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JOSEPHINE LINKER Hart, Judge.
A jury found Nicie Ann J Dillehay guilty of aggravated assault and carrying a weapon and sentenced her to a total of eighteen months in the Arkansas Department of Correction. For reversal, appellant argues that (1) there was insufficient evidence to sustain her convictions and, accordingly, the trial court erred by denying her directed-verdict motion; and (2) she was denied a speedy trial and, therefore, the trial court erred by denying her motion to dismiss the criminal information commensurate with Ark. R. Crim. P. 28.1. We affirm.
On December 26, 1998, appellant was arrested and placed into custody. A criminal information was later filed on August 4, 1999, alleging that on or about December 26, 1998, appellant committed the offenses of aggravated assault, Ark. Code Ann. § 5-13-204 (Repl. 1997), and carrying a weapon, Ark. Code Ann. § 5-73-120 (Repl. 1997). The case was scheduled for a jury trial on March 16, 2000. On that date, appellant moved to dismiss the charges against her, alleging a violation of her right to a speedy trial commensurate with Ark. R. Crim. P. 28.1. The trial court denied appellant’s motion, and the case proceeded to trial.
The State’s first witness was Joshua Pinkerton, the victim, who testified that on December 26, 1998, he was driving his vehicle on Bracey Road when a woman in a truck “flipped [him] off.” According to his testimony, he first thought that the person making the gesture was a friend teasing him, and he pulled off the road. At that time, the driver, identified at trial as appellant, exited the truck and pointed a gun at him. Realizing that appellant was not a friend, Pinkerton drove away, but was then pursued by appellant. Pinkerton then pulled into a gas station, and appellant again pointed the gun at him. He called the 911 operator and described what had transpired. At that time, appellant began to drive away, and Pinkerton followed and obtained an exact car-tag number. Later that day, a law enforcement officer found and arrested appellant.
Deputy Sheriff Eric Frazier testified that at approximately five o’clock p.m. on December 26, 1998, he received a mobile telephone call from a person stating that someone had pointed a weapon at him while he was on the roadway. After he obtained the tag number, the officer made contact with appellant, who denied having a gun in her vehicle. However, the officer, following a consensual search of the truck, found in the glove box of the vehicle a chrome-plated .25 semi-automatic weapon with a loaded magazine and one round chambered. The safety on the gun was off, and it was ready to be fired. The officer determined that appellant did not have a permit to carry the weapon.
Following Officer Frazier’s testimony, the State rested, and appellant moved for a directed verdict. Specifically, appellant argued that the State had failed to prove beyond a reasonable doubt that the event occurred or that she acted with extreme indifference to the value of human life with the purpose of endangering a person’s fife. The trial court denied appellant’s directed-verdict motion.
In her case-in-chief, appellant called the victim as a witness. Following his testimony, appellant rested and renewed her directed-verdict motion, which was also denied by the trial court. A jury found appellant guilty and sentenced her to serve eighteen months for aggravated assault and carrying a weapon. From these convictions, comes this appeal.
I. Sufficiency of the evidence
In an effort to avoid potential double-jeopardy concerns on remand, we do not consider errors by the trial court until we first consider a challenge to the sufficiency of the evidence. See Harris v. State, 284 Ark. 247, 249-250, 681 S.W.2d 334, 335 (1984). On this point, appellant argues for reversal that the trial court erred by denying her directed-verdict motion because there was insufficient evidence to sustain the convictions of aggravated assault and carrying a weapon. Our review is governed by the standard expressed in Flowers v. State, 342 Ark. 45, 48, 25 S.W.3d 422, 425 (2000) (citations omitted), which stated:
A motion for a directed verdict is a challenge to the sufficiency of the evidence. The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict.
The trial court denied appellant’s directed-verdict motion, reasoning that the State had made a prima facie case for the alleged charges. Upon review, we conclude that the denial of the directed-verdict motion was proper.
1. Aggravated assault
The crime of aggravated assault is defined by Ark. Code Ann. § 5-13-204, as a crime that occurs when “[a] person . . . under circumstances manifesting extreme indifference to the value of human life, . . . purposely engages in conduct that creates a substantial danger of death or serious physical injury to another person.” The evidence presented at trial, when viewed in a light most favorable to the State, reveals that appellant pointed a gun at another person. In addition, the evidence reveals that soon thereafter a police officer found a loaded gun in appellant’s possession in which the safety feature was disengaged. We conclude that under the facts and circumstances of this case, there was a viable jury question of whether appellant had committed the crime of aggravated assault and conclude that the denial of the directed-verdict motion for this charge was proper. See Harris v. State, 72 Ark. App. 227, 35 S.W.3d 819 (2000).
2. Carrying a weapon
The crime of carrying a weapon is defined by Ark. Code Ann. § 5-73-120(a), as a crime that occurs when “[a] person . . . [who] possesses a handgun ... on or about his person in a vehicle occupied by him, or otherwise readily available for use with a purpose to employ it as a weapon against a person.” The evidence presented at trial, when viewed in a fight most favorable to the State, reveals that appellant, without a permit, had in her vehicle and in her possession a handgun. Furthermore, the evidence reveals that appellant, in fact, pointed a gun at another person, which could be evidence that the purpose of the handgun was for use against a person. Therefore, we conclude that under the facts and circumstances of this case, there was a viable jury question of whether appellant had committed the crime of carrying a weapon and that the denial of the directed-verdict motion for this charge was proper. See Nesdahl v. State, 319 Ark. 277, 890 S.W.2d 596 (1995); McGuire v. State, 265 Ark. 621, 580 S.W.2d 198 (1979); Clark v. State, 253 Ark. 454, 486 S.W.2d 67 (1972).
II. Speedy trial
For her next argument, appellant contends that she was denied a speedy trial in violation of Ark. R. Crim. P. 28.1 and, therefore, the trial court erred by denying her motion to dismiss. While appellee agrees that appellant was brought to trial more than twelve months from the time of her arrest, the State contends that a sufficient period of time should be excluded from the speedy-trial calculation to warrant an affirmance of the trial court’s decision. We agree with appellee.
The right to a speedy trial is expressed in the Bill of Rights, U.S. Const, amend. 6, and guaranteed to state criminal defendants by the Fourteenth Amendment, Klopfer v. North Carolina, 386 U.S. 213 (1967). In Arkansas, this right is further defined by Ark. R. Crim. P. 28.1(c), which in pertinent part provides:
Any defendant charged after October 1, 1987, in circuit court and held to bail, or otherwise lawfully set at liberty . . . shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3. . . ,
Time, for these purposes, commences to run in accordance with Ark. R. Crim. P. 28.2, which in pertinent part provides:
[F]rom the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the date of arrest ....
However, there are certain periods of time that are excluded from the calculation, and such exclusions are governed by Ark. R. Crim. P. 28.3, which states: “The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on the competency of the defendant. ...”
Appellant was arrested on December 26, 1998, and her trial was conducted 446 days later on March 6, 2000. While both parties agree that appellant’s mental evaluation requires a modification of the initial speedy-trial calculation, they are in disagreement with regard to the exact number of days that should be excluded. Their dispute centers on whether the excluded period began on the day the trial judge ruled from the bench that appellant was to undergo mental evaluation, November 29, 1999, or the day the order for her mental evaluation was entered, December 16, 1999. Under the former calculation, there would be no speedy-trial violation. However, under the latter calculation, which is championed by appellant, the trial would have been conducted 372 days following her arrest and, consequently, would have been in violation of her right to a speedy trial.
We conclude that the excluded period of time, as defined by Ark. R. Crim. P. 28.3, began to run on the day the trial judge ruled from the bench that appellant was to undergo a mental evaluation. While it is true that the order embodying this determination was entered seventeen days after the hearing in which the motion was granted, we are not disposed to conclude that the entry of the order is critical to a speedy-trial determination in this case. The Rule merely requires that speedy trial can be tolled by a “period of delay resulting from ... an examination and hearing on the competency of the defendant . . . .” Ark. R. Crim. P. 28.3. Arguably the trial judge’s order was not effective until it was entered; however, the question of whether the order was enforceable is not before us. Instead, we must merely determine whether the proceedings at issue constituted a permissible period of delay that tolled the speedy-trial period.
Here, the trial judge’s order from the bench began a period of delay that is specifically recognized under the law. We note that Rule 28.3 neither requires that the trial judge’s orders be entered to constitute a period of delay nor does it require that the request for a mental evaluation be made by the defendant in order for the speedy-trial calculation to be tolled. Accordingly, we hold that the trial court did not err by denying appellant’s motion to dismiss.
However, in so holding, we are not establishing a principle that there can never be a speedy-trial violation if the State seeks a mental evaluation of a criminal defendant and, thereafter, fails to have the trial court’s order reduced to writing and entered. A criminal defendant is guaranteed a speedy trial, and the State cannot unreasonably delay a defendant’s trial by purposefully failing to enter orders that reflect the trial judge’s will. To conclude otherwise would expose criminal defendants to potential abuse, which we must endeavor to avoid. However, in this instance, it has neither been argued nor do we conclude that the State’s actions constituted a violation of this principle.
Affirmed.
Stroud, C.J., and Crabtree, J., agree.
State’s exhibit 1 (a photograph of the weapon in appellant’s possession) plainly reveals that the weapon at issue was a handgun, as defined by Ark. Code Ann. § 5-73-120(b)(1), which provides that a handgun “means any firearm with a barrel length of less than twelve inches (12”) that is designed, made, or adapted to be fired with one (1) hand
According to the register of actions found in the record, this was deemed an "Act III” request; however, the authority upon which the examination was based, according to the entered order, is found at Ark. Code Ann. § 5-2-305 (Repl. 1997), which is the codification of several acts, none of which are designated as "Act 3.” Apparently, the vernacular "Act III” comes from Initiated Act 3 of 1936, which, in Section Eleven, permits the commitment of criminal defendants to the state hospital for evaluations when the defense of insanity is either raised or "the circuit judge has reason to belief that the defense of insanity will be raised . . . .”
The record reveals that the State made the request for appellant’s mental evaluation. | [
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D. Franklin Arey, III, Judge.
The Workers’ Compensation Commission determined that appellant Frankie Sapp failed to prove entitlement to additional permanent partial disability benefits over and above a 5% physical impairment rating to his lumbar spine. On appeal, appellant argues that the Commission’s decision is not supported by substantial evidence. We affirm.
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the findings of the Commission and affirm that decision if it is sup ported by substantial evidence. Oak Grove Lumber Co. v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998). In cases where a claim is denied because a claimant failed to show entitlement to compensation by a preponderance of the evidence, the substantial evidence standard of review requires that we affirm if a substantial basis for the denial of relief is displayed by the Commission’s opinion. Bates v. Frost Logging Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998). The question is not whether the evidence would have supported findings contrary to those made by the Commission; there may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. University of Ark. Med. Sciences v. Hart, 60 Ark. App. 13, 958 S.W.2d 546 (1997).
We recognize that it is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Service Chevrolet, supra. It is the responsibility of the Commission to draw inferences when the testimony is open to more than a single interpretation, whether controverted or uncontroverted; and when it does so, its findings have the force and effect of a jury verdict. Oak Grove Lumber Co., supra.
Appellant sustained a compensable injury on November 17, 1993, when he was struck by a tree during the course of his employment as a logger. Appellant was initially treated by Dr. D’Orsay Bryant, an orthopedist, who diagnosed a cervical and lumbosacral strain with possible disc disease. Dr. Bryant referred appellant to Dr. Richard Pillsbury, an otolaryngologist, for appellant’s complaint of loss of hearing in his right ear. Dr. Pillsbury did not detect any permanent hearing problems, but referred appellant to Dr. Shailesh Vora, a neurologist. Dr. Vora treated appellant for complaints of headaches, anxiety, depression, and memory loss. Appellant gave Dr. Vora a history of being rendered unconscious by his compensable injury. Although appellant’s tests were normal, Dr. Vora assigned him a 25% impairment rating for epilepsy, and a 5% physical impairment rating for the lumbar disc.
Appellant did attempt to go back to work. He drove a log skidder for another logger, but was eventually laid off. Appellant then drew unemployment compensation. He testified that he did not know of any other job that he could do, because he had only worked in the logging woods, and that he had not really tried to find another job.
On January 15, 1996, an independent medical evaluation was performed by Dr. Reginald Rutherford, a neurologist. Dr. Rutherford reported that appellant’s neurological investigations proved normal, with the history provided by appellant and a review of the medical documentation failing to substantiate the allegation of cerebral concussion. Dr. Rutherford did not believe that appellant would benefit from further attempted medical or psychological intervention. He opined that there was no objective evidence to substantiate the diagnosis of epilepsy.
Appellant received temporary total disability benefits, medical benefits, and permanent partial disability benefits for a 5% impairment rating to his spine. He sought an additional 25% impairment rating for posttraumatic epileptic seizures, and additional permanent partial disability benefits for loss of earning capacity.
In its opinion denying additional benefits, the Commission noted that the objective medical evidence of record did not substantiate a finding that appellant sustained some type of epileptic or seizure disorder as a result of his compensable injury. It observed that there were no objective medical findings to substantiate Dr. Vora’s rating, and that Dr. Rutherford testified in his deposition that there were no objective findings for the alleged epilepsy diagnosis. Therefore, the Commission believed the only physical impairment rating was a 5% rating to appellant’s lumbar spine, which had been accepted as compensable and paid in full.
It is well settled that the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Oak Grove Lumber Co., supra. This medical evidence constitutes substantial evidence in support of the Commission’s decision denying appel lant an additional 25% impairment rating for posttraumatic epileptic seizures.
Regarding additional wage loss disability, the Commission found that appellant was not a credible witness and that he failed to present credible testimony that he was entitled to any additional benefits beyond the 5% impairment rating previously paid. The Commission noted that, although appellant testified that he was unable to work, the record indicated that he worked for at least six months after being released by Dr. Vora once his workers’ compensation benefits ceased. He then drove a log skidder until he was laid off by his employer. Appellant testified that he was capable of working as a skidder driver and implied that he would have continued to do so had he not been laid off. The Commission also noted that appellant drew unemployment benefits after being laid off, which implied that appellant held himself out as being physically capable of working. The Commission concluded, due to appellant’s ability to return to work for a six month period, his negative attitude in seeking or searching for further employment after being laid off, and his relatively minor physical impairment rating for his injury, that appellant failed to prove that he suffered from a decrease in his ability to earn wages.
