Ms. Green. Ms. Norman made no contribution to the $23,000.00.
(2) Ms. Norman was surprised when she discovered the $23,000.00 in the safety deposit box on December ,17, 1986. Up and unto this time she was unaware that the money existed.
(3) Ms. Green was extremely ill and during her last days bedfast.
(4) At least two neighbors, Ms. Ratcliff and Ms. Powell, testified as to the attentiveness of Raymond Green to his stepmother and their close relationship.
(5) Raymond Green was listed and named in a 1982 Will of Mary Etta Green as her sole heir. This Will has been probated.
(6) Other than the testimony of Emma Jean Norman there is no evidence of any gift of the $23,000.00 to Ms. Norman, other than the lease agreement.
The court concluded that it could not rule that a joint estate was ever created in the contents of the safety deposit box and that, at best, the parties had the right to deposit objects in the box and remove them, but that the evidence fell far short of establishing joint ownership of the money with a right of survivorship.
For reversal, appellant relies on Black v. Black, 199 Ark. 609, 135 S.W.2d 837 (1940), and Newton County v. Davison, 289 Ark. 109, 709 S.W.2d 810 (1986). While we agree that those cases, together with the supreme court’s recent decision in Kulbeth v. Purdom, 305 Ark. 19, 805 S.W.2d 622 (1991), provide the framework for decision, we cannot agree that those cases require reversal here.
After discussing the facts, the court in Newton County v. Davison, said:
Based on the foregoing evidence we are unable to say that Mrs. Morak clearly intended to make a gift to the Davisons of the contents of the safe deposit box. In Black v. Black, 199 Ark. 609, 135 S.W.2d 837 (1940), we noted that there is a presumption of ownership in favor of the surviving lessee of a safe deposit box which can be rebutted by testimony to the contrary. In that case, however, the lease agreement signed by the parties renting the box specifically stated that the property placed in the box is joint property and upon the death of either joint tenant the property passes to the survivor. Such an agreement as to the contents is missing here.
Other courts have held that the deposit of articles in a jointly leased safe deposit box of itself works no change in title, absent an express agreement that the contents of the box shall be joint property. This is so even if the language in the lease describes a joint tenancy with the right of survivorship, unless it specifically refers to the contents. Similarly, it is generally held that a joint lease of a safe deposit box in and of itself is insufficient to support the contention that a gift has been made of the contents.
In finding the language of the lease and Mr. Davison’s testimony insufficient to establish ownership of the contents of the lock box, we announce our intention to require an affirmative showing that the owner of a lock box intended to give the contents of the lockbox to another. Such an intention cannot be demonstrated without a specific written reference to the disposition of the contents of a lock box and is not indicated by an agreement only to rent the box in two or more names with a right of survivorship. [Citations omitted.]
In Kulbeth, supra, the supreme court found that the requirements established in Newton County v. Davison had been met where the following provision was separated from the body of the safe deposit box lease and highlighted in bold print:
In addition to agreeing to the foregoing provisions of safe deposit box lease which are hereby made a part of this paragraph, the undersigned agree that each, or either of them is joint owner of the present and future contents of said box and said Bank is hereby authorized to permit access to said box by either of the undersigned and that in the event of the death of either of the undersigned the survivor shall have the right to withdraw said contents and upon said withdrawal said Bank shall be automatically relieved of any further obligation or responsibility to the heirs, legatees, devisees or legal representatives of the deceased. Receipt is hereby acknowledged of 2 keys to said box.
In the case at bar Ms. Green and Ms. Norman signed, as lessees, a one page pre-printed document entitled “Lease of Safe Deposit Box, Joint Tenant, including Husband and Wife.” The document’s only reference to joint tenancy is found in paragraph 10:
10. Lessor shall not be liable for any delay caused by failure of the vault doors or locks to operate.
J. C. In case the Lessees are joint tenants, including husband and wife, it is hereby declared that all property of every kind at any time heretofore or hereafter placed in said box is the joint property of both Lessees and, upon the death of either, passes to the survivor subject to inheritance tax laws. Each of the Lessees shall have full access to and the control of the contents of said box without further authority. The lessor shall not be liable, in the event that property belonging to the joint tenants having access to said box be misappropriated by one or more of those having access. Each or all of the Lessees may appoint a deputy to have access to or surrender the box. [Emphasis added.]
Clearly, the provision in paragraph 10 of the lease is conditional in nature: it states, in effect, that ifthe lessees are joint tenants, then the property contained in the box will pass to the survivor at the death of the other lessee. On the facts of the case at bar, this language is insufficient to meet the requirements of Newton County v. Davison of “an affirmative showing that the owner of a lockbox intended to give the contents of the lockbox to another.”
Appellant correctly contends that the language in Black v. Black, supra, was virtually identical to that in the case at bar. There, the lease provision began, “[i]n case the lessees are joint tenants, including husband and wife. . . The distinction between Black and the case at bar is that while the language of the lease in Black was conditional, as here, the condition was met in Black, i.e., Mr. and Mrs. Black were in fact husband and wife, so that the dispositive provisions of the clause were activated. Even so, the supreme court in Black held that the language created only a presumption that the money in the safe deposit box had become a joint estate and that, under the facts of Black, the presumption had been entirely rebutted.
Our conclusion is that under the applicable decisions of the Arkansas Supreme Court, the trial judge’s decision, that a joint tenancy with right of survivorship was not created as to the money contained within the safe deposit box, was not clearly erroneous.
Affirmed.
Cracraft, C.J., and Danielson, J., agree. | [
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George K. Cracraft, Chief Judge.
John Lee Smith appeals from his conviction of theft by receiving a motor vehicle, for which he was sentenced to a term of ten years in the Arkansas Department of Correction. He contends that the guilty verdict is not supported by substantial evidence. We agree.
In criminal cases, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the State, and will affirm if the conviction is supported by substantial evidence. Dillard v. State, 20 Ark. App. 35, 723 S.W.2d 373 (1987). Substantial evidence has been defined as evidence of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond mere suspicion or conjecture. Jones v. State, 11 Ark. App. 129, 668 S.W.2d 30 (1984).
Viewed in that light, the evidence in this case discloses that at 3:30 a.m. on May 11,1989, the Little Rock Police Department received a report that a person had been seen crouching in some bushes near a liquor store. About two blocks from the liquor store, Officer Leslie Houser observed appellant running down the street. Appellant stopped momentarily by a parked 1979 Chevrolet Malibu, which was later identified as having been stolen from the Dumas, Arkansas, residence of Mr. Bill Canada in January 1989. Appellant grabbed the driver’s side door handle, but fled around the front of the vehicle after observing the officer.
Several other officers were called to the scene and, after a lengthy pursuit, appellant was apprehended and taken to the police station. Appellant denied any knowledge of, or connection with, the stolen vehicle. He listed his nearest relative as his mother, who resided in Dumas.
At the time that the incident occurred, the vehicle was locked and the windows were up. The officers found no keys to the vehicle on appellant or elsewhere. Inside the car, the officers found tools that might have been related to a burglary, but there was no evidence to connect appellant with any of the vehicle’s contents. Twelve identifiable fingerprints were taken from the door frame, rearview mirror, and exterior of the vehicle’s trunk. One fingerprint found on a window sill on the driver’s side of the car was identified as belonging to appellant. Two of the prints found on the exterior of the trunk lid also were identified as appellant’s. It was determined that the remaining fingerprints were made by someone other than appellant.
At the close of the State’s case and at the close of all of the evidence, appellant made appropriate motions for a directed verdict, challenging the sufficiency of the evidence. The motions were denied, and the jury found appellant guilty of theft by receiving. The sole issue on appeal is whether the evidence is sufficient to sustain the conviction.
To prove theft by receiving, the State must show that the accused received, retained, or disposed of stolen property, knowing or having good reason to believe that it was stolen. Ark. Code Ann. § 5-36-106(a) (1987). A person “receives” stolen property if he acquires possession or control of, or title to, the property or uses the property as security. Ark. Code Ann. § 5-36-106(b) (1987). Proof of actual possession is not necessary in order to establish theft by receiving; proof of constructive possession will suffice. A person constructively possesses property when he has the power and intent to control it. Riddle v. State, 303 Ark. 42, 791 S.W.2d 708 (1990).
Here, the only connection between appellant and the stolen car shown by the evidence was that he grabbed the door handle, his fingerprints were on the window sill and the trunk, and he had relatives living in Dumas. The car was found parked on a city street, accessible to the general public. No one saw appellant in control of, or even inside, the vehicle. No keys to the locked vehicle were found in his possession. Appellant argues, and the State does not dispute, that his fingerprints were found only on the exterior of the car. Nor was there any proof connecting appellant to any contents of the car. From our review of the record, we cannot conclude that there is any substantial evidence to support a finding that appellant had actual or constructive possession of the vehicle.
Reversed and dismissed.
Jennings and Danielson, JJ., agree. | [
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Andree Layton Roaf, Judge.
Bill Golden sustained a compensable injury while at work as a security officer for Westark Community College (Westark). Golden was ultimately assigned a 20% permanent partial disability to the body as a whole. However, the Commission found that Westark was entitled to offset all of Golden’s permanent disability benefits pursuant to Ark. Code Ann. § ll-9-522(f) (Repl. 1996), since Golden was over sixty-five and drawing retirement benefits from Social Security. Golden raises four arguments- in his appeal. He claims that (1) Ark. Code Ann. § ll-9-522(f) is unconstitutional in that it violates the Equal Protection Clauses of the state and federal constitutions; (2) the Age Discrimination in Employment Act promulgated by Congress preempts the application of Ark. Code Ann. § ll-9-522(f); (3) there is not substantial evidence to support the Commission’s finding that he is entitled to only 20% permanent partial disability to the body as a whole; and (4) permanent partial disability benefits do not include money or benefits for permanent physical impairment. We affirm.
Golden worked as a security guard for Westark and was 67 years old at the time of his injury. His duties included walking or driving around the campus and ensuring the security of tlie buildings and facilities. He was required to walk up and down stairs and otherwise remain on his feet for extended periods of time.
In November 1993, when crossing a bridge connecting two buildings on the campus, Golden slipped on ice and injured his back. He underwent prolonged treatment as a result of the injury, and continued to suffer from pain and discomfort at the time of his workers’ compensation hearing. Golden’s treating physician gave him a 5% physical impairment rating and permanent restrictions on the type of work he was allowed to perform. The restrictions effectively prevented him from performing his duties as a security guard, and he was subsequently terminated. Golden was sixty-nine years old at the time of his workers’ compensation hearing and was receiving $575 per month in social security retirement benefits. Westark paid, without contest, Golden’s medical expenses and temporary total disability through his healing period. However, Westark contested the extent of Golden’s permanent disability, and denied payment of any permanent disability benefits because of the operation of Ark. Code Ann. § ll-9-522(f).
The administrative law judge (ALJ) found that Golden sustained a 20% impairment to his body as a whole (5% physical disability and 15% wage-loss disability). The ALJ recognized that Ark. Code Ann. § 11-9-522(f) provides for a dollar-for-dollar offset for anyone aged sixty-five or older who either is drawing or is eligible to draw benefits from a publicly or privately funded retirement plan. However, the ALJ found that Golden was entitled to receive disability payments of $119 for 22 and one-half weeks based on his 5% physical disability, reasoning that the statutory offset did not apply to benefits for physical impairment. The ALJ did not reach the issue of constitutionality of the statute. Golden appealed to the Commission, which reversed the judgment of the ALJ with respect to the finding that a portion of Golden’s benefits should not be offset pursuant to Ark. Code Ann. § ll-9-522(f), and found the statute not violative of equal protection. Because Golden’s social security benefits of $575 per month were greater than the amount of his permanent disability benefits, Golden was thus left without any benefits for his permanent partial disability.
Í. Constitutionality of Ark. Code Ann. 11-9-522 ff)
Golden first argues that Ark. Code Ann. § ll-9-522(f) is unconstitutional in that it violates the Equal Protection Clauses of the state and federal constitutions. Golden claims that the classification in the statute is arbitrary, unreasonable, and allows for persons similarly situated to be treated differently. Golden also alleges that the classification of people found in the statute has no rational basis to any legitimate objective of the state.
Arkansas Code Annotated § ll-9-522(f) (Repl. 1996) was included among the major changes to the workers’ compensation law enacted by the Arkansas General Assembly in 1993, and provides:
(1) Any permanent partial disability benefits payable to an injured worker age sixty-five (65) or older shall be reduced in an amount equal to, dollar-for-dollar, the amount of benefits the injured worker received or is eligible to receive from a publicly or privately funded retirement or pension plan but not reduced by the employee’s contributions to a privately funded retirement or pension plan.
(2) The purpose and intent of this subsection is to prohibit workers’ compensation from becoming a retirement supplement.
A companion statute, Ark. Code Ann. § ll-9-519(g) (Repl. 1996) provides for an identical offset with respect to permanent total disability benefits.
Because age, unlike race or gender, is not a suspect or quasi-suspect classification, this court should apply a rational-basis test to determine if the statute violates equal protection. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314 (1976). It is well settled that an act by the legislature is entitled to a presumption of constitutionality. American Trucking Ass’n v. Gray, 288 Ark. 488, 707 S.W.2d 759 (1986); Pulaski County Mun. Court v. Scott, 272 Ark. 115, 612 S.W.2d 297 (1981). On appellate review, this court must presume that a statute is constitutional, and the party challenging the statute has the burden of proving otherwise. All doubts are resolved in favor of constitutionality. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996)(citing Reed v. Glover, 319 Ark. 16, 889 S.W.2d 729 (1994)).
The Equal Protection Clause does not preclude all statutory classifications. Cook v. State, 321 Ark. 641, 906 S.W.2d 681 (1995); Hamilton v. Hamilton, 317 Ark. 572, 879 S.W.2d 416 (1994). Classifications are permitted that have a rational basis and are reasonably related to a legitimate government purpose. McFarland v. McFarland, 318 Ark. 446, 885 S.W.2d 897 (1994). The role of the reviewing court is not to discover the actual basis for the legislation, but to consider whether any rational basis exists that demonstrates the possibility of a deliberate nexus with state objectives so that the legislation is not the product of utterly arbitrary and capricious government purpose. Misskelley, supra; Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). This court must presume that the challenged classification will promote a legitimate state purpose if there is “any conceivable set of facts to uphold the law’s rational basis.” Bosworth v. Pledger, 305 Ark. 598, 810 S.W.2d 918 (1991).
Neither of Arkansas’s two workers’ compensation retirement offset statutes have faced a constitutional challenge since their enactment in 1993. However, a number of other states have considered similar statutes and have consistently upheld the constitutionality of the offset provisions. It is necessary to understand the underlying rationale for this legislation in order to properly consider the constitutionality of a particular statute. The premise for both state and federal offset legislation is the impropriety of duplicate benefits. This premise is based upon the idea that all wage-loss legislation is social legislation designed to restore to workers a portion of wages lost due to the three major causes of wage loss: disability, unemployment, and old age, and that, despite the cause, a worker experiences only one wage loss and should receive only one wage-loss benefit. See 9 Larson’s Workers’ Compensation Law, § 97.10. The primary aim of both federal and state offset legislation is to avoid duplicate benefits and, in addition, to designate the primary source for payment of a particular benefit.
With this premise in mind, the majority of jurisdictions have upheld the constitutionality of offset legislation against equal protection attacks, and even the two courts that have struck down their statutes have not done so based upon the lack of a legitimate governmental concern. These jurisdictions have found a variety of valid governmental purposes for the offset statutes. See e.g. Brown v. Goodyear Tire & Rubber Co., 599 P.2d 1031 (Kan. App. 1979) (to prevent duplicate benefits); Sasso v. Ram Property Management, 431 So. 2d 204 (Fla. Dist. Ct. App. 1983) (to avoid “double dipping;” to reduce payment of fringe benefits due to age-related decline in productivity and physical abilities; to make room in the job market for younger workers by inducing retirement of older workers; to reduce costs of insurance premiums to employers); Harris v, State, 843 P.2d 1056 (Wash. 1993) (to avoid duplicate payments; to reduce industrial insurance premiums; to save money for the state fund); State v. Richardson, 482 S.E.2d 162 (W.Va. 1996) (to preserve fiscal integrity of workers’ compensation fund, to avoid duplicate benefits); Case of Tobin, 675 N.E.2d 781 (Mass. 1997) (coordination of benefits to prevent stacking of benefits; to reduce the cost of workers’ compensation premiums for employers who pay into multiple-benefit systems).
It is clear that the Arkansas offset statutes are founded upon legitimate governmental concerns. The stated purpose of Ark. Code Ann. § ll-9-522(f) is “to prohibit workers’ compensation from becoming a retirement supplement.” Arkansas Code Annotated § 11-9-101 (Repl. 1996) provides that one of the primary purposes of the workers’ compensation laws is “to emphasize that the workers’ compensation system in this state must be returned to a state of economic viability.” These purposes are simply a restatement of the goals of avoiding duplicate payments and of curtailing the cost of workers’ compensation insurance, which have been found by other jurisdictions to be legitimate governmental concerns, and we do not disagree with their conclusions on this issue.
However, we must also determine whether the offset legislation is rationally related to these stated governmental purposes. Although two states have held that similar statutes are not, the two statutes held to be violative of equal protection provided for termination or reduction of benefits for totally disabled workers aged sixty-five or older, but not for partially disabled workers in the same age classification. However, both courts further held that the statutes in question would not be rationally related to the stated governmental purposes even if this discriminatory, aspect of the legislation were eliminated. In Industrial Claims Appeals Office v. Romero, 912 P.2d 62 (Colo. 1996), the court found that a statute that provided for the outright termination of workers’ compensation benefits to permanently totally disabled workers, aged sixty-five or older, without regard to their eligibility for social security or other retirement benefits, was not rationally related to the pur pose of preventing duplicate payments because social security retirement benefits and workers’ compensation benefits do not serve the same purposes. The court also found that because the statute was based upon a “convenient perception that [persons aged sixty-five or older] receive retirement benefits,” it impermis-sibly denied these persons equal protection of the laws for mere administrative convenience.
In State ex rel. Boan v. Richardson, 482 S.E.2d 162 (W.Va. 1996), the court differentiated between old-age social security benefits and permanent total disability benefits and also found that there was a “lack of commonality of purpose” for the two benefits. The court characterized workers’ compensation benefits as payments in lieu of tort damages, and stated that the disability payments could not be considered a duplication of old-age social security benefits, which were earned retirement benefits. The West Virginia statute, which provided for a reduction in the permanent total disability benefits for persons receiving social security old-age benefits was thus held not rationally related to the legitimate governmental purpose of avoiding duplicate benefits.
Although Golden makes similar arguments to those advanced in Romero and Richardson, we must agree with the remaining jurisdictions that have found a rational relationship between legitimate governmental purposes and the age classification contained in the offset statutes.
We cannot say that the classification in Ark. Code Ann. § ll-9-522(f) between those workers aged sixty-five and older, who are receiving or who are eligible to receive public or private retirement benefits, and all other workers, is arbitrary and capricious, for which there is no legitimate government purpose. See Reed v. Glover, 319 Ark. 16, 889 S.W.2d 729 (1994). Although this classification undoubtedly will exclude some persons under sixty-five who may also be eligible for retirement benefits, if there is any rational basis for the disparate treatment, the classification must be upheld. Allen v. State, 327 Ark. 350, 939 S.W.2d 270 (1997).
Moreover, a court will not strike down a classification merely because it is under inclusive. Medlock v. Leathers, 311 Ark. 175, 842 S.W.2d 428 (1992). We conclude that the classification contained in the Arkansas statute is based upon a reasonable, not arbitrary, distinction. The Legislature undoubtedly considered, as have other jurisdictions, that sixty-five is the age at which most workers will be eligible for retirement benefits.
Furthermore, the Arkansas Supreme Court has recognized the social nature of workers’ compensation legislation in Corbitt v. Mohawk Rubber Co., 256 Ark. 932, 511 S.W.2d 184 (1974), where the court stated, “[t]he Workmen’s Compensation Act is based largely on the social theory of providing disabled employees support and preventing their destitution.” Corbitt, 256 Ark. at 935, 511 S.W.2d 186. We thus cannot say that the decision to offset permanent disability benefits at age sixty-five, for those disabled workers who are eligible to receive retirement benefits, is arbitrary and capricious.
2. Preemption by Federal Law
Golden also argues that the Age Discrimination in Employment Act (ADEA) promulgated by Congress preempts the application of Ark. Code Ann. § 11-9-522(f).
The doctrine of federal preemption is based upon the Supremacy Clause in Article VI of the United States Constitution. Under the Supremacy Clause, state laws that “interfere with, or are contrary to the laws of Congress, made in pursuance of the constitution” are invalid. Gibbons v. Ogden, 22 U.S. 1, 211 (9 Wheat.) (1824); Lawson v. Sipple, 319 Ark. 543, 893 S.W.2d 757 (1995). The doctrine involves a congressional intent to supplant state authority in a particular field. Jones v. Rath Packing Co., 430 U.S. 519 (1977).
The test for determining whether a state law would be preempted is based upon four factors: whether Congress expressed a clear intent to preempt state law; whether Congress occupies the field so as to leave no room for the states to supplement; whether compliance with both the state and federal laws is impossible; and whether the state law stands as an obstacle to Congress’s objective or purpose. Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984).
Absent express preemptive language, congressional intent to supersede state law may be implied. Ciba-Geigy Corp. v. Alter, 309 Ark. 426, 834 S.W.2d 136 (1992). Implied preemption can occur: (1) when the scope of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the state to act, (2) when the state and federal law actually conflict, (3) when compliance with state and federal law is physically impossible, and (4) when the state law stands as an obstacle to the accomplishment of the full objectives of Congress. Ciba-Geigy, supra. See, e.g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947).
However, the reviewing court begins with the assumption that the historic police powers of the states are not to be superseded by a federal act unless that is the clear and manifest purpose of Congress. Rice, supra. The burden is on the moving party to prove that Congress intended to preempt state law. Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984).
Golden argues that the ADEA preempts Ark. Code Ann. § ll-9-522(f) from operation, because the Act prohibits an employer from discriminating against any individual with respect to “compensation, terms, conditions, or privileges of employment” on the basis of age. Golden asserts that disability benefits fall within the meaning of the ADEA and thus, any action by a private employer or state government which compels older workers to substitute retirement benefits for disability benefits is precluded.
However, the ADEA contains no clear expression of the intent to preempt the state’s administration of workers’ compensation benefits. We also cannot say preemption may be implied to preclude the state-enacted ofiset because the ADEA prohibits only an employer from discriminating against individuals. We agree with the Supreme Judicial Court of Massachusetts that the ADEA “concerns age-based discrimination against employees resulting from activities within the employer’s control.” Tobin, 675 N.E.2d at 786.
3. Substantial Evidence
Golden also argues that there is not substantial evidence to support the full Commission’s finding that he is entided to only 20% permanent partial disability to the body as a whole. We find no merit in this argument.
Golden’s doctor assigned him a physical impairment rating of 5% and released him with permanent restrictions. Taking into consideration his age, education, and physical restrictions, the ALJ and the Commission found that he was also entitled to a 15% impairment rating attributable to his decreased 'earning capacity. Golden argues that his age, education, and physical restrictions require a far greater award.
Golden was sixty-nine years old at the time of the hearing, and had a tenth-grade education. He testified that he had applied for jobs since his injury, because he was required to do so to qualify for unemployment, but that he applied “cold turkey” where no positions were advertised. Golden further testified that his work history included employment as a salesman, as owner and operator of a pest control company for over thirty years, and truck driver.
Arkansas Code Annotated § ll-9-522(b)(l) (Repl. 1996) provides that the Commission may consider in addition to the percentage of permanent physical impairment, “such factors as . . . age, education, and work experience,” in considering claims for permanent partial disability benefits in excess of the employee’s permanent physical impairment. Here, the Commission awarded Golden an additional 15% benefit for reduction in his wage-earning capacity, in addition to the 5% physical impairment assigned by his treating physician. The Commission found that Golden had sustained a 15% impairment to his earning capacity “after consideration of [Golden’s] restrictions, along with [his] physical limitations, his age, education, and previous work experience.” Golden’s age and lack of education, while factors to be considered, do not constitute a disability. Although Golden’s physical restrictions prevent him from working in a job where he must lift heavy items or do a lot of bending or stooping, we cannot say that there was not substantial evidence to uphold the finding of the Commission that he was entitled to only a 20% disability rating.
Moreover, because of our resolution of Golden’s constitutional argument, even a 100% disability rating would not allow Golden any recovery because it would not increase the amount of his weekly benefits, but would only extend the period of payment. See Ark. Code Ann. § ll-9-522(a) (Repl. 1996).
4. Physical Impairment
Golden finally contends that permanent partial disability benefits do not include money or benefits for permanent physical impairment. He argues that the finding of the Commission that loss in earning capacity and physical impairment are two components of permanent partial disability which can exist with or without each other was in error. Golden argues that the definition of “disability,” found at Ark. Code Ann. § 11-9-102(9) does not include actual physical disability or impairment and that it is not otherwise defined. Therefore, he asserts that the implication is that benefits for permanent physical impairment are not considered permanent partial disability benefits and that they should not be treated as such.
In declining to adopt this position, the Commission noted that, in Arkansas, a worker is considered “disabled” if he suffers an impairment to his ability to earn wages, or if he suffers an anatomical impairment. The Commission noted that “disability,” within the meaning of the workers’ compensation law, includes loss of use of the body to earn substantial wages, as well as anatomical impairment. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961); Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982). A person can be disabled if the injury has caused physical loss or an inability to earn as much as he was earning when he was hurt. Fund v. Coleman, 16 Ark. App. 188, 699 S.W.2d 401 (1985); Bragg v. Evans-St. Clair, Inc., 15 Ark. App. 53, 688 S.W.2d 956 (1985). See also Terrell v. Austin Bridge Co., 10 Ark. App. 1, 660 S.W.2d 941 (1983).
Consequently, although the definition of “disability” fails to include any specific reference to physical impairment, Arkansas law clearly indicates that both physical and earning impairment are components of “disability.” Moreover, in making his constitutional argument, Golden states that “[permanent partial disability benefits are, as the Commission suggests, based on two components. The first is physical anatomical impairment.” This assertion by Golden, although it serves to advance his constitutional argument, seems to concede the very point he now argues. We thus conclude that the Commission did not err in finding that physical impairment is included within the definition of disability.
Although we declare that Ark. Code Ann. § 11-9-522(f) does not violate Bill Golden’s right to equal protection under the laws, we may only consider the question of the constitutionality of this statute. If indeed this statute is unfair to older workers, many of whom must continue to work to supplement their social security retirement benefits, this is a matter for the Legislature to address, not this court. As our supreme court has often said:
the question of the wisdom or expediency of a statute is for the Legislature alone. The mere fact that a statute may seem unreasonable or unwise does not justify a court in annulling it, as courts do not sit to supervise legislation. Courts do not make the law; they merely construe, apply, and interpret it.
S. W. Bell Tel. Co. & Wheeler v. Roberts, 246 Ark. 864, 868, 440 S.W.2d 208, 210 (1969) (quoting Newton County Republican Cent. Comm. v. Clark, 228 Ark. 965, 311 S.W.2d (1958)).
Affirmed.
Jennings, Bird, and Arey, JJ., agree.
Robbins, C.J., and Neal, J., dissent. | [
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Donald L. Corbin, Judge.
This case comes to us from the Yell County Circuit Court. Appellants, James Ulrich and Olivia Kandur, appeal their convictions for possession of a controlled substance with intent to deliver. We reverse the trial court’s decision.
Appellants raise the following seven points for reversal:
I.
THE AFFIDAVIT FOR SEARCH WARRANT WAS DEFECTIVE IN THAT IT DID NOT REVEAL THE TIME WHEN THE OBSERVATIONS OF THE INFORMANT WERE MADE.
II.
PROBABLE CAUSE FOR THE SEARCH WAS LACKING IN THAT THE INFORMATION WAS SUPPLIED BY AN ANONYMOUS INFORMANT.
III.
THE MOTION TO SUPPRESS AS TO APPELLANT ULRICH SHOULD HAVE BEEN GRANTED.
IV.
THE MOTION FOR DIRECTED VERDICT AS TO APPELLANT ULRICH SHOULD HAVE BEEN GRANTED.
V.
THE SEARCH WARRANT WAS ISSUED IN VIOLATION OF THE RULES OF CRIMINAL PROCEDURE AND THE EVIDENCE SHOULD HAVE BEEN SUPPRESSED.
VI.
THE EVIDENCE WITH REGARD TO APPELLANT OLIVIA KANDUR WAS INSUFFICIENT TO SUPPORT A CONVICTION OF THE OFFENSE ALLEGED.
VII.
THE FORFEITURE OF CONFISCATED FUNDS WAS UNTIMELY AND IMPROPER.
The Arkansas Supreme Court’s decision in Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), requires that, where the sufficiency of the evidence is challenged on appeal of a criminal conviction, we must review the sufficiency of the evidence, including the inadmissible evidence, prior to consideration of trial errors. At the close of the State’s case, appellant Ulrich moved for a directed verdict. The trial court denied the motion. Appellant Ulrich argues on appeal that it was error for the trial court to deny his motion.
A motion for directed verdict is a challenge to the sufficiency of the evidence. Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982). In reviewing the sufficiency of the evidence on appeal, this court will affirm if there is substantial evidence to support the verdict. Pickens v. State, 6 Ark. App. 58, 638 S.W.2d 682 (1982). Substantial evidence is evidence of sufficient force and character that it will with reasonable and material certainty and precision compel a conclusion one way or the other; it must force the mind to pass beyond conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).
On November 9, 1984, a search warrant was obtained to search the premises of Joe Kandur. When officers arrived at the premises, both appellants were present. Appellant Ulrich was working on a car and remained outside during the search of the premises. Inside the trailer located on the property, the officers found marijuana. Inside one bedroom, officers found marijuana on the bed, a set of balance scales on a dresser, and $9,680 in cash in a laundry bag in a corner of the room. The evidence, along with that found in another bedroom, a hall, and the kitchen, was introduced into evidence at appellants’ trial. Appellant Ulrich argues that there was insufficient evidence of his connection with the marijuana to warrant his conviction for its possession.
At the time of the search on November 9, in a “patdown” for weapons, officers found $2,920 in Ulrich’s back pocket. In a statement given to the officers on November 9, Ulrich stated he spent the night of November 8 and the day of November 9 at the Kandur residence, that the money found in his pocket had been earned in the bee-keeping business, and that he had not seen any marijuana.
We find that the evidence presented at the trial was insufficient to force the mind to pass beyond a suspicion or conjecture as far as appellant Ulrich is concerned. Therefore, we reverse Ulrich’s conviction and dismiss the charges against him. Of course, the money confiscated pursuant to his prosecution should be returned.
Appellant Kandur also argues that the evidence was insufficient to sustain her conviction. Appellant Kandur was a joint occupant of the trailer in which the marijuana was found. She ran inside the trailer when the police drove up.
The possession required by Ark. Stat. Ann. § 82-2617 (Repl. 1976) need not be actual, physical possession, but may be constructive, as when one controls a substance or has the right to control it. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Where there is joint occupancy of premises, mere occupancy is insufficient unless there are additional factors linking the accused with the contraband. Blair v. State, 16 Ark. App. 1, 696 S.W.2d 755 (1985). After the marijuana had been found one of the officers, after advising appellant Kandur of her rights, asked if the officers had found everything. She replied that they had. We find that there was sufficient evidence presented at the trial court to support the jury’s conviction.
Appellants assert that the affidavit for the search warrant was defective in that it did not reveal the time when the observations of the anonymous informant were made. On November 9, 1984, the municipal judge issued a search warrant authorizing the seizure of illegal drugs, marijuana and equipment from the residence of appellant Kandur. The warrant was based upon the affidavit of Sheriff Denver Dennis. The facts stated in the affidavit to support the issuance of the warrant are as follows:
Sheriff Denver Dennis on 11 -9-84 received a telephone call from an unidentified female citizen apprising him that located on the premises above described was illegal drugs, marijuana and illegal drug equipment for process, manufacturing and distribution of illegal drugs. That this female had observed such contraband on the Kandur property and premises. Sheriff Dennis has personal knowledge of prior drug convictions for manufacturing and selling by Joe Kandur in Yell County and in the state of New Jersey. Sheriff Denver Dennis has personal knowledge of unusual vehicle traffic.
The court held a hearing on appellants’ motion to suppress the evidence seized pursuant to the search warrant. At the hearing, the municipal judge testified that he took no formal testimony from Sheriff Dennis and that he issued the warrant based on the information in the affidavit, i.e., the information from the anonymous informant and the sheriffs knowledge of Mr. Kandur’s prior drug convictions and of unusual vehicular traffic around the house. Our review of the probable cause for the issuance of the warrant is confined to the information contained in the affidavit as that was the only information before the municipal judge when he issued the warrant. Herrington v. State, 287 Ark. 228, 697 S.W.2d 899 (1985).
Warrants obtained on the basis of informant’s tips must satisfy a ‘Totality of the circumstances test.” Collins v. State, 280 Ark. 453, 658 S.W.2d 877 (1983). The Arkansas Supreme Court set out the following rules to be applied:
It is the uniform rule that some mention of time must be included in the affidavit for a search warrant. See 100 A.L.R.2d 525 (1965). The only softening of this position occurs when time can be inferred from the information in the affidavit. For example, where an affidavit recited that the contraband was “now” in the suspect’s possession and that the search was urgent, that was found to be adequate to satisfy the time requirement. Coyne v. Watson, 282 F.Supp. 235 (D.C. Ohio 1967). In another case where the affidavit said that contraband was “recently” seen, coupled with the use of present tense as to the location of the contraband, that was held to be sufficient. Sutton v. State, 419 S.W.2d 857 (Tex. Crim. 1967). There is no clue whatsoever given in the affidavit in this case of when the informant saw the growing marijuana. Time is crucial because a magistrate must know that criminal activity or contraband exists where the search is to be conducted at the time of the issuance of the warrant, not that it may have been there weeks or months before. Otherwise, officials could use such information like blank checks to conduct searches at will, contrary to the purpose for which, and certainly not in the way, searches are permitted by our constitution. Searches of persons and places, especially residences, have to be one of the most serious undertakings of the law. And while legal technicalities cannot obstruct the right of the State to maintain order and bring about justice, neither can form be abandoned at the whim of law enforcement officials. Time is also important because we all have the unfettered right to know when we are accused of doing an illegal act. That is not an unreasonable nor technical demand of the law. Before a search is ordered it must be shown or be easily discernible when the contraband was seen or the illegal activity occurred.
We use a practical, common sense approach to examine search warrants but that approach cannot cure omissions of facts that are undisputedly necessary. This is especially true where great leeway is already given to authorities to use undisclosed informants and pure hearsay as a reason to search a person’s home.
Id. at 456-457, 658 S.W.2d at 879.
In the case at bar the affidavit fails to state any sort of time frame in which the suspected criminal activity was observed. There are no words in the present tense as to the location of the drugs, no grounds for the inference that the contraband was “recently” seen, nor any words such as “now.”
In Herrington v. State, 287 Ark. 228, 687 S.W.2d 899 (1985), the Arkansas Supreme Court was faced with a similarly defective warrant. The appellant in Herrington argued that the trial court erred by denying his motion to quash the search warrant since the supporting affidavit did not mention the time during which the criminal activity was observed. In Herrington the court noted the holding by the United States Supreme Court in United States v. Leon, 468 U.S. 897 (1984), which held that objective good faith reliance by a police officer upon the acceptance of his affidavit by a detached, neutral magistrate will avoid application of the exclusionary rule in the event the magistrate’s assessment is found to be in error. Herrington, 287 Ark. at 230, 697 S.W.2d at 899-900.
The affidavit in Herrington provided as follows:
David M. Foy, ASP Investigator, having been duly sworn in the form and manner required by law, on oath states:
I have probable cause to believe that on or in the residence, grounds and out-buildings located at Rt. 4, Box 405, Crossett, or the 1981 Chev. Pickup w/AR veh lie IWE-892 in the charge or possession of Michael Her-rington the following items or property is contained or concealed marijuana and other controlled substances and that such items or property (is) (are) contraband
The facts upon which I base my request for a Search Warrant are:
An informant whom I have used several times and whose information has been accurate advised me that he had seen marijuana and other controlled substances in the house and on the premises occupied by Herrington.
Id. at 231, 697 S.W.2d at 900.
The Arkansas Supreme Court found the warrant to be defective and announced the following rules and conclusions:
Pursuant to Leon and Collins, we do not hold that the absence of a reference to time in an affidavit makes the subsequent warrant automatically defective. Rather, in such a situation, we look to the four corners of the affidavit to determine if we can establish with certainty the time during which the criminal activity was observed. If the time can be inferred in this manner, then the police officer’s objective good faith reliance on the magistrate’s assessment will cure the omission.
Here, however, the omission of any reference to time is so complete that none can be inferred. The only statements that are in the present tense are those pre-printed on the form. The information supplied by the affiant is imprecise (“I have probable cause to believe that on or in" (emphasis added)) and is worded in the past tense. There are no terms such as “recently” or “now” and no reference to an urgent situation as mentioned in Collins, supra, which would enable the court to ascertain the time factor. Accordingly the affidavit is defective and the warrant invalid.
In Leon, the Supreme Court not only announced the good faith exception to the exclusionary rule, it also delineated four errors which an officer’s objective good faith cannot cure. These occur (1) when the magistrate is misled by information the affiant knew was false; (2) if the magistrate wholly abandons his detached and neutral judicial role; (3) when the affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”, quoting Brown v. Illinois, 422 U.S. 590, 610-11 (1975); and (4) when a warrant is so facially deficient “that the executing officers cannot reasonably presume it to be valid”, Leon, supra, at pp. 3421-22. In its discussion of the third exception, the Court explained, “sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others,” quoting Illinois v. Gates, 103 S.Ct. 2317 (1983).
An affidavit such as this, with absolutely no reference to a time frame, does not provide sufficient information upon which a probable cause determination can be made. The issuance of a warrant on such an affidavit accordingly violates Ark. Const, art. 2, § 15 and results in an unreasonable search and seizure. The evidence obtained in this manner should have been suppressed.
Id. at 232-233, 697 S.W.2d at 900-901.
We find that the warrant in the case at bar fails to mention time and fails to establish a basis upon which a time frame can be inferred. Therefore, we reverse the decision of the trial court on this point.
We find that our disposition of the issues discussed above make it unnecessary to address the other points raised by appellants. The trial court’s decision pertaining to appellant Ulrich’s conviction is reversed and the charges dismissed. The trial court’s conviction of appellant Kandur is reversed and the case is remanded for further proceedings in accordance with this opinion.
Reversed and dismissed in part; reversed and remanded in part.
Cloninger and Mayfield, JJ., agree. | [
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Per Curiam.
The appellee Windsor Door has moved that the appellant’s appeal be dismissed, contending that the appellant failed to make it a party on appeal. Upon reviewing the case, we agree and dismiss the appellant’s appeal.
The appellant’s claim was originally brought against both Windsor Door and the Second Injury Fund for temporary total disability and medical benefits. The administrative law judge, by agreement of the parties, dismissed the Second Injury Fund as a party because the threshold issue of compensability had not yet been determined and permanent disability was not at issue. After hearing the evidence, the A.L. J. further found that the appellant had failed to prove by a preponderance of the credible evidence that his current condition was related to his employment with Windsor Door. The appellant appealed this decision to the Workers’ Compensation Commission on the issues of compen-sability, temporary total disability, medical expenses, and contro-version. The Commission affirmed and adopted the A.L.J.’s opinion. The appellant then filed his pro se notice of appeal “on the Second Injury Fund only.” The only issue he raises on appeal is whether there is sufficient evidence to support the Commission’s finding that his condition is not work-related. The appellant has at no time raised the dismissal of the Second Injury Fund as an issue before either the Commission or this Court.
All persons necessary to a final determination of the matter in issue must be parties on an appeal from a decision of the Commission. 101 C.J.S. Workmen’s Compensation § 798 (1958). A notice of appeal must be specific and will be judged by what it recites, not by what the appellant intended for it to recite. 4A C.J.S. Appeal & Error § 593(1) (1957). The notice of appeal must be addressed and framed to disclose unequivocally the party for whom it is intended and who will be affected by the appeal. 4A C.J.S. Appeal & Error § 593(3) (1957). The fact that the notice of appeal is pro se is immaterial, as pro se litigants are held to the same standards as attorneys and must follow the rules of appellate procedure. Perry v. State, 287 Ark. 384, 699 S.W.2d 739 (1985); accord Van Bibber v. Easter, 289 Ark. 87, 709 S.W.2d 90 (1986).
Here, the appellant’s motion is directed to “the Second Injury Fund only” (emphasis added), a party which had already been dismissed from the suit by agreement of all parties. The dismissal of the Second Injury Fund by the A.L.J. was proper, as the Second Injury Fund can only be held liable in cases of work-related injuries causing a permanent disability. Ark. Stat. Ann. § 81-1313(i) (Supp. 1985). The appellant was not asking for permanent disability at that time, only medical expenses, temporary total disability, and attorneys’ fees. The only party which could be found liable for these expenses was Windsor Door, the employer. Windsor Door is therefore a necessary party who should have been named on the notice of appeal.
Because the appellant failed to properly make the appellee Windsor Door a party on appeal and because the Second Injury Fund was no longer a party at the time the Commission’s decision was rendered, the appellant has failed to name any appellee against whom this appeal could be perfected. We must, therefore, dismiss this appeal.
Dismissed. | [
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Lawson Cloninger, Judge.
Appellant, William H. Stallnacker, was charged with raping his daughter on November 25,1983, in violation of Ark. Stat. Ann. § 41-1803 (Supp. 1985). A jury found him guilty and sentenced him to a term of ten years imprisonment.
The sole issue in this appeal is whether the trial court erred in admitting a physician’s testimony that the alleged victim told the physician that her father, appellant, had intercourse with her. Appellant contends that the doctor’s testimony was hearsay not excepted by Rule 803(4) of the Arkansas Uniform Rules of Evidence. We do not agree, and we affirm the judgment of the court below.
Appellant argues that the trial court erred in permitting Dr. Janet Cathey, an examining physician who specializes in obstetrics and gynecology, to testify that appellant’s twelve-year-old daughter had said, when asked whether she had ever had sexual intercourse, “Only when my father made me.” Such a statement, appellant asserts, cannot be considered an exception to the hearsay rule under URE Rule 803(4) because the identification of appellant had no bearing on his daughter’s medical history or treatment.
Rule 803(4) of the Arkansas Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), provides an exception to the hearsay rule for
Statements made for the purpose of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
The child had been admitted to the emergency room at University Hospital in Little Rock for low abdominal pain. Dr. Cathey saw her in her capacity as a gynecological consultant and sought a menstrual and sexual history “because,” she said, “there are certain diseases that can cause pain in young women that are not possible unless the woman has had intercourse before.” The relevance of the physician’s inquiry is clear.
Appellant concedes that, for the purposes of Dr. Cathey’s examination, it may have been relevant that his daughter had had sexual intercourse. He insists, however, that the identification of the person with whom she had sexual relations was not relevant to her medical history. To support his thesis, appellant cites Shields v. State, 281 Ark. 420, 664 S.W.2d 866 (1984), for dicta suggesting disapproval by the Arkansas Supreme Court of the admission by a trial court of testimony by a psychologist offering an opinion that children she had interviewed truthfully stated that they had been molested by their stepfather. Apart from the fact that the physician in the present case offered no opinion on the veracity of the child’s statement implicating her father in the crime of rape, Shields is inapplicable because the Supreme Court never reached the issue of admissibility, as it had not been preserved for appeal.
The Eighth Circuit Court of Appeals has recently ruled on this issue. In United States v. Renville, 779 F.2d 430 (8th Cir. 1985), the defendant also argued that the hearsay exception embodied in Fed. R. Evid. 803(4), the test of which is identical to the Arkansas rule, did not encompass statements of fault or identity made to medical personnel. The Eighth Circuit noted that the central question under Rule 803(4) is “whether the out-of-court statement of the declarant was ‘reasonably pertinent’ to diagnosis or treatment.”
Although acknowledging that they had recognized in United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980), cert. denied, 450 U.S. 1001 (1981), that a declarant’s statements disclosing the identity of the person said to be responsible for his injuries “would seldom, if ever,” be reasonably pertinent to treatment or diagnosis, the Eighth Circuit saw a distinguishing factor in cases such as Renville, supra:
We believe that a statement by a child abuse victim that the abuser is a member of the victim’s immediate household presents a sufficiently different case from that envisaged by the drafters of rule 803(4) that it should not fall under the general rule. Statements by a child abuse victim to a physician during an examination that the abuser is a member of the victim’s immediate household are reasonably pertinent to treatment. [Emphasis in original.] Renville, at 436.
Statements of identification in child abuse cases, the court said, are “reasonably relied on by a physician in treatment or diagnosis.” Id., at 437. In the first place, child abuse extends further than physical injury, and the “physician must be attentive to treating the emotional and psychological injuries which accompany this crime.” Id. The psychological impact upon the child in the instant case is of special importance, inasmuch as the mother of the child testified that the doctors at University Hospital testified that the source of the abdominal pain was nerves.
Prevention of recurrence of the injury is a paramount consideration in the treatment of children who have been sexually abused in the home. This is not, however, merely an aspect of medical or psychological treatment. As the Eighth Circuit put it, “physicians have an obligation, imposed by state law [Ark. Stat. Ann. § 42-808 (Repl. 1977) is cited by the court in a footnote as an example], to prevent an abused child from being returned to an environment in which he or she cannot be adequately protected from recurrent abuse. This obligation is most immediate where the abuser is a member of the victim’s household, as in the present case.” Id., at 43 8. The court therefore concluded that information that the abuser is a household member is “ ‘reasonably pertinent’ to a course of treatment which includes removing the child from the home.” Id.
In the instant case, moreover, testimony was given without objection by appellant’s daughter concerning the conversation with the physician that corresponded to the doctor’s account. The child’s mother, a defense witness, confirmed on direct testimony that she was informed at University Hospital that her daughter had stated that her father had sexually abused her. We do not see how Dr. Cathey’s testimony could have done any greater harm than that of the other witnesses who testified without objection.
Affirmed.
Corbin and Mayfield, JJ., agree. | [
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James R. Cooper, Judge.
This is an appeal from a decision of the Pope County Chancery Court granting the rescission petition of the appellees and requiring the appellants to pay $38,000.00 to the appellees as restitutionary damages. The appellant Strout Realty raises six points on appeal, and the appellants H.F. and T.P. McFarland raise six different points on appeal. We have consolidated several of these points for discussion of their merits. We find no prejudicial error on the part of the chancellor and affirm his decision.
The appellees, Ray and Carolyn Burghoff, sued to rescind a real estate contract and deed, whereby they purchased a resort known as Mack’s Pines from the McFarlands. The Burghoffs also sought the return of their down payment from both the McFar-lands and Strout Realty, the other appellant in this case. Strout Realty had advertised the property and acted as the agent for the seller in the transaction. The chancellor found that rescission was proper because of fraudulent misrepresentations concerning the availability of water, the income from the operation of the resort, and the amount of acreage involved in the transaction. He ordered the Burghoffs to reconvey the property back to the McFarlands and entered judgment against all the appellants in the amount of $38,000.00, determining that contribution between the parties should be in proportion to the amount each retained from the down payment.
We first discuss the McFarlands’ contention that the BurghofFs complaint failed to plead facts sufficient to constitute fraud. The McFarlands objected to the pleadings below on the ground that, while the Burghoffs alleged misrepresentation as to specific items, they did not specifically plead fraud. The appellees are required to set forth with particularity the facts and circumstances constituting fraud, Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985); however, they are not required to set forth the conclusion of fraud. Tucker v. Durham, 285 Ark. 264, 686 S.W.2d 402 (1985). In other words, the word “fraud” need not be used, it is only necessary that facts set forth in the complaint lead to a conclusion of fraud. The complaint, as amended, alleges that the McFarlands and Strout Realty informed the Burghoffs that the water supply was sufficient to operate the business, that the Burghoffs relied upon these representations in purchasing the resort, and that, in fact, the water supply was insufficient. The appellees also alleged that the McFarlands “fraudently [sic] misrepresented the income of the business as an inducement” and that Strout Realty falsely represented that the plaintiffs were to purchase more than twenty-eight acres of land. The appellees allege reliance on the claims of the defendants in their complaint. We find these allegations sufficient to state a cause of action for fraud.
Next Strout Realty contends that the chancellor erred in allowing the appellees to proceed against them for damages (1) after the appellees had elected their remedy by attempting to rescind the contract and (2) when Strout Realty was not a party to the rescinded contract. Strout Realty first raised the issue of election of remedies at the close of the trial. This is an affirmative defense which must be raised in an answer. Southern Farmers Association v. Wyatt, 234 Ark. 649, 353 S.W.2d 531 (1962); see also Ark. R. Civ. P. 8(c). By failing to raise this issue then, Strout Realty waived the right to assert this defense at trial. Furthermore, the court did not err in holding Strout liable in a rescission action when it was not a party to the contract to be rescinded. The doctrine of election of remedies “applies only between the parties to a transaction so that one party may seek cancellation and then sue a third party for procuring the transaction through fraud.” 12 S. Williston, A Treatise on the Law of Contracts § 1528 (3d ed. 1970); accord, Cady v.Rainwater, 129 Ark. 498, 196 S.W. 125 (1917). In Cady, a rescission action, the Supreme Court found both the broker and vendor liable for the amount of damages necessary to restore the purchaser to her status prior to entering into the transaction. Strout Realty could properly be held liable for restitutionary damages.
Both Strout Realty and the McFarlands argue that there is insufficient evidence to show any fraudulent misrepresentations as to water, income, and acreage which would justify rescission. While we would agree if the decree were based solely on the representations regarding acreage, the chancellor’s decree is not erroneous, as there is sufficient evidence of fraudulent misrepresentations regarding water and income to justify the rescission and the award of damages.
While we review chancery cases de novo, we will not reverse the chancellor unless his findings are clearly erroneous or against a preponderance of the evidence. Morgan v. Morgan, 8 Ark. App. 346, 652 S.W.2d 57 (1983); Ark. R. Civ. P. 52(a). Since the question of the preponderance of the evidence turns largely on the credibility of the witnesses, we defer to the superior position of the chancellor to determine the weight and credibility to be given the testimony. Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981). A finding will be held clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that an error has been made. RAD-Razorback, Ltd. Partnership v. Coney, 289 Ark. 550, 713 S.W.2d 462 (1986).
When the plaintiff is attempting to overturn a solemn written instrument by proof which alters the written terms of the contract, he must prove the fraudulent misrepresentations by clear and convincing evidence, otherwise the fraud need only be proved by a preponderance of the evidence. Clay v. Brand, 236 Ark. 236, 365 S.W.2d 256 (1963). Here, the allegation of fraud as to the amount of land to be sold directly contradicts the amount of land set forth in the contract and deed. The other allegations contradict that clause in the contract which states that the appellees are relying on their own investigation of the matter. Therefore, the allegations must be proved by clear and convincing evidence. Clear and convincing evidence is that degree of proof which produces in the factfinder a firm conviction as to the allegation sought to be established; it is not necessary that the evidence be undisputed to be clear and convincing, so long as it imparts a clear conviction to the mind of the factfinder. Kelly v. Kelly, 264 Ark. 865, 575 S.W.2d 672 (1979).
In order to establish fraudulent misrepresentations, it must be shown by the party seeking rescission that the person making the representations knew them to be false or else, not knowing, asserted them to be true; that it was the first party’s intent to have the other party rely on them to its injury; and that the representations were relied on. Croley v. Baker, 237 Ark. 136, 371 S.W.2d 830 (1963); see also Kennedy v. E. A. Strout Realty Agency, 253 Ark. 1076, 490 S.W.2d 786 (1973).
We will look first at the allegations concerning the sufficiency of the water supply. The testimony regarding this, like almost all the testimony, is conflicting. The Burghoffs testified that Mr. McFarland told them in 1983, when they first looked at the property, that the water was good. Mrs. Burghoff also testified that Terry Harris, the agent for Strout Realty, told her that the water was good; that, if there ever was a water problem, it was fixed now; and that they would always have good water. The Burghoffs testified that they would not have bought the property if they had not been assured the water was sufficient. The evidence also shows that the Burghoffs had difficulty with the water system the entire time they were in possession of the property.
The appellants denied ever telling the appellees that there was a good supply of water on the property. They also contend that any problem with the water supply was the result of the appellees’ inexperience with the complicated water system, consisting of four wells interconnected by a series of shutoff valves. There was, however, evidence indicating that the wells were not as productive as they once had been and that measures to conserve water were taken each summer. Mrs. Burghoff testified that Mrs. McFarland had told her after the closing that people were not to take showers or do laundry because there was not enough water. Mrs. Burghoff also stated that the McFarlands knew that the Burghoffs were considering adding a swimming pool, which would increase the demand for water. Considering the conflicting testimony, we cannot say that the chancellor’s decision was clearly erroneous.
There is also sufficient evidence to support the finding regarding the misrepresentation of income. It is settled law that false representations by the seller as to present or best income of the property sold will, if relied upon by the purchaser, constitute actionable fraud. Hegg v. Dickens, 270 Ark. 641, 606 S.W.2d 106 (Ark. App. 1980). Mrs. Burghoff testified that Mr. McFarland had two sets of books. She stated that the first set did not show enough income to make the monthly payment, pay for improvements, and allow the family to live in the manner to which they were accustomed. Mrs. Burghoff stated that, when she pointed this out to Mr. McFarland, he brought out a second set of books which showed more income than the first set. She further testified that he gave her a statement saying that he had gross sales of $44,000.00 in 1982, but that, based on her observation of traffic on the highway, there was no way that the gross sales could have reached that amount. She added that, while he may have had that amount of gross sales, he could not have paid his expenses and still have had any money left over. Mr. McFarland testified that he told the Burghoffs that they could not make enough money to make the payments, but that they would be able to make a living. He admitted at trial that the best the resort could do was to generate a $12,000.00 loss, excluding annual depreciation. Representing a loss of $12,000.00 as being able to make a living constitutes a fraudulent misrepresentation of the income from the property.
The final allegation of misrepresentation concerns Strout Realty’s representation of the acreage of the property. The property was marketed as 28 acres in the catalogue relied upon by the appellees and as 28 acres, more or less, in other brochures. The survey showed the property to contain 26.32 acres. The testimony was in conflict as to whether the Burghoffs had seen the survey prior to the closing: the Burghoffs testified that they had not seen the survey and Mr. McFarland and Mr. Harris testified that they had. Mr. Harris testified that he discussed the discrepancy with Mrs. Burghoff on the telephone prior to the closing. The real estate contract and deed did not specify twenty-eight acres; they merely contained a legal description. While Mrs. Burghoff testified that she would not have bought the property if she had known of the discrepancy in acreage, she also admitted that her family had an opportunity to inspect, and did inspect, the property in 1983. We do not believe that a discrepancy of 1.68 acres on rural resort property would be sufficient, standing alone, to justify rescission of the contract. See Yeates v. Pryor, 11 Ark. 58 (1850); Baugh v. Johnson, 6 Ark. App. 308, 641 S.W.2d 730 (1982). Therefore, we modify the decree to delete the reference to acreage.
Strout Realty contends that the chancellor erred in awarding judgment against it because (1) it was a known agent, acting in the scope of its agency, (2) all of its representations were derived from its principal, and (3) there was no evidence of independent fraud on its part. A real estate agent will not be held liable for constructive or legal fraud when “his representation to the buyer was only a repetition, in good faith, of a statement authorized by his principal.” Peek v. Meadors, 255 Ark. 347, 352, 500 S.W.2d 333, 335 (1973). If the agent making the statement does not act in good faith, then he may be held liable, even when his agency is known and he acts under the authority granted him. See May hue v. Matthews, 174 Ark. 24, 294 S.W. 364 (1927); Cleveland v. Biggers, 163 Ark. 377, 260 S.W. 432 (1924). While a principal is liable for his agent’s authorized statements, that liability does not absolve the agent of liability. Ralls v. Mittlesteadt, 268 Ark. 741, 596 S.W.2d 349 (Ark. App. 1980).
Here, testifying to what Mr. Harris told her prior to the closing, Mrs. Burghoff said,
Mr. Harris informed me they [the McFarlands] had a problem with one of the wells on the property. That a local pump man . . . was installing a new well and a new pump and a holding tank. And at that time, there would be no water problem at all. . . .He told me at this time when the well was finished there would be no problems, you would always have good water.
Mr. Harris denied making any representation as to the quantity or quality of water on the property. He said that he would not have known about the water situation unless he had received the information from Mr. McFarland, but he stated that he assumed that there was plenty of water there. He further testified that he made no representations that were not authorized by the sellers, nor did he make any false representations. Mr. Harris stated that all he told Mrs. Burghoff was that the pump had been fixed. He testified that he never made any statements to the Burghoffs about water and that the McFarlands never said anything to him about water. While the evidence is conflicting, we find there to be sufficient evidence to support a finding that Strout Realty informed the appellees that they would have plenty of water without any information on which to base their representation. Because there is undisputed testimony that the McFarlands told Strout Realty nothing about the water situation, it cannot be stated that the statements were merely a good faith repetition of statements made by the principal. Therefore, we find that the chancellor did not err in holding Strout Realty liable for damages.
The McFarlands argue that the court erred by not holding Strout Realty solely liable for the judgment, inasmuch as the misrepresentations regarding water were made by Strout Realty, not the McFarlands. Not only is there evidence that the McFarlands represented the water to be good in 1983, there is evidence that the McFarlands misrepresented the income of the property. The chancellor did not err in holding the appellants jointly liable.
The McFarlands additionally argue that the chancellor erred in finding fraudulent misrepresentations since the Burghoffs had ample opportunity to inspect the property. It is settled law that a purchaser may give credit to statements made by a seller who has peculiar knowledge of the subject matter, as the person who is the recipient of a fraudulent misrepresentation of fact in a business transaction is justified in relying on its truth, even when he might have determined its falsity had he made an investigation. Fausett & Co. v. Bullard, 217 Ark. 176, 229 S.W.2d 490 (1950). Here, the only matters which could constitute a basis for misrepresentations, the sufficiency of water and the amount of income, were matters within the peculiar knowledge of the appellants.
The McFarlands also claim that the appellees were not entitled to rescission of the contract because they failed to return the McFarlands to the status quo. As a rule, rescission will be granted only when the party asking for it restores to the other party substantially the consideration received; if he cannot do so he is remitted to an action for damages. Sandford v. Smith, 163 Ark. 583, 260 S. W. 435 (1924). Mr. McFarland testified that the appellees failed to return cigarettes, gas, candy, a Coke dispenser, cans, bedspreads, twelve sets of brown towels, queen size bed sheets, twelve pillowcases, bowls, a pitcher, a music box, and some metal toys and rings. He testified that these items were worth approximately $4,000.00. Mrs. Burghoff denied taking anything when they left and testified that some revival singers, customers of the resort, had taken some items from one of the cabins. The evidence shows that the Burghoffs attempted to return the resort to the McFarlands for the return of their down payment. The resort sold to the appellees for the sum of $263,000.00. We find there is sufficient evidence to show that the Burghoffs were able to return substantially all of the consideration to the McFarlands.
The McFarlands finally contend that the chancellor erred in rescinding the contract because the Burghoffs had an adequate remedy at law. In furtherance of this argument, they point to testimony that the water supply problem could be rectified by improvements to the system, ranging in price from $1,200.00 to $4,000.00. They do not take into account their misrepresentation as to the ability to make a living on the property. Money damages would be inadequate to remedy this misrepresentation. We find no error in the chancellor awarding rescission.
The appellants have failed to show any reversible error, and therefore, we affirm the chancellor’s decision, as modified.
Affirmed as modified.
Cracraft, C.J., and Wright, Special Judge, agree. | [
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George K. Cracraft, Chief Judge.
Miguel Rivera appeals from an order dismissing his petition for writ of habeas corpus testing the validity of a governor’s warrant for his extradition to the State of New York. He contends that the trial court erred in its order by admitting and considering written hearsay statements of the officials of the State of New York and testimony of a police officer as to statements made by the appellant to him prior to appellant receiving his Miranda warnings, and that the competent evidence was insufficient to prove he was the person named as the fugitive in the warrant issued out of the State of New York. We find no error.
The conditions and circumstances under which our governor may issue a warrant for extradition are set forth in Ark. Stat. Ann. § 43-3001 et seq. (Repl. 1977). The act of honoring a requisition from a foreign state by the executive branch of this state is a summary one conditioned on the governor finding that the documents presented by the demanding state meet the requirements of our statute. Once the governor has honored the requisition, the circuit court can consider a petition for habeas corpus for only two purposes — to establish the identity of the accused and to determine whether he is a fugitive. Wilkins v. State, 258 Ark. 578, 528 S.W.2d 382 (1975). The appellant does not contend that the documents forwarded from the State of New York did not meet our statutory requirements. He contends that his fugitive status was established by inadmissible hearsay and that the competent evidence was insufficient to prove the fact that he was the person named in the New York documents. We find no error.
On August 22,1984, a police officer stopped the appellant on the streets of Fort Smith, Arkansas, to inquire of him about matters unrelated to these proceedings. After determining that the appellant was not the party he sought, the officer returned to the police station and ran a computer check on him. From this source it was learned that there were outstanding warrants for appellant in the State of New Y ork and that he had been declared a fugitive. The computer readout furnished a physical description of the appellant and a nickname by which he had been known in New York. The officer again stopped the appellant and informed him of the information he had received. He asked appellant if he had ever been known by the nickname contained in the computer readout. Appellant acknowledged that he had been known by that name and admitted that he was from the State of New York. He stated that he had at one time been involved in narcotics, but had not been so engaged in recent years. He was taken into custody and the statutory documents were forwarded from New York to the State of Arkansas where the warrant for extradition was issued.
At the habeas corpus hearing, the police officer testified as to the circumstances under which the arrest was made, the information received on the computer readout, and his conversation with the appellant at the time of his arrest. There were also introduced copies of sworn and unsworn statements of the New York police officers who identified a photograph of the appellant as the person named in the indictment and outlined the circumstances leading up to appellant’s arrest in New York and his flight from that state. There was also a statement from a fingerprint expert in the State of New York that he had compared appellant’s fingerprints forwarded to him from Fort Smith with those on file in New York and found that the appellant and the person named in the New York indictment were one and the same. The statement also confirmed that the person named in the New York indictment had the same tatoos and other identifying body marks as the person in custody in Fort Smith.
The appellant argues that the statements of the police officer of the evidence surrounding his arrest violated his Fifth Amendment right against self-incrimination, and that the consideration by the court of hearsay testimony denied him the rights of confrontation and due process. We do not agree.
The Uniform Rules of Evidence do not apply to proceedings for extradition or rendition. Unif. R. Evid. 1101(b)(3). An extradition proceeding is not a criminal trial in which the guilt or innocence of an accused is adjudicated. The purpose of the hearing is simply to determine whether the evidence of the fugitive’s criminal conduct is sufficient to justify his extradition and strict rules of evidence are not applicable. Unsworn statements of an absent witness may be considered and there is no inherent right to confrontation and cross-examination of witnesses. The exclusionary rule is not applicable in such proceedings. Collins v. Loisel, 259 U.S. 309 (1922); Bingham v. Bradley, 241 U.S. 511 (1916); Simmons v. Braun, 627 F.2d 635 (2nd Cir. 1980); Gibson v. Beall, 249 F.2d 489 (D.C. Cir. 1957). We find no error.
Affirmed.
Cooper, J., and Wright, Special Judge, agree. | [
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Tom Glaze, Judge.
Appellant appeals a conviction for driving while intoxicated. For reversal, he contends that the results of an intoxilyzer test should not have been admitted because he was not properly advised of his right to have additional tests made to determine the alcohol content of his blood. We disagree, and affirm.
A Clarksville patrolman stopped appellant on June 1, 1985, and arrested him for driving while intoxicated. The patrolman took appellant to the courthouse where another officer, Officer Breedlove, gave him the following warning which was read from a rights form:
You will be administered a (blood) (breath) test to determine your blood alcohol content.
If you take the test, you may, at your expense, have a physician, registered nurse, lab technician, or other quali- fled person administer a blood or urine test. This department will assist you in obtaining such a test or tests.
Officer Breedlove testified that appellant indicated that he understood all that was read to him and agreed to take a breathalyzer test. After taking the test, appellant was asked if he wanted a blood test, and appellant responded that he did. Appellant had no money, so he was allowed five or six phone calls to raise the money for a blood test. He was unsuccessful, and no additional test was administered.
Appellant argues that the results of the breath test should not have been admitted because he was not advised that he had a right to an additional breath test pursuant to Ark. Stat. Ann. § 75-1045(c)(3) (Supp. 1985) which provides:
The person tested may have a physician, or a qualified technician, registered nurse, or other qualified person of his own choice administer a complete chemical test or tests in addition to any test administered at the direction of the law enforcement officer. The law enforcement officer shall advise such person of this right. The refusal or failure of a law enforcement officer to advise such person of this right and to permit and assist the person to obtain such test or tests shall preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.
Appellant argues his case is controlled by this court’s decision in Mitchell v. City of North Little Rock, 15 Ark. App. 331, 692 S.W.2d 624 (1985). In Mitchell, as in this case, the appellant was advised he could have an additional test of his blood or urine, but was not told that he could have another breath test. However, the deciding factor in Mitchell, supra, was that the defendant was not assisted in his attempt to obtain an additional test. To the extent that our decision in Mitchell might infer that a defendant is entitled to be informed of the full range of additional tests available, such a holding would be in conflict with the supreme court’s ruling in Hegler v. State, 286 Ark. 215, 691 S.W.2d 129 (1985). In Hegler, the court held that even though the rights form did not mention an additional breath test, the police substantially complied with the requirements of § 75-1045(c)(3), and that substantial compliance is all that is re quired. Hegler, supra.
Affirmed.
Cooper and Cloninger, JJ., agree. | [
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Lawson Cloninger, Judge.
Following a jury trial, appellant was convicted of burglary and sentenced to seven years in prison. For his appeal, appellant argues that the trial court erred in allowing the state to cross-examine appellant about his 1971 felony conviction for burglary and grand larceny. We agree with appellant’s arguments and reverse and remand.
At the trial, Meyer Brick testified that on December 18, 1984, he was awakened by the alarm system he had set up at his store. He and his wife went immediately to the store, which was near his home. When he got there he saw two figures inside the store, but could not positively identify either of them. He then walked around to the alley and saw two people running. Mr. Brick shot at the fleeing figures, but did not know whether anyone had been hit.
Appellant was found about one hour later. He had been shot and had gone for help to a house he had seen with lights on. The residents of the house called the police and an ambulance.
Appellant testified that he had gone to the store with two other men after lending the driver $5.00 for gas. They were supposed to take the other man home, who said he lived behind the store. Appellant and the driver waited in the car while the other man went and got some money to repay appellant. When he did not return, the driver got out of the car and went to see what had happened. When the driver didn’t return either, appellant walked down the alley beside the store and noticed the door standing open. He stated that at that point he realized the two men were burglarizing the store. Appellant then saw Mr. Brick coming toward him with a gun and appellant began running. The driver of the car ran out of the store and began running. Appellant stated that he did not know what became of the other man. When Mr. Brick shot appellant the driver of the car helped appellant to the car and they drove off. They hadn’t gotten far when the car’s engine blew up. The driver of the car pulled appellant out of the car and left him in a ditch. Appellant then went to the house where he was found.
When appellant had completed his testimony, the defense rested its case. The judge then recessed until the next day. The next morning appellant took the stand again to explain the presence of a knife that some of the jurors had a question about. After testifying that he did not know where it came from, the state was allowed to cross-examine appellant about his 1971 conviction. The trial court explained that it was allowing the testimony because appellant had been allowed to testify extensively about his work record, his service record and the medals he had won in Viet Nam for heroism. The trial court felt that it would be unfair to the state to allow this testimony to go unrebutted and gave a limiting instruction to the jury that the testimony was to be considered only as proof of intent, preparation, plan, knowledge, identity or absence of mistake.
Appellant first argues that the questioning by the state should not have been allowed under U.R.E. Rule 609(b). We agree. Where a defendant in a criminal case testifies in his own behalf, his credibility is placed in issue, and the state may impeach his testimony by proof of prior felony convictions. Washington v. State, 6 Ark. App. 85, 638 S.W.2d 690 (1982). However, the use of a prior conviction for impeachment purposes is limited by Rule 609(b), which provides:
Evidence of a conviction under this rule is not admissible if a period of more than ten [10] years has elapsed since the date of conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date.
Appellant pleaded guilty and received a suspended sentence in 1971, which was fourteen years earlier than the trial date. It was error for the trial court to allow the cross-examination for impeachment purposes.
Appellant also argues that the trial court erred in holding that the questioning was proper according to U.R.E. Rule 404(b). Although this issue is not as easily resolved, we agree with appellant’s argument.
Rule 404(b) permits evidence of other crimes, wrongs or acts in order to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Such evidence, however, is not admissible to prove the character of a person in order to show that he acted in conformity therewith. Evidence of other crimes must pass two tests to be admissible: (1) the other crimes’ evidence must be independently relevant, and (2) must meet the probative value versus unfair prejudice balancing test of U.R.E. Rule 403. Golden v. State, 10 Ark. App. 362, 664 S.W.2d 496 (1984). The probative value of evidence correlates inversely to the availability of other means of proving the issue for which the prejudicial evidence is offered. In other words, if the state has no other means to prove the issue, then the evidence is highly probative, and that may outweigh its prejudicial effect. However, in cases where the state has other means of proving the issue, then the balance is tipped in favor of it being excluded because of its prejudicial effect. Golden, supra.
In this case, the state argues that the evidence was needed to show that appellant was not at the scene of the burglary by “mistake” as he claimed. However, the state had already shown that appellant was shot fleeing the scene of the crime. Mr. Brick testified that he only saw two people, not three, as claimed by appellant; plastic gloves covered with blood that was shown to be appellant’s blood type were recovered from the scene; and a knife that was taken from the store was found in appellant’s pocket.
In reviewing the admissibility of prior convictions for the purposes stated in Rule 404(b), this court reviews the facts to determine if, without the prior burglary convictions, the state proved the burglary charges against appellant. Golden, supra. Since the state’s evidence in this case would have amply supported appellant’s conviction, the prior convictions should not have been admitted. The trial court abused its discretion in applying the balancing test between probative value and unfair prejudice. The probative value of evidence of a fourteen-year-old conviction was slight if present at all, and the probability of unfair prejudice was great.
The state argues that the questioning was proper to rebut appellant’s previous testimony about his exemplary conduct during the Viet Nam War. In support of its argument, the state cites the case of Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984), in which the Arkansas Supreme Court held that, by the defendant’s testifying to his past conduct, the door was opened to the admission of rebuttal evidence which otherwise might be inadmissible. However, that case is not on point. Pursley was a civil case where Price was suing Pursley for the battery Pursley committed. While testifying in his own defense, Pursley stated that he had “never had any problem other than a speeding ticket in his life.” The police officer who investigated the battery was allowed to testify in rebuttal that Pursley had a reputation for violence in the community when he was drinking. The past conduct testified to was relevant because Price alleged that Pursley had been drinking when the battery occurred. The court said, “We do not hold or imply that Ark. Unif. R. Evid. is abrogated, but we conclude under the circumstances of this case, the trial court did not abuse its discretion in admitting the testimony.” Pursley, 283 Ark. at 34, 670 S.W.2d at 449.
In this case, appellant made no sweeping denial of any prior wrongdoing; he only testified concerning his work record and service record. The evidence was not admitted to rebut any particular character trait as in Pursley, and which is permitted by U.R.E. Rule 404(a)(1). The conduct testified about in Pursley did not result in conviction for a crime, and there was slight showing by the state that appellant’s conviction for burglary fourteen years ago was in any way relevant to the burglary he was being tried for.
Reversed and remanded for a new trial.
Cracraft, C.J., and Mayfield, J., concur.
Corbin, J., and Wright, Special Judge, dissent.
Glaze, J., not participating.
On October 13,1986,inthecaseof.R;ca/'iev. State, 290 Ark. 100,717 S.W.2d 488 (1986), the Arkansas Supreme Court held that the Uniform Rules of Evidence were adopted at an invalid session of the Arkansas Legislature, and that the Rules did not become law. The court further stated in Ricarte that, “under our own rule-making power and under existing statutory authority, as of this date we adopt the Uniform Rules of Evidence as the law in Arkansas.” | [
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Donald L. Corbin, Judge.
This appeal comes to us from Pulaski County Circuit Court, Second Division. The trial court found in favor of appellee, First American National Bank. Appellant, American General Life Insurance Company, raises two points on appeal. We reverse the decision of the trial court and dismiss appellee’s complaint.
Young Electric Company purchased a life insurance policy on the life of Robert Reynolds Young from appellant, American General Life Insurance Company, in 1974. A supplementary agreement to this policy contained a premium waiver disability benefit. In 1976, Young Electric Company assigned its interest in this policy to appellee, First American National Bank. Appellee made premium payments by utilizing the automatic premium loan provision of the policy. Approximately every six months from December, 1976, through June, 1980, appellee made premium payments and the balance of the payments were made pursuant to the automatic premium loan provision. Appellee defaulted on its premium payments in June, 1980, when the cash value of the policy diminished to such an extent that it could no longer be used to pay premiums. Appellee was unaware both that there was no remaining cash value in the policy and that the insured had suffered a heart attack on May 1, 1980. On December 31,1980, appellee tendered its cash premium check in accordance with its established practice of paying one monthly premium every six months. On January 30, 1981, appellant returned the check to appellee and advised it that the policy had lapsed for nonpayment of premium and had been placed on extended term insurance which would expire on May 24, 1981. After the return of the premium check, communication and correspondence between the parties was initiated but efforts to resolve the dispute concerning the force and effect of the policy were unsuccessful.
In June, 1981, appellee contacted Mr. Young’s wife and learned that the insured was totally disabled as defined in the premium waiver supplementary agreement of the policy. On July 24,1981, counsel for appellee sent a letter to appellant demanding reinstatement of the policy based on Young’s total disability and the premium waiver disability benefit provision of the policy. On July 30, 1981, appellant received notice that Young was disabled. On August 14,1981, appellee sent proof of the disability of Robert Reynolds Young to appellant and appellee made demand upon appellant under the premium waiver disability provisions of the contract to reinstate the policy.
The pertinent provision of the premium waiver disability benefit provides as follows:
PREMIUM WAIVER DISABILITY BENEFIT
Benefit. The Company, upon receipt of due proof that the Insured is totally disabled, as defined below, will waive premiums under the policy as follows.
No premium which fell due more than one year before written notice of claim is received by the Company at its Home Office will be waived unless it is shown that it was not reasonably possible to give such notice within one year after total disability began and that notice was given as soon as was reasonably possible.
Notice of Proof of Disability. The Company must receive at its Home Office written notice of claim and proof of total disability:
a. While the Insured is living and totally disabled;
b. Not later than one year after the policy anniversary nearest the Insured’s 65th birthday; and
c. Within one year after the due date of the first premium in default, if any.
Failure to give the written notice and proof of claim described above shall not invalidate any claim if it is shown that such notice and proof were given as soon as was reasonably possible.
Appellant refused to reinstate the policy because appellee had failed to furnish written notice of claim and proof of total disability within one year after the due date of the first premium in default.
Appellee brought suit seeking declaratory judgment and reinstatement of the policy along with statutory penalty and attorney’s fees. In its complaint appellee asserted that the written notice and proof requirement was not a condition precedent to waiver of the premiums and that the disability and not notice and proof of the disability created the insured’s duty to waive premiums. Appellee also relied upon the clause of the supplementary agreement which stated that failure to give the written notice and proof of claim would not invalidate any claim if it was shown that notice and proof were given as soon as reasonably possible. Appellant answered asserting that appellee had a duty to give notice of claim and proof of disability within one year after the due date of the first premium in default and that, because appellee failed to give due notice of claim and proof of disability, appellant’s obligation to waive premiums never arose.
The case was decided based upon the stipulated facts and the briefs of the parties. The trial court found that under the language in the supplementary agreement providing for premium waiver disability benefit, the existence of disability fixed liability and not the notice and proof of claim. The court also found that the notice of claim and proof of total disability were given within a reasonable time. Judgment was awarded in favor of appellee.
Appellant raises two points for reversal: (1) The trial court erred in finding that the language of the premium waiver disability benefit agreement creates a condition subsequent; and (2) the trial court erred in finding that notice of claim and proof of total disability were given as soon as was reasonably possible under the circumstances.
It is well-settled that, unless notice of disability and proof thereof are made conditions precedent to recovery under disability clauses by the inescapable language of the policy, it is the existence of disability that fixes liability and not proof thereof. J.C. Penney Life Insurance Co. v. Warren, 268 Ark. 1132, 599 S.W.2d 415 (Ark. App. 1980). The general rule is that the failure to give notice or make proof within a specified time in accordance with the terms of the policy does not operate as a forfeiture of the right to recover, unless the policy in express terms or by necessary implication makes notice of claim and proof of disability a condition precedent to recovery. New York Life Insurance Co. v. Moose, 190 Ark. 161, 78 S.W.2d 64 (1935). Therefore, the first issue to be addressed in this appeal is whether the language of the premium waiver disability benefit agreement creates a condition subsequent or a condition precedent.
In the case at bar, the provision requiring notice of claim and proof of disability within one year is conditional, i.e., notice and proof within one year from the due date of the first premium in default are required in those cases where it is reasonably possible to give such notice and proof. If it is not reasonably possible to give notice and proof within one year after disability began then notice and proof must be given as soon as reasonably possible. Under Arkansas case law this is not “inescapable language” making receipt of notice and proof of disability a condition precedent to recovery under disability clauses.
In J.C. Penney Life Insurance Co. v. Warren, the pertinent provisions of the policy in question provided as follows:
The Company will waive the payment of all premiums becoming due upon this policy during the continuance of total and permanent disability as herein defined upon receipt of its home office or administrative office of due proof that the insured has suffered such disability. . . .
NOTICE AND PROOF OF CLAIM — A written notice of claim of such disability and proof of such disability must be presented to the home office or administrative office of the company (a) during the lifetime of the insured, (b) during the continuance of total disability, and (c) within six months of the due date of the first premium in default, if there be default. Failure to give such notice and such proof within such times shall not invalidate any claim if it shall be shown that it was not reasonably possible to give such notice and such proof within such times, and that such notice and such proof were given as soon as reasonably possible.
Upon reading the above-stated provisions, this court found in J.C. Penney that it was the existence of disability that fixed liability and not the proof thereof. In essence, this court held that the rights under the policy were not forfeited by a nonpayment of premiums subsequent to the disability, construing notice and proof to be in the nature of a condition subsequent. The provisions of the policy in question here are materially indistinguishable from those in J.C. Penney. Therefore, we agree with the trial court’s finding that the language of the premium waiver disability benefit agreement creates a condition subsequent to liability, in this case.
The second issue to be addressed by this court is whether notice of claim and proof of disability were given within a reasonable time. The policy provides that failure to give notice and proof will be excused if it was not reasonably possible to give such notice and proof.
It is well-settled that an assignee can receive by way of assignment no better rights than the assignor had. Union Planters National Bank of Memphis, Tenn. v. Moore, 250 Ark. 272, 464 S.W.2d 786 (1971). Therefore, appellee, as assignee of the rights under the life insurance policy, stands in the shoes of Young Electric Company, assignor of that interest.
In J. C. Penney this court found that the failure to give notice and proof within six months of the due date of the first premium in default was reasonable under the circumstances. In that case this court found the following facts to be relevant to this determination:
The evidence clearly shows that Mr. Warren suffered from kidney failure in February of 1976 and from that time until the date of his death he was on dialysis, at first two or three times a week in a hospital at Memphis and then beginning in December of 1976, two or three times a week in his home at Hughes, Arkansas. The testimony shows that during Mr. Warren’s entire illness, and up until the time of his death on November 1, 1977, Mrs. Warren was employed full time in Memphis, Tennessee. During the entire time of Mr. Warren’s illness, Mrs. Warren was apparently working at her job or with her husband, on an average of approximately 16 hours a day. The testimony further shows that Mr. Warren was gravely ill and was barely able to take care of his day to day needs.
Id. at 1136-1137, 599 S.W.2d at 418. The jury in J.C. Penney found that it was not reasonably possible for notice and proof to be given within the time provided by the policy and this court affirmed that judgment.
In Barnett v. Southwestern Life Insurance Co., 269 Ark. 940, 601 S.W.2d 604 (Ark.App. 1980), the appellant in that case claimed that he had become totally disabled before he defaulted on his premium payments and that he had failed to give notice of claim or proof of disability because his disability involved his mind and mental alertness. Appellant in that case asserted that his mental disability came under the savings clause in the policy, much the same as the clause in question in the case at bar, which provided that a failure to give notice of disability is excused if it is shown that it was not reasonably possible to give such notice within the time required. This court rejected that argument, holding that the evidence of mental disability fell short of proving that the disability was of such degree as to excuse the failure of timely notice under the clause. Id. at 944, 601 S.W.2d at 606. This court stated the following in Barnett:
It is regrettable that Appellant failed to avail himself of the opportunity to have premiums waived, but that failure was the result of his own omission and it would be an inequity of somewhat greater proportions, we conclude, to transfer the burden of the omission to the opposing party, where to do so would require a wholesale rewriting of language of the policy. The many precedents on that general subject require that policy language, if plain, be adhered to.
Id. at 945, 601 S.W.2d at 607 (citation omitted).
In Mutual Life Insurance Co. v. Morris, 191 Ark. 88, 83 S.W.2d 842 (1935), the Arkansas Supreme Court held that the failure to give notice and proof of disability within the time required was excused where, from the time the condition of the insured was discovered until his death, the insured was critically ill and in no condition to look after his business affairs.
In the case at bar the policy provided that notice and proof must be given within a year after the due date of the first premium in default. The parties stipulated that on June 15,1980, the first payment in default came due. On December 31, 1980, appellee tendered its cash premium check in accordance with the agreed practice. On January 30,1981, appellant returned the check and notified appellee that the policy had been placed on extended term. Appellee first learned that Young was totally incapacitated on June 22,1981. (Young had been disabled since May 1,1980.) On July 24, 1981, counsel for appellee sent a letter to appellant notifying it that Young was disabled and requesting reinstatement of the policy. Appellant received this letter on July 30,1981, and this was the first notice appellant received that Young was disabled. Therefore, the first payment in default came due on June 15,1980, and appellant received notice of claim on July 30, 1981. Appellant did not receive proof of Young’s disability until August 14, 1981.
The question is whether notice and proof were given as soon as reasonably possible. The trial judge found that they were. Appellee did not prove to the trial court why it was incapable of communicating with Young during that period nor that Young was incapable of informing appellee of his disability. Appellee presented no evidence which would explain why it was not reasonably possible to give notice and proof of disability to appellant within one year. The cases cited above indicate that the courts are reluctant to excuse the failure to give timely notice and proof of disability. Failure has been excused only in those cases where there were grave and extenuating circumstances prohibiting timely notification of claim and proof of disability. We find that appellee failed to prove that notice and proof of disability were given as soon as was reasonably possible under the circumstances. We find that to excuse the failure to give timely notice and proof in this case, where there has been no showing that it was unreasonable to give timely notice and proof, would require “a wholesale rewriting” of the terms of the policy. For this reason we reverse the trial court’s decision and dismiss appellee’s complaint.
Cracraft, C.J., concurs.
Cooper and Mayfield, JJ., dissent.
This case has been delayed by reassignment because of the differing views as to how it should be written. The court regrets this necessary delay. | [
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Donald L. Corbin, Judge.
This appeal comes to us from the Saline County Circuit Court. A jury trial was held wherein appellant, Johnny Bovee, was found guilty of second degree murder and was sentenced to 15 years in the Arkansas Department of Correction. Appellant appeals the conviction and the sentence. We reverse and remand.
Appellant raises the following four points for reversal: (1) The trial court erred by not striking a particular juror for cause and by not allowing sequestering of the jurors for questioning by the defense counsel; (2) the court denied the right of appellant to cross-examine witnesses by denying recross examination; (3) the court erred in its failure to grant a directed verdict on the charges of murder in the first degree and murder in the second degree; and (4) the court erred in not declaring a mistrial when the jury returned without a specific sentence or, in the alternative, the court should have sentenced appellant to the minimum sentence.
We find this case should be reversed on the first point raised by appellant. However, the Arkansas Supreme Court’s decision in Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), requires that, where the sufficiency of the evidence is challenged on appeal of a criminal Conviction, we must review the sufficiency of the evidence, including the inadmissible evidence, prior to consideration of trial errors.
A motion for directed verdict is a challenge to the sufficiency of the evidence. Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982). In reviewing the sufficiency of the evidence on appeal, this court will affirm if there is substantial evidence to support the verdict. Pickens v. State, 6 Ark. App. 58,638 S.W.2d 682 (1982). Substantial evidence is evidence of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other; it must force the mind to pass beyond conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).
Appellant was charged by information with the crime of first degree murder. The State alleged that appellant, with premeditation and deliberation, caused the death of Rena F. Wearsch. Appellant was tried by a jury which found him guilty of second degree murder. On appeal, appellant argues that the court’s denial of his motions for directed verdict to the charges of first and second degree murder constitutes reversible error.
Testimony adduced by the State at trial established that Rena Wearsch died as the result of a gunshot wound to her head. Charlotte Arp, who was present in the victim’s home when the victim was shot, testified that she and the victim had been drinking most of the day on October 31,1985. She said she passed out and was awakened either by the sound of a gunshot or by appellant. She testified that she saw appellant walk out of the victim’s bedroom and heard appellant say that he had shot Rena. Arp entered the bedroom and attempted to help the victim who was still alive at the time. After officers from the Saline County Sheriffs Department arrived, appellant left the scene, even though he had been advised to stay there. A police officer testified that appellant was found crouched behind a bush in the woods. Appellant was transported to the Sheriffs Office. He gave a statement to the officers the next morning.
Appellant’s statement, which was admitted at trial through the testimony of Officer Rick Elmendorf, stated that on the day Rena was killed they had been drinking and Rena got mad and went into the bedroom and got a gun. When he grabbed the gun Rena pulled back, the gun went off and she fell down. Appellant told police the gun “just fired because it had a hair trigger” and that Rena was holding the gun like one would normally hold a gun. The medical examiner testified that the results of a trace metal test indicated that the victim probably was not holding the gun when it was fired and that there was no evidence of a struggle over the gun. A firearms examiner testified that the gun did not have a hair trigger. Testimony adduced at trial indicated that appellant had tried to run over Rena Wearsch with a truck before and that he had threatened to hit her in the head with a bottle.
Viewing all the above evidence in the light most favorable to the jury’s verdict we find that there was substantial evidence to support a conviction for second degree murder under Ark. Stat. Ann. § 41-1503 (Repl. 1977).
On January 24,1986, this case came to trial. Following call of the roll, swearing of the veniremen to voir dire, and opening remarks voir dire was conducted. Mrs. Catherine DeWeerd was questioned by appellant’s attorney and the following exchange occurred:
Q Can you promise me that you will attach no guilt whatsoever to Johnny Bovee just because he’s sitting here today?
A I could try.
Q Well, I understand you can try but I want you to promise me that you won’t do it. Can you do that?
A Oh, I think I could.
Q . . . Now, just because Johnny Bovee is charged with murder and because of the seriousness of the crime, would you attach any significance to it? Would you be more apt to find him guilty just because of what he’s charged with?
A Probably.
Q Pardon?
A I said probably.
Q Well, do you understand that Mr. Bovee does not have to present any case at all?
A No.
Q He does not have to prove anything.
A The State has to prove it.
Q The State is the one that has to do all the proving. Would it bother you if Mr. Bovee didn’t take the stand?
A It might, if he’s not willing to take the stand for his own self defense.
Q Do you feel like if he did not take the stand that you would be more apt to return a verdict of guilty than you would one of not guilty?
A I think so.
Q Even if the judge instructed you that you were to lend no weight to the fact that he had not taken the stand, that you would still be more apt to find him guilty?
A I would still [sic] more apt to feel like he was afraid of being cross examined.
Q ... Do you have anything morally against drinking? A Morally against drinking?
Q Yes, Ma’am.
A I don’t agree with it. I don’t do it and I don’t think it’s necessary to do it.
Q Because of that, if it comes out in testimony during this trial that a lot of the people involved were intoxicated or in varying degrees of intoxication, would that cause you to have any prejudice against any of them?
A It may.
Q Would you feel like that intoxication could ever be a defense to a crime?
A What do you mean by that?
Q If the judge instructs you that, now I do not know whether he will or not, but let’s say that if he did instruct you that the defendant was entitled to an instruction on intoxication which would say that if he was intoxicated enough to not form the intent necessary to commit the crime, that if you determine that he had reached that state of intoxication, that you had to return a verdict of not guilty to that crime charged, would you be able to do so?
A Saying he was intoxicated?
Q Yes, Ma’am.
A But he was not guilty?
Q Yes, Ma’am.
A Would I be able to do so?
Q Yes, Ma’am.
A I’m not real sure whether I could or not.
Q Okay.
A Because of some experiences I’ve had with it.
Q We all try not to be prejudiced but we can’t help it. It’s something that is born into us and bred into us from the time that we’re little bitty until the time we grow up. You can be prejudiced against different things. Do you feel that at this point in time you have any prejudice against Johnny Bovee either because of crime charged or because of the fact that alcohol may be involved?
A Do I have any prejudice?
Q Yes, Ma’am.
A Probably my main prejudice would be alcohol involved.
Q Can you promise me that if you are convinced that Johnny Bovee is not guilty and there are eleven people back in the jury room that are convinced that he is guilty that you will stand your ground and say that “I don’t believe he’s guilty, and you’re not going to make me change my mind,” just by the pressure? Can you take that kind of pressure?
A I don’t know. Sometimes I break down pretty easy.
At this point the defense moved that Mrs. DeWeerd be struck for cause. The trial judge denied the motion, stating that Mrs. DeWeerd was qualified. The defense then used a peremptory challenge and excused Mrs. DeWeerd.
Appellant used all his peremptory challenges before jury selection was completed. After expending all his peremptory challenges, appellant’s counsel questioned prospective juror Thomas Beard. When asked whether he believed that the defendant should take the stand, Mr. Beard replied that he did feel that the defendant should take the stand, and that he would feel that way even if the court instructed him that it should make no difference whether the defendant took the stand. Defense counsel then moved to have Mr. Beard struck for cause. The trial court allowed additional voir dire questioning by the State, qualified Beard as a juror, and denied appellant’s motion.
In Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984), the Arkansas Supreme Court stated the standard of review for a ruling on juror qualifications as follows:
We will not reverse a ruling on juror qualifications absent an abuse of discretion. Henslee v. State, 251 Ark. 125,471 S.W.2d 352 (1971).
Arkansas Stat. Ann. § 43-1919 defines actual bias as “the existence of such a state of mind on the part of the juror, in regard to the case or to either party, as satisfies the court, in the exercise of a sound discretion, that he can not try the case impartially, and without prejudice to the substantial rights of the party challenging.” Jurors are presumed unbiased and the burden of proving actual bias is on the party challenging the juror. Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984).
Id. at 309,681 S.W.2d at 392. This court faced a similar problem in Miller v. State, 8 Ark. App. 165, 649 S.W.2d 407 (1983), and announced the following rule:
[A]ppellant is in a position to challenge any error of the trial court in refusing to strike a juror for cause if the record shows that juror he objected to was forced upon him because he had exhausted his peremptory challenges. For that rule to be applicable, however, the appellant must not only show that the trial judge abused his discretion in not excusing the first juror for cause, but must also demonstrate from the record that he would have excused the latter one had he been able to peremptorily challenge him.
Id. at 166, 649 S.W.2d at 407-408 (citation omitted).
In the case at bar we find that it was an abuse of discretion to qualify Mrs. DeWeerd as a juror. She indicated a number of times during the questioning that she was biased. Appellant used all his peremptory challenges and has demonstrated that he would have excused Mr. Beard if he’d had another peremptory challenge, thereby properly preserving his record to raise the issue here. Therefore, we find that the decision of the trial court must be reversed.
Reversed and remanded.
Cracraft, C.J., and Glaze, J., agree. | [
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Donald L. Corbin, Judge.
Appellants, Ralph T. Bemis and Debra Hare Bemis, appeal a ruling by the Probate Court of Lonoke County denying their petition for adoption of a child, David Paul Hare, age 12, who was born during the marriage of appellant Debra Hare Bemis to appellee, Freddie M. Hare. We reverse and remand.
The evidence was undisputed that from October 1983, to the time of trial no support was paid by appellee, the natural father. Appellee, who is in the Air Force, testified that he voluntarily chose not to pay the child support and discontinued his military dependent allotment. It was also undisputed that appellee did not visit nor communicate with the child in any manner from October of 1983 to the time of the hearing in February of 1986. However, the trial court ruled that appellee had justifiable cause not to do so, and denied appellants’ petition for adoption.
Appellants argue on appeal that (1) the court erred in holding appellee’s consent to the adoption was required; (2) the court erred in finding that it would be in the best interest of the child to deny the petition; (3) the court erred in allowing testimony of inadmissible settlement negotiations; and, (4) the court abused its discretion in questioning the child over appellants’ objection.
Ark. Stat. Ann. § 56-206 (Supp. 1985) provides that the natural parents must generally consent to an adoption for it to be valid. Exceptions are set forth in § 56-207(a)(2) (Supp. 1985) which provides as follows:
(a) Consent to adoption is not required of: (2) a parent of a child in the custody of another, if the parent for a period of at least one [1] year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree;
It is well settled that statutory provisions involving the adoption of minors are strictly construed and applied. Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ark. App. 1980). The holding of the supreme court in Harper v. Caskin, 265 Ark. 558, 580 S.W.2d 176 (1979), places a heavy burden upon the party seeking to adopt a child without the consent of a natural parent of proving by clear and convincing evidence that the parent has failed significantly or without justifiable cause to communicate with the child or to provide for the care and support of the child as required by law or judicial decree. Clear and convincing evidence has been defined as being:
Evidence by a credible witness whose memory of the facts about which he testifies is distinct and whose narration of the details thereof is exact and in due order and whose testimony is so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the facts related is clear and convincing. . . . This measure of proof lies somewhere between a preponderance of the evidence and proof beyond a reasonable doubt.. . . It is simply that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established.
Kelly v. Kelly, 264 Ark. 865, 870, 575 S.W.2d 672, 675-676 (1979) (citations omitted). “Failed significantly” does not mean “failed totally” but the failure must be a significant one as contrasted with an insignificant one. It denotes a failure that is meaningful or important. “Justifiable cause” means that the significant failure must be willful in the sense of being voluntary and intentional; it must appear that the parent acted arbitrarily and without just cause or adequate excuse. Henson v. Money, 1 Ark. App. 97, 613 S.W.2d 123, aff'd, 273 Ark. 203, 617 S.W.2d 367 (1981).
In Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ark. App. 1980), the court of appeals reversed the dismissal of the appellants’ petition for adoption. In holding the natural father’s consent was not required under the circumstances, we stated:
The obvious purpose of the applicable statute [Ark. Stat. Ann. § 56-207] is to provide a child with a real father instead of one who, by his conduct, has proven to be a father by blood only. Although the legislature cannot force a man to be a father within the proper meaning of that term, it can and has afforded a judicial method whereby a child may have an opportunity to experience the benefits of having a real father by adoption. Our statute permits the courts, where the proper circumstances present themselves, to grant a petition for adoption to petitioners who demonstrate true love, affection and care for a child, regardless of the arbitrary dissent by a natural father.
Id. at 521, 606 S.W.2d at 81 (citations omitted).
While we review probate proceedings de novo on the record, it is well settled that the decision of the probate judge will not be disturbed unless clearly erroneous (clearly against the preponderance of the evidence), giving due regard to the opportunity and superior position of the trial judge to judge the credibility of the witnesses. ARCP Rule 52(a); Henson v. Money, supra.
Custody of David had been awarded to appellant Debra Bemis and appellee was ordered by the divorce decree dated June 1, 1976, to pay $100 per month for David’s support. Appellant Debra Bemis and appellee were subsequently involved in litigation over David in reference to child support arrearages and problems with visitation. Appellee was ordered to increase his child support payments to $150 per month and the arrearages were reduced to judgments against him. Argument of counsel for appellants reflects that the judgments for arrearages totalling in excess of $10,000 were unsatisfied at the time of the hearing in February of 1986.
Appellee testified that he wanted to support his child and that he would like to see him on a regular basis. He acknowledged his love for his son and indicated that he was willing to place the support on his military allotment again. During cross-examination, appellee admitted that he had made no effort to see his son since October of 1983; that he missed scheduled visitation with his son and could not remember if he had notified appellant Debra Bemis that he would not be exercising his visitation; and that he had not given his son a Christmas present since 1982 nor had he called David or done anything for David on his birthdays as of 1982. Appellee acknowledged that his son seemed to receive good care from appellants and that he was a child to be proud of. Appellee was questioned by the court in regard to his voluntary suspension of allotment payments and stated that he took that action because it was getting harder to get David. Appellee testified that each time he went to appellants’ home to pick up David, appellant Debra Bemis had David ready to go and his suitcase packed. Appellee stated that on one occasion he had to physically pick David up, who was screaming and kicking, and put David in the truck. Appellee noted that a lot of times David would run from appellee while still in the house. However, appellee unequivocally testified that appellant Debra Bemis never physically prevented his exercise of visitation with David.
Appellant Debra Bemis testified that David was two years of age at the time of her divorce from appellee. She married appellant Ralph Bemis on June 16,1976. She stated that appellee had not made regular visits with David since 1981. She would have David ready each time and on many occasions appellee would not show up. Appellant Debra Bemis acknowledged that there had never been any birthday or Christmas cards or Christmas presents sent to David by appellee. She described the relationship between her husband and David as that of a father and son. They did a lot of things together and were very happy.
Appellant Ralph Bemis testified that he had lived with David since he was two years of age and had enjoyed the relationship of father and son with him since that time. He was a Boy Scout leader of David’s troop and enjoyed hunting, fishing and other sports with David. Appellants had two daughters, aged three and six, in their home. He stated he was financially able to support David.
Appellee’s mother testified that she loved her grandson and wanted to visit him. She stated that she and her husband had filed petitions seeking visitation rights with David several times. Mrs. Hare testified that she was unsuccessful in exercising those visitation rights. She described the events which took place in appellants’ home during times she attempted to exercise her visitation with David. She stated there was always a “scene”. She would ask for David and appellant Debra Bemis would tell Mrs. Hare that David was in the house. Mrs. Hare would ask David and David would refuse to go with her. She and her husband had not visited with David since 1983.
The probate judge made specific findings in his order denying appellants’ petition for adoption and the following are his findings which are pertinent to the issue of appellee’s failure to support or communicate with David in excess of one year:
(5) The respondent, Freddie Max Hare, has not visited with the child nor paid support for over one year, however, the Court believes in this case the action was justified within the meaning of A.S.A. 56-207.
(6) From the Court’s view of the witnesses, it is believed that Debra S. Bemis did everything possible to avoid collecting support from the natural father, Mr. Hare, in order to effect an adoption. That Mr. Hare was led to believe that he should not pay support since he was unable to have visitation with the child, without greatly upsetting him. The Court accepts Mr. Hare’s testimony in this regard.
Upon our de novo review of the record, we must conclude the probate judge’s finding that appellee’s failure to support David was justified is clearly erroneous. In Henson v. Money, supra, the Arkansas Supreme Court, in granting the adoption over the objection of the father, stated that “[t]he duty to pay child support is independent of the duty of the custodial parent to allow visitation, as both may be enforced by the courts.” Id. at 207. In Green v. Green, 232 Ark. 868, 341 S.W.2d 41 (1960), the supreme court recognized that the father’s duty to support his minor child cannot be excused on the basis of the conduct of others, unless that conduct prevents him from performing his duty. See also Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979); Brown v. Johnson, 10 Ark. App. 110, 661 S.W.2d 443 (1983). The probate judge undoubtedly overlooked the above principles of law in determining appellee had justifiable cause to not support David. There was no competent evidence to show that appellants’ conduct precluded appellee from making his support payments. There was no evidence that appellee was financially unable to meet his obligation and the record clearly reflects that appellee voluntarily chose not to pay the support. The probate judge concluded in his findings that appellant Debra Bemis “did everything possible to avoid collecting support... in order to effect an adoption.” Her testimony, as well as the testimony of all the witnesses, does not support this conclusion. She testified that she had been to court approximately twelve times since her divorce from appellee. Her reasons for not having pursued any recourse against appellee for child support since March of 1984 were as follows: (1) she did not feel one should have to make a father support his child; (2) if the father did not want to do it, you can’t make him do it; (3) it was not worth staying in court and going through the expense; and (4) any man who loved his child would not have to be made to pay child support.
Under the circumstances of this case, it simply made no difference if appellee believed appellants interfered with his ability to observe visitation with David or not. Appellee has a duty and obligation to support David whether ordered to do so by a court or not. See Pender v. McKee, supra. The probate judge also determined that appellee was led to believe by appellants that he did not have to pay support since he was unable to have visitation with David and the court accepted appellee’s testimony in that regard. The evidence in this case clearly illustrates that beginning with the time of the divorce on June 1, 1976, appellee unjustifiably failed to meet his support obligations to his child. Appellee contends his failure to support David in the three-year period preceding the hearing on the adoption petition was justifiable because of an agreement he alleges he and appellant Debra Bemis entered into excusing his obligation to pay child support. This also did not relieve appellee of his duty and obligation to support David.
In Dangelo v. Neil, 10 Ark. App. 119, 661 S.W.2d 448 (1983), we affirmed the probate judge’s ruling that the consent of the natural mother was not required for the adoption of her son by the appellees. The natural mother had had no communication and had made no significant contribution toward the care and support of her son in excess of one year. There was evidence the appellees gave the natural mother cause to believe no contribution was expected from her. We stated, however, “Whether appellees expected or requested contributions from appellant is not the determining factor. A parent has the obligation to support a minor child, and no request is necessary. Ark. Stat. Ann. § 57-633 (Repl. 1971).” Id. at 122, 661 S.W.2d at 450.
Appellee’s action in failing to pay support was an arbitrary act without just cause or adequate excuse. We find that appellants proved by clear and convincing evidence that appellee failed significantly and without justifiable cause to provide for the care and support of David. Appellee’s consent to the adoption was therefore not required.
A closer question is presented by the issue of whether appellee failed significantly without justifiable cause to communicate with David for a period of more than one year. In view of our holding on the issue of appellee’s failure to significantly and without justifiable cause support David, we need not decide this question nor the other arguments which appellants have raised in their appeal.
A probate court may grant a petition for adoption if it determines at the conclusion of a hearing that the required consents have been obtained or excused and that the adoption is in the best interest of the child or individual to be adopted. Ark. Stat. Ann. § 56-214(c) (Supp. 1985); Dixon v. Dixon, 286 Ark. 128, 689 S.W.2d 556 (1985); Falbo v. Howard, 271 Ark. 100, 607 S.W.2d 369 (1980). In the case at bar the order of the probate judge denying appellants’ petition for adoption does not address the issue of whether it is in the best interest of David to be adopted. It is only logical for this court to assume that the probate judge did not consider this question in view of his determination that appellee’s consent was necessary. We stated in McKee v. Bates, 10 Ark. App. 51, 661 S.W.2d 415 (1983), that if the trial court determines a parent’s consent is unnecessary, such a finding does not require that the adoption be granted. Before an adoption petition may be granted, the probate judge must find that the adoption is in the best interest of the child. See also Shemley v. Montezuma, 12 Ark. App. 337, 676 S.W.2d 759 (1984). Accordingly, this cause is reversed and remanded with directions to the probate court to conduct a hearing for the limited purpose of determining whether it is in the child’s best interest to grant the adoption.
Reversed and remanded.
Cracraft, C.J., Cloninger, J., Wright, Special Judge, join in the majority. .
Cooper and Mayfield, JJ., dissent. | [
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Per Curiam.
Upon review of the briefs in this case, we find that both the appellant’s and appellee’s abstracts flagrantly violate Ark. R. Sup. Ct. and Ct. App. 9(d). The appellant failed to include in his abstract the pleadings and the judgment from which he appeals. The appellee’s supplemental abstract is not an impartial condensation of the records, as the appellee consistently underscores portions of the testimony, a practice prohibited by Rule 9. Furthermore, the appellee’s supplemental abstract does not correct the deficiencies discovered in the appellant’s abstract.
While we could affirm the decision under Rule 9(e)(2), we find that action to be unduly harsh as the appellant has a sufficient abstract to show there may be merit in his position. Therefore, pursuant to Rule 9(e)(2), we will give the appellant’s attorney twenty (20) days from today, November 5, 1986, to reprint the brief, at the attorney’s expense, to conform to the requirements of Rule 9. The appellee will be granted fifteen (15) additional days from the date the appellant’s brief is filed in which to file a revised brief.
Because the reprinting of the appellee’s brief is caused at least in part by his own attorney’s violation of Rule 9(d), the appellee’s attorney will be responsible for the expense of reprinting the appellee’s brief, except to the extent it is revised due to changes in the appellant’s brief — those expenses shall be paid for by the appellant’s attorney. The appellee will be required to file a detailed statement of costs so that the Court may determine the relevant expenses to be paid by each attorney. | [
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James R. Cooper, Judge.
The appellant in this criminal case was charged with DWI, first offense, after registering .11 on a breath analysis administered following a one-vehicle accident. After a jury trial, she was convicted of that offense, sentenced to forty-eight hours in jail, and fined $750.00. From that conviction, comes this appeal.
For reversal, the appellant contends that the trial court erred in denying her motion to suppress the results of the breathalyzer test, and in ruling that evidence concerning the results of the breathalyzer test given another arrestee, and records and testimony from the Department of Health concerning the certification of the breathalyzer, were not relevant. We reverse on her second point.
The record shows that, on the evening of March 10,1986, the appellant’s vehicle overturned on a highway curve as she was returning from the horse races at Hot Springs. She admitted to a police officer at the accident sc.ene that she had drunk two glasses of beer several hours beforehand. The appellant was arrested on suspicion of DWI and taken to the Montgomery County Sheriffs Office, where she registered .11 on a breathalyzer test.
On November 17, 1986, the appellant filed a motion to suppress the results of the breathalyzer test. At a hearing on the motion conducted on November 28,1986, the appellant proffered evidence to show that the breathalyzer was not functioning properly at the time of her arrest, including evidence that the machine had twice been decertified in the three months prior to the appellant’s arrest, and that it had been repaired at least once during that time. In addition, the appellant proffered the testimony of two witnesses, Tim Chambers and Phillip Chambers. According to the proffer Tim Chambers would have testified that, on the day before the appellant’s arrest, he took two breathalyzer tests on the machine used for the appellant’s test, and that the results of his tests, administered within five minutes of one another, were inconsistent. Phillip Chambers, Tim’s father, would have testified that he appeared at the police station when his son was arrested and offered to take a breathalyzer test himself, and, although he had not been drinking, registered .07 on the machine. The appellant proffered further evidence to show that certain procedures involving the administration of the test and the use of the machine were not in accordance with Department of Health regulations. The trial court ruled that the issues raised by the appellant’s proffered evidence went to the weight of the breathalyzer results, and denied the motion to suppress.
The appellant first contends that the trial court erred in denying her motion to suppress, and asks this Court to reconsider and reverse Almobarak v. State, 22 Ark. App. 69, 733 S.W.2d 422 (1987). In Almobarak we held that evidence that the breathalyzer was not in proper working order and that the machine operator had not strictly complied with Department of Health procedures for insuring accuracy did not require suppression of the test results, but instead went to the weight to be given the evidence. We decline to overrule Almobarak, and find it applicable to the circumstances of this case. Preliminary matters concerning the admissibility of evidence are for the trial court to decide, and we will not reverse the trial court’s ruling in the absence of an abuse of discretion. Id:, A.R.E. Rule 104. We hold that the trial court did not abuse its discretion in denying the appellant’s motion to suppress the breathalyzer results.
Next, the appellant contends that the trial court erred in ruling that certain evidence concerning the certification of the breathalyzer and its proper functioning at the time that her test was administered was inadmissible for lack of relevance. On cross-examination of the breathalyzer operator, the appellant elicited testimony that the device was obtained by the Montgomery County SherilTs Office three years prior to trial, and was acquired as a used machine; that, although Department of Health regulations require an instruction manual to be kept with every certified machine, the instruction manual kept with the machine in question was for a different model breathalyzer; that the breathalyzer ampules used by the Sheriff’s Office were not produced by the machine’s manufacturer, although the manufacturer, in the operation manual, disclaimed responsibility for the precision and accuracy of the device when ampules other than those produced by the manufacturer were used; and that not every breathalyzer test administered on the machine was recorded in the logbook. The appellant then attempted to elicit testimony concerning the tests given to Tim and Phillip Chambers, fifteen hours before the appellant’s test was administered. The State objected to this testimony on the ground of lack of relevancy, and the objection was sustained by the trial court. The appellant proffered that Tim Chambers would testify that he registered .10 on his first test, and .08 on another test given five minutes later. Phillip Chambers would testify that he tested .07 although he had not consumed any alcoholic beverages.
Continuing the cross-examination of the machine operator, the appellant elicited testimony concerning the records which Department of Health regulations require to be kept by a certified installation. The trial court again sustained a relevancy objection by the State, and the appellant proffered that the examination of the witness, if permitted, would show that the machine was inoperable for three months in 1985, and had been working improperly on several occasions during the previous two years, including two instances of decertification before the appellant’s test and one decertification afterward. In her case-in-chief, the appellant proffered the testimony of Ms. Gay Horn, director of the State Department of Health division in charge of certifying breathalyzers, concerning the machine’s repair record, including testimony that the machine’s certification had been suspended three times; that every test given must be logged in order to accurately certify the machine; that certification is based on the accuracy and complete disclosure of the log records; and that the Montgomery County Sheriffs Office had been admonished on two prior occasions for not sending in the log records as required.
We initially note that all of the proffered evidence is, to some extent, relevant to the issues of whether the machine was properly certified and whether it was functioning properly at the time the appellant’s test was administered. Nevertheless, the trial judge’s statement when sustaining the State’s relevancy objection shows that the ruling in question was not based solely on relevancy:
We are not going to go through all of this. If we open the door to this, every DWI case in the State would take three days. The machine is certified and its operator is certified. That is as far as you may go. . . .
We think that this statement makes it clear that the trial judge did not base his ruling on the ground of relevancy per se, but instead refused to admit the proffered evidence on the basis that it would be too time-consuming to do so.
Rule 403 of the Arkansas Rules of Evidence provides that:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
The question before us with respect to this issue is whether the trial judge abused his discretion in ruling that the probative value of the proffered testimony was substantially outweighed by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. See Lee v. State, 266 Ark. 870, 587 S.W.2d 78 (Ark. App. 1979). We note that the appellant was pursuing two interconnected, yet distinct, theories with respect to the proffered evidence: first, that deviations from Department of Health regulations by the Montgomery County Sheriffs Office detracted from the reliability of the certification process. Under this theory, the appellant attempted to show that the device could have been functioning improperly at the time of the last certifica tion. Second, through the proffered testimony of Tim and Phillip Chambers, the appellant sought to show that, even had certification been accurately determined and properly issued, the machine was nevertheless unreliable by the time the appellant’s test was administered. Although the appellant was permitted to elicit testimony supporting her first theory from the machine operator, the trial court’s ruling barring testimony concerning the tests given to Tim and Phillip Chambers effectively foreclosed development of the second theory. We hold that the trial court abused its discretion in excluding the evidence, and we reverse. In so holding, we do not mean to imply that, on retrial, any and all evidence concerning the history of the breathalyzer and its certification must be accepted as relevant to its proper functioning and certification. At some point, such evidence will be properly excludable on the grounds of needless delay, waste of time, and its cumulative effect. We only hold that, when the trial judge excluded the evidence in the case at bar, that point had not yet been reached.
Reversed and remanded.
Corbin, C.J., and Cracraft, J., agree. | [
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John E. Jennings, Judge.
In 1978, appellant, Walter Yockey, paid $1,000.00 for 20% of the stock in Poultry Production Systems, Inc., a closely held family owned corporation. He and the appellee, Nancy Yockey, were married on February 29, 1980. The parties separated on May 29, 1986, and this divorce action followed.
From the date of the inception of the corporation in 1978, and throughout the marriage, Mr. Yockey worked full-time for the corporation, selling and installing poultry equipment. Mrs. Yockey taught school until 1983 when she began working for Arkansas Power and Light Company. The annual income of each party, as reported for tax purposes, follows:
Nancy Yockey Walter Yockey
1980 $ 11,516.44 $ 10,000.00
1981 14,151.01 1,000.00
1982 13,710.63 4,000.00
1983 28,339.30 1,292.77
1984 29,882.08 6,000.00
1985 31,471.47 3,500.00
1986 34,337,34 12,840.00
TOTALS: $ 193,290.35 $ 38,632.77
Mrs. Yockey testified that her husband chose to live on her income and reinvest his money back into the company. The chancellor heard expert testimony that in September of 1987 the value of the corporation was $195,365.00. There was also evidence that, at the time of the marriage, the value of Mr. Yockey’s one-fifth interest in the corporation was $2,717.00. From these figures it was calculated that the extent of the increase in value of Mr. Yockey’s stock, during the marriage, was $36,356.00. The chancellor awarded Mrs. Yockey one-half of this increase in value, because he believed the increase in value to be marital property under the supreme court’s holding in Layman v. Layman, 292 Ark. 539, 731 S.W.2d 771 (1987).
The primary issue presented on appeal is whether the chancellor was correct in deciding that the increase in value of Mr. Yockey’s stock was marital property. We hold that the increase in value was non-marital property and reverse.
Arkansas Code Annotated Section 9-12-315(b) provides:
For the purpose of this section “marital property” means all property acquired by either spouse subsequent to the marriage except:
(5) The increase in value of property acquired prior to the marriage ....
The language of the statute is clear: the increase in value of property acquired prior to the marriage is not marital property. Although Layman v. Layman, 292 Ark. 539, 731 S.W.2d 771 (1987) is quite similar factually to the case at bar, it is distinguishable. In that case, Mr. Layman acquired stock in a closely held corporation, by gift from his parents, after the marriage. The supreme court held that the increase in value of the stock, during the marriage, was marital property. The court’s opinion, however, notes that Ark. Stat. Ann. § 34-1214 (Supp. 1985) (now Ark. Code Ann. § 9-12-315 (1987)) “pointedly [excludes] from the marital property umbrella . . . increases in value of property acquired prior to the marriage [emphasis in original].” While it is true that the court in Layman cited, with approval, Jensen v. Jensen, 629 S.W.2d 222 (C.A. Tex. 1982), and that under the holding in Jensen, the increase in value of the stock in the case at bar would be treated as marital or community property (under Texas law), it must be recognized that Texas, unlike Arkansas, has no statute expressly governing this particular issue.
The fact that our property division statute provides that the increase in value of property acquired by one party prior to the marriage is non-marital property does not mean that the chancellor, on remand, must award the entire amount of the increase to Mr. Yockey. Instead, the statute expressly provides that the court may make some other division that it deems equitable. Ark. Code Ann. § 9-12-315(a)(2) (1987). If the trial court does determine that it is equitable to divide non-marital property between the parties, however, the statute requires that the court take into consideration those factors listed in Ark. Code Ann. § 9-12-315(a)(l)(A) (1987) and that the court state in writing its reasons. Here, the chancellor believed that the increase in value of the stock was marital property, under the holding in Layman, supra. It is appropriate for us to remand the case to the trial court for it to determine whether the increase in value of the stock should be awarded to Mr. Yockey or divided in some way between the parties. As the supreme court has held, the overriding purpose of our property division statute is to enable the court to make a division that is fair and equitable under the circumstances. See Canady v. Canady, 290 Ark. 551, 721 S.W.2d 650 (1986).
The trial court awarded Mrs. Yockey an expert witness fee of $1,800.00, which she incurred in establishing the increase in value of the stock. While there is no contention that the amount awarded is excessive, we agree with Mr. Yockey that, because we sustain his first argument, we must also reverse the chancellor’s award of expert witness fees. On remand, the propriety of awarding expert witness fees will depend upon the chancellor’s disposition of the increased value of the stock.
Finally, Mr. Yockey argues that the chancellor erred in awarding Mrs. Yockey a credit for certain expenditures made by her in connection with the home of the parties, during the separation. We find no error in the chancellor’s ruling on this matter.
Reversed and remanded.
Cooper and Coulson, JJ., agree. | [
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James R. Cooper, Judge.
The appellant in this case is the personal representative of the estate of F.H. “Mike” Hummel. In February 1980, Mike conveyed by warranty deed property known as the “auction house” to himself and his brother, Hal B. Hummel, as joint tenants with rights of survivorship. The appellee in this case is the estate of Hal Hummel, who originally was a defendant, but died before the cause was heard.
The appellant brought suit in the Benton County Chancery Court, seeking a declaratory judgment that the proceeds from a note and mortgage from the sale of the auction house were part of Mike’s estate. The chancellor found that the note and mortgage should remain in Hal’s estate. On appeal, the appellant argues that the deed was an invalid testamentary disposition; that there was no valid delivery of the deed; and that the deed worked a fraud upon Mike’s wife, Josephine, and deprived her of her dower rights in the property. We affirm.
Shortly after Mike created the joint tenancy, he married Josephine on February 22,1980, and moved to Missouri. In April 1980, Mike sold the auction house to Johnnie and Ora Bassett. The real estate sales agreement and warranty deed were executed by Mike alone. The note and mortgage given to secure the loan were executed in favor of Mike.
On December 1,1982, an escrow account was established at the appellant bank, First National Bank of Rogers, to receive the note payments from the Bassetts. The escrow agreement was signed solely by Mike. Payments received by the Bank were placed into a savings account held jointly by Mike and Hal with rights of survivorship. The account was closed by Hal three days after Mike’s death. The note and mortgage were assumed by appellees Harold and Connie Calloway on January 9,1985. The agreement for assumption identifies only Mike as the lender. At the time of Mike’s death on June 15,1986, the deed creating the joint tenancy was found in Hal’s safe. Hal recorded it after Mike’s death.
Copies of Mike’s income tax returns for the years 1982 through 1985 were entered into evidence. The returns reflect that interest income from the Bassett note was paid solely to Mike.
The appellant first argues that the deed from Mike to himself and Hal as joint tenants was an attempt by Mike to make a testamentary disposition because Mike did not intend Hal to have a present interest in the property. At trial, Lois Buchannan, a sister of both Hal and Mike, testified that Hal was instructed by Mike not to file the deed until after Mike had died. The appellant argues that this, coupled with the fact that Mike alone sold the property, indicates that the deed was in reality a “will.”
In the cases relied upon by the appellant, Ransom v. Ransom, 202 Ark. 123 ,149 S.W.2d 937 (1941), and Broomfield v. Broomfield, 242 Ark. 355, 413 S.W.2d 657 (1967), the grantors did not create joint tenancies in themselves; rather, the grantors were attempting to divest themselves of all their interest in the property. These cases turned on whether there was delivery, which we will shortly discuss. We are not persuaded that Mike’s continued exercise of control over the property defeated Hal’s interest. A joint tenancy is a present estate in which both joint tenants are seized of the real estate. Miller v. Riegler, 243 Ark. 251, 419 S.W.2d 599 (1967) (emphasis added). Both cotenants are possessors and owners of the whole estate. Id. Mike’s continued involvement with the property is consistent with a joint tenancy.
The fact that we find dispositive is that the proceeds from the note were deposited into a joint account in both brothers’ names, indicating that Hal’s interest in the property was a present interest. Furthermore, the fact that Mike apparently had exclusive use of the funds for two years prior to the establishment of the escrow account and the fact that it appears Mike alone claimed the benefits on his tax return forms for four years, do not convince us that the deed was not valid. Joint tenants may contract with each other concerning the use of the common property as for the exclusive use of the property by one of them, or the division of income from the property. Miller v. Riegler, supra, quoting 48 C.J.S. Joint Tenancy § 10.
The appellant next argues that the deed was not delivered. A valid delivery includes an intention to pass title immediately and loss of dominion by the grantor over the deed. Adams v. Dopieralla, 272 Ark. 30, 611 S.W.2d 750 (1981). Generally, for delivery to be effective, the instrument must pass beyond the grantor’s dominion and control. Broomfield, v. Broomfield, 242 Ark. 355, 413 S.W.2d 657 (1967). We think that in cases where the grantor creates a joint tenancy in himself and another person, it is unreasonable to require that the grantor give up all control. See Miller v. Riegler, supra.
In the present case the deed contained a notation indicating that the deed was to be delivered to Hal and listed Hal’s address. The deed was placed in Hal’s safe, to which, testimony revealed, both brothers had access. There is a strong presumption in favor of a deed when it is shown to have been executed by a competent person not acting under undue influence, if the document remains in the hands of the named grantee. Woodruff v. Miller, 212 Ark. 91, 205 S.W.2d 181 (1947). Under the facts of this case, the presumption is not rebutted merely because both brothers had access to the safe and Mike continued to exert some individual control over the property.
The appellant’s final argument concerns whether Mike’s creation of the joint tenancy four days prior to his marriage to Josephine operated to defraud her of her dower rights. The appellant had to show by clear and convincing evidence that Mike had conveyed the property for the purpose of depriving his intended wife of the legal benefits of the marriage. Wilhite v. Wilhite, 242 Ark. 705, 415 S.W.2d 44 (1967).
On our review of chancery cases, we will not set aside a chancellor’s findings of fact unless they are clearly erroneous or against the preponderance of the evidence. Cuzick v. Lesly, 16 Ark. App. 237, 700 S.W.2d 63 (1985). At the time of the marriage, Mike was 75 and Josephine was 78. Both had been married before. Josephine’s house was sold, and the proceeds from the sale, along with a $500.00 contribution from Mike, were used to buy certificates of deposit in the names of Josephine and her children. They then purchased a residence for themselves. Lois Buchanan testified that Mike told Josephine that “what was his was his and what was hers was hers.” Prior to the marriage, Mike told Roy Hummel, his nephew, that he had taken care of everything and “what’s mine is mine and what’s hers is hers.”
Although we agree with the chancellor that this evidence will not support a finding that Mike and Josephine had a prenuptial agreement, we do think it will support a finding that both Mike and Josephine intended for their respective families to benefit from their separate property. The evidence simply will not support a finding that Mike intended to defraud Josephine of her dower rights when he created the joint tenancy.
Affirmed.
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John E. Jennings, Judge.
Between 1982 and 1985, appellee Dixon Funeral Home, Inc., (Dixon) provided funeral services for 17 people. Ten of them had burial certificates written by Shinn Burial Association (Shinn) and seven had burial certificates written by Arkansas Burial Association (Arkansas Burial). Each certificate provided that the burial association’s affiliated funeral home would provide, on the death of the certificate holder, funeral services of a stated value ranging from $200.00 to $500.00.
In each case Dixon took an assignment of the certificate from the family of the deceased and gave credit for the face amount of the certificate. Dixon then sued Shinn and Arkansas Burial for the face amount of each certificate. It was stipulated at trial that in every instance but one Dixon did not notify the burial association of the member’s death prior to the funeral. Notice was given to Arkansas Burial Association of the death of Carmen Nelms. The Arkansas Burial Association Board (the Board) intervened in the lawsuit on the side of Shinn and Arkansas Burial.
The primary issue in the trial court was whether, under the terms of the variously worded certificates, Dixon’s failure to give notice of death resulted in a forfeiture of benefits.
The trial court held that the notice provisions contained in the certificates issued by Arkansas Burial were unambiguous; therefore, Dixon had forfeited any rights to benefits under these certificates. The court further found that the notice provisions contained in Shinn’s certificates were ambiguous and awarded Dixon judgment against Shinn in the amount of $2,700.00, representing the total of the face amounts of the certificates. Finally, the court awarded Dixon judgment against Arkansas Burial for $500.00, the face amount of the Nelms certificate.
We affirm the trial court’s holding as to the Arkansas Burial certificates, including the Nelms certificate, but reverse the decision as to the Shinn certificates.
The history of burial associations was discussed by the supreme court in Drummond Citizens Ins. Co. v. Sergeant, 266 Ark. 611, 588 S.W.2d 419 (1979):
Burial associations arose out of the depression years in our country for the mutual benefit of those who desired assurance at a modest price that they would be given a decent and proper burial. . . . The one distinguishing and laudatory characteristic of these burial associations was that a person was guaranteed a complete and respectable funeral. . . . As the cost of funeral services and merchandise increased over the years, the bylaws of the associations were changed so that many associations no longer guaranteed a complete funeral.
266 Ark. at 617-18, 583 S.W.2d at 422.
Appleman says that such associations were often started by enterprising undertakers, who themselves might undertake to provide the necessary burial services. 1 J. Appleman, Insurance Law and Practice § 14 (1981). As the court said in Drummond, the General Assembly first recognized burial associations in Act 264 of 1933. Act 91 of 1953 created the Arkansas Burial Association Board, redefined burial association, and limited benefits to $500.00.
Burial association certificates are not insurance, Herndon v. Wasson, 188 Ark. 329, 66 S.W.2d 633 (1933),butare so similar that the rules of construction governing insurance policies are applicable. Anderson v. Frank Reid Burial Association, Inc., 218 Ark. 817, 239 S.W.2d 12 (1951).
Ron Oliver, the Executive Secretary of the Board, testified that burial associations cannot exist on their own but must be associated with a funeral home which subsidizes them to a certain extent. He explained that premiums were originally structured to provide a decent burial at the lowest possible cost and that the aim of the burial associations was not to make money but to try to break even. He testified that the average cost of a funeral today is approximately $2,500.00. He said that consistent payment of the full face amount of the certificates would adversely affect the solvency of any burial association. He testified that the Board is mainly but not entirely concerned with the consumer.
Oliver also testified that the reason for the notice provisions in the certificates was to permit the funeral home associated with the burial association to provide services or merchandise in an amount equal to the value of the certificate. Other witnesses testified that it was the custom in the industry for funeral homes to enter into reciprocal agreements to pay each other a percentage of the face value of the certificates in lieu of furnishing goods or services.
We cannot agree with the trial court that the notice provisions in the Shinn certificates were ambiguous. While we do not set aside a trial court’s finding of fact unless it is clearly erroneous, Ark. R. Civ. P. 52, the determination of whether a contract is ambiguous is a matter of law. C. & A. Construction Co. v. Benning Construction Co., 256 Ark. 621, 509 S.W.2d 302 (1974); Gilstrap v. Jackson, 269 Ark. 871, 601 S.W.2d 270 (Ark. App. 1980). The rule of strict construction does not mean that courts may strain the construction of ordinary terms in the contract to create ambiguity where one does not appear. Services & Exchange Commission v. Arkansas Loan & Thrift Corp., 297 F. Supp. 73 (W.D. Ark. 1969).
By way of example, the certificate issued by Arkansas Burial for Fowler said:
Failure to notify the Secretary-Treasurer of the death of a member within the service area of the Association before burial shall relieve the Association of liability under the certificate of such deceased member.
The certificate issued to Donnel by Shinn contained precisely the same language. We cannot agree that one is ambiguous and the other unambiguous.
The certificate issued for Stafford by Arkansas Burial provided:
Certificate holders shall notify that office of the secretary or the funeral director named on the folded face of this certificate immediately after any death, and failure to do so within 24 hours shall forfeit all right of benefits in relation to said debt.
The certificate issued to Gray by Shinn provided:
Upon the death of a member of the association, those in charge of the body of the deceased shall notify the president or secretary who shall have the exclusive right to furnish funeral services .... Failure to notify the president or secretary of the death of a member before he or she is buried shall forfeit all rights of the deceased to the benefits under his or her certificate of membership.
Again, the certificates are equally clear: benefits are not payable unless notice of death is given.
Dixon relies on Drummond, supra and Gregg Burial Association v. Emerson, 289 Ark. 47, 709 S.W.2d 401 (1986). The certificates in those cases were similar to those we have in the case at bar. In Drummond, the certificates seemed to say that the funeral home selected by the burial association had the exclusive right to furnish the funeral. The burial association there contended that, unless its associated funeral home furnished the funeral, no benefits were payable. The court held that provision to be ambiguous and therefore, the family of the deceased could select which funeral home it wanted to provide the funeral. The court in Drummond upheld the trial court’s finding that although the burial association was not required to pay cash under the terms of the certificate, having failed to furnish merchandise or services of a value equal to the face amount of the certificate, it was liable in cash for the face amount.
In Gregg, the court simply declined to overrule its earlier holding in Drummond. In both Gregg and Drummond it was stipulated that notice of death had been given. Neither case involved the validity of the notice provisions in the certificate and therefore neither case is in point. The certificates in the case at bar may well be ambiguous as to the exclusive right of the associated funeral home to perform the funeral, under the holding in Drummond, but that is not the issue here.
Dixon argues that notice should be excused in this case because one of the appellant’s witnesses who was an undertaker testified that he thought the certificate gave his funeral home the exclusive right to bury the certificate holder. While Dixon is correct that this position is untenable under the holding of the supreme court in Drummond we do not agree that this opinion expressed at trial dispenses with the necessity of notice.
On cross-appeal Dixon argues that the notice provision in the certificates is unconscionable and therefore should not be enforced. At trial, Mr. Dixon testified that the reason he thought the notification requirement was unconscionable was that it was too expensive to draft and mail a letter. There was other testimony, however, that it was the custom in the industry to simply make a telephone call. Article 26 of the Board’s bylaws provides that failure to notify the burial association of death, prior to burial, relieves the association of liability. The Board is given the authority to regulate the industry by Ark. Stat. Ann. § 66-1801 et seq. (Repl. 1980). Section 66-1823 provides that the regulations promulgated by the Board “shall have the full force and effect of statute.” In his application for authority to operate his own burial association, Mr. Dixon expressly agreed to comply with all regulations of the Board. Oliver testified that notice prior to burial has always been one of the Board’s bylaws and regulations. On these facts, we hold that the notice provisions in the various certificates are not unconscionable.
Dixon also argues that the notice provision constitutes an unfair restraint of trade. We cannot consider this argument because it was not raised in the trial court. McIlroy Bank & Trust v. Swen Day Builders of Arkansas, Inc., 1 Ark. App. 121, 613 S.W.2d 837 (1981).
Finally, appellants contend that it was error for the court to award Dixon judgment for $500.00, the face value of the Nelms certificate. We disagree. It was stipulated that Arkansas Burial received notice. Mrs. Nelms died in Waveland and the body was taken to Humphrey Funeral Home, which is associated with Arkansas Burial. There, the body was embalmed, at a cost of $260.00, before it was picked up by Dixon Funeral Home and taken back to Danville for the funeral. It is undisputed that Dixon paid Humphrey for the embalming. Under the certificate, and the holdings in Drummond and Gregg, it was the obligation of the associated funeral home, once notice was given to its burial association, to tender goods or services in an amount equal to the value of the certificate, in this case $500.00. The trial court found that such a tender was not made and that finding is not clearly wrong.
On direct-appeal we affirm the trial court’s holding as to the Arkansas Burial certificates and the Nelms certificate and reverse the court’s holding as to the Shinn certificates and remand to the circuit court for an entry of an order consistent with this opinion. We affirm on cross-appeal.
Affirmed in part, reversed in part, and remanded on appeal. Affirmed on cross-appeal.
Cooper and Mayfield, JJ., agree. | [
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Beth Gladden Coulson, Judge.
Appellant, Donald Ray Adams, brings this appeal from a conviction of theft by receiving under Ark. Code Ann. § 5-36-106 (1987), and as an habitual offender under Ark. Code Ann. § 5-4-501 (1987). On appeal, appellant challenges his sentence of six years in the Arkansas Department of Correction, arguing that the State waived the mandatory sentence for habitual offenders by failing to object to a jury instruction which omitted a term of imprisonment.
On January 6, 1987, appellant was charged with theft by receiving, a Class C felony, and as an habitual offender, which carries a penalty for a conviction of a Class C felony of not less than six nor more than twenty years imprisonment. On March 10, 1987, a jury found appellant guilty of theft by receiving, and the trial court determined that appellant was an habitual offender. The verdict form erroneously provided an option permitting the jury merely to assess only fine not to exceed $10,000. When the form was delivered by the jury to the court, only a fine of $5,000 was indicated. Despite the fact that the deputy prosecutor had not objected to the incorrect form, the trial court, on March 12,1987, struck the fine and imposed a sentence of six years imprisonment. From that judgment, this appeal arises.
During the sentencing phase, the trial court, after reading a jury instruction that clearly stated the jury’s sentencing options were limited to either a term of imprisonment or a term of imprisonment and a fine, submitted to the jury a verdict form that contained the improper alternative penalty of only a fine. Realizing that a mistake had occurred, the court advised the attorneys for appellant and the State. The court first suggested withdrawing the erroneous verdict form but then decided, for reasons that are not clear from the record, to allow it to remain uncorrected. The deputy prosecutor observed that, while under the Habitual Offender Act one can either be imprisoned or imprisoned and fined, one “cannot be given just a fine.” Nevertheless, he declined to request that a correct form be substituted, relying instead on the jurors’ “common sense.”
It is appellant’s contention that the State, by electing not to object to the erroneous verdict form, waived the mandatory prison sentence requirement of the Habitual Offender Act. A reading of Ark. Code Ann. § 5-4-104(e)(4) (1987) reveals that not even a judge, much less a prosecutor, can waive that requirement at least after it has been established, pursuant to the statute, that the defendant is an habitual offender.
The court shall not suspend imposition of sentence, place the defendant on probation, or sentence him to pay a fine if it is determined, pursuant to § 5-4-502, that the defendant has previously been convicted of two (2) or more felonies.
Explaining the statutory language, the Arkansas Supreme Court, in Kinsey v. State, 290 Ark. 4, 716 S.W.2d 188 (1986), stated that “This sentence is a limitation on the court’s exercise of leniency allowed in the first part of the statute. Read in context, it obviously means that the court is not allowed to ‘only’ impose a fine in place of a prison sentence when the defendant is an habitual offender.” 290 Ark. at 8, 716 S.W.2d at 190.
Further, Ark. Code Ann. § 16-90-107(d) (1987) provides that:
If the jury in any case assesses a punishment, whether of fine or imprisonment, below the limit prescribed by law for offenses of which the defendant is convicted, the court shall render judgment and pronounce sentence according to the lowest limit prescribed by law in such cases.
In the present case, the trial court pronounced a sentence of six years according to the lowest limit of the range prescribed by Ark. Code Ann. § 5-4-501 (a)(4) (1987). It is within the trial court’s discretion to set punishment for a defendant within the statutory range of punishment provided for in a particular crime. Noland v. State, 265 Ark. 764, 580 S.W.2d 53 (1979). The court’s action was taken in order to correct its earlier error in allowing the jury to use an erroneous form.
Affirmed.
Cooper and Mayfield, JJ., agree. | [
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George K. Cracraft, Judge.
James D. Knox appeals from an order of the chancery court of Pulaski County denying his petition to vacate a divorce decree entered by that court and holding him liable for child support payments accrued under it. On appeal, he contends that the court lacked personal jurisdiction over him sufficient to resolve the property division and child-support issues and also lacked jurisdiction to determine custody of the parties’ minor child. We affirm.
On February 24, 1986, the appellee brought an action for divorce in Pulaski County, Arkansas, alleging that she had been a resident of that county for more than sixty days, that the appellant was a resident of Tennessee, and that appellant had subjected her to intolerable indignities, for which she was entitled to a divorce, custody of their child, a division of property, and an award of child support. The record shows that appellant was served with a copy of the complaint and summons delivered to him by certified mail in the State of Tennessee as permitted by Ark. R. Civ. P. 4(e) (3). The appellant filed a special appearance challenging the jurisdiction of the Arkansas court on the grounds that a complaint for divorce had already been filed in Tennessee, the parties were married and had lived in Tennessee, and the property was located in Tennessee. He contended that Tennessee was the only forum having jurisdiction of the property and child-related issues.
On April 22,1986, former chancellor Bruce Bullion entered a decree reciting that appellant had not answered “though having been duly notified in compliance with Arkansas law by being notified by certified mail for which he personally signed.” The decree further recited that appellee was present in person and through her attorney, and that an attorney from Memphis, Tennessee, had appeared seeking to represent the appellant but was not accompanied by an attorney authorized to practice in Arkansas. The decree recited that the Memphis attorney was present throughout the hearing and asked questions. The decree further recited that the court heard testimony of the appellee and five other witnesses, and, after considering the pleadings, testimony, exhibits, arguments of counsel, and other things and matters presented before it, found that “Madalyn D. Knox is a resident of the State of Arkansas and this court has jurisdiction over the parties and subject matter before it.” The court found that the appellee had established her grounds for divorce, awarded her a divorce and custody of the minor child, ordered a division of the parties’ property, and directed appellant to pay child support in the amount of $313.90 per month. No appeal was taken from that decree nor was the evidence heard by Judge Bullion preserved or brought forward in the record.
Over a year later, the appellee obtained a show-cause order directing appellant to appear and show cause why he should not be held in contempt for failure to pay the ordered child support. Appellant then filed a “Special Appearance for the Purpose of Contesting Jurisdiction and Motion to Set Aside the Divorce Decree as Void for Lack of Jurisdiction.” In this petition, he contended that the court was without jurisdiction to enter the decree of April 22,1986, and that the decree should be set aside for that reason.
On September 28,1987, the present chancellor, Ellen Brantley, conducted a hearing on appellee’s motion for contempt and appellant’s petition to vacate the decree. After the hearing, Judge Brantley concluded that appellant’s conduct in accepting the benefits of the decree, including the property awarded him, estopped him from asserting that the original decree was invalid because the court had lacked jurisdiction of his person. We conclude that this finding was a permissible one on the evidence presented at that hearing. Anderson v. Anderson, 223 Ark. 571, 267 S.W. 2d 316 (1954).
There are, however, even more compelling reasons why that defense was not available to the appellant. Service was had on him in the State of Tennessee in the manner provided for service of summons outside this state as provided in Ark. R. Civ. P. 4(e)(3). In Bunker v. Bunker, 261 Ark. 851, 552 S.W.2d 641 (1977), the supreme court held that the acquisition of personal jurisdiction under our so-called “long-arm statute,” Ark. Code Ann. § 16-58-120 (1987) (formerly Ark. Stat. Ann. § 27-339.1 (Repl. 1979)), is not restricted to tort actions but applies to all causes of action arising out of acts done within this state, including divorce, alimony, support, and property division. The court also held in Bunker that whether the exercise of jurisdiction on the basis of acts done within this state is reasonable depends on the “basic fairness” test of due process and on consideration of factors set forth in that opinion. Whether the acts of a nonresident are sufficient to give rise to a cause of action in this state and whether the basic fairness requirements are met are questions of fact for initial determination in the trial court. Id.
When a nonresident defendant is served with process outside this state, he has more than one option. He may elect one or the other but may not pursue both. If he has confidence in his belief that the jurisdictional facts required in Bunker do not exist, he may elect to do nothing, risk the entry of default judgment against him, and assert his defense of lack of personal jurisdiction when the judgment is sought to be enforced against him in his home state. Hanson v. Denckla, 357 U.S. 235 (1958); Baldwin v. Iowa State Traveling Men’s Association, 283 U.S. 522 (1931); Hawes Firearm Co. v. Roberts, 263 Ark. 510, 565 S.W. 2d 620 (1978). The nonresident may, on the other hand, elect to raise those jurisdictional issues in the trial court from which that summons was issued. However, if he does so, he submits himself to the jurisdiction of that court on those issues and, if aggrieved by the court’s determination as to its jurisdiction, the error must be corrected on appeal. If he fails to appeal the ruling, or is unsuccessful in his appeal, he is estopped from thereafter raising that issue in any court. Brown & Hackney, Inc. v. Stephenson, 157 Ark. 470, 248 S.W. 556 (1923); Ederheimer v. Carson Dry Goods Co., 105 Ark. 485, 152 S.W. 142 (1912). See also Insurance Corporation of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982); Chicot County Drainage District v. Baxter State Bank, 308 U.S. 370 (1940); Baldwin v. Iowa State Traveling Men’s Association, supra; 5 Am. Jur. 2d Appearance § 4 (1962).
The rule of general application is perhaps best stated in the Restatement of Judgments as follows:
Where, however, the defendant appears in the action only to object that the court has no jurisdiction over him, that is where he enters a special appearance, the court does not acquire jurisdiction over him because of his appearance (see § 20), except to decide the question so raised. But if the court determines that it has jurisdiction over him, even though that determination is erroneous on the facts (see Illustrations 1 and 2) or on the law (see Illustration 3), the determination is res judicata between the parties. This is an application of the general principle of res judicata, precluding the parties from relitigating a matter determined by a court after a fair opportunity has been afforded to them to litigate the matter (see § 1).
If the defendant appears in an action for the purpose of objecting that the court has no jurisdiction over him, he thereby submits to the court for its determination the question whether the court has jurisdiction over him. If the court erroneously determines that it has jurisdiction over the defendant, he has ground for reversal in an appellate court, and ground for carrying the case to the Supreme Court of the United States since a judgment rendered against him by a court having no jurisdiction over him deprives him of property without due process of law in violation of the provisions of the Fourteenth Amendment to the Constitution of the United States. If, however, he does not avail himself of these remedies, or if the judgment is affirmed, or if the appellate court or the Supreme Court of the United States declines to consider the case, the defendant cannot thereafter successfully contend that the judgment was void, even though in fact the court had no jurisdiction over him. The defendant, having submitted the question of jurisdiction to the court, the court has jurisdiction to determine the question of its jurisdiction over the defendant, and the determination of that question is res judicata.
Restatement of Judgments § 9 comment a (1942) (emphasis added). In his treatise on conflict of laws, Dr. Robert Leflar states: “This has been called the ‘bootstrap doctrine,’ the idea being that a court which initially had no jurisdiction can, when the issue is litigated, lift itself into jurisdiction by its own possibly mistaken but conclusivefinding that it does have jurisdiction.” R. Leflar, L. McDougal and R. Felix, American Conflicts Law § 79 (4th ed. 1986) (emphasis added).
The decree in which the award of child support was made recognized and recited that the appellant was a resident of Tennessee and was served within that state, but the court found that it had jurisdiction of the subject matter and the persons of the parties. The appellant had submitted himself to the jurisdiction of the court on that issue by the entry of his “special appearance” and, as there was no appeal from the court’s finding and decree, it became final and binding as to the factual determination of jurisdiction, whether or not correctly decided. The appellant was afforded his day in court on his special appearance and is not entitled to another one under the doctrines of res judicata and estoppel by judgment.
In oral argument, appellant contended that he was prevented by actions of the chancellor from fully presenting his motion to quash the summons at the divorce hearing. In the absence of a record, we do not know what transpired at that hearing. However, by filing his motion questioning jurisdiction, appellant submitted that issue to the court and was bound by its determination from which he failed to appeal. If he felt aggrieved by a factual determination, procedural error, or discretionary ruling, he should have sought correction of it on appeal. Once the issue was submitted to the court, he could not simply walk away from the arena and begin his attack anew at some other time and place.
Even if the issue of the court’s jurisdiction was an open one at the time of the second hearing, the result must be the same. The motion constituted a collateral attack on the decree. As the decree recited that the court had jurisdiction of the persons and subject matter, it will be presumed, until the contrary appears, that the court had facts before it on which to base its finding. Frazier v. Merrill, 237 Ark. 242, 372 S.W.2d 264 (1963); Crittenden Lumber Co. v. McDougal, 101 Ark. 390, 142 S.W. 836 (1911); Hearns v. Ayres, 77 Ark. 497, 92 S.W. 768 (1906). The burden of proving the contrary rests on the party attacking the decree. At the hearing, appellant did not testify or present affirmative evidence that the jurisdictional facts had not been shown or did not exist. Appellee’s testimony related primarily to the issue of child support arrearages and appellant’s acceptance of the benefits of the decree. There was no evidence that during the numerous visits to Arkansas appellant committed no act which would give rise to a cause of action sufficient to invoke our long-arm statute. Appellee had no burden to prove the existence of those facts which were presumed to exist.
The divorce decree recited that the appellant had been properly served with summons, and the court found that it had jurisdiction of his person and the subject matter of the action. None of the evidence considered by Judge Bullion on either finding is included in the transcript of the record presented to us or was before Judge Brantley on the motion to vacate. Although both parties based arguments on facts assumed to have been before Judge Bullion, we are bound by the record before us. When jurisdiction of a court of general jurisdiction depends on facts not appearing in the ‘record, it will be presumed in a collateral proceeding that the court did have facts before it on which to base its finding in favor of its jurisdiction. Frazier v. Merrill, supra; Crittenden Lumber Co. v. McDougal, supra; Hearn v. Ayres, supra.
Whether a chancery court of this state should exercise its jurisdiction to enter a custodial order under the provisions of Ark. Code Ann. § 9-13-203(a)(2) (1987) (formerly Ark. Stat. Ann. § 34-2703(a)(2) (Supp. 1985)) also depends on the resolution of questions of fact. Pomraning v. Pomraning, 13 Ark. App. 258, 682 S.W.2d 775 (1985). The rules set out above regarding res judicata and the presumptions in favor of the court’s findings in the absence of a record apply equally to this issue. Furthermore, even if this issue could properly have been raised at the hearing before Judge Brantley, appellee stated at that hearing that she was born and raised in Little Rock and educated in its public schools. She graduated from our state university at Fayetteville. After her marriage she resided for four years in Memphis, Tennessee. Her parents and a number of close relatives continued to reside in Pulaski County, Arkansas. During her marriage she visited her parents here at least once monthly. On a number of occasions the child remained with appellee’s parents while she and appellant were on vacation trips. On one prior occasion when domestic problems arose, she and the child returned to her parents’ home. At one time they resided in her parents’ home for over a month while appellant sought alcoholic rehabilitation in an Arkansas institution. At the time of the divorce hearing appellee and the child had been in this state for over four months. These facts are strikingly similar to those in Pomraning v. Pomraning, supra, in which we upheld the court’s exercise of its jurisdiction to determine custody, and we cannot conclude that the court erred in so exercising its jurisdiction in this case.
Affirmed.
Mayfield and Jennings, JJ., agree. | [
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Andree Layton Roaf, Judge.
Joseph Wayne Eads was convicted by jury of five counts of incest, found to be a habitual offender, and sentenced to two hundred years in the Department of Correction. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4 — 3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, Eads’s counsel filed a motion to withdraw as his attorney, alleging that this appeal is without merit. Counsel also filed a brief in which he contends that all adverse rulings were abstracted and discussed. The clerk of this court furnished Eads with a copy of counsel’s brief and notified him of his right to file a pro se statement of points for reversal within thirty days. Eads did not file a statement. Because Eads’s counsel has failed to abstract and discuss all of the adverse rulings in this case, we order rebriefing.
An attorney’s request to withdraw from appellate representation on the ground that the appeal is wholly without merit must be accompanied by a brief including an abstract. Skiver v. State, 330 Ark. 432, 954 S.W.2d 913 (1997). The brief must contain an argument section that consists of a list of all rulings adverse to the defendant made by the trial court on all objections, motions, and requests made by either party with an explanation concerning why each adverse ruling is not a meritorious ground for reversal. Adaway v. State, 62 Ark. App. 272, 972 S.W.2d 257 (1998).
Eads’s counsel filed a brief pursuant to his motion to withdraw and submitted that no reversible errors were committed at the trial court level and that an appeal would be wholly without merit. While twelve adverse rulings are abstracted and discussed, counsel did not abstract or discuss four other adverse rulings.
In Sweeney v. State, 69 Ark. App. 7, 9 S.W.3d 529 (2000), this court ordered rebriefing in an Anders case where the appellant’s counsel failed to discuss the sufficiency of the evidence. In so doing, we stated that Anders v. California “requires that after an appellant’s counsel submits a no-merit brief, this court conduct a full examination of the proceedings to decide if the case is ‘wholly frivolous.’ . . . We undertake this thorough review of the full record regardless of whether or not the appellant identifies the trial court’s errors.” Sweeney, supra. Several months later, in Dewberry v. State, 341 Ark. 170, 15 S.W.3d 671 (2000), the supreme court likewise ordered rebriefing of an Anders case where, although the State had “cured” the abstracting deficiencies by supplemental abstract containing the omitted adverse rulings, counsel’s argument failed to addressed these rulings. Id.
In accordance with this precedent, and because of counsel’s failure to comply with Rule 4-3 (j), we order rebriefing. However, we note that the United States Supreme Court has stated that an Anders brief may be submitted in lieu of a merit appeal only when such an appeal would be “wholly frivolous.” This court has also ordered rebriefing in adversary form where we have found that not to be the case. Tucker v. State, 47 Ark. App. 96, 885 S.W.2d 904 (1994). The test is not whether counsel thinks the trial court committed no reversible error, but rather whether the points to be raised on appeal would be “wholly frivolous.” Ofochebe v. State, 40 Ark. App. 92, 844 S.W.2d 373 (1992). If any of the issues raised are not wholly frivolous, we do not determine whether error was committed, but order rebriefing in adversary form. Id. Consequently, if an appeal from even one of the sixteen adverse rulings made in the instant case would not be wholly frivolous, the Anders procedure should not be employed.
On rebriefing, counsel may elect to either submit a brief in adversary form or one in compliance with Rule 4-3 (j) as to all adverse rulings contained in the record.
Rebriefing ordered.
Bird and Baker, JJ., agree. | [
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Andree Layton Roaf, Judge.
Appellees,. Mayme Curry Wade, Sherman Wade, Bishop Curry, Cynthia ‘Moore, ■Veronica Stitt, Alton Stitt, Jr., and Alton Stitt, Sr. (“the heirs”), are owners of a forty-acre tract in Lafayette County. The heirs sued appellant, Daniel Dillard, owner of a two-thirds interest in the timber on the tract, alleging that Dillard wrongfully clear-cut and sold all of the timber on the property. A jury awarded the heirs $41,594.91, which represented one-third of the value of the timber and costs of restoration. Dillard appeals, and argues that the trial court erred in denying his motion for directed verdict and in giving jury instructions concerning conversion and wrongful cutting of timber. We affirm.
The appellees are the heirs of D.H. Rankin, who acquired the property in question in 1925, and who died intestate in 1939. Dillard, who owns a forty-acre tract adjoining the Rankin property, began contacting the heirs in 1992 in the attempt to purchase their interests in the property. Two of the heirs, Mayme Curry Wade and Cynthia Moore, re&sed to sell Dillard their interests, but he was successful in acquiring the one-ninth interest of Moore’s brother, Clarence Curry, and a one-third timber interest from Paul Rankin, Jr., in 1992 or 1993.
At trial, Mayme Curry Wade testified that when she and her brother, Bishop Curry, went to Lafayette County in early October 1993 to pay the property taxes, they observed that timber was being cut on their tract. Wade testified that she reported the matter to the sheriff and consulted with an attorney, who advised her that Dillard, as a co-tenant, could sue for partition and sale of the property. Consequently, because they did not want to lose the family’s land and home place, Wade and her brother agreed to convey their two-ninths timber interest to Dillard in exchange for a deed to the interest he held in the “dirt.” There was conflicting testimony about when those deeds were signed; Wade testified that the deeds were signed after she observed timber being cut from the property in early October, however, the deeds were dated and acknowledged in mid-September and on October 1, and Wade’s attorney testified that the dates were correct. Nevertheless, after this exchange, Dillard held as co-tenant only a two-thirds undivided timber interest in the property.
Dillard, who testified that he had the timber appraised for $19,000 in June 1993, subsequently wrote the heirs that he would cut the timber on the property by December 31, 1993. He testified that he had paid the heirs $5,333 for their interests and sold his timber interest to Tim Rowe for $9,000. Rowe testified that he paid Dillard $9,000 for his interest, clear-cut all of the timber, knew that Dillard did not own all of the timber interest in the property but did not know the amount he owned, had bought tracts of timber from Dillard in the past, and did not share the sawmill profits from the transaction with Dillard. Rowe did not state what these profits were, and the timber deed from Dillard to Rowe introduced into evidence was not dated, acknowledged or recorded. Dillard’s expert testified that he did a cruise of the property and assessed the total value of the timber at $19,708.20. The heirs’ expert witness testified that he conducted a stump cruise two years after the timber was cut and estimated the value of the timber at $116,784.75, and the restoration costs to be $8,000. The heirs’ appraiser also testified that there was a mathematical error in the work-sheet calculations made by Dillard’s expert such that his total value of $19,708.20 should be doubled. The jury awarded the heirs one-third of the sum provided by their expert.
On appeal, Dillard first argues that the trial court erred in denying his motion for a directed verdict on the basis that there was no evidence that he was responsible for the cutting of the timber on the Rankin estate. When deciding whether the trial court erred in denying a motion of a directed verdict, this court must determine whether there is substantial evidence to support the jury’s verdict. Dobie v. Rogers, 339 Ark. 242, 5 S.W.3d 30 (1999). Substantial evidence is that degree of evidence sufficient to compel a person to a conclusion without resort to speculation or conjecture. Id. This court reviews the evidence and all reasonable inferences in the fight most favorable to the party who is awarded the judgment. Id.
The heirs sued Dillard for conversion and the wrongful cutting of timber. The tort of conversion is committed when “a party wrongfully commits a distinct act of dominion over the property of another which is inconsistent with the owner’s rights.” Dent v. Wright, 322 Ark. 256, 909 S.W.2d 302 (1995). Dillard asserts that in a wrongful-cutting-of-timber action, the plaintiff must show that he owned the timber in dispute, that the defendant had no authority to sell the timber, and the defendant either cut and removed the timber himself or conveyed the timber which is then cut and removed by another in contradiction of the plaintiffs rights. In support of his argument, Dillard cites Parker v. Turner, 219 Ark. 194, 242 S.W.2d 148 (1951). However, Parker is a trespass case and does not deal with either the tort of wrongful cutting of timber or conversion by a co-tenant. In Harnwell v. Arkansas Rice Grower’s Co-Op. Ass’n, 169 Ark. 622, 276 S.W. 371 (1925), involving tenants in common of a rice crop, the supreme court held that, “where one tenant in common of a chattel sells it without the consent of the other, he and the purchasers have converted the property by the act of sale and retention of the proceeds to the exclusion of the rights of the tenant in common who did not authorize the sale.” Id. In Fitzhugh v. Norwood, 153 Ark. 412, 241 S.W. 8 (1922), the supreme court likewise held that if a tenant in common cuts timber without the consent of one co-tenant, the latter could recover actual damages, as opposed to the treble damages recoverable in an action for trespass against a stranger to the land. Moreover, an interest in timber is an interest in the land. See Henry Quellmalz Lumber & Mfg. Co. v. Roche, 145 Ark. 38, 223 S.W. 376 (1920) (holding that a deed to growing trees authorizing the grantee to cut and remove the same within a specified time conveys an interest in the lands). Consequently, it is irrelevant whether the timber was cut after Dillard conveyed his interest in the land back to the heirs as he was a co-tenant with respect to the timber and was liable for conversion, not trespass.
There was sufficient evidence presented from which the jury could conclude that Dillard wrongfuüy cut or caused all of the timber to be cut from the property, including Dillard’s prior business dealings with Rowe, the unrecorded and undated timber deed, and Dillard’s failure to advise Rowe of the amount of his ownership interest. Moreover, the jury need not have accepted Dillard’s testimony and could have concluded that the sale to Rowe was not an arm’s length transaction. The credibility of a witness is a question for the jury to resolve. Woodward v. State, 16 Ark. App. 18, 696 S.W.2d 759 (1985)..
Dillard also argues that the trial court erred in giving jury instructions concerning conversion and wrongful cutting of timber. However, Dillard objected to the instruction on the basis that a co-tenant could not wrongfully cut or convert the timber interest of another co-tenant and that he thus had the right to cut the timber without the heirs’ consent. Dillard does not challenge the substance or wording of the instructions as given, but contends that giving the conversion instruction was improper. Dillard further argues that he was only liable to the heirs for a proportionate share of the profits and benefits he derived from the property pursuant to Arkansas Code Annotated § 18-60-101 (1987). Dillard additionally contends that the jury instructions were improper because there was insufficient evidence from which the jury could conclude that he was a participant in the cutting of the timber, or received any of the proceeds of the sale of the timber cut by Rowe.
This argument must fail because of our resolution of Dillard’s first point. We do not agree that there was insufficient evidence for the case to go to the jury, as discussed in the previous point, or that the heirs did not have a cause of action against Dillard for conversion. Moreover, Dillard did not challenge the measure of damages to be awarded the heirs at trial and does so for the first time on appeal. The appellate court does not address an issue that is raised the first time on appeal. Beal Bank v. Thornton, 70 Ark. App. 336, 19 S.W.3d 48 (2000). As the jury instruction was a correct statement of the law, we can not say that the trial court erred in giving it.
Affirmed.
Griffen and Vaught, JJ., agree.
Arkansas Code Annotated section 15-32-501 (Repl. 2000) enacted by the legislature in 1995, now provides that a buyer may purchase and remove timber without consent of unknown or unlocatable co-owners or co-heirs when at least eighty percent of the ownership interest in the land has consented. | [
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Wendell L. GRIFFEN, Judge.
Dallas County Hospital, appellant employer, and Virginia Reciprocal Exchange, its workers’ compensation insurance carrier, appeal a decision by the Workers’ Compensation Commission that found appellee Judy Daniels was entitled to an open-ended award of temporary total disability benefits and that the performance of an intradiscal electro-thermal treatment (IDET) was reasonably necessary to treat appel-lee’s compensable back injury. Appellants argue that the Commission’s decision is clearly erroneous. We hold under the substantial evidence standard of review, the Commission’s decision is supported by substantial evidence. Therefore, we affirm.
The parties agree that on April 24, 1998, appellee sustained a compensable injury to her back while performing housekeeping duties in the employ of Dallas County Hospital. Appellee received temporary-total-disability benefits until October 31, 1998, when her employer contended that she had reached maximum medical benefit and that all appropriate benefits were paid. A hearing was held before an administrative law judge (ALJ), who was asked to consider 1) whether appellee was entided to an open award of temporary-total-disability benefits as of November 1, 1998, 2) whether a referral to Dr. John Wilson was warranted, and 3) whether appellee should undergo an IDET procedure.
At the hearing, appellee testified that she injured her back as she picked up a chair while waxing floors for the employer. Prior to this incident, she had not experienced any back problems. Appellee reported the injury to her supervisor, who sent her to He on a heating pad. The next morning, her supervisor sent her to Dr. Hugh Nutt, a general practitioner. During the next two years, appellee received treatment from Drs. Nutt, Simpson, Safinan and Hart. Dr. Nutt initially told appellee to stay off her feet. However, due to appellee’s increased pain, Dr. Nutt admitted her into Dallas County Hospital, where he ran CAT scans and administered pain medication. Dr. Nutt referred appellee to Dr. Simpson, who hospitalized her in Jefferson Regional for a day. Dr. Simpson subsequently treated appellee by giving her pain medication and muscle relaxers. He then sent appellee to Dr. Nutt, who took her off work and placed her back in the hospital. Appellee was next sent to pain clinics and seen by Dr. Safman, who sent her back to work.
Dr. Nutt eventually referred appellee to the Little Rock Pain Clinic and Dr. Thomas Hart, who recommended that she undergo an IDET procedure. She testified that she was willing to undergo the procedure because she had not been able to work and was in pain on a daily basis. On cross-examination, appellee stated that she had also seen Dr. Lipke, an orthopaedic surgeon who referred her to Dr. Wilson. She stated she had not seen Dr. Wilson. Appellee testified she had three MRIs, three CAT scans, a discogram, a myelogram, and an electro-nerve study.
Although appellee attempted to return to work twice, she was not successful. She stated that her back had not stopped hurting since her injury although she had sought treatment from various physicians, taken different pain medications, wore a back brace, and had a TENS unit. Appellee testified that the persistent pain in her back resulted in her inability to work, and that she currently sought treatment from Dr. Hart as her budget permitted.
Various medical notes were also introduced. The first medical evidence, the results of a CT scan ordered by Dr. Nutt and dated March 30, 1998, indicated “spinal stenosis L4-5 with mild posterior disc herniation, more marked on the left side and ligamentum flavum hypertrophy.” The scan also showed a bulging disc at L5-S1 that was present but not significant. Next, an MRI, which was ordered by Dr. Simpson on April 1, 1998, demonstrated no abnormalities. At the direction of Dr. Simpson, appellee underwent physical therapy, which was not effective. Dr. Simpson then ordered a myleogram and post-myelogram CT scan, which were performed on May 12, 1998, and revealed a “mild symmetrical bulging of the L4 disc with a component extending into the foramen on the left.” On May 18, 1998, appellee was released by Dr. Simpson to return to Dr. Nutt, who hospitalized her on July 28, 1998, after determining that appellee had severe back pain that was not controllable through medication. Dr. Nutt also indicated in his notes that appel-lee had a partially ruptured disc.
Appellee was next examined by Dr. Richard Peek on August 4, 1998, who recommended conservative treatment in the form of physical therapy, lumbar epidural steroid injections, and oral medications. Dr. Peek also diagnosed appellee with 1) lumbar annular tear, 2) left-sided sciatica, and 3) bulging disc, L4-5, left. She was next examined by Dr. Bruce Safman on September 19, 1998, and she reported no improvement. Because a previously administered injection was not effective, appellee visited the emergency room for treatment. Afterward, Dr. Safman changed appellee’s medication and prescribed Prozac for her pain. Appellee returned to the emergency room, and Dr. Safman readjusted her medication after she informed him that she was experiencing headaches. On November 2, appellee went to visit Dr. Safman and reported that she had visited the emergency room on two separate occasions. However, Dr. Safman determined that appellee had reached maximum medical improvement and released her without restrictions.
On November 4, 1998, appellee was admitted to the hospital after visiting the emergency room for back pain. After receiving conservative treatment, she was released on November 8, 1998. Appellee was next seen by Dr. Lipke, who reported to appellants the results of a CT scan that demonstrated a left sided herniation at 4-5 and mild stenosis. Dr. Lipke also noted in a March 30, 1999, report that appellee had been unable to work since the injury as a result of the failure of conservative measures. Dr. Lipke referred appellee to Dr. Wilson for further evaluation and additional medical treatment. Although appellants approved the referral, an appointment was not scheduled. Appellee was next evaluated on July 7, 1999, by Dr. Thomas Hart, who observed that past treatments were not successful and recommended discography to determine the source of appellee’s pain and if there was internal disc disruption. Dr. Hart performed the discography on September 9, 1999, and recommended IDET based on the test results.
The ALJ also received into evidence the deposition testimony of Drs. Simpson and Hart. Both physicians testified about discography and intradiscal electrothermal therapy. Dr. Simpson, a neurosurgeon, testified that he had not examined appellee since May 18, 1998, and characterized discography as “worthless,” and IDET as “hocus-pocus.” Dr. Simpson testified that he was not aware of any peer-reviewed studies that have occurred that indicate heating a disc will repair an annular tear, and that in his opinion, heating up a disc will absolutely not repair an annular tear. He also stated that he had not seen any peer-reviewed study or randomized peer-reviewed studies of IDET that would indicate that IDET is beneficial. Dr. Simpson testified that ninety-percent of his practice was spine surgery and that he kept up with literature dealing with treatment of the spine. He opined that appellee did not need an operation on any discs in her back. On cross-examination, Dr. Simpson acknowledged that he had not attended an American Association of Neurological Surgeons meeting within the last year.
■ In his deposition testimony, Dr. Hart testified his sub-specialty was pain management and that he was board certified in pain management. Hart testified that IDET was a new technology that had come out within the last two years. He stated that IDET was FDA approved, had a seventy percent national success rating, and consisted of a minor outpatient non-surgical procedure. Hart testified that he had performed approximately eighty IDET procedures. He also testified that appellee had circumferential disruption on her disc, and that taking out a portion from the back part of the disc might help alleviate her pain. Hart testified that the procedure was reasonable and that there was a good chance that appellee would receive improvement.
The ALJ found that appellee was entitled to an open-ended award of temporary-total-disability benefits beginning on November 1, 1998 and that appellee proved entitlement to a referral to Dr. Wilson. However, the ALJ denied appellee’s request for an IDET procedure. Both parties appealed the ALJ’s decision to the Commission, who reviewed the record de novo. The Commission agreed with the ALJ’s findings regarding the open-ended award of temporary-total-disability benefits and the referral to Dr. Wilson. However, it found that appellee proved that the IDET was reasonably necessary for the treatment of her compensable back injury. This appeal follows.
■ Standard of Review
When considering whether the evidence is sufficient to support the Commission^ conclusion, we View all evidence and reásonable inferences in a light most favorable toward the Commission’s decision. See Ester v. National Home Ctrs., Inc., 335 Ark. 356, 981 S.W.2d 91 (1998). The decision is affirmed when it is supported by substantial evidence, i.e., when reasonable minds viewing the same evidence as presented to the Commission could reach the same conclusion as the Commission. See id. The critical question is not whether we might' have concluded differently than the Commission or whether the evidence supports a different finding. See Barnett v. Natural Gas Pipeline Co., 62 Ark. App. 265, 970 S.W.2d 319 (1998). Rather, the question remains whether reasonable minds could arrive at the Commission’s conclusion. See id. at 268, 970 S.W.2d 321. When the answer is yes, we affirm. See id.
Entitlement to Temporary Total Disability Benefits
Temporary total disability represents that interval of time within the healing period in which a claimant suffers a complete inability to earn wages. See Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). The healing period is statutorily defined as “that period for healing of an injury resulting from an accident.” See Ark. Code Ann. § 11-9-102(13) (Supp. 1998). We have interpreted this period as including the time until the employee is as far restored as the permanent character of the injury will permit. See Roberson v. Waste Management, 58 Ark. App. 11, 944 S.W.2d 858 (1997). Once the underlying condition is more stable and will not improve with further treatment, the healing period is over. See id. Whether a claimant’s healing period has ended is a factual question that is resolved by the Commission. See id.
In the present case, appellants argue that appellee was not diagnosed with disc herniation until after November 2, 1998, when Dr. Safinan indicated that appellee had reached maximum medical improvement. The record clearly indicates that appellee was diagnosed with spinal stenosis at L4-5, with mild posterior disc herniation as early as March 30, 1998. She was also diagnosed by Dr. Nutt on July 28, 1998, with acute, severe back pain secondary to a partially ruptured disc. This diagnosis was echoed by Dr. Lipke in his medical note, dated March 30, 1999, which indicated that a CT of appellee’s lumbar spine showed a left sided herniation at L4-5 and mild spinal stenosis. Further, in a medical note dated October 1, 1999, Dr. Hart stated “post CT imaging after the [discography] procedure also demonstrated at L4-5 and L5-S1 levels, disc degeneration with posterior annular tears. A small central herniation at both levels, for L4-5 and L5-S1.”
The record also does not support appellants’ assertion that Dr. Lipke’s March 30, 1999, medical record “does not address appellee’s work status.” Indeed, Dr. Lipke plainly states in the March 30, 1999, medical record “she’s been unable to work since the time of injury, although several attempts have been made for her to return to work.”
Of the many physicians who treated appellee, only Dr. Safman determined that she had reached maximum medical improvement. It is significant that Dr. Safman made this determination on November 2, 1998, and two days later appellee was admitted into the hospital for treatment. Based on the foregoing, fair-minded individuals could agree with the Commission’s finding that appellee was still within her healing period and entitled to an award of temporary total disability benefits beginning on November 1, 1998.
Entitlement to IDET Procedure
We recently considered intradiscal electrothermal treatment (IDET) in White Consol. Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001). In Galloway, the employer argued that IDET was experimental and not reasonably necessary to treat Galloway’s back condition. After a de novo review, the Commission disagreed and found that the procedure was reasonable and necessary. On appeal, we agreed with the Commission, noting that whether a procedure is a reasonably necessary medical treatment is an issue for the Commission to resolve. See Galloway, supra. After recognizing that an employee is not required to prove a one-hundred percent success rate in order for a procedure to be considered reasonably necessary, we affirmed the Commission. See Galloway, supra.
Here, substantial evidence exists to support the Commission’s finding that appellee met her burden of proving that the IDET procedure was reasonably necessary to treat her compensable back injury. In its opinion, the Commission noted that it was aware of IDET and that, while the procedure was relatively new, the procedure was not experimental. Although appellants urge that the Commission mischaracterized Dr. Simpson’s testimony as based on a limited amount of information, the record demonstrates that Dr. Simpson testified that he had read “what little literature that has passed before me.” The Commission contrasted Simpson’s testimony with that of Dr. Hart, who had performed roughly eighty IDET procedures and testified that the procedure, which was pioneered in 1997, was FDA approved and had a national success rate of seventy percent. It specifically stated that it gave significant weight to Dr. Hart’s testimony because of Hart’s experience in performing IDETs and because Hart articulated sound reasons for bis recommendation that appellee was a likely candidate, including the ineffectiveness of conservative treatment and appellee’s inability to tolerate constant pain. Credibility issues, as well as the weight to give conflicting medical testimony, are factual determinations for the Commission to resolve. Based on our standard of review, we hold that the Commission’s finding that the IDET procedure was reasonable and necessary is supported by substantial evidence. Accordingly, we affirm.
Affirmed.
Robbins and Crabtree, JJ., agree.
Although appellants challenge the Commission’s decision regarding appellee’s entitlement to temporary total disability benefits and electro thermal therapy on appeal, it does not refute the Commission’s decision that appellee is entitled to a referral to Dr. Wilson.
A herniated disc is described as protrusion of the nucleus pulposus or annulus fibrosus of the disk, which may impinge on nerve roots. It is also described as one that has protruded and then ruptured. See Sloane-Dorland Annotated Medical-Legal Dictionary, 344 (1987). | [
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John F. STROUD, Jr., Chief Judge.
Christine Cassat appeals the probate judge’s denial of her petition for adoption of Taylor and Raegan Cassat on the basis that the consent of appellee, Allison Hennis, the mother of the children, was required for the adoption but was not given. On appeal, Christine argues that her petition for adoption should have been granted because Allison had failed to maintain significant contact with the children without justifiable cause and because the adoption is in the children’s best interest. We affirm the probate court’s denial of the petition for adoption upon the finding that Allison’s consent to the adoption was required but was not given.
Probate proceedings are reviewed de novo on the record. Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987). The decision of a probate judge will not be disturbed unless it is clearly erroneous, giving due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses. Id.
Arkansas Code Annotated section 9-9-207(a) (2) (Repl. 1998) provides:
Consent to adoption is not required of a parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significandy without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree.
A party seeking to adopt a child without'the consent of the natural parent must prove by clear and convincing evidence that the parent failed significantly and without justifiable cause to communicate with the child. Vier v. Vier, 62 Ark. App. 89, 968 S.W.2d 657 (1998). A finding that consent is unnecessary on account of a failure to support or communicate with the child is not reversed unless clearly erroneous. In re Adoption of Lybrand, 329 Ark. 163, 946 S.W.2d 946 (1997).
In the present case, Allison and Michael Cassat were divorced on October 28, 1997, and custody of the parties’ two children, Taylor and Raegan, was vested with Michael. On November 5, 1999, Michael married Christine, and on November 16, 1999, eleven days after the marriage, Christine filed her petition for adoption. Allison opposed the petition for adoption, and a hearing on the matter was conducted on May 25, 2000.
At the hearing, Allison testified that she entered the Army on November 6, 1997, nine days after the divorce, with Michael’s blessing and promise that he would help her see the children. She chose to be stationed as close to Little Rock as possible, even giving up an opportunity to go to Germany because of her children. She admitted that since the end of October 1997, she had only seen the children twice, once around Christmas 1997 and again in July of 1998. She testified that from July 1998 until Christmas 1999 she was unable to leave the base. She said that she had attempted to schedule visitation with the children during her “block leave,” but it was never a convenient time for Michael. Furthermore, Michael told her that he would not allow her to leave Arkansas with the children.
Allison testified that she spoke with the children quite fre-quendy during basic training until Michael changed his phone number to an unlisted number. He refused to give her the number, giving her instead his pager number, which he also subsequently changed. After she had no way to make direct telephone contact, Allison resorted to sending telephone cards so the children could call her. Additionally, she testified that she sent letters once or twice a week, even sending disposable cameras and self-addressed stamped envelopes in which to return the cameras to her.
Michael admitted that he had changed his telephone number; he said it was due to Allison’s abusive phone calls. He said he changed his pager number because Allison’s calls were “unreasonable” and were interfering with his work. He admitted that Allison had sent Christmas presents for the children in December 1999; however, he and Christine did not tell the children that the presents were from Allison but rather told them they were from Santa Claus. He said that he and Allison had discussed her visiting, but he told her that she was not allowed to come to Raegan’s birthday party, even though that was a time that her schedule permitted her to exercise visitation. When he and Christine went to Texas to visit relatives, Michael refused to stop and let Allison see the children because he did not deem it “appropriate.” He also refused to allow Allison to take the children with her in December 1997 to visit her family because he did not think her family provided an appropriate environment.
On appeal, Christine argues that this case is analogous to Shorter v. Reeves, 72 Ark. App. 71, 32 S.W.3d 758 (2000). In that case, the probate judge found that biweekly or monthly telephone communication for one year did not constitute significant communication, held that the mother’s consent for adoption was not required, and granted the paternal grandparents’ petition for adoption. With regard to the finding that the natural parent’s consent was not necessary for the adoption, this court held that, based upon the probate court’s factual determinations, it could not be said that this determination was clearly against the preponderance of the evidence.
While some of the communication in the case at bar is similar to the facts of Shorter, the present case is clearly distinguishable. First, in the present case, the probate judge made the finding of fact that although personal contact was preferable, the contacts Allison had with the children were significant enough to require her consent for adoption, unlike the finding made in Shorter that the communication was not significant. Moreover, Allison also testified that in addition to the phone calls, she also mailed letters to the children weekly and occasionally sent packages. Our standard of review in probate cases does not mandate reversal unless the trial judge’s findings of fact were clearly erroneous. We cannot say that the findings of fact in the present case were clearly erroneous.
Furthermore, there was evidence that when Allison made contact or attempted to see the children, her efforts were thwarted by her ex-husband. In Shorter, supra, this court defined “failure to communicate without justifiable cause” as one that is “voluntary, willful, arbitrary, and without adequate excuse.” 72 Ark. App. at 75, 32 S.W.3d at 760. Unlike in Shorter, much of Allison’s failure to communicate with her children was a direct result of Michael’s actions. When she had leave time and asked to visit the children, Michael refused to let her see them. When Michael and Christine were taking the children to visit relatives in Texas and were traveling in close, proximity to where Allison was stationed, Michael refused to stop and let the children see Allison because he deemed it “inappropriate.” The most egregious conduct was when Michael changed his telephone number to an unlisted number and refused to give Allison the number and then changed his pager number as wéll. Allison resorted to sending phone cards so the children could call her, as she had no ability to contact them as a direct result of Michael’s actions.
Christine also cites Vier, supra, for the proposition that a trial court may consider as a factor the parent’s failure to seek enforcement of his or her visitation rights during the one-year period in determining whether he or she intended to maintain his or her parental role. Although Allison had not made an attempt to have her visitation enforced through the courts, she testified that she had been financially unable to do so and that she had also been through a high-risk pregnancy and was unable to travel. The probate judge, in her determination of credibility of the witnesses, was entitled to believe this testimony.
Given the probate judge’s findings of fact, we cannot hold that her denial of the petition for adoption on the basis that Allison’s consent for adoption was required but not given was clearly erroneous.
Affirmed.
Pittman and Jennings, JJ., agree.
Support is not disputed as an allotment of $397 per month is deducted from Allison’s military pay as an enlisted person and sent to her ex-husband. | [
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Wendell L. Griffen, Judge.
Appellant Haygood Limited Partnership challenges a decision by the Arkansas Workers’ Compensation Commission that appellee Michael L. Whisenant’s 1993 injury is not barred by the statute of limitations prescribed in Arkansas Code Annotated section 11-9-702 (1987), because he did not suffer a loss in earnings on account of the injury he sustained in 1993. As its sole point on appeal, appellant argues that the Commission’s ruling is erroneous. We affirm the Commission.
Factual and Procedural History
On January 8, 1993, Michael L. Whisenant sustained a com-pensable injury when he fell over the side of a delivery pick-up truck, which was approximately five feet from the ground, while working for appellant. Whisenant notified appellant of the accident, but did not seek treatment until January 11, 1993. He initially saw Dr. David McKay, a family practitioner, and complained of a skinned left elbow, contusions of his low back and left hip, and neck pain. Dr. McKay prescribed medication and directed appellee to return for a follow-up visit. Dr. McKay also referred appellee to Dr. Chris Alkire, an orthopedic surgeon who performed diagnostic studies including x-rays and MRI’s of appellee’s neck and lower back. Appellee was next examined by Dr. Warren Boop, a neurosurgeon. Appellee admitted that when he saw Dr. Boop, he relayed complaints of pain that increased when he rode in his truck or with any significant physical activity. However, he denied that he had any right hip pain following the injury. Throughout appellee’s medical treatment, he did not lose time from work relative to his injury. Rather, he continued working for appellant, who paid the cost of the treatment by Drs. McKay, Alkire and Boop, as well as referrals and physical therapy. Appellee testified that he did not remember being placed on any work restrictions, but that he would not disagree with what was indicated in the medical reports. His job consisted of delivering heavy-duty truck parts to customers. The work required a lot of lifting, but appellee testified he was able to continue his duties without limitations after the accident because there were no restrictions.