Arkansas Code Annotated § 11-9-522(b)(1) (Supp. 1997) provides:
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.
The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). In making this determination, the Commission may consider factors such as a claimant’s lack of motivation to return to work or failure to attempt to seek work. See id.
In this instance, the Commission’s determination turned on its view of the appellant’s credibility and the weight to be given the evidence. The Commission specifically noted that appellant failed to present any credible testimony that he was entitled to any additional benefits over and above the 5% physical impairment rating previously paid. We believe the Commission’s decision is supported by substantial evidence.
Affirmed.
Pittman, Bird, and Griffen, JJ., agree.
Neal and Roaf, JJ., dissent. | [
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Sam Bird, Judge.
Appellant Gwenda Kaye Wakefield appeals an order from the chancery court of Howard County contending that the chancellor erred by finding her in contempt, ordering her to pay appellees’ attorney’s fees and expert witness fees, and restraining her from seeking psychological or mental-health treatment for her two minor children without prior approval from the Department of Human Services (DHS). We reverse.
Appellee Joel David Wakefield and appellant were divorced on August 9, 1995, and there was incorporated into their divorce decree a separation, child-custody, and property-settlement agreement. By their agreement, custody of their two children, Heather and Kayla, was awarded to appellant, and Joel David Wakefield was granted visitation privileges. The agreement provided that if Joel David Wakefield did not exercise his visitation rights, then the paternal grandparents had the right to exercise them. Appellee Thomas Wakefield is the children’s paternal grandfather. Joel David Wakefield fives with his parents, and appellees’ visitations take place at their residence.
Appellant testified that about a year after the divorce became final, she sought counseling for Heather from Yvonne Fellers, a licensed clinical social worker, because Heather, then almost three years old, was having nightmares, becoming aggressive, had regressed from toilet training, and was “sexually acting out.” In addition, appellant testified that statements made by Heather to her paternal grandmother and to a babysitter raised questions of possible sexual abuse.
Fellers arranged a meeting with Joel David Wakefield on October 15 and informed him of her suspicions of improper sexual touching by Thomas Wakefield, known to Heather as “Pawpaw.” Fellers also reported the suspected sexual abuse to DHS. About a week after Fellers reported the possibility of sexual abuse to DHS, DHS conducted a physical examination of Heather at Arkansas Children’s Hospital, and no physical signs of sexual abuse were present.
Appellant states that DHS suggested to her, and that appellant suggested to her ex-husband, that they arrange some kind of supervised visitation for the children. Appellant states that she was told by DHS that if she knowingly exposed her children to potential sexual abuse, she would risk having them removed from her custody and placed in foster care. Because her ex-husband would not agree to supervised visitation, appellant felt she had no choice but to deny visitation.
Appellant moved to restrict visitation to a location away from the father’s current residence while the investigation was pending, and appellee Joel David Wakefield moved for contempt charges against appellant because she denied unrestricted visitation on October 19 and 20.
A temporary hearing was held on October 30, 1996, before Chancellor Ted Capeheart. Following the hearing, Chancellor Capeheart announced from the bench that he found no basis for appellant’s concerns, found her in contempt for denying visitation on October 19 and 20, and ordered her to pay $500 as appellee’s attorney fees, but suspended payment on condition that appellant comply with his orders previously entered.
Pursuant to Fellers’s suggestion, appellant had been conducting videotaped play therapy of Heather as part of a group parenting program, and after viewing the videotape, Fellers stated that Heather was near a psychotic breakdown and suggested immediate psychiatric evaluations.
On October 31, Dr. Greg Brown, a child psychiatrist, admitted Heather to Charter Forest Health System for five nights, resulting in another denial of appellees’ visitation on November 1 and 2. During the time she was in the hospital, Heather was assessed by a clinical neuropsychologist, and she underwent two physical examinations by pediatricians. Heather was discharged on November 5 and diagnosed with posttraumatic stress disorder with continued concerns about sexual-abuse allegations.
On November 13, Judge Capeheart signed an order setting forth the findings that he had announced from the bench at the October 30 hearing. Also, on November 13, Judge Capeheart filed a letter addressed to the parties’ attorneys stating that he was recusing from the case because he could not be fair to appellant. The chancellor’s letter stated,
I must recuse in this case because I cannot be fair. I suspect the Plaintiff s family has encouraged the Plaintiff to make these accusations to gain an advantage in their visitation dispute. I know too much from past cases involving the family and cannot be fair in this case to Mrs. Wakefield.
On November 14, appellee Joel David Wakefield filed a petition for change of custody and another petition for contempt. Appellant responded with a petition for order of protection, a petition to modify visitation, a petition for contempt due to nonpayment of support, and a petition to set aside the earlier finding of contempt.
A hearing was held on November 26 before Judge Robert Lowery. Appellant testified that before she suspected possible sexual abuse, she had never denied visitation. She stated that she denied visitation because she was fearful that Heather had been abused and would be again, and that the appellees would be angry with Heather “because she was talking and I was afraid for her safety.”
She testified that on one occasion following a visitation, Heather appeared to be in pain, pointed toward her vaginal area, and would not sit down in the bathtub. Appellant also testified that once, when Heather was playing with her dolls, she would show the “Pawpaw doll” on top of the “Heather doll.” She testified that she admitted Heather to the hospital immediately as her doctor recommended and because Heather’s safety was at stake.
Dr. Brown testified that during the time he treated Heather at Charter Forest Health System he saw signs of the possibility of sexual abuse. From the abstract, it appears Dr. Brown testified:
... I felt it was important to investigate things further especially with Heather’s reporting from her own mouth who the perpetrator was. The reports from the counseling center showed concerns about a possibly sexually abused three year old who was acting out with aggressive behavior, sleep disturbance, nightmares, and play therapy sessions that pointed towards her having been sexually abused. Heather told me about the nightmares, the trouble sleeping. Heather herself was able to say that she was touched on her body. She wasn’t able to say who it was on the first day .... I wrote letters to Judge Capeheart, with copies to DHS and the State Police, saying that I did definitely feel there was evidence that Heather had been sexually abused and had identified her paternal grandfather, Pawpaw .... I do not feel it would be in the best interest of the child to visit the grandparent while there were open concerns about what was happening.
Lorili Sellers, an investigator with the Sex Crimes Division of the Arkansas State Police, also testified on appellant’s behalf, and did not rule out the possibility of sexual abuse. Yvonne Fellers also testified that although there was no concrete physical evidence, her evaluation was that Heather had been sexually abused.
The appellees presented their own expert witness, Dr. Betty Feir, a clinical psychologist, who diagnosed Heather with post-traumatic stress disorder. Dr. Feir testified that after she watched the videotapes, she felt that Heather’s behavior was associated with the upcoming Halloween holiday. Also, she said that Heather’s violent behavior was often a repetition of phrases her mother would say, such as, “Do you want me to shut up,” which Heather would then repeat, saying, “Shut up.” She stated that she had not heard anything or any testimony that would indicate conclusively that there was any abuse. She also testified that the physical examinations Heather had undergone in order to detect possible abuse had been traumatic. She merely suggested that, in her opinion, there were a number of “red flags” that pointed to the possibility that appellant was hysterical and overreacting to reports that Heather had been abused, in the absence of physical evidence.
Dr. Feir stated that she interviewed the appellees and their families and friends when evaluating the possibility of sexual abuse, but she conceded that she had neither evaluated nor interviewed Heather. She testified that even though she did not see any physical signs of sexual abuse, she would not rule out such a possibility. Moreover, she said, “I wouldn’t think it would be too abnormal for a mother to be overly worried when she has been told by two experts they feel there is a very good possibility that sexual abuse has occurred. She was also told by two experts that it hadn’t occurred.”
Judge Lowery granted a motion to dismiss all of appellant’s motions and petitions, stating that the testimony was speculative and tenuous and that no witness had confirmed any sexual abuse. He denied Joel David Wakefield’s motion for change of custody. He then revoked the $500 attorney’s fees suspension and awarded an additional $1,000 to Thomas Wakefield in attorney’s fees. He required appellant to seek court approval prior to pursuing what he found were speculative, spurious, and totally false claims of sexual abuse. A review hearing was set for December 18.
At the review hearing, appellee Thomas Wakefield was permitted to testify as to his court expenses, stating that he had paid Dr. Feir $3,500 and still owed her $1,050. The chancellor ordered that appellant was not to seek psychiatric treatment for the children without approval from DHS, and that appellant was to pay $4,550 for Dr. Feir’s testimony and $1,000 in attorney’s fees.
Appellant argues that the court erred by finding her in willful contempt, in granting $1,000 in attorney’s fees and $4,550 in fees for an expert witness, and in stating that she cannot seek treatment for her children, without DHS approval.
Appellant was found in willful contempt twice. First, she was found in contempt for denying visitation on October 19 and 20 by Judge Capeheart who sua sponte recused the same day he signed the order. We find this order void because the chancellor erred in signing such an order the same day he recused from the case stating he could not be fair.
The Arkansas Supreme Court has held that where a judge exhibits bias or the appearance of bias, this court should reverse. Noland v. Noland, 326 Ark. 617, 932 S.W.2d 341 (1996). In addition, the proper administration of law requires not only that judges refrain from actual bias, but that they also avoid all appearances of unfairness. Id. Whether a judge has become biased to the point that he or she should disqualify is a matter to be confined to the conscience of the judge because bias is a subjective matter within the knowledge of the judge. Id.
In the case at bar, Judge Capeheart entered the order and sent a letter stating that he could not be fair to appellant. He wrote, “I must recuse from this case because I cannot be fair. I suspect the Plaintiffs family has encouraged the Plaintiff to make these accusations to gain an advantage in their visitation dispute.” This letter constitutes substantial evidence of bias; therefore, Judge Capeheart’s order finding appellant in contempt and ordering her to pay $500 in appellees’ attorney’s fees if she did not comply with his order is void. Because Judge Capeheart was biased, he should have disqualified himself and withdrawn from the case and should not have entered the order. Noland v. Noland, supra.
Appellant also argues that Judge Lowery erred when, in a subsequent hearing, he found that appellant had not acted in compliance with Judge Capehear't’s order and revoked the $500 sanction that had been suspended. Because we have held that Judge Capeheart’s order was void, we hold that Judge Lowery could not then revoke the suspension of a void order.
Appellant was also found in contempt by Judge Lowery and ordered to pay $4,550 in expert witness fees, and an additional $1,000 in attorney’s fees. We also reverse this order.
For a person to be held in contempt for violating a court order, that order must be clear and definite as to the duties imposed upon the party, and the directions must be expressed rather than implied. Jones v. Jones, 320 Ark. 449, 898 S.W.2d 23 (1995). In certain cases, a process for contempt may be used to effect civil remedies, the result of which is to make the innocent party whole from the consequences of contemptuous conduct. Butler v. Comer, 57 Ark. App. 117, 942 S.W.2d 278 (1997). In cases of civil contempt, the objective is the enforcement of the rights of the private parties to litigation. Warren v. Robinson, 288 Ark. 249, 704 S.W.2d 614 (1986). Punishment for civil contempt will be upheld by this court unless the trial court’s order is arbitrary or against the weight of the evidence. Dennison v. Mobley, Chancellor, 257 Ark. 216, 515 S.W.2d 215 (1974).
We do not agree with the chancellor that appellant should be found in willful contempt, and we find his order to be arbitrary and against the weight of the evidence. The evidence does not reflect that the appellant’s fears were completely unfounded. Although he did not find any evidence of sexual abuse, the judge himself noted that the mother was doing what she thought was best for her children. Further, it was a medical doctor who ordered that the child be admitted and supervised in a hospital, and we do not believe that appellant was unreasonable in obeying the doctor’s order. In fact, as noted, sexual abuse was not completely ruled out by the experts. And appellant’s expert witnesses stated that although there was no physical evidence of sexual abuse, they saw signs of sexual abuse.
Even the appellees’ expert witness did not preclude the possibility that Heather had been subjected to sexual abuse. Moreover, she stated that it would not be abnormal for a mother to be overly worried when she had been told by two experts that there was a very good possibility that her daughter had been sexually abused. Based upon the testimony presented, there was evidence from which appellant could have reasonably concluded that her daughter might have been sexually abused by her grandfather. Under these circumstances, we cannot say that a mother who is legitimately concerned about the welfare of her child and has acted upon the advice of DHS and qualified professionals is in willful contempt of court.
Further, Judge Lowery stated that the reason the appellant was even in court on December 18 was because she was in direct violation of the November 13 order of Judge Capeheart, who recused the same day the order was signed because he could not be fair. As we have stated above, Judge Capeheart should have recused before entering the order. We do not believe appellant can be in willful contempt of an order that should not have been entered in the first place because the judge knew he could not be fair.
Because we have found that Judge Capeheart’s order is void, we reverse the award of $500 in attorney’s fees. And because we hold that Judge Lowery’s order finding appellant in contempt and awarding $4,550 in expert witness fees and $1,000 in attorney’s fees to be arbitrary and against the weight of the evidence, we reverse that order as well.
Reversed.
Stroud, Neal, and Griffen, JJ., agree.
Robbins, C.J., and Rogers, J., dissent.
When making oral findings at the end of the hearing on November 26, the chancellor ordered appellant to pay $1,000 in attorney’s fees. However, he did not include this $1,000 award in his written order that was entered on December 30.
We stress that our decision should not be construed as a determination by this court that there was evidence presented that is sufficient to establish that Thomas Wakefield has, in fact, sexually molested his granddaughter. It is our holding only that appellant was justified and reasonable in acting in reliance upon the advice of professionals, and that she was not, therefore, in willful contempt even though her actions had the effect of temporarily depriving appellees of their visitation rights. | [
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Wendell L. Griffen, Judge.
Michelle Williams brings this appeal from the Arkansas Workers’ Compensation Commission. The Commission found that Williams failed to prove by a preponderance of the evidence: (1) that she was entitled to additional temporary total disability benefits and (2) that she was entitled to medical treatment by Dr. Ted Saer. On appeal, Williams asserts that she did show, by substantial evidence, that she was entitled to additional temporary total disability benefits and that she was entitled to medical treatment by Dr. Ted Saer. We affirm the Worker’s Compensation Commission and hold that the Commission’s opinion displays a substantial basis for the denial of relief. Appellant failed to prove a causal relationship between her complaints after March 30, 1996, and the October 14, 1995, com-pensable injury. Further, we believe that the Commission made adequate findings for appellate review.
Williams sustained a compensable back injury on October 14, 1995, while working on assignment from Prostaff Temporaries at Amoco Foam. She had worked for approximately two months making styrofoam plates when she twisted her back while attempting to lift a four-and-one-half-foot-tall stack of styrofoam plates in a bag onto a table.
She reported the injury to her supervisor, who took her to the Hot Spring County Memorial Hospital Emergency Room for treatment. The treating doctor, Dr. William Highsmith, referred her to Dr. Vivian Highsmith, who then referred her to Dr. Bruce Safinan, who diagnosed her condition as an inflammation of her back and treated her with an injection.
Prostaff Temporaries referred appellant to Dr. Kevin McLeod, who took x-rays, performed a CAT scan, and prescribed two weeks of physical therapy. Dr. McLeod then referred appellant back to Dr. Vivian Highsmith, who referred her to Dr. Ted Saer. The employer contended that the treatment with Dr. Saer was unreasonable and unnecessary and that appellant was not entitled to temporary total disability benefits.
The Commission found that appellant failed to prove by a preponderance of the evidence that any abnormality she may have experienced since March 30, 1996, was causally related to the relatively minor injuries sustained on October 14, 1995. Acknowledging that an MRI report indicated that appellant sustained a disk protrusion, the Commission’s opinion also stated that “even if the protrusion did in fact exist, we find that the claimant failed to prove by a preponderance of the evidence that the protrusion is causally related to her injury on October 14, 1995, or that the protrusion is consistent with her complains (sic).’’The Commission’s findings are adequate for appellate review. The law requires that the Commission render findings adequate for appellate review. See Willmon v. Allen Canning Co., 38 Ark. App. 105, 828 S.W.2d 868 (1992). This does not require the Commission to render findings on every conceivable point of contention and dispute between the parties.
The only issue for appellate review is whether or not the Commission’s decision is supported by substantial evidence. The Commission stated that the appellant’s CAT scan did not detect the disk protrusion referred to by the MRI report. The Commission’s opinion also favorably discussed Dr. Russell’s opinion that appellant had:
ample time for medical improvement based upon the proposed diagnosis of the lumbar strain. I see no other lesions that could contribute to her pain. Certainly nothing on the MRI scan would relate to a work type accident. Short of a work hardening type program, I see no further therapy indicated . . . and would release her to return to work with no restrictions and no rating impairment.
We view the evidence and all reasonable inferences therefrom in the light most favorable to the Commission’s findings and affirm the decision if the findings are supported by substantial evidence. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. If reasonable minds could reach the Commission’s decision, we must affirm the decision. Id. It is the exclusive function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Kuhn v. Majestic Hotel, 50 Ark. App. 23, 899 S.W.2d 845 (1995). This court may reverse the decision of the Workers’ Compensation Commission only when convinced fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. Tiller v. Sears, Roebuck & Co., 27 Ark. App. 159, 767 S.W.2d 544 (1989).
The issue of whether or not there was objective evidence arises when determining whether an injury is compensable. Ark. Code Ann. § 11-9-102(5)(D) (Supp. 1997); see also Ark. Code Ann. § 11-9-704(c)(1)(B) (Repl. 1996). The law concerning medical treatment and temporary total disability benefits does not concern itself with whether there were objective findings of an injury because that question applies to compensability and impairment determinations. On the record before us, we conclude that there is substantial basis for the Commission’s decision that appellant did not prove a causal relationship between her claims for additional medical treatment and temporary liability benefits and the compensable injury.
Affirmed.
Rogers, Crabtree and Meads, JJ., agree.
Pittman and Arey, JJ., would reverse. | [
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Sam Bird, Judge.
Johnny Davies, Jr., was charged by information with possession of a controlled substance (crack cocaine) with intent to deliver. At trial, during voir dire and during closing argument, appellant admitted that he was guilty of possession of cocaine, but he argued that he was not guilty of possession with intent to deliver. Appellant was found guilty by a jury of possession and sentenced to seventy-two months in the Arkansas Department of Correction, and a $3,000 fine. On appeal he argues that he should have been granted a mistrial or a new trial because an alternate juror was in the jury room during deliberations.
At the trial held on January 15, 1998, Willie Pegues, a narcotics officer with the Hot Springs Police Department, testified that he did a “pat-down” search of appellant in connection with a traffic stop. Appellant kept moving his hand to his waist, so Officer Pegues checked and found a cellophane package that contained a white rock-looking material that the officer believed to be “rock” cocaine. Chris Harrison, a forensic drug chemist from the Arkansas State Crime Laboratory, testified that he tested the substance taken from appellant and found it to be 1.318 grams of 76% pure cocaine.
Following the reading of the jury’s verdict and the polling of the jurors, a colloquy took place at the bench:
The Court: I just realized that the alternate probably went back in there. I’m going to excuse her at this point.
Mr. Bosson [Prosecuting Attorney]: I don’t see any problem with that.
Mr. Becker [Defense Counsel]: I do, Your Honor. I move for a mistrial.
The Court: That will be denied unless you can show some prejudice.
Mr. Becker: Well, Your Honor, . . . only twelve were suppose^] to go back. The alternate should only go back if there’s a — the normal procedure is if one of the jurors is disqualified or cannot take up deliberations and then they are to begin deliberations.
The Court: Well, at this point I don’t see where any prejudice has been done. I’m going to exclude the alternate juror and we’re [going to] proceed. Your motion will be denied.
End of Side Bar Conference.
The Court: Mr. Terral, we appreciate your service as alternate juror. You are allowed to be excused at this point.
The jury was then instructed, arguments on sentencing were heard, and the jury retired to deliberate on sentencing.
On January 22, 1998, appellant filed a motion for new trial on the ground that the number of jurors that deliberated on his guilt was thirteen and that he had an absolute right to a twelve-member jury. On January 27 at the sentencing proceeding, defense counsel informed the court that he did not have any evidence to present on the motion for new trial. After reviewing the circumstances of the alternate juror being present for the guilt phase of jury deliberations, the court denied the motion for new trial on the basis that appellant was unable to show any prejudice, as the jury had convicted him of only simple possession and he had admitted his guilt to that charge in court. Appellant’s only argument on appeal is that the court erred in denying his motion for mistrial and motion for a new trial on the ground that there were thirteen jurors in the jury room during the guilt phase of jury deliberations.
Arkansas Code Annotated section 16-32-202(b)(l) (Supp. 1997) provides that “[j]uries shall be composed of twelve (12) jurors.” In arguing that the thirteenth juror in the room during deliberations violated his right to a trial by a twelve-person jury under the United States and Arkansas Constitutions, appellant cites Byrd v. State, 317 Ark. 609, 879 S.W.2d 434 (1994), and Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996).
We find those cases to be inapplicable to the present situation. In Byrd, the court considered a constitutional challenge to an amendment to Ark. Code Ann. § 16-32-202(b)(l), which allowed six-person juries to hear misdemeanor cases at the trial court’s discretion. The court held that the right to a twelve-person jury is inviolate and that the amendment was unconstitutional.
In Collins, the appellant had been convicted by an eleven-member jury, without waiving his right to trial by a twelve-member jury. Our supreme court held that the right to trial by a twelve-member jury is a fundamental right, the violation of which renders the judgment void and subject to collateral attack. Neither of these cases involved the issue of an alternate juror present during deliberations.
Arkansas Code Annotated section 16-30-102 (1987) provides that the court may direct that not more than three alternate jurors be called and impaneled in addition to the regular jury to replace a regular juror who becomes unable or disqualified to serve. When the jury retires to deliberate, an alternate juror who is not needed to replace a regular juror shall be discharged.
It is not unprecedented for alternate jurors or other nonjury members to appear in the jury room during deliberations. In Campbell v. State, 264 Ark. 575, 572 S.W.2d 845 (1978), a woman who had been with the appellant when he was arrested for possessing a stolen automobile testified for the State. During a recess in appellant’s trial, the woman, who was intoxicated, wandered into the jury room, apparently looking for a cup of coffee. Although appellant was aware of the woman’s actions, no immediate objection was made. Appellant subsequently filed a postcon-viction petition pursuant to Ark. R. Crim. P. 37, and one of his arguments was that the court erred in not declaring a mistrial on the basis of the woman in the jury room. The Arkansas Supreme Court held that the burden was upon appellant to show actual improper influence on the jury.
In United States v. Olano, 507 U.S. 725, 737 (1993), the Court considered the trial court’s action at the end of a three-month trial in allowing, with the consent of the defendants, two alternate jurors to attend jury deliberations, although instructing them not to participate. Federal Rule of Criminal Procedure 24(c) provides, as does Ark. Code Ann. § 16-30-102(b) (Repl. 1994), that “[a]n alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict.” The Court held that, although the presence of the alternate jurors during deliberations was a deviation from Rule 24(c), and the error was “plain,” no prejudice would be presumed. The burden was on the defendants to make “a specific showing of prejudice.”
McDonald v. State, 37 Ark. App. 61, 824 S.W.2d 396 (1992), is directly on point. The alternate juror in that case had been excused but, through some misunderstanding, entered the jury room fifteen minutes after the jury had retired, and remained there for about fifteen minutes. Appellant argued that the mere presence of the alternate juror compromised the sanctity of the jury’s deliberations and his right to a fair and impartial trial. This court held that the appellant had failed to show any prejudice by the alternate’s presence in the jury room.
In the instant case appellant was charged with and tried for possession of cocaine with intent to deliver. He admitted that he possessed the cocaine, but argued to the jury that he was not guilty of “intent to deliver.” The jury returned with a verdict that appellant was guilty of possession, not possession with intent to deliver. Since the jury returned the verdict that appellant sought, he cannot say he was prejudiced by the presence of the alternate juror during deliberations.
Appellant also argues that he should have been granted a new trial on the same basis. Appellee contends that the motion for new trial was not timely and should not be considered. Appellant’s motion for new trial was filed on January 22, 1998. However, the judgment and commitment order was not filed until February 10, 1998. A posttrial motion that is filed prior to the entry of the judgment is untimely and ineffective. See Brown v. State, 333 Ark. 698, 970 S.W.2d 287 (1998); Hicks v. State, 324 Ark. 450, 921 S.W.2d 604 (1996)(per curiam); and Webster v. State, 320 Ark. 393, 896 S.W.2d 890 (1995)(per curiam).
Even if appellant’s motion for new trial had been timely filed, our decision would be the same. Because the jury returned the verdict appellant had sought, he cannot show that he suffered any prejudice because of the thirteenth juror in the jury room.
Affirmed.
Pittman and Griffen, JJ., agree.
On May 21, 1998, the Arkansas Supreme Court adopted Rule of Criminal Procedure 32.3 to govern the use of alternate jurors in criminal trials when a regular juror is unable to serve or is disqualified. See Appendix, 333 Ark. 732 (1998). | [
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John F. Stroud, Jr., Judge.
This is an appeal from the Board of Review’s assessment of $31,339.22 for unemployment-insurance taxes based upon its decision that appellants’ business constitutes employment subject to the payment of such taxes under Arkansas Code Annotated section ll-10-210(e) (Supp. 1997). Appellants challenge the Board’s decision, contending that the Board erred 1) in finding that appellants’ payments to drivers were a wage or remuneration for personal services, 2) in finding that drivers were under appellant’s control and direction, 3) in finding that services were performed at appellants’ place of business, 4) in finding that drivers were not customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed, and 5) in basing its findings on the facts of a prior case in which appellants were not a party. We affirm.
Arkansas Code Annotated section ll-10-210(e) (Supp. 1997) provides:
(e) Service performed by an individual for wages shall be deemed to be employment subject to this chapter irrespective of whether the common law relationship of master and servant exists, unless and until it is shown to the satisfaction of the director that:
(1) Such individual has been and will continue to be free from control and direction in connection with the performance of such service, both under his contract for the performance of service and in fact; and
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(3) Such individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.
(Emphasis added.)
The first sentence of section 11-10-210(e) defines employment for purposes of coverage regarding unemployment-insurance taxes. It provides in part that “[s]ervice performed by an individual for wages shall be deemed to be employment subject to this chapter. ...” Wages is defined to mean “all remuneration paid for personal services, including, but not limited to, commissions, bonuses, cash value of all remuneration paid in any medium other than cash, the value of which shall be estimated and determined in accordance with regulations prescribed by the director, and tips received while performing services which constitute employment. . . .” Ark. Code Ann. § ll-10-215(a) (Repl. 1996). The remainder of section ll-10-210(e), supra, sets out the three requirements that must be satisfied in order to qualify for an exemption from unemployment-insurance taxes.
In the first point of appeal, appellants contend that the Board erred in finding that the payments to the drivers in the instant case were a wage or remuneration for personal services because, appellants argue, the company merely acted as a clearinghouse for the distribution of payments received from third parties. We disagree.
On appeal, the findings of the Board of Review are conclusive if they are supported by substantial evidence. Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We review the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the Board’s findings. Id. 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. Id.