Appellee worked for appellant until October 1993, when he was laid off due to a reduction in business. He received unemployment benefits for six months, and then began working for Stovall Fabrication and Machine Shop. Appellee’s job with Stovall consisted of traveling, however it did not involve lifting.
A May 24, 1993, entry in Dr. Alkire’s chart notes shows that he informed appellant that appellee was continuing to work full duty, that he had placed no restrictions on appellee, and that due to appellee’s continued symptoms, he was scheduling an appointment in three months: On February 7, 1994, appellee saw Dr. Alkire regarding his 1993 injury. Dr. Alkire’s chart notes reflect that appel-lee was seen at the request of appellant to obtain a final report. Alkire’s notes indicate that appellee had met his maximum medical improvement and pursuant to AMA Guidelines, he assigned appel-lee an impairment rating of 13% to the body as a whole. The notes indicate that a courtesy copy was forwarded to appellant. Appellant paid the cost of the February 7, 1994, visit, but did not pay any disability benefits associated with the impairment rating. Appellee testified that Dr. Alkire did not tell him that he had a disability from his back or neck and that he was not informed that he had a disability rating. He stated that he first became aware of the rating when he read Dr. Alkire’s February 7, 1994 report.
Appellee continued working for Stovall for approximately two years. He testified that during this time, he did not seek or obtain medical treatment relative to his neck, back, or hip. Appellee testified that he did not experience pain in his neck, back or hip until late 1998 when he began to experience problems in both hips, problems with stooping, bending over, popping in the joint area of the hip and pelvis and a lot of pain on the right side. After he began experiencing pain, appellee telephoned appellant, who referred him to the Commission. Appellee testified that the reason he contacted appellant was because he had not had any injuries other than the January 8, 1993 incident.
On April 22, 1999, appellee sought treatment from Dr. Joseph Greenspan, who provided physical therapy, injections into his SI joint, and furnished appellee with a SI belt. Dr. Greenspan also recommended a discogram. Appellee sought compensation, alleging that his injury, which occurred prior to the enactment of Act 796 of 1993, was a latent condition. Appellant responded that appellee’s condition was not latent and that his claim was barred by the statute of limitations. Following a hearing, the ALJ found that appellee sustained an injury on January 8, 1993, arising out of and in the course of his employment and held that appellee’s claim was not barred by the two-year limitation period because he experienced no loss of wages from it. After a de novo review, the Commission affirmed and adopted the ALJ’s findings and conclusions of law. This appeal follows.
Standard of Review
Decisions by the Commission are affirmed when we determine that the decision is supported by substantial evidence, i.e., that reasonable minds could have reached the same conclusion. See Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). The key factor is not whether we would have reached a different outcome or whether the proof supports a conflicting result. See id. Instead, if reasonable minds could have reached the same conclusion as the Commission, we will affirm. See id.
Analysis
Arkansas Code Annotated section 11-9-702 (1987) mandates that “a claim for compensation for disability on account of an injury other than an occupational disease and occupational infection shall be barred unless filed within two (2) years from the date of injury.” Appellee’s fall occurred January 8, 1993. He now seeks medical treatment provided by Dr. Greenspan on April 22, 1999, more than six years after the fall. Appellant asserts that because appellee suffered an injury and was placed on a “no lifting” work restriction by his physician, appellee suffered a compensable injury that was barred by statute of limitations. We see no reason to accept appellant’s novel and narrow position.
On the date of appellee’s fall, the statute of limitations for workers’ compensation claims commenced at the time of the injury rather than the time of the accident. See Calion Lumber Co. v. Goff, 14 Ark. App. 18, 684 S.W.2d 272 (1985). At the time of appellee’s injury, Arkansas was and still is a “compensable-injury state,” meaning an injury becomes compensable when 1) the claimant learns the extent of his injuries and 2) the claimant is off work for a period of time that entitles him to benefits for a compensable injury. See Calion, supra.
In Donaldson v. Calvert McBride Ptg. Co., 217 Ark. 625, 232 S.W.2d 651 (1950), our supreme court held that the terms “time of injury” and “time of accident” are not synonymous. It observed that while an injury may result from an accident, an accident may or may not result in an injury. The court noted that our statutory law defines disability as stemming from an employee’s inability to earn the same or similar wages that the employee was earning at the time of the injury. See id. In Donaldson, supra, the parties stipulated that the claimant sustained an accidental injury in March 1947 that resulted in him being off work, without compensation, for one week. However, the court reasoned that claimant’s injury did not become compensable in March 1947 because his loss of ability to earn wages did not continue for the period required to qualify for benefits. The court held that the claimant’s injury was not compen-sable until October 1948 when he actually suffered a loss in earning capacity due to the injury that continued for the requisite period. It also noted that the employer’s medical payment was not a payment of compensation that would render the injury compensable. See id.
This court reached a similar result in Calion, supra, when the claimant sustained a back injury in 1980 and did not notify his employer or miss any work because of his injury until 1981. We noted that because appellant’s condition gradually worsened and did not cause him to lose time or. a capacity to earn wages until 1981, the injury was not compensable until 1981. See id.
While we have consistendy recognized that the statute-of-limitations period does not begin until the extent of the injury manifests itself and the injury causes a loss of wages, Arkansas Louisiana Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983), presented our .court with an opportunity to interpret what constitutes an incapacity to earn because of an injury. In Grooms, supra, the claimant hurt his back in 1977, was treated with a cortisone shot, and returned to work after two weeks. While Grooms was off work, his employer paid him full wages and paid the medical bill. Over the next three years, Grooms missed work but was paid full wages until his back condition forced him to completely stop work in June 1980. He subsequently filed a workers’ compensation claim, which was granted by the Commission. The employer appealed, contending that the statute of limitations barred the claim. We reversed the Commission, holding that Grooms suffered a compensable injury because he was incapacitated to earn the wages he received at the time of the incident. We reasoned that the “payment of full wages during a compensable disability does not negate the incapacity to earn.” See Grooms, 10 Ark. App. at 100, 661 S.W.2d 433 at 438.
Documentary medical evidence supports the Commission finding that appellee’s initial complaint was of contusions to his low back and left hip, and that he received physical therapy and medication for treatment of his low back and hip complaints from January 8, 1993, to August 1993. Thus, the Commission correctly concluded the first element to commence the statute of limitations was satisfied.
Appellant relies on Grooms, supra, as support for its argument that because the treating physician’s notes indicate that appellee was given work restrictions, appellee suffered an incapacity to earn wages. Thus, appellant argues that the second prong of the requirements to begin the statute of limitations was met. However, appellant’s rebanee on Grooms is misplaced because the circumstances presented in Grooms are clearly distinguishable from the case at bar. Appellee presented uncontroverted testimony that he did not miss work as a result of the 1993 accident. His testimony was supported by notes from three physicians. First, Dr. McKay, who initially saw appellee on January 11, 1993, indicated in his notes that “patient will be able to resume fight work on 1-11-93.” Next, Dr. Alkire indicated on April 12, 1993, “[patient] says he is still working and hasn’t stopped working.” Lastly, Dr. Boop, in a letter dated August 20, 1993, indicated “still he is to return to work and has continued to work delivering truck parts and the like.”
While the fact that appellee did not miss work would theoretically dispose of appellant’s argument that the instant case is factually similar to Grooms, appellant argues that Grooms is analogous because the value of appellee’s work diminished through his performance of fight duty work. Although appellant’s argument is interesting, the record is devoid of any evidence supporting it. First, the only evidence presented at the hearing regarding appellant’s alleged work restrictions concerned physician notes from Dr. McKay, which indicated that Dr. McKay placed work restrictions upon appellee of no lifting. However, appellee testified at the hearing that he continued to perform his normal job, with no restrictions until he was laid off in October. Appellant’s testimony was buttressed by physician notes. The first note, from Dr. Alkire, dated April 29, 1993, states “the patient tells me he is still able to do his normal job.” Another note from Dr. Alkire, dated May 20, 1993, states “He has been doing his normal job still.” Additionally, a note from Dr. Boop, dated August 20, 1993, states “Overall though his pain has continued and he has not improved much. Still he is to return to work and has continued to work delivering truck parts and the like.” Second, the record contains no evidence that appellant provided appellee with fight duty work, or that the work appellee performed was of such diminished value as to render him incapable of earning wages.
In sum, the law in force when appellee suffered his January 8, 1993, work accident clearly required incapacity to earn wages in order for a worker to be found to have sustained an injury that triggers the statute of limitations for purposes of workers’ compensation benefit analysis. The record contains substantial evidence that appellee suffered no incapacity to earn wages during the six years between the accident and his April 22, 1999, examination by Dr. Greenspan. Therefore, we affirm the Commission’s decision that appellee’s claim for additional medical benefits is not barred by the statute of limitations.
Affirmed.
Vaught, J., agrees.
Roaf, J., concurs. | [
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JOHN B. ROBBINS, Judge.
In our original opinion in this J appeal, Hill v. Baptist Medical Center, 74 Ark. App. 250, 48 S.W.3d 544 (2001), we reversed the Workers’ Compensation Commission’s decision that held that appellant’s laminectomy surgery was not reasonable and necessary treatment for her compensable injury; that appellee had failed to raise before the Commission the issue of whether the surgeon who performed this surgery, Dr. Fox, was an authorized physician; and remanded the case to the Commission for further proceedings, including a determination of whether appellant was entitled to additional temporary total disability benefits. Appellee timely filed a petition for rehearing. We have granted this petition. In this substituted opinion we direct the Commission on remand to also determine whether services rendered by Dr. Fox constituted authorized treatment.
Appellant Sheila Hill appeals the denial of workers’ compensation benefits by the Workers’ Compensation Commission in her claim against her employer, appellee Baptist Medical Center. Appellant raises two points on appeal: (1) that the Commission erred as a matter of law by refusing to consider appellant’s post-surgical improvement when determining whether surgery was reasonable and necessary; and (2) that the Commission’s denial of further benefits is not supported by substantial evidence. We reverse and remand because the finding that surgery was not reasonable and necessary is not supported by substantial evidence, and we remand to the Commission to make a finding as to which party bears the cost of this treatment.
The standard of review for appeals from the Workers’ Compensation Commission is well-settled. On appeal, this court will view the evidence in the light most favorable to the Commission’s decision and affirm when that decision is supported by substantial evidence. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). Where the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial-evidence standard of review requires us to affirm if the Commission’s decision displays a substantial basis for the denial of relief. Id. A substantial basis exists if fair-minded persons could reach the same conclusion when considering the same facts. Id. The issue is not whether the appellate court might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, then we must affirm. Green Bay Packing v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 692 (1999). The Commission is not required to believe the testimony of any witness, and it may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Holloway v. Ray White Lumber Co., 337 Ark. 524, 990 S.W.2d 526 (1999). The Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Green Bay Packing v. Bartlett, supra. The Commission has the duty to use its expertise in translating evidence of medical experts into findings of fact. Id. However, these standards must not totally insulate the Commission from judicial review because this would render this court’s function meaningless in workers’ compensation cases. Inskeep v. Emerson Elec. Co., 64 Ark. App. 101, 983 S.W.2d 132 (1998).
On February 4, 1999, appellant suffered an admittedly com-pensable back injury, a herniation at L4-5, while at work for appel-lee in her capacity as a certified nurse’s assistant as she escorted a psychiatric patient to his room. She sought medical treatment in the emergency room of her employer the following day, and she received a Toradol injection to relieve the discomfort she felt in her low back and radiating down her left leg. She returned to the emergency room three days later complaining of pain radiating down her lower left thigh. Appellant next presented to Dr. Barg, her family doctor, on February 11, who treated her conservatively and referred her to physical therapy. Dr. Barg ordered an MRI, but the workers’ compensation insurance carrier would not approve this diagnostic test because Dr. Barg was not an approved provider.
The insurance carrier referred appellant to a neurosurgeon, Dr. Russell, who noted in his report of March 19 the lack of improvement in her symptoms. Dr. Russell opined that her symptoms and history were consistent with nerve root irritation, which is typically secondary to a ruptured disc. He ordered an MRI, and this test revealed the presence of a herniated disc at L4-5 that was compromising the nerve root at the left L4. In Dr. Russell’s clinic note dated April 7, he stated that her pain had actually worsened somewhat and she continued to have quite a bit of pain behavior while sitting for the examination. Dr. Russell explained that the symptoms she expressed on April 7 did not match the expected distribution as shown by the MRI, but that, even so, not one of his patients in the last five years who was a workers’ compensation claimant got any better after surgical intervention. Dr. Russell stated that even the patients he had seen who were “perfectly suited for surgical intervention do not seem to have a significant improvement.” Dr. Russell opined that she was better suited for pain management, and that if this course was unsuccessful, then she would need an impairment rating and release from treatment. Dr. Russell referred her for further conservative treatment under the care of Dr. Meador.
Appellant saw Dr. Meador of Arkansas Pain Centers, Ltd., on April 15, whose evaluation of appellant indicated a sacroiliac strain; Dr. Meador made no mention of herniation. She prescribed an injection at the pain site and physical therapy. Throughout the course of physical therapy, which consisted of approximately six sessions, appellant complained of low back and lower extremity pain. However, there were notes of improvement in her condition during the course of physical therapy. In Dr. Meador’s progress note dated May 13, she stated that the strain had improved with the injection and physical therapy and that a work-conditioning program would be impleménted. A physical therapist’s progress report dated June 2 noted that appellant cried throughout her session, though the therapist could not find a sacral or lumbar problem. The therapist requested that Dr. Meador advise her how to proceed with the patient.
Appellant presented on June 3 to Dr. Meador, who stated that by her physical examination the sacroiliac strain had resolved. At that time, Dr. Meador released appellant to work with restrictions, but such work was unavailable, so appellant stayed off work. Dr. Meador anticipated that appellant would be released to work full duty in two months. No further medical care was administered, nor would the carrier authorize any upon written request because there were “no objective findings” and “Ms. Hill is seeking treatment for pain,” per a letter from the carrier dated July 16.
On August 2, Dr. Meador recommended that appellant begin water .aerobics for her general fitness and, as the doctor had earlier indicated, she released appellant to work without restrictions. Dr. Meador also remarked on that date that appellant exhibited exaggerated pain behavior.
Appellant maintained that she could not work due to pain. She presented to the UAMS emergency room on September 15 and was referred to a UAMS neurosurgeon and professor of neurosurgery, Dr. Fox. Dr. Fox recommended that she undergo a laminectomy, and appellant wanted to proceed as soon as possible. Dr. Fox explained to appellant the risks of the surgery, including death, paralysis, hemorrhage, infection, failure of pain relief, and spinal fluid leak. Appellant decided to undergo surgery, which was performed on September 17, 1999. In his surgical report, Dr. Fox noted that the disc at L4-5 was obviously bulging and impinging both nerve roots per his visual exam of her spine during surgery. In a follow-up examination on November 10, Dr. Fox noted that appellant’s leg pain was absent on that date and that he expected gradual but continued improvement in her back pain. In a December 1 letter in response to appellant’s counsel, Dr. Fox expressed disagreement with Dr. Russell's opinion that appellant was not a surgical candidate to treat her herniation. Dr. Fox noted moderate back pain after surgery that required pain medication and the potential of physical therapy as she healed from the laminectomy.
Appellant requested a hearing to consider her claim for additional temporary total disability, additional medical treatment, and attorney’s fees. Appellee contended that appellant’s healing period ended on August 3 and that no treatment was reasonable or necessary after that date nor was any temporary total disability warranted after that date. The hearing was conducted on December 14, in which appellant testified that her back and leg pain was much improved after surgery and that she no longer suffered any falling incidents due to weakness in her leg as she had prior to surgery.
On this evidence, the Administrative Law Judge (ALJ) found that the physicians’ opinions were, at best, equal evidence of whether the surgery was reasonable and necessary, and that because appellant had the burden of proving by a preponderance of the evidence that this was reasonable and necessary treatment, she had failed to do so. The ALJ further found that appellant failed to prove that she was still in her healing period subsequent to her release by Dr. Meador.
A motion to reconsider and a notice of appeal were lodged with the Commission. The motion to reconsider asked that the ALJ be ordered to reconsider the claim in light of appellant’s post-surgical improvement as a relevant consideration in determining whether the surgery was reasonable and necessary, citing to Winslow v. D & B Mech. Contractors, 69 Ark. App. 285, 13 S.W.3d 180 (2000), a case handed down by our court subsequent to the hearing. Appellant’s counsel asserted that there was new evidence to consider in that she had been able to return to work since the hearing, further supporting the validity of the surgery. The Commission issued an order denying the motion for reconsideration. It subsequently rendered a majority opinion affirming and adopting the opinion of the ALJ. It is from this order that appellant lodged the instant appeal.
Arkansas Code Annotated section 11-9-508 (Repl. 1996) states that employers must provide all medical treatment that is reasonably necessary for the treatment of a compensable injury. What constitutes reasonable and necessary treatment under this statute is a question of fact for the Commission. Gansky v. Hi-Tech Eng’g, 325 Ark. 163, 924 S.W.2d 790 (1996); Geo Specialty Chem., Inc. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). We reverse because the finding that surgery was not reasonable and necessary treatment is not supported by substantial evidence.
We disagree with the finding that Drs. Fox and Russell had opinions that were, at best, even, as characterized by the ALJ. Dr. Russell specifically recognized the herniation as depicted on the MRI that he ordered and initially noted that appellant’s symptoms were consistent with a herniation. He simply did not advocate surgical intervention. Then, Dr. Meador faded to recognize that appellant was referred to her for treatment of a herniation; Dr. Meador diagnosed appellant with a sacroiliac strain, treated her accordingly, and released her on schedule. Appellant presented to the emergency room when no further medical care was authorized, resulting in a referral to a professor of neurosurgery at UAMS, whose recommended surgery provided relief from her ongoing symptoms, and whose visual exam revealed more extensive nerve root compression than did the MRI.
Moreover, the Commission failed to make any comment about the uncontroverted evidence that appellant’s symptoms significantly improved post-surgery. This is a relevant consideration when deciding whether treatment is reasonable and necessary. See Winslow, supra. While the Commission is empowered with the authority to weigh medical evidence and to examine the basis of an expert’s opinion in deciding what weight to give it, it may not arbitrarily disregard the testimony of any witness. See Crow v. Weyerhaeuser Co., 46 Ark. App. 295, 880 S.W.2d 320 (1994). It appears to have done just that by disregarding the substantial improvement enjoyed by appellant post-surgery. In sum, there is no substantial evidence that surgery was not reasonably necessary in this instance. We do not believe that fair-minded persons with the same facts before them could have reached the conclusion rendered by the Commission. See Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). Inasmuch as her entitlement to additional temporary total disability benefits is dependent upon the resolution of facts not before us, we remand for proceedings consistent with our opinion on this issue.
Alternatively, appellee contends that appellant was not entitled to benefits for any medical care provided after she presented to the UAMS emergency room, even if it was reasonable and necessary, because she did not follow the procedures required to change physicians. We cannot, however, resolve this issue because the Commission failed to render a ruling on this issue, nor was it necessary, when it determined that the care provided by UAMS and Dr. Fox was not reasonable or necessary. Because we have held otherwise, this issue has become relevant to the responsibility for payment of medical services that were rendered. Consequently, it will be necessary for the Commission to find facts on this issue to determine whether appellant acted improvidently by fading to adhere to the change of physician rules or whether appellant acted appropriately by seeking care through the UAMS emergency room after her request for further treatment was denied. The Commission is not an appellate court but a fact-finding body. See Cagle Fabricating & Steel, Inc. v. Patterson, 309 Ark. 365, 830 S.W.2d 857 (1992). In carrying out its duty to find the facts, the Commission is required to make findings of fact, and those findings must contain all of the specific facts relevant to the contested issue or issues so that the reviewing court may determine whether the Commission has resolved these issues in conformity with the law. Id; see also Lunsford v. Rich Mountain Elec. Co-op, 33 Ark. App. 66, 800 S.W.2d 732 (1990); Wright v. Amer. Transp., 18 Ark. App. 18, 709 S.W.2d 107 (1986).
Reversed in part and remanded for proceedings consistent with this substituted opinion upon grant of rehearing.
Stroud, C.J., Jennings, Griffen, and Crabtree, JJ., agree.
Pittman, J., dissents. | [
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Andree Layton Roaf, Judge.
Randy Jaynes appeals his conviction in a jury trial of first-degree sexual abuse, for which he received a three-year sentence in the Arkansas Department of Correction. On appeal he argues: 1) his second trial constituted double jeopardy because the trial court erred in granting the State’s request for a mistrial during his defense counsel’s opening statement in the first trial because there was no overruling necessity to do so; and 2) the trial court erred in preventing him from introducing evidence that would prove that the complaining witness had fabricated earlier incidents in order to attract attention. We agree that Jaynes’s second trial constitutes double jeopardy, and reverse and dismiss.
On September 18, 1997, a jury was selected and sworn to try Jaynes in Sebastian County Circuit Court on a charge of first-degree sexual abuse arising from his alleged fondling of his fourteen-year-old daughter, A.J. The inappropriate touching allegedly took place at Jaynes’s residence on July 6, 1996, as Jaynes swam in an eight-foot diameter “kiddie pool” with A.J. and her two young stepsiblings, ages five and three, and later that afternoon in a bathroom while A.J. was attempting to take a shower.
Jaynes’s defense was that no sexual abuse took place. Recognizing that the entire case depended on AJ.’s testimony, prior to trial Jaynes had moved to introduce evidence of a specific incident involving A.J. that he believed would tend to prove that she made up stories to get attention. The incident in question occurred on May 9, 1996, when A.J. was admitted to St. Edwards Mercy Medical Center after she had complained to her mother that she had accidentally ingested half a cup of Clorox bleach. Both A.J.’s mother and the treating medical personnel doubted that A.J. had actually swallowed any bleach. The trial court ruled that it was a collateral matter and limited Jaynes to asking about the incident on cross-examination.
In opening statement, Jaynes’s defense attorney attempted to describe A.J. as a person who had a propensity for making unfounded allegations. She first related that when A.J. was in the fifth or sixth grade, she told a school counselor that her stepfather had beaten her. The State objected, arguing that the information about A.J.’s story telling was inadmissible character evidence and therefore could not be alluded to in opening statement. The trial judge ruled that A.J., who had testified about the incident in a preliminary hearing, could be asked about it on cross-examination. The State refused the trial court’s offer of an admonition, and the trial resumed.
Jaynes’s defense counsel then brought up the Clorox incident. The State objected and asked for a mistrial, which was granted. The trial judge stated on the record that he was not finding that Jaynes’s attorney had acted in bad faith, and the State expressly agreed.
On November 21, 1997, Jaynes moved to dismiss the charge on double jeopardy grounds. The trial court denied the motion, and the case was retried before a jury two weeks later. In response to the State’s motion in limine seeking to limit the defense’s opening statement, the court precluded the defense from referring to specific incidents of conduct, but allowed a statement to the effect that A.J. was seeking attention. A.J. subsequently testified on cross-examination that she had accused her stepfather of beating her and that DHS had investigated the allegation. She also testified that she had ingested Clorox and had received emergency medical attention when she told her mother that she had done so.
Jaynes first argues that there was no overruling necessity to declare a mistrial in his first trial and to discharge the jury impaneled to hear the case, because his defense counsel’s opening statement was made in good faith, the remarks and observations were not inflammatory, the trial judge considered no less-drastic alternatives, and any prejudice from his counsel’s remarks was slight and speculative at best. Accordingly, the second trial constituted double jeopardy because there was no overruling necessity for the mistrial, as required by Arkansas law. He further contends that the mistrial was declared simply because his trial counsel referred to “manifestly true evidence” that would actually be forthcoming in the case and told the jury that the prosecuting witness was trying to get attention, a declaration that the trial court specifically allowed in the second trial. Citing Wooten v. State, 220 Ark. 755, 249 S.W.2d 968 (1952), he asserts that if the evidence is ultimately admissible at trial, there is no error or prejudice in allowing reference to it in opening statement.
Jaynes argues further that under Arkansas law, the power of the State or the trial court to declare a mistrial, and require the defendant to stand in jeopardy at a second trial, could not extend beyond cases where it was “impossible” to proceed to judgment in the first case. This standard, referred to as “overruling necessity,” is both a case law and statutory formulation. See, respectively, Whitemore v. State, 43 Ark. 271 (1884), and Ark. Code Ann. § 5-1-112(3) (Repl. 1997). Citing Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995)(overruled on other grounds), Jaynes argues that a mistrial must be denied and only a cautionary instruction given unless the contentious remark is “patently inflammatory” or when the remark is so prejudicial that justice cannot be served by continuing the trial, Holt v. State, 15 Ark. App. 269, 692 S.W.2d 265 (1985), or where the matter is “beyond repair” by any lesser measures. Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998). He contends that the trial judge’s ruling was infirm because he did not even consider less drastic alternatives.
Finally, Jaynes asserts that by moving for and receiving a mistrial, the State garnered a significant strategic advantage by learning his theory of the case. He contends that there was no indication that in the first trial, the State was prepared to counter his defense, whereas for the second trial, the State had developed a highly effective closing argument that effectively turned the defense on him.
The Arkansas Constitution provides that “no person, for the same offense, shall be twice put in jeopardy of life or liberty [.]” Ark. Const. art. 2, § 8. This prohibition against a second prosecution for the same offense is further discussed in the statute: “A former prosecution is an affirmative defense to a subsequent prosecution for the same offense [when] ... (3) The former prosecution was terminated without the express or implied consent of the defendant after the jury was sworn . . . unless the termination was justified by overruling necessity.” Ark. Code Ann. § 5-1-112 (Repl. 1997). This means that once the jury is sworn, “jeopardy has attached . . . [and] the constitutional right against double jeopardy may be invoked except in cases of ‘overruling necessity.’” Green v. State, 52 Ark. App. 244, 247, 917 S.W.2d 171, 172 (1996)(citations omitted). Moreover, this statement comports with the federal standard of “manifest necessity” as articulated in Arizona v. Washington, 434 U.S. 497, 505 (1978):
[I]n view of the importance of the [defendant’s valued right to have his trial completed by a particular tribunal], and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. The prosecutor must demonstrate “manifest necessity’’ for any mistrial declared over the objection of the defendant.
(Emphasis added.)
Arkansas appellate courts have recognized the difficulty of categorizing cases involving claims of double jeopardy and the resulting inadequacy of expounding any standard formula for guidance. See Jones v. State, 288 Ark. 162, 702 S.W.2d 799 (1986). Consequently, each case must turn largely on its own facts. Id. As was said by the supreme court in Cody & Muse v. State, 237 Ark. 15, 21, 371 S.W.2d 143, 147 (1963)(citing with approval 22 C.J.S. Criminal Law § 259):
The manifest necessity permitting the discharge of a jury without rendering a verdict and without justifying a plea of double jeopardy may arise from various causes or circumstances; but the circumstances must be forceful and compelling, and must be in the nature of a cause or emergency over which neither court nor attorney has control, or which could not have been averted by diligence and care.
A trial court’s finding of overriding necessity has been has been upheld where the prosecutor failed to return to the trial after a lunch break due to suffering a mental breakdown, Green v. State, supra; a jury was unable to reach a verdict, Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991); a juror became ill, Atkins v. State, 16 Ark. 568 (1855); a material witness for the State became ill, Jones v. State, supra; and the defense counsel was found to be intoxicated, Franklin & Reid v. State, 251 Ark. 223, 471 S.W.2d 760 (1971).
The decision to grant a mistrial and retry a criminal defendant rests within the sound discretion of the trial judge and will be upheld absent an abuse of discretion. Shaw v. State, supra. However, a manifestly incorrect decision to grant a mistrial will bar subsequent prosecution. Wilson v. State, 289 Ark. 141, 712 S.W.2d 654 (1986). We hold that in this instance, Jaynes’s second trial constituted double jeopardy, and therefore, this case should be reversed and dismissed.
The purportedly inflammatory comment made in opening statement that prompted the mistrial was the following assertion by Jaynes’s trial counsel:
In May of 1996, [A.J.] claims she ingested one-half cup of Clorox in her mother’s home and went to the emergency room. This happened less than sixty days prior to the date that she made these allegations. [A.J.] was trying to get her mother or someone’s attention.
Jaynes correctly notes that the factual component of this statement, the ingestion of the Clorox, was clearly admissible evidence that he believed would be elicited on cross-examination. The conclusion that the incident was an attempt by A.J. to get attention was nothing more than a reasonable inference. A party is not entitled to a mistrial based on an opening statement outlining the admissible testimony of a witness. Ashley v. State, 310 Ark. 575, 840 S.W.2d 793 (1992). Cf. Haight v. State, 259 Ark. 478, 533 S.W.2d 510 (1976)(holding that a defendant’s discussion of inadmissible plea-bargain discussions were prejudicial and warranted the granting of a mistrial).
Because we reverse and dismiss on this point, we need not reach Jaynes’s second argument.
Reversed and dismissed.
Jennings and Neal, JJ-, agree. | [
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John B. Robbins, Chief Judge.
Thomsen Family Trust, 1990, through its trustee, Erik Thomsen, has appealed from an order of the Lonoke County Chancery Court that removed its lis pendens against property owned by appellee Peterson Family Enterprises, Inc., and dismissed its third-party complaint against appellee Elly Drosihn. Appellant has also appealed from an earlier order that dismissed its counterclaim against Peterson Family Enterprises, Inc. (“PFE”), and its third-party complaint against appellee Elly Von MueEer Peterson. We affirm.
In 1994, appeEant obtained a bankruptcy court judgment in CaHfornia on a nondischargeable debt against Ms. Drosihn and her husband. In AprE 1995, after Mr. Thomsen learned that Ms. Drosihn had moved in with her mother, Mrs. Peterson, in Little Rock, he sent a letter to Mrs. Peterson in which he expressed interest in attaching Ms. Drosihn’s stock in appeEee PFE as a means of satisfying the judgment. PFE is a fanhly farming corporation which was incorporated by Mrs. Peterson and her husband, now deceased, in 1968. Mrs. Peterson received the majority of the stock, and her chEdren received minority interests. AppeEant registered its bankruptcy judgment in Pulaski County, Arkansas, on May 16, 1995. On May 30, 1995, EDCEL, LP, was fEed for record, with Ms. Drosihn owning a 98% interest and her two sons each owning 1%. The next day, Ms. Drosihn conveyed aE of her stock in PFE to EDCEL. On June 28, 1995, appeEant fEed a Es pendens in the recorder’s office of Lonoke County against real estate owned by PFE.
PFE filed this action in the Lonoke County Chancery Court to set aside the Es pendens on the ground that the corporation, and not its shareholders, owns the property in Lonoke County. In response, appeEant argued that the corporation was merely a sheE for tax purposes and that its property was actuaEy owned by its shareholders. AppeEant also filed a counterclaim against PFE and a third-party complaint against Mrs. Peterson and Ms. Drosihn in which it aEeged that the transfer of Ms. Drosihn’s stock in PFE to EDCEL was intentionaEy fraudulent and done to avoid satisfac tion of appellant’s judgment. Appellant sought damages of $461,915.71 and punitive damages in the amount of $1.5 million. PFE and Mrs. Peterson then filed motions to dismiss on the basis of Arkansas Rule of Civil Procedure 12(b)(6). On March 11, 1996, a hearing was held on the motions to dismiss, after which the chancellor dismissed the counterclaim against PFE and the third-party complaint against Mrs. Peterson because they were not parties to the conveyance of Ms. Drosihn’s stock. The third-party complaint against Ms. Drosihn remained for trial. Appellant, however, never added EDCEL or Ms. Drosihn’s sons as parties to this action.
At the subsequent trial, Mr. Thomsen testified about the fraudulent acts by which Ms. Drosihn obtained the original loan from appellant that gave rise to the judgment. He stated that Mrs. Peterson never responded to his April 1995 letter, although she did verify that she had received it. He admitted that appellant does not have a judgment against PFE.
Ms. Drosihn testified that among the reasons she formed EDCEL was her desire to include her sons in their Arkansas heritage and family business. She stated that she had sought counsel in establishing the limited partnership and that she had not given larger interests in it to her sons because she wanted to avoid the appearance of a fraudulent transfer. She admitted that PFE’s attorney also prepared the limited-partnership documents. She testified that she is the agent for service of process for EDCEL and that it had not been added as a party to this lawsuit.
Tom Shurgar, executive vice-president of PFE and manager of its farming operation, testified that the corporation has been in good standing with the Arkansas Secretary of State’s Office since 1968. He was adamant that PFE was not involved in the transfer of Ms. Drosihn’s stock to the limited partnership. He stressed that PFE did not, in any way, assist Ms. Drosihn or advise her to take this action and said that the only thing it did was to acknowledge the transfer of the shares. He stated that no officer, director, or shareholder was involved in this transaction except in signing the necessary documents.
In an order filed April 15, 1998, the chancellor ordered that the lis pendens filed by appellant be removed and that the third-party complaint against Ms. Drosihn be dismissed for failure to join a necessary party.
In its first argument on appeal, appellant contends that the chancellor erred in dismissing the counterclaim against PFE and the third-party complaint against Mrs. Peterson. The Arkansas Fraudulent Transfer Act, Ark. Code Ann. §§ 4-59-201 through 4-59-213 (Repl. 1996 and Supp. 1997), does not provide for the liability of an individual or entity who was not a transferor or a transferee of the property in question. Arkansas Code Annotated section 4-59-204 (Repl. 1996) states:
4-59-204. Transfers fraudulent as to present and future creditors.
(a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:
(1) With actual intent to hinder, delay, or defraud any creditor of the debtor; or
(2) Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor:
(i) Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or
(ii) Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due.
(b) In determining actual intent under subdivision (a)(1) of this section, consideration may be given, among other factors, as to whether:
(1) The transfer or obligation was to an insider;
(2) The debtor retained possession or control of the property transferred after the transfer;
(3) The transfer or obligation was disclosed or concealed;
(4) Before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit;
(5) The transfer was of substantially all the debtor’s assets;
(6) The debtor absconded;
(7) The debtor removed or concealed assets;
(8) The value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred;
(9) The debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred;
(10) The transfer occurred shortly before or shortly after a substantial debt was incurred; and
(11) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.
Arkansas Code Annotated section 4-59-207 (Supp. 1997) and section 4-59-208 (Repl. 1996) provide creditors with certain remedies against the transferors and transferees of such property. These statutes, however, make no provision for the recovery of a judgment against third parties in the positions of PFE and Mrs. Peterson. Furthermore, appellant did not plead that Mrs. Peterson or PFE acted as Ms. Drosihn’s agent with regard to the transfer of Ms. Drosihn’s stock to EDCEL. Consequently, even treating the allegations of fact made by appellant in his counterclaim against PFE, and his third-party complaint against Mrs. Peterson, as true, these pleadings fail to state facts upon which relief against them can be granted under Ark. R. Civ. P. 12(b)(6). The chancellor did not err in granting the motions to dismiss appellant’s actions against PFE and Mrs. Peterson.
In its second point on appeal, appellant contends that the chancellor erred in removing the lis pendens from the circuit court records in Lonoke County. Appellant argues that, because appellees were involved in the fraudulent transfer of the stock to avoid the judgment, the trial court should have ignored the cor porate form and permitted appellant to attach the assets of the corporation to prevent a wrongdoing. As appellees point out, appellant is seeking a “reverse piercing of the corporate veil.”
It is a nearly universal rule that a corporation and its stockholders are separate and distinct entities, even though a stockholder may own the majority of the stock. First Commercial Bank v. Walker, 333 Ark. 100, 969 S.W.2d 146 (1998), cert. denied, 119 S.Ct. 410 (1998). In special circumstances, the court will disregard the corporate facade when the corporate form has been illegally abused to the injury of a third party. Enviroclean, Inc. v. Arkansas Pollution Control and Ecology Comm’n, 314 Ark. 98, 858 S.W.2d 116 (1993); Don G. Parker, Inc. v. Point Ferry, Inc., 249 Ark. 764, 461 S.W.2d 587 (1971). The conditions under which the corporate entity may be disregarded or looked upon as the alter ego of the principal stockholder vary according to the circumstances of each case. Winchel v. Craig, 55 Ark. App. 373, 934 S.W.2d 946 (1996). The doctrine of piercing the corporate veil is founded in equity and is applied when the facts warrant its application to prevent an injustice. Humphries v. Bray, 271 Ark. 962, 611 S.W.2d 791 (Ark. App. 1981). Piercing the fiction of a corporate entity should be applied with great caution. Banks v. Jones, 239 Ark. 396, 390 S.W.2d 108 (1965).
Further, a stockholder does not acquire any estate in the property of a corporation by virtue of his stock ownership; the full legal and equitable title thereto is in the corporation. Arkansas Iron and Metal Co. v. First Nat’l Bank of Rogers, 16 Ark. App. 245, 701 S.W.2d 380 (1985). Accord In re Cummins, 166 B.R. 338 (Bankr. W.D. Ark. 1994). In our view, appellant presented absolutely no evidence that PFE’s corporate facade has been illegally abused or that Mrs. Peterson or any of the other officers or shareholders of PFE (except Ms. Drosihn) were involved in the transfer of the stock to EDCEL. In short, we find no evidence to warrant disregarding the corporate form.
In its third point on appeal, appellant contends that appellees waived the defense of failure to join a necessary party because they raised it too late. However, this issue is not preserved for our review because appellant failed to raise it to the chancellor or obtain a ruling on it. Evans v. Harry Robinson Pontiac-Buick, Inc., 336 Ark. 155, 983 S.W.2d 946 (1999); Moon v. Moon Enters., Inc., 65 Ark. App. 246, 986 S.W.2d 134 (1999).
Accordingly, we affirm the chancellor’s orders in all respects.
Affirmed.
Stroud and Meads, JJ., agree.
Appellees claim that this issue is moot because appellant has filed a fraudulent conveyance action in Pulaski County Circuit Court styled Thomsen Family Trust, 1990, Erik Thomsen, Trustee v. EDCEL, L.P., No. CV-98-5606. Any issue that is outside the record, however, will not be considered on appeal. Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999). | [
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John B. Robbins, Chief Judge.
Appellant Harold Stivers was convicted in a bench trial of fourth-offense DWI and fifth-offense DWI. He was thereafter sentenced to two three-year prison sentences, with the sentences to run concurrently. Mr. Sti-vers now appeals, arguing that there was insufficient evidence to support his convictions. In addition, he contends that the purported judgments offered by the State to prove prior offenses were improperly admitted into evidence by the trial court. We agree that the conviction for fourth-offense DWI must be reversed, but affirm the fifth-offense DWI conviction as modified.
When an appellant challenges the sufficiency of the evidence, we review the sufficiency argument prior to a review of any alleged trial errors. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Lukach v. State, supra. In determining the sufficiency of the evidence, we review the proof in the fight most favorable to the appellee, considering only that evidence which tends to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992).
Officer Chris Jarvis testified that he was dispatched to the scene of an accident on the afternoon of January 5, 1996. Upon his arrival, Officer Jarvis observed a pickup truck that had collided with a tree, and Mr. Stivers was seated in the driver’s seat and slumped over into the passenger’s seat. The keys were in the ignition, and the motor was still running. Mr. Stivers had suffered injuries, and he was transported by ambulance to the hospital.
According to Officer Jarvis, Mr. Stivers appeared to be very sleepy at the scene of the accident and was unresponsive. In addition, he observed a strong smell of alcohol emitting from Mr. Sti-vers’s person. Officer Jarvis indicated that the road conditions were good at the time of the accident, and that no sobriety tests were conducted because Mr. Stivers was almost unconscious.
Officer Denise Allred was also at the scene of the accident on January 5, 1996. She, too, noticed a strong, alcoholic smell. Officer Allred stated that a blood sample was taken and she transported it to the State Crime Lab. The prosecution did not offer the test results into evidence.
Officer John Como testified next, and he stated that he was called to investigate an accident on March 14, 1996. Upon arriving at the scene, he saw a pickup truck that had apparently hit a retaining wail and stopped by a tree. Mr. Stivers, who was sitting by the truck receiving medical attention, told Officer Como that he had just come from Cash McCool’s, that he had been driving, and that he wanted to go home. Mr. Stivers’s speech was slurred, his eyes were glassy, and he seemed confused. According to Officer Como, Mr. Stivers could hardly stand, so no sobriety tests were performed. He also smelled strongly of alcohol, and was arrested for DWI and transported to the police station.
While at the police station, Mr. Stivers was advised of his rights but “was too drunk to sign” the rights form. A breathalyzer test was attempted, but even after several attempts a reading did not register on the machine.
For his first argument on appeal, Mr. Stivers contends that neither of his DWI convictions were supported by substantial evidence. Arkansas Code Annotated section 5-65-103(a) (Repl. 1997) provides that it is unlawful for an intoxicated person to be in the actual physical control of a motor vehicle, and “intoxicated” is defined by Ark. Code Ann. § 5-65-102(1) (Repl. 1997) as follows:
“Intoxicated” means influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination thereof, to such a degree that the driver’s reactions, motor skills, and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself and other motorists or pedestrians [.]
Regarding his first conviction, Mr. Stivers argues that there was insufficient evidence of intoxication. Specifically, he asserts that the only evidence of intoxication was the fact that he smelled strongly of alcohol, and he attributes his unresponsiveness to injuries suffered in the accident. With regard to the other conviction, he concedes that there was evidence of intoxication, but argues that there was insufficient evidence that he ever exercised control of the truck because there were no witnesses to the accident and there was no evidence that the keys were either found in the ignition or on his person.
Testimony regarding the first conviction established that Mr. Stivers was involved in a one-car accident and his truck, still running, had come to a stop about thirty-five feet off the road. Although the accident occurred in the daytime and in the absence of any adverse driving conditions, there are many reasonable explanations other than intoxication for someone to have a one-car accident. We acknowledge that circumstantial evidence may constitute substantial evidence to support a conviction, but this is only true when the circumstantial evidence rules out every other reasonable hypothesis but the guilt of the accused. Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994). The investigating officers testified that appellant was unresponsive, and seemed sleepy to the point of near unconsciousness. However, they also testified that appellant was injured and was taken by ambulance to the hospital. Thus, it is reasonable to infer that his injuries, and not intoxication, could have caused his impaired response. Considering this evidence in the fight most favorable to the State, the only evidence that would tend to support appellant’s conviction is the fact of the accident and the odor of intoxicants. This, without more, is not substantial evidence of intoxication. Consequently, appellant’s conviction for fourth-offense DWI arising out of the January 5, 1996, accident must be reversed.
As for the second conviction arising out of the March 14, 1996, accident, Mr. Stivers was found sitting direcdy outside the open driver’s side door to a truck registered in his name, no other persons were present, and he admitted that he had been driving. This sufficiently established that Mr. Stivers was in control of the vehicle at a time when he was intoxicated.
Mr. Stivers’s remaining argument is that the trial court improperly admitted purported judgments of his prior DWI offenses. At the close of the State’s case, the prosecuting attorney offered into evidence exhibits 2, 3, 4, and 5, which were represented to be judgments from Little Rock Municipal Court reflecting prior DWI convictions. They were signed and dated by the municipal judge, and on the back of each exhibit was a stamped certificate of authenticity from Pulaski County Circuit Court. Mr. Stivers objected to the introduction of the exhibits because they were not certified by the municipal clerk or file marked, and the trial court sustained the objection but allowed the State a brief continuance. About an hour later, the trial resumed and the State sought to introduce exhibits 6, 7, 8, and 9. The face of these exhibits were the same as 2, 3, 4, and 5, except that each document now bore the following certification:
I certify that this is a true and correct copy of the Judgment rendered on the above date by this court against this defendant.
signed S. Johnson
Sue Brooks, Court Clerk
10-6-97
Date
Mr. Stivers again objected to the admissibility of the documents, but they were received by the trial court.
For reversal on this issue, Mr. Stivers contends that the documents were not authentic, and he cites three rules of the Arkansas Rules of Evidence, which are as follows:
Rule 901. Requirement of authentication or identifcation [identification]. — (a) General Provision. The requirement of authentication or identification as a condition precedent to admissiblity [admissibility] is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication of identification conforming with the requirements of this rule:
(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.
Rule 902. Self-authentication. — Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(4) Certified copies of public records. A copy of an official record or report or entry therein, or a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3), or complying with any law of the United States or of this State.
Rule i 005. Public records. — The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy complying with the foregoing cannot be obtained by the exercise of reasonable diligence, other evidence of the contents may be admitted.
We find Mr. Stivers’s final contention to be without merit. The above rules of evidence describe circumstances under which a document may be properly admitted into evidence, but they are not exhaustive. Indeed, Rule 901(b) specifically states that the examples of authentication are illustrative and not limiting. In the instant case, the trial court was satisfied that the evidence introduced was what it was purported to be, and we find no error in this decision given that the judgments were signed and dated by the municipal judge and were certified copies. Although Mr. Stivers now argues that the certification was invalid because the signature did not match the clerk’s name and the certification date was the same as the date of trial, these arguments were not specifically raised at trial, and he further fails to cite authority to suggest that these factors invalidate the certification. A trial court has wide discretion in evidentiary determinations, Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992), and finding no abuse of that discretion, we affirm the trial court’s admission of the disputed exhibits.
The conviction for fourth-offense DWI arising out of the January 5, 1996, accident is reversed and dismissed. The conviction for fifth-offense DWI arising out of the March 14, 1996, accident is modified to fourth-offense DWI and is affirmed as modified.
Stroud and Meads, JJ., agree. | [
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Margaret Meads, Judge.
This is an appeal from the Arkansas Workers’ Compensation Commission. Appellant, a truck driver for appellee Emerson Electric, suffered a compensable injury in September 1977 when the truck that he was driving overturned, pinning him in the truck for several hours and killing his driving partner. Appellant suffered injuries to his left leg and spine that required two leg surgeries and five back surgeries, including fusions from L3 to the sacrum. He received permanent partial impairment ratings of twenty-five percent to the left leg and thirty-five percent to the body as a whole for the spine. Nonetheless, appellant returned to work for Emerson in 1986. On January 2, 1996, appellant was involved in two accidents as a result of icy road conditions while driving a tractor-trailer rig with a partner. At the time the first accident occurred, appellant was in the sleeper; he was driving when the second accident occurred.
At a hearing held August 7, 1996, on appellant’s workers’ compensation claim, appellant contended that he was entitled to payment of further medical expenses and six months of additional temporary total disability benefits. Issues regarding change of physician and extent of permanent disability were reserved. On September 16, 1996, an administrative law judge (ALJ) entered an order holding that appellant sustained an aggravation, or new injury, of his preexisting condition on January 2, 1996; that as a result of his compensable injuries he was entitled to temporary total disability benefits beginning with his last day worked and ending on February 7, 1996; and that he is entitled to payment of all medical expenses incurred for treatment by Dr. Tyrer subsequent to January 2, 1996. No appeal was taken from this order.
On January 8, 1997, a hearing was held on the issues of change of physician, additional permanent partial impairment rating, and wage-loss disability. The transcript and exhibits from the August 7, 1996, hearing were incorporated by reference, and additional evidence was received. In an opinion entered February 25, 1997, the ALJ found that appellant did not sustain additional permanent partial impairment to the body as a whole as a result of the January 2, 1996, accidents; that appellant sustained a thirty-five percent impairment to his wage-earning capacity; and that appellant’s authorized family physician, Dr. Shedd, is authorized to refer appellant to Dr. Larry Mahon for future medical maintenance as necessary. In a supplemental opinion filed March 24, 1997, the ALJ found that appellant sustained an additional permanent partial impairment of five percent to the body as a whole as a result of the January 2, 1996, incidents, and that appellant’s compensation rate should be based upon his January 1996 earnings.
The full Commission affirmed the ALJ’s award of a thirty-five percent wage-loss disability and the change of physician. Flowever, it found that appellant failed to prove that he sustained an additional five percent permanent anatomical impairment and that appellant’s compensation rate should be based on his 1977 earnings rate. Appellant appeals from the reversal of the five percent anatomical impairment and the application of his 1977 earnings.
There was evidence that appellant continued to have problems with his leg and back after he returned to work in 1986, and that after the January 2, 1996, accidents he hurt between his shoulder blades and in the upper part of his back. On January 4, 1996, Dr. Shedd took appellant off work. Appellant was subsequently treated by Dr. Roy Tyrer, Jr., and underwent an independent medical evaluation by Dr. Larry Mahon. Appellant has not been physically able to drive a truck since the January 2 accidents. Since that time, appellant has not worked for anyone, but he had a construction business in which he did supervisory work and actual labor.
Appellant testified, however, that he stopped working in that business in November 1996 and turned it over to his son, because he got to the point where he was not having “a good day.” Mentally and physically he could not do the work. His bad days got closer together, he had no one to take care of him “prescription wise,” and it got to the point where when he tried to do anything at all, he would get “down” and could not get “up.” He said that he would just go home. Appellant now has constant pain; there are days that he cannot get out of the house because of pain even if he has not done anything. The pain comes all of a sudden, it “knocks him to his knees,” and it is all he can do to get back “up.”
Appellant testified further that he now has problems that he did not have prior to January 1996. The upper part of his back gives him problems; he cannot raise his arm; it feels as if he is having a heart attack; the pain is like a knife and limits his motion on his right side. He said that he is worse now than he was before the 1996 accidents.
Dr. Tyrer reported on January 29, 1996, that appellant had been troubled with upper lumbar discomfort extending into the interscapular area since the January accidents. His impression was mild to moderate thoracal lumbar muscle sprain. He did not feel that appellant sustained significant additional injury in the January accidents. A January 31, 1996, isotope bone scan showed increased activity in the lower lumbar area where appellant had the prior spinal fusion, and increased activity in the right rib cage and in the left tibia below the knee, both of which are areas where appellant had a prior injury. An MRI of appellant’s thoracic spine performed March 18, 1996, showed slight disc dessication in the mid-thoracic area without evidence of intervertebral disc herniation or other definite abnormality. On April 17, 1996, Dr. Tyrer reported that he told appellant that he did not believe any additional treatment was indicated or would be beneficial, and he did not think that the January accidents had any appreciable adverse effect on appellant’s preexisting chronic low-back problem.
Dr. Larry Mahon’s report dated June 3, 1996, recites that appellant has pain in his low back and numbness in his toes, the back of his right thigh, and his calf. He also has some aching pain between his shoulders and aching discomfort of the left lower leg associated with weather changes. AP and lateral x-rays of his thoracic spine reveal extensive osteoarthritis with bone spurring. Based upon the history, Dr. Mahon opined that appellant’s new complaints concerning his mid-thoracic area were apparently due to one of the January 1996 injuries. It was his further opinion that appellant sustained permanent aggravation of his prior existing lumbar pathology as a result of the January 1996 injury, and assuming appellant’s history was correct, the permanent aggravation contributed an additional five percent permanent partial impairment to the body as a whole.
Dr. Mahon wrote that he was surprised appellant was able to perform the duties of a truck driver since 1982 [sic] with his history of chronic back problems and multiple surgeries; that he must be a rather stoic individual very desirous of remaining employed; that his work tolerance during that time was marginal; and that the additional injuries and symptomatology resulted in appellant’s inability to return to that level of activity.
On appeal, appellant first argues that the Commission erred in denying the additional five percent permanent partial anatomical impairment because he failed to establish any additional impairment to the lumbar spine with “objective findings.” Appellant contends that fair-minded persons with the same evidence before them could not have reached the Commission’s conclusion.
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). The Commission has the duty of weighing medical evidence and, if the evidence is conflicting, its resolution is a question of fact for the Commission. Whaley v. Hardee’s, 51 Ark. App. 166, 912 S.W.2d 14 (1995). Conflicts in the medical evidence are a question of fact for the Commission, and when the Commission chooses to accept the testimony of one physician over another in such cases, we are powerless to reverse the decision. Henson v. Club Prods., 22 Ark. App. 136, 736 S.W.2d 290 (1987). However, these standards must not totally insulate the Commission from judicial review; to do so would render this court’s function meaningless in workers’ compensation cases. Wade v. Mr. C. Cavenaugh’s, 25 Ark. App. 237, 756 S.W.2d 923 (1988).
Here, Dr. Tyrer stated that he did not feel that appellant sustained significant additional injury in the January accidents, and that he did not believe the January accidents had any appreciable adverse effect on appellant’s preexisting low-back problem. This evidence constitutes substantial evidence to support the Commission’s findings on the issue of additional impairment to appellant’s lumbar spine, and we affirm the Commission’s findings on this issue.
Appellant’s next two arguments are related and concern the proper wage rate upon which to base appellant’s thirty-five percent wage-loss disability. The Commission found, after considering appellant’s age, education, work experience and the nature of the problems which he experienced as a result of the 1996 accidents, that the ALJ’s award of a thirty-five percent impairment to appellant’s wage-earning capacity was correct. It noted that appellant continued to work as a truck driver until the accidents on January 2, 1996, and that the medical evidence establishes that he is not now physically capable of returning to truck driving. It noted further that both Dr. Mahon and Dr. Tyrer expressed surprise that appellant was able to continue his employment as a truck driver as long as he did in light of his low-back abnormalities. The Commission found, however, that appellant’s “time of accident” was the date of appellant’s 1977 injury.
Arkansas Code Annotated section ll-9-518(a)(l) (Repl. 1996) provides that compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of the accident. Arkansas Code Annotated section 11-9-102(18) (Supp. 1997) defines “time of accident” or “date of accident” as the time or date of the occurrence of the accidental incident from which compensable injury, disability, or death results. Here, despite his 1977 accident, appellant was able to continue driving from 1986 until the accidents that occurred on January 2, 1996, and it was only after those accidents that appellant suffered any loss of earnings. Thus, appellant’s compensable wage-loss disability resulted from the 1996 incidents. Pursuant to the above statutes, the date of accident is 1996, and appellant’s compensation rate should be based on his 1996 earnings and the 1996 maximum rate. We therefore reverse and remand on this point for the Commission to determine appellant’s 1996 earnings, and for entry of an order consistent with this opinion.
Affirmed in part; reversed and remanded in part.
Robbins, C.J., and Stroud, J., agree. | [
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Sam Bird, Judge.
This is an appeal from a decision of the Sebastian County Chancery Court awarding the proceeds of a life-insurance policy on Edward John Mikus, Jr. (Mikus Jr.), to his surviving spouse, appellee Marie Mikus. The appellant, Edward John Mikus, III, is Mikus Jr.’s son. The appellee is administratrix of the estate of Mikus Jr., but not the mother of appellant. Mikus Jr. died in a motorcycle accident on April 23, 1994.
Mikus Jr. and Marie Mikus banked at First National Bank of Roland, Oklahoma, and had loans that were collateralized by an assignment to the bank (to the extent of the loan balances) of the proceeds of life-insurance policies they owned on each other. The forms by which the assignments were effected were furnished by the bank. Appellee’s life-insurance policy was for $100,000 and designated Mikus Jr. as primary beneficiary and her parents as contingent beneficiaries. Mikus Jr.’s life-insurance policy was for $250,000 and designated Marie as primary beneficiary and appellant, who was thirteen when the insurance policies were purchased in 1988, as his contingent beneficiary. The policies contained the following provision regarding beneficiary designations:
The Beneficiary will be as shown in the application, unless changed by written request filed with the Company; provided, however, that if any beneficiary is to be irrevocable, the Company may require the contract for the change to be made. If at the time of the Insured’s death, there is no beneficiary then living, the proceeds will be payable to the Estate of the Insured.
In 1992, when they were about to move their lock and safe business to a new location, Mikus Jr. and Marie decided to change banks to one nearer their business. The Mikuses moved their banking business to Citizens Bank of Lavaca, which subsequently changed its name to River Valley Bank & Trust. They also refinanced their loans with Citizens/River Valley (River Valley) and River Valley sought to collateralize the loans by an assignment of their life-insurance policies as had been done at their previous bank. However, River Valley did not supply its own assignment forms. Instead, the loan officer they dealt with at River Valley told Marie to call her insurance company for the proper forms and to tell the insurance agent to call him (the loan officer) if the insurance agent had any questions about what they wanted to do.
Marie testified that she called their insurance agency, BHC Life & Group Specialists (BHC), and told whoever answered the phone what she needed. Someone at the agency sent Marie change-of-beneficiary forms with instructions to sign them in blank and send them back to the agency. The following instruction appeared on the back of the forms:
This request, when completed and recorded or endorsed upon the policy, is in substitution of all previous beneficiary designations. Be sure to rename all previous beneficiaries who are to receive any of the proceeds of the policy.
Marie testified that she and Mikus Jr. signed the forms in blank as instructed and returned them to the agency. Then someone at the agency (the record doesn’t reveal who) filled in the forms, including inserting the name of “Citizens Bank of Lavacca/ Barfing Lender,” as the beneficiary of the policies, and then sent a copy of the forms to the Mikuses, but mistakenly mailed them to the address of Mikus Jr.’s parents. Marie testified that she did not read the forms, but that she noticed the incorrect address on them, which she struck through and wrote in their correct address. She then put the forms in the safe. When the policies were later received, she also put them in the safe where they stayed until the day Mikus Jr. was killed.
It was not until after Mikus Jr. died that Marie or anyone at River Valley Bank realized the mistake in the beneficiary designation forms. Because of the error, the entire proceeds of Mikus Jr.’s $250,000 life-insurance policy were paid by the insurance company to River Valley Bank. After applying it to pay off the balance of the Mikuses’ loans, approximately $68,000 was left, which the bank placed in an interest-bearing account and petitioned the court to decide to whom it should be paid. Marie then filed suit, personally and as the administratrix of Mikus Jr.’s estate, against River Valley Bank, BHC insurance agency, the insurance company that issued the life-insurance policy, and appellant, seeking a declaration that the entire amount of Mikus Jr.’s fife-insurance policy in excess of the balance of the loans owed to River Valley belonged to her.
Marie contended that the change-of-beneficiary forms were not supposed to have divested the original beneficiaries; rather, they were supposed to have simply assigned the proceeds of the life-insurance policy to River Valley Bank to the extent of the outstanding balance of the loans. She contended that the balance of the insurance proceeds remaining after payment of the loans belonged to her as the designated beneficiary of the policy. Before or during the trial, the insurance agency and the insurance company were dismissed from the suit, and River Valley Bank, which made no claim to the balance of the proceeds, was retained as a party only for the purpose of obligating it to pay the balance to the proper beneficiary as determined by the court. Thus, the suit went forward to determine whether Marie or the estate was to receive the balance of the policy proceeds and the accrued interest.
At trial, appellant contended that Marie and Mikus Jr. had separated and were in the process of getting a divorce at the time of Mikus Jr.’s death. Marie admitted that she and Mikus Jr. had separated and that she had filed for divorce. However, she contended that they were in the process of reconciliation when Mikus Jr. was killed. She testified that only three months before Mikus Jr.’s death, she and Mikus Jr. had gotten a loan together and had purchased a prefabricated home to move onto property they jointly owned, and that, when the house was ready, they were going to live in it together.
On radically conflicting evidence, the chancellor found that the change-of-beneficiary forms that Marie and Mikus Jr. had signed were not the proper way to collateralize the loans and that the true intent of the parties, Mikus Jr., BHC, and River Valley Bank, was to assign to the bank only that portion of the policy proceeds necessary to discharge the balance of the loans, but not to change the designated beneficiary of the policy. The chancellor looked to the assignments as they previously existed as collateral for the Mikuses’ loans before they were refinanced, observing that Marie was designated as Mikus Jr.’s primary beneficiary and appellant as Mikus Jr.’s contingent beneficiary. The chancellor also noted the high improbability that the decedent or any reasonable person would intentionally sign a form that gave the entire proceeds of his fife-insurance policy to the bank.
Furthermore, the chancellor noted the unlikelihood that the decedent was knowledgeable and clever enough to know that if he designated the bank as the sole beneficiary of his fife insurance, that under the law and the language of the policy, his son would receive most of the balance of his fife insurance through his estate. In this regard, the chancellor questioned why Mikus Jr. would not have simply executed a new change-of-beneficiary form in favor of appellant if that had been his intent, and what motive he would have had to try to deceive his wife if, as appellant claimed, Mikus Jr. and Marie were irreconcilably separated. And, finally, the chancellor was persuaded by the fact that Marie had signed the same type of change-of-beneficiary form as Mikus Jr. had signed, in the mistaken belief that she had not changed her life-insurance beneficiary but had merely effected an assignment to the bank as security for the loans. Other evidence considered by the chancellor supported Marie’s contention that she and Mikus Jr. had rec onciled, including a note and flowers sent by Mikus Jr. to Marie on Valentine’s Day, 1994, only two months before he was killed.
The chancellor concluded that the evidence was clear and convincing that Mikus Jr., by executing the beneficiary designation in favor of River Valley Bank, intended only to give to the bank a security interest in his life-insurance-policy proceeds to the extent of his indebtedness, and that he did not intend to remove Marie as the primary beneficiary of his policy. Therefore, the chancellor reformed the beneficiary designation document to reflect what he found to be Mikus Jr.’s intent.
Appellant argues on appeal that there must be fraud in order for the court to reform an instrument and that there was no fraud shown. He further contends that Mikus Jr. did not intend to reunite with Marie, that Mikus Jr. actually had at least one (and maybe more) girlfriends, and that Mikus Jr. was living alone in an apartment at the time of his death. With this evidence appellant argues that the balance of the proceeds of the fife-insurance policy should be paid to his father’s estate in accordance with the policy provision set out above.
On the other hand, Marie presented extensive evidence that the change in the insurance beneficiary was a mistake, and that it was intended to be merely an assignment of the policy proceeds to the bank as collateral for the loans. She also produced evidence indicating that she and Mikus Jr. had reconciled, and that they had obtained a home mortgage on January 24, 1994, just three months before Mikus Jr.’s death, that covered their jointly owned land and the prefabricated home that was to be moved onto it.
On appeal, we review chancery cases de novo, but we will not reverse the chancellor’s findings unless they are clearly erroneous or clearly against a preponderance of the evidence. Ark. R. Civ. P. 52(a); Riddick v. Streett, 313 Ark. 706, 858 S.W.2d 62 (1993). Appellant contends that the chancellor erred in reforming the instrument because no fraud was shown. However, equity is not limited to reforming written instruments only upon a showing of fraud. Equity will reform written instruments in two cases: (1) Where there is a mutual mistake — that is, where an agreement was actually entered into, but the contract, deed, settlement, or other instrument, in its written form, does not express what was really intended by the parties thereto, and (2) where there has been a mistake of one party accompanied by fraud or other inequitable conduct of the remaining parties. Falls v. Utley, 281 Ark. 481, 665 S.W.2d 862 (1984); Turney v. Roberts, 255 Ark. 503, 501 S.W.2d 601 (1973); Arnett & Arnett v. Lillard, 245 Ark. 939, 436 S.W.2d 106 (1969); Acklin v. Riddell, 42 Ark. App. 230, 856 S.W.2d 322 (1993). A mutual mistake is one that is reciprocal and common to the parties, each alike laboring under the same misconception in respect to the terms of the written instrument. It is a mistake shared by the parties to the instrument at the time of reducing the instrument to writing. Yeargen v. Bank of Montgomery County, 268 Ark. 752, 595 S.W.2d 704 (Ark. App. 1980). It need not be the mistake of one of the parties to the 'written instrument. It is only required that the writing fails to reflect the parties’ true understanding. Kohn v. Pearson, 282 Ark. 418, 670 S.W.2d 795 (1984) (citing D. Dobbs, Remedies § 4.3, (1973)). Evidence of mutuality must relate to the time of the execution of the instrument and show that the parties then intended to say one thing and by mistake expressed another thing. Yeargen v. Bank of Montgomery County, supra. In Weiss et al v. Turney, 173 F.2d 617, 619 (8th Cir. 1949), the court interpreted Arkansas law and said:
To warrant reformation on the ground of mutual mistake it must appear that by reason of the mistake both have done what neither intended; in other words, the instrument must do violence to the understanding of both parties. Each must have labored under the same misconception in respect to the terms of the written instrument. Fagan v. Graves, 173 Ark. 842, 293 S.W. 712 [1927],
In the case at bar, although the chancellor did not specifically state that he had found a mutual mistake by the parties in executing the wrong form to effect an assignment to the bank as collateral for the loans, it is obvious from his order that he did.
A court of equity may grant relief for a mutual mistake in the writing of an insurance contract that results in the written terms not expressing the clear intent and understanding of the parties. American Casualty Co. v. Hambleton, 233 Ark. 942, 349 S.W.2d 664 (1961); Equity General Agents, Inc. v. O’Neal, 15 Ark. App. 302, 692 S.W.2d 789 (1985). Many cases support the granting of reformation when an insurance policy is not reflective of the parties’ agreement and intentions. For instance, in Phoenix Assurance Co. v. Boyette, 77 Ark. 41, 90 S.W. 284 (1905), it was undisputed that the insurance policy issued by the appellant insurance company to the appellee did not express the real agreement and intention of the appellee and the agent of the appellant insurance company. The Arkansas Supreme Court upheld the chancellor’s order for reformation of the policy. See also Pennsylvania Millers Mutual Ins. Co. v. Walton, 236 Ark. 336, 365 S.W.2d 859 (1963); Calvert Fire Ins. Co. v. Hardwicke, 232 Ark. 466, 338 S.W.2d 329 (1960); Inter Southern Life Ins. Co. v. Holzhauer, 177 Ark. 927, 9 S.W.2d 26 (1928); Granite State Ins. Co. v. Bacon, 266 Ark. 842, 586 S.W.2d 254 (Ark. App. 1979).
The chancellor’s finding that there was clear and convincing evidence of a mutual mistake and his reformation of the beneficiary designation to reflect the true intent of the parties was not clearly erroneous. Consequently, the order reforming the instrument to reflect the true intent of the parties, with the effect of granting the balance of the proceeds of the deceased’s life-insurance policy to his widow, as designated beneficiary of the policy, was not error.
Affirmed.
Jennings and Roaf, JJ., agree. | [
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Robert J. Gladwin, Judge.
The Perry County Circuit Court found that appellant Randy L. Roberts’s consent to adoption was not required, and allowed his minor child, A.R., to be adopted by her stepfather, appellee Reid Alan Brown, by decree filed May 31, 2007. Appellant raises three points on appeal in an attempt to persuade this court that the trial court erred in finding appellant’s consent was not required. We agree with the trial court’s ruling and affirm.
A.R. was born on January 15, 2001, to appellant and appellee, who was then Allison Roberts and is now Allison Roberts Brown. The couple was divorced in January 2004. Mrs. Brown was granted custody of A.R., and appellant was granted visitation pursuant to the divorce decree, which was later amended to provide for supervised visitation because of appellant’s drug addiction. Neither the divorce decree nor the amended order contains language stating that Mrs. Brown would have the right to initiate proceedings to terminate appellant’s parental rights if he did not pay child support or visit the child for at least one year. Appellant never exercised his visitation. All the parties agree that appellant last saw the child on Christmas day in December 2004, when he went to appellees’ house to take presents to A.R.
Appellant was required by the divorce decree to pay seventy dollars per week in child support; however, none was paid. Appellant was injured when he was hit by a truck in December 2003. He was hospitalized and out of work until the fall of 2004. In September 2005, appellant was charged with six felonies. He pled guilty in January 2006 to attempt to manufacture methamphetamine, delivery of drug paraphernalia, failure to keep records, and possession of methamphetamine. He received a suspended sentence of sixty months and served twelve days in jail. Appellant attended rehabilitation programs on two occasions that were unsuccessful. However, he completed a twelve-week rehabilitation program in August 2006 to overcome his addiction to methamphetamine and prescription pain medications. Appellant has tested negative since May 4, 2006, on all drug screens and claims to have been clean and sober since February 2006.
Mrs. Brown, the mother of A.R., married appellee Reid Alan Brown in October 2005. Appellees filed a joint petition for adoption on December 18, 2006, alleging that appellant had had no contact with A.R. since December 2004, including no telephone calls, birthday cards, or visits, and that no child support had ever been paid other than a cash payment of forty dollars in the summer of2004 and an offer of ten dollars in the summer of 2005, which Mrs. Brown declined.
The trial court found that appellant’s consent to the adoption was not required pursuant to Arkansas Code Annotated section 9-9-207 (Supp. 2007), because he had had no significant contact with his child for a period of one year and did not contribute financially for at least a one-year period. The trial court specifically found that from May 2004 until January 2007, no child support was paid. Further, the trial court found that appellant had not seen his child nor attempted to see her since December 2004. As a result, the trial court granted the adoption of A.R. Appellant filed a timely notice of appeal, and this appeal followed.
Adoption proceedings are reviewed de novo. In re Adoption of S.C.D., 358 Ark. 51, 186 S.W.3d 225 (2004). Adoption statutes are strictly construed and a person wishing to adopt a child without the consent of the parent must prove that consent is unnecessary by clear and convincing evidence. In re Adoption of Lybrand, 329 Ark. 163, 946 S.W.2d 946 (1997). A circuit court’s finding that consent is unnecessary due to a failure to support or communicate with the child will not be reversed unless clearly erroneous. In re Adoption of K.F.H. & K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Gregg v. Ark. Dep’t of Human Servs., 58 Ark. App. 337, 952 S.W.2d 183 (1997). We defer to the trial court in making credibility determinations because the trial court is in a better position to judge the credibility of witnesses. Hurtt v. Hurtt, 93 Ark. App. 37, 216 S.W.3d 604 (2005).
Arkansas Code Annotated section 9-9-207 (Supp. 2007), provides in pertinent part as follows:
(a) Consent to adoption is not required of:
(1) a parent who has deserted a child without affording means of identification or who has abandoned a child;
(2) a parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significandy without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree. . .
Ark. Code Ann. § 9-9-207(a)(l)-(2).
Arkansas Code Annotated section 9-9-220 (Supp. 2007), provides in pertinent part as follows:
(c) In addition to any other proceeding provided by law, the relationship of parent and child may be terminated by a court order issued under this subchapter on any ground provided by other law for termination of the relationship, or on the following grounds:
(1) Abandonment.
(A) A child support order shall provide notice to the non-custodial parent that failure to pay child support or to visit the child for at least one (1) year shall provide the custodial parent with the right to initiate proceedings to terminate the parental rights of the noncustodial parent.
(B) If the notification clause required by subdivision (c)(1)(A) of this section is not in the child support order, the custodial parent, prior to termination of parental rights, shall notify the non-custodial parent that he or she intends to petition the court to terminate parental rights.
(C) (i) The non-custodial parent shall have three (3) months from the filing of the petition to pay a substantial amount of past due payments owed and to establish a relationship with his or her child or children.
(ii) Once the requirements under subdivision (c)(l)(C)(i) of this section are met, the custodial parent shall not be permitted to proceed with the adoption nor the termination of parental rights of the non-custodial parent.
(iii) The court may terminate parental rights of the noncustodial parent upon a showing that:
(a) Child support payments have not been made for one (1) year or the non-custodial parent has not visited the child in the preceding year and the non-custodial parent has not fulfilled the requirements of subdivision (c)(1) (C)(i) of this section; and
(b) It would be in the best interest of the child to terminate the parental relationship.
(D) The provisions of subdivisions (c)(1) (A)-(C) of this section apply only to child support orders entered after August 13, 2001.
Ark. Code Ann. § 9-9-220(c)(l)(A)-(D).
A. Justification
Appellant relies on Minton v. Arkansas Department of Human Services, 72 Ark. App. 290, 34 S.W.3d 776 (2000), where this court reversed the termination of parental rights order and held that because the mother did not have the ability to pay child support, her nonpayment was not willful. Appellant herein argues that he suffered from various circumstances, including a catastrophic injury and drug addiction, which prohibited him from making even a nominal payment of child support. He contends that when he did offer to give Mrs. Brown ten dollars for child support, she refused it. He also asserts that there is sufficient evidence to show that Mrs. Brown repeatedly refused to allow him to have visitation, and the fact that his mother had to hire an attorney to exercise grandparent visitation during his difficulties helps prove his assertion. Therefore, he maintains that his lack of support and contact with his daughter were not willful, but justified.
However, appellant conceded at trial he had neither seen nor contacted his child since December 2004, which was twenty-seven months prior to the adoption hearing. His justification argument was that he had been hit by a truck and was incapacitated until July 2004, then became involved with drugs. He testified that he did not want to bring his “troubles” around his daughter. He incurred criminal charges in September 2005 and pled guilty in January 2006 to criminal attempt to manufacture a controlled substance, methamphetamine; delivery of drug paraphernalia; possession of a controlled substance; and failure to keep records. He claimed he had not engaged in drug use for over a year as of the date of the adoption hearing, but he offered no explanation for why he had not attempted to contact his daughter and re-establish a relationship with her since the time he quit using illegal drugs. Even after the petition for adoption was filed, appellant never made any attempts to request visitation or contact with his daughter. Appellant’s failure in this regard was without justification. See Ray v. Sellers, 82 Ark. App. 530, 120 S.W.3d 134 (2003) (where this court defines failure to communicate without justifiable cause as voluntary, willful, arbitrary, and without adequate excuse).
The trial court appropriately found that appellant significantly and without justifiable cause failed to pay child support for at least one year. Appellant paid no money through the registry of the court until after the petition for adoption was filed. He claimed to have given Mrs. Brown $300 in cash during the three-year period prior to the adoption hearing, but this was disputed by Mrs. Brown. Appellant’s reliance on Minton, supra, is misplaced. There, this court considered that the mother was supporting two other children and that she brought her child gifts and clothes. Here, appellant acknowledged that he has been named as the biological father of an illegitimate child born in March 2006. That child was recently removed from its mother by the Department of Human Services. Appellant has done nothing to determine whether the child is his nor supported the child. Therefore, appellant has not been supporting any other child and never paid any child support for the child at issue herein until after the filing of the adoption petition. Further, he paid regularly on an attorney’s fee of $10,000, and paid fines and costs for his criminal case, as well as maintained stable employment over the eighteen months previous to the hearing. These facts belie the argument that he was in dire financial circumstances such that his failure to support his child should be excused, and support the trial court’s finding that appellant’s actions were not justified.
B. Notice
As stated above, Ark. Code Ann. § 9-9-220(c)(l)(A) provides that child support orders are to provide notice to the non-custodial parent that their failure to pay child support or to visit the child for at least one year gives the custodial parent the right to file a petition to terminate parental rights. If notification is not in the support order, then notice is to be given to the non-custodial parent that the custodial parent “intends to petition the court to terminate parental rights.” Ark. Code Ann. § 9-9-220(c)(1)(B). Appellant asserts on appeal that it is undisputed there were no warnings in either of the child-support orders applicable herein, and that appellee did not provide any warning or notice to appellant that she “intended” to terminate his parental rights prior to the filing of the petition. Appellant maintains that based upon the plain language of the statute, the trial court’s ruling should be reversed.
Appellees claim that the intent of the statute was still met, even though they acknowledge appellant was not given the notice described in the statute either in a child-support order or through some method of service prior to the petition for adoption. Appel-lees argue that the statute does not specify how the notification of intent to terminate parental rights should be given. For example, the statute does not specify whether notification of intent should be in writing, whether it should be served separately prior to the adoption petition, or if notification by telephone would suffice. Appellees also note that no provision is made for a circumstance in which prior notice is not given. They maintain that because the termination of parental rights did not occur until the adoption hearing in April 2007, and appellant was served in December 2006, he did have notice of the intent prior to the termination. Appellees claim the notice is to insure that appellant would have an opportunity to remediate his failure to pay support and establish meaningful contact with the child. Appellant was given that opportunity between December 19, 2006, and April 18, 2007, when he paid around $1600 in child support.
Both parties argue that the trial court implicitly found that notice was sufficient under Ark. Code Ann. § 9-9-220 because it addressed appellant’s efforts at remediation as allowed in that statute in its ruling. Even accepting that the notice require ment was implicitly ruled upon and the issue was preserved, appellant must show proof that he was prejudiced by appellees’ failure to give him notice prior to filing the petition for adoption. However, appellant argues, as will be discussed further below, that he succeeded in satisfying the statute’s requirement that he pay a substantial amount of child support and establish a relationship with his child. Appellant cannot claim prejudice while at the same time arguing he fulfilled his obligation to remediate under the statute. See, e.g., Holt Bonding Co. v. State, 328 Ark. 178, 942 S.W.2d 834 (1997).
C. Remedial measures
The Arkansas Code provides that a non-custodial parent who has not paid child support or exercised his visitation shall have three months from the filing of the petition to pay a substantial amount of past-due payments and establish a relationship with the child, thus preventing the custodial parent from terminating parental rights. Ark. Code Ann. § 9-9-220(c)(l)(C)(i) and (ii). Appellant claims that his payment of more than $1600 in child support over three months from the date of the filing of the petition and his previously-established relationship with his daughter meet the code requirements. Therefore, he argues that the trial court erred by allowing the adoption to proceed over his objection.
However, appellant did not explain why he failed to take remedial measures in re-establishing contact with his minor child. After he obtained a job and quit using illegal drugs, appellant did not contact A.R. He simply failed to act. Therefore, this issue cannot be the basis for a finding that the adoption should be denied. Accordingly, the trial court did not err in finding clear and convincing evidence that appellant’s consent was not required, and we affirm.
Affirmed.
Marshall, J., agrees.
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John Mauzy Pittman, Judge.
Don Fryer, individually and d/b/a Don K. Fryer & Associates, and CISCO have appealed from a judgment entered by the Faulkner County Circuit Court in favor of appellee Guy Boyett for commissions appellants owed to appellee. We cannot say that the circuit judge erred in making this award to appellee and affirm.
In 1989, appellee entered into two written agreements to act as a sales representative for appellants Don Fryer & Associates and CISCO. Both sales agreements provided that appellee, an independent contractor, would be paid his commissions after appellants received payment in full. Appellee received no other form of compensation. The CISCO agreement stated: “Profit share is due after payments are received in full by [CISCO] and profit is determined by sales price less cost of goods sold, freight charges, taxes, etc.” The agreement with Don K. Fryer & Associates stated: “Ail commissions earned by [appellee] hereunder are payable only out of commissions paid by the [manufacturer] and shall be due and payable to [appellee] on or before the 10th day of the month following receipt by [appellant] of payment from the [manufacturer] of the sums from which [appellee’s] commissions are payable.” The CISCO contract stated: “[Appellant] is interested only in the results obtained by [appellee] who shall have sole control of the manner and means of performing under this agreement.”
Both contracts contained the following provision for termination:
This agreement shall continue in full force and effect until the first to occur of the following events, at which time it shall terminate:
(1) The expiration of thirty (30) days after [appellee] gives written notice to [appellant] of [appellee’s] election to terminate this agreement, which right [appellee] is hereby granted and which shall be within [appellee’s] sole discretion ....
On July 6, 1993, appellee gave appellant Fryer the following written notice of his intention to resign:
In accordance with Sub-Agent (Independent Contractor) agreement between Don Fryer and Guy W. Boyett dated 2/27/89 I elect to terminate agreement 30 days from this date or 7/31/93 if you prefer.
After expiration of the 30 day period I will receive commission on only the outstanding purchase orders Metalex has with O.D. Funk and Specialty Services, Inc. when commission is paid by Metalex.
During the life of these open purchase orders I am willing to service these accounts when and if any problems arise.
Prior to 7/31/93 I will make a list of these open purchase orders for your approval.
On that date, appellee also gave a similar notice to CISCO of his intention to resign.
After appellants refused to pay appellee the commissions he had earned before the date of the contracts’ termination, appellee sued appellants for $6,738.72. Following trial, the circuit judge stated in his letter opinion:
The issue is whether the plaintiff is entided to commissions after the termination of the contract he had with Defendant. I find that the issue is settled not by the silence of the contract or the fact that another contract containing specific language was not accepted, but by the language of both the “Fryer” and “CISCO” contracts which provide that commissions earned by the sub-agent shall be due and payable following receipt of full payment by the principal.
The circuit judge then entered judgment for appellee in the amount of $6,742 plus attorney’s fees of $4,700 and $300 in costs.
On appeal, appellants argue that the circuit judge erred in his construction of the contracts to provide for payments of commissions to appellee after termination. Citing Brown v. Cooper Clinic, P.A., 734 F.2d 1298 (8th Cir. 1984), appellants contend that, because the contracts are silent on this question, no such right existed. Brown v. Cooper Clinic did not, however, hold as a matter of law that, if a contract is silent on this issue, a right to compensation after termination can never be found to exist. The clinic distributed 45% of the monthly collections to the surgery department, and the appellant had agreements with other members of that department whereby he would receive 40% of those collections as his monthly salary. In that case, the appellant sought to be paid his portion of the fees billed but not yet collected. The clinic also had an unwritten policy that physicians were not entitled to any portion of the clinic’s accounts receivable upon departure. We believe that case is, therefore, distinguishable from the case before us. In Brown v. Cooper Clinic, the appellant’s salary was not directly tied to his personal billings or collections; thus, his agreement with the clinic was materially different from the contracts involved herein. Accordingly, that case provides no helpful precedent to the issue now before us.
Like the circuit judge, we are also not persuaded by appellants’ emphasis of the fact that, during negotiations, appellee had not accepted a proposed contract that specifically provided for compensation after termination. Because the contracts the parties did accept are not ambiguous, our focus is necessarily upon their express terms.
The initial determination of the existence of an ambiguity rests with the court. Wedin v. Wedin, 57 Ark. App. 203, 944 S.W.2d 847 (1997). When a contract is unambiguous, its construction is a question of law for the court. Rowland v. Faulkenbury, 47 Ark. App. 12, 883 S.W.2d 848 (1994); Moore v. Columbia Mut. Casualty Ins. Co., 36 Ark. App. 226, 821 S.W.2d 59 (1991). A contract is unambiguous and its construction and legal effect are questions of law when its terms are not susceptible to more than one equally reasonable construction. Singh v. Riley’s, Inc., 46 Ark. App. 223, 878 S.W.2d 422 (1994). When contracting parties express their intention in a written instrument in clear and unambiguous language, it is the court’s duty to construe the writing in accordance with the plain meaning of the language employed. Hampton Road, Inc. v. Miller, 18 Ark. App. 9, 708 S.W.2d 98 (1986). Different clauses of a contract must be read together and the contract construed so that all of its parts harmonize, if that is at all possible. Pate v. U.S. Fidelity and Guar. Co., 14 Ark. App. 133, 685 S.W.2d 530 (1985). The contracts in question distinguished between appellee’s earning the right to payment of his commissions and the time at which they were payable. True, the contracts are subject to differing constructions, but not to equally reasonable ones. The more reasonable construction is that, although appellee could only earn his commissions before termination of the contracts, he could receive them after his representation of appellants had ended, if appellants had been paid. We therefore cannot say that the circuit judge erred in his decision.
Affirmed.
Bird and Griffen, JJ., agree. | [
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John F. Stroud, Jr., Judge.
This case involves a malicious prosecution action filed by appellee against appellants. The jury found in appellee’s favor and awarded her $30,000 compensatory damages and $58,000 punitive damages. Appellants assert three points of error on appeal: (1) the jury’s conclusion that there was no probable cause for the criminal prosecution of appellee is not supported by substantial evidence; (2) the trial court erred in excluding the deposition testimony of prosecutor Paul Eaton; and (3) the trial court erred in rejecting their proffered instructions on comparative fault. We find no error and affirm.
During the times relevant to this case, appellant Dana Keller-man and her husband Barry were owners of a furniture store in the city of Maumelle. Appellant Linda Spencer was the store manager. In April 1995, appellee was hired to work at the store. Her tenure there was brief, lasting only about four months. On August 16, 1995, she quit her job for reasons unrelated to this case. During the time of her employment, appellee acquired certain items from the store’s inventory and suppliers and took the items home to be used for her own purposes. The merchandise, having a total value of $1,283.40, consisted of fabric, border, wallpaper, a wall hanging, and bedroom furniture, including a mattress set. According to appellee, appellant Spencer approved an arrangement whereby appellee would make payments on the items between July and September, then pay the balance due at the end of September when her husband received his year-end bonus. By August 2, appellee had made two payments totaling $175.
Shortly after appellee relinquished her job, appellant Keller-man and her husband became concerned that appellee had taken the merchandise from the store without paying for it in full. According to the Kellermans, the store had a strict no-credit policy. After seeking the advice of their personal attorney, the Kel-lermans contacted the Maumelle Department of Public Safety. As a result, Sergeant Mike Wilson prepared an incident report that referenced the crime of theft of property and cited appellee as a suspect. The report contained a list of the merchandise that appel-lee had acquired from the store. Shortly thereafter, the Kel-lermans made contact with deputy prosecuting attorney David Clark. After Clark spoke with the Kellermans in person and with appellant Spencer by phone, he drafted the following affidavit, purportedly consisting of facts constituting reasonable cause to arrest appellee for theft of property:
On or about 6-10-95 Ms. Zeno filled out a purchase order for Marsha Rawls and had the order approved by Linda Spencer. This order was altered to include an additional 6 Drawer Dresser and mirror. Ms. Rawls cancelled her order.
Ms. Zeno then removed from the store one 6 Drawer Dresser, one mirror, one headboard and a lamp. All of these items had been ordered on the ticket for Ms. Rawls. Store employees must pay in full for any items they take. Ms. Zeno did not pay for these items in full. These items have a retail value of $568. Ms. Zeno paid $175 prior to her termination but kept the payments hidden from the accountant.
After Ms. Zeno’s termination a mattress and a picture could not be accounted for in inventory. Ms. Zeno admitted to Linda Spencer to having these items. Additionally, some wallpaper and fabric was listed by Ms. Zeno as being used for store display but when Ms. Spencer contacted Ms. Zeno about these items, Ms. Zeno stated that they were hers.
Appellants would later admit that the affidavit contained numerous inaccuracies, particularly the statements that Ms. Rawls had canceled her order, that appellee hid her payments from the accountant, and that a mattress and a picture could not be accounted for in the store’s inventory. Nevertheless, appellants signed the affidavit.
On September 22, 1995, appellee was arrested in her home, transported to the police station, interrogated, and booked for theft of property. She spent approximately one hour in a small room until she bonded out. Her husband arrived at the store several days later to pay the balance owed on the merchandise. On November 28, 1995, appellee was brought to trial and was acquitted by directed verdict at the close of the State’s case. On January 18, 1996, she filed suit against appellants for malicious prosecution. After a trial, the jury unanimously found in her favor and awarded damages as we have previously mentioned. It is from that verdict that appellants bring their appeal.
Appellants first challenge the sufficiency of the evidence to support the verdict against them. When reviewing the sufficiency of the evidence, we review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Balentine v. Sparkman, 327 Ark. 180, 937 S.W.2d 647 (1997). The jury’s verdict will be affirmed if there is substantial evidence to support it. Id. Substantial evidence is evidence that passes beyond mere suspicion or conjecture and is of sufficient force and character that it will with reasonable and material certainty compel a conclusion one way or the other. Burns v. Boot Scooters, Inc., 61 Ark. App. 124, 965 S.W.2d 798 (1998). To prove the tort of malicious prosecution, the plaintiff must establish each of the following elements: (1) a proceeding instituted or continued by the defendant against the plaintiff; (2) termination of the proceeding in favor of the plaintiff; (3) absence of probable cause for the proceedings; (4) malice on the part of the defendant; and (5) damages. McLaughlin v. Cox, 324 Ark. 361, 922 S.W.2d 327 (1996).
The element we are concerned with in this case is the “probable cause” element. Probable cause must be based upon the existence of facts or credible information that would induce a person of ordinary caution to believe the accused to be guilty. Hollingsworth v. First Nat’l Bank & Trust Co., 311 Ark. 637, 846 S.W.2d 176 (1993); Parker v. Brush, 276 Ark. 437, 637 S.W.2d 539 (1982). Probable cause is to be determined by the facts and circumstances surrounding the commencement and continuation of the legal action. Cordes v. Outdoor Living Ctr., Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). On disputed facts, the question of probable cause is for the jury to determine. Crockett Motor Sales, Inc. v. London, 283 Ark. 106, 671 S.W.2d 187 (1984). Further, ordinary caution is a standard of reasonableness that presents an issue for the jury when the proof is in dispute or subject to different interpretations. Cordes v. Outdoor Living Ctr., Inc., supra; Parker v. Brush, supra.