Here, viewing the evidence in the fight most favorable to the Board’s findings, Steinert testified that he started Hurricane Express in 1992; that from 1992 until approximately 1995 his business leased trucks to Sioux Transportation; that sometimes Sioux would “cut a check” to the drivers and sometimes he would pay them; that his arrangement with Sioux was that Sioux paid him on a percentage basis, with some routes paying him 80% and with other routes paying him 75%; that out of that settlement he would pay the drivers; that he had a lease agreement with Sioux, the terms of which provided that the drivers were his employees, not Sioux’s; that the fact that he paid the drivers was just a “formality to keep Sioux in the clear”; that in 1995 he began a lease-purchase arrangement with the drivers; that it is “very seldom” that the drivers use one of his trucks without also using one of his trailers; that the brokers pay him for the load, and out of that amount the drivers owe him 25% of the total load for the trailer, cargo/fiability insurance, permits and fuel taxes, plus their truck payment; that the driver gets what is left over; and that if the drivers have maintenance done to the truck, the cost of the maintenance performed at his terminal is also deducted from the amount the drivers receive. Steinert described some of the activities at his place of business as follows:
Well, we do all the mileage, tax reporting, filing and paying on the trucks because, every state, I mean you have to pay mileage tax and fuel tax, and keep it all straight for the trucks and of course the drivers have to get paid. The checks come in from the loads, they come to us, and we have to disperse the money, and the drivers call in.
We find that the Board reasonably concluded that appellants paid the drivers’ wages in return for services rendered and that, accordingly, appellants’ business constituted “employment” that was subject to the payment of unemployment-insurance taxes, unless the statutory requirements for exemption were satisfied.
For the second point of appeal, appellants contend that the Board erred in finding that appellants did not satisfy the first of the three statutory prongs for exemption because the drivers were under appellants’ direction and control. Again, we disagree.
In order to establish the exemption set forth in section ll-10-210(e), supra, an employer must prove each of the requirements contained in subsections (1) through (3). Network Design Eng’g, Inc. v. Director, 52 Ark. App. 193, 917 S.W.2d 168 (1996). If there is sufficient evidence to support the Board’s finding that any one of the three requirements is not met, the case must be affirmed. Id. Here, the Board determined that appellants failed to satisfy all three of the statutory requirements for exemption.-
In addition to the testimony outlined previously regarding the payment of wages under both the arrangement with Sioux and under the lease-purchase agreement, Steinert testified that it was rare for his drivers to drive for any other companies; that the drivers were limited in what they could transport by whatever Hurricane Express was licensed to transport; that the drivers could haul trailers other than his, but that it would not make any sense because they have to pay him 25% anyway; that even if a driver were to haul a load for free, the driver would still owe him 25% of the fair market value of the load; that he has never had a driver actually end up owning a truck because most drivers don’t keep a truck as long as it takes to pay for it; that all of the trucks have the name. Hurricane Express, on their sides because trucks cannot travel the roads without some name on the side; and that the drivers have brokers that they like to use and they keep their trucks loaded 90% of the time, and he gets them approximately 10% of their loads. Steinert explained:
[T]he drivers call in. They want to know who to get a load from, we’ll give them a number of where their best chance of getting a load would be. Um, of course, we have to qualify the drivers, they come in and we have to qualify them. We have to run all the background checks on them, all the background checks, and see if they’re okay, then send them down for drug screen and qualify them. Then, also, we have a shop where we do the trailer maintenance, and if the drivers want it, they can pay for tractor maintenance.
When asked what the arrangement with the drivers was as far as pulling appellants’ trailers for any loads that appellants got on the trailers, Steinert responded, “Well, that’s where for the 25% they give us, they’re getting the use of the trailer, they’re getting the use of our authority, all our insurances, and any contacts we have that can help them get loads.”
This constitutes substantial evidence to support the Board’s finding with respect to the first statutory prong, that the drivers were not free from appellants’ control and direction in connection with the performance of their services. Consequently, it is unnecessary to address the remaining two statutory requirements since each of the three prongs must be satisfied in order to qualify for the exemption.
Affirmed.
Robbins, C.J., and Meads, J., agree. | [
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Olly Neal, Judge.
Washington Regional Medical Center (WRMC) appeals the decision of the Board of Review that Debbie Hamilton was not disqualified from receiving unemployment compensation benefits. WRMC argues that appellee’s failure to obtain certification as a respiratory therapist from the Arkansas State Medical Board amounted to misconduct. We disagree and affirm.
The relevant facts are these. The appellee was employed in several different capacities by WRMC from March 31, 1986, until January 1, 1997. She worked as a respiratory therapist from 1994 until her termination on January 1, 1997. In 1995, the General Assembly passed legislation that made it necessary for individuals employed as respiratory therapists to obtain a license from the Arkansas State Medical Board authorizing the individual to practice respiratory care in the state. See Ark. Code Ann. § 17-99-301 (Repl. 1995). The appellee took the certification examination in November 1996 and failed to receive a passing score. Appellee was able to obtain a temporary license on at least two occasions. The last temporary license expired on December 30, 1996. According to WRMC, appellee was informed that if she did not obtain a license by December 30, 1996, she would no longer be employed there. Appellee indicated that she inquired as to whether she could transfer to another department. There was disputed testimony as to whether appellant’s representatives offered to place appellee in another position, or whether she inquired of other employment opportunities with her employer. On December 26, 1996, appellee was away from work on sick leave. On December 30, 1996, her temporary license expired. On January 7, 1997, appellee received a letter dated January 3, 1997, from WRMC that informed her of the need to seek other employment as of January 1, 1997.
WRMC contends that appellee was terminated because of the legislation that required that she become certified and her failure to successfully obtain the requisite certification. WRMC asserts that this case presents an issue of first impression, as it involves the issue of whether an employee’s failure to obtain a governmental license constitutes misconduct warranting a denial of unemployment compensation. WRMC cites several cases from other states that have upheld the denial of unemployment compensation for failure to obtain a required license. See DiClemente v. Hudacs, 616 N.Y.S.2d 678 (1994); Richardson v. Employment Sec. Com’n, 593 So. 2d 31 (Miss. 1992); Pisarek v. Unemp. Comp. Bd. Of Review, 532 A.2d 54 (Pa. Cmwlth. 1987); Jones v. Unemp. Comp. Bd. Of Review, 518 A.2d 1150 (Pa. 1986). Each of the cases cited by appellant can be easily distinguished from the case at bar.
In Pisarek, supra, the claimant had been employed for thirteen years as a physician’s assistant when he was fired for not being properly certified. The decision to deny the claimant unemployment compensation benefits was based upon the claimant’s admis sion that he was aware that he needed to obtain certification to work as a physician’s assistant, but that he did not make any effort to obtain a license.
The claimant in DiClemente, supra, allowed his emergency medical technician (EMT) certification to expire, and failed to renew his certification after he had been informed that he needed the EMT certification to remain employed. The decision that he was not eligible for unemployment compensation benefits was based upon the finding that such conduct amounted to misconduct.
In Williams, supra, the claimant was employed as a pest-control serviceman. The performance of his duties required that he possess a valid driver’s license and safe driving habits. The claimant’s license was suspended because he failed to pay outstanding fines. His employment was terminated because the employer’s insurer would not provide coverage for him. The Unemployment Compensation Review Board held that he was not entitled to unemployment compensation because of his willful misconduct in fading to pay fines.
In Jones, supra, the claimant was a teacher who was dismissed for failure to complete enough credits to obtain a teaching certificate. The Board found that appellant was terminated through her own fault, where the evidence revealed that she voluntarily delayed completing the required course work.
In the present case, appellee’s failure to obtain certification was not the result of her failure to perform a required act, but rather was the result of her inability to obtain a satisfactory score on the licensing examination.
Although appellant argues that we should examine the manner in which other jurisdictions have addressed the issue of whether the failure to obtain a license required for employment precludes an award of unemployment compensation benefits, we believe that our present law provides an adequate means of addressing this issue. The issue of what factors constitute misconduct connected with the employee’s work has long been resolved by this court. See Clark v. Director, 58 Ark. App. 1, 944 S.W.2d 862 (1997); Rollins v. Director, 58 Ark. App. 58, 945 S.W.2d 410 (1997); Dray v. Director, 55 Ark. App. 66, 930 S.W.2d 390 (1996); Perry v. Gaddy, 48 Ark. App. 128, 891 S.W.2d 73 (1995); Edwards v. Stiles, 23 Ark. App. 96, 743 S.W.2d 12 (1988).
“Misconduct,” for purposes of unemployment compensation, involves: (1) disregard of the employer’s interest; (2) violation of the employer’s rules; (3) disregard of the standards of behavior which the employer has the right to expect; and (4) disregard of the employee’s duties and obligations to her employer. Kimble v. Director, 60 Ark. App. 36, 959 S.W.2d 66 (1997). There is an element of intent associated with a determination of misconduct. Id.
As we explained in Perry, supra:
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 purposes unless it is of such a degree or recurrence as to manifest culpability, wrongful intent, evil design, or intentional or substantial disregard of an employer’s interest or of an employee’s duties and obligations.
48 Ark. App. 128, 891 S.W.2d 73 (1995).
The issue of misconduct is a question of fact for the Board of Review to determine. On appeal, the findings of fact made by the Board are conclusive if they are supported by substantial evidence. George’s Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). Substantial evidence is defined as such evidence as a reasonable person might accept as adequately supporting a conclusion. Rucker v. Director, 52 Ark. App. 126, 915 S.W.2d 315 (1996). We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993).
In the case at bar, appellee had been employed as a respiratory therapist by WRMC since 1994. WRMC notified appellee of the need to obtain certification after the legislation passed. Appellee testified that she studied and prepared to the best of her ability in preparation for taking the examination. Therefore, appellee’s failure was not the result of a conscious or deliberate disregard of her employer’s interests. Here, where appellee has taken affirmative steps to procure required certification, we cannot say that her inability to pass the certification examination amounts to misconduct under our existing law.
Affirmed.
Pittman, Arey, Rogers, and Griffen, JJ., agree.
Crabtree, J., dissents. | [
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John B. Robbins, Chief Judge.
Appellant Nicki R. Weeks was convicted in a jury trial of first-offense DWI, felony fleeing by means of a vehicle, and misdemeanor fleeing on foot. He was sentenced to four years in the Arkansas Department of Correction for felony fleeing, to run concurrently with one-year and thirty-day terms in the county jail for DWI and fleeing on foot, respectively. In addition, Mr. Weeks was fined a total of $6100.00.
On appeal, Mr. Weeks does not challenge his conviction for fleeing on foot. However, he argues that his convictions for DWI and felony vehicular fleeing should be reversed. For each of these charges he contends that there was insufficient evidence to support the verdict.
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, 310 Ark. 119, 835 S.W.2d 852 (1992). In determining the sufficiency of the evidence, we review the proof in the light most favorable to the appellee, con sidering only that evidence which tends to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992).
Officer Neal Thomas testified that he came into contact with Mr. Weeks during the late evening hours of February 21, 1997, and early morning hours of February 22, 1997. According to Officer Thomas, he observed a vehicle traveling at 58 miles per hour in a 45-mile-per-hour speed zone shortly before midnight, and attempted to pursue the vehicle but was not able to keep up with it. Then, shortly after midnight, he saw the same car speeding again and gave chase. Officer Thomas testified that, while his blue fights were on and he was in pursuit of the vehicle, it sped up and passed three cars on the left side of double yellow fines. The cars being passed were forced to ease off the road and give way to the speeding car, which continued to increase its speed to about 95 miles per hour.
Officer Thomas started slowing down when the suspect’s vehicle came to a curve, and he witnessed the vehicle “fish tail” through some gravel and ultimately come to a stop at a gas station. According to Officer Thomas, there were several people around the store and a man was pumping gas during the incident. When the vehicle being pursued came to a stop, Officer Thomas saw Mr. Weeks step out of the car and flee across the road on foot.
After Mr. Weeks fled the scene on foot, Officer Thomas placed the woman who was a passenger in the car under arrest. The woman, who was ultimately not charged with anything, advised Officer Thomas that Mr. Weeks might be headed toward a particular mobile home. Officer Thomas called for backup, and Officer Mark Morton proceeded to the trailer identified by the passenger in the car. Officer Morton observed Mr. Weeks on the steps of the trailer, at which point Mr. Weeks fled on foot for another 500 yards before finally being apprehended. Shortly after his arrest, Mr. Weeks registered .104 on a breathalyzer test.
With regard to the automobile chase, Officer Thomas gave the opinion that Mr. Weeks did not have full control of his vehicle and that “it was unsafe to enter the parking lot at that speed.” Officer Thomas further testified that Mr. Weeks’ erratic driving caused the three cars that he passed to exit to the shoulder for safety purposes, and that Mr. Weeks operated his vehicle in a man ner that created a substantial danger of death or serious physical injury to other persons on the evening at issue.
Mr. Weeks testified on his own behalf, and he acknowledged traveling at a speed in excess of eighty miles per hour and passing a few vehicles. However, he stated that he was unaware that a police car was behind him with its blue lights on, and that he was hurrying to the Missouri border so that he could get to the liquor store before it closed. Mr. Weeks testified that, as soon as he saw the blue lights, he stopped his vehicle, but that he then fled on foot because he was scared. As to whether or not he was intoxicated, Mr. Weeks stated, “Let’s put it this way: I could have sat there and drank a bunch more.”
For reversal, Mr. Weeks first contends that there was insufficient. evidence to convict him of felony fleeing by means of a vehicle. The fleeing statute is codified at Ark. Code Ann. § 5-54-125 (Repl. 1997), which provides in pertinent part:
5-54-125. Fleeing.
(a) If a person knows that his immediate arrest or detention is being attempted by a duly authorized law enforcement officer, it is the lawful duty of such person to refrain from fleeing, either on foot or by means of any vehicle or conveyance.
(b) Fleeing is a separate offense and shall not be considered a lesser included offense or component offense with relation to other offenses which may occur simultaneously with the fleeing.
(c) Fleeing on foot shall be considered a Class C misdemeanor, except under the following conditions:
(1) If the defendant has been previously convicted of fleeing on foot anytime within the past one-year period, subsequent fleeing on foot offenses shall be Class B misdemeanors;
(2) Where property damage occurs as a direct result of the fleeing on foot, the offense shall be a Class A misdemeanor;
(3) Where serious physical injury occurs to any person as a direct result of the fleeing on foot, the offense shall be a Class D felony.
(d) Fleeing by means of any vehicle or conveyance shall be considered a Class A misdemeanor.
(1) Fleeing by means of any vehicle or conveyance shall be considered a Class D felony if, under circumstances manifesting extreme indifference to the value of human life, a person purposely operates the vehicle or conveyance in such a manner that creates a substantial danger of death or serious physical injury to another person or persons.