The thrust of appellants’ argument is that probable cause conclusively existed in this case because they acted on the advice of the Kellermans’ attorney, Greg Stephens, and prosecutor David Clark. Acting upon the advice of counsel is a defense to a charge of malicious prosecution. Machen Ford-Lincoln Mercury, Inc. v. Michaelis, 284 Ark. 255, 681 S.W.2d 326 (1984). However, to avail themselves of the defense, defendants must have made a full, fair, and truthful disclosure of all facts known to them and act bona fide on counsel’s advice. McLaughlin v. Cox, supra; Culpepper v. Smith, 302 Ark. 558, 792 S.W.2d 293 (1990). See also Jennings Motors v. Burchfield, 182 Ark. 1047, 34 S.W.2d 455 (1931). The defendants have the burden of proving this defense. Eggleston v. Ellis, 291 Ark. 317, 724 S.W.2d 462 (1987).
The jury in this case was instructed on the advice-of-counsel defense. According to appellee, the jury might well have found that appellants did not fully disclose to counsel all facts known to them, in particular the existence of an agreement between appel-lee and appellant Spencer to allow purchase of the items on an installment plan. We agree. Attorney Greg Stephens testified that he had counseled the Kellermans that if someone took merchandise from the store without permission, a crime had been committed. However, he also told them that if they extended credit to someone who did not pay or if someone removed merchandise from the store with authorization, no theft of property had occurred. David Clark testified that, based upon the information he obtained from the police report and his discussion with appellants, he believed that probable cause existed for appellee’s arrest. However, he said that if appellant Spencer had told him that she knew of appellee’s purchases and approved the installment plan, it would change his assessment of the existence of probable cause.
Appellants argue that they did not inform counsel of an agreement between appellee and appellant Spencer because no such agreement existed. However, the evidence on this point is in conflict. While Linda Spencer testified that no installment plan had been arranged for appellee, appellee testified that such a plan existed. Sarah Williams, who worked in a business located in the same building as the furniture store, testified that appellee had openly discussed in Spencer’s presence her purchase of the bedroom furniture and the wallpaper. Williams also testified that despite appellants’ assertion of a strict no-credit policy, she had been allowed to purchase items on credit with appellants’ approval. Further, appellee introduced an invoice prepared by Spencer fist-ing the bedroom furniture and showing $75 “paid on account.”
Where testimony is in sharp conflict, it is the province of the jury to resolve such conflict. McWilliams v. Zedlitz, 294 Ark. 336, 742 S.W.2d 929 (1988). In particular, where the evidence conflicts as to what a defendant told his attorney in a malicious prosecution action, a jury question is presented on the advice-of-counsel defense. Eggleston v. Ellis, su-prn. Viewing the testimony in the fight most favorable to appellee, there is substantial evidence that an installment plan was authorized. If there was substantial evidence of such authorization, it follows that there was substantial evidence of appellants’ failure to make a full and complete disclosure of facts to counsel. A jury may reject the advice-of-counsel defense if there is substantial evidence that the defendants either did not impartially state all the facts to counsel or did not honestly and in good faith act upon the advice given them. Parker v. Brush, supra.
We also note that the jury had evidence before it that appellants signed an affidavit containing false and misleading information. Appellants claim that they should not be held responsible for the contents of the affidavit because it was prepared by David Clark. Although Clark conceded that he could have made an error on the affidavit, he also testified that, to the best of his memory, the affidavit contained the facts as relayed to him. Appellants further claim that, at the behest of a police officer, they signed the affidavit after appellee’s arrest, despite trying to tell the officer that the affidavit contained inaccuracies. Appellants’ testimony on this point is disputed. The affidavit itself was dated September 19, 1995, three days prior to appellee’s arrest. Don Belew, the arresting officer, testified that at the time he arrested appellee, the affidavit had been signed. Further, Sarah Williams testified that at some point before appellee’s arrest, appellants came into the store and said they were going to have appellee arrested. According to Williams, appellant Spencer was mad at appellant Kellerman because the allegations in the affidavit were not true. Based upon the foregoing, and viewing the evidence in the fight most favorable to the appellee, we hold that the jury’s verdict is supported by substantial evidence.
The next issue is whether the trial court erred in excluding the proffered testimony of prosecuting attorney Paul Eaton. In late October 1995, Eaton became the prosecutor on appellee’s criminal case in place of David Clark. Appellants sought to introduce Eaton’s deposition testimony during the trial of this matter. Eaton testified that he made the decision to go forward with the case based upon his discussions with appellants shortly before trial, although he could not recall what was said during the discussions. He also said that, to his knowledge, appellants made a full and fair disclosure of all facts and that, in fight of his discussions with appellants, the affidavit played no significant part in his decision to prosecute. Eaton displayed no knowledge of any agreement between appellant Spencer and appellee. On cross-examination, he acknowledged that a party’s consent to removal of property would be relevant in determining whether to prosecute a case.
Appellee objected to Eaton’s testimony as irrelevant because it dealt with matters that occurred after the initiation of the prosecution. She also objected to Eaton’s testimony as cumulative to other evidence, particularly the testimony of David Clark, Greg Stephens, and Sergeant Mike Wilson, regarding their opinions on the existence of probable cause. The trial judge sustained appel-lee’s objection, stating that the testimony was cumulative and only concerned events occurring after appellee’s arrest.
Relevant evidence may be excluded if its probative value is substantially outweighed by needless presentation of cumulative evidence. Ark. R. Evid. 403. The admission or rejection of evidence under Rule 403 is left to the sound discretion of the trial court. Sonny v. Balch Motor Co., 328 Ark. 321, 944 S.W.2d 87 (1997). On appeal, the trial court’s ruling will not be reversed absent a manifest abuse of discretion. Id.
Appellants contend that Eaton’s testimony would have allowed them to pull their case together in a coherent form by presenting the testimony of the attorney who actually prosecuted appellee. They rely on our recent decision in Potter v. Magee, 61 Ark. App. 112, 964 S.W.2d 412 (1998). Potter involved a fee agreement between a lawyer and a client. The lawyer testified about the agreement during the client’s case-in-chief. However, when the lawyer attempted to testify about the agreement during his own case, the trial judge rejected the testimony as being cumulative. We reversed and held that the lawyer’s testimony during the client’s case-in-chief was “sketchy at best” and that the exclusion of the testimony deprived him of the ability to present “the essence of his case.”
We do not see the same detriment to appellants’ case here. Eaton’s testimony, while possibly relevant, added nothing of substance to the testimony already offered by previous witnesses. We cannot say that a manifest abuse of discretion occurred or that appellants’ substantial rights were affected by the exclusion of this evidence. See Ark. R. Evid. 103(a).
The final issue concerns appellants’ attempt to have the jury instructed on comparative fault. Appellants argue that appellee’s conduct in failing to follow proper bookkeeping procedures and in falsely assuring appellant Spencer she would make payment within “a few days” should be compared with their own conduct in assessing fault. The trial court rejected appellants’ comparative-fault instructions, apparently on the basis that such instructions are not proper in the case of an intentional tort.
Arkansas’s comparative-fault statute provides in pertinent part:
(a) In all actions for damages for personal injuries or wrongful death or injury to property in which recovery is predicated upon fault, liability shall be determined by comparing the fault chargeable to a claiming party with the fault chargeable to the party or parties from whom the claiming party seeks to recover damages.
(c) The word “fault” as used in this section includes any act, omission, conduct, risk assumed, breach of warranty, or breach of any legal duty which is a proximate cause of any damages sustained by any party.
Ark. Code Ann. § 16-64-122 (Supp. 1997).
Appellants contend that, under the broad definition of fault contained in our statute, a comparative-fault instruction may be used in a malicious prosecution case. They cite the comment to AMI 306, which reads: “Comparative fault may apply in cases involving intentional torts.” They acknowledge, however, that our supreme court disagreed with that comment in Whitlock v. Smith, 297 Ark. 399, 762 S.W.2d 782 (1989). Whitlock involved the tort of battery. The defendant contended at trial that he struck the plaintiff in self-defense and asked the trial court to instruct the jury on comparative fault. The trial court refused, and the refusal was upheld on appeal. The supreme court stated: “This was a battery case, pure and simple, not a negligence case, and the judge correctly refused to give the instruction on comparative fault.” Whitlock v. Smith, 297 Ark. at 402, 762 S.W.2d at 783. Whitlock has been cited by two noted commentators as holding that comparative negligence is not applicable in an intentional tort case. See Henry Woods and Beth Deere, Comparative Fault § 7:1 at 151 (3d ed. 1996).
Recognizing the difficult hurdle they face in the Whitlock case, appellants attempt to argue that malicious prosecution is not an intentional tort. It is true that the elements of the tort do not mention intentional conduct. However, the state of mind of malice is required. Malice is any improper or sinister motive for instituting a lawsuit. Cordes v. Outdoor Living Ctr., supra. Our research reveals that other jurisdictions recognize malicious prosecution as an intentional tort. See Rodick v. City of Schenectady, 1 F.3d 1341 (2d Cir. 1993); Allstate Ins. Co. v. Moulton, 464 So.2d 507 (Miss. 1985); Koury v. Straight, 948 S.W.2d 639 (Mo. App. 1997); Bittner v. Cummings, 188 A.D.2d 504, 591 N.Y.S.2d 429 (1992); Closs v. Goose Creek Consol. Indep. Sch. Dist., 874 S.W.2d 859 (Tex. App. 1994). Based upon our supreme court’s holding in Whitlock v. Smith, we find no error in the trial court’s rejection of appellants’ proffered comparative-fault instructions.
Affirmed.
Robbins, C.J., and Meads, J., agree.
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John B. Robbins, Chief Judge.
Appellant C. Don Bice appeals a directed verdict that was granted appellees in the Craighead County Chancery Court. Appellant, a radiologist, had sued appellees, a group of radiologists with whom he had worked, for breach of an alleged partnership agreement and for the commission of several torts against him in connection with breach of the alleged partnership agreement. The sole issue tried to the chancery court was whether there was a partnership agreement between appellant and appellees, all of whom practiced radiology together as Associated Radiologists, Ltd. At the close of appellant’s presentation of his case-in-chief, appellees moved for directed verdict on the basis that he had failed to prove the existence of a partnership agreement. The chancery court granted appellees’ directed-verdict motion, and appellant has appealed. We affirm the chancery court’s grant of the appellees’ motion for directed verdict.
In early 1988, appellant Bice left a two-doctor partnership practice of radiology in El Dorado, Arkansas, to come to work as a radiologist with appellees, who were the members of Associated Radiologists, Ltd. In February 1988, appellant signed an agreement with appellees styled “New Physician Employment Agreement.” This agreement set forth the terms and conditions of appellant’s work as a radiologist. Among its provisions, this employment agreement contained two references to appellant becoming “a full partner” in his third year of employment with appellees. In February 1990, appellees sent appellant a letter of reprimand that stated, in pertinent part, “We are delaying your becoming a full partner in Associated Radiologists, Ltd. until April 1991.” On April 4, 1991, appellant signed a second employment contract styled, “Contract of Employment,” with appellees. As did appellant’s initial employment contract, the April 4, 1991, contract set forth the terms and conditions of his employment. On January 24, 1996, appellees met and voted to fire appellant, effective the next day.
In March 1996, appellant filed a complaint against appellees in Craighead County Circuit Court. In April 1996, appellant amended his complaint. In his amended complaint, appellant alleged that appellees had wrongfully terminated his employment with Associated Radiologists, Ltd., by engaging in the following tortious conduct: (1) negligent infliction of mental distress; (2) intentional interference with a prospective business or economic relationship; (3) intentional infliction of mental distress; (4) termination of an employment relationship contrary to the public policy against the formation of monopolies in the practice of medicine; and (5) engagement in concerted action to exclude appellant from the practice of radiology. In his amended complaint, appellant also alleged that appellees had breached a partnership agreement with him and had failed to properly account for partnership funds. Appellant alleged further that appellee’s wrongful conduct had caused him $13,050,000 in damages.
In December 1996, appellees filed a motion to dismiss appellant’s complaint, pursuant to Ark. R. Civ. P. 12(b)(6), for failure to state facts upon which relief can be granted. The circuit court granted appellee’s Rule 12(b)(6) motion, in part. The circuit court dismissed all of appellant’s tort-based allegations for failure to state facts upon which relief can be granted. However, the circuit court denied appellees’ motion to dismiss appellant’s complaint insofar as it alleged the existence of a partnership agreement between appellees and him. Furthermore, the circuit court transferred appellant’s complaint to Craighead County Chancery Court.
In September 1997, trial was held in chancery court. Appellant and appellee Dr. William Green testified. Through these two witnesses many records pertaining to the operation of Associated Radiologists, Ltd., were introduced into evidence, as well as other documentary evidence. At the conclusion of appellant’s presentation of his case in chief, appellees moved for a directed verdict, which the chancery court took under consideration. On October 21, 1997, the chancery court caused to be entered an order granting appellees’ motion for a directed verdict and dismissing appellant’s complaint. In this order, the chancery court incorporated by reference a letter opinion that it had sent to the parties on October 3, 1997. In this letter opinion, the chancery court focused its analysis on whether appellant had proved that he had entered into a partnership agreement with appellees. With regard to this partnership issue, the chancery court set forth the following findings of fact and conclusions of law:
It is undisputed and the evidence shows that in some of the documents introduced that the term partner was used. It is undisputed that the individual defendants referred to each other from time to time as partners. On the other hand, to rebut the evidence that a partnership was intended or actually carried on, the following items were admitted into evidence:
(1) Associated Radiologists, Ltd. was incorporated and Articles of Incorporation were admitted (D-2) and later amended. (D-3)
(2) The corporation received a Certificate of Registration from the Arkansas State Medical Board in the corporate name. (D-4)
(3) Certificates of Stock in the corporation were actually issued and registered by the corporation. (D-5)
(4) A pension plan was adopted (D-6) and later amended (D-7) in the corporate name.
(5) Corporate Minutes were kept. P-5, P-11, and P-12. Some of these are handwritten and while they may appear to be imperfect to an experienced corporate draftsman’s eye, nevertheless, they show an intention to keep a record of corporate business.
(6) The corporation adopted By-Laws. (P-10)
(7) A Joinder Agreement was entered into between the corporation and plaintiff.
(8) Plaintiff s tax returns (P-4) for the years he was engaged in the relationship with the defendants clearly reflect that he was reporting his income as an employee of Associated Radiologists, Ltd.
(9) The Contract of Employment (D-10), which was entered into on April 4, 1991, shows that it is between Associated Radiologists, Ltd. as employer and Calvin Don Bice, M.D. as employee.
Plaintiffs argument is based upon the New Physician Employment Agreement, which does state that if he meets all of the conditions under that agreement he will become a “full partner” at the end of the second year. He also bases his argument on the fact that he had an equal share of the profits of Associated Radiologists, Ltd., that he was referred to as a partner, that there are Minutes of some of the meetings which mention the word partner as well as some correspondence which mention that word. In sum and substance, however, the thrust of the argument has to rely upon the intent of the parties and that intent is not to be gathered from the standpoint of only one participant in the litigation. To the contrary, the intention of the parties has to be what both sides of the agreement intended as well as the surrounding facts and circumstances of the case.
The Court finds and concludes that plaintiff has failed in his burden to prove that a partnership agreement was entered into and has failed to prove that he was engaged in a partnership venture with the defendants. To the contrary, the plaintiff was an employee of Associated Radiologists, Ltd., an Arkansas corporation. The motion for a directed verdict will, therefore, be granted.
Appellant asserts that the chancery court erred in granting the appellees’ motion for directed verdict because of his proof of the existence of a partnership agreement with appellees. By granting the appellees’ directed-verdict motion, the chancery court determined that appellant had not presented a prima facie case proving the existence of a partnership agreement. We conclude that the chancery court did not err.
The supreme court has recently set forth the analytical framework that a chancery court is to follow when evaluating a defendant’s motion for directed verdict. A chancery court is to evaluate the motion by deciding whether, if the proceeding were a jury trial, the evidence would be sufficient for the case to go to the jury. See Swink v. Giffin, 333 Ark. 400, 970 S.W.2d 207 (1998). In its evaluation of the plaintiffs case, the chancery court is not to assess the credibility of the testimony presented by the plaintiffs witnesses. Id. To determine whether the plaintiff has presented a prima facie case, the trial court must view the evidence in the light most favorable to the plaintiff, as the nonmoving party, and give the evidence its highest probative value, taking into account all reasonable inferences deducible from the evidence. Bradford v. Verkler, 273 Ark. 317, 619 S.W.2d 636 (1981); Suzuki of Russellville, Inc. v. Mid-Century Ins. Co., 14 Ark. App. 304, 688 S.W.2d 305 (1985). If the evidence, viewed in the fight most favorable to plaintiff, is insubstantial, the trial court should grant the defendant’s motion for directed verdict. City of Little Rock v. Cameron, 320 Ark. 444, 897 S.W.2d 562 (1995). Evidence is insubstantial when it is not of sufficient force or character to compel a conclusion one way or the other or if it does not force a conclusion to pass beyond suspicion or conjecture. Id.; Burns v. Boot Scooters, Inc., 61 Ark. App. 124, 965 S.W.2d 798 (1998).
To present a prima facie case that Associated Radiologists, Ltd., was a partnership, appellant had to introduce evidence showing that Associated Radiologists, Ltd., was “an association of two (2) or more persons to carry on as co-owners a business for profit.” Ark. Code Ann. § 4-42-201(1) (Repl. 1996). A partnership has also been defined as a voluntary contract between two or more competent persons, to place their money, effects, labor, and skill, or some or all of them, in a lawful commerce or business, with the understanding that there shall be a proportional sharing of the profits and losses between them. Wymer v. Dedmon, 233 Ark. 854, 350 S.W.2d 169 (1961). Except for certain instances not pertinent to this case, a partnership is not a “legal person” separate and apart from its members and remains no more than the aggregate of the individual partners. Pate v. Martin, 13 Ark. App. 182, 681 S.W.2d 410 (1985). The primary test to determine whether there was a partnership between the parties is their actual intent to form and operate a partnership. Boeckmann v. Mitchell, 322 Ark. 198, 909 S.W.2d 308 (1995); Culley v. Edwards, 44 Ark. 423 (1884). The parties’ sharing of the net profits of an undertaking is prima facie evidence that they were partners, unless the money received was paid as wages. Ark. Code Ann. § 4-42-202(4)(b) (Repl. 1996); Zajac v. Harris, 241 Ark. 737, 410 S.W.2d 593 (1967). The intention of the parties to form a partnership is discovered by examination of the contract into which they entered, construed in the light of all the pertinent facts and circumstances. Stephens v. Neely, 161 Ark. 114, 255 S.W.2d 562 (1923); Wilson v. Todhunter, 137 Ark. 80, 207 S.W. 221 (1918); Malone v. Hines, 36 Ark. App. 254, 822 S.W.2d 394 (1992). When construing a contract that purports to create a partnership, a court should consider the contract as a whole. Mehaffy v. Wilson, 138 Ark. 281, 211 S.W. 148 (1919). Moreover, in determining whether the parties formed a partnership, the issue turns on what the parties have agreed to do, not on what they have agreed to call themselves. See Central States Life Ins. Co. v. Barrow, 190 Ark. 141, 77 S.W.2d 801 (1935).
In his brief, appellant sets forth several reasons why the chancery court erred in granting the appellees’ motion for directed verdict. However, most of these arguments are not preserved for our review. For example, in his brief, appellant asserts that Associated Radiologists, Ltd., was a partnership, not a corporation, because the appehees did not manage their radiology practice by strict adherence to its corporate bylaws. Appellant also maintains that Associated Radiologists, Ltd., was a partnership because all of the radiologists who made up the group shared in the profit that their collective radiology practice generated. Appellant also argues that the appellees should be estopped from maintaining that Associated Radiologists, Ltd., is a corporation because the appellees fraudulently induced him to leave his former job as a radiologist. Appellant also argues that the employment contracts that he signed with Associated Radiologists, Ltd., were void, ultra vires acts because they were not specifically authorized by a vote of the appellees, as shareholders of Associated Radiologists, Ltd. Appellant also maintains that the employment agreement that he signed on April 4, 1991, is invalid because the appellees breached its terms in that they did not conduct “annual productivity audits.” Appellant also asserts that the April 4, 1991, employment contract is void because it contains a provision contrary to public policy, which is the provision that prohibited him from practicing radiology in the county in which Associated Radiologists, Ltd., is located if he continued to receive compensation from his accounts receivable after leaving Associated Radiologists. Appellant raised these issues before the chancery court. However, in its order granting appellees’ motion for a directed verdict, in which the court incorporated its letter opinion of October 3, 1997, the court addressed none of these numerous legal theories that appellant had argued to the court and argues in his brief on appeal. In its letter opinion, the chancery court addressed only one issue: whether appellant and appellees had the intention to enter an employer/ employee relationship or had the intention to form a partnership.
Appellant is procedurally barred from obtaining our review of the many arguments he raises in his brief, noted above, because he failed to have the chancery court address each of these legal theories in its order (which includes the court’s letter opinion) granting the appellees’ motion for a directed verdict. It was up to appellant to obtain a ruling giving the basis for the chancery court’s decision. Equity Fire & Casualty Co. v. Needham, 323 Ark. 22, 912 S.W.2d 926 (1996). The appellant must obtain a ruling from the chancery court setting forth the basis for its decision because the burden is on appellant to bring up a record sufficient to demonstrate error. Id. An appellant must obtain a basis for the chancery court’s ruling even when it grants a motion made by the other party. Id. (case decided on basis of appellee Needham’s countermotion for summary judgment).
Appellant did make one argument to the chancery court, which the chancery court addressed, and, therefore, is preserved for our review. Appellant argued to the chancery court, and argues on appeal, that the appellees intended to enter into a partnership with him. As noted above, in its letter opinion, the chancery court specifically rejected this contention. Appellant argues that the appellees’ intention to enter into a partnership with him is proven by the following facts: (1) the appellees regularly referred to him as a “partner,” both orally and in letters and other documents; (2) his initial employment contract with appellees (February 3, 1988) states: “[Appellant] will be a full partner the third year. . (3) on February 28, 1990, appellees sent appellant a letter that stated, in pertinent part, “We are delaying your becoming a full partner in Associated Radiologists, Ltd. until April 1991”; (4) his second employment contract (April 4, 1991) stated, in pertinent part, “The total compensation of [Appellant] shall be equal to the highest amount of total compensation paid to any other physician employee of [Associated Radiologists, Ltd.]”; (5) the appellees did not consider themselves and appellant to be “employees” for the purpose of obtaining workman’s compensation insurance; (6) the appellees and he were compensated equally and had an equal vote in the management of Associated Radiologists, Ltd.; and (7) his belief that, after April 4, 1991, he was a full partner in Associated Radiologists, Ltd. According to appellant, the chancery court should have, on the basis of this evidence, inferred the parties’ intention to enter into a partnership and, having inferred this intention, denied the appellees’ directed-verdict motion. For several reasons, we conclude that the chancery court did not err in granting the appellees’ motion for a directed verdict.
To the degree that appellant’s contention that he and appellees intended to form a partnership rests on his sharing equally with the appellees in the profits generated by their radiology practice, it is well established that mere profit sharing by the members of an enterprise does not prove that the enterprise was a partnership. Zajack v. Harris, supra. Moreover, the great emphasis that appellant places on the appellees’ use of “partner” to refer to him and them both orally and in documents and the use of “full partner” in his initial employment agreement is contrary to the case-law rule that in determining whether the parties intended to form a partnership, the issue turns on what the parties have agreed to do, not on what they have agreed to call themselves. See Central States Life Ins. Co. v. Barrow, supra. Appellant’s argument based on the use of “partner” rests entirely at the superficial level of what appellees called him and themselves. The inference that appellant urged on the trial court, and urges on us, to draw from the appellees’ use of “partner” — that the parties intended to form a partnership— is unreasonable. In evaluating the appellees’ directed-verdict motion, the chancery court was required to view the evidence in the fight most favorable to appellant as the non-moving party, and was to take into account all reasonable, not unreasonable, inferences deducible from the evidence. The unreasonableness of the inference that appellant urges has been recognized in other jurisdictions. With regard to the strength of the inference as to intent to form a partnership to be drawn from the use of “partner” by lay persons, a leading treatise on the law of partnership states, “The strength of the inferences from the various indicia of subjective intent [to form a partnership] depends on the circumstances. The courts sometimes give little weight to use by lay people of the word ‘partner’ since they sometimes use the term very loosely, often not intending the precise legal relationship of partnership.” 1 Alan R. Bromberg and Larry E. Ribstein, Bromberg and Ribstein Partnership § 2.05(b) at 2:53 (1997). See, e.g., Chaiken v. Employment Security Comm’n, 274 A.2d 707, 709 (Del. Super. Ct. 1971) (“mere existence of an agreement labeled ‘partnership’ agreement and the characterization of signatories as ‘partners’ does not conclusively prove the existence of a partnership”). It is true that the phrases “[appellant] will become a full partner” and “[appellant] will be a full partner” appear in the initial employment agreement between appellant and appellees; however, when construing a contract that purports to create a partnership, a court should consider the contract as a whole. Mehaffy v. Wilson, supra. The inference that appellant wants drawn from the “full partner” phrases is not reasonable when the entire initial employment agreement is considered.
We conclude that this evidence is overwhelming in that it compels the conclusion that the parties did not intend to form a partnership. While we will not recite all of this evidence, we will note the most cogent points.
In the first place, Associated Radiologists, Ltd., received Articles of Incorporation from the State in January 1973, and received Amended Articles of Incorporation from the State in September 1986. Moreover, in 1973 Associated Radiologists, Ltd., received from the Arkansas State Medical Board a Certificate of Registration as a medical corporation. In December 1975, the doctors who were practicing together as Associated Radiologists, Ltd., adopted corporate bylaws. In 1988, Associated Radiologists, Ltd., sold stock to appellees who were then practicing medicine there. On April 4, 1991, when appellant signed his second employment agreement with appellees, appellant also purchased 100 shares of stock in Associated Radiologists, Ltd. At this time, appellant signed a document entitled “Joinder Agreement of [appellant] to Stock Purchase Agreement,” and this document referred to Associated Radiologists, Ltd., as the “corporation” and referred to appellant and the appellees as “stockholders.” In addition, examination of the tax returns that appellant filed during the years he worked as a radiologist as a member of Associated Radiologists, Ltd., shows that he consistently reported the income that he received from Associated Radiologists, Ltd., as “wages” received from his “employer.” Finally, we note that examination of the two employment agreements that appellant signed with appellees compel the conclusion that the parties did not intend to enter into a partnership. Examination of the entire initial employment agreement reveals that Associated Radiologists, Ltd., is consistently referred to as “the corporation” and appellant’s relationship with it is consistently described as “employment.” Examination of the entire second employment agreement reveals that Associated Radiologists, Ltd., is described as a “professional corporation” and is consistently referred to as “the Employer” and that appellant is consistently referred to throughout the agreement as “the Employee.” More importantly, the second employment agreement contains the following provision:
All fees received or collected as a result of professional services rendered by the Employee, together with all other emoluments . . . shall be property of the Employer. Accordingly, the Employee acknowledges that his employment does not confer upon him any ownership interest in or personal claim upon any fees charged by the employer for his services, whether said fees are collected during his employment or after the termination thereof. The Employee expressly agrees that the compensation and benefits received by him or payable to him under this agreement shall satisfy and discharge in full all his claims against the Employer for the Employee’s services.
This second employment agreement also contains a provision that states: “The Employee will abide by the rules . . . and standards of the Employer now existing and which may be adopted by the Employer in the future, together with, to the extent applicable, the articles of incorporation and bylaws of the Employer . . . .” Nowhere in this second employment agreement do the words “partner” or “partnership” appear. Finally, we note that the second employment contract contains the following general provision relating to termination of appellant’s employment:
All action of the Employer’s Board of Directors as stated in this contract shall be the action of the Employer or the Employer’s Board of Directors upon a majority vote of the Employer’s Board of Directors in accordance with the corporation’s bylaws or such action being authorized by a vote of the stockholders representing a majority of the shares of the Employer’s stock outstanding. In the event of action of the Board of Directors in a decision to terminate the Employee’s employment for cause, such majority vote required shall be a majority of all of the directors except the Employee if such Employee is a member of the Employer’s Board of Directors.
Our review of all of this evidence that was before the chancery court leads us to conclude that the court did not err in granting the appellees’ motion for directed verdict on the issue of whether the parties intended to form a partnership. The chancery court correctly decided that all of the evidence, even when viewed in the light most favorable to appellant, would not have sufficient force to compel a jury to reasonably conclude that the parties intended to form a partnership.
For the reasons set forth above, we affirm the Craighead County Chancery Court’s grant of appellees’ motion for directed verdict.
Affirmed.
Neal and Crabtree, JJ., agree. | [
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Andree Layton Roaf, Judge.
This is an insurance case involving the tort of bad faith. Appellant, Ellen Richison, executrix of the estate of Stanley Richison, deceased, sued appellees, Boatmen’s Bank of Arkansas, Inc. (Boatmen’s Bank) and Consumer’s Protective Life Insurance Company (Consumer’s) for breach of contract and bad faith for denying payment of a $2500 credit life insurance policy issued to her late husband. Mrs. Richison appeals from the trial court’s grant of partial summary judgment to appellees, dismissing her bad-faith claim and her request for punitive damages. On appeal, she contends that the trial court erred in granting summary judgment because 1) there was evidence that Consumer’s engaged in the unethical practice of post-claim underwriting and arbitrarily and without guidelines denied the claim; 2) Consumer’s failed to present evidence that her husband’s alleged misrepresentation about his health was material to either the risk or to the hazard assumed; 3) there was no proof that her husband’s asthma, if disclosed, would have been the basis for denying him coverage; and 4) the practice of post-claim underwriting is prima facie evidence of bad faith. For her fifth point, Mrs. Richison argues that the trial court erred in denying her motion for reconsideration because additional evidence from Consumer’s 1993 annual report revealed disproportionately high earnings resulting from unethical claims practices. We find no merit to any of Mrs. Richison’s points, and affirm.
Stanley Richison financed the $2500 purchase of a used pickup truck on June 26, 1992, through Boatmen’s Bank. The bank, acting as agent for Consumer’s, issued Richison a credit life insurance policy insuring the amount of the debt throughout the finance period. Consumer’s had trained the finance officer at Boatmen’s Bank to complete the applications for the policies.
Although Richison was not asked details about his physical condition, the following statement appeared on the application form immediately above his signature: “I am now in good health, mentally and physically. I know of no physical impairment or disease now affecting my health.” If an applicant disclosed a medical condition or problem at this point, an additional medical check list, inquiring about specific conditions, was to be completed and submitted with the application. Because Richison signed the “good health” statement and did not disclose that he was asthmatic, he was not asked to complete the additional questionnaire.
On July 30, 1993, approximately thirteen months later, Richison died as a result of a fatal asthmatic reaction to the drug Toradol, that was prescribed by his dentist during root canal treatments. Other than for periodic refills of his prescribed medications, Richison had not sought medical treatment for his asthmatic condition for over four years. Affidavits and deposed testimony from several witnesses established that Richison was not impaired by his asthmatic condition.
After Richison’s death, Mrs. Richison made claim on the credit life insurance policy. Consumer’s conducted an investigation and discovered that Richison’s death certificate stated that the cause of his death was “hypoxia due to or as a consequence of asthma.” Consumer’s denied the claim on the ground that Richison had misrepresented his health on the insurance application. Consumer’s further stated that had Richison indicated that he suffered from asthma, they would have denied coverage. Mrs. Richison filed suit against Consumer’s and Boatmen’s Bank, alleging breach of contract and bad faith in the denial of her claim. Consumer’s moved for partial summary judgment on the claim of bad faith, asserting that Richison had failed to establish a prima facie case for the tort of bad faith. The trial court granted partial summary judgment and dismissed the bad-faith claim and request for punitive damages. Mrs. Richison appeals from an Ark. R. Civ. P. 54(b) order dismissing this claim.
Summary judgment is an extreme remedy that should be allowed only when it is clear that there is no genuine issue of material fact to be litigated. Hawkins v. Heritage Life Ins. Co., 57 Ark. App. 261, 946 S.W.2d 185 (1997). The burden of sustaining a motion for summary judgment is on the moving party. Id. On appeal, we view the evidence in the light most favorable to the nonmoving party, and decide if summary judgment is appropriate based on whether the evidentiary items by the moving party in support of the motion left a material question of fact unanswered. Id.
The elements for recovery under the tort of bad faith require the establishment of affirmative misconduct by an insurer, without a good-faith defense, which is dishonest, malicious, or oppressive in an attempt to avoid liability under a policy. Southern Farm Bureau Casualty Ins. Co. v. Allen, 326 Ark. 1023, 934 S.W.2d 527 (1996). A claim for bad faith cannot be based upon good-faith denial, offers to compromise a claim, or for other honest errors of judgment by the insurer. Id. Neither can the claim be based upon negligence or bad judgment so long as the insurer is acting in good faith. Actual malice means that state of mind under which a person’s conduct is characterized by hatred, ill will, or a spirit of revenge; it may be inferred from conduct and surrounding circumstances. Id.
Three of Mrs. Richison’s arguments on appeal relate to the alleged practice of “post-claim underwriting,” a concept that has to date not been addressed by an Arkansas appellate court. Mrs. Richison contends that Consumer’s engaged in post-claim underwriting, and that they arbitrarily and without guidelines denied her claim. She further contends that there was no evidence that Consumer’s would have denied Richison’s credit life coverage had Richison disclosed his asthmatic condition. Lastly, she argues that the practice of post-claim underwriting constitutes prima facie evidence of bad faith.
Although Mrs. Richison provides no authority for or even a definition of post-claim underwriting, the term is perhaps self-explanatory. Consumer’s has cited two Mississippi cases which discuss the practice. In Mississippi, post-claim underwriting has been defined as “an insurer’s waiting until after the insured makes a claim to determine whether the claimant is eligible for insurance according to the risk he presents.” Wesley v. Union National Life, 917 F. Supp 232 (S.D. Miss. 1995) (citing Lewis v. Equity Nat’l Life Ins. Co., 637 So.2d 183 (Miss. 1994)) Mrs. Richison argues in essence, that this is precisely what Consumer’s did. She contends that Consumer’s waited until after Richison died and claim had been made, then investigated his death and denied the claim based upon a condition for which it had no written policy providing for the exclusion of coverage and would not have denied coverage had the condition been disclosed. Mrs. Richison also contends that post-claim underwriting is considered an unethical practice in the insurance industry.
Mrs. Richison points out as evidence to support her arguments the deposition of Consumer’s part-time underwriter, Jack Hewett, in which he testified that had determined from review of Richison’s death certificate and medical records that Richison he suffered from asthma, that it led to his death, that he failed to disclose this preexisting illness on his insurance application, that had he done so, the policy would not have been issued, and that the claim should be denied on these grounds. Hewett further testified that he spent only thirty minutes reviewing the claim, that he based the denial on his personal opinion and experience without reference to the underwriting manuals he customarily used, that Consumer’s had no written policy with regard to asthma, and that he did not know of any applications for insurance that had been denied by the company as a result of asthma. Hewett also acknowledged that post-claim underwriting was like “making a decision at the time whether the policy would have been or should have been issued in the first place,” and that it is considered unethical by the insurance industry warranting disciplinary action.
Mrs. Richison also submits the affidavit of her expert, Dr. John O’Connell, a professor of insurance, who opined that asthma was not a condition which would have excluded Richison from being issued a policy of credit life insurance with Consumer’s, that Consumer’s was engaging in post-claim underwriting as a corporate policy, and that Richison’s failure to disclose that he had asthma did not constitute a misstatement with regard to his response to Consumer’s “good health” question. In response, Consumer’s denies that it engaged in post-claim underwriting and contends that by attesting to his good health on the initial application, Richison bypassed any further underwriting inquiry by Consumer’s.
Of course, the issue of whether Mrs. Richison should prevail on the breach-of-contract action is not before us. The question to be resolved is whether she has provided evidence of affirmative acts committed by Consumer’s that would constitute bad faith as defined by our appellate courts, whether the actions are labeled post-claim underwriting or not. A review of the cases addressing the issue of bad faith indicates that she has failed to meet this burden.
We conclude that the allegations that Consumer’s failed to fully investigate the cause of Richison’s death beyond a cursory review of the death certificate and medical records will not support a claim of bad faith. In Findley v. Time Ins. Co., 264 Ark. 647, 573 S.W.2d 908 (1978), the insured alleged, among other things, that the insurer failed to contact her physician or to investigate fully the diagnosis by her treating physician before denying a claim for medical insurance benefits based on false statements on the application for the policy. The supreme court stated that “had [Findley] claimed that after the investigation by [the insurer] it was determined that claim was valid and [the insurer] nevertheless refused to pay or . . . refused to make any investigation at all, and that [the] refusals were in bad faith with an intent to cause further damage to [Findley] a different question would be presented.” The court stated that Findley had not asserted any affirmative action on the part of the insurer that would constitute bad faith or fraud.
We also conclude our case law does not support a finding that, with regard to the Richison claim, Consumer’s actions constituted bad faith. In Employer’s Equitable Life Ins. Co. v. Williams, 282 Ark. 29, 665 S.W.2d 873 (1984), the court affirmed a jury verdict and an award of punitive damages for the tort of bad faith where the insurer altered insurance records so that it appeared that a pohcy on a bad risk had lapsed when it had not. The insurer further deceived the insured into signing a statement acknowledging that his premium payment was not timely received, under the guise of allowing the company to continue his coverage, and then canceled the coverage. In Southern Farm Bureau Cas. Ins. v. Allen, supra, the court again affirmed a jury verdict for punitive damages based on bad faith, finding that the jury could have concluded that, in two conversations with the insured, the company bed about coverage available under the insured’s pohcy and actively concealed the coverage from him.
Here, Mrs. Richison has failed to submit evidence of or even allege any such affirmative acts of misconduct as were present in these cases. Although she takes issue with Consumer’s reliance upon its application in denying her claim, and contends that its adjuster was acting in bad faith in basing the denial on an undisclosed asthmatic condition, the evidence she presented does not support her contention. Hewett testified that he based the denial on his expertise in the field of insurance underwriting and further stated that, while working for Consumer’s, about ninety percent of his time was spent reviewing applications for insurance and only ten percent of his time was spent reviewing medical records after a claim was made. Moreover, the opinion of Mrs. Richison’s expert that Consumer’s was engaged in the “practice” of post-claim underwriting is conclusory at best and was based only upon review of the Richison claim.
Mrs. Richison also argues that it was impossible for Consumer’s to have a good-faith defense for its denial because it presented no evidence that Richison’s alleged misrepresentation was material either to the risk or to the hazard assumed. She correctly contends that, to be material, the misrepresentation must be causally related to the loss for recovery to be barred under Ark. Code Ann. § 23-79-107 (Repl. 1992) in dealing with misrepresentations, omissions, and incorrect statements in life and disability insurance applications. The short answer to this argument is that, while the questions of whether Richison’s undisclosed asthma was material to the acceptance of the risk by Consumer’s and whether there was a causal relationship between the misrepresentation and the hazard resulting in the loss are disputed issues to be addressed in the breach-o£-contract portion of her case, there is no dispute that Richison had an asthmatic condition that he failed to disclose, and that his condition contributed at least in part to his death. Consumer’s actions in disputing this claim cannot be said to rise to the level of “affirmative acts of misconduct” as set forth in our case law. The only authorities cited by Richison in this argument, a concurring opinion in Southern Farm Bureau Life Ins. Co. v. Cowger, 295 Ark. 250, 748 S.W.2d 332 (1988), and National Old Line Ins. Co. v. People, 256 Ark. 137, 506 S.W.2d 128 (1974), overruled by Southern Farm Bureau Life Ins. Co. v. Cowger, supra, are cases in which the insured, like Richison, failed to disclose preexisting conditions in response to “good health” statements in the insurance application. However, both are simply breach-of-contract cases in which the only issue was whether the insured would recover on the policy; they contain no discussion of the tort of bad faith and are clearly inapplicable to the issue before us. Failure to cite convincing legal authority for a point on appeal will result in affirmance of that point. Mills v. Crone, 63 Ark. App. 67, 973 S.W.2d 823 (1998); Morse v. Morse, 60 Ark. App. 215, 916 S.W.2d 111 (1998).
Likewise, the argument that Consumer’s failed to offer any credible evidence that it would have in good faith denied coverage to Richison if his condition had been disclosed cannot be dispositive of the issue of bad faith. Mrs. Richison points to the lack of a clear exclusionary policy or underwriting guidelines, the failure to include asthma in its medical questionnaire, and her assertion that asthma is no longer considered a basis for denial of coverage by the life insurance industry. She relies on Old Republic Ins. Co. v. Alexander, 245 Ark. 1029, 436 S.W.2d 829 (1969), another breach-of-contract case, involving denial of a claim based on misrepresentation in the application by the insured. In Old Republic, supra, the court upheld the chancellor’s finding of coverage, and stated that “it is significant that [the company] produced no record of its own underwriting standards nor did it attempt to show general standards in the underwriting profession or insurance trade by disinterested witnesses. It relied solely on the self-serving declaration of its underwriter.” Again, Richison’s reliance on this authority is clearly misplaced, because it pertains not to a claim for the tort of bad faith, but rather to a claim only for insurance benefits.
Finally, Mrs. Richison argues that the trial court erred in refusing to grant her motion for reconsideration in view of the additional evidence submitted by affidavit that accompanied her motion. In this affidavit, Richison provided expert opinion that Consumer’s 1993 annual report reflected a disproportionate ratio of earnings to premiums and commissions collected, that Consumer’s was engaged in the wide-spread practice of post-claim underwriting, and that “one can only assume” that the practice of post-claim underwriting has a substantial impact on revenues. The affidavit further stated, incorrectly, that Consumer’s admitted that its standard operating procedure was for claims to be underwritten after they had been made.
First, this affidavit is duplicative of the opinion provided by Dr. O’Connell except with respect to the financial information provided. Moreover, in her motion, Richison merely asserts that she had obtained “new evidence previously unavailable in the form of an executive review and opinion concerning the defendant’s year-end financial statement of 1993.” She does not even contend on appeal that the new evidence was unavailable, cites no authority, and does not state why or how the trial court erred in denying the motion. Arkansas Rule of Civil Procedure 59(a)(7) provides that a new trial may be granted where there is newly discovered evidence material for the party applying, which he could not with reasonable diligence, have discovered and produced at the trial. See also Roetzel v. Brown, 321 Ark. 187, 900 S.W.2d 185 (1995). Richison died in July 1993, and the complaint was filed on July 28, 1995. Consumer’s motion for partial summary judgment was filed on October 11, 1996. The trial court granted the motion by order entered January 24, 1997. Under these circumstances, we cannot say that the trial court abused its discretion in denying the motion. Roetzel, supra.
Affirmed.
Jennings and Bird, JJ., agree. | [
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Wendell L. Griffen, Judge.
This is the second appeal in this workers’ compensation case. In a prior opinion, we reversed the order of the Arkansas Workers’ Compensation Commission (the Commission) awarding additional medical benefits to appellant Walter Kent. The Commission awarded benefits because appellant obtained treatment for his left shoulder within one year of an order of dismissal for failure to prosecute, but it faded to make any finding regarding when appellant received the last payment of compensation prior to the dismissal order. We reversed and remanded for further consistent proceedings to include findings regarding the date of the last payment of compensation within the relevant time frame. See Single Source Transp., Inc. v. Kent, 99 Ark. App. 153, 258 S.W.3d 416 (2007) (Kent I).
On remand, the Commission determined that the relevant payment occurred on May 24, 2001. It also determined that appellant did not thereafter make an additional claim for benefits until February 10, 2005; thus, it denied additional medical benefits because the one-year statute of limitations under Ark. Code Ann. § 11-9-702 (b) (Supp. 2007) had expired.
Appellant now argues that the Commission exceeded our mandate in reversing its previous finding that he tolled the statute of limitations by seeking additional treatment. We disagree that the Commission exceeded our mandate. Nonetheless, we hold that the Commission erroneously determined that the last date of payment of compensation prior to the dismissal order occurred on May 24, 2001, which was the date appellant received a check from his employer. In fact, the last date of compensation prior to that order occurred on September 12, 2001, when appellant received medical treatment for his work-related shoulder injury. Thereafter, the statute of limitations did not expire, as appellant received treatment at least once every twelve months for his compensable injuries through February 10, 2005. He filed another claim for benefits in June 2005, clearly within one year of the last date of treatment. Accordingly, we also hold that the Commission erred in determining that appellant failed to file a claim for additional benefits within one year of the last date of compensation, and we remand for an award of benefits consistent with this opinion.
The parties stipulated that appellant sustained compensable injuries to his neck and left shoulder on August 22,1995, when the vehicle he was driving for appellee struck a bull that was standing in the road. Appellant began treatment with Dr. John Gregory, an orthopedist, in 1995. In 1996, appellant underwent an anterior cervical decompression at the C5-6 and C6-7 levels to fuse his cervical disks. Although appellant was ultimately returned to work with no restrictions, he received treatment from Dr. Gregory at least once each year through 2005.
Appellant began receiving treatment from Dr. Freddie Contreras in 1998 for his continued neck symptoms. He concedes that he received treatment from Dr. Contreras from 1998 to November 14, 2000, and that he did not thereafter receive treatment from Dr. Contreras until February 10, 2005, ultimately undergoing a diskectomy in April 2005.
On March 12, 2001, appellant filed a claim for additional compensation based on the original injury to his shoulder and neck, requesting additional medical benefits. Appellee subsequently filed a request to dismiss appellant’s claim for failure to prosecute, which the Commission granted on December 14, 2001. This order of dismissal rendered appellant’s claim a nullity, to be treated as if it had never been filed. See Dillard v. Benton County Sheriffs Office, 87 Ark. App. 379, 192 S.W.3d 287 (2004).
After the December 2001 order of dismissal was filed, appellant resumed treatment with Dr. Gregory on March 13, 2002. Although appellant sought treatment from either Dr. Gregory or Dr. Contreras at least once every twelve months thereafter, he did not again file a claim for benefits until June 2005, which appellee controverted.
In Kent I, the Commission determined that appellant’s claim was not barred because he kept his claim open by continuing to seek medical treatment related to his compensable injuries. It gave “significant weight” to Dr. Contreras’s opinion that the first surgery changed appellant’s spine and caused the need for the second surgery. Thus, it determined that appellant was entitled to the surgery performed by Dr. Contreras in April 2005. Finally, the Commission awarded temporary-total disability benefits from April 18, 2005, through June 7, 2005, when appellant was released to return to work.
We reversed and remanded for further proceedings in Kent I, as follows:
This appeal raises several issues concerning the 2005 claim, including the sufficiency of the evidence to support the award and whether medical treatment obtained by appellee after 2002 constituted "payment of compensation”for statute-of-limitations purposes. We do not address those issues at this time because the Commission’s method of computing the running of the statute of limitations is fundamentally flawed.
The crucial period in determining the timeliness of appellee’s claim is that falling between the filing of a claim for additional compensation on March 12, 2001, and treatment obtained by appellant on March 13, 2002. Between theses dates, an order dismissing appellant’s March 12,2001, claim for failure to prosecute was entered on December 13, 2001. The question on appeal is whether the Commission erred in holding that the claim was timely because the claimant “obtained treatment for his left shoulder [on March 13, 2002] within one year of the December 2001 order of dismissal.” We hold that it did.
As quoted above, subsection (b) bars claims for additional benefits that are not filed within two years from the date of the injury or one year from the last payment of compensation. Here, however, the Commission made no finding whatsoever as to the last payment of compensation. Instead, the Commission erroneously determined timeliness based on the date of an order of dismissal for failure to prosecute that... had the effect of transforming the claim filed on March 12,2001, into a nullity that should be considered as never having been filed.
We reverse and remand for further consistent proceedings before the Commission, to include findings regarding the time of the last payment of compensation prior to March 13, 2002.
99 Ark. App. at 154-56, 258 S.W.3d. at 416-18 (emphasis added).
On remand, the Commission determined that the last payment of compensation prior to March 13, 2002, occurred on May 24, 2001, when appellee sent a check to appellant. Because more than one year passed before appellant next sought further treatment for his neck on February 10, 2005, the Commission determined that appellant’s claim was time-barred. This appeal followed.
I. Scope of Mandate
We first reject appellant’s argument that we remanded only for the Commission to determine when the last payment of compensation occurred prior to March 13, 2002. It is true that the Commission has no power to change or extend the mandate of the appellate court. See White v. Gregg Agrie. Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). However, the Commission in this case did not change or extend our mandate.
We reversed and remanded “for further consistent proceedings before the Commission, to include findings regarding the time of the last payment of compensation prior to March 13, 2002.” (Emphasis added.) Thus, we did not limit the Commission to making only such a finding. In fact, the implicit purpose for remanding to the Commission to determine the date of the last payment of compensation was so that the Commission could also determine the legal effect of the last payment — whether the statute of limitations had begun to run and when or if it was tolled. Thus, the Commission did not exceed its mandate on remand.
II. Last Date of Payment of Compensation
Nonetheless, we reverse because the Commission erred in determining that the last date of compensation prior to March 13, 2002, occurred on May 24, 2001. The applicable statute of limitations is set out in Ark. Code Ann. § ll-9-702(b) as follows:
Time for Filing Additional Compensation. (1) In cases where any compensation, including disability or medical, has been paid on account of injury, a claim for additional compensation shall he barred unless filed with the commission within one (1) year from the date of the last payment of compensation or two (2) years from the date of the injury, whichever is greater.
(Emphasis added.)
Thus, the filing of a claim for additional benefits tolls the running of the statute of limitations. See Spencer v. Stone Container Corp., 72 Ark. App. 450, 38 S.W.3d 909 (2001). It is a claimant’s burden to prove that he acted within the time allowed for filing a claim for additional compensation. See Superior Fed. Sav. & Loan Ass’n v. Shelby, 265 Ark. 599, 580 S.W.2d 201 (1979). Once a claim is dismissed for lack of prosecution, the claim is considered to have never been filed, and unless a new claim is filed within the statutory period of time allowed by § 11-9-702(b), the statute of limitations will bar any subsequent claims. See Dillard, supra.
In order to be entitled to additional treatment, appellant must have filed his claim for additional compensation within one year from the date of the last payment of compensation. Ark. Code Ann. § ll-9-702(b). For purposes of§ ll-9-702(b), the provision of medical services constitutes payment of compensation. See Plante v. Tyson Foods, Inc., 319 Ark. 126, 890 S.W.2d 253 (1994). Moreover, it is the furnishing of medical services, not the payment thereof, which constitutes the payment of compensation. See Heflin v. Pepsi Cola Bottling Co., 244 Ark. 195, 424 S.W.2d 365 (1968); Pennington v. Gene Cosby Floor & Carpet, 51 Ark. App. 128, 911 S.W.2d 600 (1995); Cheshire v. Foam Molding Co., 37 Ark. App. 78, 822 S.W.2d 412 (1992).
Here, we ordered the Commission to determine whether appellant received a payment of compensation within the one-year period preceding March 13, 2002. It determined that the last payment of compensation occurred on May 24, 2001. Hence, using the May 24, 2001 payment date as the beginning date for the statute of limitations, the Commission determined that the limitations period expired no later than May 24, 2002. Because more than one year had passed between May 24, 2002, and February 10, 2005, when appellant resumed medical treatment for his neck, the Commission determined that the statute of limitations had expired, and denied appellant additional benefits.
We hold that the Commission erred in determining that the last payment of compensation prior to March 13, 2002, occurred on May 24, 2001 — that was the last date prior to March 13, 2002, that the employer paid for medical treatment. However, the last date of compensation was the last date that appellant received medical treatment prior to March 13, 2002, which was September 12, 2001. See Heflin, supra, Pennington, supra, and Cheshire, supra. After March 13, 2002, appellant received medical treatment for his neck and shoulder injuries at least once every twelve months until he filed his next claim in June 2005, clearly within one year from the last date of treatment of February 10, 2005 (when he returned to Dr. Contreras).
Finally, in Kent I, we did not address the compensability of appellant’s claim. Now, based on the medical evidence, we conclude that reasonable persons could have reached the Commission’s original findings 1) that appellant’s continued treatment was necessitated by his work-related injuries, 2) that the first compensable surgery changed appellant’s spine and caused the need for the second surgery, and 3) that appellant is entitled to receive temporary-total disability benefits from April 18, 2005, through June 7, 2005. See Winslow v. D & B Mech. Contractors, 69 Ark. App. 285, 13 S.W.3d 180 (2000). Because we so conclude, and because appellant filed a claim for additional benefits within one year of his last date of compensation, he is entitled to receive additional workers’ compensation benefits.
Reversed and remanded for an award of benefits consistent with this opinion.
Glover and Heffley, JJ., agree. | [
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John Mauzy Pittman, Judge.
Danny Lee Ward appeals from his convictions of theft by receiving a firearm and possession of a firearm by a felon, for which he was sentenced as a habitual offender to fifteen and ten years, respectively, in the Arkansas Department of Correction. He contends that the trial court erred in denying his motions for directed verdicts of acquit tal because neither of the items in question met the statutory definition of a “firearm.” We affirm.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Killian v. State, 60 Ark. App. 127, 959 S.W.2d 432 (1998). When the sufficiency of the evidence is challenged on appeal from a criminal conviction, we view the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the State and will affirm if the finding of guilt is supported by substantial evidence. Wilson v. State, 56 Ark. App. 47, 939 S.W.2d 313 (1997). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resort to speculation or conjecture. Argo v. State, 53 Ark. App. 103, 920 S.W.2d 18 (1996). For the purposes of both statutes that appellant was convicted of violating, our criminal code provides the following definition:
“Firearm” means any device designed, made, or adapted to expel a projectile by the action of an explosive or any device readily convertible to that use, including such a device that is not loaded or lacks a clip or other component to render it immediately operable, and components that can readily be assembled into such a device.
Ark. Code Ann. § 5-1-102(6) (Repl. 1997).
At trial, Mr. Ralph King, a member of Veterans of Foreign Wars, testified that two M-l rifles used by the VFW for ceremonial purposes were stolen from his truck on February 25, 1997. Mr. Bill Beck testified that he purchased two rifles from appellant later the same day. On February 26, Mr. Beck met with Mr. King and Detective Tim Smith of the Fiot Springs Police Department. Mr. King identified the two rifles purchased by Mr. Beck as the ones that had been stolen from his truck. According to Mr. King, the rifles had been modified to fire only blanks. Fie testified that, to make the weapons capable of firing five ammunition again, all one would have to do is unscrew the blank adapter and screw on a gas cylinder lock. Fie testified that the process would require no special tools, just a screwdriver at most, and that the blank adapter on one of the rifles was only “finger tight.”
Appellant contends that the trial court should have granted his motions for directed verdicts. In particular, he argues that the evidence is insufficient to support a finding that either of the weapons was a “firearm” because they could not then fire five ammunition and would require “substantial modification” to restore that capability. We cannot agree. Indeed, in fight of Mr. King’s testimony regarding the ease and quickness with which the weapons could be reconverted to five-fire capability, we have no hesitancy in finding substantial evidence to support the finding that the weapons were firearms within the meaning of the statute.
Affirmed.
Arey and Jennings, JJ., agree. | [
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Robert J. Gladwin, Judge.
Appellant George W. Hayden appeals his October 1, 2007 conviction by a Drew County Circuit Court of driving while intoxicated (DWI). On appeal, he contends the trial court erred in denying his motion for directed verdict. The sole issue on appeal is whether there was substantial evidence before the trial court to support appellant’s conviction. We hold that there was and affirm.
Facts
Appellant was stopped by Arkansas State Trooper Clayton Moss around 1:00 a.m. on May 10, 2006, because he drove over the center line two times. Trooper Moss also noted appellant had a Coca-Cola can on his bumper. After stopping appellant, Moss detected the smell of alcohol and noticed appellant’s eyes were red and watering. Appellant admitted to having had five or six beers that night, and told the officer that he had his last sip twenty minutes before being stopped. He also told Moss he had a prescription for hydrocodone, which appellant took every four hours for back pain. Appellant last took hydrocodone at 11:00 p.m., two hours before the traffic stop.
Trooper Moss ran a portable-breath test on appellant, then performed a horizontal-gaze-nystagmus test, where appellant exhibited lack of smooth pursuit in both eyes and distinct nystagmus at maximum deviation in both eyes. Moss then gave a second portable-breath test and decided to charge appellant with DWI.
At the station, Moss performed one breath test with no result, then two more breath tests, resulting in a concentration of ninety-nine-thousandths (0.099) and ninety-six-thousandths (0.096) respectively. Moss testified that appellant was given the option of having a blood test performed at the hospital. Moss called the hospital to find out about the procedure and the cost. The hospital would not accept Medicaid, appellant’s only form of insurance, and appellant did not have any money to pay for the test.
At a bench trial, appellant moved for a directed verdict at the conclusion of the State’s case, arguing the State did not meet its burden of proof regarding appellant’s blood-alcohol content at the time he was driving. This motion was renewed at the end of all evidence, and both motions were denied. Appellant was found guilty of DWI, assessed fines and costs, and ordered to attend alcohol class. A timely notice of appeal was filed, and this appeal followed.
Standard of review
A motion for directed verdict is a challenge to the sufficiency of the evidence. Marshall v. State, 94 Ark. App. 34, 223 S.W.3d 74 (2006). Evidence, direct or circumstantial, is sufficient if it is substantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Id. This court will only consider evidence that supports the verdict. Id.
Circumstantial evidence can support a finding of guilt in a criminal case if it excludes every other reasonable hypothesis consistent with innocence. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). Whether circumstantial evidence excludes every hypothesis consistent with innocence is for the factfinder to decide. Id. Upon review, an appellate court must determine whether the factfinder resorted to speculation and conjecture in reaching its decision. Id.
Argument
Appellant argues the trial court erred in denying his motion for directed verdict because the State failed to prove that the alcohol concentration in his breath was eight-hundredths (0.08) or more at the time he was driving. Arkansas Code Annotated section 5-65-103 (Repl. 2005) states as follows:
(a) It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.
(b) It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time the alcohol concentration in the person’s breath or blood was eight-hundredths (0.08) or more based upon the definition of breath, blood, and urine concentration in § 5-65-204.
Appellant contends that the State is obligated to prove each element of the offense charged. He claims that under the evidence presented, it is not known what his breath or blood-alcohol concentration was at the time of the alleged offense. He argues that the State’s whole case rested on the Trooper’s probable-cause determination and two breath-test results taken at 2:01 a.m. and 2:13 a.m. The results were ninety-nine-thousandths (0.099) and ninety-six-thousandths (0.096) respectively. He claims this means that his alcohol level had peaked from a lower concentration an hour before the test was taken. He maintains that to conclude that his alcohol concentration an hour earlier was eight-hundredths (0.08) or above would depend upon suspicion or conjecture, and therefore, the trial court’s decision was not based upon substantial evidence.
The State argues appellant’s claim that his alcohol level would have still been rising at the time of the offense and could have been peaking at the time of the tests is unsupported by any evidence about the changes in alcohol levels that occur after alcohol is consumed. We agree. Pursuant to Ark. Code Ann. § 5-65-206(a)(l) (Repl. 2005), a presumption that the defendant was not under the influence is established if, within four hours of the alleged offense, an alcohol concentration of four-hundredths (0.04) or less is found in the defendant’s breath. No presumption is made if the alcohol concentration found within four hours of the alleged offense is between four-hundredths (0.04) and eight-hundredths (0.08). Ark. Code Ann. § 5-65-206(a)(2).
The State further argues that, under Porter v. State, 356 Ark. 17, 145 S.W.3d 376 (2004), the appellate court takes notice of the unquestioned laws of nature, mathematics, and physics; and consistent with this principle, appellate courts have repeatedly observed that blood-alcohol content decreases with the passage of time. However, in Porter, our supreme court pointed out that the DWI statute provides two different ways to prove the offense of DWI: (1) proving a blood-alcohol content greater than the limit provided in subsection (b), or (2) proving intoxication under subsection (a). The Porter court affirmed the defendant’s conviction under subsection (a) through the substantial evidence of his intoxication, which included a one-vehicle accident and a strong odor of intoxicants on or about the defendant’s person at the time. The court further stated as follows:
Proof of the motorist’s blood-alcohol content is not necessary for a conviction of DWI on the ground of intoxication. Stephens, 320 Ark. 426, 898 S.W.2d 435; Wilson v. State, 285 Ark. 257, 685 S.W.2d811 (1985). However, such proof is admissible as evidence tending to prove intoxication. Id.; Yacono, 285 Ark. 130, 685 S.W.2d 500. In deciding whether there is substantial evidence of intoxication, this court takes notice of the unquestioned laws of nature, mathematics, and physics. Stephens, 320 Ark. 426, 898 S.W.2d 435; Yacono, 285 Ark. 130, 685 S.W.2d 500. Consistent with this principle, this court has repeatedly observed that blood-alcohol content decreases with the passage of time. Stephens, 320 Ark. 426, 898 S.W.2d 435 (citing State v.Johnson, 317 Ark. 226,876 S.W.2d 577 (1994); David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985); Elam v. State, 286 Ark. 174, 690 S.W.2d 352 (1985)).
Id. at 22, 145 S.W.3d at 379.
We do not rely on Porter for the proposition that the unquestioned laws of nature compel a conclusion that appellant’s blood-alcohol content was decreasing or increasing at the time of the breathalyzer tests. However, under Ark. Code Ann. § 5-65-206(a)(1), the breathalyzer test done well within two hours of the alleged offense is sufficient to establish appellant’s alcohol concen tration in his breath at the time of the offense. Moreover, like Porter, the breathalyzer-test results are only one factor of many that the trial court considered when he determined substantial evidence supported appellant’s conviction for DWI.
Appellant did not pass the field-sobriety tests, he admitted having ingested hydrocodone two hours before being stopped, and he admitted to having drunk alcohol twenty minutes prior to the stop. Further, appellant’s breath smelled of alcohol, and he crossed the center line twice. Finally, within two hours of the traffic stop, appellant’s breath-test results were more than eight-hundredths (0.08). These facts alone are sufficient to support a conviction of driving while intoxicated pursuant to Ark. Code Ann. § 5-65-103(a). Accordingly, appellant’s conviction is affirmed based upon substantial evidence.
Affirmed.
Pittman, C.J., and Bird, J., agree. | [
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John B. Robbins, Chief Judge.
Appellee David K. Hafer brought a workers’ compensation claim against appellant Mountain Home Manufacturing, alleging that he sustained com-pensable pulmonary injuries when his left lung collapsed on April 16, 1996, and again on May 13, 1996. The Workers’ Compensation Commission found his pulmonary condition to be compen-sable and awarded related medical benefits and temporary total disability benefits. Mountain Home Manufacturing now appeals, raising two arguments for reversal.
First, it contends that the Commission erred in its construction and application of Ark. Code Ann. § 11-9-114 (Repl. 1996), which provides:
(a) A cardiovascular, coronary, pulmonary, respiratory, or cerebrovascular accident or myocardial infarction causing injury, illness, or death is a compensable injury only if, in relation to other factors contributing to the physical harm, an accident is the major cause of the physical harm.
(b)(1) An injury or disease included in subsection (a) of this section shall not be deemed to be a compensable injury unless it is shown that the exertion of the work necessary to precipitate the disability or death was extraordinary and unusual in comparison to the employee’s usual work in the course of the employee’s regular employment or, alternately, that some unusual and unpredicted incident occurred which is found to have been the major cause of the physical harm.
(2) Stress, physical or mental, shall not be considered in determining whether the employee or claimant has met his burden of proof.
Specifically, the appellant argues that the Commission erred in finding that circumstances elevated Mr. Hafer’s normal work activities to the level of extraordinary and unusual exertion on April 16, 1996. The appellant’s remaining argument is that the decision of the Commission is not supported by substantial evidence. We find no error and affirm.
When reviewing decisions from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the Commission’s findings and affirm if supported by substantial evidence. Welch’s Laundry & Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283 (1992). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). A decision by the Workers’ Compensation Commission should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983).
At the hearing before the Commission, Mr. Hafer testified on his own behalf. He stated that he was employed with Mountain Home Manufacturing as a truck loader. On April 16, 1996, he was loading steel I-beams that were ten to fifteen feet in length and weighed 370 pounds. One of his co-workers was lifting the I-beams with a forklift, and Mr. Hafer was seeing to it that the I-beams were balanced so that they would not fall off the forklift as they were being loaded. Mr. Hafer testified that “I was trying to scoot the beams over to get them balanced” and “when I lifted up, I felt something.” At first he thought he had hurt his back, but soon realized that this was not the problem when he became short of breath and felt tired. He discontinued working, and on the following day he visited his family physician, Dr. Paul Wilbur.
Dr. Wilbur diagnosed a left pneumothorax and referred Mr. Hafer to Dr. William Ford. Dr. Ford admitted Mr. Hafer into the hospital, where he stayed for two days. While there, Mr. Hafer was treated with oxygen and the placement of a chest tube. After being released, he rested for two weeks and returned to work.
Mr. Hafer testified that, on May 13, 1996, he suffered another injury at work. On that day, he was assisting in lifting some long scraps of metal when he suffered a recurrence. He went to the emergency room, and was treated by Dr. Ford on the following day. Mr. Hafer underwent a surgical procedure and remained hospitalized for eight days. Thereafter, he took about a month off work. Then, upon realizing that he wasn’t physically able to return to work for Mountain Home Manufacturing, he began working as a manager for a fast-food restaurant.
On cross examination, Mr. Hafer was asked about the level of exertion that he encountered on April 16, 1996, when he first suffered an injury. Mr. Hafer testified:
The exertion I did on April 16 wasn’t necessarily unusual. I had exerted myself like that many times before, and there was nothing out of the ordinary on this day. The exertion for the I-beams on April 16 was more than for the scrap pieces on May 13.
On redirect examination, Mr. Hafer testified:
The unusual fact about this day was that we were in a rush to get the truck out. If I recall correcdy, it was supposed to leave that afternoon and it wasn’t going to leave. We were rushed to get it out. That is why I had to help. Normally I would be by myself on a truck. Also, the way it was stacked was unusual.
Mr. Hafer also indicated that, for the type of lifting that he was performing that day, there was normally more help and more equipment.
In the Commission’s opinion, it acknowledged Mr. Hafer’s testimony in which he denied doing anything out of the ordinary on the day of the initial injury. However, it nonetheless found that he satisfied the requirements of Ark. Code Ann. § 11-9-114 (Repl. 1996), and that he established entitlement to compensation. The Commission reasoned:
Claimant’s foregoing testimony notwithstanding, a careful review of his earlier comments leads us to the conclusion that he was engaged in “extraordinary” exertion when his first pneumo-thorax occurred. For instance, claimant testified that another forklift would have normally been used to assist with the task now at issue. However, none were available and, at the same time, a “rush” was on the job “because the truck needed to leave.” Claimant thus found himself trying to “scoot” 370 pound I-beams into proper position on a forklift with nothing more than his own physical effort. Furthermore, while claimant acknowledged that he had been involved with moving heavier items, he also stated that “we always had more help and more equipment for that kind of thing.” So far as claimant could recall, the I-beams were the heaviest type of item that two people had “tried to do.” We are persuaded that these circumstances elevated claimant’s otherwise normal work activity to the level of “extraordinary and unusual” exertion on April 16, 1996, which in turn precipitated claimant’s resulting pneumothorax.
The appellant’s first point on appeal is that the Commission erred in its interpretation and application of Ark. Code Ann. § 11-9-114(b)(1) (Repl. 1996). It asserts that the Commission erroneously concluded that, because the circumstances on April 16, 1996, were unusual, the pulmonary disorder was compensable. The appellant submits that the correct test is whether the exertion, not the circumstances, was extraordinary and unusual in comparison to Mr. Hafer’s normal work activities, and further submits that the exertion on the day at issue was not unusual and thus did not give rise to a compensable pulmonary injury.
We disagree with the appellant’s first contention. It is apparent from its opinion that the Commission did not base its conclusion on unusual circumstances alone. Instead, it stated, “We are persuaded that these circumstances elevated claimant’s otherwise normal work activity to the level of ‘extraordinary and unusual’ exertion on April 16, 1996[.]” (Emphasis ours.) Therefore, it correctly construed and applied the applicable statute.
The appellant’s remaining argument is that the Commission’s decision is not supported by substantial evidence. It contends that no substantial evidence supports the conclusion that Mr. Hafer’s exertion on April 16, 1996, was extraordinary or unusual, particularly in fight of his own testimony to the contrary. The appellant also contends that the Commission erred in finding a causal connection between Mr. Hafer’s work and his injury. For this proposition, the appellant cites the following excerpt from the Merck Manual of Diagnosis and Therapy:
Spontaneous pneumothorax: Air enters the pleural space without antecedent trauma. The process is known as simple spontaneous pneumothorax when it occurs in a previously healthy person with only localized pulmonary disease. . . . Most spontaneous pneumothoraces occur without associated exertion.
The appellant argues that, because most spontaneous pneumo-thoraces occur without exertion, a fair-minded person could not conclude that the exertion involved in this case was causally connected with Mr. Hafer’s pneumothorax.
We find that there was substantial evidence to support the Commission’s decision. While Mr. Hafer testified that his job was usually strenuous and often involved heavy lifting, he also enumerated factors that demonstrated unusual and extraordinary exertion on the day of employment at issue. He stated that he was in a hurry due to time constraints, that more equipment and help was normally implemented to lift the I-beams, and that the beams were the heaviest items that two people tried to lift. As for the appellant’s argument that there was lack of evidence as to causation, we note the following opinion expressed in a letter written by Dr. Ford:
Mr. Hafer was seen in my office today. Now that he is four weeks from his recurrent spontaneous pneumothorax, I was able to visit with him and answer his questions regarding the reason for these two spontaneous lung collapses.
David revealed to me that on both occasions, these incidents happened while he was working. During the first incident David was lifting and straining to pick up some heavy material. The type of work that David does is a large contributor to these pneumothoraxes. Since both of these episodes happened while he was working, I feel very strongly that this condition is indeed work related.
The Commission was entitled to believe the opinion of Mr. Hafer’s treating physician, and it amounted to substantial evidence that Mr. Hafer’s injuries were caused by his work activities.
Affirmed.
Pittman and Crabtree, JJ., agree. | [
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John F. Stroud, Jr., Judge.
Appellant was tried by a jury and convicted of two counts of rape involving victims younger than fourteen years of age. On December 12, 1997, the trial court sentenced appellant to twenty years’ imprisonment on each count and ordered that the sentences be served concurrently. Theresa Nazario, appellant’s court-appointed attorney, filed notice of appeal and ordered the transcript of the trial proceedings. A two-volume transcript, consisting of almost a thousand pages and costing $2,748.60, was provided at the State’s expense because appellant was indigent. On September 28, 1998, Ms. Nazario tendered her motion to withdraw as counsel of record, stating that appellant “has hired private counsel to pursue his appeal. Attorney Karen Pope Greenaway has obtained transcripts as evidenced by the attached receipt in order to perfect the appeal.” (Emphasis added.) The motion was filed on October 16, 1998, on which date the clerk’s office confirmed that it had been served on appellant. On October 13, 1998, Ms. Greenaway had filed her entry of appearance in this case.
When the motions to withdraw and to enter an appearance were originally filed, respectively, by the appellant’s public defender and his retained counsel, this court issued a per curiam opinion. In it, we remanded the case to the trial court with instructions that it conduct proceedings and render findings of fact regarding the source of funds used to hire appellant’s retained counsel, the date that the funds were obtained and counsel was retained, and whether a demand was made on behalf of the State for reimbursement of the cost of the trial record. See Brewer v. State, 64 Ark. App. 372, 984 S.W.2d 65 (1998).
On remand, the trial court found that the appellant was still indigent. The trial court explained that it could not consider the real property owned by the appellant and his wife because appellant had conveyed the real property to his wife when he was unable to make the payments on the property; that appellant had no income and no money in savings; that he was incarcerated in the state penitentiary; that the cost of the transcript was substantial, as was the cost to retain counsel; and that his wife (by then his ex-wife) and siblings had paid the cost of retaining private counsel for him.
In response to the per curiam opinion that remanded this matter to the trial court, Judges Pittman, Neal, Roaf, and I concurred with Judge John Jennings’s dissent to that per curiam. While we all agreed that any abuses in the process of obtaining transcripts by indigent defendants should be cured, the basis for the dissent was that this matter was best left to the State, through the attorney general’s office, to represent the people and to ask for relief if such abuse was occurring. We reiterate that position here, now as the majority position, because we believe that in most instances the attorney general’s office will be better suited than this court to supervise, investigate, and cure any abuses by indigent defendants in obtaining transcripts. In stating this preference, however, we do not in any way relinquish our authority to remand such matters to the trial court in appropriate circumstances. If all cases were to be remanded to the trial court to determine whether an appellant is still indigent after being repre sented by appointed counsel at trial and receiving a transcript at State expense, it should be only by rule that would apply to criminal cases in the supreme court and in the court of appeals. Rule-making authority lies with our supreme court, not the court of appeals. See Jennings v. State, 276 Ark. 217, 633 S.W.2d 373 (1982).
Moreover, in any future instances in which we might decide to remand such a matter to the trial court, we will expect the trial court to follow the standards enunciated in Hill v. State, 305 Ark. 193, 805 S.W.2d 651 (1991), and Hill v. State, 304 Ark. 348, 802 S.W.2d 144 (1991):
As we said when we remanded this matter, the burden of establishing indigency is on the defendant claiming indigent status. In considering whether an appellant is indigent, which is a mixed question of fact and law, some of the factors to be considered are the following: (1) income from employment and governmental programs such as social security and unemployment benefits; (2) money on deposit; (3) ownership of real and personal property: (4) total indebtedness and expense; (5) the number of persons dependent on the appellant for support; (6) the cost of the transcript on appeal; and (7) the likely fee of retained counsel for the appeal. Hill, 304 Ark. 348, 802 S.W.2d 144. Able-bodiedness and the level of education of the appellant are also given some consideration as is whether the appellant himself paid the cost of the appeal bond or has control or complete discretionary use of funds raised by others for his defense.
305 Ark. 193, 194, 805 S.W.2d 651, 652-53.
The ability of bystanders such as friends and family members to post bond or assist with expenses is not a factor in determining the appellant’s indigency since indigency of the appellant does not depend on the financial position of his family and friends. Bystanders have no obligation to the state. An exception could be made, however, where the appellant has control or complete discretionary use of funds raised by others.
304 Ark. 348, 351, 802 S.W.2d 144, 145-46 (citations omitted).
Here, the trial court found that the appellant was still indigent and that the funds for private counsel were provided by the appellant’s ex-wife and siblings. In accordance with Hill, 304 Ark. 348, 802 S.W.2d 144, the ex-wife and siblings had no obligation to the State to pay the cost of the transcript. Consequently, we accept the trial court’s finding that appellant is still indigent, and we therefore find that Ms. Nazario’s motion to withdraw as counsel should be granted.
Motion granted.
Pittman, Jennings, Bird, Neal, Crabtree, Meads, and Roaf, JJ., agree.
Griffen, J., Robbins, C.J., Hart and Rogers, JJ., dissent. | [
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Terry Crabtree, Judge.
This is an appeal from a jury verdict in a slip-and-fall case in favor of the appellee, Lloyd Brooks. On appeal, Fred’s Stores of Tennessee, Inc., the appellant, maintains that there is insufficient evidence of negligence to support the jury verdict. We find the evidence insufficient and reverse and dismiss.
On September 18, 1995, while on crutches, appellee slipped and fell on clear hair gel in Fred’s in Nashville, Arkansas. At trial, five witnesses testified, including appellee, appellee’s wife, a customer who-was in the store at the time of the accident, a former employee of Fred’s, and the supervisor on duty at Fred’s at the time of the accident. Appellee testified that as he was making a right turn in the store, his left crutch hit a slick spot, and he fell to the floor. While on the floor, appellee noticed that a clear gel was on his crutch and shoe.
Peggy Lansdell, a former employee of Fred’s, testified that she was working at Fred’s on the day of the accident and stated that she remembered that on a shelf nearby the accident, the store stocked hair gel. She specifically recalled that one particular bottle had gel all over the outside of the bottle. Lansdell further testified that she knew of no written policy concerning proper cleaning of debris on the floor and that no particular employee was responsible for checking the aisles of the store to ensure that the aisles were free from debris or fallen objects. In addition, she stated that the store usually stayed a mess.
Anita Johnson, Fred’s supervisor at the time of the accident, testified that she did not require one particular employee to check the aisles of the store and that the store had no written procedure for employees to follow as a guideline to protect customers from accidents. Johnson further stated that she could not recall if the store was cleaned and swept the night before the accident.
At the close of appellee’s case and at the close of all the evidence, appellant made motions for directed verdicts, stating that there was no evidence to support a verdict for appellee because appellee produced ño evidence that any substance on the floor' resulted from the negligence of appellant or that a substance had been on the floor for such a time that appellant knew or should have known of its presence. The trial court denied the motions. Subsequently, the jury returned with a verdict in favor of appellee for $10,000. At that point, appellant made a motion for judgment notwithstanding the verdict, and the circuit judge denied it..
A motion for a directed verdict should be granted only - if there is no substantial evidence to support the verdict. Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 873 (1991). On appeal from a denial of a directed verdict, this court views the evidence in the light most favorable to the party against whom the verdict is sought and gives it the highest probative value. Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987). Substantial evidence has been defined as being of sufficient force and character to compel a conclusion one way or another. Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991). It must force the mind to pass beyond suspicion or conjecture. Id.
A property owner has a general duty to exercise ordinary care to maintain his or her premises in a reasonably safe condition for the benefit of invitees. Johnson v. Arkla, Inc., 299 Ark. 399, 771 S.W.2d 782 (1989). The burden of establishing a violation of this duty in a slip-and-fall case is well established. A plaintiff must show either 1) that the presence of a substance upon the premises was the result of the defendant’s negligence or 2) that the substance had been on the premises for such a length of time that the defendant knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Safeway Stores, Inc. v. Willmon, 289 Ark. 14, 708 S.W.2d 623 (1986).
Under the first part of the standard, appellant argues there was insufficient evidence that a substance was on the floor as a result of its negligence. We agree that appellee failed to present sufficient evidence regarding how the substance came to be on the store floor. Appellee’s theory apparently was that hair gel was removed or spilled from an opened container on a nearby shelf onto the floor, causing him to fall. However, testimony to this effect was speculative and insufficient to show there was a sub stance on the floor due to the appellant's negligence. Possible causes of a fall, as opposed to probable causes, do not constitute substantial evidence of negligence. Safeway Stores, Inc., supra.
Appellant next contends, under the second part of the standard, that there was insufficient evidence that a substance remained on the floor for such a length of time that its employees were or should have been aware of its existence and failed to exercise ordinary care to remove it. We have recognized that the length of time a substance is on the floor is a key factor. The burden is on the plaintiff to show there is a substantial interval between the time the substance is placed on the floor and the time of the accident. Johnson v. Arkla, Inc., supra.
Here, there was insufficient evidence that a substance had been on the store floor for such a substantial period that the employees knew or should have known of its existence. Appellee introduced no evidence that there were foot tracks through the hair gel in the aisle, which might lead to the inference that employees or patrons had walked through the gel and ignored the danger it presented. In fact, the store was only open two hours before the accident occurred, and appellee presented no evidence whatever of a substance on the floor- prior to the time the store opened for business.
After careful review, we conclude that the jury had no evidence from which it might determine without speculation or conjecture how the substance got on the floor or how long it remained there prior to the accident. See Skaggs Co., Inc. v. White, 289 Ark. 434, 711 S.W.2d 819 (1986).
Reversed and dismissed.
Robbins, C.J., and Pittman, J., agree. | [
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John B. Robbins, Judge.
This is a workers’ compensation case in which the claimant was awarded benefits related to injuries arising out of carbon monoxide exposure at work culminating on June 8, 2005. The Administrative Law Judge (ALJ) denied com-pensability, but on appeal to the Workers’ Compensation Commission, it awarded benefits finding that objective findings and a causal link supported the existence of workplace injury and that appellee was entitled to reasonably related medical treatment and attorney’s fees. The employer appeals contending that (1) the Commission awarded benefits for an occupational disease where only a specific-incident injury was to be litigated, which was an error of law; (2) any claim for occupational disease was barred for failure of appellee to give the statutorily-required ninety-day written notice; and (3) even if the issue was properly before the Commission, there were no objective findings to support the existence of an occupational injury or substantial evidence on causation, nor did this case fit within the definition of “occupational disease.” Because the Commission’s opinion lacks sufficient findings of fact upon which we may perform proper appellate review, we reverse and remand.
In reviewing decisions from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. See Whitlach v. Southland Land & Dev., 84 Ark. App. 399, 141 S.W.3d 916 (2004). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Williams v. Prostaff Temporaries, 336 Ark. 510, 988 S.W.2d 1 (1999). There maybe substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we had sat as the trier of fact or heard the case de novo. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). We do not review the decision of the ALJ but rather review the decision of the Commission, which performs a de novo review of the evidence, and in this instance, did not adopt any of the findings of the ALJ. See, e.g., Matthews v. Jefferson Hosp. Ass’n, 341 Ark. 5, 14 S.W.3d 482 (2000); Scarbrough v. Cherokee Enters., 306 Ark. 641, 816 S.W.2d 876 (1991).
The Commission has the duty of weighing medical evidence as it does any other evidence, and the resolution of conflicting evidence is a question of fact for the Commission. Public Employee Claims Div. v. Tiner, 37 Ark. App. 23, 822 S.W.2d 400 (1992). A finding of a compensable injury cannot be based on speculation or conjecture. Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). However, the Commission may not arbitrarily disregard medical evidence or the testimony of any witness. Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230,184 S.W.3d 31 (2004); Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 48 S.W.3d 544 (2001). Furthermore, any compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D) (Supp. 1999).
Where the condition involved is a disease (as opposed to an accidental injury), the claim is compensable only if the disease is an “occupational” one as defined in our Workers’ Compensation Act, and the claimant proves by a preponderance of the evidence a causal connection between the employment and the disease. See Ark. Code Ann. §§ 11-9-102(4) to -601(e) (Repl. 2002). An “occupational disease” is defined as any disease that results in disability or death that arises out of or in the course of the occupation or employment. Ark. Code Ann. § 11-9-601 (e)(1) (Repl. 2002). An occupational disease is characteristic of an occupation, process or employment where there is a recognizable link between the nature of the job performed and an increased risk in contracting the occupational disease in question. Sanyo Mfg. Corp. v. Leisure, 12 Ark. App. 274, 675 S.W.2d 841 (1984).
First; we consider whether there was procedural error. Appellant contends that appellee sought benefits for an accidental injury that occurred on June 8, 2005, whereas the Commission sua sponte found that her claim was compensable because she suffered an occupational disease. Appellant argues essentially that it was blind-sided by this finding and was not allowed to defend its position properly, and furthermore that appellee did not give the required statutory notice for an occupational disease. Appellee responds that she sought benefits for an injury that culminated on June 8, 2005, that “compensability” was the issue, and that her claim was filed in a timely manner from her last injurious exposure. Thus, she contends that the Commission in its de novo review was at liberty to decide whether she had proved entitlement to benefits under the entire Workers’ Compensation Act. To the extent that appellant contends that the Commission erred in entertaining this claim seeking compensation under an occupational disease theory, we disagree that the Commission erred in doing so.
The undisputed facts were that appellee worked as a pharmacy technician and had for several years. In the pharmacy building, a faulty water heater leaked not only water but carbon monoxide. On June 8, 2005, pharmacy employees had been taking turns emptying the water receptacles abutting the water heater, but because the employees were suffering from headaches, the pharmacy manager called the Rogers fire department. The building was evacuated.
Appellant and other employees filed workers’ compensation claims.With regard to appellee’s claim, the pre-hearing order issued by the ALJ stated that the issue to be litigated was “com-pensability of the claimant’s injuries due to carbon monoxide[.]” Appellee contended that she was injured onjune 8, 2005, suffering injuries to her eyes, nose, throat, lungs, and brain. Her main complaints were that she had persistent headaches, burning in her nose/throat/chest, photophobia, memory loss, shaking, confusion, difficulty breathing, difficulty multitasking, and anger issues. She said she suffered from none of those problems prior to her employment in the pharmacy. Appellant contested the claim on the basis that there lacked objective medical findings to support such injuries and further, that appellee could not causally connect any objective findings of ill health to the carbon-monoxide exposure.
At the hearing, appellant’s counsel made an opening statement in which he contended that it was “hard to decide just which slot this kind of claim falls into in the current Workers’ Compensation Act,” noting that this was possibly an occupational disease case. Appellee’s counsel made her opening statement in which she stated that there was acute exposure on June 8 but that the employees had been exposed to this gas over a greater period of time.
The ALJ denied benefits. On de novo review, the Commission found that (1) appellee had shown objective medical findings to support the existence of injury, specifically in swelling and redness of her nasal passages, polyps in her nasal passages, and increased carbon monoxide levels as shown by blood testing, which the Commission causally related to her work exposure and not her smoking; and (2) appellee suffered a gradual occupational injury due to prolonged carbon monoxide exposure.
The two prevailing Commissioners authored the opinion in which they found that “her symptoms arose gradually,” and “claimant’s symptoms worsened after the incident on June 8, 2005.” This was deemed a “culmination” of symptoms leading up to that date “consistent with prolonged carbon monoxide exposure.” The dissenting Commissioner wrote that she would have denied benefits because, although appellee had long-standing medical issues, they were not shown to be causally related to her work. This appeal followed.
We hold that there was no procedural error. The Commission was presented with the stipulated issue as compensability for injuries from carbon monoxide exposure at work. In American Transportation Co. v. Payne, 10 Ark. App. 56, 661 S.W.2d 418 (1983), our court noted that Workers’ Compensation Commission Rule 25, defining the scope of review from the ALJ to the Commission, does not preclude the Commission from reviewing issues not appealed from or not raised at the ALJ level if it so chooses. 10 Ark. App. at 61. The Commission reviews cases appealed to it de novo, and the duty of the Commission is not to determine whether there was substantial evidence to support the ALJ’s findings; rather, it must make its own findings in accordance with a preponderance of the evidence. See Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990). Hence, the Commission has authority, and the duty, to render anew findings relevant to the claim before it. Given the posture of this claim as presented, we hold that the Commission was within its power to render findings on compensability, regarding an occupational disease or single workplace accident.
Appellant also claims that the Commission’s decision cannot stand because appellee is not entitled to any occupational-disease benefits absent her giving a statutorily required ninety-day notice of occupational disease. Arkansas Code Annotated section 11-9-603(a)(2)(A) (Repl. 2002) requires that written notice of an occupational disease be given within ninety days after the first distinct manifestation of the disease; such notice must be given by the employee or someone on her behalf. The ninety-day statutory period does not begin to run until the employee knows or should reasonably be expected to know that he is suffering from an occupational disease. See Quality Serv. Railcar v. Williams, 36 Ark. App. 29, 820 S.W.2d 278 (1991). Failure to give notice shall not bar any claim if the employer had knowledge of the injury; if the employee had no knowledge that the condition or disease arose out of and in the course of his employment; or if the Commission excuses the failure on the grounds that, for some satisfactory reason, the notice could not be given. Ark. Code Ann. § 11-9-701(b)(1) (Repl. 2002).
We have before us no findings by the Commission on this statutory notice, regarding compliance or lack thereof. Where it is clear what the appropriate law is but the Commission fails to apply the law to the facts of the case, it is appropriate to reverse and remand. See, e.g., Westside High Sch. v. Patterson, 79 Ark. App. 281, 86 S.W.3d 412 (2002) (reversing and remanding, stating that “the Commission must apply the appropriate law to the evidence before it to reach a conclusion”).
Because we are remanding for sufficient findings, we take this opportunity to point out that the Commission’s findings are also lacking with regard to the substantive claim. Such additional findings may become unnecessary if there is a statutory bar to this claim. However, in furtherance of judicial economy, we direct the Commission to make such findings that are necessary to explain the basis of its conclusion on compensability.
There is a thorough discussion of the existence of objective findings to support the existence of a compensable injury. There are findings on the causal relationship between the injury and the work. A causal connection is generally a matter of inference to be drawn from all the evidence. See Hope Brick Works v. Welch, 33 Ark. App. 103, 802 S.W.2d 476 (1991). However, the Commission made no findings on the issue of how this claim fits within the occupational-disease construct except to state that the injury was of gradual onset. It did not make findings required by the Act that an occupational disease be “due to the nature of an employment in which the hazards of the disease actually exist and are characteristic thereof and peculiar to the trade[.]” Ark. Code Ann. § 11-9-601(g)(1)(A).
When the Commission decides a claim, the parties are entitled to know the factual basis for the decision. Lowe v. Car Care Mktg., 53 Ark. App. 100, 102, 919 S.W.2d 520, 521 (1996). Moreover, meaningful appellate review requires adequate and specific findings. Lowe, 53 Ark. App. at 102, 919 S.W.2d at 521. Here, the findings are incomplete. We therefore reverse and remand for additional findings of fact. Wright v. Am. Transp., 18 Ark. App. 18, 22, 709 S.W.2d 107, 110 (1986).
Reversed and remanded.
Pittman, C.J., and Baker, J., agree. | [
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Josephine Linker Hart, Judge.
A jury found appellant, Wishorne Turner, guilty of aggravated robbery, theft of property, and second-degree criminal mischief. On appeal, he argues that the evidence was insufficient to support these convictions, because the only evidence of his guilt was a single fingerprint found on the outside of the victims’ truck. We conclude that the State’s evidence did not exclude every other reasonable conclusion but that of appellant’s guilt, and therefore, we reverse and dismiss.
On July 30, 2007, after 9:00 p.m., Kanisher Caldwell and her husband, Morris, arrived in Pine Bluff after traveling to Kansas City, Missouri, for a family reunion. They made the trip in their truck, a 2007 Ford F150. While in Kansas City, Kanisher and Morris had the truck detailed so that it could be photographed against the Kansas City skyline. The truck was hand washed, scrubbed with brushes and sprayers, and hand dried.
Back in Pine Bluff, Kanisher dropped Morris off at home, dropped their daughter off with a relative, and returned home. As she exited the truck, a man grabbed her by her neck, put a gun to .her head, and asked for her keys. He pushed her to the house and demanded that she open the door. She then saw two other men. All three men had their faces covered and were armed. Morris came to the door of the residence, and the man who held Kanisher pointed his gun at Morris while the second man pointed his gun at Kanisher. Morris grabbed Kanisher, pulled her inside the residence, and slammed the door shut. Morris heard the truck start, and he exited the residence and fired his shotgun as the truck drove away. Neither Kanisher nor Morris saw who entered the truck. Morris testified that incident occurred at 9:30 or 9:45 p.m.
At 10:17 p.m., Pine Bluff police spotted the truck traveling at a high rate of speed and running a stop sign. During the police pursuit, the driver jumped from the truck. After the truck came to a stop, police noted there were no other occupants. Twenty to thirty minutes later, police found Demante Dorn in a shed. According to one officer, the truck was twenty or twenty-five blocks away from the Caldwell’s home.
Two fingerprints were found on the exterior of the truck. A fingerprint found on the driver’s door matched one of Dorn’s fingerprints. Dorn was also identified as one of the assailants based on Morris’s identification of Dorn’s clothing and his identification of clothing and a weapon discovered in the shed. A fingerprint was also found “[o]ver on the door handle” on the passenger door, and that fingerprint matched one of appellant’s fingerprints. According to the police, appellant’s address shown on his state identification card was not close to where the Caldwells resided or where the truck was recovered.
Appellant argues that the State’s evidence was insufficient evidence to support the convictions, because the only evidence of his guilt was a single fingerprint and the jury’s verdict was based on speculation and conjecture. He observes that his fingerprint was found on the exterior — not inside — the truck and that the victims did not testify that they saw anyone place a hand on the passenger side of the truck.
On appeal, we view the evidence in the light most favorable to the State and determine whether substantial evidence supports the judgment. King v. State, 100 Ark. App. 208, 266 S.W.3d 205 (2007). When the State’s case is made entirely of circumstantial evidence, if it leaves the fact-finder to speculation and conjecture,then the evidence is insufficient as a matter of law. Id. Two equally reasonable conclusions about what happened raise only a suspicion of guilt, and on appeal, we may consider whether the record, viewed in the light most favorable to the State, presented this situation and required the fact-finder to speculate to convict the defendant. Id.
Viewing the evidence in the light most favorable to the State, the victims testified that the truck was in their possession while they traveled out of state, the truck was thoroughly detailed while they were out of state, and they remained in possession of the truck at all times prior to the commission of the crimes. The truck was out of their possession only while it was in the possession of one of the persons who committed the crimes, and that was at night for only thirty to forty-five minutes until the truck was spotted traveling at a high rate of speed by police some twenty or twenty-five blocks away, apparently in high-speed flight from the area in which the crime was committed. Appellant’s fingerprint was found on the exterior passenger-door handle, a point of entry into the truck, and appellant did not reside in either the area where the truck was taken or where it was recovered by police.
We acknowledge that appellant’s fingerprint on the passenger-door handle could only have been placed on the truck during the brief time, late hour, and limited geographical area while the truck was in the possession of one of the assailants, even though appellant did not reside in the area where the truck was taken or recovered. We conclude, however, that the State’s evidence failed to exclude every other reasonable conclusion but that of appellant’s guilt.
The victims did not testify that they observed anyone enter the truck on the passenger side. Thus, this case is unlike Howard v. State, 286 Ark. 479, 695 S.W.2d 375 (1985), where a masked man was seen touching the place where a fingerprint was discovered and the fingerprint was found to be the defendant’s. And because the fingerprint was not found in the interior of the truck, it is unlike those cases where the conviction was affirmed because the fingerprint was found inside the structure. Brown v. State, 310 Ark. 427, 837 S.W.2d 457 (1992); Phillips v. State, 88 Ark. App. 17, 194 S.W.3d 222 (2004), aff'd on other grounds, 361 Ark. 1, 293 S.W.3d 630 (2005); Ebsen v. State, 249 Ark. 477, 459 S.W.2d 548 (1970).
Here, the fingerprint was found on the exterior of the truck, and this court has previously found that a fingerprint found on the exterior of a structure is insufficient to support a conviction. Smith v. State, 34 Ark. App. 150, 806 S.W.2d 391 (1991); Holloway v. State, 11 Ark. App. 69, 666 S.W.2d 410 (1984). Moreover, unlike several cases affirming convictions on fingerprint evidence, there is no corroborating evidence and appellant’s convictions rest entirely on the strength of a fingerprint. Compare Medlock v. State, 79 Ark. App. 447, 89 S.W.3d 357 (2002); Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001) (revocation of suspended sentence); Ashe v. State, 57 Ark. App. 99, 942 S.W.2d 267 (1997) (affirmed on tie vote); Tucker v. State, 50 Ark. App. 203, 901 S.W.2d 865 (1995).
It is a reasonable conclusion that appellant innocently touched the truck’s passenger-door handle during that limited time, in that limited geographical area, while the truck was in the possession of one of the assailants. The truck was a movable object, and it is reasonable to conclude that, rather than touching the truck as he entered the truck during the aggravated robbery, appellant instead later encountered the truck and touched it at that time. There is simply no way to determine when or where appellant touched the truck even during that discrete time and limited area. Accordingly, we conclude that the evidence was insufficient to support the convictions, as the State’s evidence failed to exclude every other reasonable conclusion but that of appellant’s guilt. See Standridge v. State, 310 Ark. 408, 837 S.W.2d 447 (1992) (holding that a thumbprint on an easily movable cup found beside a tent that was located six to fifteen feet away from marijuana plants was insufficient to prove that the defendant was manufacturing marijuana, as there was no evidence suggesting when or where the defendant touched the cup). Therefore, we reverse and dismiss.
Reversed and dismissed.
Gladwin and Heffley, JJ., agree.
The exhibit notes that the fingerprint was found on the passenger-side door to the left of the handle. | [
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Sam Bird, Judge.
Terravista Landscape & Maintenance appeals the Board of Review’s award of employment-security benefits to Wilfiredo Morales, who was discharged from his employment as a crew leader on Terravista’s landscaping jobs. The Board reversed the Appeal Tribunal’s denial of benefits and its finding that Morales was discharged from last work for misconduct connected with the work, finding instead that Morales was discharged for reasons that did not constitute misconduct connected with the work. We hold that there is insufficient evidence to support this finding by the Board; therefore, we reverse the award of benefits.
The initial determination in this case was made by the Arkansas Employment Security Department, which found that Morales was discharged for failure to meet the work standards of the employer but that he had made reasonable efforts to meet those standards. Noting that inability to perform the work does not constitute misconduct in connection with the work, the Department determined that Morales was not disqualified from receiving unemployment benefits. Terravista appealed the agency’s determination to the Appeal Tribunal, challenging the finding that Morales made reasonable efforts to perform his job duties. Terravista asserted in its appeal, “If reasonable effort was extended on his part, he would not have continually ignored and disregarded company policy and his supervisor’s instructions.”
The evidence presented at a hearing conducted before the Appeal Tribunal included testimony by Terravista’s president, William Gernen, and by Morales; both Terravista’s and Morales’s statements concerning discharge; and pages from the employee handbook. A list of Terravista’s reasons for dismissal was also admitted into evidence:
1) Wilfredo had a blatant disregard for equipment care, contrary to company policy •— written and verbal. Wilfredo was instructed to place equipment (various hand tools) in the back of the track and secure. He would “throw” them in the track which resulted in breakage and damaged tools.
2) As a Crew Leader, one of his job responsibilities was to regularly perform maintenance on the equipment. He did not perform this task or even leave the equipment prepared for the next business day, such as leaving a tractor with no fuel or keys for operation.
3) Wilfredo was responsible for cleaning out his track, which is in the manual as well as verbally instructed. He ignored this instruction and left track “trashed out” and did not perform maintenance on the vehicle, i.e., check oil, etc.
4)As a Crew Leader, he was to be prepared for the work day with proper tools. He often would leave the shop without the proper items to perform the necessary work and would have to come back to procure them causing much inefficiency in the work day.
5) Wilfredo would play the radio loudly at the job site (customers’ homes) which is against employee policy. All employees must treat the client’s property with respect. He was warned to keep the volume down; however, he ignored the Supervisor’s warning and continued to play music too loud in the residential areas. We had several complaints from customers.
6) Wilfredo never improved in his work ethics or performance. He was never able to complete a job in a timely manner to Terravista standards. When instructed how to do a job, he would ignore the instruction and seem to purposely do the job slower.
He was released because of continually working contrary to company policy and instruction.
Geren testified at the hearing that Morales had been discharged for breaking company policy and for blatant disregard of policy. Geren testified that there were “several things day after day” leading to the dismissal rather than a single incident, but that the final thing had been Morales’s playing the radio loudly at clients’ residences, contrary to the handbook policy that employees be responsible and professional to customers and clients. Geren stated that the manager of the landscape crew, Gabe Morris, heard the radio playing loudly and that the company received phone calls and complaints from clients about it. Geren said that this had occurred five or six times over several months, that Morales was told to turn the radio down, but that he would turn it up when the manager left a job site.
Geren also testified regarding Morales’s disregard for the company policy of keeping the trucks clean and taking care of equipment. He said that company policy required that all personal trash be cleaned out of the trucks daily and the tools be put away, that Morales was warned several times by Morris that the trash was to be cleaned out, but that Morales neglected this policy just as he did the radio policy, leaving his truck in the afternoon with all the trash in it and all the tools on it. Geren testified that Morales had been warned six times for failure to clean his truck and for not putting up tools and equipment, but that his response was just to acknowledge it with a shrug and then ask for more money.
Geren testified that company policy also directed that equipment be properly cared for and maintained, but that oftentimes Morales and laborers under his supervision threw heavy pieces of equipment on top of hand tools in the truck, breaking and cracking handles of shovels and rakes, and that this went on over a period of several months. Geren testified that Morales was instructed to use a tractor to load mulch and other materials, that company policy required an employee to be responsible for his tools, that Morales would nearly run the tractor out of fuel and leave it for someone else to fill up, and that he would not clean the mulch from the air filter in the radiator’s grill. Geren testified that Morales was warned several times but would just seem to shrug each time. Geren stated, “If he wasn’t going to be paid more that’s the way he was going to treat the equipment. That he didn’t care.” Geren said that this was hearsay from other employees who, like Morales, spoke Spanish, but that Morales’s attitude was personified by his actions.
Geren also said that Morales had been warned at least a dozen times to load his truck at day’s end to be ready for the next day. Geren said Morris finally gave up on instructing Morales because he wouldn’t cooperate, and that the decision for termination was made after all the complaints and problems. Geren testified that it was Morris who had direct knowledge of the incidents mentioned above; and that, once, after Geren had been on a job site and had instructed Morales how pipe was to be glued, Morris told him that Morales resumed doing the pipe the way he wanted to rather than the way he had been shown. Geren stated that Morales was discharged not for specific incidents, but for his general attitude of not being willing to improve in his work abilities, and not following company directives but continually asking for more money.
Morales, testifying through an interpreter, said that he had been fired. He acknowledged receiving a copy of the company handbook. He said that the reasons Geren gave for firing him were working too slowly and not cleaning up the truck properly. Morales said that workers were told they could play the radio but not too loudly. He said that he was never warned that he was playing his radio too loudly, and he denied doing so. He said that he had been instructed to clean his truck on a daily basis, and he said that he always cleaned it and got the bottles and cans out. He said that the tools were always put back in their places and were never thrown around, that broken handles and other things occurred because of the old age of the tools, and that once a handle might have been replaced because it wasn’t good any more. He said that he never failed to refuel the tractor, or to put air filters and radiators filters into the tractor. He said variously that he forgot to do the oil, that this was a job for a mechanic, that one or two times he was told to change the oil and he did, and that “we changed the oil every day.”
Geren asked that the record reflect, because Morales had brought up the subject, that he had been instructed to change the oil in the skid loader and the tractor, that Morales had neglected to do so, and that someone else had to do it. Geren asked Morales why the tractor’s air filter and radiator filter guards were caked with mulch several times when Geren checked the equipment after Morales had been loading mulch and had left work. Morales responded, “He knows that I wasn’t the only one or only group to have those vehicles. Other groups had them, too. Why is he blaming me?”
At the conclusion of the hearing, each party was given an opportunity to discuss anything not previously brought to the attention of the hearing officer. Morales commented, “I said before if I was not doing something right, why wasn’t I told in nine months of working for that company?” Geren responded that on three occasions Morales had come to Geren’s office asking for more money, and that he had been told the things he needed to do to improve his work: keep the truck cleaned better and do a better job following instructions from Morris.
An individual shall be disqualified for benefits if he or she is discharged from his or her last work for misconduct in connection with the work. Ark. Code Ann. § 11-10-514(a)(1) (Repl. 2002). In Willis Johnson Co. v. Daniels, 269 Ark. 795, 601 S.W.2d 890 (Ark. App. 1980), we explained that “misconduct,” for purposes of unemployment compensation cases, must be:
an act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rales, a disregard of standards of behavior which the employer has the right to expect of his employees, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.
Mere inefficiency, unsatisfactory conduct, failure of good performance as the result of inability or incapacity, inadvertencies, ordinary negligence or good faith errors in judgment or discretion are not considered misconduct for unemployment insurance pur poses unless it is of such a degree or recurrence as to manifest culpability, wrongful intent, evil design, or an intentional or substantial disregard of an employer’s interests or an employee’s duties and obligations.
Willis, 269 Ark. at 800, 601 S.W.2d at 892—93 (citations omitted).
In order for misconduct to occur, there must be an element of intent. See id. Whether the employee’s acts are willful or merely the result of unsatisfactory conduct or unintentional failure of performance is a fact question for the Board to decide. George’s, Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). On appeal, the findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. Greenberg v. Director, 53 Ark. App. 295, 922 S.W.2d 5 (1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.
The Board noted that shortcomings in Morales’s work had been going on for months prior to the discharge. The Board’s opinion included the following analysis:
The employer never provided a written warning to the claimant. The testimony of the president indicates that the claimant was verbally warned about his conduct but other testimony indicates that the president may have been referring to the fact that he mentioned the shortcomings when he was being denied a requested raise. If so, this would not put the claimant on notice that his failures were so great that if such conduct continued, he might be discharged.
The Board noted that Morales was discharged for a variety of reasons. It found that Terravista’s president witnessed “incidents of the claimant failing to clean the truck of trash and put away equipment and apparently of heavy items being found stored on top of hand tools,” but that this had gone on for months without the employer taking any adverse action against Morales. Additionally, the Board noted that the president “was a direct witness to the filters being filled with mulch at the end of the claimant’s shift, indicating that the claimant had failed to clean them or that he had not done a very good job of cleaning them,” but that this problem also had gone on for months with no apparent adverse action being taken. The Board concluded:
The claimant’s job performance was frequendy poor in that he failed to properly clean equipment and put up tools over a period of several months. This might constitute a good business reason to discharge the claimant but it does not necessarily mean that the claimant’s conduct amounted to misconduct. As the claimant’s conduct does not appear to be worse than the conduct in Greenberg [v. Director, 53 Ark. App. 295, 922 S.W.2d 5 (1996)], the Board is unable to conclude that the claimant’s conduct rises to a level to constitute a willful disregard of the interests of the employer.
Contending that the Board’s findings and conclusions were not based on the evidence presented, Terravista states that its rules and consequences for breaking them are clearly explained in the company handbook that Morales acknowledged receiving. Ter-ravista argues that Morales did not meet his obligations as a crew leader or as a trustworthy employee, and that he ignored job responsibilities and direct instruction from his supervisor. It characterizes that as a case of termination after all “chances” had been exhausted: it argues that verbal correction of shortcomings in behavior that continued off and on for several months indicated the company’s patience with Morales and its optimism that he would eventually and consistently improve.
The company handbook includes directives that all personal trash must be cleaned out of company trucks at day’s end, that associates must be responsible and professional to the clients, and that each associate must exhibit responsibility for tools, equipment, vehicles, and properties. The handbook also states the following:
To be successful, a business requires associates who use their working hours in the most productive and efficient way. When an associate does not cooperate in this group effort, it may be necessary to apply disciplinary action in the form of a warning, a suspension without pay, or even discharge. For cases of minor misconduct, the associate will first be given an oral warning. Repeated misconduct will result in a written warning, time off without pay or termination, depending on the seriousness of the action.
(Emphasis added.)
The company handbook describes a general standard of proficiency expected of employees and sets out specific tasks to be performed by employees. The handbook provides that employees whose performance does not conform to the standard will be subject to disciplinary action, which may be “in the form of a warning, suspension without pay, or even discharge.” The hand book provides that while “minor misconduct” will result in an oral warning, “repeated misconduct will result in a written warning, time off without pay, or termination.” Clearly, the handbook does not mandate that either an oral or written warning be given to employees before their termination, and does not require that a claimant be put on notice that his failures were so great that if such conduct continued, he might be discharged. We hold that substantial evidence does not support the Board’s conclusion that Morales was entitled to written notice before discharge for repeated shortcomings on the job.
We now must examine the shortcomings in Morales’s job performance to determine whether they constituted misconduct within the meaning of our employment-security law. In Greenberg, supra, cited by the Board in its decision, the claimant was a legal secretary discharged for poor job performance. The evidence showed that she had failed to properly spell-check various documents, had repeatedly failed to follow the direct instructions of the supervisor to mark important dates on a calendar, and had failed to include important documents in a letter after having been instructed to do so. We held that this evidence proved that the claimant was an incompetent legal secretary. We reversed the Board’s finding of misconduct, however, holding that reasonable minds would not accept this evidence of incompetence as adequate to support a conclusion that the appellant’s conduct was of such a degree or recurrence as to manifest culpability, wrongful intent, evil design, or an intentional or substantial disregard of her employer’s interests or duties and obligations. Id. at 298, 922 S.W.2d at 7.
The Board in the present case found that Morales’s conduct was not worse than the conduct in Greenberg, id., and thus the Board was unable to conclude that the claimant’s conduct rose to a level to constitute a willful disregard of the interests of the employer. The Board has misread Greenberg, and its attempted analogy with the present case must fail: the evidence in Greenberg, rather than showing a disregard for company rules or policy, merely showed the claimant’s incompetence as a legal secretary. The determination of misconduct depends on whether the acts were willful or whether they merely resulted from unsatisfactory conduct or unintentional failure of performance: it is not dependent on how poorly the job was performed. See id.; George's, Inc. v. Director, supra.
In Greenberg, supra, there was not evidence regarding company policy or specifying what tasks the employee was required to perform. Although the Board acknowledged that Morales’s job performance was frequently faulty in that he failed to properly clean equipment and put up tools over a period of several months, the Board failed to consider that these were essential tasks outlined in the company rule book. As mentioned previously, substantial evidence does not support the Board’s conclusion that Morales was entitled to written notice that the company would not tolerate his repeated shortcomings in performing tasks that he was required to do. We also hold that reasonable minds could not agree with the Board’s findings that Morales’s conduct did not rise to a level constituting a willful disregard of the interests of the employer, and that he was discharged for reasons that did not constitute misconduct connected with the work. The award of benefits is reversed.
Reversed and remanded for proceedings in keeping with this opinion.
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Judith Rogers, Judge.
This is an appeal from the Workers’ Compensation Commission’s decision finding that appellant’s claim for additional benefits for a 1987 injury is barred by the statute of limitations; that the issue of temporary partial benefits was not raised below; and that appellant failed to prove he is permanently partially disabled. On appeal, appellant contends that the statute of limitations was tolled for his 1987 compensable injury; that the issue of temporary partial benefits was a matter in evidence; and that he is entitled to a 5% permanent partial disability rating related to his compensable injuries.
The record reflects that appellant injured his back on September 2, 1987, in the course and scope of his employment with appellee while moving a television set. Appellant received temporary total and medical benefits. Appellant returned to light duty work on September 28, 1987, and continued to receive his regular salary. Around September 3, 1990, appellant was informed that he would be receiving a reduction in pay in the amount of ninety cents an hour. That same day, appellant sustained an injury to his shoulder area when he was moving a scrubber. Two days later, while at home, appellant bent over to pick up his paper and his lower back “popped”. He was taken to the emergency room. Appellant received temporary total and medical benefits and returned to work after a couple of weeks at which time he was trained as a sales clerk. This job change resulted in a decrease in his previous salary by an amount of $1.13. Appellant filed this claim with the administrative law judge, and the ALJ found that the statute of limitations did not bar claims stemming from his 1987 injury, that appellant was entitled to temporary partial benefits from September 2, 1987, through January 1991, “for the periods of time that appellant was receiving less than his previous salary”, and that appellant did not prove he was permanently disabled. The Commission reversed the ALJ on the first two points and affirmed on the last.
When reviewing a decision of the Workers’ Compensation Commission, we must view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Welch’s Laundry and Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283 (1992). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Quality Service Railcar v. Williams, 36 Ark. App. 29, 820 S.W.2d 278 (1991).
First, appellant contends that the statute of limitations for additional medical benefits had not expired with regard to his 1987 injury. Under Ark. Code Ann. § 11-9-702(b) (1987), the time for filing a claim for additional compensation “shall be barred unless filed with the Commission within (1) one year from the date of the last payment of compensation, or (2) two years from the date of the injury, whichever is greater.” The record indicates that appellant’s last medical service for his 1987 injury was on January 23, 1989. Therefore, by the time appellant presented this claim for additional benefits in April of 1991, the statute of limitations had run on the 1987 injury.
Appellant argues, however, that his attorney’s letter of June 13, 1989, amounted to a claim for additional benefits, thereby tolling the statute of limitations on his 1987 compensable injury. Appellant cites Cook v. Southwestern Bell Telephone Co., 21 Ark. App. 29, 727 S.W.2d 862 (1987), in support of his argument. The Commission found no merit in appellant’s argument. The Commission specifically stated in its opinion that the letter dated June 13, 1989, did not serve as the filing of a claim and that, unlike the letter in Cook, it was not sufficient to toll the statute of limitations. The Commission found that “at no point did [appellant’s] attorney indicate that any benefits were not being received. To the contrary, she specifically indicates that she is not requesting a hearing because [appellant’s] medical bills were being paid.” The Commission thus concluded that appellant’s counsel was simply giving notice that she wanted to be recognized as the attorney of record and that no claim was being presented at that time since there was no present conflict over the receipt of benefits.
In Cook, we held that the appellant’s counsel’s letter represented a claim for additional medical benefits so as to toll the statute of limitations for additional medical benefits. The letter notified the Commission within the two year statute of limitations that he had been employed to assist the appellant in connection with unpaid benefits, and it listed the appellant’s name, the employer’s name, and the Workers’ Compensation Commission’s file number. However, we find Cook distinguishable.
In this case, appellant’s counsel’s letter stated:
Please be advised my law firm has been retained by the above referenced injured worker in regards to a back injury sustained on the above date. Please note my name is the attorney of record in regards to this matter. Please also be advised that I am not requesting a hearing at this time since it appears that Mr. Garrett’s medical is being is paid.
We agree with the Commission’s assessment and comparison of these facts in relation to the case of Cook. Consequently, we cannot say there is no substantial evidence to support the Commission’s finding that appellant was barred by the statute of limitations from receiving further benefits connected with his 1987 back injury.
As his second point, appellant contests the Commission’s finding that he is not entitled to temporary partial disability benefits. The Commission found that this issue was not before the ALJ, that the ALJ had raised the issue on his own and that he had resorted to matters outside the record in reaching that decision. We disagree with the Commission’s conclusion.
The ALJ found that appellant was “entitled to temporary partial disability at all times during his healing period from September 2, 1987 through January 24, 1991 when his wages were less than he was receiving at the time of his September 2, 1987 injury.” The record shows that this finding was based on facts stipulated to by the parties concerning the wages that appellant was earning both before and after his injuries, appellant’s uncontradicted testimony at the hearing, to which appellee did not object, and the appellee’s own exhibits, which included the appellant’s personnel file concerning wage information. The ALJ also relied on medical reports which were placed into evidence. Given the evidence introduced by both parties, to which there was no objection, we cannot say that the ALJ resorted to matters outside the record or that this finding was not within the realm of the evidence presented. Therefore, we reverse and remand for proceedings consistent with this opinion for the Commission to determine the appropriate amount of temporary partial disability benefits, if any.
Last, appellant argues that he is entitled to a 5% permanent partial disability rating as assessed by Dr. Vincent B. Runnels, appellant’s physician. The record indicates that Dr. Runnels noted that he would have assessed the 5 % disability rating to appellant despite appellant’s 1990 injury. Furthermore, Dr. Runnels refused to attribute the 5 % rating to any specific problem. He testified that the 5 % rating was simply a number he picked “out of the sky.” The Commission found that appellant did not suffer a permanent disability as a result of either compensable injury. We cannot say there is no substantial evidence to support the Commission’s decision.
Affirmed in part; reversed and remanded in part.
Mayfield and Cooper, JJ., dissent. | [
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Olly Neal, Judge.
Appellant Margie Rocconi appeals from a June 5, 2003 order of the Ouachita County Circuit Court granting appellee James Rocconi a divorce. On appeal, she contends that the trial court erred in ruling that appellee had proved he was entitled to a divorce on the grounds of personal indignities. She also contends that, in light of appellee’s admitted adultery, the doctrine of recrimination barred appellee from obtaining a decree of divorce.
The parties were married on December 23, 1993, and there were no children born of the marriage. Despite separating on June 17, 2002, the parties continued to share the marital residence until August 2002. On June 19, 2002, appellant filed a complaint seeking separate maintenance. Appellee answered with a counterclaim for divorce on the grounds of personal indignities. Appellant filed a motion to dismiss the counterclaim for divorce on November 22, 2002. She alleged that within the past five years, appellee had committed adultery and that he was, therefore, barred from obtaining a divorce. Appellee denied the adultery allegation.
At the hearing, appellant testified that she was fifty-one years old. She said that, from 1994 to 2002, their marriage was “wonderful.” She testified that in November 2001, appellee moved out of the marital bedroom because he thought his snoring was bothering her. Despite their separate sleeping arrangements, appellant said that up until August 2002, they continued to have an intimate relationship. She stated that at some point between November 2001 and February 2002, appellee stopped spending time with her. Appellant said that appellee would spend every weekend at their property in Chidester.
In July 2001, appellant began going to the casinos in Shreveport. She said that she won $25,000 her first weekend and that the third time she went she won $37,500. Appellant testified that she did not go to the casinos on a regular basis. She said that between July 2001 and August 2002, she only went to the casinos twenty-five times. Appellant estimated that she had won about $235,000 and lost about $16,000. She said that appellee never voiced any concern about the amount of time she spent at the casinos, and that one time he had taken her winnings and had refused to tell her how he had spent them. Appellant testified that appellee kicked her out of the marital home in May 2002, when she refused to sign a deed transferring certain marital property to appellee’s son. She stated that she stayed two days with her sister and that when she returned appellee had changed all the locks. She said that eventually appellee gave her a new key and that from May 2002 to August 2002, they lived at opposite ends of the marital home. Appellant also said that she never used household money or money from appellee’s veterinary clinic to gamble. However, she admitted charging $10,000 on one of their joint credit cards to pay off her Discover Card debt.
Appellant testified that appellee was living with Teresa King. She also testified that, following the August 12, 2002, temporary hearing, someone left pictures of appellee and a woman other than King outside her apartment. Appellant said that she gave the pictures to appellee.
John Thomas Wilson, appellant’s son, testified that he lived with the parties up until their separation. He said during the marriage, appellant had several illnesses and that, when appellee came home from work, appellant was usually in bed. Wilson testified that appellant went to the casinos every other weekend.
Jo Ann England, appellant’s sister, testified that appellee had called her several times and had tried to convince her that appellant had “problems.” She said that a couple of times he suggested that appellant had a gambling problem.
Terry Harcrow testified that he had known appellant for seventeen years. He said that sometime in early 2002, appellant informed him that she had won around $225,000 at the casino and that she had hidden “somewhere between $151,000 and $161,000” from appellee.
Appellee testified that appellant began gambling in 2001 and that, by early 2002, he began to suspect that her gambling was out of hand. Appellee also testified that he did not have a problem with appellant gambling every now and then but when she started going to the casinos every weekend, he thought there was a problem. Appellee said that he learned the full magnitude of appellant’s gambling when they had their 2001 taxes prepared. He said that at that time he learned that, instead of the $60,000 that appellant said she had won, appellant’s actual winnings for 2001 were $231,000. Appellee said that during a fishing trip, he learned that appellant had “maxed out” his clinic credit card. He stated that he did not approve the $10,000 credit-card transfer to pay appellant’s Discover Card debt. Appellee could not recall ever voicing to appellant his concerns about her gambling. However, he later testified that he told appellant she needed help. He said that appellant’s gambling had an effect on their marriage in that appellant was never home, she stopped accompanying him to church, stopped cooking, and stopped accompanying, him to meetings and banquets. He also said that appellant would go three to five days without putting on her “street clothes.” During his testimony, appellee indicated that the parties’ marriage could not be saved.
Appellee testified that his relationship with Teresa King began in August 2002. He denied any involvement prior to August.
Cindy Mouse, appellee’s daughter, testified that appellant was going to the casinos as often as every weekend and that appellant had stopped attending family functions. She described appellee as being unhappy. She stated that the parties would often quarrel about the amount of time appellant was spending at the casinos.
Appellee’s son, James Phillip Rocconi, testified that, because appellant was either gone or locked in her room, the parties spent little time together. He said that appellant first started going to the casinos once a month and that she eventually started going three times a month. He said that the reason he knew this was because, each time appellant would go to the casino, appellee would call him. He testified that when appellee would call, he would change his plans so that he could spend time with him. He described appellee as being miserable and lonely.
Teresa King testified that she and appellee became friends in August 2002. She denied having a romantic relationship with appellee prior to August 2002.
Based on this evidence, the trial court found that appellant’s gambling, prior to the parties’ separation, was excessive and was the primary cause of their separation. The trial court also found that appellant’s gambling constituted personal indignities and that, because of appellant’s gambling, appellee was entitled to an absolute divorce. The trial court denied appellant’s claim for separate maintenance and also denied appellant’s motion to dismiss.
Our standard of review in this case is de novo. Rutherford v. Rutherford, 81 Ark. App. 122, 98 S.W.3d 842 (2003). On appeal, we do not reverse the lower court’s findings unless they are clearly erroneous. Banks v. Evans, 347 Ark. 383, 64 S.W.3d 746 (2002). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id.
In her first argument on appeal, appellant contends that the trial court erred in ruling that appellee had proved he was entitled to a divorce on the grounds of personal indignities. Divorce is a creature of statute and can only be granted upon proof of a statutory ground. Poore v. Poore, 76 Ark. App. 99, 61 S.W.3d 912 (2001). In the case at bar, the action for divorce was based on personal indignities. In order to obtain a divorce on that ground, the plaintiff must show a habitual, continuous, permanent, and plain manifestation of settled hate, alienation, and estrangement on the part of one spouse, sufficient to render the condition of the other intolerable. Id. Personal indignities have been defined as rudeness, unmerited reproach, contempt, studied neglect, open insult and other plain manifestations of settled hate, alienation and estrangement, so habitually, continuously and permanently pursed as to create an intolerable condition. See Copeland v. Copeland, 2 Ark. App. 55, 616 S.W.2d 773 (1981). It is well settled that the testimony of the plaintiff as to the ground for divorce is not sufficient and that same must be corroborated by other testimony. See id.
It is clear that appellant engaged in a habitual conduct that had alienated her husband and made his living situation intolerable. Therefore, we cannot say that the trial court erred when it found that appellant’s gambling caused the demise of the parties’ marriage and that the gambling constituted personal indignities such that appellee was entitled to a divorce.
Appellant also contends that, in light of appellee’s “admitted adultery,” the doctrine of recrimination barred appellee from obtaining a decree of divorce. The doctrine of recrimination provides that when the conduct of both parties has been such as to furnish grounds for divorce, neither of the parties is entitled to relief. Narisi v. Narisi, 229 Ark. 1059, 320 S.W.2d 757 (1959). The doctrine of recrimination applies only when both parties are equally at fault. Lewis v. Lewis, 248 Ark. 621, 453 S.W.2d 22 (1970); Posey v. Posey, 268 Ark. 894, 597 S.W.2d 834 (Ark. App. 1980).
While we recognize that pursuant to Milne v. Milne, 266 Ark. 900, 587 S.W.2d 229 (Ark. App. 1979) , appellant committed adultery, it is the province of the trial court to determine which party’s conduct was more egregious. However, when one party’s conduct is more egregious than the other’s conduct, it is proper to grant a divorce to the party whose conduct is the lesser of the two. See Ayers v. Ayers, 226 Ark. 394, 290 S.W.2d 24 (1956); Longinotti v. Longinotti, 169 Ark. 1001, 277 S.W. 41 (1925); Posey v. Posey, supra. Quite often, the party whose conduct is more egregious is also the first offender. See Ayers v. Ayers, supra; Longinotti v. Longinotti, supra. Here, appellant was the first offender, and it was proper for the trial court to find her conduct to be more egregious than that of appellee’s. See Ayers v. Ayers, supra; Longinotti v. Longinotti, supra.
Affirmed.
Griffen and Roaf, JJ., agree.
In Milne, we defined adultery as including sexual intercourse by a married person with a person who is not his or her spouse, regardless of whether the person accused is living with his spouse. | [
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Robert Gladwin, Judge.
Appellant Beverly Robinson appeals from a decision of the Workers’ Compensation Commission denying her benefits. The Commission found that appellant did not suffer a compensable injury because she was not performing employment services at the time of her injury. We affirm
Appellant worked as a housekeeper and part-time supervisor for St. Vincent Infirmary Medical Center. On the day of her injury, she had finished cleaning an operating room on the second floor and was proceeding to the fourth floor to get her coin purse and her lunch. She testified that although she did not clock out for lunch, she was on her lunch break and was planning to take her lunch to the cafeteria after she retrieved it from the fourth floor.
As appellant stepped off the elevator on the fourth floor, she slipped in a puddle of spilled coffee, heard a pop, and thought her leg was broken. After she got up, she called for help. Her supervisor arrived, and the two women cleaned up the spilled coffee. Appellant then went to the emergency room for an exam.
Appellant later received treatment from Drs. John Wilson, Karmen Hopkins, and Harold Chakales. Dr. Chakales diagnosed lumbar disc syndrome and ordered an MRI of the appellant’s lumbar spine. Following an abnormal discography, he performed an IDET procedure at L4/5 and L5/S1.
Appellant sought temporary total disability benefits and payment of medical benefits from treatment performed by Dr. Hopkins and Dr. Chakales. Appellees controverted the claimant’s request for benefits, contending that appellant did not sustain a compensable injury. The administrative law judge (ALJ) found that appellant had failed to prove by a preponderance of the evidence that she was performing employment services at the time she sustained the injury, and her request for benefits was denied. The opinion of the ALJ was affirmed and adopted by the Commission.
Appellant argues four points on appeal. First, she argues that the Commission’s decision is not supported by substantial evidence. We will discuss appellant’s next three points together because they are essentially the same in that appellant contends that she was performing job-related duties at the time of her injury.
Our standard of review is well settled. We view the evidence in a light most favorable to the Commission’s decision and affirm if it is supported by substantial evidence. Deffenbaugh Indus. v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. ERC Contr. Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998).
A compensable injury is defined, in part, as an accidental injury arising out of and in the course of employment. Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 2003). A compensable injury does not include an injury “inflicted upon the employee at a time when employment services were not being performed.” Ark. Code Ann. § 11-9-102(4) (B) (iii). In Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998), we held that a claim was not compensable because employment services were not being performed when Harding tripped over a rolled-up carpet on her way to a designated smoking area in the work place. We rejected her argument that the break advanced her employer’s interest by allowing her to relax and thus to work more efficiently. We observed that an employee’s injury sustained en route to the break area would have been in the course of employment under prior law and the personal-comfort doctrine but that Act 796 of 1993 excluded from the definition of compensable injury any injury inflicted upon an employee while the worker was not performing employment services.
In Beaver v. Benton County, 66 Ark. App. 153, 991 S.W.2d 618 (1999), a child-support enforcement investigator was attending a training seminar in Fort Smith when she was injured. While at lunch, she slipped on a wet floor when she approached the buffet table. Although the employee was provided an allowance for the meal, she was not required to eat at a certain location or with her group. The lunch break was considered free time, and each person could do as he pleased. We affirmed the Commission’s denial of benefits based on the finding that appellant was not performing employment services at the time she was injured. We held that an employee is performing “employment services” when he is engaging in an activity that carried out an employer’s purpose or advanced the employer’s interest and that appellant was not advancing the employer’s interest. Id. at 157.
In Ray v. University of Arkansas, 66 Ark. App. 177, 990 S.W.2d 558 (1999), a cafeteria employee was injured during a paid fifteen-minute break when she fefl in a puddle of salad dressing as she was getting a snack from the cafeteria. The record showed that even though the employee was on break, if she was approached by a student, the worker was required to leave her break and address the student’s needs. The Commission found that appellant was not performing employment services at the time of the injury and denied benefits. We reversed the Commission’s decision because the employee was paid for her fifteen-minute break and was required to assist student diners if the need arose. Id. at 181.
In White v. Georgia Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999), the employee was required to monitor the machines he worked on during his smoke break because no relief worker was provided. He was injured when he fell during his smoke break. The Commission denied benefits, finding that the employee failed to demonstrate that he was performing employment services at the time of his injury. Finding White’s situation to be analogous to Ray, supra, the supreme court found that the employer gleaned a benefit from White in that he remained near his work station in order to monitor the progress of his machines and would immediately return to work if necessary.
Appellant argues that this case falls within the purview of Ray in that she was advancing her employer’s interest in the course of her employment and that she was not on a break at the time of her injury. In addition, she argues that by cleaning up the coffee after her fall, she was advancing the interest of her employer.
We believe this case is distinguishable from Ray. Here, appellant left the second floor and was proceeding to the fourth floor to get her lunch and personal effects. From there, her intention was to go to the cafeteria. Appellee gleaned no benefit from appellant going to the fourth floor to get her lunch. Her action was totally personal in nature and more in line with Beavers and Harding. Further, the fact that appellant cleaned up the spill after her fall could be considered performing employment services; however, this occurred after the fall and is of no consequence in determining whether she was performing employment services at the time of the fall.
Based on the foregoing, we hold that the Commission did not err in finding that appellant was not performing employment services that advanced her employer’s interest, either directly or indirectly, at the time of her injury. As a result, the Commission’s decision displays a substantial basis for the denial of benefits.
Affirmed.
Neal, J., agrees.
Pittman, J., concurs. | [
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Karen R. Baker, Judge.
A Washington County jury convicted appellant, Darrin Wayne Hawkins, of second-degree battery and sentenced him to seventy-two months’ imprisonment in the Arkansas Department of Correction. He raises one point on appeal, arguing that the trial court erred by failing to warn him sufficiendy of the dangers and disadvantages of waiving his right to counsel and proceeding at trial pro se. We agree and therefore reverse and remand.
Mr. Hawkins was charged in the First Division of the Fourth Judicial Circuit with battery in the second degree in violation of section 5-13-202 of the Arkansas Code Annotated. He was arraigned on those charges on September 29, 2003. On the day of arraignment, the public defender’s office was appointed to represent him. Soon thereafter, attorney Michael Dodson was assigned Mr. Hawkins’s case. Mr. Dodson represented Mr. Hawkins until mid-November, when Mr. Hawkins expressed his desire to represent himself. On November 26, 2003, the trial court addressed Mr. Hawkins’s wish to proceed without counsel in a motion hearing. In that motion hearing, the trial court acknowledged Mr. Hawkins’s intention to proceed pro se and allowed him to proceed, appointing Mr. Dodson as standby counsel to answer any question or advise Mr. Hawkins at his request. On December 1, 2003, Mr. Hawkins wrote a letter directly to the trial judge “releasing Mr. Dodson of his responsibility of representing [Hawkins], On December 9, 2003, Mr. Dodson filed a motion to withdraw in compliance with Mr. Hawkins’s wishes.
In Hatfield v. State, 346 Ark. 319, 57 S.W.3d 696 (2001), our supreme court addressed the issue of whether an appellant knowingly and intelligently waived his right to counsel by stating as follows:
[T]his court has long recognized the crucial aspect of informing an accused of his right to represent himself, along with the attendant risks. Furthermore, our court has held that the trial court maintains a weighty responsibility in determining whether an accused has knowingly and intelligently waived his right to counsel. Every reasonable presumption must be indulged against the waiver of fundamental constitutional rights, and the burden is upon the State to show that an accused voluntarily and intelligendy waived his fundamental right to the assistance of counsel. Determining whether an intelligent waiver of the right to counsel has been made depends in each case on the particular facts and circumstances, including the background, the experience, and the conduct of the accused.
A criminal defendant may invoke his right to defend himself pro se provided that (1) the request to waive the right to counsel is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct that would prevent the fair and orderly exposition of the issues. A specific warning of the dangers and disadvantages of self-representation, or a record showing that the defendant possessed such required knowledge from other sources, is required to establish the validity of a waiver. The “constitutional minimum” for determining whether a waiver was knowing and intelligent is that the accused be made sufficiendy aware of his right to have counsel present and of the possible consequences of a decision to forego the aid of counsel.
Id. at 325-26, 57 S.W.3d at 700-01 (citations omitted).
There is no question that Mr. Hawkins’s request to proceed pro se was unequivocal and timely asserted. Nor does it appear that Mr. Hawkins engaged in conduct that prevented the fair and orderly exposition of the issues in the case. We must therefore determine whether Mr. Hawkins knowingly and intelligently waived his right to counsel. If we find that Mr. Hawkins’s waiver was involuntary, we must also determine whether Mr. Dodson’s assistance as standby counsel rendered the involuntary waiver moot.
The assistance of standby counsel may rise to a level sufficient for our court to moot an assertion of involuntary waiver of right to counsel based on our determination that the appellant had counsel for his defense. See Bledsoe v. State, 337 Ark. 403, 989 S.W.2d 510 (1999). Whether the assistance rises to this level is a question that is answered by looking at the totality of the circum stances. See id. To moot an assertion of involuntary waiver, the assistance must be substantial, such that standby counsel was effectively conducting the defense. See id.
After applying the guidelines governing knowing and intelligent waiver to the facts and circumstances in Hatfield, supra, the Hatfield court determined that the trial judge failed to adequately advise Hatfield of the consequences of proceeding pro se. The court noted that the trial judge erred by failing to make even a limited inquiry into Hatfield’s understanding of the legal process, although the judge allowed standby counsel to remain in the case. However, the court held that deficiencies in the judge’s inquiry were rendered moot because standby counsel actively participated throughout the trial such that Hatfield waived his right to proceed pro se. See Hatfield v. State, supra.
Similarly, in Bledsoe, supra, our supreme court determined that there was no evidence of an inquiry by the trial court into Bledsoe’s waiver of the right to counsel, and that Bledsoe’s appointed standby counsel did not actively participate in his defense. Unlike Hatfield, however, Bledsoe was left to represent himself, and because Bledsoe’s appointed counsel did not actively represent him, the court determined that Bledsoe was denied his right to counsel. See Bledsoe v. State, supra.
While Mr. Bledsoe was informed several times about the requirement that he follow the rules and procedures of court, he was given no explanation as to the consequences of failing to comply with those rules, such as the inability to secure the admission or exclusion of evidence, or the failure to preserve arguments for appeal. There was simply no discussion about the substantive risks of proceeding without counsel. Furthermore, the reference to the State’s offer of a thirty-five-year sentence on a plea of guilty to the rape and burglary charges did not include a full disclosure about the range of penalties Mr. Bledsoe faced on any of the charges.
As in Bledsoe, in this case Mr. Hawkins was neither sufficiently advised of the consequences of proceeding pro se, nor did standby counsel actively participate in Mr. Hawkins’s defense so as to render deficiencies in the judge’s inquiry moot. As the following colloquy between Mr. Hawkins and the court at the November 26, 2003, hearing demonstrates, while the court made it clear that it discouraged Mr. Hawkins from proceeding pro se, the requisite inquiry and admonitions were lacking.
Appellant: I’d still like to go to — represent myself and to go to the law library.
The Court: Well, you have the right to represent yourself. I’d advise against it.
Appellant: Yes, sir.
The Court: It’s not a good idea, but... if you want to do that you have a right to do that.
Appellant: Yes, sir.
The Court: I’ll appoint Mr. Dodson as standby counsel and ... if you want some legal advice he will give it to you. So that’s fine, if that’s your request.
The trial court further tried to discourage Mr. Dodson from proceeding pro se at the December 12, 2003, hearing but once again the requisite inquiry and admonitions were lacking.
The Court: [A]s I have said in previous hearings, you have a right to represent yourself and I don’t think that’s a good idea. I have tried to discourage it and in fact, I’ve appointed Mr. Dodson as your standby counsel and he’s of course here present today. And if you choose to avail yourself of his services, and I recommend that you do so, he’s as I say, standing by.
Merely discouraging appellant from proceeding pro se did not adequately inform him of the risks attendant to pro se representation. Additionally, under the facts of this case, this failure is not rendered moot by the trial court’s appointment of Mr. Dodson as standby counsel.
We must determine whether the assistance of standby counsel was so substantial that the defendant is deemed to have had counsel for his defense, thereby mooting any assertion of involuntary waiver. See Calamese v. State, 276 Ark. 422, 635 S.W.2d 261 (1982). Whether or not such assistance rises to that level is a question that must be answered by looking at the totality of the circumstances. See Wicoff v. State, 321 Ark. 97, 900 S.W.2d 187 (1995). Before an assertion of involuntary waiver is considered, the totality of the circumstances must demonstrate that the assistance was such that standby counsel was effectively conducting the defense. See Calamese, supra.
In Calamese, supra, there was no evidence of any inquiry by the trial court into the defendant’s attempted waiver of counsel, but our supreme court determined that the defendant had been effectively represented at trial by the attorney appointed to assist her. The attorney “immediately assumed a fully active role as trial attorney, conducting the entire interrogation, cross-examination, making objections to evidence and exhibits, presenting a defense with numerous exhibits and four defense witnesses, including eliciting lengthy testimony from the defendant and making a forceful closing argument, all of which was done with evident familiarity.” Id. at 424, 635 S.W.2d at 262. Under those facts, the defendant was not left to represent herself at any stage of the proceedings, and she was not denied her right to counsel. Id.
Similarly, in Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996), no effective waiver was obtained when the defendant elected to proceed pro se and standby counsel was appointed to assist during trial. As in Calamese, our supreme court affirmed the conviction where, with the exception of the defendant’s cross-examination of the first State witness, standby counsel cross-examined each State witness, made objections during the State’s case, and presented a motion for directed verdict at the conclusion of the State’s case. Id. Further, standby counsel recalled the State’s first witness and examined him as well as the remaining six defense witnesses. Id. Counsel also made the closing argument. Id. Under such circumstances, the court held that the defendant was not denied his right to counsel because standby counsel not only advised the defendant but actively represented him during most of the proceeding, and the defendant effectively relinquished representation to his standby counsel early in the trial. Id.
No similar factual analogy is indicated by the abstract or record in this case. In fact, standby counsel, although present in the courtroom during the trial, did not participate in any part of appellant’s trial on December 17, 2003. Accordingly, we must reverse and remand.
Reversed and remanded.
Hart and Bird, JJ., agree. | [
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James R. Cooper, Judge.
The appellant, the Arkansas State Highway Commission, appeals from a judgment awarding the appellee, Lee Wilson and Company, Inc., $45,000.00 as compensation for a taking of a portion of its lands by eminent domain. On appeal, the appellant argues that the trial court erred in denying a motion to strike the testimony of the appellee’s value witness.
The appellant brought this action to condemn 1.16 acres in the southeast quadrant of the appellee’s property which is located at the intersection of Interstate 55 and Highway 181 in Mississippi County. The appellant also sought controlled access on 69 feet in the southwest quadrant and on 438 feet in the northeast quadrant which fronted Highway 181. The access control fence built on the northeast quadrant of the property reduced its previous highway frontage from 463 feet to a 25-foot access point. The appellee based its damages on this reduction of access.
At trial, George Lease testified on behalf of the appellee. Mr. Lease testified that of the 420 acres of land owned by the appellee only the 3.21 acres in the northeast quadrant which fronted Highway 181 had commercial value. He arrived at 3.21 acres by considering the 463 feet of frontage to a depth of 300 feet. Mr. Lease testified that in his opinion, based on comparable sales, the 3.21 acres had a value before the construction of the fence of $104,175.00, or approximately $32,000.00 per acre. He stated that with the fence in place the fair market value of the 3.21 acres would be $10,000.00, resulting in damages to the appellee in the amount of $94,175.00. He testified that he looked at the whole property. He stated that he did not appraise the rest of the property because he did not think those acres would have any commercial development possibilities. He stated the highest and best use of the remainder of the parcel was agricultural and that the fence would not affect the value of that land. The appellee owned approximately 3.16 acres of land in the southeast quadrant, 1.16 acres of which was condemned by the appellant. Mr. Lease testified that the remaining land in this quadrant was subject to flooding and that he did not consider it as commercially viable as the land across the highway.
Counsel for the appellant moved to strike Mr. Lease’s value testimony for failure to make a before and after appraisal of the appellee’s entire property and for his failure to consider the impact of the construction project on the value of the remaining lands. On denying the appellant’s motion, the trial court stated:
I’m going to deny the motion. It seems to me that to consider 420 acres would be a bit ridiculous in this situation. The only property we are talking about is the approximate four acres that were involved.
I’m going to allow your expert to testify as to the diminution of the 420 acres if that’s what you choose to do, and the jury — you can point out to the jury that their witness only testified to a certain portion of it.
It’s going to be my ruling that he was competent to testify and that you didn’t object to his expertise. That he did testify to the fair market value of the property and stated his reasons. And that’s sufficient. And that’s something the jury can weigh and assess, and I will allow each of you to argue to the jury and persuade the jury that the testimony for whichever point you are taking is either sufficient or insufficient. It would be a question of weight for the jury and not admissibility.
Thereafter, Mr. Bob Colford, a real estate appraiser for the appellant, testified that he considered roughly 425 acres for his appraisal. Of that acreage, he considered five acres to be commercial. He stated that three of the acres were in the northeast quadrant and the remaining two were in the southeast quadrant. He considered the rest of the parcel to be agricultural and valued it at $1,000.00 an acre. He testified that the before value of the commercial land was $25,000.00 an acre, although he agreed that Mr. Lease’s before value of $32,000 an acre was pretty accurate. In his opinion, the total value of the property before the taking was 420 acres of agricultural land at $1,000.00 an acre and five acres of commercial property at $25,000.00 an acre for a total value of $545,000.00. He testified that the five acres of commercial property had appreciated in value to $35,000.00 an acre after the construction. Therefore, in his opinion, the value of the property after the highway construction and taking was $594,850.00, which exceeded the before value. He stated that the excess in value represented benefits or enhancements to the property as a result of the construction of the highway project.
The appellant argues that the trial court erred in not striking Mr. Lease’s value testimony because he testified to the value of 3.21 acres in the northeast quadrant and made no appraisal of the remaining lands in the other quadrants, particularly the value of the 1.16 acres which was acquired by the appellant in the southeast quadrant. The appellant suggests that, by not appraising the land in the southeast quadrant, the appellee avoided having to consider enhancement to the property.
When the sovereign exercises its right to take a portion of a tract of land in eminent domain cases, the proper way to measure just compensation is by the difference in the fair market value of the entire tract immediately before the taking and the fair market value immediately after the taking. Property Owners Improvement Dist. v. Williford, 40 Ark. App. 172, 843 S.W.2d 862 (1992). We find Mr. Lease’s testimony consistent with this rule. In fact, the testimony of both expert witnesses was actually very similar. Mr. Lease testified that he considered 3.21 acres in the northeast quadrant of the parcel to be of commercial value. Mr. Colford also found the three acres in this quadrant to be of commercial value. They disagreed as to two acres in the southeast quadrant. In his opinion, Mr. Lease found this area did not have commercial value because it was subject to flooding. Mr. Colford disagreed and considered five acres in total to be commercially viable. However, both agreed that the remaining acreage was agricultural and that its value was unaffected by the highway project. The difference is that Mr. Colford calculated this agricultural land in his estimate thereby adding $420,000.00 (420 acres at $ 1,000.00) to his before and after value. Even if Mr. Lease had done the same, it would not have had an effect on his estimate of the appellee’s damages. We do not require testimony be given in exact mechanical fashion. Arkansas Louisiana Gas Co. v. James, 15 Ark. App. 184, 692 S.W.2d 761 (1985). A motion to strike is a matter largely within the sound discretion of the trial judge and we cannot hold that the trial court erred in refusing to strike Mr. Lease’s testimony. Property Owners Improvement Dist., supra.
The appellant also advances two other arguments. First, he argues that the jury instructions were confusing and misleading to the jury because, while the trial court refused to strike the testimony of the appellee’s expert, it instructed the jury to consider the fair market value of the entire 420 acres before and after the taking, considering the highway facility completed and permanently in place in accordance with the construction plans, to arrive at the amount of just compensation. We note that this argument has not been preserved for appeal because this issue was not presented or decided at the trial level and we do not consider issues raised for the first time on appeal. Webb v. Thomas, 310 Ark. 553, 837 S.W.2d 875 (1992). Furthermore, we find that the appellant suffered no prejudice since the trial court instructed the jury to determine the amount of just compensation by the method argued by the appellant. We will not reverse absent a showing of prejudice. Webb, supra.
He also argues that Mr. Lease’s value testimony was contrary to Ark. Code Ann. § 27-67-316(f) (1987), which directs the court or jury to consider any benefits to the remaining land arising from the location of the highway. The appellant asserts that this statute imposes an obligation on appraisers to do likewise. However, appellant is also raising this argument for the first time on appeal, and therefore, it will not be considered by the appellate court. Cox v. Bishop, 28 Ark. App. 210, 772 S.W.2d 358 (1989).
Affirmed.
Mayfield, J., dissents. | [
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John Mauzy Pittman, Judge.
Appellant was charged with J attempt to manufacture methamphetamine and possession of drug paraphernalia with intent to manufacture methamphetamine. After a jury trial, appellant was convicted of those offenses and sentenced to fifteen years in the Arkansas Department of Correction. On appeal, appellant argues that the trial court erred in denying his motion for a directed verdict; in denying his motion to suppress evidence seized pursuant to a warrant that, appellant asserts, did not authorize the nighttime search and was not supported by probable cause; in denying his motion to dismiss for lack of a speedy trial; and in denying his motion to dismiss counsel. We affirm.
We first address appellant’s argument that the trial court erred in denying his motion for a directed verdict. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Fields v. State, 349 Ark. 122, 76 S.W.3d 868 (2002). In reviewing a challenge to the sufficiency of the evidence, we will not second-guess credibility determinations made by the fact-finder. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). Instead, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id. We affirm the conviction if there is substantial evidence to support it. Hughes v. State, 74 Ark. App. 126, 46 S.W.3d 538 (2001). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty, without resorting to speculation or conjecture. Crutchfield v. State, 306 Ark. 97, 812 S.W.2d 459 (1991).
Appellant’s conviction was based on an accomplice’s testimony that he and appellant were engaged in manufacturing methamphetamine. The accomplice testified that he and appellant had an agreement to manufacture methamphetamine for sale and to split the proceeds. The accomplice stated that he did all the cooking, and that the appellant helped him acquire the ingredients and stood watch on the road during the manufacturing process to make sure no one came up. The accomplice’s testimony was corroborated by the presence of numerous precursor products and substances found in the search of appellant’s house, including a cellophane wrapper containing pseudoephedrine, a syringe, a glass pie plate, a glass coffee pot, a glass jar containing pseudoephedrine, a spoon, coffee filters containing residue, a spoon with pseu-doephedrine residue, a clear drinking glass with coffee filters, a plastic sandwich bag with talc powder, and a green-and-black compressed gas cylinder containing ammonia.
On appeal, appellant argues that this evidence is insufficient because the accomplice’s testimony was not credible. We do not agree. In a similar context where it was argued that an accomplice’s testimony given in exchange for leniency was not substantial evidence, we applied the longstanding rule that the determination of credibility issues is left to the trier of fact. Johnson v. State, 75 Ark. App. 81, 55 S.W.3d 298 (2001). The credibility of the accomplice in the present case was likewise a question for the trier of fact to resolve, and we hold that appellant’s conviction is supported by substantial evidence.
We next address appellant’s contention that the evidence obtained in the search of his house should be suppressed because the warrant did not authorize a nighttime search. Rule 13.2(c) of the Arkansas Rules of Criminal Procedure requires that a search warrant be executed between the hours of 6:00 a.m. and 8:00 p.m. unless the warrant authorizes a nighttime search. The officers’ application for a search warrant in this case specifically sought a nighttime warrant. The search warrant was executed at 8:46 p.m. The warrant provided, in pertinent part, that:
[A]s I am satisfied that there is probable cause to believe that the property so described is being concealed at the above described and that the foregoing grounds for application for issuance of a night time search warrant exists [sic].
COMMANDED; to search forthwith the (person) (place) (vehicle) named for the party specified, serving this warrant and making the search and if the property be found there to seize it, and prepare a written inventory of the property seized and return this warrant and bring the property as required by law.
The warrant was not a form with filled-in blanks or checked items, but was an individually-prepared document.
In Carpenter v. State, 36 Ark. App. 211, 821 S.W.2d 51 (1991), we held that a printed-form search warrant checking only the box indicating that there was reasonable cause to believe that the objects to be seized were in danger of imminent removal, but not the box authorizing a nighttime search, was insufficient either to authorize a nighttime search or to justify application of the good-faith exception in Leon v. State, 468 U.S. 897 (1984). The present case is distinguishable. Here, the affidavit stated facts tending to support an order authorizing the request to conduct the search at night, including statements that the house was equipped with cameras to detect the approach of police officers; that the house contained weapons, including a sawed-off shotgun; and that most of the drug manufacturing took place at night. Although the language of the warrant could have been plainer, the warrant was not a form conspicuously lacking a check mark authorizing a nighttime search, but was instead an individually-prepared document expressly stating that (1) a warrant for a nighttime search had been applied for; (2) grounds for a nighttime search existed; and (3) commanding that the search be conducted. Even assuming, without deciding, that this language was insufficient to constitute an unambiguous command to execute a nighttime search, we think that it was sufficient to justify the executing officers in the good-faith belief that they were authorized to do so. See Leon v. State, supra.
Appellant next contends that the trial court erred in issuing a search warrant at all. He argues that the affidavit in support of the warrant was insufficient to establish probable cause to believe that contraband would be found at appellant’s home because the affidavit lacked specific dates and was otherwise conclusory. We disagree. Probable cause cannot be quantified merely by counting the number of days between the occurrence of the facts supplied and the issuance of the affidavit; instead, time factors must be examined within the context of a specific case and the nature of the crime being investigated. Ilo v. State, 350 Ark. 138, 85 S.W.3d 542 (2002). Although it is reasonable to imply that probable cause dwindles rather quickly with the passage of time in cases where the affidavit recites a mere isolated violation, the passage of time becomes less significant where the affidavit recites facts indicating activity of a protracted and continuous nature, i.e., a course of conduct. Id. Here, the affidavit stated that a member of appellant’s family informed police officers that appellant was manufacturing methamphetamine at his home on a regular basis, and that this was reiterated on December 12, 2000, immediately before the warrant was issued. The affidavit also stated that the family member informed the affiant that materials used in the manufacture of methamphetamine were located on the appellant’s premises at that time. Under these circumstances, we cannot say that probable cause was lacking.
Resolution of appellant’s issues relating to speedy trial and the motion to dismiss counsel requires consideration of facts arising out of a pretrial hearing, where the following colloquy took place:
The Court: Now then, let’s talk about the trial then. Is this matter one that can be tried in a day?
[Prosecutor]: Yes.
The Court: Okay, then let’s try it on Thursday.
Mr Wilson [Appellant]: You Honor —
The Court: Mr. Wilson, we’ve discussed before that you have counsel and that your counsel can present matters to the court, that you do not communicate to the court but through your counsel.
[Appellant]: You Honor, my counsel will not make —
The Court: Mr. Wilson —
[Appellant]: — you aware of something that’s in the transcript where Mr. Rich lied on the stand in the probable cause hearing and it’s real relevant to the affidavit for the search warrant and —
The Court: Mr.Wilson, we’re going to — I’m going to give you the last time I’m going to talk to you about this.
[Appellant]: You honor, I have to defend myself.
The Court: No, sir, you have —
[Appellant]: If he won’t defend me I have to defend myself.
The Court: Take Mr. Wilson to jail.
[Appellant]: So I’m relieving him as my counsel —
The Court: Take Mr. Wilson to jail —
[Appellant]: —right now.
The Court: — right now. I don’t need his presence in this hearing anymore.
[Appellant] : Okay, but if you’re not going to hear my motion —
The Court: Take Mr. Wilson to the jad.
[Appellant]: — then I can’t —
The Court: I will continue to make my record outside of Mr. Wilson’s presence. Take him to the jail right now.
[Appellant] : Mr. Blair, you are no longer my lawyer.
The Court: Take Mr. Wilson to the jail.
[Appellant]: Have a trial without me.
After appellant had been taken to jail, appellant’s attorney requested that appellant be allowed to represent himself. The trial court denied this request, noting that appellant’s behavior throughout the pretrial proceedings had been so disruptive as to cast doubt on appellant’s capacity to present his own defense before a jury. Appellant’s attorney then requested that a mental examination of appellant be conducted to determine whether he was capable even of assisting in his own defense. The trial court granted the motion over the State’s objection.
Under Ark. R. Crim. P. 28.1, a defendant must be brought to trial within twelve months unless there are periods of delay that are excluded under Ark. R. Crim. P. 28.3. Gondolfi v. Clinger, 352 Ark. 156, 98 S.W.3d 812 (2003). A continuance that is requested by the defendant is an excludable period for speedy- trial purposes. Moody v. Arkansas County, 350 Ark. 176, 85 S.W.3d 534 (2002). In the present case, the only disputed excluded period was the period attributable to the request for a mental examination made by appellant’s court-appointed attorney after appellant purported to dismiss him immediately before being removed from the courtroom. Therefore, the speedy-trial question hinges on whether the trial court erred in denying appellant’s motion to dismiss his trial counsel. We hold that he did not.
Although the trial court granted the motion for a mental examination, the appellant refused to cooperate with the psychologist for “legal reasons” and was never evaluated. Nevertheless, we do not agree with appellant’s assertion that the trial court should have allowed him to dismiss his attorney and proceed pro se. The disruptive behavior described in the above-quoted colloquy was not an isolated event, nor was it limited to a single hearing. Our examination of the record reveals that, although the two trial judges involved showed an extraordinary degree of patience and forbearance, appellant’s demeanor before the court was characterized by consistent disrespect and disruption, interspersed with numerous motions to dismiss his attorney that were later rescinded. The constitutional right to counsel is a shield, not a sword, and a defendant may not manipulate this right for the purpose of delaying the trial or playing “cat-and-mouse” with the court. Brooks v. State, 36 Ark. App. 40, 819 S.W.2d 288 (1991). The right to counsel of one’s choice is not absolute and may not be used to frustrate the inherent power of the court to command an orderly, efficient, and effective administration of justice. Burns v. State, 300 Ark. 469, 780 S.W.2d 23 (1989). Once competent counsel is obtained, the request for a change in counsel must be considered in the context of the public’s interest in the prompt dispensation of justice. Id. There is no indication that appellant’s court-appointed counsel was not competent, and, on this record, we hold that the trial court did not err in denying appellant’s motion to dismiss counsel and that appellant was not denied his right to a speedy trial.
Affirmed.
Gladwin and Neal, JJ., agree.
Appellant’s argument regarding probable cause is limited to these specific points. He does not challenge, and consequently we need not decide, whether the many other facts stated in the affidavit were sufficient to justify the trial court’s separate finding that adequate grounds existed for conducting the search at night, rather than only in daylight hours. | [
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Larry Vaught, Judge.
In this case from Pope County, the trial court amended a divorce decree that it had entered approximately eleven months earlier. Appellant argues that the court lacked jurisdiction to modify the decree because more than ninety days had elapsed since its entry. We agree and reverse and remand with directions to vacate the amended decree.
Appellant and appellee had been married for eighteen years when appellant filed for divorce on August 22, 2002. No children were born of the marriage, and the sole matter at issue was the division of property. On October 7, 2002, the parties, who were both represented by counsel, met in open court and testified to the terms of a property-settlement agreement. The agreement divided approximately twenty-seven items of both real and personal property and provided that each party would pay one-half of the couple’s outstanding personal property taxes and one-half of their credit-card debt. Appellee testified that she was in agreement with the settlement “if it will be followed through,” and she stated that she felt like she had been treated fairly. On October 21, 2002, the trial court entered a decree incorporating the parties’ agreement.
Among the items that appellant was awarded in the decree were a 27-foot fifth-wheel travel trailer, a Harley Davidson motorcycle, two acres of land in Oklahoma, and a single lot of real estate in Florida. The fifth-wheel and the motorcycle were encumbered by debt; however, the decree made no provision for payment of the debt on those items. At some point following entry of the decree, appellee determined that appellant was not making payments on the motorcycle or the fifth-wheel. This caused her some concern because both items had been financed in her name. On January 30, 2003, she filed a petition to amend the decree to designate who would be responsible for the debt on the property awarded. Appellant responded that it was common practice for the party receiving the property to pay the debt on the property, and he said that he had paid off the motorcycle, a fact that was later confirmed by appellee. However, he had not paid off the fifth-wheel.
Thereafter, appellee amended her petition and went to trial on the claim that the decree should be set aside in its entirety for what she considered the following fraudulent acts by appellant: 1) his purchase of the fifth-wheel in her name and without her knowledge and consent; 2) his misrepresentation that the tracts of land in Oklahoma and Florida were gifts to him from relatives when in fact the land had been deeded to them both; 3) his purchase of a truck in her name without her knowledge; 4) his use of a forged power of attorney to obtain the title papers to the motorcycle after the divorce; 5) his obtaining two credit cards in her name. On September 16, 2003, which was approximately eleven months after entry of the original decree, the trial court entered an amended decree. The amended decree made no specific finding of fraud, but it did away with the parties’ agreed property settlement and provided that all but a few items were marital property to be sold to pay off the couple’s debts, with the excess, if any, to be divided equally between them. Appellant now appeals on the ground that the trial court did not have jurisdiction to amend the original decree more than ninety days after it was entered.
In order to vacate or modify a judgment or order more than ninety days after it has been entered, the trial court must determine that at least one of an enumerated list of circumstances in Ark. R. Civ. P. 60(c) (2004) exists. Grubbs v. Hall, 67 Ark. App. 329, 999 S.W.2d 693 (1999). Rule 60(c)(4) allows a trial court to vacate or modify a judgment after ninety days in the case of “misrepresentation or fraud (whether heretofore denominated intrinsic or extrinsic) by an adverse party.” Our courts have particularly noted that a divorce decree containing an integrated property-settlement agreement may not be judicially modified in the absence of fraudulent inducement in executing the agreement. See Helms v. Helms, 317 Ark. 143, 875 S.W.2d 849 (1994); Anding v. Anders, 249 Ark. 413, 459 S.W.2d 416 (1970). See also McGinnis v. McGinnis, 268 Ark. 889, 597 S.W.2d 831 (Ark. App. 1980) (recognizing that property-settlement agreements in divorce cases are highly favored under the law and, in the absence of fraud, they should not be modified by judicial action).
The elements of fraud are: (1) a false representation of a material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in reliance upon the representation; (4) justifiable reliance on the representation; (5) damage suffered as a result of the reliance. Riley v. Hoisington, 80 Ark. App. 346, 96 S.W.3d 743 (2003). The party seeking to set a judgment aside for fraud has the burden of proving fraud by clear, cogent, and convincing evidence or, as our courts have sometimes said, clear, strong, and satisfactory proof. See McAdams v. McAdams, 353 Ark. 494, 109 S.W.3d 649 (2003); Grubbs v. Hall, supra; Mow v. Mow, 66 Ark. App. 374, 990 S.W.2d 578 (1999); Ward v. McCord, 61 Ark. App. 271, 966 S.W.2d 925 (1998). We review a trial court’s decision under Rule 60 for an abuse of discretion. Fritzinger v. Beene, 80 Ark. App. 416, 97 S.W.3d 440 (2003); Grubbs v. Hall, supra.
Although the amended decree does not state as much, it is apparent that the trial court set the original decree aside based on the above listed acts of fraud by appellant. We conclude that the trial court abused its discretion in doing so because, even if we assume that appellant committed the acts in question, appellee has not shown that these acts induced her to enter into the property-settlement agreement.
Regarding appellant’s 1998 purchase of the fifth-wheel in appellee’s name, it is not clear from appellee’s testimony whether she was aware at the time of the 2002 property-settlement agreement that the trailer was financed in her name. Her testimony might be read to say that she did not find this out until after the divorce when she was going through some papers, but her proof on this point is far from clear. In any event, she does not say how the 1998 purchase induced her to enter into the 2002 settlement, nor does she say what she would have done differently had she known the truth. Her main complaint on this point seems to be that appellant did not make the payments on the trailer as she understood he would do. However, a broken promise is not fraud. See Evans Indus. Coatings v. Union County Chancery Court, 315 Ark. 728, 870 S.W.2d 701 (1994). Further, if the parties truly had an understanding that appellant would make the payments and he failed to do so, the issue would be better addressed by a contempt motion than a petition to set aside the decree.
As for appellant’s misrepresentation that the real property had been gifted to him when, in fact, it had been deeded to both him and appellee, appellee’s point, as we understand it, is that she believed appellant’s misrepresentation and thus did not try to assert her rightful interest in the properties. However, appellee’s claim of fraud falls short because, at several points in her testimony, she acknowledged that she knew prior to the divorce that the properties were given to both her and appellant. In the case of the Florida property, she was even aware that she and appellant had received it in exchange for a trailer that they gave appellant’s family. In light of that testimony, it cannot be said that appellee justifiably relied on appellant’s misrepresentations or that they induced her to enter into the property-settlement agreement.
The remaining three acts of fraud likewise were not shown to have affected appellee’s decision to enter into the settlement agreement. The pickup that appellant purchased in appellee’s name in 1997 was repossessed in 2000 and was not part of the property division. Appellant’s use of a power of attorney to obtain title to the motorcycle occurred after the decree was entered. Regarding the credit cards, the record does not reflect when appellant obtained the cards or whether appellee was aware of them prior to the divorce. Much like the fifth-wheel travel trailer, her issue seems to be that appellant did not pay one-half of the credit-card debt as he was ordered to do by the court. As we stated earlier, such a problem would be better handled by a contempt citation rather than setting aside the decree.
The evidence in this case gives every appearance that appellant has engaged in one or more acts of fraud during the course of the parties’ marriage. However, a divorce decree containing an integrated property-settlement agreement may not be judicially modified in the absence of fraudulent inducement in executing the agreement. See Helms v. Helms, supra; Anding v. Anders, supra; McGinnis v. McGinnis, supra. Because evidence of fraudulent inducement is lacking in this case, we hold that the trial court abused its discretion in setting aside the original decree more than ninety days after its entry. We therefore reverse and remand with directions to vacate the amended decree.
Our resolution of the case on this issue makes it unnecessary for us to address appellant’s second point, that the trial court erred in dividing his Veterans’ Administration disability benefits as marital property.
Reversed and remanded.
Gladwin and Robbins, JJ., agree. | [
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John B. Robbins, Judge.
Appellant Sheryll Denise Aswell J appeals the order of the Benton County Circuit Court that granted appellee Mickey Lane Aswell’s petition to hold her in contempt for failure to reimburse him for one-half of the college expenses incurred for their son, Chalin, and that granted attorney’s fees to appellee. We reverse and dismiss.
The parties divorced in January 1991. Appellant was awarded custody of the parties’ children, and appellee was ordered to pay child support. In the order settling ah of their domestic issues, which was approved by the trial court granting the divorce, the parties agreed to the following provision:
Husband shall pay half of the children’s college tuition and expenses, and Wife shall pay the other half of children’s college tuition and expenses.
By the summer of 2002, two of their three children had reached the age of majority. The oldest child, Myia, did not attend college. However, the middle child, Chalin, chose to attend Davidson College, beginning in the fall of2002. On May 12, 2003, after Chalin had completed his first year, appellee filed a petition seeking to hold appellant in contempt for her failure to reimburse him for her half of Chalin’s college expenses. Appellee did not disclose the amount he was demanding of appellant, $3,991.22, until May 25, 2003.
In her response to the petition, appellant asserted that it was inequitable for her to have to pay these expenses because she was financially unable to do so. The response further asserted that her inability to pay was complicated by (1) the special needs of the parties’ youngest and oldest children, both of whom she raised single handedly, (2) her own physical limitations, and (3) appellee choosing an expensive private college for their son instead of a less expensive in-state college or university.
At the August 18, 2003, hearing, appellant acknowledged that she voluntarily agreed to the paragraph dividing college expenses and was represented by counsel at the time they divorced in 1991. Appellant said that she thought it was “standard” for divorces and that if she did not have the money when the children entered college, the children could take advantage of scholarships, grants, and loans. Appellant said that if she were forced to pay one-half of the Davidson College expenses, it would compromise her ability to care for their eleven-year-old son remaining in her home, who had a congenital heart defect, Tourette’s syndrome, and seizures. Appellant testified that as a junior high school study-hall teacher she earned only $13,500 annually, an amount far less than appellee’s income.
Appellant added that she had surgery scheduled to take place in the near future to remove a rare non-malignant brain tumor. The brain tumor causes her to suffer fatigue, headaches, and dizziness. She expected that after surgery she would not be able to work for at least six to eight weeks and, if the surgery was successful, she would not suffer paralysis. Nevertheless, she would lose hearing in her left ear. While off work, her disability insurance policy would provide her income of only 60% of her usual pay.
Appellant said that her monthly expenses of over $1800 exceeded her income, which included the child support appellee was paying for the youngest child in her custody. Appellant explained that she used credit cards to finance the cost of their youngest child’s orthodontic braces, the remaining balance due on her car loan, medical charges, and other payments. Appellant said that she did not have the ability to pay the current request for college expenses or her half of the next year’s expected cost of over $35,000. Appellant testified, “I have no idea how I’m going to make it financially.”
In a proffer of testimony, which was not considered by the trial judge, appellant’s counsel stated that appellant would have testified that appellee focused all of his parental attention on Chalin, exercising no visitation and extending no interest in a relationship with the parties’ other two children. Further, appellant would have explained that their adult daughter Myia had been diagnosed manic-depressive and suicidal and had been hospitalized for several months. Consequently, appellant had been left to care for Myia’s four-year-old daughter (the parties’ granddaughter) and had been requested to be financially responsible to a limited extent with regard to this granddaughter.
Appellee testified that he and his son Chalin conferred about which college he should attend, but that Chalin made the final decision. Appellee testified that he and appellant had conversations about Chalin’s education costs prior to the fall of 2002, but he said that appellant refused to assist with those expenses. For his first year of attendance, Chalin was awarded a sizable grant and football scholarship that covered most of the cost. Appellee admitted that he did not provide any information to appellant about how much she owed until May 25, 2003, after Chalin completed his first year of college and after appellee had filed the petition for contempt. Whether Chalin would have a grant for his second year of college beginning in the fall of 2003 was uncertain, but appellee said that Chalin would not be playing football. Appellee anticipated that the cost for tuition, room, and board per year would be approximately $35,000 without financial aid. Appellee stated that his annual income for the previous three years varied, ranging from $44,800 to $65,700.
After considering the proof, the trial judge found that the parties freely, voluntarily, and intelligently entered into this college-expense agreement; that it was a reasonable and rational provision; and that appellant’s pending health problems and surgery were not a defense to the petition for contempt. The trial judge held appellant in contempt for failure to pay the amounts to which she agreed, giving her thirty days in which to pay appellee or face incarceration until that obligation was fulfilled. The trial judge also ordered appellant to pay $350 to appellee for his attorney’s fees. This appeal followed, and appellant asserts on appeal that the trial judge erred by holding her in contempt, by awarding an attorney’s fee in the absence of a request, by imposing incarceration if she did not pay the college expenses within thirty days, and by refusing to consider the additional responsibilities that the other children’s needs placed on her.
In cases involving child custody and related matters such as support, we review the case de novo, but we will not reverse a trial judge’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Deluca v. Stapleton, 79 Ark. App. 138, 84 S.W.3d 892 (2002). Specific to an appeal of a trial court’s finding of civil contempt, we will not reverse that finding unless it is against the preponderance of the evidence. See Brown v. Brown, 305 Ark. 493, 809 S.W.2d 808 (1991). Although there is evidence to support it, a finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been made. Smith v. Parker, 67 Ark. App. 221, 998 S.W.2d 1 (1999).
A parent can contract and bind himself to support a child past the age of majority, and such a contract is just as binding and enforceable as any other contract. Worthington v. Worthington, 207 Ark. 185, 179 S.W.2d 648 (1944). Disobedience of any valid order of a court having jurisdiction to enter it may constitute contempt, punishment for which is an inherent power of the court. Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761 (1991). However, inability to pay is a defense to a contempt citation, unless the inability is due to action or inaction on the part of the appellant. See Brown v. Brown, supra.
Appellant agrees that she did not pay her half of Chalin’s first year of college expenses, but she defended herself on the basis that she simply could not afford it and would be even less able to do so in the coming months. To conclude that this was willful disobedience on her part is clearly erroneous, clearly against a preponderance of the evidence, and therefore we reverse and dismiss the contempt citation.
A trial court’s power to institute civil contempt in order to acquire compliance with its orders is a long-standing rule of law, but it may not be exercised where the alleged contemnor is without the ability to comply. The practice of imprisoning people for debts was abolished by the Debtor’s Act of 1869. See Black’s Law Dictionary 412 (7th ed.1999) (defining “Debtor’s Act of 1869”). Moreover, our own constitution provides: “No person shall be imprisoned for debt in any civil action, or mense or final process, unless in cases of fraud.” Ark. Const. art. 2, § 16. Our supreme court has said, in the civil contempt context, that “lack of ability to pay is a complete defense against enforcing payment from the defendant by imprisonment.” Griffith v. Griffith, 225 Ark. 487, 490, 283 S.W.2d 340 (1955). The Griffith court further said: “[t]he court is empowered to punish the defendant by imprisonment for willful obstinacy where it shall appear that he had the means with which to comply with the decree, but it should not imprison him where he shows that he has not the pecuniary ability to comply with the decree and is in such ill health that he cannot earn enough money to do so.” Id. at 491, 283 S.W.2d at 342.
We hold that the trial judge herein erred because appellant demonstrated by more than a preponderance of the evidence that her failure to reimburse appellee for half of Chalin’s college expenses was not due to “willful obstinacy” but instead financial inability coupled with ill health. Further demonstrating the lack of willful disobedience, appellant was not provided information about the sum appellee was demanding until after he filed his motion for contempt, and the motion was heard within three months of his demand. In addition, on de novo review, we deem it relevant that appellant bore additional responsibilities that affected her ability to pay. In sum, the trial judge’s finding of contempt is clearly against the preponderance of the evidence. See also Feazell v. Feazell, 225 Ark. 611, 284 S.W.2d 117 (1955) (reversing contempt against divorced husband charged with con tempt of court for failing to comply with order directing payment of $50 monthly for support of son; a preponderance of the evidence established that divorced husband’s failure to pay arrear-age arose from his financial inability and was not in willful disobedience of court order and that therefore imprisonment of divorced husband was not justified).
Appellant argues additionally that her defense to the contempt petition was hampered by the trial court’s exclusion of her proffered testimony. In that proffer, appellant averred (1) that appellee did not participate whatsoever in the care of either of the other two children; (2) that appellee gave gifts and attention only to the middle child, Chalin; and (3) that appellant was the sole person left to assist in the care of their mentally ill daughter and minor granddaughter over whom she carried some financial responsibility. The trial judge ruled this particular line of questioning irrelevant and immaterial to the issue of whether appellant had willfully failed to pay her portion of college expenses. Evidentiary rulings are a matter of discretion, and are reviewed only for abuse of that discretion. See Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 222 (2001); Ozark Auto Transp., Inc. v. Starkey, 327 Ark. 227, 937 S.W.2d 175 (1997).
We agree that it was irrelevant to these proceedings whether appellant ever exercised visitation with the other two children or gave them any attention. However, relevant and material were the assertions that their daughter’s illness required appellant to take care of their granddaughter, including assuming some financial responsibilities. The trial judge’s exclusion of this evidence unfairly interfered with appellant’s defense in this matter and constituted an abuse of discretion.
Appellant also appeals the order to pay attorney’s fees to appellee, in light of the lack of a request for fees and a lack of any proof on the matter. Appellee responds that the trial court has the inherent power to grant these fees and that no abuse is demonstrated. Based upon our holding that the contempt citation was error, we consequently reverse the award of attorney’s fees. Even had the contempt citation been upheld, we would have reversed this award as an abuse of discretion. There was no request by appellee for such fees, there was no evidence regarding the amount of attorney fees incurred in filing and pursuing the contempt petition, and on the facts in this case, it is unduly harsh.
The order on appeal is reversed and dismissed.
Gladwin and Vaught, JJ., agree.
While these findings would clearly support an award of monetary damages, appel-lee’s petition only sought that appellant be held in contempt. | [
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Wendell L. Griffen, Judge.
Steve Grisham appeals from a forfeiture proceeding, arguing that the State failed to prove by a preponderance of the evidence that his 1993 Ford Pickup (VIN #1FTDF15Y4PNA28918) was used or intended to be used to transport, for the purpose of sale or receipt, a controlled substance. We agree; therefore, we reverse.
On June 26, 2003, police executed a search warrant on a Fort Smith residence. At the residence, police found evidence of three separate methamphetamine laboratories along with empty cans, empty bottles, and stained coffee filters. Police found several vehicles on the property, one of which was stolen. Among the vehicles was a 1993 Ford Pickup parked near the front door of the house registered to Grisham and Nan Bartimus, Grisham’s mother. In the truck, Narcotics Supervisor George Lawson Jr. found a yellow piece of paper listing eight names and varying dollar amounts beside each name. Lawson testified that “I’ve seen papers just like this in pretty much every place that we go into where there is actual distributing of drugs and it’s consistent with pruning out the narcotics to certain individuals and then writing down what they owe. I mean, it’s basically business accounting practices.” Grisham, representing himself at the September 10, 2003 hearing, testified that the piece of paper was an accounting of people he had lent money to over the years. Lawson was then recalled and testified that one of the persons on the list was arrested for narcotics. During the search of the residence, a man, later identified as Grisham, rode by the residence on a motorcycle and left. Grisham testified that he did not make an attempt to claim his truck that day because he felt it was best to stay away.
Five days after the search, Grisham contacted Lawson and asked about getting his truck back. Grisham told Lawson that he had taken the motorcycle and left his truck at the residence. Grisham also told Lawson that he knew that methamphetamine was produced at the residence and that anyone who walked onto the property would have known that the property was a methamphetamine laboratory simply because of the amount of chemicals on the property.
After hearing testimony, the court found that grounds for forfeiture existed under Ark. Code Ann. § 5-64-505 (Supp. 2003). This appeal followed.
Forfeiture actions are in rem civil proceedings, independent of any pending criminal charges. Burnett v. State, 51 Ark. App. 144, 912 S.W.2d 441 (1995). The burden ofproofinthe trial court is by a preponderance of evidence. Id. Because the forfeiture statute is penal in nature and because forfeitures are not favored under the law, the forfeiture statute is to be narrowly interpreted. Id. This court will reverse the findings of the trial court only if they are clearly against the preponderance of the evidence. Id.
Arkansas Code Annotated section 5-64-505 (a) (4) provides for the forfeiture of:
[a]ll conveyances, including aircraft, vehicles, or vessels, which are used, or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of property described in subdivision (a)(1) or (2) of this section [referring to controlled substances and other drag paraphernalia].
The statute requires proof that “the vehicle was used to transport the controlled substance ‘for the purpose of sale or receipt.’ ” Burnett, 51 Ark. App. at 145, 912 S.W.2d at 441-42.
In this case, a piece of paper (the drug dealer’s accounting method) was found in a wallet found in a truck on property known to be a methamphetamine lab. Our standard of review requires us to accept Lawson’s testimony and conclude that the piece of paper was “drug paraphernalia”; however, there is no proof that the truck was used to transport drugs. No one testified that the truck was used to transport any drugs. The trial court may have drawn this inference based on the minimal evidence presented, but the proof does not support such an inference. Because there was no evidence to show that the truck had been used or was intended for use in transporting drugs, we reverse.
Reversed.
Neal and Roaf, JJ., agree.
Grisham also makes a constitutional argument, stating that the forfeiture of the truck violates his Due Process rights. Grisham failed to make these arguments below, and we do not address arguments not raised at the trial court level. Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002). Even if we were to consider the argument, the Arkansas Supreme Court has already addressed the issue. See One 1982 Datsun 280ZX v. Bentley, 285 Ark. 121, 685 S.W.2d 498 (1985) (affirming the constitutionality of the forfeiture statute under article 2, section 22 of the Arkansas Constitution). See also Bennis v. Mitchell, 516 U.S. 442 (1996) (holding that the Michigan forfeiture statute was not a violation of the Fifth and Fourteenth Amendments of the United States Constitution).
Bartimus filed an Affidavit of No Interest in the vehicle. She is not a party to this appeal.
While other potential theories were alleged in the original complaint (e.g., the truck was given in exchange for drugs), the parties dispute the applicability of subsection (a)(4) only. | [
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James R. Cooper, Judge.
The parties in this domestic relations case were divorced on April 17, 1991. The decree granted the divorce to the appellee on her counterclaim and provided for an unequal division of the marital property. The appellant appeals from the chancellor’s unequal division of the marital property.
The basis for the appellant’s argument on appeal is that the trial court erred in making an unequal division of property. We agree, at least in part, and we determine that the case must be remanded.
Because the case at bar is an appeal from chancery, the whole case is open for review; therefore, all issues raised in the court below are before us for decision, and trial de novo on appeal in chancery involves determination of both fact questions and legal issues. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). The Ferguson court noted that:
The appellate court reviews both law and fact and, acting as judges of both law and fact as if no decision had been made in the trial court, sifts the evidence to determine what the finding of the chancellor should have been and renders a decree upon the record made in the trial court. The appellate court may always enter such judgment as the chancery court should have entered upon the undisputed facts in the record.
Id. at 564 (citations omitted).
During the marriage, the appellant’s parents gave the parties approximately five acres of land. The conveyance was by warranty deed and the grantees were designated to be:
Gordon Dale Bradford and Jean Bradford, husband and wife.
At trial, the appellant testified that he considered the house to be one-half his. The divorce decree provided that an unequal division of property in lieu of alimony was necessary for several reasons, and, in disposing of the five acres, provided that the appellee was to have possession of the parties’ real property and that the appellant was to execute a quitclaim deed to the appellee. The decree further provided that, if the appellee chose to sell the land, the appellant had the first right of refusal.