Mr. Weeks was convicted under subsection (d)(1) of the above statute, and he asserts that the conviction must be reversed because the evidence presented by the State was insufficient to establish that he purposely operated his vehicle in a manner that created a substantial danger of death or serious physical injury, or that he exhibited an extreme indifference to the value of human life. He submits that, at most, his conviction for fleeing in a vehicle should be reduced to a Class A misdemeanor.
Viewed in the light most favorable to the State, we find substantial evidence to support Mr. Weeks’ conviction for Class D felony vehicular fleeing. Officer Thomas testified that Mr. Weeks exceeded the speed limit by 50 miles per hour; passed three cars on the left of a double yellow fine, which compromised the safety of the passengers of the other cars; approached a curve at a dangerously high speed; and entered a convenience store parking lot at about eighty miles per hour while patrons were present. This evidence supported the jury’s determination that, during his flight from Officer Thomas, Mr. Weeks purposely operated his vehicle in a manner that created a substantial danger of death or serious physical injury to others, and that he did so under circumstances manifesting an extreme indifference to the value of human life.
Mr. Weeks’ remaining argument is that there was insufficient evidence to convict him of DWI. Arkansas Code Annotated section 5-65-103 (Repl. 1997) provides:
(a) It is unlawful and punishable as provided in this act for apy 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 there was one-tenth of one percent (0.10%) or more by weight of alcohol in the person’s blood as determined by a chemical test of the person’s blood, urine, breath, or other bodily substance.
Mr. Weeks points out that he registered .104 on the breathalyzer test and that Officer Thomas testified on cross-examination that “[t]he [breathalyzer] machine has a plus or minus factor of .01 for the external check.” He contends that, if the machine has a .01 variance for determining whether or not it is accurate when tested, this variance should also apply to his breath sample, which means that his true blood-alcohol level was somewhere between .094 and .114. Thus, he argues, there was insufficient proof that his blood-alcohol level was .10% or more, and that he should not have been convicted under subsection (b) of Ark. Code Ann. § 5-65-103 (Repl. 1997). He acknowledges that subsection (a) only requires intoxication in order to support a DWI conviction for a person in control of a motor vehicle, and “intoxicated” is defined 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 [.]
See Ark. Code Ann. § 5-65-102(1) (Repl. 1997). However, he contends that there was insufficient evidence that he was intoxicated under this definition because he testified that he did not feel intoxicated, was able to stop his vehicle and run at least 500 yards, and was administered no sobriety tests.
We reject Mr. Weeks’ final contention. Although he suggests that his blood-alcohol level might have been as low as .094, Officer Thomas stated:
It is not true that if Mr. Weeks registered .104 that, using those standards, he could potentially be between .094 and .114. The .01 ratio is an allowed figure for the external standard check. It has nothing to do with the personal sample.
Moreover, the breathalyzer test was not administered until about forty-five minutes after Mr. Weeks fled from Officer Thomas. This evidence amounted to substantial evidence that, at the time he was in control of his vehicle, Mr. Weeks’ blood-alcohol level was at least .10.
We further find that, even in the absence of the breathalyzer test, the State presented substantial evidence of intox ication. It is undisputed that Mr. Weeks had been drinking and was traveling at a very high rate of speed and was passing cars in an unsafe manner. According to the arresting officers, he smelled strongly of alcohol when he was arrested, was stumbling to the point where he had to be assisted in walking, and had slurred speech and bloodshot, watery eyes. Officer Thomas did not administer sobriety tests because, for the safety of everyone involved, he wanted to incarcerate Mr. Weeks as soon as possible. However, Officer Thomas testified that he had been in law enforcement for nine years and has been involved in more than 100 DWI arrests, and that there was no doubt in his mind that Mr. Weeks was intoxicated. It was also permissible for the jury to consider Mr. Weeks’ flight as evidence of guilt of DWI. See Ward v. State, 35 Ark. App. 148, 816 S.W.2d 173 (1991). The State presented sufficient evidence that, while he was operating his vehicle, Mr. Weeks was affected by the ingestion of alcohol to such a degree that his reactions, motor skills, and judgment were altered to the extent that he posed a clear and substantial danger to himself and other motorists or pedestrians.
Affirmed.
Stroud and Meads, JJ., agree. | [
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John P. Stroud, Jr., Judge.
Anthony Johnson, Tony Johnson, Mark Mills, and Virgil Taylor, as members, trustees, deacons, and elders of Unity Missionary Baptist Church, an unincorporated religious society, and all other members of Unity Missionary Baptist Church appeal from a decree of the Saline County Chancery Court holding that appellees Danny Jones and Connie Jones established a prescriptive easement across land owned by the Church. We hold that the chancellor’s decision is not clearly erroneous.
Appellees own a tract of land adjacent to property owned by the Church. Appellees’ driveway, their only access to a county road, crosses the Church’s property and connects to its parking lot. Appellees’ house was built around 1974 by Harold and Carolyn McClendon. According to appellants, the Church’s members voted to give the McClendons permission to traverse the Church’s property for access to their home. In early 1984, the McClendons sold their property to Ronald Eaton. In July 1984, Mr. Eaton sold this tract of land to appellees.
In 1996, appellees attempted to make some improvements to their property but were unable to acquire financing for the project without receiving a recordable written easement from the Church. After appellants refused to give a written easement, appellees filed this action to establish a prescriptive easement over the Church’s property.
At trial, Mr. Eaton testified that, when he acquired the property, he assumed that the gravel driveway came with the land and that he had not asked anyone for permission to use it. He stated that, while making repairs to the property in 1984, he used the driveway and no other access to it approximately four days a week. He also said that he had thought that he had conveyed the right to use the driveway along with the land in his deed to appellees. He stated that he had trusted the abstract company in this regard and would not have paid what he did for the property if he had not believed that there was a recorded right of access to it.
Appellee Danny Jones testified that this driveway is the only access to the property that he has ever used. He also stated that he had assumed that he had acquired the right to use the driveway along with the property and had not believed that he needed permission to use it. He said that no one from the Church had ever indicated that he needed permission to use this driveway nor had anyone from the Church given him permission to do so. He further testified that appellees’ visitors and everyone providing services to their house have used this driveway. He also said that he had maintained the driveway and kept it clear of debris. He said that he had put gravel on it and that Edwin Johnson, a member of the church, had graded it for him. He said that a garbage truck had once damaged a side of the driveway and that he had repaired it in the presence of Church members. He testified that appellees had continuously used the driveway since 1984 in the presence of Church members and that no one from the Church had ever mentioned the subject to him. On cross-examination, Mr. Jones admitted that he and his wife had started attending the Church shortly after moving into their home; although his wife had joined the Church, he had not. He stated that they had stopped attending services there four or five years ago.
Appellant Anthony Johnson testified that, originally, he had owned this property and that he had been a member of the Church when the McClendons had acquired it. He stated that the McClendons had sought the Church’s permission to use the road to their property; this permission was granted by the consent of the Church’s members. He admitted, however, that no one from the Church had ever informed Mr. Eaton or appellees that they needed or had permission to travel across the Church’s property for ingress or egress to their land. He admitted that he had never attempted to limit anyone’s use of the driveway and that, until this dispute arose, he had not even known that Mr. Eaton had once owned the property.
Appellant Mark Mills also testified that, although he had observed appellees and their guests using the driveway, he had never done anything to prevent such use and had never personally communicated to appellees that their use was permissive. He also testified that, although he had been a member of the Church for six years, he had never had contact with Mrs. Jones at the Church.
In their first and second points on appeal, appellants challenge the sufficiency of the evidence and argue that appellees and their predecessors in title were simply using the driveway with the Church’s permission. In their third point on appeal, appellants argue that Mrs. Jones’s use of the driveway could not have been adverse to the Church’s interest because she was a member of the Church for a period of time.
Prescription is the acquisition of title to a property right which is neither tangible nor visible (incorporeal hereditament) by an adverse user as distinguished from the acquisition of title to the land itself (corporeal hereditament) by adverse possession. Neyland v. Hunter, 282 Ark. 323, 668 S.W.2d 530 (1984). Although we do not have a statute setting forth the length of time for the ripening of a prescriptive easement, for many years the supreme court has considered the period for acquiring a prescriptive right-of-way as analogous to the statutory seven-year period for the acquiring of title by adverse possession and has held that both require seven years. Id. Unlike adverse possession, however, prescriptive use need not be exclusive. Id.
One asserting an easement by prescription must show by a preponderance of the evidence that one’s use has been adverse to the true owner and under a claim of right for the statutory period. Manitowoc Remanufacturing, Inc. v. Vocque, 307 Ark. 271, 819 S.W.2d 275 (1991); Fields v. Ginger, 54 Ark. App. 216, 925 S.W.2d 794 (1996). Overt activity on the part of the user is necessary to make it clear to the owner of the property that an adverse use and claim are being exerted. Manitowoc Remanufacturing, Inc. v. Vocque, supra; Fields v. Ginger, supra. Permissive use of an easement cannot ripen into an adverse claim without clear action placing the owner on notice. Manitowoc Remanufacturing, Inc. v. Vocque, supra; Fields v. Ginger, supra. For use by permission to ever ripen into tide, the claimant must put the owner on notice that the way is being used under a claim of right. Massey v. Price, 252 Ark. 617, 480 S.W.2d 337 (1972). Accord Walker v. Johnson, 21 Ark. App. 124, 730 S.W.2d 253 (1987). When one has sufficient information to lead him to a fact, he is put upon inquiry and shall be deemed cognizant of that fact. Diener v. Ratterree, 57 Ark. App. 314, 945 S.W.2d 406 (1997).
In Fields v. Ginger, supra, we noted that the supreme court has long recognized a variation in the general rule of law spoken of in Manitowoc Remanufacturing, Inc. v. Vocque. Quoting Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954), we stated that previous decisions on this issue can be reconciled:
Where there is usage of a passageway over land, whether it began by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowledge that the usage is adverse to his interest or where the usage continues for seven years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know the usage was adverse, then such usage ripens into an absolute right.
54 Ark. App. at 221, 925 S.W.2d at 797. We rejected the notion that it was necessary in all cases that persons claiming a prescriptive easement must openly communicate their intention to use the road adversely before permissive use can ripen into an adverse right and recognized that the length of time and the circumstances under which the roadway was opened and used are sufficient to establish an adverse claim, when those circumstances indicate that the true owner knew or should have known that the road was being used adversely. Citing White v. Zini, 39 Ark. App. 83, 838 S.W.2d 370 (1992), we held that the use may ripen into an easement by prescription even if the initial usage began permissively, if it is shown that the usage continued openly for the statutory period after the landowner knew that it was being used adversely, or under such circumstances that it would be presumed that the landowner knew it was adverse to his own interest.
The determination of whether the use of a roadway is adverse or permissive is a question of fact. Stone v. Halliburton, 244 Ark. 392, 425 S.W.2d 325 (1968); Fields v. Ginger, supra; Wallner v. Johnson, supra. A chancellor’s finding with respect to the existence of a prescriptive easement will not be reversed by this court unless it is clearly erroneous. Kelley v. Westover, 56 Ark. App. 56, 938 S.W.2d 235 (1997). In fact, former decisions are of little value on the factual issue of whether a particular use is permissive or adverse. Williams v. Fears, 248 Ark. 486, 452 S.W.2d 642 (1970); Stone v. Halliburton, supra.
Appellants argue that the chancellor was required to find that the McClendons’ use of the property was permissive simply because Mr. Johnson testified to that fact without contradiction. Even though the McClendons’ use of this driveway was with the permission of the Church, it does not change the outcome of this case. The use of this driveway by Mr. Eaton and appellees was sufficient for the prescriptive easement to occur.
It is clear that the driveway is the only means of access to appellees’ home. Appellees, and their predecessor, Mr. Eaton, assumed that they had acquired a right to use the driveway along with title to their property. Hicks v. Flanagan, 30 Ark. App. 53, 782 S.W.2d 587 (1990), is a boundary-line dispute case, but the court’s holding that the intent to retain possession under an honest belief of ownership' is adverse possession also seems appropriate here. Appellants were aware that appellees had acquired title to the property in 1984 and that they had consistently used and maintained the driveway since that time. Appellants were also charged with notice that Mr. Eaton had purchased this property before he sold it to appellees. It is clear from the testimony that appellees and Mr. Eaton had used the driveway under a claim of right for over twelve years and that appellants had never attempted to limit their access or to inform them that their use was permissive. The Church cannot assume that permission requested and given to a landowner is imputed to all subsequent owners of such land. Given these circumstances, we cannot say that the chancellor’s decision is contrary to settled law or that his findings are clearly erroneous.
Appellants also argue that, because Mrs. Jones was a member of the Church for a period of time, her use of the driveway could not have been adverse to the Church’s interest. Although appellants cite Neyland v. Hunter, supra, for this contention, that case does not support their argument. In Neyland v. Hunter, the supreme court recognized that, unlike adverse possession, prescriptive use need not be exclusive. Appellants also cite Arkansas Code Annotated section 18-11-106 (Supp. 1997), which only deals with adverse possession claims. In fact, appellants have cited no authority that supports their argument that Mrs. Jones’s membership in the Church should defeat her claim of a prescriptive easement. Assignments of error unsupported by convincing argument or authority will not be considered on appeal. Rogers v. Rogers, 46 Ark. App. 136, 877 S.W.2d 936 (1994). Even if we were to consider this issue on the merits, we would not be persuaded by appellants’ argument. The testimony reveals that Mrs. Jones did not join the Church until after appellees had already acquired title to their property and had begun their use of the driveway. Certainly, one can easily infer that Mr. Jones’s maintenance of the driveway was also done on his wife’s behalf. Therefore, the Church was on notice that Mrs. Jones was using the driveway adversely to its interest before she joined it. Accordingly, we find no merit in appellants’ third point on appeal.
However, it is necessary that we remand this case so that the chancellor may amplify and correct the decree by adding a precise legal description of the easement (that part of the driveway that appellees have actually used). In the decree, this easement is described as a line for which no width is given. When a chancellor’s decree does not describe a prescriptive easement with sufficient specificity so that it can be identified solely by reference to the decree, we may remand for the chancellor to amend the decree and provide the easement’s legal description. See Rice v. Whiting, 248 Ark. 592, 452 S.W. 2d 842 (1970); Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997).