We must reverse this case because the chancellor exceeded his authority in awarding the real property held as a tenancy by the entirety to the appellee and in ordering the appellant to execute a deed to the appellee. Yancey v. Yancey, 234 Ark. 1046, 356 S.W.2d 649 (1962). Under Ark. Code Ann. § 9-12-317 (Repl. 1991), any property held as an estate by the entirety is automatically dissolved upon the entry of a final decree of divorce unless the court orders otherwise, and this statute requires that, in the division of such property, the parties are treated as tenants in common. Under our cases and those of the Arkansas Supreme Court, the chancellor had two options: he could have placed one of the parties in possession of the property, or he could have ordered the property sold and the proceeds divided equally. See Yancey, supra; Leonard v. Leonard, 22 Ark. App. 279, 739 S.W.2d 697 (1987).
On de novo review of a fully developed chancery record, where we can plainly see where the equities lie, we may enter the order which the chancellor should have entered. However, we decline to do so in this case as the chancellor’s division of the property, both personal and real, was stated to be in lieu of alimony and the marital residence and five acres is such a significant part of the marital assets that we think the interests of justice will be better served by remanding the case for a complete resolution of the property rights of these parties, including the alimony question, in a manner consistent with this opinion. In conducting such further proceedings, the chancellor will not be bound by prior determinations regarding the valuation of assets or the relative share of the marital estate to be awarded to each of the parties, and may permit the introduction of such additional evidence as is necessary for the just resolution of the issues.
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Danielson and Jennings, JJ., agree. | [
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Robert J. Gladwin, Judge.
Appellees George Carder and Sharon Carder brought suit to set aside a deed of cancellation issued by the Commissioner of State Lands and to quiet title to property they had purchased at a public sale. The Cleburne County Circuit Court held that the Commissioner had acted contrary to law in unilaterally canceling the limited-warranty deed granted to appellees and in ordering that the deed of cancellation be set aside. The trial court also found that appellant Bill’s Printing, Inc., was not a bona fide purchaser of the subject property. Appellants argue on appeal that (1) the trial court erred in setting aside the deed of cancellation and (2) the trial court erred in finding that Bill’s Printing was not a bona fide purchaser for value without notice. We disagree and affirm.
It was stipulated by the parties that C. Patrick Scholes and Laura Scholes owned a lot in Cleburne County that was properly certified delinquent by the Cleburne County Tax Collector to the State of Arkansas on June 30, 1997, for failure of the landowners to pay the taxes due on the land. On August 14, 1997, the Commissioner gave notice by certified mail to the record owners, C. Patrick and Laura Scholes, informing them that the taxes with respect to the subject property were delinquent and that the lands would be sold at a public sale to be conducted on August 26, 1999. It is stipulated that this notice, which was sent to the Scholeses’ last known address but was returned unclaimed, satisfied the requirements of Ark. Code Ann. § 26-37-301 (Repl. 1997).
The subject property was offered at a public sale by the office of the Commissioner of State Lands on August 26, 1999, and was purchased by appellees George and Sharon Carder. It was also stipulated by the parties that the public sale was conducted in compliance with the applicable law. On August 31, 1999, the Scholeses contacted the Commissioner’s office and requested information to redeem the land. The Commissioner’s office sent them a petition to redeem that contained all information required by law. The petition contained the information that a petition to redeem was valid for ninety days from the date printed, and that in the event the property was sold, they had thirty days from the date of sale to redeem the property. The petition did not notify them that the property had been sold on August 26, 1999, but listed the property as “subject to sale.”
On September 29, 1999, the Commissioner executed a limited-warranty deed conveying the property to appellees, which was duly recorded on October 7, 1999. Evidence was introduced to show that on October 13, 1999, Patrick Scholes had the petition to redeem notarized and mailed it to the Commissioner’s office with a check for the total amount needed to redeem the property. Thus, he paid the amount due within the ninety-day time frame allowed on property that has been certified to the State but not yet sold, but not within the thirty-day time frame that is required when the property has already been sold.
The Commissioner’s office returned Mr. ■ Scholes’s check along with notification that the property had been sold in August and that the thirty-day redemption period had expired. Scholes then contacted the Commissioner’s office for review of the sale. Upon review, the Commissioner’s office determined that an error had been made in that the office staff had failed to indicate on the petition to redeem that the land had in fact been sold. Although such an indication is not required by law, a representative from the Commissioner’s office testified that it was an unwritten office policy to handwrite the date of sale on petitions to redeem land that had already been sold at the time the petition was mailed out. Because this information was not included on the Scholeses’ petition, the Commissioner attempted to rectify the situation by executing a deed of cancellation on December 8, 1999, to set aside the limited-warranty deed issued to appellees and, on December 9, 1999, issuing a redemption deed in favor of the Scholeses.
On October 7, 2000, the Scholeses conveyed their interest in the subject property to Bill’s Printing, Inc., and this deed was recorded on October 18, 2000. On December 21, 2000, appellees George and Sharon Carder filed a complaint seeking to set aside the deed of cancellation issued by the Commissioner of State Lands and to quiet title to the subject property.
Following a bench trial, the circuit court of Cleburne County found that the sale of the property by the Commissioner was conducted in accordance with the statutory requirements and that no error existed that would justify the cancellation of the limited-warranty deed under the provisions of Ark. Code Ann. § 22-6-102 (Repl. 1996); that because more than thirty days had passed since the sale of the property without redemption as contemplated by the provisions of Ark. Code Ann. § 26-37-203(a) (Repl. 1997), the Commissioner acted contrary to law in unilaterally canceling the limited warranty deed granted to the Carders; that the deed of cancellation was therefore set aside, canceled, and held for naught; and that title to the subject property was quieted and confirmed in appellees. The court further found that the Carders’ deed, which was filed in the records of Cleburne County, was notice of their interest in the property and that Bill’s Printing, having been put on notice of such claim and having not taken any steps to inquire into the Carders’ interest in the property, was not a bona fide purchaser for value without notice.
The facts in this case are not in dispute; it is the trial judge’s interpretation of the law that is at issue. When a case is tried by a circuit court sitting without a jury, our inquiry on appeal is whether the factual findings of the court are clearly erroneous or clearly against the preponderance of the evidence. Springdale Winnelson Co. v. Rakes, 337 Ark. 154, 987 S.W.2d 690 (1999). However, a trial judge’s conclusion of law is given no deference on appeal; manifestly, the trial judge does not have a better opportunity to apply the law than does the appellate court. Carter v. Green, 67 Ark. App. 367, 1 S.W.3d 449 (1999). If the law has been erroneously applied and the appellant has suffered prejudice, the erroneous ruling is reversed. Id.
On appeal, appellants contend that the circuit court erred in setting aside the deed of cancellation and finding that the Commissioner of State Lands acted contrary to the law in unilaterally canceling the limited-warranty deed granted to appellees. Appellants cite several statutory provisions in support of their argument that the Commissioner acted within his authority when he canceled the limited-warranty deed and issued the redemption deed. Arkansas Code Annotated section 22-6-102 addresses the correction of errors growing out of erroneous sales:
(a) The Commissioner of State Lands shall have the power to correct errors that exist or may exist arising from the erroneous sale of lands belonging or formerly belonging to the state.
(e) In all cases where lands have been erroneously confirmed to the state and sold by it, twice sold by commissioners, sold by them when the lands were unconfirmed or misdescribed, in whole or in part, or when the sales are in any way irregular, informal, or incomplete, the Commissioner of State Lands shall issue a certificate or take steps to perfect the entry or to enable the purchasers, their heirs, or assigns to have refunded to them any money which they may have paid on any entry that is void or voidable.
(h) The Commissioner of State Lands, on production of proof satisfactory to him, may correct errors and put land in a situation to have deeds thereon made.
Ark. Code Ann. § 22-6-102(a), (e), and (h). Appellants also cite Ark. Code Ann. § 26-37-204(b) (Repl. 1997), which provides: “The Commissioner of State Lands shall have the authority to set aside any sale. In the event the Commissioner determines that a sale shall be set aside, the purchaser may be entitled to reimbursement of [monies] paid to the Commissioner of State Lands.” Appellants’ position is that these statutory provisions gave the Commissioner the authority to correct an error made by the State that caused the Scholeses to fail to timely redeem their property.
In Gilley v. Southern Corp., 194 Ark. 1134, 110 S.W.2d 509 (1937), the court noted that a taxpayer who had made an attempt, in good faith, to pay his taxes, or to redeem his land after failure to do so, was not to be defeated in that attempt by the mistake, negligence, or other fault on the part of the public officers in the discharge of their official duties. However, the court went on to hold that there was no error of the clerk where the failure to include on the redemption certificate all of the property involved was as obvious to the owner as it was to the clerk. The court noted that the slightest examination of the redemption certificate would have disclosed the omission of the sixty-acre tract, and held that the clerk should not be charged with this omission as a neglect of his official duty. The court further observed that, except for the omission, there was no mistake in the certificate issued and that, on the contrary, it was a correct and sufficient description of all the land that it described.
Vanderbilt v. Washington, 249 Ark. 1070, 463 S.W.2d 670 (1971), involved the sufficiency of a tender of delinquent taxes to redeem lands from a tax sale. There the tender of delinquent taxes was considered actual performance, but the landowner had actually paid the delinquent taxes and the collector misapplied the amount. In the case now before us, there was no timely attempt by the Scholeses to pay their delinquent taxes.
In Aldridge v. Tyrell, 301 Ark. 116, 782 S.W.2d 562 (1990), the supreme court again noted that an attempt by an owner, in good faith, to pay his taxes or to redeem his land after failure to do so, may not be defeated by the mistake, negligence, or other fault on the part of public officers in the discharge of their official duties. Tyrell went to the assessor’s office to ensure the change of ownership of two parcels on the tax records. The assessor mistak enly transferred only one of the parcels to reflect the change in ownership. Consequently, Tyrell thereafter received a tax statement and paid taxes on only one parcel. The parcel that the assessor had mistakenly not transferred was eventually sold at a tax sale. Tyrell was successful in having the limited-warranty deed that was issued pursuant to the tax sale set aside on the basis of the assessor’s mistake in not changing the ownership information on the property. The supreme court held that where Tyrell had made a good-faith attempt to ensure that the taxes on his property would be correctly hilled and paid and where the assessor admitted his office did not change the ownership of the property, Tyrefl’s good-faith attempt to pay his property taxes would not be defeated by the assessor’s mistake.
In Carter v. Green, 67 Ark. App. 367, 1 S.W.3d 449 (1999),we noted that the Commissioner had the authority to promulgate rules and regulations to further the intent of the Acts governing tax-forfeiture sales in holding that although Arkansas law at the time did not authorize the conveyance of property to unincorporated organizations, the sale was otherwise valid, and that the chancellor was correct in finding that the Commissioner was acting within the scope of his authority to issue correction deeds conveying the property to the trustees of an unincorporated association. In Carter we were again dealing with a mistake made by the Commissioner’s office, specifically, naming the church, an unincorporated organization, as grantee instead of naming the trustees of the church as the grantees.
There were no irregularities or errors in the notice mailed to the Scholeses or in the public sale of the property. There was no erroneous action committed by the State that caused the Scholeses to fail to timely redeem their property. The “error” complained of by appellants and relied upon by the Commissioner in setting aside the limited-warranty deed was the omission of certain information that the State was not even required to provide to the Scholeses. The statutory provisions that give the Commissioner authority to correct errors contemplate erroneous, irregular, informal, or incomplete sales. The failure of the Commissioner’s office to handwrite, on a petition to redeem, additional information that is not required by law or a promulgated office procedure does not cause an otherwise proper sale to be erroneous, irregular, informal, or incomplete. We agree with the trial court that the sale of the property by the Commissioner of State Lands was conducted in accordance with the requirements of Arkansas law and that no error existed that would justify the cancellation of the limited-warranty deed.
Appellants also argue that the trial court erred in finding that appellant Bill’s Printing, Inc., was not a bona fide purchaser for value, reasoning that Bill’s Printing relied in good faith on the deed of cancellation and the redemption deed as having removed any superior claim to the property. We disagree.
Arkansas Code Annotated section 14-15-404 (Repl. 1998) addresses the effect of recording instruments affecting title to property:
(a) Every deed, bond, or instrument of writing affecting the title, in law or equity, to any real or personal property, within this state which is, or may be required by law to be acknowledged or proved and recorded shall be constructive notice to all persons from the time the instrument is filed for record in the office of the recorder of the proper county.
(b) No deed, bond, or instrument of writing for the conveyance of any real estate, or by which the title thereto may be affected in law or equity, made or executed after December 21, 1846, shall be good or valid against a subsequent purchaser of the real estate for a valuable consideration without actual notice thereof or against any creditor of the person executing such an instrument obtaining a judgment or decree which by law may be a lien upon the real estate unless the deed, bond, or instrument, duly executed and acknowledged or proved as required by law, is filed for record in the office of the clerk and ex officio recorder of the county where the real estate is situated.
In Massey v. Wynne, 302 Ark. 589, 791 S.W.2d 368 (1990), our supreme court noted that recordation of an instrument that affects title to real property is constructive notice of that interest to all persons from the time the instrument is filed, and that a subsequent purchaser will be deemed to have actual notice of a prior interest in the property if he is aware of such facts and circumstances as would put a man of ordinary intelligence and prudence on such inquiry that, if diligently pursued, would lead to knowledge of those prior interests. Here the Carders’ limited-warranty deed was properly recorded and became part of the chain of title, thus putting Bill’s Printing on constructive notice of their interest in the property. Additionally, the combined presence of a tax lien, the Carders’ deed, a deed of cancellation, and a redemption deed in the chain of title constituted “such facts and circumstances as would put a man of ordinary intelligence and prudence on such inquiry [that], if diligently pursued, would lead to knowledge of his rights.” Bowen v. Perryman, 256 Ark. 174, 180, 506 S.W.2d 543, 547 (1974).
The trial court was not clearly erroneous in finding that appellees’ limited-warranty deed, which was filed in Cleburne County on October 7, 1999, was notice of their interest in the property and that appellant Bill’s Printing, Inc., having been put on notice of such claim and having not taken any steps to inquire into appellees’ interest in the property, was not a bona-fide purchaser for value without notice. Accordingly, we affirm.
Affirmed.
Robbins and Neal, JJ., agree. | [
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John B. Robbins, Judge.
This appeal is brought from a circuit court order that canceled a $150,000 promissory note and mortgage executed by appellees Al and Patricia Hopkins in favor of appellant NationsBanc, and further awarded damages, prejudgment interest, and attorney fees to Al and Patricia Hopkins resulting from NationsBanc’s failure to satisfy several of the couple’s prior mortgages. We affirm the damage awards to Al and Patricia Hopkins in the amounts of $300,000 and $76,423.61, respectively, but we reverse the cancellation of the $150,000 mortgage and the award of prejudgment interest and attorney fees.
Al and Patricia Hopkins were divorced in 1998. However, during the course of their marriage, they executed numerous promissory notes for both business and personal reasons, which were secured by mortgages on their home property, referred to in the briefs as Lots 6 and 7, and the surrounding acreage, Tract 1. Between 1979 and 1995, the Hopkinses executed eight mortgages totaling nearly $600,000. These mortgages were executed in favor of Peoples Bank, Worthen Bank, and Boatmen’s Bank, all of which were predecessors of appellant NationsBanc. On February 9, 1996, the Hopkinses executed yet another mortgage on Lots 6 and 7, this one securing a note in the amount of $150,000. This note had not yet been paid in full when the Hopkinses separated in February of 1997.
After Mrs. Hopkins filed a complaint for divorce, the two began working out arrangements for a property settlement agreement. It was agreed that Mr. Hopkins would receive Lots 6 and 7 and Tract 1. However, Mrs. Hopkins insisted that he refinance the property so that she would no longer be liable on the $150,000 mortgage note to NationsBanc. In March or April of 1998, Mr. Hopkins spoke with Ward Ramsay, a friend who was a former banker, and asked Ramsay if he would loan him the money to pay off the NationsBanc note. Ramsay said he would loan Hopkins up to $150,000 if he could get a clear first mortgage on the property. During this same time, Mr. Hopkins also spoke with James Biggers of River Valley Bank (RVB) about obtaining financing. Biggers testified that he was willing to loan Hopkins $150,000 if RVB could get a clear first mortgage on the property.
Upon receiving these offers, Mr. Hopkins began contacting NationsBanc to determine the amount of the payoff on the loan. He also contacted Alfred Vance of Vance Title Company to obtain a title policy. During the course of checking the title, Vance discovered that the prior mortgages in favor of NationsBanc’s predecessors had not been released, even though they had been paid in full. Vance made several attempts, as did Hopkins and Ramsay, to call NationsBanc and determine whether NationsBanc would release the prior mortgages and provide the payoff on the current mortgage. However, they received no information from NationsBanc.
Meanwhile, on July 7, 1998, the Hopkinses signed a property settlement agreement. It provided that Mr. Hopkins would have sole ownership of Lots 6 and 7 and Tract 1, which, according to later expert testimony, were valued at $300,000. Mr. Hopkins promised that within ninety days he would refinance the debt on the property and retire the current debt in full. The agreement further provided that, if Mr. Hopkins was in arrears more than 120 days in paying any installment due on the mortgage note secured by the property, whether before or after refinancing, the property would immediately revert to Mrs. Hopkins. The agreement was formally executed on August 13, 1998, the same day the divorce decree was entered.
Following entry of the decree, Hopkins, Ramsay, and Vance continued their efforts to obtain a release of the prior mortgages. On September 15, 1998, Vance wrote to NationsBanc specifically requesting that the prior mortgages be released. A similar letter followed on October 6, 1998. Mr. Hopkins also sent Nation-sBanc correspondence on October 7, 1998, regarding obtaining a release of the mortgages. However, NationsBanc made no effort to release the mortgages or explain why it would not do so.
During this time period, from July to October 1998, no payments were being made to NationsBanc on the $150,000 note. As a result, on November 4, 1998, NationsBanc filed a foreclosure action, alleging that payments were in arrears and seeking $146,264.51 due on the note. Both Mr. and Mrs. Hopkins filed a counterclaim against NationsBanc, asserting that they had been damaged by the bank’s refusal to release the prior mortgages. Their claim was based primarily on Ark. Code Ann. § 18-40-104 (Supp. 2001), which imposes a penalty on a mortgagee who refuses to record the satisfaction of a mortgage. The statute reads, in pertinent part:
(a) If any mortgagee, or his executor, administrator, or assignee, shall receive full satisfaction for the amount due on any mortgage, then, at the request of the person making satisfaction, the mortgagee shall acknowledge satisfaction thereof on the margin of the record in which the mortgage is recorded.
(b) Acknowledgment of satisfaction, made as stated in subsection (a) of this section, shall have the effect to release the mortgage, bar all actions brought thereon, and revest in the mortgagor or his legal representatives all title to the mortgaged property.
(c) If any person receiving satisfaction does not, within sixty (60) days after being requested, acknowledge satisfaction as stated in subsection (a) of this section, he shall forfeit to the party aggrieved any sum not exceeding the amount of the mortgage money, to be recovered by a civil action in any court of competent jurisdiction.
Mr. Hopkins alleged that NationsBanc’s wrongful refusal to release the prior mortgages created a cloud on the title of Lots 6 and 7 and Tract 1, rendering him unable to obtain the financing that had been promised by Ramsay and Biggers. As a result, he claimed, he was unable to comply with the property settlement agreement and lost his used-car business, Dealers X-Change. Mrs. Hopkins alleged that Mr. Hopkins’s inability to comply with the property settlement agreement in various respects caused her to expend money that she would not have spent if he had complied.
Following a trial, the circuit judge found that NationsBanc had not complied with the statute, which caused the Hopkinses to suffer damages. The court canceled the current $150,000 note and mortgage, along with the interest, attorney fees, and penalties owing thereon, and found that Mr. Hopkins had suffered “additional damages to his business and to the real estate,” for which he was awarded $300,000, together with prejudgment interest and an attorney fee of one-third of that amount. The court further found that Mrs. Hopkins had suffered damages of $76,423.21, an amount she would have received if Mr. Hopkins had been able to perform the property settlement agreement. She too was awarded prejudgment interest and an attorney fee of one-third of that amount. NationsBanc appeals from that judgment and argues that the trial court erred in the cancellation of the mortgage, the award of damages, and the award of prejudgment interest and attorney fees. It also argues that the court erred in considering the testimony of Mr. Hopkins’s expert witness, CPA Owen Johnson.
We first address the court’s cancellation of the $150,000 mortgage. Our reading of section 18-40-104 does not reveal any basis for the cancellation of a mortgage on which amounts are still due and owing. The statute requires that, if a mortgagee “shall receive full satisfaction for the amount due on any mortgage,” he must, at the request of the person making satisfac tion, acknowledge satisfaction of the mortgage in the margin of the record in which the mortgage was recorded. If satisfaction is not acknowledged within sixty days after it is requested, the mortgagee “shall forfeit to the party aggrieved any sum not exceeding the amount of the mortgage money.” Ark. Code Ann. § 18-40-104(c). This statute is penal in nature and must be strictly construed. Reed v. Frauenthal, 133 Ark. 544, 202 S.W. 700 (1918). It is apparent that it is intended to serve as a penalty against a mortgagee who fails to acknowledge satisfaction of a mortgage once it has in fact been satisfied. The $150,000 mortgage had not been satisfied but still secured approximately $146,000 in principal debt. Therefore, the court had no authority under the statute to cancel the mortgage.
Mr. Hopkins argues that the cancellation of the mortgage in fact amounted to an award of damages as evidenced by the court’s language in the decree that the note and mortgage were “canceled, forfeited, and set off.” As a general rule, judgments are construed like any other instrument; the determinative factor is the intention of the court, as gathered from the judgment itself and the record. Fox v. Fox, 68 Ark. App. 281, 7 S.W.3d 339 (1999). The language used by the court does not necessarily indicate the court’s intention to cancel the mortgage in lieu of an equivalent damage award. In fact, the use of the word “forfeit” indicates that the court was attempting to apply the penalty provision of section 18-40-104. We therefore decline to adopt Mr. Hopkins’s interpretation, and we hold that the trial court erred in canceling the mortgage.
Next, we consider the award of $300,000 in damages to Mr. Hopkins. In doing so, we set out the following facts concerning the demise of Mr. Hopkins’s business, Dealers X-Change, Inc. The business began to suffer sometime in 1997. It had a $450,000 line of credit at Simmons First Bank, and in November of 1997, Gene Simmons, the bank’s president, revamped the floor-plan agreement based on his concern that the car lot’s inventory was not being turned over quickly enough. Simmons froze the floor plan, which meant that Dealers could acquire no additional inventory, and he instituted a plan by which Dealers would reduce the current balance of approximately $400,000 to $150,000 through the sale of autos or other assets, with minimum payments of $25,000 per month. By March 31, 1998, the debt had been reduced to $267,000. However, Mr. Hopkins testified that, as a result of NationsBanc’s failure to release the prior mortgages, he was unable to obtain new financing to reinvigorate the business, which was ultimately lost to creditors in December of 1999. Expert testimony showed that, as of March 1998, the business had been worth $300,000, but it was worth nothing by December of 1999. James Biggers of River Valley Bank testified that he would have provided financing to Mr. Hopkins and that new financing would have helped Mr. Hopkins stay in business.
NationsBanc argues that its failure to release the mortgages did not cause Mr. Hopkins’s damages. In reviewing a bench trial, this court will not set aside the findings of fact by a circuit judge unless they are clearly erroneous. Ark. R. Civ. P. 52(a); Lee v. Daniel, 350 Ark. 466, 91 S.W.3d 464 (2002). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Lee v. Daniel, supra. This court gives due deference to the superior position of the trial judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Id. Further, it is within the province of the trier of fact to resolve conflicting testimony. Id.
NationsBanc offers various reasons in support of its argument that the failure to release the mortgages did not cause damage to Mr. Hopkins, including that Mr. Hopkins’s business was already in such bad condition that refinancing could not have saved it and that Hopkins was a stockholder in Dealers X-Change and cannot claim its damages as his own. We do not see in the record that this last argument was made below; if it was made, it was not ruled upon. Therefore, we will not address it. See Webb v. Brown, 350 Ark. 254, 85 S.W.3d 885 (2002); Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987).
As for the other arguments, we begin by observing that Ark. Code Ann. § 18-40-104 permitted the trial court to impose damages of approximately $600,000, which represented the amount of the mortgages that had been paid but not released by NationsBanc. As we pointed out earlier, the statute is penal in nature, and it contains no express requirement that the amount awarded under it bear a relation to damages actually caused to the aggrieved party. However, one case has held that in order for the penalty to be imposed, an actual loss must be suffered. See Price v. Center, 200 Ark. 19, 138 S.W.2d 391 (1940). There is no question that Mr. Hopkins suffered an actual loss in this case in the form of a lost opportunity to obtain financing that would have allowed him to comply with the property settlement agreement and breathe new life into his business. Therefore, the court’s award was proper under the statute.
However, even if we were to read a causation requirement into the statute, we cannot say that the trial court’s finding that NationsBanc caused Mr. Hopkins to suffer $300,000 in damages is clearly erroneous. The loss of the business alone — a loss that Mr. Hopkins’s expert calculated to be $300,000 — would justify the award. The fact that the business had been experiencing trouble or that the financing might not have generated a large amount of cash does not render the court’s finding erroneous. As of March 1998, the business had made considerable progress in debt reduction. Further, the refinancing that Mr. Hopkins hoped to obtain from James Biggers would have helped the business, according to Biggers. In light of these considerations, we uphold the $300,000 award to Mr. Hopkins.
Next, we review the award of $76,423.21 to Mrs. Hopkins. The award was based on her testimony that she incurred the following expenses when Mr. Hopkins was unable to comply with the property settlement agreement: (1) $7,854 in interest on other real property; (2) the $5,500 value of her son Michael’s four-wheeler and trailer, which she had not received; (3) $25,000 in cash, which Mr. Hopkins was supposed to pay in lieu of his being relieved of certain debts; (4) the loss of a sale of other real property, which was later sold for $57,900 less (making her one-half interest in the loss $28,950); (5) $4,458 in Michael’s college expenses; and (6) $7,659 in life insurance premiums. NationsBanc argues that the award of $76,423.21 to Mrs. Hopkins is inconsistent with the trial court’s finding that Mr. Hopkins suffered $300,000 in damages because her damages represent an amount that he owed her under the property settlement agreement; therefore, to entitle Mrs. Hopkins to an award, Mr. Hopkins would had to have suffered more than $300,000 in damages. While we understand NationsBanc’s argument that the court has in effect paid Mrs. Hopkins a debt that was owed to her by Mr. Hopkins, we disagree that the award is incompatible with the trial court’s damage award to Mr. Hopkins. As we pointed out earlier, under section 18-40-104, approximately $600,000 could have been awarded against NationsBanc for its failure to release the prior mortgages. It is therefore possible to award a total amount of damages to both parties greater than $300,000. Consequently, we affirm the damage award to Mrs. Hopkins.
Before leaving the damages issues, we address NationsBanc’s argument that it was not required to release the prior mortgages because all the mortgages contained “future advance” or “other debt” clauses. NationsBanc claims that, as a result of these clauses, the prior mortgages secured not only the particular debt to which they applied but all future debt owed by the Hopkinses to Nation-sBanc; therefore, as long as the Hopkinses were indebted to the bank in any amount, the mortgages were not satisfied.
NationsBanc does not cite a single case in support of its argument. Where an argument is not properly developed on appeal and not supported by convincing argument or authority, we will not address it. See Spears v. Spears, 339 Ark. 162, 3 S.W.3d 691 (1999). In any event, each of the prior mortgages was a separate, free-standing transaction and not an extension of a prior mortgage or an advance. There is nothing to clearly indicate that these mortgages would cover future, unrelated indebtedness. Further, we conclude that NationsBanc has waived this argument. Waiver is the voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he shall forever be deprived of its benefits. Continental Ins. Co. v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978). It may occur when one, with full knowledge of material facts, does something which is inconsistent with the right or his intention to rely upon the right. Id. The relinquishment of the right must be intentional. Id. During the time that Mr. Hopkins and his agents were attempting to get the prior mortgages released, NationsBanc never explained that its failure to release the mortgages was based on these clauses. In fact, it offered no explanation at all. Further, in the October 6, 1998, letter written to NationsBanc by Alfred Vance, Vance asked the bank to send a statement that, when Hopkins paid off the current note, NationsBanc would release the mortgages ■ — ■ a solution that would have been consistent with the application of the clauses. NationsBanc never responded. Finally, NationsBanc actually released the mortgages in February 1999, an action inconsistent with the argument it now makes.
We turn now to the evidentiary issue concerning Mr. Hopkins’s expert witness, CPA Owen T. Johnson. The controversy surrounds Johnson’s valuation of Mr. Hopkins’s business, at $300,000. Johnson reached this figure by viewing Mr. Hopkins’s handwritten statement of his assets and liabilities, which showed a net worth of $234,989. He then logged onto a web site that contained sale prices of used car dealerships. He used those sales prices to calculate a shareholder equity ratio of 3.4:1, multiplied that factor times the business’s net worth of $234,989, deducted the business’s liabilities, and arrived at approximately $300,000. At trial, NationsBanc argues that the methods Johnson used to arrive at his valuation were questionable and moved to strike his testimony. The judge denied the motion but said he would consider NationsBanc arguments in weighing the credibility of Johnson’s opinion.
On appeal, NationsBanc argues that Johnson used only Hopkins’s unsupported handwritten statement as a starting point for his analysis, did not have enough information to use the approaches he normally employed in valuing a business, and based his valuation on sales of auto dealerships that were not at all comparable to Hopkins’s dealership. A trial court’s decision on the admissibility of expert testimony will not be reversed absent an abuse of discretion. Lee v. Daniel, supra. Further, the strength or weakness of an expert’s testimony goes toward the weight and credibility to give the testimony and not toward its admissibility. See generally Wood v. State, 75 Ark. App. 22, 53 S.W.3d 56 (2001). The trial judge said he would consider NationsBanc’s arguments in assessing Johnson’s credibility. In light of that fact, and in light of the fact that no other expert testimony was presented on this matter, and that Johnson’s valuation was reasonable in light of the $234,989 net worth of the business (which the trial court could have found credible), we cannot say that the court abused its discretion in failing to strike the testimony.
NationsBanc argues next that the trial court erred in awarding prejudgment interest. To support an award of prejudgment interest, damages should be reasonably ascertainable both as to time and amount. Dugal Logging, Inc. v. Arkansas Pulpwood, Inc., 66 Ark. App. 22, 988 S.W.2d 25 (1999). If a method exists for fixing the exact value of a cause of action at the time of the occurrence of the event that gives rise to the cause of action, prejudgment interest should be awarded. Id. Put another way, where the amount of damages is definitely ascertainable by mathematical computation or if the evidence furnishes data that make it possible to compute the amount without reliance on opinion or discretion, prejudgment interest should be awarded. Id.
NationsBanc argues that the damages awarded in this case were not capable of being fixed at the time of the occurrence of the event that gave rise to the cause of action. We agree. The damages arose from Mr. Hopkins’s inability to comply with the property settlement agreement, which consequently caused damage to his realty and business interests. The value of those interests only became clear after presentation of expert valuation testimony at trial. Therefore, it cannot be said that, prior to that point, they were reasonably ascertainable as to time and amount. See generally Woodline Motor Freight v. Troutman Oil Co., 327 Ark. 448, 938 S.W.2d 565 (1997). The prejudgment interest award is therefore reversed.
As for the attorney fee award, the court entered the award based on Ark. Code Ann. § 16-22-308 (Repl. 1999), which reads:
In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor ór services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs.
In its decree, the trial court stated that NationsBanc had negligently failed to perform its statutory and contractual duties, apparently finding that the Hopkins’s claims sounded, at least in part, in contract. However, an award of attorney’s fees under section 16-22-308 is proper only when the action is based primarily in contract. Reed v. Smith Steel, 77 Ark. App. 110, 78 S.W.3d 118 (2002). We do not view this case as one that is primarily based in contract; its true nature is an action for violation of a statute and possibly neghgence. Neither of these causes of action support an attorney fee award under section 16-22-308. We therefore reverse on this point.
Affirmed in part; reversed in part.
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Karen R. Baker, Judge.
Appellee was employed by appellant Jim Walter Homes from 1980 until he sustained a compensable injury to his back on October 3, 1983. He was injured while moving particle board that was over his head; he reached, bent back too far, and experienced stabbing pain in his back and down his left leg.
Three hearings were conducted on this claim. Prior to the hearing that is the subject of this appeal, the first of these hearings was conducted on April 22, 1985, at which time the issue was appellee’s entitlement to continued temporary total-disability-benefits subsequent to February 26, 1985, or whether appellee had reached the end of his healing period. During the April 22, 1985, hearing, appellee presented testimony regarding his continued complaints of pain attributable to the compensable injury, medication taken relative to his symptoms and complaints, and his inability to engage in gainful employment as a result of his injury. Appellee’s principal treating physician was Dr. John Lohstoeter, an orthopedic physician. In addition to Dr. Lohstoeter, appellee was seen and/or treated by Dr. Alfred Kahn, a diagnostic internist; Dr. Carlos Arazo, a neuropathologist; and Dr. Cagle Harrendorf, a neuropsychiatrist. Dr. Lohstoeter opined that the appellee’s preexisting osteoarthritis was asymptomatic prior to the October 3, 1983, compensable injury and noted some nerve root irritation and some abnormal change stemming from the lumbar disc were present at L4-5 and SI elements.
On March 24, 1988, a second hearing was conducted on the issue of appellee’s entitlement to permanent total disability benefits. At this hearing, it was determined that while appellee had not undergone surgery relative to his October 3, 1983 compensable injury, he had been hospitalized on six different occasions for treatment for his injury. He had continued treatment with Dr. Lohstoeter, who noted that while appellee had many inflammatory changes, it was his opinion that the cause of the injury was the same, and as such, it was a post-traumatic or post-injury syndrome of inflammation. During the course of the March 24, 1988 hearing, appellee testified regarding limitations on his physical activities, which included standing, lifting, bending and walking. He attributed these limitations to his compensable injury. Specifically, he attributed the limitations to the constant pain he experienced as a result of the injury. He was found to have been permanently and totally disabled as a result of the October 3, 1983, compensable injury. This decision was affirmed by this court in an August 29, 1990, opinion.
On December 13, 1993, a hearing was conducted to evaluate appellants’ claim that there had been a change in appellee’s condition that warranted a modification of the previous order of permanent total disability.
Dr. Scott Bowen, a Little Rock orthopedic physician, began treating appellee for his compensable injury after Dr. John Loh-stoeter retired. Dr. Bowen first saw appellant in January 1989, and he diagnosed appellee’s complaint as that of chronic lumbosacral strain with secondary degenerative changes at the lower L-5, S-l level. During the December 13, 1993 hearing, evidence disclosed that appellee was being treated by Dr. Henry Good, a Little Rock psychiatrist, who was also his principal treating physician. Appel-lee had initially been seen by Dr. Good on September 13, 1985, at the request of Dr. John Lohstoeter. Dr. Good prescribed medication for appellee that included Wellbutrine, Lorcet Plus, Soma, and Halcyon. Appellee was also prescribed Feldene, for pain. Dr. Good testified that the claimant suffered from chronic pain syndrome and depression.
Appellee was also seen by Dr. Reginald Rutherford, a Little Rock neurologist, pursuant to a referral by Dr. Bowen. While under the care and treatment of Dr. Rutherford, appellee underwent a course of treatment for myofascial release, comprising three sets of trigger point injections with stretch and spray physical therapy. The treatment regimen of Dr. Rutherford failed to relieve appellee’s chronic pain. Ultimately, it was held that appellee’s condition had not changed and that he remained permanently and totally disabled.
Appellee has had ongoing and continuing medical treatment since his October 3, 1983, compensable injury. He is currently being treated with Dr. Raymond Remmel, a Little Rock psychiatrist, for his injury. Appellee noted that in his sessions with Dr. Remmel, he continued to relate that his back was getting worse in terms of pain and symptoms, although he had not suffered a subsequent injury after October 3, 1983. Appellee also observed that since his accident, despite the fact that he is taking medication and physical therapy, he has not experienced a complete relief from pain. His current medication includes Vicoprofen, Soma, Serax, and Desyrel. He also takes Quinine for leg cramps. Nevertheless, his symptoms have begun to progressively worsen.
Appellee stated that he continues to experience sharp pain in his lower back and in both legs, the left more so than the right. Additionally, he explained that he has experienced pain and some numbness in his legs and feet. Appellee testified that when he related his complaints of increased pain in his low back, legs, and feet to Dr. Remmel, he was referred to Dr. Richard Peek, a Little Rock orthopedic surgeon. Dr. Peek then referred him to a diagnostic clinic for possible treatment, however, the insurance company denied the claim. Appellee continued treatment with Dr. Remmel, who referred him back to Dr. Peek, who in turn, referred him to Dr. Robert Valentine. Dr. Valentine performed additional diagnostic tests and has recommended a procedure, IDET, to address appellee’s pain. Appellants controverted the compensability of benefits relative to the IDET procedure including treatment under the care of Dr. Robert Valentine.
Appellants argue that the decision of the Commission to award appellee an IDET procedure is not supported by substantial evidence. This court reviews decisions of the Workers’ Compensation Commission to see if they are supported by substantial evidence. Deffenbaugh Indus. v. Angus, 39 Ark.App. 24, 832 S.W.2d 869 (1992). In determining the sufficiency of the evidence to support the findings of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the Commission’s findings, and we will affirm if those findings are supported by substantial evidence. Id.
Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. Farmers Cooperative v. Biles, 77 Ark. App. 1, 4-5, 69 S.W.3d 899, 902 (2002). The determination of the credibility and weight to be given a witness’s testimony is within the sole province of the Commission. Id. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Id. Further, the Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Estridge v. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000).
Appellants argue that appellee is sixty-five years of age and suffered a compensable injury over nineteen years ago. He has never had spinal surgery and has not been hospitalized for any back problem since the previous hearing held in 1993. Appellants’ argument and citations to medical records can be summarized in one line from their briefs: “Clearly, this is the picture of a man . . . who suffered from degenerative changes throughout his body.” Appellants do not contend on appeal that the IDET procedure is an improper mechanism for addressing the annular tears at L4-5 and L5-S1. Their contention is that the tears were not caused by an event which occurred nineteen years earlier. They also contend that the only medical evidence to support the Commission’s finding is an August 4, 2000, progress note from Dr. Remmel that states: “It is more likely not a new injury and in fact just a progression of the disease process.” They argue that the note is ambiguous and cite to recent medical records from Dr. Rutherford that appellee’s MRI imaging “represents a progressive degenerative change consistent with aging.”
Despite appellants’ contentions, the Commission’s findings are supported by substantial evidence. In reaching its decision, the Commission found that no evidence in the record reflected that appellee had sustained a new injury relative to his low back since the compensable injury of October 3, 1983. The Commission noted the fact that appellee suffered from degenerative disc disease prior to the October 3, 1983, injury and that appellee’s initial treating physician specified that the same was asymptomatic prior to the compensable injury. A preexisting disease or infirmity does not disqualify a claim if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. Nashville Livestock Comm. v. Cox, 302 Ark. 69, 787 S.W.2d 64 (1990); St. Vincent Medical Ctr. v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996). In workers’ compensation law, the employer takes the employee as he finds him, and employment circumstances that aggravate preexisting conditions are compensable. Nashville Livestock, supra.; Ark. Power & Light, Co. v. Scroggins, 230 Ark. 936, 328 S.W.2d 97 (1959).
When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arise out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own negligence or misconduct.
Home Ins. Co. v. Logan, 225 Ark. 1036, 505 S.W.2d 25 (1974).
Accepting Dr. Rutherford’s current diagnosis that the present tears identified in appellee’s disc are the product of aging, the same is predicated upon a natural consequence growing from the October 3, 1983, compensable injury that was asymptomatic before that injury was sustained.
Accordingly, sufficient evidence supports the Commission’s decision, and we affirm.
Stroud, C.J., Gladwin, Robbins, and Neal, JJ., agree.
Pittman, J., dissents. | [
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Wendell L. Griffen, Judge.
This appeal arose from a criminal conviction in Pulaski County for possession of a controlled substance (marijuana) with intent to deliver, resulting in a twenty-five-year sentence. Mitchell Jones argues on appeal that the trial court abused its discretion by admitting into evidence the State’s exhibits concerning the marijuana over his chain-of-custody objection, based solely on a discrepancy between the weight of the marijuana as stated in the police report and the crime lab report. We affirm.
On or about September 12, 2000, members of the Little Rock and North Little Rock Police Departments’ drug interdiction units received information that appellant might have picked up a suspicious bag, which allegedly smelled of marijuana, from the North Little Rock bus terminal to travel by taxi cab toward the Little Rock National Airport. Once there, appellant removed his automobile from a parking lot at the airport. Ultimately, Detectives Kyle King, Todd Spafford, and Grant Humphries acted on the information and stopped appellant’s vehicle. A police dog alerted the officers to the trunk of the vehicle, from which the officers seized two duffel bags containing eight bundles of marijuana, four rolled marijuana joints, and personal items.
At trial, appellant objected to the introduction of the seized items because he contended -that the chain of custody was not established to the necessary extent. He based his challenge on the discrepancy between the weight of the marijuana according to the officer who seized it and the weight of the marijuana according to the state crime laboratory chemist. The trial court overruled the objection because it found that there was testimony that explained the weight difference.
Specifically, there was testimony that Detective Humphries placed the two duffel bags in a cardboard box and weighed the entire contents of the box. Thus, Humphries arrived at a weight of approximately fifty-nine pounds. That weight included the duffel bags, the various bundles and joints of marijuana in their original packaging, as well as toiletry items, towels used to wrap the marijuana bundles, and a pair of underwear, shorts, and a shirt. Furthermore, Humphries testified that he maintained custody of the bags and all of their contents. After taking inventory of the contents of the bags, he returned the bags and their contents to the cardboard box, sealed the box, initialed the seal, and stored it in the property locker until it was taken to the state crime laboratory.
Another witness for the State, state crime laboratory forensic drug chemist Chris Larsen, testified that he checked the box out from a secured location where evidence is stored once it is received from the police. The chemist testified that the box was sealed when he received it. He then removed the marijuana bundles from the bags, removed their original packaging, and weighed only the marijuana substance. Thus, he arrived at a total weight of the marijuana of approximately 42.7 pounds.
Upon cross-examination of Larsen, the following colloquy took place:
Q Would it be common in roughly 38 days for [the marijuana] to lose almost a third of its weight by evaporation?
A I don’t really know the rate that marijuana dries out. I couldn’t testify about that, but I would think it probably wouldn’t lose that much.
Q Would you say maybe a couple of ounces here, a couple of ounces there?
A This is a lot of marijuana. I don’t know how many ounces or grams it would lose in that amount of time. I really don’t know.
Q Okay. Would it surprise you to know that somehow this lost 17 pounds of marijuana somewhere down the road?
A Would it surprise me?
Q Yeah.
A If it was lost?
Q Well, they weighed in at 59 pounds.
A Who’s they?
Q The police department. They weighed it in at 59 pounds, and you came up with 42. There’d be 17 pounds missing somewhere, correct?
A Uh huh.
Q Okay. In a bag with some towels and stuff I don’t expect that weighs more than five pounds or so. So, we’re look ing at probably a loss of maybe 12 pounds. Would that be possible through evaporation as Detective Humphries suggested to this jury in a matter of 38 days?
A Not through evaporation. Probably not.
Larsen did not make any statements regarding the weight of the bags and other personal items contained in the evidence box, as distinct from the weight of the marijuana.
AH three officers involved in the seizure of the contraband in question testified at trial that State’s Exhibits 1 and 2 were photographs of the two duffel bags containing four bundles of marijuana, discovered in the trunk of appellant’s car. Detective King testified that he recognized the State’s Exhibits 3-10, photographs of the bundles of marijuana. However, he also explained that the bundles appeared different in the exhibits than when they were stored because when
you send dope to the Crime Lab, we don’t separate the bundles. We leave the bundles intact inside the bag. The Crime Lab cuts the bundles open, takes the dope out, weighs the dope, and then puts ’em back in different bags.
Detective Humphries testified, with respect to Exhibits 3-10, that he recognized them as showing the marijuana bundles seized in appellant’s trunk. He also stated that
[a]s you can see where the packaging has been cut. When it’s sent to the Crime Lab to be analyzed, these bundles were in this shape, but the packaging was sealed around them of this interior packaging. This outside plastic bag was not a part of it. That’s how it was resealed, I believe, by the Crime Lab.
Humphries recognized the State’s Exhibit 12 as the loose marijuana and four hand-rolled marijuana cigarettes he had found in one of the bags’ pockets.
The trial court stated, when ruling on appellant’s objection, that
the whereabouts of [the evidence] at all times or every person who handled it is not necessary for introduction. Second of all, the testimony is in this case that it is less than what they said it was weighed at, but there is some explanations in the record as to the difference in it. In addition, there’s no evidence of any actual tampering of the matter, other than the difference of this weight which has been, testimony has been given an explanation of it.
From the resulting conviction appellant now brings as the sole point on appeal his challenge to the chain of custody, based on the weight discrepancy .
Chain-of-Custody Challenge Based on Weight Discrepancy
Appellant challenges the sufficiency of the chain of custody solely on the basis of a weight discrepancy between the police report and the state crime laboratory report. We do not reverse a trial court’s ruling on the admissibility of evidence absent a showing that it clearly abused its discretion. Rankin v. State, 57 Ark. App. 125, 942 S.W.2d 867 (1997). The purpose of establishing a chain of custody is to prevent the introduction of physical evidence that has been tampered with or is not authentic. Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997). The trial court must be satisfied within a reasonable probability that the evidence has not been tampered with. Id. It is not necessary for the State to eliminate every possibility of tampering. Id. Minor uncertainties in the chain of custody are matters to be argued by counsel, but they do not render the evidence inadmissible as a matter of law. Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997).
In Guydon v. State, 344 Ark. 251, 257, 39 S.W.3d 767, 771 (2001), a case involving a very minor discrepancy, the supreme court stated that the “difference in testimony regarding the weight ofState’s Exhibit 1 was .1172 ofa gram, and the difference regarding State’s Exhibit 2 was .0817 of a gram.” The Guydon court pointed out that the slight variation in the weight of the substance could have resulted from the differing sensitivity in the scales used by the officer and the chemist. Id.
In Crisco v. State, supra, relied upon by appellant, the supreme court reversed and remanded Crisco’s conviction because of the discrepancies in the officer’s and the chemist’s descriptions of the controlled substance involved. The officer described the substance as an “off-white powder,” while the chemist described the drug as a “tan, rock-like substance.” 328 Ark. at 389, 943 S.W.2d at 583. The State, in that case, argued that the officer’s identification pf the envelope containing the drug was sufficient. Id. The supreme court disagreed and held that the State had to do more to establish the authenticity of the drug tested than merely trace the route of the envelope containing the substance. Id.
In this case, we hold that the trial court did not abuse its discretion when it admitted the relevant exhibits concerning the marijuana seized in appellant’s trunk. The existing discrepancy between the weights given by the police officers and the chemist admittedly is considerable, but the trial court also had before it testimony explaining the difference. The police weighed not only the marijuana, but the bags with all its contents, including some clothes, towels, and a cardboard box. While we would appreciate concrete information before us concerning how much the other items, such as the bags and towels, weighed, apart from the marijuana, we remain mindful of the fact that the State did not need to eliminate every possibility of tampering. Newman v. State, supra. The trial court merely had to be satisfied within a reasonable probability that no one had tampered with the evidence. Id.
Moreover, we point out that neither Guydon v. State, supra, nor Crisco v. State, supra, involve comparable facts. In Guydon, the police weighed the contraband itself, just as the crime laboratory did later, and the question on appeal essentially became whether the existing weight discrepancy could be explained satisfactorily by the use of different scales in the field and in the laboratory. In the present case, the police weighed everything together with the contraband, while the crime laboratory weighed only the contraband. Furthermore, in Crisco, the discrepancy was one of description, not weight. Here, we do not have any such discrepancy. Finally, the particular holding of Crisco, namely that the State had to do more to establish the authenticity of the drug tested than merely trace the route of the envelope containing the substance, upon which appellant seems to rely, does not avail him of any relief because the State did do more.
Specifically, the trial court had available the testimony of Detective Humphries who inventoried the bags, sealed the cardboard box containing all the items seized, and locked the evidence up until it was moved to the state crime lab. The chemist testified that the cardboard box was sealed when he picked it up from the laboratory’s evidence locker. The trial court also heard testimony to the effect that the police, when inventorying bags containing marijuana bundles, customarily do not open marijuana bundles. Based on the record before us, we are unable to hold that the trial court abused its discretion. Thus, we affirm.
Affirmed.
Vaught and Crabtree, JJ., agree.
Appellant did not include a copy of his notice of appeal in his addendum or abstract, as required under Ark. R. Sup. Ct. 4-2(a)(8) (2002). Only a review of the record reveals that appellant filed a notice of appeal on July 22, 2002. The judgment and commitment order was dated July 18, 2002, and filed July 25, 2002. Pursuant to Ark. R. App. P.—Crim. 2(b)(1) (2002), the appeal is thus timely, albeit not properly documented on appeal. | [
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Karen R. Baker, Judge.
Appellant, Paul James Paschal, appeals a decision by the Washington County Circuit Court modifying the previous orders of the court regarding child support. Appellant has two arguments on appeal. First, he argues that the trial court erred in awarding appellee, Alice Paschal, retroactive child support. Second, appellant argues that the trial court erred in considering the bonus that he received in 2001 as income for the purpose of establishing his support obligation. We affirm.
The facts of this case are as follows. The parties were divorced by a decree entered in the Washington County Circuit Court on September 17, 1996. Custody of the parties’ two minor children was given to Ms. Paschal. The divorce decree provided that Mr. Paschal’s child support would be set at $965 per month and one-half of his net annual bonus from the period of September 1996 to August 1997; $965 per month and twenty-two percent of his annual bonus received from the period of August 1997 to July 1999; and commencing August 1, 1999, Mr. Paschal’s support obligation was to be modified based upon his current take-home pay in accordance with the Family Support Chart.
On October 9, 2001, Ms. Paschal filed a petition for contempt alleging that Mr. Paschal had failed to pay the amount of support per the divorce decree. On May 21, 2002, Ms. Paschal amended her petition to add a request for modification of Mr. Paschal’s support obligation due to an increase in his income. In an order entered on July 22, 2002, the trial judge granted Ms. Paschal’s request to modify Mr. Paschal’s support obligation and denied Ms. Paschal’s motion for contempt, finding specifically that Mr. Paschal did not properly compute his support obligation due to his failure to include all of his income.
We review child-support awards de novo on the record. Davie v. Office of Child Support Enforcement, 349 Ark. 187, 76 S.W.3d 873 (2002) (citing Nielsen v. Berger-Nielsen, 347 Ark. 996, 69 S.W.3d 414 (2002)). In de novo review cases, we will not reverse a finding of fact by the trial judge unless it is clearly erroneous. Id. (citing Norman v. Norman, 342 Ark. 493, 30 S.W.3d 83 (2000)). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. (citing Nielsen, supra). Further, we give due defer ence to the trial judge’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Id.
The amount of child support lies within the sound discretion of the trial judge, and the trial judge’s 'finding will not be reversed absent an abuse of discretion. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002) (citing McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001); Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000); Smith v. Smith, 337 Ark. 583, 990 S.W.2d 550 (1999)). The trial judge is required to refer to the child-support chart, and the amount specified in the chart is presumed to be reasonable. Id. (citing Smith v. Smith, supra).
Mr. Paschal first argues that the trial court erred in awarding appellee, Alice Paschal, retroactive child support. However, the trial judge did not retroactively modify the child-support order. Rather, he clarified the original order by setting the sum certain amount of support. The trial judge correctly found the terms of the agreement were unambiguous in that the parties intended to set child support in accordance with the child-support chart, yet failed to set a sum certain amount of child support as required by Administrative Order No. 10.
The testimony showed that on August 1, 1999, Mr. Paschal began making child-support payments in the amount of $1080 per month. The trial judge found that based on his income the amount of child support that Mr. Paschal should have paid was $1469 during the period of August 1, 1999, through August 1, 2000; $1234.66 during the period of August 2, 2000, through December 31, 2000; and $2520 during the year 2001. We find no error in the trial judge’s clarification of the original child-support order.
Appellant’s reliance upon the line of modification cases is misplaced. We agree that retroactive modification of a court-ordered child-support obligation may only be assessed from the time a petition for modification is filed. Yell v. Yell, 56 Ark. App. 176, 939 S.W.2d 860 (1997) (citing Ark. Code Ann. § 9-14-234 (Supp. 1995); Grable v. Grable, 307 Ark. 410, 821 S.W.2d 21 (1991); Heflin v. Bell, 52 Ark. App. 201, 916 S.W.2d 769 (1996)). However, where a child-support order fails to recite the amount of support, the order has no sum certain that is capable of modifi cation. Thus, the trial judge did not retroactively modify the support order; rather, he calculated the correct amount of support based on Mr. Paschal’s income, and set a sum certain amount of support, bringing the child-support order into compliance with Administrative Order No. 10.
The trial judge also determined that Mr. Paschal’s future monthly child-support payment should be $1,299 based on his current income. Mr. Paschal argues in his second point on appeal that the trial court erred in considering the bonus that he received in 2001 as income for the purpose of establishing his support obligation. He specifically asserts.that the bonus was a “non-predictable salary bonus.” For the calculation of child support, “income” is statutorily defined as:
(4) (A) “Income” means any periodic form of payment due to an individual, regardless of the source, including wages, salaries, commissions, bonuses, workers’ compensation, disability, payments pursuant to a pension or retirement program, and interest.
(B) The definition of “income” may be expanded by the Arkansas Supreme Court from time to time in the Guidelines for Child Support Enforcement, § 9-99-901.
Ark. Code Ann. § 9-14-201(4) (Supp. 2001). In Administrative Order No. 10, the Arkansas Supreme Court expanded the definition of “income” as follows: “Income means any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, worker’s compensation, disability, payments pursuant to a pension or retirement program, and interest. ...” In re: Administrative Order Number 10: Arkansas Child Support Guidelines § II, 331 Ark. 581 (1998) (emphasis added). The definition is intentionally broad to encompass the widest range of sources consistent with this State’s policy to interpret “income” broadly for the benefit of the child. Ford, supra. Hence, we find that the $100,000 bonus that Mr. Paschal received in 2001 clearly falls within the definition of income, and the trial court properly considered the 2001 bonus in determining Mr. Paschal’s child-support obligation. Based on the foregoing, we affirm.
Stroud, C.J., Hart, Robbins, Griffen, and Crabtree, JJ-, agree. | [
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Karen R. Baker, Judge.
Appellant, Searcy Industrial Laundry, Inc., appeals a decision of the Workers’ Compensation Commission finding that appellee, Sharon Ferren, proved by a preponderance of the evidence that she sustained a compensable neck injury, in addition to her admittedly compen- sable low-back injury, arising from an incident that occurred on January 13, 2000. Appellant argues on appeal that there was no substantial evidence to support the Commission’s decision that appellee’s herniated disk in her neck was a compensable consequence of the lumbar-spine injury two-and-one-half months earlier. We disagree and affirm.
The parties stipulated to the fact that appellee sustained a com-pensable injury to her lower back on January 13, 2000. Appellee testified that on that particular date she was lifting a box when she experienced a sharp onset of pain “all over.” She left work and sought medical assistance from Dr. Jim Citty. The next day, appel-lee returned to work to speak with the personnel manager, Karen Thomas. A Form 1A was filed, which reported a back injury. Appellee testified that she had never experienced pain in her back and neck before January 13 and that she told Dr. Citty from the beginning that she was experiencing pain “all over.” Dr. Citty referred appellee to Dr. Williams at the Arkansas Neurosurgery Clinic. An initial MRI of the lumbar spine revealed a herniated disc at L4-5 with flattening of thecal sac and moderate impingement and a bulging disc at L5-S1 creating no significant compression. In a letter to Dr. Williams on July 3, 2000, Dr. Citty informed Dr. Williams of the date in which appellee complained of having chest-wall pain, and explained that his nurse had confirmed that appellee had previously complained of neck and upper thoracic pain on several occasions. Dr. Citty suggested a follow-up MRI on her cervical spine due to these complaints. The MRI revealed that there was indeed disc herniation at C6-7.
The Administrative Law Judge (ALJ) found that appellee had failed to prove by a preponderance of the evidence that she sustained a compensable injury to her cervical spine or neck. The ALJ specifically found that appellee failed to prove a cervical spine or neck injury arising out of and in the course of the employment, which was caused by a specific incident and was identified by time and place of occurrence. The Commission reversed the ALJ’s decision. This appeal followed.
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission, and we affirm that decision if it is supported by substantial evidence. Campbell v. Randal Tyler Ford Mercury Inc., 70 Ark. App. 35, 13 S.W.3d 916 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Mays v. Alumnitec, Inc., 76 Ark. App. 274, 64 S.W.3d 772 (2001). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999). In making our review, we recognize that it is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Wal-Mart Stores, Inc. v. Stotts, 74 Ark. App. 428, 58 S.W.3d 853 (2001). Furthermore, the Commission has the duty of weighing medical evidence and, if the evidence is conflicting, its resolution is a question of fact for the Commission. Green Bay Packaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999).
On appeal, appellant asserts that the Commission erred in finding that appellee had proven by a preponderance of the evidence that she sustained a neck injury on January 13, 2000. As the claimant, appellee had the burden of proving a compensable injury by a preponderance of the evidence. Ark. Code Ann. § 11-9-102(4)(E)(i) (Repl. 2002). A “compensable injury” is one “arising out of and in the course of employment.” Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2002). Arkansas Code Annotated section ll-9-102(4)(D) provides: “A compensable injury must be established by medical evidence supported by ‘objective findings’ as defined in subdivision (16) of this section.” “Objective findings” are “those findings which cannot come under the voluntary control of the patient.” Ark. Code Ann. § 11-9-102(16); Carman v. Haworth, Inc., 74 Ark. App. 55, 45 S.W.3d 408 (2001). “In order to prove a compensable injury [the claimant] must prove, among other things, a causal relationship between his employment and the injury.” Wal-Mart Stores, Inc. v. Westbrook, 77 Ark. App. 167, 171, 72 S.W.3d 889, 892 (2002) (citing McMillan v. U.S. Motors, 59 Ark. App. 85, 90, 953 S.W.2d 907, 909 (1997)). Flowever, medical evidence is not required to prove the cause of an injury was work-related. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999).
Appellee testified that “when I first went and saw Dr. Citty on January 13, 2000, I told him how I was hurting. I did not really tell him I was having severe low back pain. I said that I was hurting all over. I was having low back pain, but I was hurting all over.” She also testified that “[she] had never experienced any pain like [she] had in [her] back or [her] neck before January 13.” In a letter to Dr. Williams on July 3, 2000, Dr. Citty explained that he felt it was necessary to proceed with an MRI of her thoracic and cervical spine as a result of her complaints of neck and thoracic pain. Specifically, in that letter, Dr. Citty wrote:
In reviewing the records on Mrs. Sharon Ferren pertaining to her cervical and thoracic discomfort, we have one recorded episode in January on the 25th of her having check wall pain. My nurse confirms the fact that on several occasions there were complaints of neck and upper thoracic pain and this is alleged true by the patient. Primarily her symptoms have been referrable to the low back, however, I feel it is important to proceed with MRI studies of the thoracic and cervical spine referable to this injury.
The follow-up MRI of the cervical spine performed on July 11, 2000, showed a disc herniation at C6-7. Appellant argues that there was no evidence to support the Commission’s decision, despite the foregoing facts. In its decision, the Commission relied on the following facts in support of its decision:
In the present matter, the Full Commission reversed the Administrative Law Judge’s finding that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury to her cervical spine or neck on January 13, 2000. In this regard, Dr. Citty’s contemporaneous medical reports might understandably have led the respondents to question the claimant’s story that she was hurting over time in her neck, as well as her lower back after the incident. After all, Dr. Citty’s several follow-up reports did not mention any ongoing neck complaints in the January through March period. Nevertheless, Dr. Citty’s letter of July 3, 2000 to Dr. Williams should have cleared up any confusion on the respondent’s part, since at that time, Dr. Citty corroborated that the claimant had been making neck complaints in his office.
Furthermore, we note that Dr. Citty opined on July 3, 2000 that it was important to proceed with thoracic and cervical spine MRI studies referrable to the claimant’s injury. Likewise, Dr. Williams rendered an opinion in a August 24, 2000 letter that the lifting incident on January 13, 2000 caused the claimant’s need for medical care at issue, assuming that he had an accurate medical history. Certainly, the claimant’s medical records and testimony both appear to be consistent with the history described by Dr. Williams. In addition, we agree with the claimant’s attorney that the respondents have failed to present any expert medical opinion, or other credible medical evidence, to rebut the explanation and opinion in Dr. Citty’s July 3, 2000 letter, or to rebut the opinion in Dr. Williams’ August 24, 2000 letter. Furthermore, we note that the claimant’s alleged neck injury is supported by objective medical findings of a disc herniation at the C6-7 level of the spine.
Based on the Commission’s credibility determination concerning appellee’s testimony, the letter indicating that, although not recorded, appellee had previously made complaints regarding neck pain, and the MRI proving that appellee had in fact sustained an injury to her cervical spine, the Commission found that appellee had met her burden of proving by a preponderance of the evidence that she sustained a compensable neck injury in addition to her low-back injury in an accident on January 13, 2000. Because we cannot say that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission, we affirm.
Gladwin, Bird, and Vaught, JJ., agree.
Neal and Roaf, JJ., dissent. | [
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Sam Bird, Judge.
Appellant Ronnie Lauderdale entered a plea of nolo contendere to possession of cocaine in the Circuit Court of Crittenden County. He was sentenced to ten years in the Arkansas Department of Correction and fined $5000. In this appeal, he contends that the trial court erred by not granting his motion to suppress evidence found as a result of an illegal search. We reverse and remand for further proceedings consistent with this opinion.
In Davis v. State, 351 Ark. 406, 413, 94 S.W.3d 892, 896 (2003), our supreme court clarified the appropriate standard for review of a suppression challenge: “Our standard is that we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court.”
On October 17, 2000, the United States Marshal Service, acting on a federal warrant for arrest for violation of probation, located Mr. Lauderdale at an apartment in Marion, Arkansas. The marshals ultimately arrested him for the probation violation and secured the residence. They also detained Keith McClendon after observing him exit a bathroom where they found in plain view what was suspected to be cocaine. Both individuals were handcuffed and seated on a couch in the living room of the apartment. Based on the discovery of suspected cocaine in the bathroom, the marshals contacted the Marion City Police. The marshals testified that they made a protective sweep through the apartment, and that after the sweep, there was no threat of harm to them by either Mr. Lauderdale or Mr. McClendon.
One of the marshals noticed a black bag that was near the couch on which both suspects were seated. Mr. Lauderdale claimed the bag and was asked if he would consent to a search of it. Mr. Lauderdale refused his consent to the search of the bag, the marshals did not search it based on their belief and experience that a search warrant would have been necessary to do so. The mar shals testified that neither Mr. Lauderdale nor Mr. McClendon had access to the bag or had the ability to remove any evidence from it. The Marion City Police were notified, and they arrived at the scene shortly thereafter.
Marion Police Officer John Millsap testified that when he arrived at the apartment with Officer Darren Richardson, the scene was secured and the marshals advised him that they had completed a walk-through of the house. At this time Officer Millsap field tested the substance found in the bathroom. It tested positive for cocaine. Meanwhile, Officer Richardson had gone into the living room and opened the black bag, where he found nearly twenty grams of suspected cocaine. Officer Millsap testified that he then telephoned his supervisor, Captain James Wilson, who directed him to attempt to get consent to search the residence. Mr. Lauderdale refused to consent to a search of the apartment, and Captain Wilson subsequently prepared an affidavit for a search warrant, with the affiant being Officer Millsap.
The affidavit described the items sought and referred to attached Exhibits A and B. Exhibit A consisted of a description of the places to be searched, and Exhibit B recited Officer Millsap’s basis for seeking the warrant. His stated basis was limited to the marshals’ discovery of cocaine in plain view in Lauderdale’s bathroom. It did not refer to the black bag. Attachments to this exhibit included the marshals’ arrest warrant and their individual written statements, which, with one exception, were also limited to the arrest and the discovery of the cocaine in the bathroom. The statement of Deputy Marshal Woods, however, contained a reference to the improper search of the black bag in the living room. Deputy Woods’ statement presented to the issuing magistrate was that after the local officers arrived, they opened the bag and found more suspected narcotics.
Apparently, this statement was overlooked by Lauderdale, who neither refers to the statement in support of his argument here, nor includes the statement in his addendum. It was also apparently overlooked by the circuit court, as well, because the court stated in its ruling that the contents of the black bag were not used by the issuing magistrate as a basis for the search warrant. Furthermore, the record does not specifically indicate that the judge who issued the warrant even read Marshal Woods’ statement, although he testified that he considered the affidavit and attachments in determining the existence of probable cause to issue the warrant. Nonetheless, the fact that the evidence obtained in the black bag was used as a basis for the search warrant is not dispositive.
I. Admission of Evidence
A. Warrantless Search of the Black Bag
Before determining the validity of the search warrant and admissibility of any evidence seized as a result, we must first determine if the search of the black bag was legal. We hold that it was not. Arkansas Rule of Criminal Procedure 12.5 (2001), is applicable in this case. Rule 12.5 states the following:
SEARCH OF PREMISES: PERMISSIBLE CIRCUMSTANCES, TIME AND SCOPE.
(a) If at the time of the arrest:
(i) the accused is in or on premises all or part of which he is apparently entitled to occupy; and
(ii) in view of the circumstances the officer has reason to believe that such premises or part thereof contain things which are:
(A) subject to seizure; and
(B) connected with the offense for which the arrest is made;
and
(C) likely to be removed or destroyed before a search warrant can be obtained and served; the arresting officer may search such premises or part thereof for such things, and seize any things subject to seizure.
(b) Search of premises pursuant to subsection (a) shall only be made contemporaneously with the arrest, and search of build ing interiors shall only be made consequent upon an entry into the building made in order to effect an arrest therein. In determining the necessity for and scope of the search to be undertaken, the officer shall take into account, among other things, the nature of the offense for which the arrest is made, the behavior of the individual arrested and others on the premises, the size and other characteristics of the things to be searched for, and whether or not any such things are observed while making the arrest.
In this case, there was no evidence to show that entry into the black bag was necessary to prevent the destruction of evidence. In its ruling, the trial court stated:
If, if the evidence found in the black bag, the cocaine found in the black bag, were being introduced as a result of that search, and that search alone, the court would have some problems with that search, particularly in the face of a denial of consent and the fact that the court doesn’t see much exigent circumstances insofar as the defendants were handcuffed, they didn’t have access to the bag, the officers had already ascertained that there was no one else in the house to pose any threat.
Furthermore, there was testimony by the three federal marshals present at the scene that both Lauderdale and McClendon were handcuffed and seated on the couch. Marshal Bradbury testified that at this point there was no threat of Mr. Lauderdale or Mr. McClendon doing any harm to the officers, and that it was safe to assume that neither one had the ability to remove any evidence from the apartment or from the black bag. Marshal Boock testified that once under arrest, neither individual had any ability to do harm to the officers. Officer Richardson, the officer who conducted the search of the black bag, testified that when he arrived, both Mr. Lauderdale and Mr. McClendon were handcuffed and on the couch; and that he did not fear any physical threat to any of the officers when he began to search the black bag. Nonetheless, Officer Richardson stated that he was looking for weapons. Based on the foregoing facts, we conclude that the search of the black bag was illegal.
Since we hold that the initial search of the black bag was illegal, we now must decide if the evidence, including the contents of the black bag and all evidence discovered as a result of the search warrant, was inadmissable. We note, however, that the evidence initially discovered in plain view in the bathroom was admissible. Arkansas Rule of Criminal Procedure 14.4 allows an officer who is otherwise lawfully present at a place, to seize an object that is in plain view, if its incriminating character is immediately apparent. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998).
B. The Search Warrant
The State urges this court to disregard the trial court’s basis for denying Lauderdale’s motion to suppress in that it incorrectly concluded that the issuing magistrate did not have illegally obtained information before it. In doing so, the State submits that we should look to Murray v. United States, 487 U.S. 533 (1988). The Arkansas appellate courts have only discussed Murray in two published opinions, Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998), and Williams v. State, 327 Ark. 213, 939 S.W.2d 264 (1997). In both cases, Murray was read to require a two-part test to determine whether the inclusion of illegally obtained information in an affidavit precludes the application of the independent-source doctrine. First, the appellate court examines the search warrant by excising the offending information from the probable cause affidavit and determines whether the affidavit nevertheless supports the issuance of a search warrant; second, the appellate court examines the motivation of the officer or officers who obtained the warrant and determines whether the motivation to obtain the warrant came as a result of discovering the tainted information, which in our case is the nearly twenty grams of cocaine found in the black bag. See Williams, 327 Ark. at 220-22, 939 S.W.2d at 268-69; Fultz, 333 Ark. at 594-95, 972 S.W.2d at 224-26.
In Williams, our supreme court stated:
Having decided that the warrantless search was illegal, we move to the question of that illegality’s effect on the validity of the warrant. While the exclusionary rule prohibits the introduction of tangible and testimonial evidence derived from an unlawful search, such evidence may nonetheless be admissible if discovered through an independent source. See Murray v. United States, 487 U.S. 533, 108 S. Ct. 2529, 101 L.Ed.2d 472 (1988). This tenet is referred to as the “independent-source doctrine.” Murray involved an illegal entry into a warehouse where all subsequent activity by the police officers was suspect. While unlawfully in the warehouse, the police officers observed bales of marijuana. They then sought a search warrant. The Court stated:
The ultimate question, therefore, is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue here. This would not have been the case if the agents’ decision to seek the warrant was prompted by what they had seen during the illegal entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant. Murray, 487 U.S. at 542, 108 S. Ct. at 2536. The first prong of Murray is usually approached by excising the offending information from the probable-cause affidavit and then determining whether the affidavit nevertheless supports the issuance of a search warrant. See United-States v. Restrepo, 966 F.2d 964 (5th Cir. 1992), cert. denied, 506 U.S. 1049, 113 S. Ct. 968, 122 L.Ed.2d 124 (1993); United States v. Herrold, 962 F.2d 1131 (3rd Cir.), cert. denied 506 U.S. 958, 113 S. Ct. 421, 121 L.Ed.2d 344 (1992).
The affidavit in this case contained a wealth of information about the Williams’s possible drug-trafficking activities. Even in the absence of the information obtained in the prior search, officers had detailed information from three confidential informants, plus the statement of Henry Glosemeyer, who had just come from the Williams’s residence. Thus, the first prong of the Murray test weighs in favor of the validity of the warrant.
Williams v. State, 327 Ark. at 220-21, 939 S.W.2d at 268 (1997).
In our case, with respect to the first prong of Murray, even if we completely excise any mention of the black bag or its contents, there is still ample evidence in the “affidavit for search warrant” submitted to the trial judge to support the issuance of the search warrant. The remaining evidence consists partly of a rock-like substance that field tested positive for cocaine, along with several plastic baggies, all of which were found in plain view in the bathroom. Thus, we hold that the first prong of Murray is satisfied.
While we agree with the State that the first prong of Murray is satisfied as a result of the additional legally obtained evidence referred to in the affidavit for search warrant, the trial court failed to address the second prong of Murray. We believe that an analysis of the second prong is an essential consideration in this case. With respect to the second prong of Murray, our supreme court stated:
The second prong of Murray focuses on the motivation of the officers in obtaining the warrant. A key consideration in determining this issue is the “relative probative import” of the information secured during the illegal search “compared to all other information known to the officers.” United States v. Restrepo, supra, at 972. While the police should not profit from illegal activity, neither should they be placed in a worse position than they would otherwise have occupied. Murray, 487 U.S. at 542, 108 S. Ct. at 2535-36.
In the instant case, unlike the facts in Murray, there was no illegal entry. Kathlene Williams allowed the officers to enter the residence, and, while the officers testified that they informed Houston Williams that he could ask them to leave the residence at any time, he never requested that they do so. Furthermore, we think it significant that, when Officer Norman contacted the prosecutor’s office about obtaining a warrant prior to entering the residence, he was advised that he lacked probable cause. Thus, we cannot agree that there was a complete absence of motivation on the part of the officers to seek a warrant prior to the lawful entry and subsequent illegal search.
Immediately upon lawfully entering the house, Officer Norman observed a Smith & Wesson .9 millimeter automatic pistol on top of a dresser. While the officers were present, Ronald Fox, whom they had documented as dealing in methamphetamine, arrived at the home but would not enter the residence. This evidence, obtained prior to the illegal search, could be properly considered by the issuing magistrate.
When asked at the suppression hearing to explain the basis for his request for a search warrant of the Williams residence, Officer Norman reviewed not the items seized from the illegal search, but the information received from the confidential informants, the statement acquired from Glosemeyer, and the surveillance conducted by officers. In light of this testimony, we cannot conclude that the officers were prompted to obtain the search warrant after obtaining the tainted information. In any event, as the officers collected ample information to support a search warrant, independent of and prior to the items found in the illegal search, we hold that the independent-source doctrine permitted the introduction of evidence seized after the search warrant. To hold otherwise, we would be placing the officers in a worse position than they would otherwise have occupied. Under these circumstances, we affirm the trial court’s order upholding the validity of the warrant.
Williams v. State, 327 Ark. at 221-22, 939 S.W.2d at 268-69 (1997).
Another case cited within Murray and relied upon by our supreme court in Williams v. State is United States v. Restrepo, 966 F.2d 964 (5th Cir. 1992), cert. denied, 506 U.S. 1049 (1993). The court in Restrepo clearly defined the second prong of Murray:
B. MOTIVATION: MURRAY’S NEW REQUIREMENT
Murray states that a search pursuant to warrant is not a genuinely independent source of evidence “if the agents’ decision to seek the warrant was prompted by what they had seen during the initial [illegal] entry.” [FN20] Thus, Murray instructs the trial court to determine— separate and apart from its determination of whether the expurgated warrant affidavit contains probable cause [FN21] — whether information gained through the illegal search influenced or motivated the officers’ decision to procure a warrant. [FN22] In this case, therefore, this inquiry is answered in the negative if the district court finds that “the agents would have sought a warrant if they had not earlier entered” the Regency residence. [FN23] As LaFave explains, Murray is intended to deal with “the so-called ‘confirmatory search,’ conducted for the precise reason of making sure it is worth the effort to obtain a search warrant.” [FN24]
FN20. 108 S. Ct. at 2535.
FN21. “Murray is most significant precisely because the majority refused to follow the rather common position taken by the lower courts, namely, that the fruit-of-the-poisonous-tree issue presented by cases of this genre can be resolved by focusing only upon the question of whether facts obtained by the prior illegal action- were critical to the probable cause finding supporting the warrant.” Wayne R. LaFave, Search and Seizure, §§ 11.4(f), at 70 [1992 Supp,] (2d ed. 1987). FN22. Accord U.S. v. Mithun, 933 F.2d 631, 636 (8th Cir. 1991) (agent’s decision to seek warrant not prompted by seeing flash suppressor); U.S. v. Bosse, 898 F.2d 113, 116 (9th Cir. 1990) (remanding to determine effect of illegal entry and search on the officers’ decision to seek warrant); U.S. v. Halliman, 923 F.2d 873, 880 (D.C.Cir. 1991) (finding that prior entry did not influence decision to seek warrant not clearly erroneous).
FN23. Murray, 108 S. Ct. at 2536.
FN24. LaFave, Search and Seizure, §§ 11.4(f), at 70 [1992 Supp.].
Here, the district court did not consider whether the results of the illegal search of Regency prompted or motivated the officers’ decision to seek the warrant. As motivation is a question of fact, we remand this issue to the district court. We nonetheless point out, by way of guidance only, that, unlike the objective test of whether the expurgated affidavit constitutes probable cause to issue the warrant, the core judicial inquiry before the district court on remand is a subjective one: whether information gained in the illegal search prompted the officers to seek a warrant to search Regency. In the best of all possible worlds, of course, there will be statements or other evidence direcdy probative of motivation or effect. But in the usual case, in which direct evidence of subjective intent is absent, a court must infer motivation from the totality of facts and circumstances.
966 F.2d at 971-72.
In Williams v. State, 327 Ark. at 221, 939 S.W.2d at 268-69, our supreme court took specific note of the fact that the officer had the intention of obtaining a search warrant. In Williams, the court stated:
Furthermore, we think it significant that, when Officer Norman contacted the prosecutor’s office about obtaining a warrant prior to entering the residence, he was advised that he lacked probable cause. Thus, we cannot agree that there was a complete absence of motivation on the part of the officers to seek a warrant prior to the lawful entry and subsequent illegal search.
In Fultz v. State, 333 Ark. at 594-95, 972 S.W.2d at 225-26, our supreme court once again addressed both the first and second prong of Murray, stating;
Next, Mrs. Fultz challenges the validity of the search warrant and the admission of all evidence retrieved pursuant to it because the suppressed evidence discovered in her purse provided part of the probable cause for the affidavit for the search warrant. Although our initial inquiry might be whether the purse search was valid, assuming, arguendo, that it was invalid, we must determine whether the inclusion of that evidence in the affidavit defeats the warrant. In Williams v. State, 327 Ark. 213, 939 S.W.2d 264 (1997), this court held that offending information can be excised from a probable cause affidavit to determine if the affidavit nevertheless supports the issuance of a search warrant, and evidence may be admissible if discovered through an independent source. Id. at 220, 939 S.W.2d 264 (citing Murray v. United States, 487 U.S. 533, 108 S. Ct. 2529, 101 L.Ed.2d 472 (1988)). However, the warrant can be defeated if the officer’s motivation for the warrant arose from evidence discovered during the illegal search. This court also noted in Williams that the “relative probative import” of the illegally obtained information should be considered as compared to “all other information known to the officers.” Id., at 221, 939 S.W.2d 264 (citing Murray, 487 U.S. 533, 108 S. Ct. 2529, 101 L.Ed.2d 472; United States v. Restrepo, 966 F.2d 964 (5th Cir. 1992), cert. denied, 506 U.S. 1049, 113 S. Ct. 968, 122 L.Ed.2d 124 (1993)).
Applying these factors in the instant case and excising the evidence discovered in the purse, the search warrant was, nevertheless, independently supported by probable cause. When viewed in the light most favorable to the State, the evidence in the purse was of little probative value compared to all of the other information known by the officers. For example, based on Mr. Fultz’s statements and the smell in the car, there was ample information to independently support the warrant. Arguably, the evidence in the purse was of so little probative value that neither the purse nor its contents were seized. The trial court did not err in finding that the evidence in the purse was not the primary motivation for the officer’s obtaining a warrant. Accordingly, its refusal to suppress the evidence found during the execution of the search warrant was not erroneous.
Again, while we have only two cases from our supreme court to use for guidance in this matter, it is clear that both prongs of Murray must he addressed when discussing the admissibility of evidence obtained through a search warrant after illegally obtained information had been utilized to determine whether there was probable cause to support the warrant. In Williams, our supreme court examined evidence which clearly indicated that the officer was properly motivated to obtain a search warrant before the discovery of the tainted information. Williams v. State, 327 Ark. at 221, 939 S.W.2d at 268-69. In Fultz, our supreme court noted that the trial court had made a finding that the illegally obtained evidence was not the primary motivation for obtaining a warrant. 333 Ark. at 595, 972 S.W.2d at 225. In the case now before us, it is unclear whether the officers were motivated to obtain a search warrant before the discovery of the nearly twenty grams of cocaine in the black bag. In fact, there is evidence to the contrary.
It is clear from the federal marshals’ testimony that they had no intention whatsoever of procuring a search warrant. In fact, one of the officers stated that he did not look in the black bag when he was denied consent because he did not want to be subpoenaed to court to testify. Thus, we are left with the question of whether the Marion officers had the intention of seeking a search warrant before they conducted the illegal search of the black bag.
The facts tend to indicate that the Marion officers field tested both the evidence found in the bathroom and the evidence found in the black bag prior to calling Captain Wilson for instructions. Additionally, once he was contacted, there is evidence that Captain Wilson first asked the Marion officers to attempt to obtain a written consent to search the premises, and only when that failed did Captain Wilson request the search warrant. Without speculation, it is a difficult task for this court to decide whether the Marion officers would have sought a warrant if they had not earlier illegally searched the black bag and found the nearly twenty grams of suspected cocaine; especially in light of the fact that the illegal narcotics found in the black bag constituted the largest find of narcotics in the apartment.
In this case, as in Restrepo, the trial court did not consider whether the results of the illegal search prompted or motivated the officers’ decision to seek the search warrant. We note the potential difficulty of this determination. The trial court may well not have any new evidence before it to examine before making its decision. However, we point out for guidance only, that there may be evidence of past practices of the police officers, past conduct of the officers, standard operating procedures, or other evidence that may shed light on whether the illegally obtained evidence motivated the officers to apply for the search warrant. As the court in Restrepo pointed out, “[i]n the best of all possible worlds, of course, there will be statements or other evidence directly probative of motivation or effect. But in the usual case, in which direct evidence of subjective intent is absent, a court must infer motivation from the totality of facts and circumstances.” 966 F.2d at 972. Nonetheless, our supreme court has chosen to follow Murray, and as motivation is a question of fact, we are compelled to remand this case to the trial court to determine what motivated the officers’ decision to seek a search warrant.
Reversed and remanded for further proceedings consistent with this opinion.
Vaught, J., agrees.
Gladwin, J., concurs.
Lauderdale argued below, as he does on appeal, that the illegal search of the black bag, in and of itself, invalidated the search pursuant to the warrant, and he offers mere speculation that “[Officer] Millsap undoubtedly informed the magistrate of the discovery of these items” in the black bag when he appeared before the magistrate. | [
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Terry Crabtree, Judge.
This is a case involving claims of defamation and wrongful discharge. A Washington County jury returned a verdict in favor of appellees and awarded damages. The trial court later awarded attorney’s fees and costs. Appellants raise four points on appeal, essentially challenging the sufficiency of the evidence to support the verdict. We affirm.
Appellant Northport Health Services (Northport) operates the Fayetteville Health and Rehabilitation Center (Center), and appellant Kristy Unkel is the Director of Nursing at the Center. Appellees Diane Owens and Alisa Main are licensed practical nurses (LPNs) who worked at the Center until they were fired in April 2000, after allegations were made against them by certain certified nurse’s assistants (CNAs) with whom they worked. The specific allegations were that Owens failed to chart a fall by resident Maggie Jones and that Main had verbally abused a resident and failed to give another resident pain medication after being advised by a CNA of the need for such medication. Following their termination, appellees filed suit, alleging that appellants defamed them by reporting the allegations to the state Office of Long Term Care (OLTC) and the Fayetteville Police Department. Appellees also alleged that they were wrongfully terminated in violation of public policy and appellants’ own policies because appellees had made complaints to the Director of Nursing concerning improper patient care. The complaint sought compensatory and punitive damages, attorney’s fees, and costs. Appellants answered, denying the allegations, asserting that they acted in good faith and that the communications to OLTC and the Fay-etteville Police Department were mandated by law and, therefore, privileged. The case was tried to a jury in March 2002.
The jury returned a verdict on interrogatories and found that appellee Owens was wrongfully discharged in violation of public policy but that appellee Main was not wrongfully discharged in violation of public policy. The jury also found that appellant Unkel and other employees had caused appellees to suffer damages by publishing defamatory statements concerning each appellee, that the statements exceeded the scope of the privilege to communicate the statements, and that the statements were not made in good faith. The jury awarded appellee Owens damages of $67,740 on the wrongful-discharge claim and $200,000 on the defamation claim. The jury awarded appellee Main damages of $65,000 on the defamation claim. The trial court entered judgment on the verdict and also awarded appellee Owens attorney’s fees of $15,000 on the wrongful-discharge claim. This appeal followed.
In Webb v. Bouton, 350 Ark. 254, 85 S.W.3d 885 (2002), the supreme court explained the standard of review for determining whether there was substantial evidence to support the jury verdict:
Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture. In determining the existence of substantial evidence, we view the evidence in the light most favorable to the party on whose behalf the judgment was entered and give it its highest probative value, taking into account all reasonable inferences deducible from it. In reviewing the evidence, the weight and value to be given the testimony of the witnesses is a matter within the exclusive province of the jury.
Id. at 262, 85 S.W.3d at 889 (citations omitted). See also Sparks Reg’l Med. Ctr. v. Smith, 63 Ark. App. 131, 976 S.W.2d 396 (1998).
Appellants’ first two points concern the defamation claims. In their first point, appellants argue that they are entitled to judgment as a matter of law. Specifically, appellants argue that there was no substantial evidence that either actionable defamation occurred or that appellees suffered any damages to their reputations. In their second point, appellants argue that the evidence was insufficient to support any award of damages to either appellee.
First, appellants argue that there was no publication because Ark. Code Ann. § 5-28-203(a)(1)(0) (Supp. 2001) requires institutions such as it and persons such as appellant Unkel, the Director of Nursing and thus a facility administrator, to report suspected cases of abuse or neglect to the OLTC. Appellants further argue that Ark. Code Ann. § 5-28-215 (1997) gives them immunity from suit for making such reports. Section 5-28-215 provides:
(a) Any person, official, or institution participating in good faith in the making of a report, . . . pursuant to this chapter shall have immunity from liability and suit for damages, civil or criminal, that otherwise might result by reason of such actions.
(b) The good faith of any person required to report cases of adult abuse, sexual abuse, or neglect shall be presumed.
We hold that there was a publication because “publication” occurs when the defamatory matter is communicated to someone other than the person defamed. Navorro-Monzo v. Hughes, 297 Ark. 444, 763 S.W.2d 635 (1989). Even though there has been a “publication,” the defamatory statement may be protected by a qualified privilege. Id.
Here, appellants raised the immunity or privilege issue in motions for summary judgment against each appellee. However, there is nothing in the record to indicate that the trial court ruled on the motions for summary judgment. “Qualified immunity, similar to absolute immunity, is an entitlement not to stand trial under certain circumstances. Such entitlement is an immunity from suit rather than a mere defense to liability; and like absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Robinson v. Beaumont, 291 Ark. 477, 484, 725 S.W.2d 839, 843 (1987) (quoting Mitchell v. Forsyth, 472 U.S. 511 (1985)). Further, appellants could have immediately appealed the denial of a motion for summary judgment based on immunity. Robinson v. Beaumont, supra. Because appellants failed to pursue their motions for summary judgment and proceeded to trial, we hold that they have waived their arguments concerning immunity under Ark. Code Ann. § 5-28-215. Robinson v. Beaumont, supra. See also Ozarks Unltd. Resources Coop., Inc. v. Daniels, 333 Ark. 214, 969 S.W.2d 169 (1998).
As their second point, appellants argue that appellees failed to prove any damage to their reputations. In order for liability to attach, there must be evidence that demonstrates a causal connection between defamatory statements made by appellants and the injury to appellees’ reputations. Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999). A plaintiff must establish actual damage to his reputation, but the showing of harm may be slight. Id. A plaintiff must prove that the defamatory statements have been communicated to others and that the statements have affected those relations detrimentally. Id. A plaintiffs testimony that his reputation was injured is generally sufficient to take the issue to the jury Hogue v. Ameron, Inc., 286 Ark. 481, 695 S.W.2d 373 (1985).
Appellants appear to be arguing that, because appellees did not prove any harm to their reputations with either the OLTC or the Fayetteville Police Department, then appellees failed to prove damages. See Little Rock Newspapers, Inc. v. Fitzhugh, 330 Ark. 561, 954 S.W.2d 914, 927 (1997) (Newbern, J., dissenting). We do not believe that the law is that restrictive regarding injury to a person’s reputation. Here, Linda Millspaugh, a nursing home administration consultant and former director of nursing, testified that, based upon her review of the reports to the OLTC or the Fayetteville Police Department, she would not hire either appellee and that the reports would hurt the appellees’ chances of finding employment in the nursing home industry. While appellee Main testified that, following her termination, she was able to obtain subsequent employment as an LPN in the health care field, she also testified that, because of her termination, she doubted herself and her abilities as a nurse. She also testified that she did not believe that she would recover emotionally from the termination and that she had been treated for depression. Appellee Owens testified that she did not receive any responses to applications containing the explanation for her termination that she had faxed to prospective employers. She also testified that she was humiliated by the allegations and that she suffered from depression.