Affirmed in part; remanded in part.
Neal, Meads, and Roaf, JJ., agree.
Griffen and Crabtree, JJ., dissent. | [
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Per Curiam.
A motion has been filed by appellant’s court-appointed counsel at trial to be relieved as counsel on the appeal of his criminal conviction and to allow his new and retained lawyer to be substituted as counsel on the appeal after appellant obtained a transcript of the trial record at State expense. We believe that there are serious factual issues to be resolved before we can decide the question; therefore, we are remanding the motion to the trial court.
Appellant was charged by information, tried to a jury, and eventually convicted following a four-day trial on two counts of rape involving victims younger than fourteen years of age. The trial court sentenced appellant to twenty years’ imprisonment on each count and ordered the prison sentences to be served concur-rendy. Appellant petitioned the trial court for appointment of counsel on account of his professed indigency and was provided defense counsel at State expense. After appellant was convicted, his court-appointed lawyer dutifully filed notice of appeal and ordered a transcript of the trial proceedings to prepare the appeal. A two-volume trial transcript numbering almost a thousand pages and costing $2,748.60, based on the court reporter’s invoices in the record, was provided to appellant’s court-appointed lawyer at State expense on account of his indigency. On September 28, 1998, appellant’s court-appointed lawyer tendered a motion to withdraw as counsel of record, but the motion was not filed until after the clerk’s office confirmed that it had been served on appellant (October 16, 1998).
The. motion to withdraw states 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 referenced receipt is dated September 17, 1998.
A decision to grant the substitution of counsel would mean that the State of Arkansas has provided a free transcript worth almost three thousand dollars to someone who has somehow hired private counsel to appeal his conviction. On one hand, we could remand appellant’s motion for substitution of counsel with instructions that it be granted after appellant reimburses the State for the cost of the trial transcript. We did so in Smith v. State, 63 Ark. App. 31, 970 S.W.2d 336 (1998). After all, the transcript is needed for the appeal. Appellant is the party contesting the result below and, therefore, the party responsible for ordering and lodging the record of the trial proceedings with the Court of Appeals. Appellant obtained a free transcript only because of his indigency based on the principle that the government-paid transcript was essential pursuant to his right to effective assistance of counsel guaranteed by the Sixth Amendment to the Constitution of the United States. When he obtained funds to hire private counsel for the appeal, appellant could have also obtained the funds needed to reimburse the State for the cost of the transcript. We have no indication that appellant was or is now.unable to obtain those funds, that he does not have those funds presently, or that he is otherwise unable or unwilling to reimburse the State. Without knowing whether this is the case, however, we hesitate to grant appellant’s motion.
The other possibility is to remand the case to the trial court so that additional proceedings can be held. Remanding the case for consideration will not jeopardize appellant’s right to appeal his conviction. If the trial court finds that reimbursement was not demanded — or that it was demanded but rejected by appellant’s funding source — it can render findings concerning the reim bursement demand and response so that our court can intelligently decide whether it would be just to give appellant a taxpayer-paid trial transcript on one hand while allowing him to dump his taxpayer-paid lawyer in favor of one hired with private funds on the other. When did appellant obtain funds to hire private counsel and from what source? How much was obtained to procure the private attorney? Are there any valid reasons why the appellant cannot be directed to reimburse the State for the cost of the transcript? Has the State demanded reimbursement? If so, when was the demand made and why wasn’t it honored?
We realize that the financial arrangements that litigants have with their privately retained lawyers are sensitive matters. We also acknowledge that some sources who fund hiring private counsel on appeal may balk at reimbursing taxpayers for the trial transcript and may withdraw their offers to pay for private counsel. And we recognize that our decision to remand means assigning this sensitive issue to trial judges who are already overloaded-. Nevertheless, this situation begs for an informed judicial solution. The questions it presents are better addressed by trial judges who are able to conduct evidentiary hearings than by appellate judges sitting in panels or en banc.
Our decision to remand rather than to grant the motion to substitute counsel occurs in response to what appears to be a common practice whereby the State of Arkansas pays the cost of a trial transcript after an indigent criminal defendant files notice of appeal. Then the appellant hires private counsel to prosecute the appeal. From one perspective, this practice can be said to mock the notion of indigency and the reason for granting a free transcript to indigent appellants. To those who object to judicial inquiries into the sources of funds used to hire private counsel in criminal appeals after the appellants have been represented by court-appointed lawyers at trial, one need only remember that criminal defendants are provided court-appointed lawyers at trial and free trial transcripts on appeal only after trial courts have made findings of indigency and the accused persons have provided sworn evidence of that fact. Trial judges regularly include lan guage in the orders appointing counsel for indigent defendants that the accused and/or appointed-counsel has a duty to report the receipt of funds or other property that might be used to provide a defense. We see no rational basis for dismissing this fact-finding and reporting process during the appellate stage so as to permit supposedly indigent convicted felons to hire lawyers to prosecute appeals of their convictions using transcripts obtained at State expense without even a demand that the transcript cost incurred by taxpayers be reimbursed.
For decades, poor people who have sought government assistance on account of professed indigency have endured daily inquiries into their finances, the sources of their income, and even their living arrangements. Government employees of social-welfare agencies have gone into the residences of poor people, often unannounced and without preamble, to determine whether a husband, father, or some other source of financial assistance may have been living with a family seeking government assistance. Applicants for unemployment benefits are required to submit weekly reports of their efforts to obtain work and risk losing their benefits if they fail to do so. Our decision to remand so that the trial court can conduct an evidentiary hearing and render appropriate findings on this motion is, therefore, both judicially necessary and even-handed. If the people of Arkansas must provide a free trial transcript to convicted felons who hire their own lawyers on appeal, they at least deserve to know why they cannot be reimbursed for the transcript cost. They deserve to know why, when, and from what sources these appellants are finding money to hire lawyers to prosecute their appeals but not pay for the transcripts. By remanding the motion to substitute counsel, this and similarly situated appellants will be afforded a chance to prove continued indigency in the face of proof that they somehow have managed to hire private counsel on appeal.
Therefore, we remand the case to the trial court with instructions that it conduct proceedings and render findings of fact relevant to 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. These proceedings and findings shall be conducted and rendered within forty-five days, after which the trial court shall refer the motion and its findings to our court for final disposition.
Pittman, Jennings, Stroud, Neal, and Roaf, JJ., dissent. | [
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John F. Stroud, Jr., Judge.
Paul R. Mattocks was granted a divorce from Candice J. Mattocks, and the parties were given temporary joint custody of their children pending further proceedings. Mr. Mattocks moved out of the marital home. A subsequent hearing was held on the issues of property division and custody of the two children who were still minors. The chancellor awarded Mr. Mattocks custody of the girls and possession of the house until the youngest daughter reached age eighteen or graduated from high school, whichever event occurred last, at which time the house was to be sold and the profits equally divided. The chancellor ordered an equal division of all other marital property, awarded alimony to Ms. Mattocks for twelve months, and ordered no child support until such time as Ms. Mattocks became employed.
The chancellor denied Ms. Mattocks’s posttrial motions for a stay of the proceedings to enforce the decree and for relief from the decree. On appeal Ms. Mattocks contends 1) that the chancellor erred by not causing a record to be made of his in camera interview with the minor children, and 2) that she was denied due process at the final hearing because of procedural errors by the trial judge. Because we agree that error was committed on the first point, we reverse and remand; we therefore need not reach the second point.
After making an opening statement, appellee’s attorney asked that the children be interviewed in chambers if the chancellor thought it appropriate. The chancellor stated, “[That’s] usually the preferred method. It’s the least difficult way for the children. We could swear them in, put them on the witness stand like any other witnesses but that’s usually not preferred. Is that agreeable with you, Ms. Mattocks, for me to talk to the girls?” Appellant agreed to the interview, the chancellor announced a recess, and the girls were interviewed in chambers off the record. When court resumed, the chancellor noted, “The girls, they said they would go back home probably.”
Appellant contends that this court should find error by holding either that a record must be made of in camera interviews with minor children in custody cases, or that a record should be made unless waived by the parties. She argues that because there is no record of the children’s testimony and the chancellor made only a vague reference to what they said, she had no chance to rebut the testimony and it is impossible for this court to review the chancellor’s decision. Appellant specifically denies that she waived her right to have a record made.
Appellee contends that in a custody case the chancellor is not required, on his or her own motion, to make a record of an interview in chambers with the minor children. He cites Jackson v. Smith, 250 Ark. 923, 467 S.W.2d 704 (1971), and Rush v. Wallace, 23 Ark. App. 61, 742 S.W.2d 952 (1988), in support of this position. We find those cases distinguishable from the one now before us. The Jackson court stated only that it was unwilling to say that the chancellor erred in considering the wishes and attitude of a child interviewed privately in chambers by the chancellor, with the consent or acquiescence of the parents. In Rush v. Wallace, supra, attorneys for the parties were present at an unrecorded interview of the child and were permitted to question her. The Rush court ruled that a request for a record of the interview was untimely in that no objection was made until the interview was over; the court also noted that no attempt had been made to reconstruct the record under Rule 6(d) of the Arkansas Rules of Appellate Procedure, which provides a means of constructing a record in those cases where no record has been made.
We note that the Jackson and Rush cases were decided before Administrative Order Number 4 and Arkansas Code Annotated section 16-13-510 (Repl. 1994) were in effect. As of july 1, 1991, Administrative Order Number 4 imposed upon any circuit, chancery, or probate court the duty, “unless waived on the record by the parties,” to require a verbatim record of all proceedings per taining to any contested matter before it. In Re Admin. Order No. 4, 305 Ark. 613 (1991). Additionally, Arkansas Code Annotated section 16-13-510 (Repl. 1994), reads in part as follows:
(a) In all cases before the circuit, chancery, or probate courts of this state, a complete record of the proceedings shall be made by the official court reporter, or other reporter designated by the court. Upon the request of either party or the circuit, chancery, or probate judge, said record shall be transcribed, certified by the reporter as true and correct, and filed with the clerk of the court in which the proceedings were had, not less than ten (10) days before the expiration of time allowed for appeal.
(b) Nothing contained in this section shall prevent the parties, with the permission of the circuit court, from waiving a complete record of the proceeding.
(Emphasis added.) Chancery and probate courts were added to subsection (a) by legislative amendment in 1993, but they were not added to subsection (b).
We are unable to find Arkansas case law that applies the above administrative order and statute to in camera interviews of children in child-custody cases. We realize that it has been common for chancellors, in the years before and after the effective dates of Administrative Order Number 4 and the amendment to Arkansas Code Annotated section 16-13-510, to speak freely with children in making determinations of child custody. Chancellors in open court sometimes specifically refer to a child’s words or actions in the interview. E.g. Lumpkin v. Gregory, 262 Ark. 561, 559 S.W.2d 151 (1977).
The language of Administrative Order Number 4 requires a chancery court to make a verbatim record of all proceedings pertaining to any contested matter unless the parties waive the requirement on the record. No exception is made for matters of child custody. Furthermore, under Arkansas Code Annotated section 16-13-510 (a) (Repl. 1994), a chancery court is obligated to take a court reporter into chambers when any matters are contested and also obligated to have the record transcribed upon timely request of parties or the chancery judge. Although section 16-13-510(b) allows parties to waive a complete record in circuit court, no such allowance is made for chancery or probate proceedings.
Administrative Order Number 4 requires a complete record of all proceedings unless waived on the record by the parties. It is undisputed that there was no waiver on the record in this case. A record must be made of in camera interviews in matters of child custody under the clear and unambiguous language of section 16-13-510 (1994), which clearly does not allow waiver of the record. Even if a waiver were permitted, we would not view appellant’s agreement to the interview and her failure to request a written record as constituting an implied waiver of her right to have the record made.
We therefore find that the chancellor erred in not causing a record to be made of his in camera interview with the minor children. As we reverse and remand on the first point, we need not address the second point on appeal.
Reversed and remanded for actions consistent with this opinion.
Neal, Griffen, Crabtree, Meads, and Roaf, JJ., agree. | [
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John Mauzy Pittman, Judge.
The parties in this tort case rented adjacent boat stalls on Lake Hamilton in Garland County, Arkansas. In July 1995, appellant attached a battery charger to the battery of his boat and left the charger connected, unattended, while he went out of town for three or four days. Appellant’s battery exploded and spewed battery acid onto appel-lee’s pontoon boat. Appellee filed suit alleging that his pontoon boat was damaged by appellant’s negligence. After a bench trial, the trial court found that appellee sustained damages to his pontoon boat in the amount of $2,907.60; that appellant had been negligent; and that appellant’s negligence was the proximate cause of the damages to appellee’s pontoon boat. From that decision, comes this appeal.
For reversal, appellant contends that the evidence is insufficient to support the trial court’s finding of negligence because the explosion was not foreseeable, and that the evidence is not sufficient to support the award of damages. We find some merit in appellant’s second contention and, consequently, we affirm upon agreement of remittitur.
We first address appellant’s contention that his actions were not negligent because the explosion was not foreseeable. Citing Prosser’s treatise on the law of torts, the Arkansas Supreme Court has noted in Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983), that the question of foreseeability may be one of fact, depending on the case.
[I]f reasonable persons could not differ about the determination [of foreseeability] on the evidence before the court, it is decided by the trial judge, or by the appellate court. If, on the other hand, reasonable persons could differ, then the trial judge must explain the applicable legal concept to the jury, and leave to the jury the responsibility of making the evaluative determination — the application of that concept to the facts, as they find them to be.
W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 45, at 320 (5th ed. 1984).
In the present case, appellant testified that he removed his battery from its normal, shielded location behind a curtain under the seat of his boat, and placed the battery, uncovered, in the center of his boat. Appellant stated that he then attached a ten-amp tapering battery charger to his battery and left for Kansas City. When he returned from Kansas City three or four days later, he went to the boat dock and found that his battery had exploded. Appellant testified that he had previously charged the battery in the same manner approximately twenty-five times without mishap.