Appellants also appear to argue that the amount of the damage award is excessive. When an award of damages is alleged on appeal to be excessive, we review the proof and all reasonable inferences most favorably to the appellees and determine whether the verdict is so great as to shock our conscience or demonstrate passion or prejudice on the part of the jury. United Ins. Co. of Am. v. Murphy, 331 Ark. 364, 961 S.W.2d 752 (1998). While there must be proof of actual damage to a person’s reputation, id., there is no requirement that specific evidence assigning a dollar value to the injury must exist. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). See also Liles v. Matthews, 268 Ark. 980, 598 S.W.2d 755 (Ark. App. 1980). Further, the amount of proof required is slight. Ellis v. Price, supra. We hold that the above evidence was sufficient to support the jury’s verdict of damage to appellees’ reputations and that the award of damages was not so great as to shock the conscience of the court. We affirm on this point.
For their third and fourth points, appellants address the verdict in favor of appellee Owens on her wrongful-discharge claim. Specifically, appellants argue in their third point that they are entitled to judgment as a matter of law on the claim. In the fourth point, appellants argue that the verdict amount is excessive and clearly against the weight of the evidence.
The well-established rule is that, when an employee’s employment is for an indefinite term, either party may terminate the relationship without cause or at will. Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988).
In Sterling Drug, the court stated:
[W]e have no hesitancy in concluding that Arkansas law would recognize at least four exceptions to the at-will doctrine, excluding implied contracts and estoppel. These are: (1) cases in which the employee is discharged for refusing to violate a criminal statute; (2) cases in which the employee is discharged for exercising a statutory right; (3) cases in which the employee is discharged for complying with a statutory duty; and (4) cases in which employees are discharged in violation of the general public policy of the state.
Id. at 245, 743 S.W.2d at 283. In Sterling Drug, the supreme court also recognized the public policy exception to the employment-at-will doctrine when it stated:
[A]n employer should not have an absolute and unfettered right to terminate an employee for an act done for the good of the public. Therefore, we hold that an at-will employee has a cause of action for wrongful discharge if he or she is fired in violation of a well-established public policy of the state. This is a limited exception to the employment-at-will doctrine. It is not meant to protect merely private or proprietary interests.
Id. at 249, 743 S.W.2d at 385 (citations omitted). In finding a violation of public policy, the court stated that “it is generally recognized that the public policy of a state is found in its constitution and statutes.” Id.
Appellants argue that there could be no wrongful discharge because Owens did not call OLTC until after her termination. However, the trial court instructed the jury that it could find a wrongful discharge if appellees were discharged for fifing or threatening to file reports of patient abuse with OLTC or by making internal complaints of patient abuse or neglect. First, section 5-28-203 requires nurses or facility employees to report suspected cases of patient abuse or neglect to the facility administration. Further, Ark. Code Ann. § 20-10-1007(a) (2000) provides that “[n]o long-term care facility owner, administrator, . . . shall discriminate, retaliate, or seek reprisal in any manner against a resident or employee of a long-term care facility who has initiated or participated in any proceeding provided in this subchapter.” The jury could have found that Owens was wrongfully terminated because she told Unkel some time prior to her suspension that the CNAs were leaving her no choice but to make a report to the OLTC and that Owens had made several reports concerning the CNAs to Unkel. This would have been in violation of section 20-10-1007(a). We affirm on this point.
In their fourth point, appellants argue that the verdict in favor of appellee Owens on the wrongful-discharge claim is excessive. Appellants cite no authority for their argument on this point. Our courts have said on numerous occasions that we will not consider an issue if the appellant has failed to cite any convincing legal authority in support of its argument. Craft v. City of Fort Smith, 335 Ark. 417, 984 S.W.2d 22 (1998); Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997); Miller v. State, 328 Ark. 121, 942 S.W.2d 825 (1997). Appellants’ failure to cite authority or make a convincing argument is sufficient reason for affirmance of the trial court’s judgment on this point. Ellis v. Price, supra.
Affirmed.
Griffen and Vaught, JJ., agree. | [
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Terry Crabtree, Judge.
The appellant in this case brings this appeal from the circuit court’s order finding substantial evidence to support a hearing officer’s recommended findings of fact and conclusions of law. Because the record contains no final agency decision for us to review, we dismiss the appeal.
Appellant, Waldron Nursing Center, Inc., is located in Wal-dron, Arkansas, and is a Medicaid-certified, long-term care facility that is licensed by appellee, the Arkansas Department of Human Services. On October 6, 2000, a surveyor from the department’s Office of Long Term Care conducted an inspection of appellant’s facility after receiving complaints following the death of a resident. As a result of the inspection, a Statement of Deficiencies was issued in which it was found that appellant had violated a number of regulations. The department then sanctioned appellant by imposing a civil money penalty in the amount of $4,000, by denying Medicaid payments for new admissions to the facility from October 18, 2000, through October 20, 2000, and by terminating the facility’s nurse-aid training program. Appellant contested these sanctions by sending a request for a hearing to the Director of the Department of Human Services. The Director then appointed a hearing officer to conduct a hearing.
On March 12, 2001, the hearing officer issued a “Recommended Decision,” which contained findings of fact and conclusions of law that upheld both the determination that appellant was not in compliance with certain regulations, and the civil money penalty of $4,000. The hearing officer forwarded her recommendation to the Director of the Department of Human Services.
On May 11, 2001, appellant filed a petition for judicial review in the Pulaski County Circuit Court. The circuit court, after hearing the parties’ arguments and receiving briefs, entered an order finding that there was substantial evidence to support the hearing officer’s recommended decision. This appeal followed.
It is well settled that this court’s review is limited in scope and is directed not to the decision of the circuit court but to the decision of the administrative agency. Cave City Nursing Home, Inc. v. Ark. Dep’t of Human Servs., 351 Ark. 13, 89 S.W.3d 884 (2002). Conspicuously absent from the record, however, is any final decision made by the agency for us to review.
In its petition for judicial review filed in circuit court, appellant referenced Ark. Code Ann. § 20-10-303 (Supp. 2001) as setting out the governing procedure. That statute provides in pertinent part that:
(a) The Long-Term Care Facility Advisory Board created in § 20-10-301 shall have the power to hear all appeals by licensed long-term care facilities, long-term care administrators, or other parties regulated by the Office of Long-Term Care with regard to licensure and certification.
(b)(1) Any long-term care facility or party regulated by the Office seeking a hearing before the board shall submit a request in writing to the chairman of the board. The written request, until denied by the chairman, shall stay the action of the appeal pending the hearing and final decision.
(2) Upon receiving a written request for a hearing from any party regulated by the office, the chairman shall place the request on the agenda to be considered in a hearing at the next or called meeting of the board and may assign the appeal to an impartial hearing officer who shall not be a full-time employee of the Department of Human Services.
(3)(d) The hearing officer may preside over the appeal, which shall be conducted in accordance with the Arkansas Administrative Procedure Act, § 25-15-201 et seq., and make specific findings of fact and conclusions of law in the form of recommendations to the board.
(f)(1) All decisions rendered by the Board shall be submitted to the Deputy Director of the Division of Medical Services of the Department of Human Services, subject to his review and final determination. The deputy director may, for good cause, approve, reject, or remand the decision to the board for further proceedings.
(g) The deputy director must act on a decision of the board within thirty (30) days of its decision or else the decision of the board shall be final.
In its petition for judicial review, appellant stated that it was “unclear” when the time for filing an appeal to circuit court had run because the hearing officer had transmitted her recommended decision directly to the Director of the Department of Human Services rather than to the board, thereby bypassing the step in which the board makes and submits its decision to the deputy director. Appellant then stated that “[i]n the event that the time for filing an appeal to this Court began to run when the thirty (30) days expired for the Deputy Director to act on the Board’s decision, the Petitioner is timely filing this appeal within thirty (30) days from the date that the recommended decision may have become final by virtue of Ark. Code Ann. § 20-10-303.”
In its response to the petition for judicial review, appellee stated that appellant’s reliance on the procedures outlined in Ark. Code Ann. § 20-10-303 was misplaced because appellant had appealed the civil monetary penalty, but not the deficiency findings, as reflected by appellant’s initial request for a hearing made to the Director of the Department of Human Services, as opposed to sending the request to the Chairman of the Long-Term Care Facility Advisory Board. Appellee, nevertheless, agreed that appellant’s appeal to circuit court was timely.
Although appellee did not cite the statute governing appeals of civil monetary penalties, undoubtedly it was referring to Arkansas Code Annotated section 20-10-208(a)(1) (Repl. 2000), which provides as follows:
A licensee may contest an assessment of a civil penalty by sending a written request for hearing to the Director of the Department of Human Services. The director shall designate a hearing examiner who shall preside over the case and make findings of fact and conclusions of law in the form of a recommendation to the director, who shall then review the case and make the final determination or remand the case to the hearing examiner for further findings of law or fact.
We need not decide whether the provisions of either § 20-10-303 or § 20-10-208 apply in this case because neither procedure was fully utilized. With regard to § 20-10-303, the hearing officer’s recommended findings were never forwarded to the board. Consequently, the board was not called upon to render any decision with regard to the hearing officer’s recommendation. Obviously, since the board did not render a decision, there was no decision to be submitted to the deputy director; therefore, the deputy director’s failure to act could not possibly result in a final decision pursuant to § 20-10-303(g). As for § 20-10-208, the hearing officer’s recommendation was submitted to the Director; however, there is nothing in the record to indicate that the Director made any final determination with respect to the hearing officer’s recommendation. Unlike § 20-10-303, § 20-10-208 contains no provision for a decision to become final due to inaction. As a consequence of non-compliance with either statute, no final agency decision has been made in this case, or the record does not reflect that one has been made.
The rule is well-established that a litigant must exhaust his administrative remedies before instituting litigation to challenge the action of the administrative agency. Ark. Motor Vehicle Comm’n v. Cantrell Marine, 305 Ark. 449, 808 S.W.2d 765 (1991). It has repeatedly been held that the failure to exhaust administrative remedies is grounds for dismissal. Romine v. Dep’t of Environmental Quality, 342 Ark. 380, 40 S.W.3d 731 (2000). Subject-matter jurisdiction is a defense that cannot be waived by the parties at any time, nor can it be conferred by the parties’ consent. Douglas v. City of Cabot, 347 Ark. 1, 59 Ark. App. 430 (2001). In this case, appellant sought judicial review before a final agency decision was made. Accordingly, the circuit court never acquired jurisdiction. Milligan v. Burrow, 52 Ark. App. 20, 914 S.W.2d 763 (1996). We dismiss the appeal. See Douglas v. City of Cabot, supra.
Dismissed.
Griffen and Vaught, JJ., agree. | [
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Karen R. Baker, Judge.
Appellant, George Aydelotte, was convicted by a jury in Conway County Circuit Court of manufacturing methamphetamine, possession of methamphetamine, use of a communication facility, and simultaneous possession of drugs and firearms. He was sentenced to an aggregate term of twenty years’ imprisonment in the Arkansas Department of Correction. Appellant has two arguments on appeal. First, he argues that the trial court erred in denying his motion to dismiss and his motion to suppress the evidence. Second, he argues that the evidence was insufficient to support the verdicts herein. We affirm.
On August 30, 2001, a warrant and affidavit were prepared seeking a search of appellant’s residence. The warrant and affidavit were submitted to Paul Dumas, a Magistrate of Conway County Municipal Court and a city attorney for Plummerville. Dumas had previously been appointed to that position of magistrate by Scott Adams, Municipal Judge of Conway County. Four officers, including Chief of Police Hartman of the Plummerville Police Department, met with Dumas at the Morrilton Police Department that evening. After questioning the officers present regarding the affidavit, Dumas issued the search warrant. The search warrant was then executed. Dumas accompanied the officers to appellant’s residence; however, he did not participate in the search. During the search, the remains of a recent methamphetamine lab were discovered in an out-building approximately thirty-five yards from appellant’s residence. Testimony showed that the odor of ether was so strong that Officer Hartman had to back away from the building to let the air out before he could enter. In addition to the items used in the manufacture of methamphetamine and the methamphetamine residue, a loaded shotgun, one loaded pistol and two unloaded pistols were found in the out-building.
The State’s forensic drug chemist testified that the method of manufacturing methamphetamine involving lithium metal and anhydrous ammonia was used in this case. The crime lab cannot test for anhydrous ammonia, but instead tests for the presence of ammonia. Ammonia was found in several places in the outbuilding. First, ammonia was found in a shop vac that was used as a filter to pull the ammonia vapors out of the reaction chamber and to expel the vapors outside the building. The water inside the shop vac also had trace amounts of ammonia. Second, a glass container also contained a white powder residue, sodium carbonate, which is a byproduct of using anhydrous ammonia. Third, the fittings on a portable air tank had a blue residue that indicated the presence of anhydrous ammonia. Although the chemist testified that there was not an active manufacture taking place when the police arrived, he stated that it was clear that the manufacturing process had already been completed.
Appellant and two others were charged as a result of the search. Before trial, appellant filed a motion to suppress the evidence, which was denied by the trial judge. Appellant was tried on July 30, 2002. During trial, appellant made a motion to dismiss, which was also denied. Appellant was ultimately convicted, and this appeal followed.
We first address appellant’s challenge to the sufficiency of the evidence. See Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). A motion for directed verdict is a challenge to the sufficiency of the evidence. Cherry v. State, 80 Ark. App. 222, 95 S.W.3d 5 (2003). The test for determining sufficiency of the evidence is whether substantial evidence supports the verdict. Id. (citing Hatley v. State, 68 Ark. App. 209, 5 S.W.3d 86 (1999)). Evidence»is substantial when it is forceful enough to compel a conclusion and goes beyond mere speculation or conjecture. Id. (citing Wortham v. State, 65 Ark. App. 81, 985 S.W.2d 329 (1999)). Circumstantial evidence can be sufficient to sustain a conviction when it excludes every other reasonable hypothesis consistent with innocence. Mace v. State, 328 Ark. 536, 539, 944 S.W.3d 830 (1997). The question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide. Ross v. State, 346 Ark. 225, 230, 57 S.W.3d 152, 156 (2001). It is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance. Ark. Code Ann. § 5-64-401 (a) (Supp. 2003). Arkansas Code Annotated section 5-64-101 (m) (Repl.1997) defines “manufacture” in pertinent part as follows: “Manufacture” means the production, preparation, propagation,.compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis.
Appellant specifically contends that the evidence was insufficient to support the manufacturing methamphetamine conviction because of the absence of anhydrous ammonia and that anhydrous ammonia was necessary to the manufacturing process. This argument is without merit. The State’s forensic drug chemist testified that appellant was using the lithium metal and anhydrous ammonia method of manufacturing methamphetamine. The chemist testified that the crime lab could only test for the presence of ammonia because the lab could not specifically identify anhydrous ammonia. Ammonia was found in a shop vac that was used as a filter to pull the ammonia vapors out of the reaction chamber and to expel the vapors outside the building. The water inside the shop vac also had trace amounts of ammonia. A glass container also contained a white powder residue, sodium carbonate, which is a byproduct of using anhydrous ammonia, and the fittings on a portable air tank had a blue residue that indicated the presence of anhydrous ammonia. Although the chemist stated that there was not an active manufacture taking place when the police arrived, it appeared to him that the manufacturing process had already been completed. We hold that this testimony sufficiently explained the absence of the actual anhydrous ammonia in a lab where manufacturing had already occurred.
Appellant also argues that there was insufficient evidence of simultaneous possession of drugs and firearms. Appellant admitted that firearms were found in the shop in which the components used to manufacture methamphetamine were found. However, he asserts that because the State failed to prove that manufacturing had taken place (because there was no proof of any anhydrous ammonia) then there was insufficient evidence of simultaneous possession of drugs and firearms. Based on the analysis above, this argument is similarly without merit. A person commits the offense of simultaneous possession of drugs and firearms if he commits a felony violation of Ark. Code Ann. § 5-64-401, or attempts, solicits, or conspires to commit a felony violation of § 5-64-401 while in possession of a firearm. See Ark. Code Ann. § 5-74-106(a)(1) (Repl. 1997). It is a felony violation of Ark. Code Ann. § 5-64-401 to possess, manufacture, or attempt to manufacture methamphetamine. Ark. Code Ann. § 5-64-401(a)(l)(i) (Repl. 1997).
Under these facts, appellant clearly possessed and manufactured methamphetamine at some point before the police arrived. After they arrived, a loaded shotgun was found approximately three feet inside the shop. Three other pistols were also found in the shop. The .22 magnum was loaded. The other two were not. The chemist testified that methamphetamine residue was found on several items in the shop and that manufacturing had clearly taken place. The discovery of loaded weapons found in the same building where methamphetamine had recently been manufactured was sufficient to meet the burden of proving that appellant was in simultaneous possession of drugs and a firearm.
Within his challenge to the sufficiency of the evidence, appellant also argues that the trial court erred in enhancing appellant’s penalty in violation of Ark. Code Ann. § 5-64-418 (Supp. 2003) for manufacturing methamphetamine with minor children in the same immediate area. However, appellant failed to make this argument below. It is well settled that we will not consider an argument raised for the first time on appeal. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000) (citing Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998); McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997)).
Appellant’s next argument on appeal is that the trial court erred in denying his motion to dismiss and his motion to suppress the evidence. In reviewing the denial of a motion to suppress evidence, the appellate court makes an independent examination based upon the totality of the circumstances and reverses only if the decision is clearly against the preponderance of the evidence. Hilton v. State, 80 Ark. App. 401, 96 S.W.3d 757 (2003). A determination of the preponderance of the evidence depends heavily on questions of credibility and weight to be given testimony, and the appellate court defers to the superior position of the trial court on those questions. Id. Furthermore, a motion to dismiss constitutes a challenge to the sufficiency of the evidence. See Ark. R. Crim. P. 33.1(b) (2003); Porter v. State, 82 Ark. App. 589, 120 S.W.3d 178 (2003). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Gilbert v. State, 341 Ark. 601, 19 S.W.3d 595 (2000) (citing Dodson v. State, 341 Ark. 41, 14 S.W.3d 487 (2000)). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Id. Only evidence supporting the verdict will be considered. Id. (citing Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000)).
Appellant asserts that Paul Dumas, the magistrate in this case, was not approved by the city’s governing body as required by Ark. Code Ann. § 16-17-107(e) (Repl. 1999); thus, appellant’s motions should have been granted. Section 107(e) states that, “. . . the appointment of municipal court magistrates shall be subject to the approval of the governing body of each political subdivision. . . .” Without conceding that the appoint ment of the magistrate was not in full compliance with the statute, the State contends on appeal that a defacto magistrate’s authority can only be challenged in a direct proceeding, not a collateral proceeding. In doing so, the State relies on the holding in Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998). In Bell, the court stated that:
A defacto official is one who by some color of right is in possession of an office, and performs its duties with public acquiescence, though having no right in fact; the acts of defacto officials may not be questioned based upon of the lack of legal authority except by some direct proceeding instituted for the purpose by the State or by. someone claiming the office de jure, or when the person himself attempts to build up some right, or claim some privilege by reason of being the official he claims to be; in all other cases, the acts of an officer defacto are as valid and effectual while he retains the office as if he were an officer by right, and the same legal consequences will flow from them for the protection of the public and third parties.
Id. at 300, 973 S.W.2d at 814 (quoting Chronister v. State, 55 Ark. App. 93, 95, 931 S.W.2d 444, 445 (1996)). In Roberts v. State, 255 Ark. 183, 499 S.W.2d 600 (1973), the defendant challenged the authority of the deputy prosecutor to try him on the ground that he had not been reappointed after the elected prosecutor, who had originally appointed the .deputy prosecutor, began his second term. Our supreme court recognized that the deputy prosecutor was a de facto official and that, as such, the defendant was required to challenge his authority in a direct proceeding, rather than in the criminal proceeding against him. Id. Our supreme court in Roberts outlined what constitutes a collateral attack:
[There] can be gleaned several guidelines for determining whether a particular attack upon the title of a public official is “collateral.” By the very definition of the word if the attack is secondary, subsidiary, subordinate, i.e., related to the main matter under consideration but not strictly a part thereof, the attack is indirect and collateral. If the official’s tide is questioned in a proceeding to which he is not a party or which was not instituted specifically to determine the validity of his title the attack is collateral. If the title of the officer is questioned in a proceeding in which he is a party merely because he is acting in his official capacity the attack is collateral. Lasdy if the attack is made because it is necessary to show the officer’s want of title to lay a basis for some other relief the attack is collateral....
Id. at 186-87, 499 S.W.2d at 602 (quoting Smith v. Landsden, 212 Tenn. 543, 370 S.W.2d 557 (1963)). Thus, even if we find that Dumas was a defacto magistrate, appellant failed to properly challenge the magistrate’s authority through a direct proceeding.
Furthermore, appellant asserts that the magistrate in this case did not remain neutral and detached. Specifically, appellant argues that Dumas’s accompanying the officers to the site of the search gave the implication that Dumas did not remain neutral and detached. Appellant cites LO-JI Sales, Inc. v. New York, 442 U.S. 319 (1979), in support of this argument. In LO-JI Sales, Inc., the Court stated:
We need not question the subjective belief of the Town Justice in the propriety of his actions, but the objective facts of record manifest an erosion of whatever neutral and detached posture existed at the outset. He allowed himself to become a member, if not the leader, of the search party which was essentially a police operation. Once in the store, he conducted a generalized search under authority of an invalid warrant; he was not acting as a judicial officer but as an adjunct law enforcement officer. When he ordered an item seized because he believed it was obscene, he instructed the police officers to seize all “similar” items as well, leaving determination of what was “similar” to the officer’s discretion. Indeed, he yielded to the State Police even the completion of the general provision of the warrant. Though it would not have validated the warrant in any event, the Town Justice admitted at the hearing to suppress evidence that he could not verify that the inventory prepared by the police and presented to him late that evening accurately reflected what he had ordered seized.
Id. at 320. Factually, LO-JI can be distinguished from the case at hand. Even though the magistrate’s presence at the search scene was inappropriate, it is undisputed that Dumas stayed outside in the driveway during the execution of the search warrant and did not in fact participate in the actual search.
Appellant also asserts that Dumas lacked neutrality and detachment because one of the affiants for the search warrant was the chief of police of Plummerville, where Dumas also served as city attorney. However, appellant has not demonstrated that any prejudice resulted. This court has repeatedly stated that prejudice is not presumed, and we will not reverse absent a showing of prejudice. Bell, supra. In the present case, Chief Hartman of the Plummerville Police Department was one of the four affiants before Dumas. However, testimony showed that each of the officers were sworn, and following questions by Dumas regarding the affidavit, Dumas signed the affidavit. In this case, there is no further evidence to support a lack of neutrality or detachment on the part of Dumas. Based on our standard of review, we hold that the trial judge did not err in denying appellant’s motion to dismiss or his motion to suppress.
Based on the foregoing, we affirm on all points.
Robbins and Roaf, JJ., agree.
Appellant does not argue that the magistrate was not properly assigned in accordance with Amendment 80. Amendment 80 § 8 allows a District Court judge, with the concurrence of a majority of the Circuit Court Judges, to appoint magistrates, who shall be subject to the superintending control of the District Court and shall have power to perform such duties of the District Court as may be prescribed by Supreme Court rule. No Supreme Court rule currently exists, but because appellant does not raise tins argument we do not address it. | [
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John F. Stroud, Jr., Chief Judge.
This appeal is from a Cleburne County jury verdict awarding appellees Tommy Adams and Beatrice Adams, individually as the estate of James L. Adams, deceased, $100,000 against appellant Gordon Costner. The case arises from a long-running and violent land dispute that resulted in the death of James and the shooting of his son, Tommy. We hold that the jury’s verdict is supported by substantial evidence and affirm.
Procedural History
In the mid-1990s, James and appellant went to court over appellant’s dozing of Stoney Point Drive, which runs between two parcels of land owned by James. The judge found that appellant had the right to maintain the road and entered a mutual restraining order prohibiting the parties from harassing each other, noting that they had behaved immaturely and had used poor judgment. James and another son, Carl, were later held in contempt for violating this order by threatening appellant’s children with a gun.
On January 29, 1998, appellant encountered James and Tommy along their fence line by the side of the road. After the parties exchanged words, appellant went back to his house, where he called the sheriff and told him that there was going to be trouble, picked up a gun, and permitted Brent Grissom, who worked for appellant’s business, to accompany him back to the scene of the dispute. At the same time, Tommy returned to his house, told his mother to call 911, and picked up a shotgun before returning to the scene. Within a few minutes after appellant, Brent, and Tommy returned, Brent, using appellant’s gun, shot James and Tommy. James died at the scene, and Tommy was treated for a shoulder wound.
Appellees filed this suit against appellant and Brent, alleging assault, battery, negligence, and civil liability for violation of a criminal statute. Many of Beatrice’s claims against appellant asserted vicarious liability, under the doctrine of respondeat superior, for Brent’s actions. At trial, appellant presented evidence that Brent was not an employee of appellant but of appellant’s corporation, Costner Equipment Sales & Rental, Inc. He also introduced undisputed evidence that, at the time of the shooting, Brent’s work day had ended, and he was working on his own truck when appellant returned to call the sheriff. According to Brent, he chose to accompany appellant to the scene of the dispute because he knew that appellant was a hothead, and he hoped to have a calming influence on him. Brent testified that he used appellant’s gun to shoot James and Tommy after James aimed a rifle at appellant. On the other hand, Tommy testified that shots rang out after appellant raised a long piece of wood over his head and acted as if he was going to hit Tommy with it. Brent verified that appellant picked up the piece of wood before James aimed the rifle at appellant.
The trial judge denied appellant’s motions for directed verdict, and the jury awarded appellees $100,000 against appellant and Brent. The verdict was entered against appellant and Brent jointly and severally. Brent has not appealed from the judgment entered on the verdict. Appellant argues on appeal that the trial judge erred in denying his motions for summary judgment and for directed verdict.
Summary Judgment
We cannot address the summary judgment issue. The denial of a motion for summary judgment is not an appealable order; even after there has been a trial on the merits, the denial order is not subject to review on appeal. Bharodia v. Pledger, 340 Ark. 547, 11 S.W.3d 540 (2000); Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991).
Directed Verdict
Our standard of review for the denial of a motion for directed verdict is whether the jury’s verdict is supported by substantial evidence, which is evidence that goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. D’Arbonne Constr. Co. v. Foster, 80 Ark. App. 87, 91 S.W.3d 540 (2002). In determining whether there is substantial evidence, we view the evidence in the light most favorable to the party against whom the verdict is sought and give the evidence its strongest probative force. Id.
The jury rendered a general verdict that stated: “We, the jury, find for the Plaintiffs on their Complaint against the Defendants, Gordon Costner and Brent Grissom, and assess their damages in the amount of One Hundred Thousand ($100,000.00) Dollars.” When the jury’s verdict is rendered on a general verdict form, it is an indivisible entity or, in other words, a finding upon the whole case. JAG Consulting v. Eubanks, 77 Ark. App. 232, 72 S.W.3d 549 (2002). We will not speculate on the basis of a jury’s general verdict. Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997). When special interrogatories are not requested, we are left in the position of not knowing the basis for the jury’s verdict and will neither question nor theorize about the jury’s findings. Id. Therefore, we have no way of knowing the basis upon which the jury awarded damages ; even if appellees established only one claim, the verdict must be affirmed.
Respondeat Superior
We agree with appellant that he cannot be liable for Brent’s actions under the doctrine of respondeat superior because appellees did not establish that Brent worked for appellant. Although Brent testified that he had occasionally helped with appellant’s cattle, his payroll records clearly demonstrate that his employer was appellant’s corporation.
Even if appellees had proved that Brent was appellant’s employee, the doctrine of respondeat superior has no application in this case. Brent testified that his work hours were from 7:00 - 7:30 a.m. to 3:30 - 4:00 p.m. and that his duties included repairing heavy equipment, sandblasting, painting, and “whatever [appellant] needed around the shop.” Brent stated that when appeHant came back to caH the sheriff around 4:20 p.m., his work day had ended and that he was working on his personal vehicle.
The doctrine of respondeat superior assigns liability to an employee’s expected acts that are incidental to the employee’s duties or that benefit the employer; liability attaches when an employee commits a foreseeable act within the scope of his employment at the time of the incident. Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997). The scope of employment includes acts done with the object and purpose of the enterprise and not acts that are strictly personal. Id. In Regions Bank & Trust v. Stone County Skilled Nursing Facility, Inc., 345 Ark. 555, 49 S.W.3d 107 (2001), the supreme court held that a nursing home was not Hable under the theory of respondeat superior for a nursing assistant’s sexual assault of a patient. Following Porter v. Harshfield, supra, the court held that the nursing assistant was not, “by any stretch of the imagination, acting within the scope of his duties” when he assaulted the patient, even though his job duties included bathing her. 345 Ark. at 567, 49 S.W.3d at 115. Describing the nursing assistant’s actions as “purely personal,” the court held that they were not expectable in view of his duties as a nursing assistant. Id.
In light of these decisions, there is no evidence to support holding appeHant vicariously liable for Brent’s actions. However, as explained below, there is substantial evidence to support the verdict based on appeHant’s own conduct.
Facts
Lewis Short, the 911 dispatcher who took appeHant’s caH, testified that, after appeHant related the problem, he (Short) advised appeHant not to return to the scene until a deputy arrived. He said that appeHant responded, “I know there’s going to be problems.” Robbie Cooper, a marshal, testified that when he arrived at the scene, James pointed at appeHant and Brent and stated, “he shot us,” and “he ordered him to.” Brent testified that he had known appellant to be hot-headed and that when appellant came back to call the sheriff to prevent James and Tommy from blocking the road, he offered to go back to the scene to be a “calming influence” on him. He stated that appellant told him to stay in the car because he was afraid for his safety.
Brent testified that he noticed a .357 Ruger Black Hawk gun lying between the car seats on the way to the scene. Brent said that when they arrived at the scene, he stayed in the car as appellant got out; that James was on the side of the road tying a fence wire and would not stop doing so when appellant told him to stop; that appellant then got “excited and upset” and told Tommy to make his father stop because a dozer was coming in; that Tommy kept looking down at a “one-by-four” on the ground; that appellant grabbed the one-by-four and pulled it back behind his back; and that James then climbed over the fence. Brent testified that, at that point, he could “feel something was wrong”and he pulled the gun out of its holster; that as James slowly walked about twenty feet toward a tree, Brent left the car and walked parallel to James; and that appellant was still holding the piece of wood. Brent said that a few seconds after appellant threw the wood away, James picked up a shotgun; that Brent yelled at appellant to get down because James had a gun; that Brent pulled the pistol up and told James to drop the gun; and that James dropped to one knee, pulled the shotgun up to his shoulder, “drew down on” appellant, took the safety off, and “pulled down on a bead.” Brent stated that as he again told James to drop the shotgun, appellant ran for the car, and James touched the trigger. At that point, Brent said, he shot James just below the ribs on his left side because he did not want to kill James, just put him on the ground.
Brent testified that he then told Tommy to get on the ground, and that Tommy did not do so, but came toward Brent. Brent said that he then saw James get back up on one knee and that he saw Tommy reaching behind his back, inside his shirt. He said that he again told Tommy to get down, and that Tommy lunged at him. Brent said that he then shot Tommy in the shoulder because he did not want to kill him, just put him on the ground. He said that James then aimed the shotgun at him again, and that he shot James in the chest.
Appellant admitted that he returned to the scene with his gun, even though he knew the confrontation could involve gunplay, in order to prevent James and Tommy from putting the fence up. He also admitted that he picked up and raised the board as he told Tommy to make his dad stop violating the previous court order.
Tommy testified that when appellant returned to the scene, he jumped out of the car, cursed at him and his father, and picked up a board, raising it over his head as if to swing it at Tommy. Tommy said that, after he and James had been shot, appellant said: “Did you get ’em?” and Brent replied, “I got ’em both.”
Assault and Battery
Assault has been defined as an intentional attempt by a person, by force or violence, to do an injury to the person of another, or as any attempt to commit a battery, or any threatening gesture showing in itself or by words accompanying it an immediate intention, coupled with a present ability, to commit a battery. 6 AM. JUR. 2d Assault and Battery § 1 (1999). Battery is a wrongful or offensive physical contact with another through the intentional contact by the tortfeasor and without the consent of the victim, the unpermitted application of trauma by one person upon the body of another person. 6 Am. Jur. 2d Assault and Battery § 3 (1999). Liability for an assault or assault and battery is not necessarily restricted to the actual participants; any person who is present, encouraging, or inciting an assault and battery by words, gestures, looks, or signs, or who by any means approves the same, is in law deemed to be an aider and abettor and liable as a principal, and such person assumes the consequences of the act to its full extent as much as the party who does the deed. Hargis v. Horrine, 230 Ark. 502, 323 S.W.2d 917 (1959).
Clearly, appellees proved that appellant is liable for assault in picking up the piece of wood, raising it, and preparing to swing it at Tommy. Additionally, Brent obviously committed battery against Tommy and James. The evidence, therefore, supports a finding that appellant aided and abetted the battery. The verdict can be affirmed on this basis.
Civil Liability for Violation of a Criminal Statute
Arkansas Code Annotated section 16-118-107 (Supp. 2001), which was enacted in 1997, provides:
(a)(1) Any person injured or damaged by reason of conduct of another person that would constitute a felony under Arkansas law may file a civil action to recover damages based on the conduct.
(2) The burden of proof for showing conduct that constituted a felony shall be a preponderance of the evidence.
(3) If the person who is injured or damaged prevails, he or she shall be entitled to recover costs and attorney’s fees.
(b) The action may be maintained by the person who was injured or damaged or, after the person’s death, the executor, administrator, or representative of his or her estate.
(c) The remedy provided in this section shall be in addition to any other remedies in law or equity.
Beatrice asserted in her complaint that this statute provided civil liability for the defendants’ violations of “Ark. Code Ann § 5-10-101 et seq.” and “§ 5-2-403.” Arkansas Code Annotated section 5-10-101 (Repl. 1997), which deals with capital murder, and section 5-10-102, which addresses murder in the first degree, do not apply here. Although murder in the second degree, addressed in section 5-10-103, might apply, manslaughter, which is covered by section 5-10-104, clearly applies to Brent’s actions. It provides in part:
(a) A person commits manslaughter if:
(1) He causes the death of another person under circumstances that would be murder, except that he causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse. The reasonableness of the excuse shall be determined from the viewpoint of a person in the defendant’s situation under the circumstances as he beheves them to be;
(3) He recklessly causes the death of another person ....
Arkansas Code Annotated section 5-2-402 (Repl. 1997) provides that a person is criminally hable for the conduct of another person when he is an accomplice of another person in the commission of an offense. Section 5-2-403 states in relevant part:
(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(1) Solicits, advises, encourages, or coerces the other person to commit it; or
(2) Aids, agrees to aid, or attempts to aide the other person in planning or committing it; or
(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.
The evidence supports findings that Brent committed manslaughter and that appellant was his accomplice. Therefore, the verdict can also be affirmed on this ground.
Negligence
To establish a prima facie case in tort, a plaintiff must show that damages were sustained, that the defendant was negligent, and that such negligence was a proximate cause of the damages. J.E. Merit Constructors, Inc. v. Cooper, 345 Ark. 136, 44 S.W.3d 336 (2001); Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997). Negligence is the failure to do something that a reasonably careful person would do, and a negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner. Tedder v. Simmons First Bank of NWA (unpublished opinion, February 19, 2003): In order to prove negligence, there must be a failure to exercise proper care in the performance of a legal duty that the defendant owed the plaintiff under the circumstances surrounding them. Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997). The question of what duty, if any, is owed by one person to another is always a question of law. Heigle v. Miller, 332 Ark. 315, 965 S.W.2d 116 (1998). Proximate cause is that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. Chambers v. Stern, 347 Ark. 395, 64 S.W.3d 737 (2002), cert. denied, 536 U.S. 940 (2002). When there is evidence to establish a causal connection between the negligence of the defendant and the damage, it is proper for the case to go to the jury. Id. Proof of the violation of a criminal statute is evidence tending to show negligence. Wilson v. Coston, 239 Ark. 515, 390 S.W.2d 445 (1965).
The mutual restraining order established appellant’s duty not to engage in confrontations with James and Tommy; appellant knowingly breached this duty. As the gun that killed James and wounded Tommy was the one that appellant brought back to the scene, appellees established a causal connection between appellant’s negligence and the damage. Thus, the verdict can also be affirmed on the negligence claim.
Affirmed.
Robbins and Crabtree, JJ., agree.
Appellant has not challenged the amount of the damages awarded. We also note that the time to object to any irregularity in the verdict form is prior to the discharge of the jury. Smith v. Hansen, 323 Ark. 188, 914 S.W.2d 285 (1996). Appellant failed to make such an objection. | [
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Olly Neal, Judge.
On appeal, appellant Steve Gunter challenges the Board’s denial of benefits. The Board determined that appellant voluntarily and without good cause connected to work left his last work with BWJ Electric Service. As substantial evidence does not support the Board’s decision, we reverse and remand for an award of benefits.
In unemployment compensation cases, findings of fact by the Board are conclusive if supported by substantial evidence, and review by this court is limited to determining whether the Board could reasonably reach its decision upon the evidence before it. Hiner v. Director, 61 Ark. App. 139, 965 S.W.2d 785 (1998). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Rollins v. Director, 58 Ark. App. 58, 945 S.W.2d 410 (1997). This court reviews the evidence and all reasonable inferences deducible therefrom in a light most favorable to the Board’s findings. Barber v. Director, 67 Ark. App. 20, 992 S.W.2d 159 (1999). We do not conduct a de nouo review of the evidence in an appeal from a Board decision. Hiner, supra. Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Niece v. Director, 67 Ark. App. 109, 992 S.W.2d 169 (1999). An administrative agency, like a jury, is free to believe or disbelieve any witness, and the appellate court gives the evidence its strongest probative force to support the administrative decision. Singleton v. Smith, 289 Ark. 577, 715 S.W.2d 437 (1986).
Gunter was denied benefits pursuant to Ark. Code Ann. § 11-10-513 (Repl. 2002) on the finding that he voluntarily and without good cause connected with the work, left his last work. “In determining . . . the existence of good cause, there shall be considered the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience and prior earnings, the length of his unemployment, his prospects for obtaining work in his customary occupation, and the distance of available work from his residence, and prospects for obtaining local work.” Ark. Code Ann. § ll-10-515(c)(1) (Repl. 2002). “Good cause” has been defined as “a cause that would reasonably impel the average able-bodied, qualified worker to give up his or her employment.” Ahrend v. Director, 55 Ark. App. 71, 930 S.W.2d 392 (1996); Teel v. Daniels, 270 Ark. 766, 769, 606 S.W.2d 151, 152 (Ark. App. 1980). It is dependent not only on the reaction of the average employee, but also on the good faith of the employee involved, which includes the presence of a genuine desire to work and to be self-supporting. Id. The question of what is good cause must be determined in the light of the facts in each case. Barber, supra.
Gunter testified that he worked for his employer from August of 2001 to August of 2002 as an assistant to his son-in-law, journeyman electrician Jason McElhaney. He stated that he quit because of the verbal and physical abuse to him by McElhaney. Gunter described several instances of physical abuse, even one incident that occurred in front of BWJ Electric Service co-owner James Shelton. Gunter stated that when Mr. Shelton observed Mr. McElhaney choking him, “he was standing right there and Jason grabbed me by the neck and started screaming and cursing and James just stood there and looked at us ... he didn’t say anything, he just looked at us. He [was] less than 10 feet away, if that far.” Thereafter, an altercation took place where McElhaney attacked Gunter at home. Gunter subsequently called co-owner Bruce Steinhardt and told him:
“Bruce this is Steve, I don’t know what Jason told you about what happened,” I said, “I can’t work with him and I quit. I just can’t work with him,” and, I said, “with him treating me like that I can’t work with him.” And Mr. Steinhardt said, “Take care of yourself, goodbye.”
In making its determination, the Board stated that it looked to the degree of risk to Gunter’s health and determined that he was verbally abused and physically attacked by his supervisor, once in the presence of the co-owner of the business. The Board further recognized that while verbal and/or physical attack of an employee by a supervisor or co-worker could constitute good cause, the question became whether or not Gunter “took appropriate steps to prevent the mistreatment from continuing.” See Teel v. Daniels, supra. Such reasonable efforts included taking appropriate measures to prevent an unsatisfactory situation on the job from continuing. Id. However, an employee is not required to take measures to resolve a problem with his employer if such measures would constitute nothing more than a futile gesture. Oxford v. Daniels, 2 Ark. App. 200, 618 S.W.2d 171 (1981).
Viewing the evidence in the light most favorable to the Board, we hold that the Board’s finding that Gunter voluntarily quit his employment without good cause connected to the work is not supported by substantial evidence. Gunter testified as to- the verbal and physical abuse to which he was subjected. In one instance, he even stated that a co-owner was present. In its opinion, the Board announced that “although the employer was obviously aware of the situation between the claimant and his son-in-law/supervisor, it may have considered that the two were engaged in horseplay, given that the claimant did not advise the employer otherwise.” This finding is not supported by the record and is an assumption of the Appeal Tribunal and the Board. The only evidence before the Board was Gunter’s testimony, as the Appeal Tribunal could not, after several attempts, reach BWJ Electric Service for the hearing. No reading of Gunter’s testimony can support such a finding. Therefore, we reverse and remand for an award of benefits.
Reversed and remanded for award of benefits.
Gladwin and Robbins, JJ., agree. | [
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John B. Robbins, Judge.
Appellant Charles Cogburn and appellee Mary Sue Wolfenbarger are the son and daughter of Laura Cogburn. Ms. Wolfenbarger filed a petition for guardianship of the person and estate of Laura Cogburn. Mr. Cogburn answered, requesting that the petition be denied. Thereafter, an attorney ad litem was appointed to represent Ms. Cogburn.
After a temporary hearing, the trial court found sufficient grounds to find Ms. Cogburn incompetent, and a hearing on a permanent guardianship was scheduled. Subsequent to the final hearing, the trial court entered an order denying Ms. Wolfenbarger’s petition for guardianship of the person, but appointing Ms. Wolfenbarger as permanent guardian of the estate.
Mr. Cogburn now appeals, arguing that the trial court erred -in granting Ms. Wolfenbarger’s petition for guardianship of the estate. For reversal, he argues that the trial court’s decision was clearly erroneous, and that it was impermissibly based on medical evaluations that failed to satisfy the requirements of the Arkansas Code.
Ms. Wolfenbarger testified at the permanent guardianship hearing, which was held on March 7, 2003. She stated that Ms. Cogburn gave appellant’s son $35,000 to pay off debts, and subsequently gave him another $30,000.
Ms. Cogburn testified that she does not want a guardian. She stated that she is able to take care of her home and garden, pays her bills, and drives to the grocery store. Ms. Cogburn maintained that .she gave money to her grandson for hot checks, and that he promised to pay her back.
On cross-examination, Ms. Cogburn stated that she gave her grandson about $3,000, and then agreed that it is possible the amount was $35,000. Ms. Cogburn could not remember giving him any more money after that, and further stated she did not remember “who got the money when my bank account went from $109,000 to $55,000.”
Two medical opinions were admitted into evidence in this case. The appellee offered a letter written by Dr. Matthew D. Hulsey, which states:
I, Matthew D. Hulsey, D.O., Board Certified Family Practitioner, examined Laura Cogburn on April 5, 2002. During this examination I found Ms. Cogburn to be a pleasant 90-year-old white female that complains of short-term memory loss. Physical examination found her to be in good physical health. A cognitive screening test was performed which was suggestive of an impairment of cognition. At this time I do not feel that Ms. Cogburn is able to make reasonable or informed decisions regarding her affairs. At this time I do not feel that her condition is reversible.
The appellant offered the following letter by Dr. William E. Beebe:
I examined Mrs. Laura Cogburn on April 19, 2002. Mrs. Cogburn exhibits signs of senile dementia and I have diagnosed'her with this disease process. I believe Mrs. Cogburn is not incapacitated and can voice her desires and wishes coherently.
In bench trials, the standard of review on appeal is whether the trial court’s findings were clearly erroneous. Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997). On appeal, Mr. Cogburn argues that the trial court’s decision to grant the petition for guardianship of the estate was clearly erroneous.
More specifically, Mr. Cogburn argues that certain statutory requirements were not satisfied, and that this requires reversal. Arkansas Code Annotated section 28-65-211(b)(1) (1987) provides:
In determining the incapacity of a person for whom a guardian is sought to be appointed for cause other than minority, disappearance, or detention, or confinement by a foreign power, the court shall require that the evidence of incapacity include the oral testimony or sworn written statement of one (1) or more qualified professionals, whose qualifications shall be set forth in their testimony or written statements.
Mr. Cogburn asserts that there was no compliance with the above provision because there was a lack of oral testimony or a sworn written statement from a qualified professional. Mr. Cogburn also cites Ark. Code Ann. § 28-65-212 (Supp. 1999), which provides, in pertinent part:
(a) A professional evaluation shall be performed prior to the court hearing on any petition for guardianship except when appointment is being made because of minority, disappearance, detention, or confinement by a foreign power, or pursuant to § 28-65-218. The evaluation shall be performed by a professional or professionals with expertise appropriate for the respondent’s alleged incapacity.
(b) The evaluation shall include the following:
(1) The respondent’s medical and physical condition;
(2) His adaptive behavior;
(3) His intellectual functioning;
(4) Recommendation as to the specific areas for which assistance is needed and the least restrictive alternatives available.
(c)(1) If no professional evaluations performed within the last six (6) months are available, the court will order an independent evaluation.
(2) If the petition is granted, the cost of the independent evaluation will be borne by the estate of the incapacitated person. In the event the petition is denied, the costs wifi be borne by the petitioner.
Mr. Cogburn notes that the evaluations by the two doctors in this case were not performed within six months of the final hearing. He further argues that all of the elements of section 28-65-212(b) were not satisfied because, while each medical opinion included evaluations concerning Ms. Cogburn’s medical and physical condition, and her intellectual functioning, neither included an evaluation of her adaptive behavior. Mr. Cogburn cites In the Matter of Bailey, 299 Ark. 352, 771 S.W.2d 779 (1989), where the supreme court held that compliance with section 28-65-212(b) is mandatory, and that the professional evaluation of an alleged incompetent must include the four specific findings.
We agree that the trial court’s finding of incapacity was clearly erroneous. It is undisputed that there was no oral testimony or sworn written statement of a qualified professional as required by Ark. Code Ann. § 28-65-211(b)(1). Moreover, as was the case in In the Matter of Bailey, supra, the medical evaluations did not establish findings with respect to adaptive behavior. In that case our supreme court gave the following analysis of Ark. Code Ann. § 28-65-212(b):
The statute sets forth four (4) very specific findings which “shall” be included in the evaluation. The word “shall” when used in a statute means that the legislature intended mandatory compliance with the statute unless such an interpretation would lead to absurd results. Loyd v. Knight, 288 Ark. 474, 706 S.W.2d 393 (1986). We cannot say that mandatory compliance with this statute would lead to absurd results. Therefore, the professional evaluations should have included the four specific findings.
299 Ark. at 354, 771 S.W.2d at 781.
Ms. Wolfenbarger argues that the arguments being raised on appeal were not raised below and are thus not preserved for review. While it is true that these specific arguments were not addressed to the trial court at the final hearing, this was unnecessary. In In the Matter of Bailey, supra, the supreme court held that where the finding of incapacity was based in part upon mandatory professional evaluations that did not satisfy the statutory requirements of Ark. Code Ann. § 28-65-212(b), the finding of incapacity was clearly erroneous. The finding of the trial court in the instant case was in part based on the medical evaluations of Drs. Hulsey and Beebe, and because neither of these evaluations satisfied all of the statutory requirements, the finding of the trial court was clearly erroneous. It was not incumbent upon appellant to ask the trial court to consider the relevant statutes that must be satisfied prior to a finding of incapacity. Furthermore, Rule 52(b) (2) of the Arkansas Rules of Civil Procedure provides that, in a bench trial, the sufficiency of the evidence to support the trial court’s findings may be raised whether or not any objection was made below.
Our review in probate cases is de novo, just as it is in equity cases. In re Estate of Jones, 317 Ark. 606, 879 S.W.2d 433 (1994). But the rule is well established that while we have the power to decide equity cases de novo on the record before us, in appropriate cases we also have the authority to remand such cases for further action. Warren v. Tuminello, 49 Ark. App. 126, 898 S.W.2d 60 (1995). Where a case has been once heard upon the evidence or there has been a fair opportunity to present it, we would not usually remand a case solely to give either party an opportunity to produce other evidence. Moore v. City of Blytheville, 1 Ark. App. 35, 612 S.W.2d 327 (1981). This rule is not imperative, and this court has the power, in furtherance of justice, to remand any case in equity for further proceedings, including hearing additional testimony. Id. In this case, in the furtherance of justice, we think it best to remand for further proceedings on appellees’ petition for guardianship of the estate.
Reversed and remanded.
Bird, Griffen, Crabtree, and Roaf, JJ., agree.
Baker, J., dissents.
The appellee argues that Mr. Cogburn has no standing to bring this appeal because he was not a party below. We disagree. Mr. Cogburn was given notice of the hearing for the appointment ofa guardian as required by Ark. Code Ann. § 28~65-207(b)(5) (Supp. 1999). He filed an answer to appellee’s petition and appeared at both the temporary and permanent hearings to contest the guardianship. Mr. Cogburn was an interested party to the action below and has standing to appeal from the trial court’s order. | [
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Andree Layton Roaf, Judge.
Appellant Elizabeth Page and appellee Lamar Anderson were divorced on May 31, 2002, after thirty-one years of marriage. Elizabeth now challenges four post-decree rulings in which the trial court: 1) refused to divide as marital property Lamar’s undisclosed interest in a condominium, 2) awarded Lamar $8,850 in attorney fees, 3) refused to hold-Lamar in contempt, and 4) held Elizabeth in contempt. We affirm the trial court’s rulings.
The only area of contention in the parties’ divorce was property division. On May 8, 2002, the parties agreed in open court on the division of a portion of their property, although the record does not contain the transcript of their agreement. The remainder of the property was divided by the trial court, and a decree was entered on May 31, 2002. The court’s division of property in the May 31 decree is not in controversy, so we will not set out the details of the property division except where relevant to the contempt issues discussed later in this opinion. All issues on appeal arise from orders entered after the May 31 decree.
Lamar’s Interest In The Condominium As Marital Property
On May 10, 2002, two days after the final divorce hearing, Lamar executed a real-estate contract for the purchase of a condominium. He wrote the seller a $10,000 earnest-money check on May 12, the source of which is not revealed in the record, and closed on the purchase on July 3, 2002. Lamar’s execution of the contract was not revealed to Elizabeth prior to the entry of the divorce decree. However, she discovered it at some point, and on August 16, 2002, she filed a motion to set the decree aside. She alleged that Lamar had fraudulently failed to disclose his interest in the condominium and asserted that, because the condominium was acquired prior to the divorce, it was marital property and should have been divided accordingly.
At a November 8, 2002 hearing on the motion, Elizabeth testified that she was entitled to an interest in the condominium because Lamar purchased it before they were divorced, because Lamar had “cheated” her, and because anybody would want to “stick it to him.” However, she acknowledged that she had nothing to do with his acquisition of the property. Lamar testified that he had not tried to defraud Elizabeth out of her interest in the property and that he had no agreement to buy the property before the divorce hearing on May 8.
The evidence adduced at the hearing revealed that Lamar had contemplated buying the condominium as early as December 2001 for his post-divorce residence. However, it was not until May 10, 2002, two days after the final divorce hearing, that Lamar actually signed a contract to purchase the condominium. According to Robert King of the Bank of Fayetteville, Lamar sought a $420,000 loan to purchase the condominium on June 4, 2002. King said that Lamar had not spoken to him about the loan prior to May 31, 2002. A loan commitment was drafted by King on July 1, 2002, for $420,000, to be secured by the condominium itself. According to King, there was no problem in getting the loan approved because the condominium appraised for $820,000.
Richard Alexander, one of the owners of the condominium, testified by deposition on September 3, 2002, that Lamar had been talking about buying the condominium “for months.” However, it was Alexander’s understanding that Lamar could not make the purchase until the divorce was final. Alexander told Lamar prior to the divorce proceeding the price for which he would sell the condominium and told Lamar that, if he got another offer, he would give Lamar a chance to match the offer. Ultimately, no one made an offer, and Lamar signed the contract on May 10, 2002.
The trial court declined to set aside the decree and ruled that Lamar had not committed fraud in connection with his purchase of the condominium. The court further declared that the condominium was not marital property but that, even if it was, an unequal division of it should be made to Lamar “based upon the Court specifically finding that the evidence indicates that the condominium was acquired by the sole contribution of [Lamar] and that [Lamar] was the only party at risk on the purchase of the condominium.” Elizabeth contends that this ruling was in error.
This court reviews division of marital property cases de novo. Copeland v. Copeland, 84 Ark. App. 303, 139 S.W.3d 145 (2003). In reviewing a trial court’s decision on whether an item is marital property, we will not reverse unless the court’s ruling is clearly erroneous. See Nicholson v. Nicholson, 11 Ark. App. 299, 669 S.W.2d 514 (1984).
We first consider whether Lamar’s execution of the real-estate purchase contract created a property interest. We believe that it did. In executing the contract, Lamar acquired the right to enforce the sale of the condominium. See generally Bharodia v. Pledger, 340 Ark. 547, 11 S.W.3d 540 (2000) (recognizing that the supreme court has allowed both the buyers and the sellers of land to seek specific performance on real-estate contracts); Hawkins v. Lamb, 210 Ark. 1, 194 S.W.2d 5 (1946) (recognizing that a buyer may sue for specific performance of a real-estate contract). Further, a contract for the sale of real estate creates in the purchaser an equitable estate that is alienable by deed. See McKim v. McLiney, 250 Ark. 423, 465 S.W.2d 911 (1971). Thus, in executing the contract on May 10, 2002, Lamar acquired an enforceable right, and our courts have recognized that enforceable rights may be classified as marital property, if acquired during the marriage. See, e.g., McDermott v. McDermott, 336 Ark. 557, 986 S.W.2d 843 (1999); Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987).
Elizabeth contends that Lamar’s rights in the condominium were acquired during the marriage because they were acquired prior to the entry of the divorce decree. She relies on the case of Price v. Price, 341 Ark. 311, 16 S.W.3d 248 (2001), for its holding that a divorce is not final until the divorce decree is entered as provided in Ark. R. Civ. P. 58 and Administrative Order No. 2. Lamar contends that his interest was not acquired during the marriage because it was acquired after the parties agreed to a property division at the May 8, 2002, divorce hearing.
It is undisputed that Lamar acquired an enforceable right to purchase the condominium on May 10, 2002, prior to the entry of the divorce decree. Given the clear holding in Price that the entry of the divorce decree determines the date of dissolution of the marriage, we cannot say that Lamar’s interest was not marital property. He and Elizabeth were still married when he acquired his interest. We therefore must disagree with the trial court’s conclusion on this point. However, we affirm the trial court’s alternative decision to award the condominium to Lamar as an unequal division of marital property.
The overriding purpose of the property-division statute is to enable the court to make a division of property that is fair and equitable under the circumstances. Hoover v. Hoover, 70 Ark. App. 215, 16 S.W.3d 560 (2000). A trial judge’s unequal division of marital property will not be reversed unless it is clearly erroneous. Keathley v. Keathley, 76 Ark. App. 150, 61 S.W.3d 219 (2001). Arkansas law provides that, at the time a divorce decree is entered, all marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable. Ark. Code Ann. § 9-12-315(a) (Repl. 2002). In the event the court finds that an equal division would be inequitable, it shall make some other division that it deems equitable, taking into consideration the many factors set forth in section 9-12-315(a)(1)(A), which include: length of the marriage; the age, health, and station in life of the parties; each party’s occupation; amount and sources of income; vocational skills; employability; estate, liabilities, and needs of each party and their opportunity for acquisition of further assets and income; contribution of each party in the acquisition, preservation, or appreciation of the marital property, including services as a homemaker; and federal income tax consequences of the division of property. While the statute requires the court to consider certain factors and to state the basis for an unequal division of marital property, it does not require the court to list each factor in its order or to weigh all factors equally. Keathley, supra. Further, the specific enumeration of these factors does not preclude a trial court from considering other relevant factors, where exclusion of other factors would lead to absurd results or deny the intent of the legislature to allow the court to make an equitable division of property. Id.
We do not believe that the trial court’s distribution of this property to Lamar was clearly erroneous. The court specifically found that the condominium was acquired by the sole contribution of Lamar and that Lamar was the only party at risk on the purchase of the condominium. Further, there is no evidence that Lamar used undisclosed marital funds to purchase the condominium. Moreover, he did not take title to it until after the divorce was final, and he intended to use the condominium as his post-marital residence. All of these factors support an equitable award of the condominium to Lamar as an unequal division of marital property. We therefore affirm the trial court on this basis.
Attorney Fee Award
After a November 8, 2002, contempt hearing, the trial court informed Lamar’s counsel that it would award attorney fees to Lamar, based on a finding that Elizabeth was in contempt. Counsel was asked to submit a bill and apparently prepared an affidavit setting out fees; however, the affidavit is not in the record. At a subsequent hearing, the court awarded Lamar’s counsel $8,850 in attorney fees. Elizabeth filed a motion for reconsideration, alleging that, because the court had reduced Lamar’s counsel’s fee request by over sixty-six percent, the fee request was excessive and counsel should not be entitled to any fee at all. The court ruled as follows:
[T]he attorney’s fees awarded [to Lamar’s] attorneys represents the amount which the Court believed a fair, just and equitable fee for plaintiff [Elizabeth] to pay. The Court arrived at that figure after considering all relevant factors set out by Arkansas case law, the Court’s examination of the affidavit submitted by defendant’s attorneys and the Court’s personal observation of the proceedings.
(Emphasis in original.) Elizabeth argues on appeal that the trial court erred in awarding attorney fees to Lamar.
Courts have the inherent power to award attorney fees in a domestic relations proceeding. Miller v. Miller, 70 Ark. App. 64, 14 S.W.3d 903 (2000). The trial court has considerable discretion in the allowance of attorney fees in a divorce case, and, absent an abuse of that discretion, the fixing of the amount of fees will not be disturbed on appeal. Id.
Elizabeth argues that a lawyer who seeks to collect fees far in excess of a reasonable amount should be allowed no fee at all. She claims that such a practice violates Rule 1.5 of the Model Rules of Professional Conduct and allows lawyers to “pad” their fee requests. We are unable to reach the merits of this issue. The record does not contain the fee affidavit submitted by Lamar’s counsel. Therefore, we have no way to verify that counsel asked for $23,285.32, as Elizabeth asserts, nor do we have any means to evaluate fees charged by counsel to determine if they are excessive or unreasonable. We do not consider matters outside the record to determine issues on appeal. Arkansas River Rights Comm. v. Echubby Lake Hunting Club, 83 Ark. App. 276, 126 S.W.3d 738 (2003). However, even if we were to reach the merits, we disagree with Elizabeth’s characterization of the trial court’s fee award as an implicit finding that the total fees sought were unreasonable. It appears that the trial court, in awarding a lesser amount, was simply determining what portion of the fees Elizabeth should pay; there is no finding that counsel’s overall request was inflated or unreasonable. We therefore affirm on this point.
Failure To Hold Lamar In Contempt
Elizabeth argues that the trial court should have held Lamar in contempt for his failure to abide by the dictates of an April 3, 2002 order and for his failure to pay certain money to her as required by the May 31, 2002 divorce decree. We limit our discussion to Elizabeth’s argument regarding the divorce decree because neither the April 3 order nor a portion of Lamar’s testimony that Elizabeth asserts was in contempt of it are contained in the record. As stated earlier, we do not consider matters outside the record on appeal. Arkansas River Rights Comm. v. Echubby Lake Hunting Club, supra.
In dividing the parties’ property in the May 31, 2002, decree, the trial court 1) ordered Lamar to deed his interest in the marital home to Elizabeth, for which Elizabeth would pay him $55,000, 2) ordered Elizabeth to convey her stock in Hugo’s, Inc., to Lamar, for which Lamar would pay her $225,000, and 3) ordered that the parties’ limited-liability company would convey a building at 25 North Block Street to Lamar, for which Lamar would pay Elizabeth $212,500. The court also ruled with regard to three lines of credit that the parties had at Arvest Bank, encompassing a $285,000 debt on the North Block Street building, a $76,000 debt on the home, and a $25,000 signature loan. Elizabeth was ordered to repay Arvest $68,742.99 that she had withdrawn from the three lines of credit, and each party was ordered to seek refinancing of one-half of the total debt remaining to Arvest.
Elizabeth contended at the November 8 hearing that Lamar should be held in contempt because he failed to pay her the $437,500 he owed under the decree, despite the fact that he had obtained a $600,000 loan commitment from the Bank of Fay-etteville for that purpose. The trial court declined to hold Lamar in contempt.
Refusal of a trial court to punish an alleged contemnor will be reviewed by an appellate court only to determine whether there has been an abuse of discretion. Warren v. Robinson, 288 Ark. 249, 704 S.W.2d 614 (1986). We find no abuse of discretion here. The loan commitment that Elizabeth refers to provides that the loan will be secured in part by a first mortgage on the building at 25 North Block. However, that building was still encumbered by a $285,000 mortgage at Arvest Bank. Lamar testified at the November 8 hearing that he could not follow through with obtaining the loan until the Arvest note was paid off. He complained that Elizabeth had not met her obligation to pay off one-half of the Arvest note and, thus, he was prevented from obtaining the Bank of Fayetteville loan. Elizabeth testified that she had been unable to refinance her one-half of the Arvest note, although she admitted that she could have paid off her one-half with stock that she received in the divorce settlement. She also recognized that the Bank of Fayetteville loan would be funded only if the bank could obtain a first mortgage on the 25 North Block Street building.
The trial court found that the parties were at a “stalemate” over the problem of freeing up the 25 North Block building, which would allow the exchange of money under the decree to begin. The court recognized that the parties seemed to be operating under the misunderstanding that the decree required each of them to pay off one-half of the Arvest lines of credit. In its order, the court clarified that neither party was required to pay off the Arvest lines of credit but were merely required to finance their one-half portion.
While the evidence indicates that either party probably could have worked out an arrangement to begin the money-exchange process, both seemed to believe that the other should pay all or part of the Arvest loans before such a process could begin. The court clarified that matter, directed each party to use his or her best efforts to meet their obligations under the decree, and provided that they could petition the court in a contempt proceeding should either fail to use his or her best efforts. In light of these factors, we find no abuse of discretion in failing to hold Lamar in contempt.
Holding Elizabeth In Contempt
Elizabeth was held in contempt for failing to deliver certain items of personal property to Lamar as required by the divorce decree. The decree divided numerous items of tangible personal property, declaring some to be marital property, some to be the separate property of Elizabeth, and some to be the separate property of Lamar. On July 19, 2002, Lamar filed a petition for contempt, asserting, inter alia, that, although Elizabeth had delivered some of his personal items to a storage unit on July 5, 2002, many items were either missing or damaged. Lamar’s petition listed, with specificity, the missing and damaged items.
At the November 8 contempt hearing, the court viewed two videotapes, one that showed the contents of the marital home before the divorce decree was entered and one that showed the items that Elizabeth placed in the storage unit in July 2002. Lamar was able, in his testimony, to point out items on the videotape that were in the house prior to the divorce but were not provided to him in the storage unit. The trial court held Elizabeth in contempt for failing to provide Lamar with the items of property designated in the decree. However, the court withheld sentencing in order to allow Elizabeth to purge herself of contempt. The court directed the parties to examine and inspect the property at the former marital residence, where Elizabeth was residing, and to allow Lamar to take control of any property he believed to be his separate property. The parties went to the marital residence that same night, and several items of property were recovered by Lamar.
A hearing was held on January 9, 2003, for the court-to determine what Elizabeth had done to locate the items that she was responsible for providing to Lamar. Lamar presented an exhibit to the court, showing the items that he had removed from the marital residence during the court-ordered visit on the night of November 8, 2002. Included among the items was a certain camera that Lamar was particularly anxious to get and that Elizabeth had vehemently denied knowing anything about at the November 8 hearing. Lamar also prepared an exhibit that showed the items that remained missing. When questioned about the missing items, Elizabeth testified that, regarding most of them, she had either already given them to Lamar or they remained missing. When asked what efforts she had made since November 8 to find the missing items, she said “there was not much to do.” She admitted on cross-examination that she had not voluntarily handed over to Lamar any of the items that he retrieved from the house on November 8. She also said that she had not searched for the items “because I didn’t have them,” although she did say that she had gone through her house, guesthouse, and shop.
Following the hearing, the judge ruled that Elizabeth had failed to purge herself of contempt, and he sentenced her to two nights in jail. Elizabeth contends that the judge erred in holding her in contempt.
We will not reverse a trial court’s finding of civil contempt unless that finding is clearly against the preponderance of the evidence. Omni Holding & Devel. Corp. v. 3D.S.A., Inc., 356 Ark. 440, 156 S.W.3d 228 (2004); Rogers v. Rogers, 80 Ark. App. 430, 97 S.W.3d 429 (2003). In cases of criminal contempt, the appellate court views the record in the light most favorable to the trial judge’s decision and will sustain the decision if supported by substantial evidence and reasonable inferences therefrom. McCullough v. State, 353 Ark. 362, 108 S.W.3d 582 (2003). We will not delve into the question of whether Elizabeth was held in civil or criminal contempt in this case because the trial court’s decision is not reversible under either standard of review.
At the November 8 hearing, Elizabeth adamantly testified that she had provided Lamar with all property that was due him under the decree. Yet, when the parties visited her home that night, numerous items were found. Further, there was no evidence that Elizabeth cooperated in the retrieval of these items. As to the property that remained missing, Elizabeth’s testimony at the January 9 hearing indicated that she had done virtually nothing to locate it, and she continued to insist that she had already provided it to Lamar. This evidence supports a finding that Elizabeth violated the provisions of the divorce decree and did not avail herself of the opportunity to rectify her violation. We therefore find no error in the trial court’s decision to hold her in contempt.
Affirmed.
Neal and Vaught, JJ., agree.
We also note that the critical inquiry in property division cases is how the total assets are divided. Copeland v. Copeland, supra. Because the record does not contain a transcript of the parties’ property-settlement agreement made in open court, we are uncertain if the divorce decree reflects a division of the parties’ total assets. | [
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John B. Robbins, Judge.
Ison Properties, LLC, appeals from two rulings by the Cleburne County Circuit Court in this breach-of-contract action filed against it by appellees Chris Wood and Debbie Wood, d/b/a Greers Ferry Marine & ATV, LLC. After a jury trial, appellees recovered a judgment of $140,929.45 for appellant’s failure to follow through with an agreement to purchase appellees’ retail inventory of boats and recreational equipment. The three issues presented on appeal are whether the trial court erred in denying appellant’s motion to dismiss for improper venue; whether it erred in striking appellant’s affirmative defense of fraud; and whether it abused its discretion in refusing to amend the pleadings to conform to the evidence of fraud presented at trial. We affirm the trial court’s decision in all respects.
In the fall of 2000, appellant entered into two agreements to buy appellees’ boating and recreational vehicle business in Greers Ferry: one agreement concerned the purchase of appellees’ real property, and the other dealt with the inventory. The agreement involved in this action is the inventory agreement dated November 9, 2000, wherein appellant agreed to purchase appellees’ inventory of boats and other recreational vehicles, as described on a document labeled Schedule A that was attached to the contract. In paragraphs 3 and 4, the contract stated:
Buyer shall take whatever steps are necessary to assume the outstanding indebtedness with the respective suppliers of the equipment as identified on Schedule A.... The assumption by Buyer of the outstanding indebtedness of the items described on Schedule A shall be the total consideration paid by Buyer to Sellers for the transfer of said property to Buyer from Sellers.
Schedule A listed, by lender, appellees’ inventory of boats, setting forth each one’s year model, serial number, and the balance due each lender. Although the total balances due to Heber Springs State Bank, Transamerica, and Bombardier were listed on those pages, all of the current principal and interest payments due at that time were not set forth.
After closing, Mr. Ison learned that, in order to transfer the outstanding indebtedness on the boats to him, the lenders required him to immediately pay the “curtailments,” the amounts of principal that were then due. The total amount of curtailments due when the contract was signed was $57,892.42. Mr. Ison then refused to complete the purchase of the inventory, and appellees filed this action for breach of contract in Cleburne County. In response, appellant filed a motion to dismiss for improper venue, which was denied. In its answer, appellant asserted the affirmative defense of fraud, stating: “The Defendant affirmatively pleads that the Plaintiff committed acts of fraud in failing to disclose to the Defendant the amount of curtailments on the boat inventory.” On the morning of trial, appellees filed a motion to strike appellant’s defense of fraud on the ground that it was not stated with the particularity required by Ark. R. Civ. P. 9(b). The trial court granted this motion, over appellant’s objection.
At the conclusion of the trial, appellant moved to amend the pleadings to conform to the proof of fraudulent inducement introduced at trial. The trial court denied this motion and refused to instruct the jury on the issue of fraud. The jury returned a verdict for appellees in the amount of $140,929.45. Appellant has appealed from the judgment entered on that verdict.
In its first point, appellant argues that the trial court erred in denying its motion to dismiss for improper venue. Whether venue is appropriate in a particular county is a matter of law. River Bar Farms, LLC v. Moore, 83 Ark. App. 130, 118 S.W.3d 145 (2003); Two Bros. Farm, Inc. v. Riceland Foods, Inc., 57 Ark. App. 25, 940 S.W.2d 889 (1997). As explained below, venue was proper in Cleburne County for a number of reasons.
Appellant argues that, based upon Ark. Code Ann. § 16-60-111(a) (1987), venue was proper only in Van Buren County, where its principal place of business is located. This statute provides: “An action on a debt, account, or note, or for goods or services may be brought in the county where the defendant resided at the time the cause of action arose.” Appellant also contends that Ark. Code Ann. § 16-60-104 (1987) requires the dismissal of this action for improper venue. It states in relevant part: “An action, other than those in §§ 16-60-101 — 16-60-103, against a corporation created by the laws of this state may be brought in the county in which it is situated or has its principal office or place ofbusiness, or in which its chief officer resides.” Appellant states that, in addition to its principal place of business being in Van Burén County, its chief officer, John Ison, resides there.
Appellant, however, offered no proof about its principal place of business or the residence of its chief officer. When venue is questioned, there must be a determination on the facts; unless the pleadings on their face show that an action was commenced in the wrong county, a defendant objecting to the venue has the burden of proving the essential facts. Farmers Bank v. Fuqua Homes, Inc., 259 Ark. 38, 531 S.W.2d 23 (1976).
Also, because it is undisputed that Mr. Ison was served by the Cleburne County Sheriff in Cleburne County, Ark. Code Ann. § 16-60-116(a) (1987) permits venue in that county. That statute provides: “Every other action may be brought in any county in which the defendant, or one (1) of several defendants, resides or is summoned.” In Fraser Brothers v. Darragh Co., 316 Ark. 297, 871 S.W.2d 367 (1994), the supreme court stated that an action based upon the nonpayment of a debt or breach of contract must be brought in the county of the defendant’s residence or where the defendant is summoned.
Arkansas Code Annotated section 16-58-125(a)(l) (1987) also applies because appellant admitted in paragraph one of its answer to the complaint that it operates a boating and recreational vehicle business in Cleburne County. This statute states: Arkansas Code Annotated section 16-58-125 supplements Ark. Code Ann. § 16-60-104. In American Savings & Loan Association v. Enfield, 261 Ark. 796, 551 S.W.2d 552 (1977), the supreme court explained:
Any and all foreign and domestic corporations which keep or maintain in any of the counties of this state a branch office or other place ofbusiness shall be subject to suits in any of the courts in any of the counties where the corporation so keeps or maintains the office or place ofbusiness.
It does not seem to us that the language of this section could any more clearly state that venue in an action against a domestic corporation can be laid in any county where the corporation maintains a branch office and that service of summons from any court held in such a county upon the person in charge of that office is sufficient to give that court jurisdiction.
261 Ark. at 801, 551 S.W.2d at 554.
In their treatise, Arkansas Civil Practice & Procedure § 6-6, at 99-100 (3d ed. 2002), Justice David Newbern and Professor John Watkins explain the effect of section 16-58-125 as follows:
Another statute [in addition to Section 16-60-104], not codified with the venue provisions, expands these venue options. Under Ark. Code Ann. § 16-58-125(a)(l), corporations that maintain branch offices or other places of business are subject to suit in any county where such facilities are located. This statute has been held to supplement Ark. Code Ann. § 16-60-104, as has a similarly worded venue statute, Ark. Code Ann. § 16-60-105, that applies to actions against a “person, firm, copartnership, or association.” Consequently, a domestic corporation might well be subject to suit in several counties: where it is situated, where its principal office or place of business is located, where a branch office or other place of business is located, or where its chief officer resides.
Because appellant failed to produce any facts to support its venue argument, and because Ark. Code Ann. §§ 16-58-125 and 16-60-116 support venue for this action in Cleburne County, we hold that the trial court was correct in denying appellant’s motion to dismiss on the basis of venue.
In its second point, appellant argues that the trial court erred in granting appellees’ motion to strike its defense of fraud from its answer because it was untimely. A trial court’s decision regarding the striking of a pleading will not be reversed in the absence of an abuse of discretion. See Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002).
On the morning of trial, appellees moved to strike appellant’s affirmative defense of fraud on the ground that it was not stated with the required particularity. Appellant argues that appellees’ motion was untimely because Ark. R. Civ. P. 12(f) required the motion to be made within twenty days after service of appellant’s answer on appellees. It also contends that, under Ark. R. Civ. P. 6(c), the motion should have been served no later than twenty days before the trial. We disagree, because an objection of failure to state a legal defense to a claim may be made at the trial on the merits. Ark. R. Civ. P. 12(h)(2). We therefore reject appellant’s argument on this issue.
Appellant also contends that, at the conclusion of the trial, the trial court abused its discretion in denying its motion to amend the pleadings to conform to the evidence it produced of fraudulent inducement on the part of appellees. Appellant argues that, because it presented evidence of appellee’s fraud without objection from appellees, appellees waived their objection to appellant’s request to amend the pleadings to conform to the evidence.
Arkansas Rule of Civil Procedure 15 provides for liberal amendments to and supplementation of pleadings and does not require that the claim be pled in writing at the time the parties actually try the issues. Although pleadings are required so that each party will know the issues to be tried and be prepared to offer his proof, Rule 15(b) allows for the amendment of the pleadings to conform to the evidence introduced at trial. Hope v. Hope, 333 Ark. 324, 969 S.W.2d 633 (1998). Permitting the introduction of proof on an issue not raised in the pleadings constitutes an implied consent to trial on that issue. Id. We will not reverse a trial court’s decision regarding the amendment of pleadings to conform to the evidence in the absence of a manifest abuse of discretion. Id.
Although Rule 15 permits an amendment to the pleadings when the parties have implicitly agreed to the introduction of certain evidence, we find no such agreement here. Appellees made their position on this issue clear by filing their motion to strike appellant’s defense of fraud on the morning of trial. Furthermore, midway through the trial, at the close of appellees’ case, the court announced that it was granting appellees’ motion to strike the fraud defense from appellant’s answer. Thus, the parties’ fundamental disagreement on this matter and absence of implied consent could not have been more apparent at trial. Under the circumstances, we cannot say that the trial court abused its discretion in denying appellant’s motion to amend the pleadings.
Affirmed.
Pittman and Bird, JJ., agree.
In their treatise, Arkansas Civil Practice & Procedure § 6-1, at 25 (Supp. 2003), Justice David Newbern and Professor John Watkins note that the Civil Justice Reform Act, Act 649 of 2003, codified at Ark. Code Ann. §§ 16-55-201 et seq., significantly altered this state’s “venue landscape.” They state that, although the focus of the act is tort reform, it contains venue provisions that apply, with certain exceptions, to “all civil actions” accruing on or after March 25,2003. The act does not apply to this case because appellees’ cause of action accrued over two years before that date.
Appellant does not argue that the trial court was wrong in finding that its defense of fraud set forth in its answer lacked the necessary particularity.
Fraud is an affirmative defense that must be expressly pled in response to a complaint. Ark. R. Civ. P. 8(c). Arkansas Rule of Civil Procedure 9(b) requires that the circumstances constituting fraud be stated with particularity. | [
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Karen R. Baker, Judge.
This appeal is brought from an order declaring appellee Abdulazize Adous the assignee of a commercial-lease contract and further declaring that equity should intervene to avoid forfeiture of the lease contract. We reverse and remand.
The property that is the subject of the lease is a service station/convenience store in West Memphis. When the lease was executed in 1992, appellants, the owners of the property, agreed to build the service station for the original lessee, appellee Griffith Petroleum, Inc. (GPI). Appellants financed the construction through Fidelity National Bank. The lease was for a ten-year term, to begin upon completion of construction, with six consecutive five-year options to renew. The monthly lease payment for the first ten years was to be the amount that appellants owed to Fidelity National Bank ($3,412.60), plus the additional sum of $583.33 per month, for a total of $3,995.93. GPI agreed to write two checks each month, one directly to Fidelity National for $3,412.60 and the other to appellants for $583.33. Among the provisions of the lease were that the lessee would be in default upon failure to pay rent in a timely manner or upon becoming insolvent. The lease contained no prohibition against subleasing or assignment.
GPI began operating the service station as a lessee on or about August 1992. On November 15, 1996, it executed a document titled “Sublease Agreement” with Maref Quran whereby Quran would operate the facility for an initial term of five years and eight months with six consecutive five-year options. Quran’s lease payment for the initial term was to be “the exact amount that William G. Abernathy and Anne Abernathy (the record title holders to the real property) are responsible for paying their lender who has the long-term financing on the leased premises, plus the additional sum of Five Plundred Eighty Three and 33/100 Dollars ($583.33) per month.” Quran was to make the rental payments to GPI, who would then remit the payments to Fidelity and appellants. On July 14, 1997, appellee Abdulazize Adous was added as a subtenant of the site under a document styled “Addendum to Sublease Agreement.” Eventually, he became the sole subtenant.
After executing his sublease, Adous made monthly lease payments to GPI, who in turn made payments to Fidelity National and appellants. There is no evidence that appellants knew of the sublease. However, Adous’s operation of the business apparently continued without controversy until January 2001, when GPI failed to pay rent to appellants. Appellants filed an unlawful-detainer action against GPI as lessee and Adous as sublessee, seeking to recover possession of the property. On March 15, 2001, GPI and Adous (apparently doing business as Coastal C-Mart) paid $11,985.99 into the court registry, representing three months’ rent for January through March 2001. Shortly thereafter, appellants nonsuited their action, and the court clerk distributed the $11,985.99, plus interest, to them.
In April 2001, GPI again failed to pay the rent it owed. Adous tendered the rent directly to appellants, but it was refused. On May 1, 2001, Adous sued appellants and GPI for specific performance, seeking an order directing appellants to accept all rental payments made by him or, alternatively, directing GPI to accept the payments and then remit them to appellants and/or Fidelity National. Adous pled $3,995.33 into the court registry, representing one month’s rent, a practice he would continue each month while awaiting trial.
On June 8, 2001, appellants notified GPI that they were terminating the 1992 lease for nonpayment of rent. Later, when they discovered that GPI had become insolvent, they sent a supplemental notice to GPI and Adous, terminating the lease on that ground. Despite the fact that appellants demanded surrender of the premises in their notices of termination, Adous remained on the property.
A trial was held in circuit court on June 26, 2002, with the trial judge sitting as finder of fact. Appellants argued that Adous’s rights as a subtenant were derived from GPI’s rights as the original lessee, and thus, when GPI breached the 1992 lease by failing to pay rent and by becoming insolvent, Adous’s right of occupancy, being derivative, was terminated. Adous agreed that a sublessee’s rights are generally derivative of the original lessee’s, but he argued that, for various equitable reasons, appellants should not be permitted to declare a forfeiture of the sublease in this case.
On August 5, 2002, the trial judge issued a letter ruling in which he declared Adous a “bona fide assignee” of the 1992 lease and “entitled to enjoy the status of lessee, under assignment for the said original lease.” The court also determined that forfeiture of Adous’s lease would be inequitable. Appellants now argue on appeal that these findings were erroneous because: 1) Adous was a sublessee rather than an assignee; 2) as a sublessee, Adous was required to surrender possession of the premises upon breach by the original lessee, GPI; 3) forfeiture of the sublease was not inequitable. We agree with each of these arguments.
We have traditionally reviewed matters that sounded in equity de novo on the record with respect to fact questions and legal questions. See Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002). We will not reverse a finding by a trial court in an equity case unless it is clearly erroneous. Id. A finding of fact is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of the evidence is left with a definite and firm conviction that a mistake has been committed. Id.
We first address appellants’ argument that the trial court erred in characterizing Adous as an assignee rather than a sublessee. Initially, we consider Adous’s contention that appellants are precluded from making this argument because they did not object below to the trial court’s ruling on this point. However, the trial court’s characterization of Adous as an assignee was made for the first time in its findings of fact and conclusions of law. Until that point, the parties consistently referred to Adous as a sublessee, and the issue of whether he was an assignee had not arisen. Thus, it would have been impossible for appellants to object prior to the court making its decision. As for any failure to object after the court made its findings, an appellant is not required to make a contemporaneous objection to the findings, conclusions, and decree of an equity court to obtain review on appeal. Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000); Martin v. Martin, 79 Ark. App. 309, 87 S.W.3d 817 (2002). Thus, appellants’ argument is not procedurally barred.
As for the merits of the issue, there is an important distinction between a sublessee and an assignee for purposes of this case. A sublessee’s right to possession terminates when the original landlord declares a forfeiture of the original lease. See Bush v. Bourland, 206 Ark. 275, 174 S.W.2d 936 (1943); 49 Am. Jur. 2d Landlord & Tenant § 1185 (2d ed. 1995). An assignee, however, acquires privity of estate with the original landlord, see Jones v. Innkeepers, Inc., 12 Ark. App. 364, 676 S.W.2d 761 (1984), and enters into a landlord-tenant relationship with the original landlord. See 52 C.J.S. Landlord & Tenant § 50 (2003). The assignee’s estate continues if he meets his obligations under the assignment, e.g., to pay rent. Id. at § 53.
At common law, the distinction between a sublease and an assignment depended upon whether the original lessee transferred his estate for the entire remainder of the lease term, in which case it would be an assignment, or for less than the entire term, in which case it would be a sublease. See Gagne v. Hartmeier, 271 Ark. 845, 611 S.W.2d 194 (Ark. App. 1981). However, Arkansas has rejected that approach and has adopted the rule that the intention of the parties is to govern in determining whether an instrument is an assignment or a sublease, although the duration of the primary term, as compared with the duration of the transfer, may be considered in arriving at that intention. Id.; Jaber v. Miller, 219 Ark. 59, 239 S.W.2d 760 (1951). Our review of the evidence leads us to the conclusion that the parties clearly intended Adous to be a sublessee.
The most telling indicator of Adous’s and GPI’s intention in this case is that they have consistently referred to their arrangement as a sublease. The characterization that the parties give to their relationship is a significant factor to be considered in determining whether they intended to create a sublease or an assignment. See Jaber v. Miller, supra. The instruments of transfer in this case are entitled “subleases.” Further, in their pleadings and at trial, the parties exclusively referred to GPI’s transfer to Adous as a sublease rather than an assignment. Until the trial court declared Adous an assignee, the parties had never contemplated him being anything other than a sublessee. Thus, as in Jaber, the parties’ intention should govern.
Another factor indicating that the parties intended to create a sublease is Adous’s payment of rent to GPI rather than to appellants or Fidelity National. This is consistent with the rule that, in a sublease, the relationship between the original lessee and the sublessee is that of landlord and tenant, and the sublessee incurs no liability directly to the original lessor for payment of.rent. 49 Am. Jur. 2d Landlord & Tenant §§ 1179, 1184 (1995).
A third indicator that the arrangement was a sublease is found in the possibility of repossession by GPI. The Sublease Agreement provides:
In the event.that Lessor [GPI] elects to repossess the premises without terminating the sublease, then Lessee shall be liable for and shall pay to Lessor all rent and other indebtedness accmed to the date of such repossession....
Such a right to reenter and repossess indicates that GPI has not relinquished its right to the leasehold, as it would have done in the case of an assignment. See generally 52 C.J.S. Landlord & Tenant § 55 (2003); Coles Trading Co. v. Spiegel, Inc., 187 F.2d 984 (9th Cir. 1951).
Admittedly, there are some parts of the arrangement between Adous and GPI that are consistent with an assignment. The amount of Adous’s rent was exactly the amount of the rent to be paid under the original lease; Adous agreed to observe the terms of the original lease; and the property was transferred to Adous for what appears to be the remainder of the original lease term. However, these factors simply do not override the undisputed fact that the parties very clearly intended a sublease. Both they and their attorneys have consistently considered this arrangement to be a sublease. Our polestar is the intention of the parties. Jaber, supra. Because the evidence points so strongly to the conclusion that the parties intended Adous to be a sublessee rather than an assignee, we hold that the trial court clearly erred in finding that Adous was an assignee.
We now turn to the question of whether equity should intervene to prevent appellants from seeking forfeiture of Adous’s sublease. The first matter to be considered is whether appellants waived their right to forfeiture of the sublease by accepting rent payments from the court registry in April 2001, knowing that the rent had been paid by Adous and knowing that GPI was insolvent. We hold that they did not.
Waiver is the voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he shall forever be deprived of its benefits. Nationsbanc Mortgage Corp. v. Hopkins, 82 Ark. App. 91, 114 S.W.3d 757 (2003). It may occur when one, with full knowledge of material facts, does something that is inconsistent with the right or his intention to rely upon the right. Id. The relinquishment of the right must be intentional. Id.
The money that appellants collected in April 2001 was paid into the court registry by GPI and Coastal C-Mart. At trial, William Abernathy testified that he did not know that Coastal C-Mart was Adous. This is the only evidence in the record regarding appellants’ knowledge or lack of knowledge that they had accepted money from Adous. Further, Abernathy testified that he was not aware of GPI’s insolvency until May or June of 2001, after appellants had accepted the money from the court registry. Thus, the evidence does not establish that appellants knowingly accepted rent from Adous or that they knew GPI was insolvent at the time they accepted the money from the registry.
The next matter to be considered is whether appellants are prohibited from seeking forfeiture of the sublease because the master lease has no express forfeiture clause. A tenancy cannot be terminated for breach of a covenant where there is no express provision for a forfeiture. See Mauney v. Millar, 134 Ark. 15, 203 S.W. 10 (1918); Vereen v. Hargrove, 80 Ark. App. 385, 96 S.W.3d 762 (2003). It is true that the lease in this case contains no clause expressly providing that the lessee will lose possession or forfeit the lease upon default. However, the lease does provide that, upon default, appellants shall have all remedies available by law or equity. One such available remedy is unlawful detainer, as provided in Ark. Code Ann. §§ 18-60-304 and 307 (Repl. 2003). These statutes give a lessor the opportunity to reacquire possession of leased property. See Coleman’s Serv. Ctr. v. FDIC, 55 Ark. App. 275, 935 S.W.2d 289 (1996). Thus, the unlawful detainer remedy is tantamount to the remedy that would be available under a forfeiture provision. See, e.g., Riverside Dev. Co. v. Ritchie, 103 Idaho 515, 650 P.2d 657 (1982). Therefore, the absence of the forfeiture clause in this case would not prohibit appellants from canceling the lease and reacquiring possession of the property.
Finally, we reach the issue of whether the maxim that equity abhors a forfeiture should be applied in this case. The trial court determined that forfeiture would not be equitable because Adous had shown his ability to perform under the lease; the original lease contained no prohibition against subletting; Adous was operating an ongoing business on the site; and appellants would not be prejudiced by Adous’s continued occupation of the site. However, the trial court applied these considerations after finding that Adous was an assignee. We have now determined that Adous was a sublessee. We therefore, in our de novo review, re-examine the equitable considerations in light of Adous’s status as a sublessee.