Carl Wells, a battery specialist, testified that even nondefec-tive batteries connected to nondefective chargers can explode if a spark ignites the gasses emitted by the battery. Mr. Wells stated that a spark could result from any slight movement of the contacts, such as might be caused by wind, waves, or a bird landing on them, or from a short circuit inside the battery itself. He further testified that, after twelve to fourteen hours, the battery would begin to deteriorate internally and could short-circuit from the heat created by the continuous charging. Mr. Wells stated that batteries must be handled very carefully and covered during charging for protection, and that he would not leave a battery charger connected for four days because the danger of an explosion was tod great.
Kenneth Kirkley testified that he was in the marine business and that he was familiar with boats and batteries. He stated that he charges batteries in the course of his business and that, before doing so, he removes the battery from the boat and isolates it from materials that could be damaged by battery acid. Mr. Kirkley also testified that he recommends to his customers that they likewise remove their batteries from their boats before charging them.
On this record, we cannot say that the trial judge erred in finding that the danger of explosion was foreseeable.
We next address appellant’s contention that the evidence does not support the award of damages. It appears from the record that appellee obtained an estimate showing that the cost of repairs to his pontoon boat would be $2,574.60. Appellee testified that he also had the boat cleaned and repaired a table, damaged in the explosion but not fisted as an item to be repaired in the estimate, for a total cost of $333.00. The trial judge awarded damages totaling $2,907.60, the sum of these amounts. Appellant contends that the trial judge erred in awarding damages based on the estimated cost of repair because this was not the best evidence of damages in this case. We agree.
The measure of damages for damage to a vehicle is the difference in the fair market value of the vehicle immediately before and immediately after the occurrence. Daughhetee v. Shipley, 282 Ark. 596, 669 S.W.2d 886 (1984). An appraisal of the estimated cost of repair is acceptable evidence of the difference between the value of the vehicle before and after it was damaged. First Marine Insurance Co. v. Booth, 317 Ark. 91, 876 S.W.2d 255 (1994). However, the difference in market value before and after the occurrence may be established by cost of repairs only when other competent proof of market value is absent and the cost of repairs is the best available evidence of market value. Beggs v. Stalnaker, 237 Ark. 281, 372 S.W.2d 600 (1963); see H. W. Brill, Arkansas Law of Damages § 29-4, at 397 (2d ed. 1990). The Beggs court held that, where the jury was presented both with evidence of cost of repair and with competent appraisals of market value, the appraisals of market value were the best evidence available. Beggs v. Stalnaker, 237 Ark. at 284, 372 S.W.2d at 602. In the present case the trial court was likewise presented with appraisals of market value and, insomuch as these appraisals of market value were introduced into evidence by the appellee as plaintiff below, we think they should be regarded as competent and the best available evidence of market value. Consequently, we hold that the trial judge erred in basing his award on the estimated cost of repairs.
Nevertheless, we do not believe that the error necessarily requires a new trial. In Johnson v. Gilliland, 320 Ark. 1, 896 S.W.2d 856 (1995), the supreme court said that:
Ordinarily, a general verdict is a complete entity that cannot be divided, requiring a new trial upon reversible error. When, however, a trial error relates to a separable item of damages, a new trial can sometimes be avoided by the entry of a remittitur. Jacuzzi Brothers, Inc. v. Todd, 316 Ark. 785, 875 S.W.2d 67 (1994); Wheeler v. Bennett, 312 Ark. 411, 849 S.W.2d 952 (1993); White River Rural Water District v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992). As Mr. Johnson testified that the fair market value of the boat was $10,000, we have no hesitation in declaring that a remittitur is in order. Should Mr. Johnson submit a petition within seventeen days, requesting a remittitur of damages from $20,250 to $10,000, we will affirm as modified. Otherwise, as a general verdict cannot be divided, we must remand for a new trial of Mr. Huntsberger’s cross-complaint against James Johnson. See Jacuzzi Brothers, Inc. v. Todd, supra; Interstate Freeway Serv., Inc., v. Houser, 310 Ark. 302, 835 S.W.2d 872 (1992).
Johnson v. Gilliland, supra, at 9. The amount of the remittitur in such cases is fixed by the highest estimate of the element of dam age affected by the error. Martin v. Rieger, 289 Ark. 292, 711 S.W.2d 776 (1986). In the case at bar there was evidence that appellee’s pontoon boat was in excellent condition prior to the explosion, and that a boat of that type in such condition had a market value of $7,300.00. There was also evidence that, following the explosion and after appellee expended $333.00 in repairs, the pontoon boat had a market value of $4,800.00. Consequently, should appellee submit a petition within seventeen days requesting a remittitur in damages from $2,907.60 to $2,833.00, we will affirm as modified. Otherwise, we must remand for a new trial.
Affirmed as modified.
Stroud and Griffen, JJ., agree.
The appellee asserts that this issue is not preserved for appeal because it was not included in appellant’s directed verdict motion. However, in a non-jury trial, it is not necessary to move for a directed verdict in order to test the sufficiency of the evidence of damages on appeal. Sipes v. Munro, 287 Ark. 244, 697 S.W.2d 905 (1985). | [
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Larry D. Vaught, Judge.
On September 3, 2008, this court handed down a published opinion reversing and dismissing the revocation of appellant Allan Taylor Duncan’s probation due to lack of jurisdiction, because the record contained no evidence that a judge authorized or participated in the deputy circuit clerk’s issuance of the warrant for his arrest on the petition to revoke. The State has now filed a petition for rehearing and motion to supplement the record. We grant both and issue this substituted opinion.
We first consider the State’s motion to supplement the record. Arkansas Rule of Appellate Procedure-Civil 6(e) authorizes supplementation of the record in this circumstance.
If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the circuit court before the record is transmitted to the appellate court, or the appellate court on motion, or on its own initiative, may direct that the omission or misstatement shall be corrected, and if necessary, that a supplemental record be certified and transmitted.
In this case, the circuit court entered an order in which it explicitly found probable cause for the issuance of a warrant for Duncan’s arrest. This order is material to our previous holding that because there was not a judge-made probable-cause determination the warrant at issue was invalid. The State has now produced a bona fide order establishing that the warrant issued for Duncan’s arrest was judicially authorized.
Therefore, just as a circuit court has the power to correct a clerical error to speak the truth after an appellate-court mandate has issued, see, e.g., McCuen v. State, 338 Ark. 631, 634-35, 999 S.W.2d 682, 683-84 (1999), so, too, are we empowered to allow supplementation of the record with an order actually entered, but mistakenly omitted, so that our decision will be based on the truth. Further, Duncan will not be prejudiced by our decision to allow the record to be supplemented with this vital document. In Duncan’s notice of appeal, he designated “the entire record” as the record on appeal. Therefore, the supplemented record will comply with his original request.
On appeal, Duncan contends that the trial court was without jurisdiction to revoke his probation. The facts of this case are not in dispute. Duncan was convicted of third-degree battery and first-degree assault following the entry of a negotiated plea on June 5, 2006. The State filed a petition to revoke Duncan’s probation on May 22, 2007. On that same day, a probable-cause order was entered by the circuit judge and a warrant was issued by a deputy circuit-court clerk. A judgment and disposition order that was entered on October 10, 2007, (approximately four months after Duncan’s probationary period had expired) revoked Duncan’s probation and ordered him to serve twelve months in the Jefferson County Jail.
Our law allows the court to revoke probation subsequent to the expiration of the period of probation if before expiration of the period: 1) the defendant is arrested for violation of probation; 2) a warrant is issued for violation of probation; 3) a petition to revoke the defendant’s probation has been filed if a warrant is issued for the defendant’s arrest within thirty days of the date of filing the petition; or 4) the defendant has been issued a citation violation of probation or served a summons for violation of suspension or probation. Ark. Code Ann. § 5-4-309(e) (Repl. 2006). However, if one of these four conditions is not met, a court does not have jurisdiction to revoke the defendant’s probation subsequent to the expiration of the probation period. Carter v. State, 350 Ark. 229, 85 S.W.3d 914 (2002).
In our consideration of the trial court’s jurisdiction to revoke, in light of the complete (as supplemented) record, it is clear that the second condition was met. A valid warrant was issued prior to the expiration of Duncan’s probation. Indeed, the trial court’s May 22 order expressly found that there was probable cause for the issuance of a warrant for Duncan’s arrest and set terms for his release. Further, the fact that the order did not direct the circuit-court clerk or deputy clerk to issue an arrest warrant is not troubling to us. The order found probable cause for an arrest warrant to be issued. Unlike a probable-cause finding, issuing a warrant is ministerial and does not require an explicit judicial directive or delegation.
In sum, although Duncan’s probation was revoked several months after his one-year probationary period had expired, the fact that a valid arrest warrant was issued prior to the expiration of his probation established extra-ordinary jurisdiction. As such, we hold that the trial court had jurisdiction to sentence Duncan to a one-year jail term, and we affirm Duncan’s conviction.
Affirmed.
Hart, Robbins, Griffen, Heffley, and Baker, JJ., agree. | [
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Margaret Meads, Judge.
This appeal is brought from the trial court’s entry of summary judgment in favor of appellee, Harp’s Food Stores, Inc. The court found that certain issues decided in a federal civil rights suit brought by appellant precluded appellant from relitigating those issues in a tort suit prosecuted in state court. We reverse and remand.
David Jones, a Rogers city policeman, worked for appellee during his off-duty hours as a loss-prevention officer. On March 25, 1996, he supposedly observed appellant stealing a pack of cigarettes. Appellant was apprehended and arrested and charged with shoplifting. It was later determined that the cigarettes did not come from appellee’s store, and the shoplifting charge was nolle prossed. As a result of the incident, appellant fried suit in federal court pursuant to 42 U.S.C. § 1983 against David Jones, the City of Rogers, and the city’s police chief. In the same action, he sued appellee for battery, assault, false imprisonment, defamation, malicious prosecution, and negligence. The federal court granted summary judgment on the section 1983 claim, ruling that Jones’s arrest and detention of appellant was reasonable, even if mistaken, thus entitling Jones to qualified immunity under federal law. See Johnson v. Schneiderheinz, 102 F.3d 340 (8th Cir. 1996). Further, the court found that appellant failed to prove that Jones used excessive force in making the arrest, having offered no evidence that he suffered anything beyond minor injury or discomfort. At the conclusion of these findings, the court exercised its prerogative to decline jurisdiction over the state tort claims. See 28 U.S.C. § 1367(c)(3) (Supp. 1998).
Following the federal court ruling, appellant filed suit in state court against appellee. According to the complaint, David Jones, in the presence of store employees and customers, wrongly accused appellant of shoplifting, then detained him by use of force. The complaint further alleged that appellee commenced a crimi nal proceeding against appellant without probable cause. Based upon these allegations, appellant asserted that appellee, acting through its agent, Jones, committed the torts of battery, assault, false imprisonment, malicious prosecution, defamation, and outrage. Appellant also asserted a cause of action for conversion based upon appellee’s retention of the cigarettes he was suspected of stealing, and a cause of action for negligence based upon appellee’s failure to train its security guards or investigate their backgrounds.
After discovery was undertaken in the case, appellee filed a motion for summary judgment. The motion contended that, at the time of the incident, Jones was acting as a city police officer, not as appellee’s employee. However, the gravamen of appellee’s argument was that the federal court ruling conclusively established the reasonableness of Jones’s actions, thereby leaving no basis for appellant’s tort claims. A copy of the federal court ruling was attached to the motion, along with various affidavits, depositions, and answers to interrogatories. Through these exhibits, appellee presented the following evidence: Jones believed he saw appellant put a pack of cigarettes in his pocket without paying for them. Jones then approached appellant, identified himself as a police officer, and asked appellant to accompany him to the manager’s office. Appellant refused and called Jones a “racist pig.” When appellant tried to leave the store, Jones held him, and a scuffle ensued. Jones warned appellant that he would have to physically restrain him if he kept fighting. Appellant ignored the warnings, and Jones put him on the floor, holding him there until on-duty officers arrived. The cigarettes that appellant was holding were confiscated and were held at appellee’s store until they were picked up by the police a week later. The charges against appellant were dropped when the city attorney’s office learned that the tax identification number on the cigarettes showed that they did not come from appellee’s store.
Appellant responded to the motion by arguing that the findings made by the federal court were based upon Jones’s conduct as a police officer as viewed in light of constitutional requirements, not as a private actor viewed in fight of state tort law. He attached depositions that were primarily directed to appellee’s assertion that Jones was not acting as its employee. The depositions indicated, however, that up to twenty-five people may have observed the incident and that Jones had received no training or guidance from appellee regarding the apprehension of suspected shoplifters.
After a hearing, the trial judge found that the federal court ruling “knocked out the underpinning” of appellee’s state tort claims, thus barring them under the doctrine of collateral estop-pel. With regard to the negligence claim, the judge found that there was no causation between appellee’s alleged negligence in training Jones and appellant’s damages. It is from this ruling that appellant brings his appeal.
Summary judgment, while no longer considered a drastic remedy, is only approved when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the non-moving party is not entitled to a day in court. Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998). The burden of sustaining a motion for summary judgment is on the moving party. Hawkins v. Heritage Life Ins. Co., 57 Ark. App. 261, 946 S.W.2d 185 (1997). On appeal, we must view the evidence in a light most favorable to the nonmoving party. Id.
Appellant argues on appeal that the trial court erred in applying the doctrine of collateral estoppel in this case. Collateral estoppel, or issue preclusion, bars relitigation of issues of law or fact actually litigated by parties in the first suit. Coleman’s Serv. Ctr. v. Federal Deposit Ins. Corp., 55 Ark. App. 275, 935 S.W.2d 289 (1996). When an issue of fact or law is actually litigated and determined by a valid and final judgment and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. Id. The elements of collateral estoppel are: 1) the issue sought to be precluded must be the same as that involved in the prior litigation; 2) the issue must have been actually litigated; 3) it must have been determined by a valid and final judgment; and 4) the determination must have been essential to the judgment. Fisher v. Jones, 311 Ark. 450, 844 S.W.2d 954 (1993). The party asserting collateral estoppel has the burden of demonstrating that the precise issue on which they claim the court and other parties are bound and which is precluded from being raised was decided in the previous case. Smith v. Roane, 284 Ark. 568, 683 S.W.2d 935 (1985). A federal court judgment may preclude relit-igation of issues in state court. Scogin v. Tex-Ark Joist Co., 281 Ark. 175, 662 S.W.2d 819 (1984).