Certainly, forfeitures are not favorites of the law. Vereen v. Hargrove, supra. However, because Adous is a sublessee, he has no privity of estate nor a landlord-tenant relationship with appellants. 49 Am. Jur. 2d Landlord & Tenant § 1184 (2d ed. 1995). To allow equity to intervene to prevent forfeiture of the sublease in this situation would create a relationship between appellants and Adous that appellants never desired, that none of the parties ever contemplated, and that, in fact, has never existed. Further, as a sublessee, Adous’s fate with regard to the property must rise and fall with that of the original lessee, GPI. See Bush v. Bourland, supra. Adous considered himself a sublessee and, by virtue of agreeing to the terms of the original lease, was surely aware of its provisions; he must have understood that his status depended upon the continued performance of the original lease by GPI. See generally USA Petroleum Corp. v. Jopat Bldg. Corp., 343 So.2d 501 (Ala. 1977); Thal v. S.G.D. Corp., 625 So.2d 852 (Fla. Ct. App. 1993). Therefore, this is not a situation in which Adous was caught unaware. Finally, appellants’ decision to terminate the lease was based not only upon GPI’s failure to pay rent, but upon GPI’s insolvency. While Adous may have proved an able substitute to meet GPI’s rent obligation, he could not restore GPI to solvency. See USA Petroleum Corp. v. Jopat Bldg. Corp., supra. Equity should not deprive appellants of their ability to terminate a lease on that ground.
Based on the foregoing, we hold that equity should not intervene to prohibit forfeiture of the sublease in this case. We therefore reverse and remand the trial court’s decree with directions to enter an order consistent with this opinion.
Bird, Griffen, and Crabtree, JJ., agree.
Robbins and Roaf, JJ., dissent.
Appellants’ naming of Adous as a sublessee is the first indication in the record that appellants were aware of the existence of the sublease. | [
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Sam Bird, Judge.
Appellant Eddie Ewings was tried before a jury and was convicted of possession of cocaine with intent to deliver. The trial court sentenced him to twenty years’ imprisonment in the Arkansas Department of Correction rather than follow the jury’s recommendation that he serve only three years’ probation and 120 days’ incarceration in the county jail. Ewings raises two points on appeal. He contends that the trial court erred in denying his directed-verdict motion because there was not substantial evidence that he had knowledge of the presence of cocaine in a backpack over which “he briefly exercised control.” He also contends that the trial court erred in sentencing him to the term of imprisonment rather than following the jury’s recommendation.
Sufficiency of the Evidence
Ewings moved for a directed verdict at the completion of the State’s case-in-chief and, without presenting a case for the defense, renewed his motion at the close of all the evidence. One basis of his motion was that the State had failed to prove Ewings’s knowledge that there was cocaine in the backpack.
We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Boston v. State, 69 Ark. App. 155, 12 S.W.3d 245 (2000). When reviewing a denial of a directed verdict, we look at the evidence in the light most favorable to the State, considering only the evidence that supports the judgment or verdict. Id. We will affirm if there is substantial evidence to support a verdict. Id.
Detectives Kyle King and Mark Treece of the Little Rock Police Department testified that on the morning of May 7, 2001, they were working at the Greyhound bus station with the special narcotics operations unit. King, dressed in plain clothes, watched Ewings and other passengers get off a bus from Dallas. He observed the passengers’ reactions to the presence of Treece and his German Shepherd, Rexy, as the canine sniffed the open luggage compartment of the bus. King saw that Ewings, who had stepped off the bus ready to light a cigarette,, turned around within seconds of seeing the dog and passed disembarking passengers to get back inside the bus. Because of this unusual reaction, King boarded the bus behind Ewings. King observed Ewings take a seat on the passenger side immediately behind a seat with a Bugs Bunny backpack in it. After intently watching the dog through the window, Ewings got up and moved the backpack from the seat into an overhead luggage compartment just above it. Ewings then sat in a seat beside a female on the driver’s side of the bus.
After King identified himself as a police officer who worked at the bus station, Ewings agreed to speak with him. Ewings, who was extremely nervous, managed to produce a bus ticket showing that he was traveling from Laredo, Texas, to Brinkley, Arkansas; written on the ticket were the name Jason Simmons and a phone number. King asked Ewings where he lived and why he was traveling to Brinkley. Ewings told King his name but said that he did not have any identification; he said that he lived in Laredo and was traveling to Brinkley to visit family. King asked if Ewings had any drugs and asked for permission to search the bag that he had moved. Ewings said that he had no drugs, that the bag was not his, and that he was just moving it out of his seat. Ewings said that King could search the bag, which King did. Inside the bag were adult clothing and a bundle of off-white powder wrapped in plastic and clear tape. The bundle was later determined to contain 296.9 grams of cocaine hydrochloride cut with caffeine.
King field tested the powder, arrested Ewings, and took him inside an office in the bus station to be interviewed by Detective Treece. Ewings, waiving his Miranda rights, told the detectives that he had been approached by a person called “Hightop” to transport dope from Dallas to Brinkley or Augusta, Arkansas, for $450; and that Hightop had wired him $250 and a bus ticket for travel from Laredo to Brinkley. Ewings stated that Hightop had met him in Dallas and had ridden with him to Little Rock, telling Ewings to hang on to the backpack because Hightop had “some big weed” under the bus. Ewings stated that he and Hightop sat across the aisle from one another; that at first the bag was on the seat beside Hightop; but that when they arrived in Little Rock, Hightop said that he was going in to call somebody and that Ewings should make sure to “put the bag on the top.” At one point, Ewings told the detectives, “Man, I could help you guys in Laredo.” He told them that Hightop, who was Jason Simmons, had come to Laredo to get the dope and that Ewings “hooked him up” with another person, whom Ewings did not identify.
The information provided by Ewings turned out not to be useful. The detectives found no one getting off the bus in Brinkley and did not find a Jason Simmons on the bus, although such a person was located in Augusta. Rexy did not alert on anything in the large compartments of the bus.
Evidence is substantial if it is forceful enough to compel a conclusion one way or another beyond suspicion and conjecture. Hall v. State, 315 Ark. 385, 868 S.W.2d 453 (1993). Where the evidence is circumstantial, the appellate court must coqsider whether the evidence was sufficient to exclude all other reasonable hypotheses; whether circumstantial evidence excludes every other reasonable hypothesis is usually a question for the jury, and it is only when the evidence leaves the jury solely to speculation or conjecture that it is insufficient as a matter of law. Boston v. State, supra; Duncan v. State, 38 Ark. App. 47, 828 S.W.2d 847 (1992). In order to prove constructive possession, the State must establish beyond a reasonable doubt 1) that the defendant exercised care, control, and management over the contraband, and 2) that he knew that the matter possessed was contraband. Id. Conduct that may be sufficient to demonstrate control of a container may not be sufficient to demonstrate knowledge of the container’s contents. See id. A jury may consider and give weight to any false, improbable, and contradictory statements made by the defendant to explain suspicious circumstances. Atkins v. State, 63 Ark. App. 203, 979 S.W.2d 903 (1998).
In the present case, Ewings contends that the jury had to resort to speculation and conjecture to conclude that he knew there was cocaine in the backpack over which he briefly exercised control. He argues that this case involves an allegation of constructive possession of contraband by a passenger on a Greyhound bus, and that no additional factor linked him to the contraband, as is required in joint occupancy of automobiles.
We hold that the evidence in this case, even if analyzed as a joint-occupancy case, is sufficient to sustain a finding that Ewings controlled or had the right to control the cocaine and that he had knowledge that it was cocaine. Ewings immediately went back inside the bus when he saw the drug dog sniffing the luggage compartment. After intently watching the dog from inside the bus, he moved the backpack into the overhead compartment and took a seat on the other side of the aisle. When approached by Detective King, Ewings was nervous and claimed that the bag was not his. He gave contradictory explanations about his trip and the bag, including the story that Hightop had paid him to transport “the dope” from Laredo to Arkansas. The trial court did not err by denying his motions for a directed verdict.
Sentence
After returning a verdict of “guilty” on the charge of possession of cocaine with intent to deliver, the jury was given two verdict forms to consider in the sentencing phase of the trial. The first was a form to fix a sentence of twenty to forty years’ imprisonment or life in the Arkansas Department of Correction, and the second was for alternative sanctions. The trial court did not instruct the jury that the alternative sanctions were only a recommendation that the court was not bound to follow. The jury returned to the courtroom with nothing written on the form for imprisonment, but with the form for alternative sanctions filled out as follows:
1. A term of 3 years supervised probation.
2. A term of 120 days (not more than 120 days) in the Pulaski County Jail.
3. A fine of zero (not to exceed $100,000) dollars.
When the trial court announced that it would not follow the jury’s recommendation, defense counsel stated, “Your Honor, if the Court is not inclined to accept the alternative sentencing, we hope that the Court would consider suspending any amount of time if it’s considering twenty or above.” The court, expressing its understanding that it was not bound by the jury’s recommendation, then sentenced Ewings to twenty years’ imprisonment. Ewings argues that his sentence is illegal and therefore can be raised on appeal even though he did not object to it at trial. We do not agree.
An illegal sentence that can be challenged for the first time on appeal is one that is illegal on its face. E.g. Cooley v. State, 322 Ark. 348, 909 S.W.2d 312 (1995). The twenty-year sentence Ewings received is the minimum sentence allowed under Ark. Code Ann. § 5-64-401 (a)(1) (Supp. 1999), which specifies twenty to forty years’ imprisonment or life for a person convicted of possessing between 200 and 400 grams of a Schedule II controlled substance. Because the power to sentence Ewings to twenty years’ imprisonment was clearly prescribed by law, the sentence is not illegal on its face and cannot be raised for the first time on appeal. See id.; Cooley v. State, supra.
We would also affirm were we to consider the merits of this second point. The role of jury and court in bifurcated sentencing procedures are governed by Ark. Code Ann. § 5-4-103 (Repl. 1997), which states that a jury that has found a defendant guilty of a felony offense shall fix punishment in a separate proceeding. Arkansas Code Annotated section 16-97-101 (Supp. 1999) further specifies these procedures:
(2) If the defendant is found guilty of one (1) or more charges, the jury shall then hear additional evidence relevant to sentencing on those charges. Evidence introduced in the guilt phase may be considered, but need not be reintroduced at the sentencing phase.
(3) Following the introduction of additional evidence relevant to sentencing, if any, instruction on the law, and argument, the jury shall again retire and determine a sentence within the statutory range.
(4) The court, in its discretion, may also„ instruct the jury that counsel may argue as to alternative sentences for which the defendant may qualify. The jury, in its discretion, may make a recommendation as to an alternative sentence. However, this recommendation shall not be binding on the court.
(Emphasis added.) Additionally, Ark. Code Ann. § 16-90-107 (a) (1987) states that if a jury “assesses a punishment not authorized by law, . . . the court shall assess and declare the punishment and render judgment accordingly.”
Only a trial court, not a jury, can suspend a sentence; and a criminal defendant has no right to a suspended sentence. Dale v. State, 55 Ark. App. 184, 935 S.W.2d 274 (1996); Bing v. State, 23 Ark. App. 19, 740 S.W.2d 156 (1987). In Slaughter v. State, 69 Ark. App. 65, 12 S.W.3d 240 (2000), we recognized the authority of a trial court under sections 16-90-107 (a) and 5-4-103, when read in conjunction, to take the sentencing function away from the jury when it assesses an unauthorized punishment. Here, the jury’s recommendation of three years’ probation and 120 days’ incarceration in the county jail clearly was not an authorized sentence for an offense requiring a minimum of twenty years’ imprisonment.
We distinguish Richards v. State, 309 Ark. 133, 827 S.W.2d 155 (1992), which Ewings cites as authority for reversal. The jury in Richards rendered a sentence of forty years and a fine for delivery of cocaine, a sentence that was within the statutory range for the crime, but the trial court increased the term of imprisonment and reduced the fine. The supreme court held that although the trial court had authority to reduce the fine, it had exceeded its authority in increasing the term of imprisonment beyond the authorized sentence assigned by the jury. Here, however, the jury merely recommended a sentence that the trial court was not obligated to follow.
Affirmed.
Pittman and Robbins, JJ., agree. | [
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Robert J. Gladwin, Judge.
On March 15,1996, appellant Freddie Jackson signed a driver’s license application for his cousin, Charles Jackson, who was a minor at that time. Under the provisions of Ark. Code Ann. § 27-16-702 (Supp. 1995), appellant was not authorized to sign the application for Charles because the boy’s mother was living and appellant did not have custody or guardianship of him. On August 5, 1996, Charles was involved in an automobile accident with appellee David Houchin. Appellee filed a negligence suit, naming appellant as a co-defendant. A jury found for appellee on his complaint against Charles Jackson and appellant Freddie Jackson, and assessed damages in the amount of $11,088.55, plus costs. Appellant contends on appeal that because he was not authorized to sign the application of the minor, he cannot be held Hable for the minor’s negligent conduct. We affirm.
Arkansas Code Annotated section 27-16-702 (Supp. 1995) provides in relevant part:
(a)(1)(A) The original application of any person under the age of eighteen (18) years for an instruction permit, driver’s license, motor-driven cycle or motorcycle license shall be signed and verified before a person authorized to administer oaths by either the father or mother of the applicant, if either is living and has custody.
(B) In the event neither parent is living or has custody, then the application shall be signed by the person or guardian having custody or by an employer of the minor.
(C) In the event there is no guardian or employer, then the application shall be signed by any other responsible person who is willing to assume the obligations imposed under this subchapter upon a person signing the application of a minor.
(b) Any negligence or willful misconduct of a minor under the age of eighteen (18) years when driving a motor vehicle upon a highway shall be imputed to the person who signed the application of the minor for a permit or license, regardless of whether the person who signed was authorized to sign under subsection (a) of this section, which person shall be jointly and severally liable with the minor for any damages caused by negligence or willful misconduct.
(Emphasis added.)
In arguing that he cannot be held liable under the above statutory provisions because, under these same provisions, he was not authorized to sign the application, appellant is seeking to benefit from his wrongdoing. The language of the statute makes it clear that even though appellant was not authorized to sign for the minor, once he did sign, he became jointly and severally liable for any damages suffered as a result of the minor’s negligence.
Appellant cites two cases to support his contention that he cannot be held liable for the minor’s negligence, neither of which is applicable here. The first is Richardson v. Donaldson, 220 Ark. 173, 246 S.W.2d 551 (1952), wherein the father of the minor did not sign an application, but did allow his daughter, who had no driver’s license, to drive his vehicle. The court said that negligence could not be imputed to the father under a statutory provision similar to the one in the case now before us because the father had never signed an application. Letting his daughter drive without a license was a misdemeanor, and while violation of the traffic laws was evidence of negligence, it did not establish negligence as a matter of law. The statutory provisions imputing negligence did not apply because Richardson, unlike appellant, had never signed an application at all.
Appellant also cites Jones v. Davis, 300 Ark. 130, 111 S.W.2d 582 (1989). In Jones, a vehicle driven by seventeen-year-old Charles Volpert struck a motorcycle driven by Mark Jones. Volpert’s mother, Barbara Davis, had signed Volpert’s application for a driver’s license. Jones contended that Charles Davis, Volpert’s stepfather, stood in loco parentis to Volpert; was required to sign Volpert’s application; and was liable for his stepson’s negligence. The language of the statute in effect at that time required that either parent, if living, sign a minor’s application for a driver’s license. Only if neither parent was living would anyone else be authorized to sign. Volpert’s mother and father were both living, and his mother signed the application. Davis was neither required nor authorized under the statute to sign the application, and had not done so. The court found that Davis could not be held liable under the statute for his stepson’s negligence.
The distinction between Jones and the case before us is obvious: Davis did not sign an application, while appellant herein did sign the application for his minor cousin. The act of signing the application brought appellant within the purview of the statute, and appellant cannot now say he should be excused from the liability incurred under the statutory provisions because he acted in a manner not authorized by that statute.
Affirmed.
Stroud, C.J., and Hart, J., agree. | [
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Olly Neal, Judge.
This is an appeal from the Juvenile Division of the Benton County Circuit Court, terminating appellants’ parental rights as to their minor child, J.P. On appeal, appellants do not challenge the sufficiency of the evidence used to terminate their parental rights; instead, they contend that the trial court committed reversible error because it failed to hold a permanency planning hearing. We affirm.
The standard of review in termination of parental rights cases is well-settled.
Termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Crawford v. Department of Human Services, 330 Ark. 152, 951 S.W.2d 310 (1997). Pursuant to Ark. Code Ann. § 9-27-341 (b)(3) (Repl. 2002), the facts warranting termination of parental rights must be proven by clear and convincing evidence. In reviewing the trial court’s evaluation of the evidence, we will not reverse unless the trial court clearly erred in finding that the relevant facts were established by clear and convincing evidence. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). Clear and convincing evidence is the degree of proof that will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Id. Furthermore, we will defer to the trial court’s evaluation of the credibility of the witnesses. Crawford v. Department of Human Services, supra.
Wright v. Arkansas Dep’t of Human Servs., 83 Ark. App. 1, 3, 115 S.W.3d 332, 333 (2003).
The facts are that on October 10, 2002, J.P. was with appellant Tina Marie when she was arrested at Wal-Mart for shoplifting. Appellant Billy Don did not accompany the family to Wal-Mart, but arrived to retrieve his son shortly after Tina Marie’s arrest. The following day, October 11, 2002, the Arkansas Department of Human Services (DHS) received a child abuse hotline report, indicating inadequate supervision and environmental neglect ofJ.P. Jason Smith, a DHS investigator, went to the residence accompanied by the police. Based on Smith’s observations of Billy Don exiting a trailer located next to the family’s residence that emanated a strong odor, along with the presence of residue around Billy Don’s mouth, Billy Don’s admission to “huffing,” Billy Don’s belligerent speech, a report from Billy Don’s sister, Karen Dutton, that an aunt, Bernice Bishop, left the child in Dutton’s care because Billy Don was “huffing,” and the environmental conditions of the family residence (no electricity or running water), DHS exercised a seventy-two hour hold on J.P.
On October 14, 2002, an emergency order was entered, which placed J.P. in DHS custody. On October 21, 2002, the trial court held a probable-cause hearing. The trial court found that J.P. was dependent-neglected, and that an emergency situation required his removal from appellants’ custody. At that time, the following exchange between counsel was had:
Dhs Counsel: Based on the prior terminations in this matter against this family, and the circumstances at this time, I believe that it is the Department’s intent to file a notice of no reunification services, as well as a petition to terminate parental rights in this matter. And we would ask that both of those, along with the adjudication, be set for one day, in an attempt to fast track this matter. And I would ask that the Department be allowed to have that at a forty-day adjudication no reunification termination, to allow sufficient time to prepare the case.
Appellants’ counsel: Your Honor, I have no objection to the hearing being set for forty-five days.
Subsequently, the court ordered that J.P. remain in DHS custody, pending the adjudication hearing. On November 4, 2002, DHS filed notice of its intention to terminate appellants’ parental rights based upon “the parent(s) subjecting the juvenile to aggravated circumstances and the prior involuntary termination of the parental rights of Tina Marie and Billy Don Phillips as to siblings of the above-named child.”
At the adjudication hearing on December 3, 2002, the trial court noted that the case was set for adjudication, that DHS intended to fast track the case, that DHS filed its notice of intent to seek a no-reunification-services finding, and that DHS had filed a termination petition. Thereafter, counsel for DHS stated as follows:
It’s my understanding that, in regard to the adjudication, the parents will stipulate. In regards to the no reunification services, the parents do not intend to contest that. That we would ask that the Court determine the permanency planning to be termination, and adoption at this point. And then the parents will not contest the termination of parental rights petition.
Counsel for the appellants replied:
I represent the parents, Billy andTina Phillips. I have explained to my clients their options, and their right to have a hearing for the dependency/neglect, and the no reunification, as well as the termination. It is their desire, at this point, not to contest that. They do stipulate to dependency/neglect, based on incarceration and the prior termination, and they believe it is in the best interest of their child; however, they would like to ask for one last visit.
In an exchange with the court shortly thereafter, the court asked appellants’ counsel if her clients were' stipulating that they knew they had the right to further hearings with regard to no reunification efforts, to which she replied:
Yes,Your Honor. I’ve explained that they have the right to have a hearing, to require the Department of Human Services to put on a case. I’ve explained their [options], and asked them what it is they prefer to do. And they’ve indicated to me, in fact, they told me that they do not contest the no reunification, nor do they contest termination. However, as I said, they would like one last visit.
Subsequent to this exchange, the court asked appellant Billy Don if he was satisfied with the representation of his attorney. He replied, “I don’t think I got no choice, do I? They got my little boy.” The court told Billy Don that he did have a choice — the choice to have a hearing. The court informed Billy Don that his attorney could not decide for him and that it was his choice. Billy Don informed the court, “I want a trial.” Tina Marie stated, “I’m gonna agree with my husband, and take it to trial.” Appellants’ attorney informed the court that she was ready to proceed.
Following the taking of evidence, the court noted DHS’s extensive relationship with this family and that appellants’ parental rights had been previously terminated as to other siblings. The court found that DHS had made reasonable efforts to preserve the family, including offering parenting classes, counseling, medication management, transportation services, visitation, and housing assistance. Thus, the court granted DHS’s motion for no reunification services, determining that the goal was termination.
Subsequently, DHS requested that the court “fast track” the case and grant its termination petition that very day. Defense counsel objected, stating that according to Ark. Code Ann. § 9-27-338 (Supp. 2001), a permanency planning hearing must be set within thirty days of the court filing a no reunification order. DHS responded that nothing in the statute prohibited the court from holding the permanency planning hearing immediately, given that it had already provided notice of no reunification and the petition to terminate. During its adjudication hearing, the court determined that jurisdiction continued and held a permanency planning hearing immediately thereafter. Subsequently, the court terminated appellants’ parental rights and this appeal followed. Appellants claim that the trial court erred when it “fast tracked” the case. We disagree.
Arkansas Code Annotated section 9-27-341 provides that the court may only consider a termination petition if there “is an appropriate permanency placement plan[.]” Section 9-27-341 must be read in harmony with Ark. Code Ann. § 9-27-338, which mandates a permanency planning hearing, providing in pertinent part that the court “shall hold a permanency planning hearing in order to enter a new disposition in the case” “no later than twelve (12) months after the date the juvenile enters an out-of-home placement,”. . . “or no later than thirty (30) days after the court files an order that no reunification services shall be made to reunite the juvenile with his family[.]” See Ark. Code Ann. § 9-27-341(a)(1) (Supp. 2001). (Emphasis added.)
The basic rule of statutory construction is to give effect to the intent of the General Assembly; in determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Turnbough v. Mammoth Spring School Dist. No. 2, 349 Ark. 341, 78 S.W.3d 89 (2002). We construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible. Id. When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to resort to rules of statutory construction; however, the appellate court will not give statutes a literal interpretation if it leads to absurd consequences that are contrary to legislative intent. Id. We will not interpret a statute in a manner that is contrary to the clear language of the statute; nor will we read into a statute language that is not there. See id. We will not interpret a statute so as to reach an absurd conclusion. Mings v. State, 316 Ark. 650, 873 S.W.2d 559 (1994).
Appellants interpret Ark. Code Ann. § 9-27-338 to mean that the court could hold a permanency planning hearing only after it files a no-reunification order. Appellants’ interpretation is misplaced for two reasons. First, under section 9-27-338, the court is required to hold a permanency planning hearing “no later than twelve (12) months after the date the juvenile enters an out-of-home placement, ... or no later than thirty (30) days after the court files [a no- reunification order.]” (Emphasis added.) This “or” disjunctive located in the language of the statute does not provide the court with merely one option as to when it can hold a permanency planning hearing. Instead, the “no later than twelve (12) months after the date the juvenile enters an out-of-home placement,” portion of the statute could potentially provide the court the avenue to hold the hearing even before it has filed the no-reunification order. Second, the “no later than thirty (30) days after the court files [a no-reunification order]” section of this statute only sets an outer parameter for when the court should hold the hearing. Thus, the language in the statute of “no later than twelve (12) months after” and of “no later than thirty (30) days after” merely provide outside parameters for the court and does not hinder its ability to act prior to those parameters.
Although Ark. Code Ann. § 9-27-341 has been amended several times over, its stated purpose has remained unchanged — “to provide permanency in a juvenile’s life in all instances where the return of a juvenile to the family home is contrary to the juvenile’s health, safety, or welfaref.]” In this instance, appellants had previously had their rights involuntarily terminated as to three other children. Under Arkansas Code Annotated section 9-27-341, such a fact is an immediate ground for termination. Nevertheless, the trial court held an adjudication hearing at which it determined that no reunification services would be provided, and immediately thereafter, conducted the permanency planning hearing. Although the court had not filed the reunification order, it had announced its intention from the bench to provide no reunification services, and under our interpretation of the statute, there was no error in doing so. Accordingly, we affirm.
Affirmed.
Stroud, C.J., and Robbins, Vaught, Roaf, JJ., agree.
Hart, Bird, Griffen, Crabtree, JJ., dissent.
It is undisputed that appellants had three other children for whom their parental rights had been terminated.
This code section was subsequendy amended to address the very issue that is subject to this appeal — whether a permanency planning hearing be held as a prerequisite to the filing of a petition to terminate parental rights, or as a prerequisite to the court’s considering a petition to terminate parental rights. The amended statute now provides that:
(B) This section does not require that a permanency planning hearing be held as a prerequisite to the filing of a petition to terminate parental rights, or as a prerequisite to the court’s considering a petition to terminate parental rights.
Ark. Code Ann. § 9-27-341(b)(l)(B) (Supp. 2003). Nevertheless, we must apply the statutes applicable when this appeal was brought. | [
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Karen R. Baker, Judge.
The circuit court of Benton County terminated the parental rights of appellants. The court included in its findings that each parent, either as the offender or as an accomplice, committed a felony battery against another child which resulted in the subsequent death of that child. Each parent challenges the respective termination. We have consolidated their arguments for appeal. The father, Frank Todd, challenges the sufficiency of the evidence. The mother, Debra Nelson, challenges the sufficiency of the evidence and argues that the Department of Human Services (DHS) failed to prove its grounds for terminating parental rights. She also argues that the trial court erred in denying her one year from the time her child was removed from her home to remedy the situation that caused the removal. We find no error and affirm.
On January 13, 2002, the then two-year-old son of Frank Todd and Debra Nelson, was taken into protective custody by the Arkansas Department of Human Services for a seventy-two-hour hold as a result of massive head trauma inflicted upon an infant grandson of Debra Nelson, Noah Caldwell. Four-month-old Noah was pronounced dead on January 14, 2002, a result of these severe injuries. Although the petition for emergency custody cited two conditions for J.T.’s removal, the medical condition of Noah caused by a caretaker in the home and the environment of the residence, it is clear that the primary reason for removal was the injury suffered by Noah while in appellants’ care.
Frank Todd was arrested and charged with the capital murder of Noah Caldwell. At the time of the termination hearing, he was being held without bond in the Benton County jail while awaiting trial. A probable cause hearing was held on January 23, 2002, and an adjudication date was set in accordance with Arkansas law. Shortly thereafter, the Department of Human Services filed notice of intention to recommend that a finding of no reunification services be entered against the father, Frank Todd, based on his having allegedly committed murder of a child, having committed a felony battery or assault that results in serious bodily injury to any child, and/or subjecting J.T. to aggravated circumstances.
An adjudication hearing was held on March 8, 2002. Mr. Todd did not testify. Debra Nelson testified that she had met Frank Todd in a psychiatric facility, Charter Hospital, in San Antonio, Texas, while both were patients at the facility. Mr. Todd was being treated for depression and for fighting with his son. Ms. Nelson was being treated for depression and to address issues concerning her being abused by her father and later by the husband to whom she was married during the hospitalization. Mr. Todd and Ms. Nelson never married, but some months after their meeting, Mr. Todd moved in with Ms. Nelson. At the time Jacob was taken into custody, the two had been live-in companions for three to four years. Ms. Nelson had been on medication after her release from the hospital. When she decided she wanted to have another child, she spoke with her psychiatrist who said she would need to discontinue her medication before becoming pregnant. Although she could not remember exactly when she stopped taking her prescriptions, she knew it was sometime before she became pregnant with J.T. There was no evidence that she ever resumed her medication.
Ms. Nelson also testified that Mr. Todd had continued to take medication throughout the time she had known him; however, he would periodically neglect taking his medication. Ms. Nelson stated that she would “get on to him, and make sure that he was taking” his medications. She further stated that these lapses were never extensive and that she believed that at the time of Noah’s death that Mr. Todd was taking his medication.
Ms. Nelson described Mr. Todd as verbally abusive and recounted two instances of physical abuse within the year preceding Noah’s death. The first incident was against Ms. Nelson. She explained that during an argument that he “had taken his belly” and shoved her. The second was against her seventeen-year-old daughter. Ms. Nelson told how her daughter and Mr. Todd were verbally arguing and that when her daughter refused to go to her room, that Mr. Todd held his knuckles up to her throat, “shoved his belly at her,” and told her to go to her room. Ms. Nelson said she called the police after each incident. After the second incident, Mr. Todd admitted himself to a psychiatric ward. Mr. Todd returned to the home about a month later.
When questioned about how J.T.’s leg was broken when he was seven months old, Ms. Nelson explained that he was standing right in front of her when it happened. She had her feet on the walker in front of her, and J.T. was climbing on the edge of the walker. She took him down from the walker several times, but he eventually slipped, and his foot was caught breaking his leg.
Regarding the events that led to Noah being in her care at the time of his death, Ms. Nelson explained that a Texas court granted her daughter temporary custody of Noah and her granddaughter, Zoe, who was about twenty-one months old at the time. Ms. Nelson had attempted to intervene to obtain temporary custody, but the Texas court refused and ordered that the children not be removed from the State of Texas. She explained that she understood that restriction to mean that the children could not be moved permanently out of the State of Texas, and that she left the next day with the children for them to visit her in Arkansas. This occurred sometime in December 2001.
In response to questions regarding injuries on her grandchildren when they came into her care, Ms. Nelson stated that Zoe had normal bumps and bruises from being an active child and that Noah had none. She explained that when she brought the two children to Arkansas, Mr. Todd became the primary caretaker for all three of the young children in the household. Ms. Nelson’s teenage daughter was not at home much. She described her work-week as five to six days a week with eight to fifteen hours a day. She explained that Mr. Todd’s previous hospitalizations and incidents of physical aggression caused her no concerns regarding Mr. Todd’s caring for three young children. She said that his problems were with teenagers, not young children. She further testified as to his commendable care ofJ.T., including walking the floors with the colicky child at night.
Ms. Nelson also related one incident of Noah having trouble breathing prior to the infliction of head trauma on January 13, 2002. She said she was at work when Mr. Todd called to say that Noah was having difficulty breathing and his lips were turning blue. She left work immediately and upon her arrival home found the baby “breathing hard, his heart racing, fussy, but still smiling”.
On the night of the fatal injuries, she testified that she left the home around twenty minutes before 8:00 p.m. to go to the hospital to visit her sister-in-law and her new baby. She had planned to leave earlier because visitation ended at 8:00, but had been delayed. Immediately prior to leaving she was holding and playing with Noah who was laughing and smiling at her while she bounced him. She placed him in his swing where he was starting to go to sleep as she and her teenage daughter were leaving. Mr. Todd was in a good mood, on the couch watching television. Ms. Nelson did, however, offer that they had a rough day grocery shopping with all three kids while her older daughter slept, “doing all the grocery shopping, bringing everything back” after shopping at Wal-Mart.
Within three minutes of her arrival at the hospital, Mr. Todd called to say the baby was breathing funny, turning blue, and not responding. Ms. Nelson explained that it reminded her of when the baby had pneumonia, and she directed Mr. Todd to run hot water in the shower to see if the steam would help the baby breathe. She said she told him to call 911 if it didn’t help, and she left for home. When she arrived, the emergency personnel were transferring Noah from the house to an ambulance. At the hospital, she described Mr. Todd as behaving angrily, complaining that law enforcement officers were watching him, like they thought that he had done something. She explained that she was concerned for her grandson and that she didn’t have time to address Mr. Todd’s complaints.
Deputy Randy Clark with the Benton County Sheriffs Office testified that he was at the hospital, investigating the injuries to Noah, when Mr. Todd arrived. Deputy Clark explained to Mr. Todd his Miranda rights, and Mr. Todd agreed to speak with him. Mr. Todd explained that he was watching television when he noticed the baby slumped over in the child’s swing. Ms. Nelson was getting ready to leave for the hospital, and he asked her to take at look at the baby. Ms. Nelson just laughed and said the baby was playing. Shortly after Ms. Nelson left, Mr. Todd looked back at the swing, and the baby was in the same position. So he picked the baby up. When he could not elicit a response from the child, he called Ms. Nelson. Mr. Todd said that Noah had done this before and that Ms. Nelson had got the baby breathing again. He couldn’t, and he called 911.
Rich Connor, an investigator with the Sheriff s office, also investigated the events surrounding Noah’s death. He described bruises and an indentation on Noah’s face and head. He said that Mr. Todd had explained the bruise saying that Noah had fallen off the sofa. When Investigator Connor discovered that there were two other young children at the home with a teenage girl, the officers went to check on them. This was around midnight. They woke everyone up. They described the place as a “filthy mess.” There were clothes, trash, dirty dishes, and dirty cat boxes. Fresh meat, still in theWal-Mart sacks, was in the floor and the cats were trying to get into it. They found a bottle with rotten milk in J.T.’s bed. J.T’s bed was dirty with what appeared to be blood stains on the pillow. Every bed in the house, every sheet, and every pillow, had a stain on it that he believed to be blood, including baby Noah’s bassinet. Investigator Connor stated that some of the apparent blood stains were brown, and some were red. The baby’s swing where Noah had been slumped was so stained that he could not determine whether any of the stains were blood stains from his initial observations.
• Dr. George Schaefer was the pediatrician who treated Noah on the night of January 13. He testified that Ms. Nelson had told him that the baby had been a little fussy that day and didn’t eat well, but had no current illness. She did not offer information as to why Noah had been brought to the emergency room. Dr. Schaefer described the swelling of the baby’s head and that he was not breathing on his own. His examination revealed bruises of varying ages from several days old to within a day or two. He testified that because of the baby’s developmental stage, it would be unusual to have bruises in those areas resulting from the baby’s own activities.
Dr. Schaefer also explained that Noah had bilateral retinal hemorrhages. He testified that this condition is expected whenever you have a severe or significant trauma to the head, and is especially common in child abuse cases: He commented that Noah’s hemorrhages were very obvious. He explained that this medical condition does not happen spontaneously and severe force would have had to have been used to sustain the damage. He was asked to estimate the time of injury. He stated that he believed 911 was called about 8:15 p.m., and that when he first examined Noah around 9:30 p.m. that the body was already cold. He explained that it takes a body temperature time to fall. He estimated that the injuries could have occurred anywhere from two to four hours before he arrived and first saw the child. When questioned as to whether the body could have lost that much warmth between 8:00 p.m. to 9:30 p.m., the doctor explained that if Noah had been in a warm home and a warm ambulance during the time after he sustained the injury, that he would not expect such a low body temperature to develop within that time frame. In spite of his testimony regarding Noah’s body temperature, Dr. Schaefer could not testify for certain when the injuries occurred and allowed that it was possible they had occurred around 8:00 p.m. Noah remained on life support in the care of Dr. Schaefer until he was transferred to Arkansas Children’s Hospital.
The deposition of Dr. Jerril Green was incorporated into evidence. He testified that Noah died of traumatic brain injury. In addition to several skull fractures, Noah also had rib fractures. Dr. Green stated these were at least two weeks old, but could possibly have been as old as two months. He also testified that rib fractures in a baby Noah’s age are a common finding in physical abuse cases. He explained that the rib fractures found in Noah would have taken considerable force, and were non-accidental.
After the hearing, the court found that J.T. was dependent-neglected. In the order terminating parental rights, the court found that each parent either, as the offender or as an accomplice, had committed a felony battery against the child, Noah Caldwell, resulting in his subsequent death. Although other factors and findings are also cited, it is this factor which was critical to the termination.
The burden on the party seeking to terminate the parental relationship is a heavy one under Arkansas law. Malone v. Arkansas Dep’t of Human Servs., 71 Ark. App. 441, 30 S.W.3d 758 (2000). Arkansas Code Annotated section 9-27-341 (b)(3) (Repl. 2002 & Supp. 2003) requires that an order terminating parental rights must be based on clear and convincing evidence. When the burden of proving a disputed fact in a termination proceeding is by clear and convincing evidence, the inquiry on appeal is whether the trial court’s finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. Minton v. Arkansas Dep’t of Human Servs., 72 Ark. App. 290, 34 S.W.3d 776 (2000). A finding is clearly erroneous when, although there is evidence to support the finding, after reviewing all of the evidence, the reviewing court is left with the definite and firm conviction that a mistake has been made. Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996). In resolving the clearly erroneous question, we must give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Dinkins v. Arkansas Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001).
Arkansas Code Annotated section 9-27-341 provides as grounds for terminating parental rights, that:
ix(a) The parent is found by a court of competent jurisdiction to:
(1) Have committed murder or voluntary manslaughter of any child or to have aided or abetted, attempted, conspired, or solicited to commit such murder or voluntary manslaughter;
(2) Have committed a felony assault that results in serious bodily injury to any child;
Ark. Code Ann. § 9-27-341(b)(l)(A)(3)(B)(xi)(a)(l & 2).
Under Ark. Code Ann. section 5-2-403 (Rep. 1997), an accomplice is defined as follows:
(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(1) Solicits, advises, encourages, or coerces the other person to commit.it; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.
A defendant can be an accomplice to murder even though the defendant’s participation in the murder is, compared to that of the principal, relatively passive. See Henry v. State, 278 Ark. 478, 486-87, 647 S.W.2d 419, 424, cert. denied, 464 U.S. 835 (1983); see also Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). The following factors are relevant in determining the connection of an accomplice with the crime: presence of the accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive ofjoint participation. Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990). Accomplice liability may be shown by circumstantial evidence, without direct proof of a conspiracy agreement. Purifoy v. State, 307 Ark. 482, 487, 822 S.W.2d 374, 377 (1991); King v. State, 271 Ark. 417, 609 S.W.2d 32 (1980). Under the accomplice liability statute, a defendant may properly be found guilty not only of his own conduct, but also by the conduct of his accomplice. Id.; King, supra. When two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Id.; Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979). There is no distinction between principals on the one hand and accomplices on the other, insofar as criminal liability is concerned. Id.; Parker, supra.
We cannot say that the trial court clearly erred in finding that either Ms. Nelson or Mr. Todd inflicted the injuries on Noah and that the other was an accomplice. The doctor’s testimony concerning the time and extent of injuries support the court’s conclusion that Ms. Nelson was in the home when the injuries were inflicted upon Noah. Ms. Nelson testified that she was running late for visitation that ended at 8:00, but she was playing with a laughing and happy baby immediately before leaving. Yet she told the attending physician at the hospital that the baby had been fussy and not eaten well, and that they had a rough day grocery shopping with the children at Wal-Mart. The officers, upon arriving at the home, found fresh meat in the floor, still in the Wal-Mart sack, where the cats were trying to get into it, rather than having been put away.
The judge specifically discredited Ms. Nelson’s testimony regarding her whereabouts at the time Noah suffered the injuries. The implausibility of Ms. Nelson’s story is one criteria by which to judge her credibility and may be an indication of culpability. See Dopp v. Sugarloaf Min. Co., 288 Ark. 18, 702 S.W.2d 393 (1986) (describing implausible explanation as criteria as equally reliable as witness demeanor in determining credibility); Whitmore v. State, 263 Ark. 419, 565 S.W.2d 133 (1978) (affirming where appellant provided a rather implausible explanation given appellant’s education and faced with the serious charges of which he was told).
Additionally, circumstantial evidence can be sufficient to support the conviction of battery of a child. Reams v. State, 45 Ark. App. 7, 870 S.W.2d 404 (1994); Payne v. State, 21 Ark. App. 243, 731 S.W.2d 235 (1987). In Reams, the court affirmed the conviction of a mother for first-degree battery of her child, rejecting her argument that her live-in companion, and not she, had severely abused her child. This court found that the appellant’s improbable statements explaining the injury, the nature of the injuries to the child, the medical evidence, and the appellant’s admission that she had the opportunity to abuse the child constituted substantial circumstantial evidence of guilt.
However, before parental rights may be terminated, there must also be clear and convincing evidence that it is in the best interest of the juvenile pursuant to section 9-27-303 subsections (b) (3) (A) (i) and (ii). Conn v. Arkansas Dep’t of Human Servs., 79 Ark. App. 195, 85 S.W.3d 558 (2002) (holding that even when subsection (b)(3)(B)(ix)(a)(4) is satisfied with clear and convincing evidence that parental rights have been involuntarily terminated as to a sibling, parental rights cannot be terminated unless there is also clear and convincing evidence pursuant to subsections (b)(3)(A)(i) and (ii) that it is in the best interest of the juvenile).
A dependent-neglected juvenile is defined as “any juvenile who as a result of abandonment, abuse, sexual abuse, sexual exploitation, neglect, or parental unfitness is at substantial risk of serious harm.” Ark. Code Ann. § 9-27-303(15)(A) (Repl. 2002). Arkansas Code Annotated section 9-27-302(2)(B) provides that one purpose of the Juvenile Code is “[t]o protect a juvenile by considering the juvenile’s health and safety as the paramount concerns in determining whether or not to remove the juvenile from the custody of his parents or custodians....”
In Brewer v. Arkansas Department of Human Services., 71 Ark. App. 364, 43 S.W.3d 196 (2001), we explained:
Parental unfitness is not necessarily predicated upon the parent’s causing some direct injury to the child in question. Such a construction of the law would fly in the face of the General Assembly’s expressed purpose of protecting dependent-neglected children and making those children’s health and safety the juvenile code’s paramount concern. To require [another child] to suffer the same fate as [a sibling] 'before obtaining the protection of the state would be tragic and cruel.
71 Ark. App. at 368, 43 S.W.3d at 199; see also Arkansas Dep’t of Human Servs. v. McDonald, 80 Ark. App. 104, 91 S.W.3d 536 (2002).
Similarly, to require J.T. to suffer the same fate as Noah before obtaining the protection of the law would be tragic and cruel. Therefore, we hold that the trial court did not err in finding that it was in the child’s best interest to terminate parental rights.
Ms. Nelson also argues that the trial court erred in denying her one year from the time her child was removed from her home to remedy the situation that caused removal. However, the grounds for removal based upon the commission of a felony battery provide for immediate termination of parental rights. She fails to cite any relevant case law supporting her argument. When a party cites no authority or convincing argument on an issue, and the result is not apparent without further research, the appellate court will not address the issue. See Webber v. Arkansas Dep’t of Human Servs., 334 Ark. 527, 975 S.W.2d 829 (1998); Country Corner Food & Drug, Inc. v. First State Bank, 332 Ark. 645, 966 S.W.2d 894 (1998).
Accordingly, we affirm.
Gladwin, Robbins and Vaught, JJ., agree.
Hart and Neal, JJ., agree in part and dissent in part. | [
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JOHN B. ROBBINS, Judge.
Appellant Regina Hislip injured her J neck when she slipped and fell while working for appellee Helena/West Helena Schools on October 14, 1998. The appellee accepted the injury as compensable, and in February 1999, Mrs. Hislip came under the care of Dr. Gregory Ricca. Dr. Ricca performed cervical fusion surgery on May 26, 1999, which the appel-lee covered. However, the fusion surgery was unsuccessful and, pursuant to Dr. Ricca’s recommendation, Mrs. Hislip wanted to repeat the surgical procedure. The second surgery was controverted by the appellee, and after a hearing, the Workers’ Compensation Commission denied Mrs. Hislip’s claim for additional medical treatment. Specifically, the Commission ruled that Mrs. Hislip’s continued smoking constituted an independent intervening cause, which prolonged her need for treatment in the form of another cervical fusion surgery. Mrs. Hislip now appeals, arguing that the Commission’s decision to deny benefits for the subsequent surgery is not supported by substantial evidence. We agree, and we reverse.
Where a claim is denied because the claimant has failed to show entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm the Commission if its opinion displays a substantial basis for the denial of relief. Stephenson v. Tyson Foods, Inc., 70 Ark. App. 265, 19 S.W.3d 36 (2000). In determining the sufficiency of the evidence, we review the evidence in the light most favorable to the Commission’s findings, and affirm if they are supported by substantial evidence. Cooper v. Hiland Diary, 69 Ark. App. 200, 11 S.W.3d 5 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.
Dr. Ricca testified that Mrs. Hislip first presented with neck pain on February 23, 1999. He indicated that fusion surgery eventually became necessary due to bone spurs and a pinched nerve. According to Dr. Ricca, Mrs. Hislip had been a pack-a-day cigarette smoker for fifteen years, and on her first visit he advised her to quit. However, she continued to smoke both before and after the May 26, 1999, surgery, and Dr. Ricca’s July 1999 notes indicate that at that time he again advised her to quit.
Dr. Ricca testified that x-rays taken several weeks after the surgery showed that instead of improving, the bones in Mrs. Hislip’s neck were deteriorating and collapsing. He further stated that chronic smoking impairs the blood supply to bone and has an adverse effect on the human spine. Dr. Ricca testified that Mrs. Hislip’s continuation of smoking cigarettes increased the odds that her fusion would fail. He stated that in his nine years of practice, the only failed fusions that he had performed were on smokers. Dr. Ricca acknowledged that failed fusions can occur for a variety of reasons. However, in the instant case he attributed the failure to Mrs. Hislip’s smoking. In this regard, he testified:
I do not think I can separate whether or not the smoking prior to the surgery or the smoking after the surgery was the major cause. I think that smoking is the major cause of this fusion to fail.... In my opinion a combination of both pre, before the accident and surgery, and post, after the accident and surgery, smoking would be the cause of the failed fusion.
Ms. Hislip testified on her own behalf. She stated that, prior to the surgery, Dr. Ricca advised her that if she stopped smoking it might help her, but also that it might not. She testified that, two weeks before the surgery, she cut her smoking back to a half-pack a day. She continued smoking a half-pack a day until July 1999, when she became aware that the second surgery was being controverted due to an independent intervening cause. Ms. Hislip maintained that Dr. Ricca told her to stop smoking after the fusion surgery failed, but not before.
For reversal, Mrs. Hislip argues that the Commission erred in denying compensation for the second surgery in reliance on Ark. Code Ann. § 11 — 9—102(4)(F)(iii) (Supp. 1999), which provides:
Under this subsection (4) (F), benefits shall not be payable for a condition. which results from a nonwork-related independent intervening cause following a compensable injury which causes or prolongs disability or a need for treatment. A nonwork-related independent intervening cause does not require negligence or recklessness on the part of the claimant.
Mrs. Hislip notes that, although Dr. Ricca attributed the failed fusion surgery to her smoking, he could not determine the extent to which her pre-operative and post-operative smoking contributed to the failure. Given the evidence presented, Mrs. Hislip submits that the primary cause of the failed surgery was her pre-injury smoking, which could not have constituted a independent intervening cause. She contends that there was a failure of proof to support the Commission’s decision in this regard, and that therefore its decision must be reversed.
In Davis v. Old Dominion Freight Line Inc., 341 Ark. 751, 20 S.W.3d 326 (2000), our supreme court held that the legislature’s enactment of Act 796 of 1993 did not change the prior existing law regarding independent intervening causes. In Broadway v. B.A.S.S., 41 Ark. App. 111, 848 S.W.2d 445 (1993), we outlined the test for when an independent intervening cause relieves an employer from liability:
In Guidry v.J.R. Eads Constr. Co., 1 Ark. App. 219, 669 S.W.2d 483 (1984), we said that the question is whether there is a causal connection between the primary injury and the subsequent disability; and if there is such a connection, there is no independent intervening cause unless the subsequent disability was triggered by activity on the part of the claimant which was unreasonable under the circumstances. One of the circumstances to consider in deciding whether the “triggering activity” was reasonable is the claimant’s knowledge of his condition. See 1 Larson, The Law of Workmen’s Compensation § 13.11 (1986).
Id. at 114, 848 S.W.2d at 447-48.
In the instant case it is clear that there is a causal connection between the primary injury and the need for the second fusion surgery given that Mrs. Hislip would not have needed the first surgery but for her fall at work. Thus, pursuant to Broadway v. B.A.S.S., supra, the Commission’s duty was to determine whether Mrs. Hislip’s continued smoking triggered the need for an additional surgery, and whether it was unreasonable under the circumstances. We hold that the Commission’s opinion does not display a substantial basis for denying the relief sought because the evidence does not support the Commission’s finding that Mrs. Hislip’s post-accident smoking caused the failed fusion surgery. Thus, we need not address whether or not Mrs. Hislip’s decision to continue smoking was unreasonable.
In its opinion, the Commission stated:
[T]he medical evidence unequivocally reveals that claimant’s need for additional medical treatment was caused by claimant’s continued nicotine use both prior to and after surgery. As noted by Dr. Ricca, if claimant had quit smoking “it would have had a significant difference on the outcome.” Although he could not distinguish between the effect of post-operative and pre-operative smoking, Dr. Ricca has consistently and unfailingly opined that smoking was a “significant cause” or “primary cause” of claimant’s failed fusion.
The medical proof relied on by the Commission supports a finding that Mrs. Hislip’s smoking triggered the need for the second surgery. However, it does not support the more specific finding that her smoking, after her doctor advised her to stop, triggered the need for the second surgery. In fact, the Commission acknowledged that Dr. Ricca could not distinguish between the effect of postoperative and pre-operative smoking on the failed fusion. Dr. Ricca’s testimony indicated that he could not determine whether the pre-accident or post-accident smoking was the major cause of the failure. Consequently, the Commission’s determination that the need for a second surgery was caused by an independent intervening cause is not supported by substantial evidence.
Reversed and remanded.
Griffen and CRABTREE, JJ., agree. | [
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John F. STROUD, Jr., Chief Judge.
A Pulaski County Circuit Court jury found appellant, Willie Hutcherson, guilty of four counts of aggravated robbery and four counts of theft of property. He was sentenced to a total of 240 years’ imprisonment in the Arkansas Department of Correction.
Hutcherson raises three arguments on appeal: (1) the evidence was insufficient to support his convictions for four counts of aggravated robbery and four counts of theft of property; (2) the trial court erred in denying his motion to suppress photo spreads shown to two of the victims as overly suggestive; and (3) the trial court erred in denying his motion to declare Ark. Code Ann. § 16-90-803(b)(4) and (a)(1) unconstitutional and by refusing to instruct the jury on the sentencing guidelines. We affirm.
The facts giving rise to appellant’s convictions are as follows. On the night of April 2, 1999, Sally Rhinehold was robbed while working at a Conoco gas station on Baseline Road. At trial, Rhinehold identified appellant as the person who came into the store, shopped around for fifteen to twenty minutes until the other customers left the store, and then pulled a gun on her and demanded that she give him all of the money from her register. Rhinehold complied with the demand. Appellant then made her go to the store’s restroom, where she stayed until she heard someone come into the store. Rhinehold testified that she had no doubt appellant was the person who robbed her because he was the same person who had given her a check a couple of days before and she had required proof of identification at that time.
On the morning of April 3, 1999, Cindy West was robbed as she was working at a Texaco gas station on Dixon Road. West testified that a man, whom she identified as appellant in a security videotape, a pretrial photo spread, and again at trial, attempted to pay for three dollars worth of gas with a credit or debit card, but that the card was declined. She said that although she did not notice the first name on the card, the last name was either Hutchinson or Hutcherson. Appellant left and then came back in and asked for cigarettes. West turned to get the cigarettes, and when she turned back around, appellant was standing in front of her with a gun. Appellant told her to give him all of the money, and West did as he demanded. Appellant then told West to go to'the back of the store. As she was complying with his order, another customer pulled into the station for gas; appellant then walked out the door and left.
On the night of April 3, 1999, Hyonsuk Fusaro was working at a Texaco station on Ninth Street when she was robbed by a person she identified as appellant both in a pretrial photo spread and at trial. Fusaro testified that she and appellant were alone in the store when he pointed a gun at her and told her to put all of the money in a brown bag. He also made her put her three rings in the bag. He made Fusaro lie down on the restroom floor and asked her to take her clothes off; when she refused, appellant left. Fusaro came out of the bathroom when she heard another customer in the store.
On the afternoon of April 5, 1999, Michael Vickery was robbed while working at the Dixon Road Wine & Spirits liquor store. Vickery testified that a man came in and asked the price of a bottle of liquor, he turned around to check the price, and when he turned back around, the man was pointing a gun at him. The man told him that he wanted all of the money out of the register; Vickery complied. He also demanded all of Vickery’s jewelry, which consisted of two rings and a bracelet. The man made Vick-ery go into the cooler and fie down on the floor, but the door would not lock, so he put Vickery in the restroom. Vickery locked himself inside, coming out when he heard the store door open. Vickery went outside, saw appellant through a car window, and fired four shots at the car. Although Vickery could not identify appellant in a photo spread, he identified appellant at trial as the person who had robbed him. Timothy Hibbs, an investigator with the Pulaski County Sheriff s Office, testified that at the time he was arrested, appellant was wearing a ring and bracelet that closely matched the description of the items taken from Michael Vickery in the robbery at Dixon Road Wine and Spirits. At trial, Vickery identified the ring and bracelet taken from appellant as the jewelry that was taken from him during the robbery.
Nihissa Dixon testified that she had driven appellant to the fiquor store, appellant had gone into the store, and when appellant returned, shots were being fired at the car. Dixon testified that appellant told her that he had robbed the store with his gun, although she said that she never saw a gun. Sergeant Jim Dixon testified that after appellant had been read his Miranda rights, he confessed that he had robbed Dixon Wine & Spirits in order to repay a drug debt.
Hutcherson’s first argument is that there was insufficient evidence to sustain the convictions. Directed-verdict motions are treated as challenges to the sufficiency of the evidence. Blockman v. State, 69 Ark. App. 192, 11 S.W.3d 562 (2000). When the sufficiency of the evidence is challenged, the appellate court considers only evidence that supports the guilty verdict, and the test is whether there is substantial evidence to support the verdict. Id. Substantial evidence is evidence of such certainty and precision as to compel a conclusion one way or another. Id.
Appellant’s argument is not preserved for appeal. At the close of the State’s evidence, Hutcherson’s attorney stated, “I have a motion for directed verdict based on insufficiency of the evidence. I would ask the Court to direct a verdict in our favor on all counts in that there is not sufficient evidence for this to go forward to a jury.” After appellant presented his case and rested, his attorney said, “I would also renew my motion for directed verdict based on insufficiency of the evidence pursuant to Arkansas law at this point at the close of all evidence.”
Rule 33.1(a) of the Arkansas Rules of Criminal Procedure provides, “In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor.” Subsection (c) of that rule provides, in pertinent part, “A motion for directed verdict . . . must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense.”
Hutcherson’s motions for directed verdict fail to specify the respect in which the evidence was deficient. Instead, they are simply general motions stating that the evidence is insufficient, which is not adequate to comply with the requirements of Rule 33.1. Nevertheless, if we were to address appellant’s sufficiency arguments, we would find the evidence sufficient to support all of appellant’s convictions.
Hutcherson’s next contention of error is the trial court’s denial of his motion to suppress the photo spreads shown to crime victims Cindy West and Hyonsuk Fusaro. He argues that the photo spreads were unduly suggestive because in the one shown to West, Ins was the only head in which the scalp was cut off in the picture, and in the one shown to Fusaro, he was the only person wearing a necklace.
In order for a pretrial identification to violate the Due Process Clause, its elements must be so suggestive as to make it all but inevitable that the victim will identify one person as the criminal. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992).
Hutcherson’s argument on appeal concerning the photo spread shown to West was not made to the trial court and is being made for the first time on appeal. The objection made to the trial court concerning the photo spread shown to West was that it was unduly suggestive because the background of the other pictures was different, not because the top of appellant’s head was cut off in the photo. Our law is well established that arguments not raised at trial will not be addressed for the first time on appeal, and that parties cannot change the grounds for an objection on appeal, but are bound on appeal by the scope and nature of the objections and arguments presented at trial. Nix v. State, 54 Ark. App. 302, 925 S.W.2d 802 (1996). Therefore, Hutcherson’s argument as it pertains to the photo spread shown to West was not preserved for appeal.
Nevertheless, even if we were to reach the merits of the argument, we would affirm. We do not reverse a trial court’s ruling on the admissibility of identification evidence unless it is clearly erroneous, and do not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification. Moore v. State, 304 Ark. 558, 803 S.W.2d 553 (1991). A review of the photo spread shown to West reveals that all of the photos were close-ups of young African-American men with mustaches and similar facial features. West testified that it took her less than thirty seconds to identify appellant in the photo spread as the person who had robbed her, and she was positive of his identity. She further stated that no one suggested who she should select from the photos. This testimony was corroborated by both of the police officers who showed West the photo spread. There was nothing unduly suggestive in the photo spread shown to West, and the trial court did not err in allowing this pretrial identification into evidence.
As for the photo spread shown to Fusaro, Hutcherson contends that the photo spread was unduly suggestive because he was the only person who was wearing a necklace. Again, all of the persons in the photo spread were young, African-American men with similar facial features. Fusaro testified that she was able to observe appellant at close range, she was positive in her identification of him, and the fact that he was wearing a necklace in the photo spread did not suggest to her that he was the person who had robbed her. The photo spread shown to Fusaro was not unduly suggestive, and the trial court did not err in admitting the pretrial identification into evidence.
Hutcherson’s last point on appeal is that the trial court erred by not ruling Ark. Code Ann. § 16-90-803(a)(l) and (b)(4) (Supp. 1999), which establishes presumptive sentencing standards, unconstitutional as violative of the Due Process and Equal Protection Clauses. Subsection (a)(1) of this statute provides:
When a person charged with a felony enters a plea of guilty or no contest, enters a negotiated plea, or is found guilty in a trial before the judge, or when the trial judge is authorized to fix punishment following an adjudication of guilt by a jury pursuant to § 5-4-103, sentencing shall follow the procedures provided in this chapter.
Subsection (b)(4) of this statute provides, “This section shall not apply when a jury has recommended a sentence to the trial judge.”
Appellant contends that this statute creates two classes of defendants, one whose punishment is determined by a jury and one whose punishment is determined by the trial judge, and encourages defendants to waive their right to a jury trial. However, a trial judge is not required to impose the presumptive sentence in Ark. Code Ann. § 16-90-803; subsection (a)(2)(A) of that section clearly provides trial judges with the authority to depart from the presumptive sentence pursuant to Ark. Code Ann. § 16-90-804 (Supp. 1999). Furthermore, our supreme court held in Pickett v. State, 321 Ark. 224, 226, 902 S.W.2d 208, 209 (1995), “The sentencing guidelines do not burden the fundamental right to a jury trial because the statutory minimum and maximum ranges for a sentence always override the presumptive sentences.” The trial court did not err in denying appellant’s request to declare these statutory provisions unconstitutional.
Affirmed.
Crabtree, J., agrees.
Hart, J., concurs. | [
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Sam BIRD, Judge.
This case arises from a paternity determination and custody award by the Chancery Court of St. Francis County regarding the minor child Spencer Lewis Jones, who was born out of wedlock on December 23, 1998. His mother, Nicole Overton, was killed in a car accident on April 10, 1999. Appellant Alton Overton, who is Nicole’s father and Spencer’s maternal grandfather, appeals the chancery court order that awarded custody of the child to appellee Jason Jones after determining that Jones was his biological father. Overton contends that the trial court erred (1) in denying his motion to dismiss, based on improper venue and a lack of jurisdiction, and (2) in awarding custody to appellee Jones, because the child’s interests would be best served by awarding custody to Overton. We hold that the St. Francis County Chancery Court was not the proper venue for matters relating to the paternity and custody of the minor child. Therefore, we reverse on the first point and vacate the trial court’s orders. In view of this disposition, we find it unnecessary to address the merits of the second point.
It is helpful to set forth the factual and procedural history of this case before turning to the issues on appeal. On April 13, 1999, three days after Nicole Overton’s death, Jason Jones filed a petition in St. Francis County Chancery Court seeking a determination that he was Jason’s father and asking that custody be awarded to him. On April 29, Alton and his new wife, Mary, filed in Saline County Chancery Court a petition for guardianship, and an order awarding guardianship was entered on that date.
On May 6, Alton and Barbara Overton moved to dismiss the St. Francis County Chancery Court action, contending that the court did not have jurisdiction over the minor child, that St. Francis County was not the proper venue for the cause of action, and that the petition before the court failed to state facts upon which relief could be granted. They also contend that the Saline County Probate Court had assumed jurisdiction of the child and had appointed a guardian, that the minor child resided in Saline County, and that the best interests of the child required that the litigation take place in Saline County. On May 18, the St. Francis County Chancery Court denied the Overtons’ motion to dismiss and conducted a paternity hearing, at which it considered the testimony of the parties and the results of a DNA test that had been performed before Nicole’s death. In an order of June 24, 1999, the court found that Jason Jones was the father of the child. On June 25, the Overtons filed a counter-petition alleging that Jason Jones was not a fit and proper person to have custody, and asking that Alton Over-ton be awarded custody. On September 30, the St. Francis County Chancery Court conducted a hearing to decide who should be awarded custody of the child. By order of December 13, the St. Francis County Chancery Court awarded custody to Jason Jones and visitation privileges to the Overtons.
Whether the trial court erred in denying Alton Overton’s motion to dismiss, based upon improper venue and lack of jurisdiction
Venue and jurisdiction, though sometimes used interchangeably, are two distinct legal concepts. Venue refers to the geographic area, like a county, where an action is brought to trial. Meny v. Norris, 340 Ark. 418, 13 S.W.3d 143 (2000). Jurisdiction is the power of a court to decide cases and presupposes control over the subject matter and parties. Id.
Alton Overton contends that proper venue for the paternity and custody determinations relating to the child involved here was in Saline County, where the minor child resided, and that venue was improper in St. Francis County, where the father resided. Jason Jones contends that this issue should not be addressed because Overton did not raise his argument below. We disagree. Overton’s motion to dismiss as abstracted in his brief, specifically states that St. Francis County was not the proper venue for the paternity and custody determinations, and that the minor child had resided in Saline County for his entire lifetime and continued to reside there. Additionally, the abstracted order by which the court denied Over-ton’s motion to dismiss includes the finding that the court “has jurisdiction over the parties and cause of action and is the proper venue.” From the allegations contained in the motion to dismiss and the court’s finding of “proper venue” in the order denying the motion, we find that the issue of venue was properly raised below.
Venue of paternity actions shall be in the county in which the plaintiff resides or, in cases involving a juvenile, in the county in which the juvenile resides. Ark. Code Ann. § 9-10-102(c) (Supp. 1999) (emphasis added). As Overton points out, Spencer was first cared for at his home in Saline County by his mother; by his maternal step-grandmother, Mary J. Overton; and by his maternal grandparents, Alton and Barbara Overton. Furthermore, the Overtons continued to care for the child after his mother’s death.
There is no dispute that the county of residence of Spencer Jones, the juvenile, was Saline County. Therefore, under the mandate of section 9-10-102(c), the proper venue for the paternity determination of Spencer Jones was in Saline County. Therefore, we reverse and vacate the St. Francis County Chancery Court order entered in this cause on June 24, 1999.
Arkansas Code Annotated section 9-10-113(b) (Repl. 1998) provides that a biological father who has established paternity in a court of competent jurisdiction may petition the chancery court, or other court of competent jurisdiction, wherein the child resides, for custody of the child (emphasis added). Thus it is equally clear that Saline County, and not St. Francis County, was the proper venue for the custody determination in this case. Therefore, we reverse and vacate the St. Francis County Chancery Court order entered in this cause on December 13, 1999.
The St. Francis County Chancery Court orders relating to the paternity and custody of Spencer Jones are reversed and vacated.
Neal, J., concurs.
Pittman, J., agrees. | [
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Terry Crabtree, Judge.
The appellants, Wal-Mart Stores, Inc. (“Wal-Mart”), and Claims Management, Inc., appeal from an order of the Arkansas Workers’ Compensation Commission in which the Commission affirmed an Administrative Law Judge’s (ALJ) finding that appellee, Judy Stotts, sustained a compensable injury. Appellee is employed in the accounting department of appellant, Wal-Mart. On September 10, 1999, while going to the back of the store to get supplies, appellee slipped on some water on the floor in front of the shoe department and fell on her face and left leg. Appellee sustained a busted lip and a visible bruise on her leg. Immediately after the fall, claimant began hmping. Appellee continued working and did not seek medical treatment until October 6, 1999. Appellee has continued to work at all times. Appellee was examined by Dr. David Thrash, a chiropractor, who examined and x-rayed appellee. Appellee learned from Dr. Thrash that her problems were due to a back injury. One of Dr. Thrash’s findings was that appellee suffered a lumbar subluxation. Appellee notified management that she required medical treatment. Appellee was then sent to Dr. James Meredith, at the request of Wal-Mart. Dr. Meredith diagnosed an acute lumbar strain and prescribed medications. Appellee then requested a change of physician. Appellants then controverted the claim in its entirety.
The ALJ found that on September 10, 1999, appellee sustained a compensable injury established by medical evidence supported by objective findings, that appellee’s medical treatment was causally related to her September 10, 1999, injury, that the change of physician provisions do not apply, and that there were no violations of appellant’s due process rights with respect to the Medical Cost Containment Division’s order of a change of physician prior to a determination of compensability. The Commission affirmed the ALJ’s findings. Appellant appeals, arguing that there was not sufficient evidence to support the Commission’s decision. We affirm.
When reviewing a decision of the Arkansas Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979). Substantial evidence is that which a reasonable mind might accept as adequate to support, a conclusion. Crossett Sch. Dist. v. Fulton, 65 Ark. App. 63, 984 S.W.2d 833 (1999). The issue is not whether this Court might have reached a different result from the Commission. Malone v. Texarkana Pub. Schs., 333 Ark. 343, 969 S.W.2d 644 (1998). If reasonable minds could reach the result found by the Commission, we must affirm the decision. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). In making our review, we recognize that it is the function of the Commission to determine credibility of witnesses and the weight to be given their testimony. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).
Appellants argue that the Commission erred in finding appellee sustained a compensable injury as appellee failed to present medical evidence supported by objective findings. “A compensable injury must be established by medical evidence supported by ‘objective findings.’ ” Ark. Code Ann. § 11-9-102(4)(D) (Supp. 1999). “Objective findings are those findings which cannot come under the voluntary control of the patient.” Ark. Code Ann. § 11-9-102(16)(A)(I) (Supp. 1999). Objective medical evidence is necessary to establish the existence and extent of an injury but not essential to establish the casual relationship between the injury and work-related accident. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999).
In the present case, Dr. Thrash reported that appellee was “x-rayed and examined,” and he diagnosed her with lumbar subluxation. A subluxation is a “partial dislocation.” WEBSTER’S Collegiate Dictionary 1175 (9th ed. 1991). Obviously, a dislocation cannot come under the voluntary control of a patient. Although not specifically stated in his report, it is implicitly clear that Dr. Thrash based his diagnosis on abnormalities observed in the x-ray results. Results of x-ray diagnostic studies are “objective findings” for purposes of the Workers’ Compensation Act. Smith v. County Market/Southeast Foods, 73 Ark. App. 333, 44 S.W.3d 737 (2001). We, therefore, hold that there was substantial evidence to support the Commission’s finding that appellee presented medical evidence supported by objective findings.
Next, appellants argue that the Commission erred in finding appellee’s alleged injury was causally related to her work-related incident. A “compensable injury” is one “arising out of and in the course of employment . . . .” Ark. Code Ann. § 11 — 9— 102(4) (A) (i). Thus, in order to prove a compensable injury appellee must prove, among other things, a causal relationship between the injury and the employment. McMillan v. U.S. Motors, 59 Ark. App. 85, 953 S.W.2d 907 (1997). It is not essential that the causal relationship between the accident and the disability be established by medical evidence. Crain Burton Ford Co. v. Rogers, 12 Ark. App. 246, 674 S.W.2d 944 (1984). There will be circumstances where medical evidence will be necessary to establish that a particular injury resulted from a work-related incident but not in every case. Wal-Mart Stores, Inc. v. Van Wagner, supra. “On the case as a whole, ‘if the claimant’s disability arises soon after the accident and is logically attributable to it, with nothing to suggest any other explanation for the employee’s condition, we may say without hesitation that there is no substantial evidence to sustain the commission’s refusal to make an award.’ ” Min-Ark Pallet Co. v. Lindsey, 58 Ark. App. 309, 950 S.W.2d 468 (1997) (quoting Hall v. Pittman Constr. Co., 235 Ark. 104, 357 S.W.2d 263 (1962)). The ALJ found that “the claimant’s credible testimony, together with the observations of supervisory personnel that claimant began limping immediately after the September 10, 1999, slip and fall, together with the medical opinion on record clearly establishes the causal connection.” We agree, and hold that there was substantial evidence to support the Commission’s finding that appellee’s need for medical treatment beginning October 7, 1999, was directly and causally related to the September 10, 1999, admitted incident.
Finally, appellants argue that the Medical Cost Containment Division’s decision to grant a change of physician exceeded its authority and violated their constitutional rights. Appellants assert that after they controverted appellee’s claim, the Medical Cost Containment Division granted appellee a change of physician without a hearing, and such a decision violated their constitutional right to due process. The Commission affirmed the ALJ’s finding that there had been no violation of appellants’ constitutional rights. Clearly, after a hearing on compensability was held, appellants would not have been responsible for Dr. Thrash’s medical treatment if it was determined that appellee’s injury was not compensable. Thus, we hold that appellants’ constitutional rights were not violated. Appellants further assert that only ALJs or referees can order an award of a change of physician, and thus the Medical Cost Containment Division was without authority to order such an award. We hold that this argument is without merit as appellants initially accepted appellee’s claim as compensable, and even helped appellee fill out a change-of-physician form. Thus, appellants acquiesced to the change. Further, Ark. Code Ann. § 11-9-514(2)(B) (Supp. 1999), provides that if a claimant desires a change of physician to a chiropractic physician the claimant may make the change by giving advance written notification to the employer. In this case, appellee gave appellants advance written notice of her desire to change to Dr. Thrash. Therefore, the Commission committed no error.
Affirmed.
Stroud, C.J., Robbins, Jennings, and Griffen, JJ., agree.
Pittman, J., dissents. | [
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Sam BIRD, Judge.
Appellant Tim Tucker brings this appeal contending that the chancery court erred in increasing the amount of his weekly child-support obligation because appellee Shawn Tucker (now Monieca S. Cobler) and appellee Office of Child Support Enforcement have not shown the requisite change in circumstances to warrant such an increase. We affirm.
Tucker and Cobler were divorced on June 21, 1999, pursuant to a divorce decree entered in the Washington County Chancery Court. Cobler was awarded custody of the couple’s three children, and Tucker was ordered to pay $40 per week in child support. On July 24, 2000, the OCSE intervened in the case and filed a motion to increase Tucker’s child-support payments pursuant to Ark. Code Ann. § 9-14-107 (Repl. 1998), contending that Tucker’s income had changed by more than twenty percent or had increased by more than $100 per month. OCSE stated that this change constituted a material change in circumstances sufficient to adjust Tucker’s support obligation. Tucker denied the allegation that his income had increased by either twenty percent or $100 per month.
At a hearing on the petition to modify, counsel for OCSE argued that Tucker’s child-support payments should be raised to $141.00 a week based upon a net income of $448.90 a week. It conceded that the affidavit of financial means filed with the court and stipulated to by the parties showed an income of $434.90 per week, which, according to the family-support chart called for $138.00 per week in child-support payments.
Tucker opposed the petition to modify child support on the basis that there had not been a material change in circumstances. He denied the allegation that his income had increased by twenty percent or by $100 per month. He argued that his gross income had actually decreased from $17,381 for the first six months of 1999 to $16,809 for the last six months of 2000. He explained that the decrease was based upon fluctuations in overtime pay. He stipulated that his net take-home pay was $434.90.
Tucker contended that the child-support award of $40 per week was not based upon the child-support chart, but was based upon an agreement that Tucker would be entitled to reasonable visitation, rather than specific visitation. He argued, “It was the understanding of all the parties at that time, that [I] would not exercise that visitation, and in fact [I have] not been allowed to exercise that visitation. That was the underlying background to the agreement between the parties.” Tucker also called the court’s attention to the fact that the three children for whom he was paying child support were not his biological children; rather, they were his adopted children.
After the hearing, the chancery judge ordered an increase in support payments from the original $40 per week to $138 per week. From that order Tucker appeals, again contending that a change of circumstances, substantial enough to warrant an adjustment, has not occurred.
In reviewing chancery cases, we consider the evidence de novo, but will not reverse a chancellor’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999).
Arkansas Code Annotated section 9-14-107 (a), (b), and (c) (Repl. 1998) sets forth three of the bases upon which a party can petition the court for review and adjustment of the amount of the child-support obligation. Only subsections (a) and (c) are pertinent to our inquiry in this case. These two subsections provide as follows:
(a) A change in gross income of the payor in an amount equal to or more than twenty percent (20%) or more than one hundred dollars ($100) per month shall constitute a material change of circumstances sufficient to petition the court for review and adjustment of the child support obligated amount according to the family support chart after appropriate deductions.
(c) An inconsistency between the existent child support award and the amount of child support that results from application of the family support chart shall constitute a material change of circumstances sufficient to petition the court for review and adjustment of the child support obligated amount according to the family support charge, after appropriate deductions, unless:
(1) The inconsistency does not meet a reasonable quantitative standard estabhshed by the state, in accordance with subdivision (a)(1) of this section; or
(2) The inconsistency is due to the fact that the amount of the current child support award resulted from a rebuttal of the guideline amount and there has not been a change of circumstances that resulted in the rebuttal of the guideline amount.
Tucker contended below and argues on appeal that only subsection (a) is applicable to this case, and he argues that since OCSE has not shown that his gross income has increased by more than twenty percent or more than $100 per month, it has not met its burden of proving a material change of circumstances, and that its petition should have been dismissed.
On the other hand, OCSE argues that subsection (c) is applicable and that it has proved a material change of circumstances because there is an inconsistency between the existent child-support award ($40) and the amount of child support that results from application of the family support chart ($138), and that the inconsistency meets the quantitative standard established by the state, as contained in subdivision (a) of section 9-14-107. OCSE also argues that neither of the exceptions contained in subdivisions (c)(1) and (c)(2) is applicable. In response to OCSE’s argument, Tucker filed a reply brief contending that subsection (c) is inapplicable because subsection (a)(1) clearly states that the necessary change in circumstances is based on the payor’s gross income, not the amount of child-support payments the payor is making.
We disagree with Tucker. We hold that subsection (c) of section 9-14-107 applies to this particular case and that it permits the fifing of a petition for modification of support based upon the amount of child-support payments that Tucker was making. Further, we hold that the exceptions to subsection (c) are inapplicable to this case.
While it is true, as Tucker argues, that subsection (a) of section 9-14-107 refers to changes in the gross income of the payor as the basis for a modification, subsection (c), which is a separate basis for seeking a modification of the amount of child support, speaks in terms of an inconsistency between the existent child-support award and the amount of child support that results from application of the family-support chart. Tucker has not shown that the exception set forth in subdivision (c)(1) is applicable because, clearly, the inconsistency between the divorce decree’s $40 per week award and the sum of $138 that would result from application of the child-support chart meets the reasonable quantitative standard of $100 per month or twenty percent, as set forth in subsection (a) of section 9-14-107.
In addition, Tucker has not shown that the exception in subdivision (c)(2) is applicable because there was no evidence that the inconsistency between the child-support payment originally ordered and the amount of child support called for by the family- support chart resulted from a rebuttal of the guideline amount. Tucker’s argument that $40 per week child support was based upon an agreement that he was not going to seek visitation is not supported by the record. The decree states that Cobler would have custody, subject to reasonable privileges of visitation, rather than specific visitation privileges, in favor of Tucker. Furthermore, the record reflects that Tucker filed a contempt petition stating that Cobler had not complied with his visitation requests, and asking the court to modify the decree to set forth specific visitation.
Because we find subsection (c) of section 9-14-107 applicable to the case at bar and because Tucker has not proven the applicability of one of the exceptions set forth in subsection (c) (1) or (2), we cannot say that the judge’s finding that a material change of circumstances had occurred is clearly erroneous or clearly against the preponderance of the evidence, and we affirm.
Affirmed.
Baker, J., agrees.
ROAF, J., concurs. | [
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John Mauzy Pittman, Judge.
The appellant in this child-custody and parental-relocation case was granted custody of the parties’ child pursuant to their divorce decree. Approximately two years later, appellant graduated' with honors from the University of Arkansas Law School and was offered a position as a law clerk for a federal judge in her home town, El Dorado. She notified appellee that she intended to accept the offer and relocate from Fayetteville to El Dorado with the child, who was then in preschool. Appellee, a physician, filed a petition to modify the divorce decree in which he sought a change in custody, asserting that the planned relocation constituted a material change in circumstances and that the 300-mile move was not in the child’s best interest in that it would disrupt visitation and family relationships. After a hearing, the chancellor found that appellant had failed to meet her threshold burden of establishing some real advantage to the child in relocating to El Dorado, and prospectively ordered that custody would be changed to appellee in the event that appellant took the clerkship and relocated. Appellant contends that the chancellor, in so finding, misapplied our holding in Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994). We agree, and we reverse.
The chancellor’s finding that the planned relocation would not be in the child’s best interest was based on an erroneous reading of Staab. It is apparent from the chancellor’s remarks from the bench that he believed that appellant was required to show that the move to El Dorado would offer some advantage unique to the minor child, as opposed to the custodial parent and child as a family unit. This is clearly contrary to our decision in Staab, where we wrote:
While we agree with the chancellor that achieving the “best interests of the child” remains the ultimate objective in resolving all child custody and related matters, we believe that the standard must be more specific and instructive to address relocation disputes. In particular, we think it important to note that determining a child’s best interests in the context of a relocation dispute requires consideration of issues that are not necessarily the same as in custody cases or more ordinary visitation cases.
After a divorce and an initial custody determination, the determination of a child’s best interests cannot be made in a vacuum, but requires that the interests of the custodial parent also be taken into account. In D’Onofrio v. D’Onofrio, 144 N.J. Super. 200, 365 A.2d 27, aff'd 144 N.J. Super. 352, 365 A.2d 716 (App. Div. 1976), perhaps the leading case on custodial parent relocation and which we find persuasive, the court discussed this issue as follows:
The children, after the parents’ divorce or separation, belong to a different family unit than they did when the parents lived together. The new family unit consists only of the children and the custodial parent, and what is advantageous to that unit as a whole, to each of its members individually and to the way they relate to each other and function together is obviously in the best interest of the children. It is in the context of what is best for that family unit that the precise nature and terms of visitation and changes in visitation by the noncustodial parent must be considered.
D’Onofrio, 365 A.2d at 29-30. See also Antonacci v. Antonacci, 222 Ark. 881, 263 S.W.2d 484 (1954) (in approving the custodial parent’s move from Arkansas to California, the supreme court specifically considered that she “prefer[ed]” to five in California and was “happy” there). The court in D’Onofrio was careful not to equate the best interest of the child with the best interest of the custodial parent. The court specifically recognized the importance of developing and maintaining a relationship with the non-custodial parent and the importance of visitation:
Where the residence of the new family unit and that of the non-custodial parent are geographically close, some variation of visitation on a. weekly basis is traditionally viewed as being most consistent with maintaining the parental relationship, and where, as here, that has been the visitation pattern, a court should be loathe to interfere with it by permitting removal of the children for frivolous or unpersuasive or inadequate reasons. . . .[Nevertheless,] the court should not insist that the advantages of the move be sacrificed and the opportunity for a better and more comfortable lifestyle for the [custodial parent] and children be forfeited solely to maintain weekly visitation by the [noncustodial parent] where reasonable alternative visitation is available and where the advantages of the move are substantial.
D’Onofrio, 365 A.2d at 30.
D’Onofrio also attempted to articulate a framework by which courts should be guided in deciding relocation disputes. It provides that, where the custodial parent seeks to move with the parties’ children to a place so geographically distant as to render weekly visitation impossible or impractical, and where the noncustodial parent objects to the move, the custodial parent should have the burden of first demonstrating that some real advantage will result to the new family unit from the move. D’Onofrio further provides that, where the custodial parent meets this threshold burden, the court should then consider a number of factors in order to accommodate the compelling interests of all the family members. These factors should include: (1) the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children; (2) the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the non-custodial parent; (3) whether the custodial parent is likely to comply with substitute visitation orders; (4) the integrity of the non-custodial parent’s motives in resisting the removal; and (5) whether, if removal is allowed, there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parent relationship with the non-custodial parent. See also Cooper v. Cooper, 99 N.J. 42, 491 A.2d 606 (1984).
We conclude that the criteria adopted in D’Onofrio are sound. We also conclude, from our review of the chancellor’s ruling, that he made his determination of the child’s best interests without appropriate consideration of the interests and well-being of the custodial parent. It would also appear that no consideration was given to the possibility of alternatives to the existing visitation schedule.
Staab v. Hurst, 44 Ark. App. at 133-35, 868 S.W.2d at 519-20 (emphasis added).
The advantages to the family unit in the present case are clear: as the chancellor recognized, the offer of a federal clerkship is a splendid opportunity for a lawyer entering practice. Furthermore, both mother and child would be enabled to go from a state of dependence upon appellee’s payments of child support and alimony to a situation where the custodial parent is not only self-supporting, but is employed in a position that enhances her further career opportunity. No matter how successful or wealthy appellee may be, there is no guarantee that his financial situation will remain good, and it is obviously a real advantage for a child to have both parents be financially independent professionals capable of giving material support. See generally Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). It is impossible, under the standard adopted in Staab, to say that the move to El Dorado does not offer some real advantage to the child.
Furthermore, the chancellor erred in finding there would be no reasonable alternative to the existing visitation schedule if relocation were allowed. It is clear from the record that appellant was quite willing to facilitate the child’s visitation with appellee, and was willing to employ a charter air service, if necessary, to do so. Although the latter option would not be practical for Wednesday evening visitation, Staab does not hold that the existing visitation schedule be maintained inviolate, but instead requires only that there be a reasonable alternative to the existing visitation arrangement. We reverse the chancellor’s decree and note that appellant is free to relocate with the child to El Dorado for the purpose of accepting the federal clerkship. We remand for further consistent proceedings.
Reversed and remanded.
STROUD, C.J., and Roaf, J., agree. | [
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John E. JENNINGS, Judge.
The sole issue in this revocation case is whether the evidence is sufficient to support the trial court’s decision. We conclude that it is and affirm.
In May 1999, Jimmie Lamb pled guilty to arson in the burning of a stolen truck. The St. Francis County Circuit Court suspended imposition of sentence for a period of five years. On February 7, 2000, the State filed a petition to revoke Lamb’s suspended sentence, alleging that he had committed theft by receiving, a class B felony. At the hearing on the petition to revoke, Melva Edens testified that she was in the commercial contracting business and had been for twenty years. She lived in Germantown, Tennessee, and her business was located in Memphis. She testified that Mr. Lamb had been employed by her but was fired on May 10, 1999, for not reporting to work. She testified that a white 1991 Ford truck disappeared from her place of business on September 17, 1999. Lamb had driven this truck in connection with his employment with the company. Ms. Edens also testified that the truck had been washed inside and out in July and August of 1999.
Douglas Wall, a sergeant with the Forrest City Police Department, testified that on October 2, 1999, he located the stolen truck in a driveway of a vacant house on Brookside Drive in Forrest City. While waiting on a wrecker, he was approached by a man he knew, Alan Kimble, and from his conversation with Kimble, Mr. Lamb was developed as a suspect. Sergeant Wall testified that the truck was found one-half block from Mr. Lamb’s parents’ house and that Lamb sometimes stayed with them.
Dwight Duch, a Forrest City police officer, testified that Mr. Lamb’s palm print was found on the inside of the passenger-side window of the stolen truck.
Mr. Lamb testified that he had been convicted of theft, burglary, and forgery dating back to 1989. He could not say how many felonies he had been convicted of but conceded that it was “too many.” He testified that he had been in the truck since the date he was fired “approximately twice.” He testified he thought this was in September or October 1999. He testified that he had just been riding around in the truck, drinking beer, with two men connected with the company. Lamb admitted that he received his mail at his parents’ house. He testified that he went to Memphis in October and stayed in a motel and would not come back to Forrest City during that time because he knew the police were looking for him.
On this evidence the trial court found that Lamb had violated the terms of his suspended sentence, revoked his probation, and sentenced him to ten years’ imprisonment.
In a revocation proceeding the burden is on the State to prove the violation of a condition of the suspension by a preponderance of the evidence. Ark. Code Ann. § 5-4-309 (Supp. 1999). On appeal, the trial court’s findings will be upheld unless they are clearly against a preponderance of the evidence. Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992). Evidence that is insufficient for a criminal conviction may be sufficient for the revocation of probation or suspended sentence. See Lemons v. State, 310 Ark. at 383. Since the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the trial judge’s superior position. Lemons, supra; Hoffman v. State, 289 Ark. 184, 711 S.W.2d 151 (1986). Circumstantial evidence may be sufficient to warrant revocation. See Needham v. State, 270 Ark. 131, 603 S.W,2d 412 (Ark. App. 1980).
While the evidence in the case at bar is circumstantial, we cannot conclude that the trial court’s decision was clearly against a preponderance of the evidence. Mr. Lamb’s own testimony places him in the stolen vehicle shortly before it was found within a block of his parents’ home. Lamb’s testimony that he went to Tennessee and stayed in a motel because he was aware the police were looking for him is also relevant. See Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000). This is not a case where the trial court’s judgment rests solely on the strength of a fingerprint.
For the reasons stated, the decision of the circuit court is affirmed.
Stroud, C.J., Robbins, Crabtree, Pittman, and Roaf, JJ„ agree.
Griffen, Bird, and Vaught, JJ., dissent. | [
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Olly NEAL, Judge. Appellant,
Wendy Collins, appeals from the decision of the Workers’ Compensation Commission, (hereinafter Commission) denying appellant’s claim. The Commission adopted the administrative law judge’s decision finding that appellant was not performing employment services at the time of her injury. We reverse and remand this case to the Commission for further consideration of appellant’s claim in light of our decision last week in Matlock v. Arkansas Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001).
Appellant was employed with appellee, Excel Specialty Products, as a production worker. Her job consisted of carving blocks of beef into beef steaks of sizes by weight as specified by her employer. Her production work included incentive pay for a certain production quota and the employees on her production line were required to clock in and out on a time clock. Appellant and her co-workers were given fifteen-minute breaks in the morning and in the afternoon and a thirty-minute lunch break.
On November 2, 1999, sometime between the morning break and the lunch break, appellant left the production line to go to the bathroom for the purpose of urination. Between the production line and the restroom, appellant suffered a fall sustaining a fracture to her right wrist and arm. This fall and resultant injury occurred while appellant remained “on the clock.”
The Administrative Law Judge denied appellant’s claim reasoning as follows:
In the present case, the circumstances surrounding the claimant’s alleged injury are not in dispute. The claimant testified that the respondent allowed employees to leave the line and go to the restroom whenever necessary and without “clocking out.” She stated that the alleged accident and injury occurred after she had left her work station and while she was actually on her way to the restroom to relieve herself.
Clearly, at the time of her alleged accident and injury, the claimant was not engaged in the performance of any employment tasks which she had been specifically assigned by her employer, nor was she engaged in any activity which would direcdy benefit or advance the interests of her employer. Nor would her actions be considered inherently necessary for the performance of her required tasks. At most, her actions would only indirectly benefit her employer. Under the Court’s ruling in Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998), this is not sufficient to cause the activity to be considered “employment services.”
Based upon existing precedent, I am compelled to find that the claimant’s alleged accident and injuries occurred at a time when she was not performing “employment services” as required by Ark. Code Ann. § 11-9-102 (5)(B)(iii). Therefore, her alleged injury cannot be considered a “compensable injury” within the meaning of the Act.
A “compensable injury” is defined as “[a]n accidental injury causing internal or external physical harm to the body ... arising out of and in the course of employment and which requires medical services or results in disability or death.” Ark. Code Ann § 11-9-102(4)(A)(i) (Supp. 1999). “Compensable injury,” however, does not include an “[i]njury which was inflicted upon the employee at a time when employment services were not being performed....” Ark. Code Ann. §11-9-102(4)(B)(iii)(1999). Last week, this court handed down a decision in Matlock v. Arkansas Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001), that sets forth a list of factors to be considered when determining whether an employee is engaged in employment services. Because the Commission did not have the Matlock decision at its disposal when deciding whether appellant was performing employment services, we remand this case so that, after considering the factors listed in Matlock, the Commission may reconsider its holding that appellant was not engaged in employment services.
Reversed and remanded.
Stroud, C.J. and Hart, Bird, Crabtree and Baker, JJ., agree.
Pittman, Jennings, and Robbins, JJ., dissent. | [
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