Appellant’s federal action was brought pursuant to 42 U.S.C. § 1983, which provides a cause of action against persons who, under color of law, subject a citizen to deprivation of rights, privileges, and immunities secured by the Constitution. The purpose of section 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights. Wyatt v. Cole, 504 U.S. 158 (1992). As best we can tell from the record before us, appellant’s section 1983 claim was based upon the assertion that his constitutional rights were violated by David Jones’s improper arrest of him and by Jones’s use of excessive force. The federal court found that no constitutional violation occurred because Jones was entided to qualified immunity, having had a reasonable suspicion to detain appellant and probable cause to arrest him. In section 1983 cases involving an allegedly improper arrest, law enforcement officials who reasonably but mistakenly conclude that probable cause to arrest is present are entitled to qualified immunity. Johnson v. Schneiderheinz, supra. The qualified-immunity defense protects all but the plainly incompetent or those who knowingly violate the law. Id. The issue for immunity purposes is not probable cause in fact, but arguable probable cause. Id. Regarding a claim that excessive force was used in effecting an arrest, an officer is entitled to qualified immunity unless the claimant can demonstrate specific facts showing the officer used excessive force. Edwards v. Giles, 51 F.3d 155 (8th Cir. 1995). The federal judge in appellant’s case ruled that appellant fell short in this regard.
Appellee argues that the federal court’s finding that Jones acted reasonably precludes a finding that Jones acted unreasonably, and thus tortiously, in this case. However, the concept of reasonableness cannot be viewed in a vacuum. We must consider the context in which the federal court evaluated Jones’s conduct. The standards used to determine whether an officer is entitled to qualified immunity are lenient in order that officers may pursue their duties without fear of being sued. See Johnson v. Schneiderheinz, supra. Therefore, an officers’ acts may be viewed as reasonable so long as the officer is not plainly incompetent or knowingly violating the law, and probable cause need only be arguable, not probable cause in fact. Appellant’s state law claims would not be subject to the same analysis used by the federal court in determining Jones’s entidement to qualified immunity. For example, appellant’s failure to prove the use of excessive force would not be fatal to his assault and battery claims, as it was to his section 1983 claim. With regard to appellant’s claims for malicious prosecution and false imprisonment, the existence of probable cause would be a defense to such actions. See Mendenhall v. Skaggs Cos., 285 Ark. 236, 685 S.W.2d 805 (1985); Kellerman v. Zeno, 64 Ark. App. 79, 983 S.W.2d 136 (1998). However, we have found no case in which arguable probable cause, as used in the qualified-immunity analysis, rather than probable cause in fact was sufficient to sustain the defense. As to appellant’s defamation claim, an officer may make a defamatory statement about a suspect, even though his arrest and detention of the suspect were not plainly incompetent or knowingly illegal for section 1983 purposes.
These examples illustrate that the issue sought to be precluded, i.e., whether Jones’s conduct was tortious, is not the same as the issue litigated in federal court, i.e., whether Jones was entitled to qualified immunity. Collateral estoppel applies only to those issues of law or fact actually litigated in the first action. Coleman’s Serv. Ctr. v. Federal Deposit Ins. Corp., supra. The question of whether an issue was previously litigated has been interpreted very narrowly for purposes of collateral estoppel. In re Estate of Goston v. Ford Motor Co., 320 Ark. 699, 898 S.W.2d 471 (1995).
We also note that collateral estoppel does not bar a subsequent action where a federal court has made an express reservation of rights as to future litigation. See Virden v. Roper, 302 Ark. 125, 788 S.W.2d 470 (1990) (appellant’s section 1983 federal court action dismissed based on abstention doctrine); Coleman’s Serv. Ctr. v. Federal Deposit Ins. Corp., supra (federal court dis missed part of appellee’s complaint without prejudice). In the case at bar, the federal court, much like the court in Virden v. Roper, decided not to retain jurisdiction of state law claims. Therefore, appellant’s right to litigate those claims in the future was reserved.
Before we leave the collateral-estoppel issue, we wish to address a matter that was the subject of much discussion during the oral argument of this case. As noted earlier, a section 1983 action is based upon a person’s depriving another of his constitutional rights while acting under color of law. Because the federal court rendered a decision on the section 1983 claim, the question arose as to whether the court must necessarily have concluded that David Jones was acting as a city police officer rather than as appellee’s employee during the incident that is the subject of this case. Both appellant and appellee agree that the federal court made no explicit finding on this issue. Appellee’s counsel argued that the federal court implicitly found that Jones was acting as a police officer, although he acknowledged that the issue was not contested in federal court. Collateral estoppel does not bar an issue unless the issue is actually litigated and essential to the judgment in the first action. Fisher v. Jones, supra. We are not convinced that Jones’s status as a private actor or state actor was actually litigated or essential to the judgment in the federal court action. Therefore, we decline to decide the case on this basis.
In addition to his ruling on the collateral-estoppel question, the trial judge ruled that appellant could not show that his damages were proximately caused by appellee’s failure to properly train Jones or investigate his background. A careful reading of the court’s comments reveals that this ruhng was also based upon the federal court’s finding that Jones’s actions were reasonable. In fight of our holding, this part of the summary judgment must also be reversed.
Finally, we are urged by appellee to affirm the trial court’s ruling on the basis that the facts, even if viewed in a fight most favorable to appellant, establish no liability on appellee’s part. We have the authority to affirm a trial court’s decision on a different basis than that asserted by the court. In re Estate of Goston v. Ford Motor Co., supra. However, we are not convinced that arguments relating to the merits of the state causes of action were fully developed below. Appellant’s response to the motion for summary judgment focused on appellee’s argument that it was not responsible for Jones’s conduct and the doctrine of collateral estoppel. We are reluctant to hold that appellant’s proof, as contained in the exhibits to his response, is insufficient. Sufficiency of proof was not the thrust of appellee’s motion. In reviewing the propriety of a motion for summary judgment, we will not affirm a trial court on alternative grounds when those grounds require additional fact-findings. Schwarz v. Colonial Mortgage Co., 326 Ark. 455, 931 S.W.2d 763 (1996).
Reversed and remanded.
Bird and Griffen, JJ., agree.
We have not been provided with the pleadings filed in federal court. Our characterization of the federal action is based on statements made by the parties in their motions and arguments below and on the text of the federal court ruling, as abstracted. | [
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Judith Rogers, Judge.
This is an appeal from the Workers’ Compensation Commission’s decision finding that appellant failed to prove that she sustained a compensable back injury. On appeal, appellant argues that there is no substantial evidence to support the Commission’s denial of benefits. We disagree and affirm.
Appellant began working for appellee in October of 1995. She was employed as an investigator, and her duty was to pursue noncustodial parents for enforcement of child-support obligations. On April 28, 1997, appellant was attending a two-week instructional seminar that was held at the Holiday Inn Civic Center in Fort Smith. A supervisor and other employees of appellee were also attending the seminar. The purpose of the seminar was to train employees in new computer software that the State was installing. Appellee provided an allowance for two dinner meals and lunch each day. However, no one was required to eat at a certain location or as a group. The lunch break was considered free time and everyone could do as they pleased. On April 28, the group went to eat lunch at the Hobday Inn Civic Center. Appellant testified that when she was approaching the buffet she slipped on the wet floor. She grabbed onto a coworker who broke her fall enough that she only hit the floor with her right knee. Appellant did not seek medical treatment but finished lunch and completed the remainder of the seminar. Appellant finally sought medical treatment on June 5, 1997. The medical evidence reveals that appellant was diagnosed with pyriformis syndrome and retropatel-lar pain syndrome. On June 9, 1997, appellant saw Dr. James M. McKenzie who befieved appellant had sciatica. An MRI was performed on July 8, 1997, which revealed a central disc herniation at L4-5. Appellant subsequently filed this claim for benefits in connection with her fall on April 28, 1997.
On appeal, appellant argues that there is no substantial evidence to support the Commission’s finding that she was not performing employment services at the time of her injury. We disagree.
On appellate review of workers’ compensation cases we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission. Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989). We should affirm the Commission’s ruling if there is any substantial evidence to support the findings made. Id. Act 796 of 1993, which applies to all workers’ compensation injuries incurred after July 1, 1993, requires that the provisions of the workers’ compensation statutes be strictly construed. Ark. Code Ann. § 11-9-704(c)(3) (Repl. 1996). This act excludes from the definition of “compensable injury” any injury inflicted upon the employee at a time when employment services were not being performed. Ark. Code Ann. § 11-9-102(5)(B)(iii) (Supp. 1997). We have held that an employee is performing “employment services” when he is “engaging in an activity that carried out the employer’s purpose or advanced the employer’s interests.” Hightower v. Newark Pub. Sch. Sys., 57 Ark. App. 159, 943 S.W.2d 608 (1997).
In the case of Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998), the claimant argued, on public policy grounds, that her break advanced her employer’s interest by allowing her to relax, which in turn helped her to work more efficiently throughout the rest of her work shift. Under former law, the definition of compensable injury did not include a strict requirement that the injury occur while the worker was performing employment services, and a claimant’s activities at the moment of injury were relevant only to the separate and broader question of whether the injury arose out of and in the course of the employment. See id. It is clear that, under former law, the claimant’s injury while en route to the break area would have been in the course of her employment pursuant to the personal-comfort doctrine. See Lytle v. Arkansas Trucking Services, 54 Ark. App. 73, 923 S.W.2d 292 (1996). However, the personal-comfort doctrine is no longer the law. Now, Act 796 of 1993 applies and, although the claimant’s break may have indirectly advanced her employer’s interests, it was not inherendy necessary for the performance of the job she was hired to do. Consequently, we held in Harding that the Commission did not err in finding that appellant was not performing employment services when she was injured.
Like the case of Harding, Act 796 of 1993 is applicable to the case before us. Here, appellant was on her lunch break walking up to the lunch buffet line when she slipped on a wet floor. According to the record, lunch was considered free time. Ms. Kay Crabb, director of Child Support Enforcement Unit in Benton County, testified that lunch with the group was not mandatory because, if it had been, the other ladies who did not eat with the group would not have had their lunches compensated. She also said that the people in the group were free to do whatever they wanted on their lunch break.
Also, it does not appear from the record that the registration fee for the conference included meals served on site at the conference. In fact, the record indicates that it was discretionary with each county whether it would pay for lunches or dinners for employees at the seminar. According to Ms. Crabb, there were certain people in their office who could not afford to pay for their lunches every day, and that that was something that was discussed when obtaining approval for the payment of lunches for all the employees. It appears from the record that appellee was paying for the employees’ lunches, not for its own benefit, but for the benefit of its employees. Usually, any person who works an eight-hour day has an uncompensated lunchtime. Fortunately for these employees, appellee paid for their lunches.
The Commission found that:
[t]he claimant was not benefitting her employer at the time of the incident. Whether or not the respondents were paying for lunch is of no moment. As in Jackson, once the claimant began to actively participate in lunch, she was on her lunch break and was no longer performing an “employment activity.” The claimant was neither pursuing noncustodial parents nor training in the new computer program, her purpose for attending the seminar. The alleged injury did not occur within the time and space boundaries of claimant’s employment, as required by Ark. Code Ann. § ll-9-102(5)(A)(i) (Repl. 1996). There is no authority under Act 796 of 1993, which we must strictly construe, that suggests the claimant was performing employment services.
After reviewing the record, we cannot say that there is no substantial evidence to support the Commission’s decision that appellant was not engaged in employment services at the time she fell. We agree with the Commission that the fact that the appellee paid for the lunches is of no moment, and it was inconsequential that appellee encouraged the group to eat together when viewed against all of the other evidence. There is substantial evidence to support a finding that appellant was not advancing her employer’s interest when she was on her lunch break walking to the buffet. Because we have affirmed this case on appellant’s first issue, we need not address her second point on appeal.
Affirmed.
Pittman, Stroud, Meads, and Roaf, JJ., agree.
Bird, J., concurs. | [
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Judith Rogers, Judge.
Bruce Edward Leaks was convicted in a jury trial of first-degree murder and was sentenced to forty years in the Arkansas Department of Correction. On appeal, he argues that the trial court abused its discretion in limiting his cross-examination of a State’s witness, and that the trial court erred in allowing the prosecutor to argue to the jury that he could have been charged with capital murder. We find no reversible error, and affirm.
Appellant does not challenge the sufficiency of the evidence; however, a recitation of the facts is necessary for an understanding of our decision and the arguments on appeal. Appellant was convicted of the shooting death of William Littlejohn. Appellant admitted to shooting the victim but contended that he did so because he feared for his fife. The victim, appellant’s former roommate, was living with appellant’s brother at the time of the incident. On the night of January 7, 1997, appellant went to his brother’s home to confront the victim about money that the victim owed him and about the victim allowing several women to wash their clothes at the house while his brother was away. Appellant testified that he had been drinking on the day of the incident. He further testified that he had taken a gun with him because the victim had previously assaulted him and cut him with a razor blade. Appellant claimed that he only intended to talk to the victim, and that he shot him because he thought the victim was reaching into his pocket for a weapon. Appellant testified that he did not mean to kill the victim.
Appellant left the house immediately after the shooting. Appellant’s nephew, who had been in a back bedroom, testified that the victim came into his bedroom and told him that appellant had shot him. Although appellant initially denied any knowledge of the shooting to the police, he later admitted that he had shot the victim after the police recovered the gun involved in the shooting from a car owned by appellant’s girlfriend. The coroner determined that a single gunshot wound to the chest caused the victim’s death. The jury was given instructions on the elements of first and second-degree murder.
Appellant first argues that the trial court erred in limiting his cross-examination of a State’s witness, Bennie Smith, about her relationship with another State’s witness, George Cheatham. Smith testified that she had been given permission by the victim to do laundry at the house on the night of the shooting, but had left prior to appellant’s arrival. She also testified that at one time she had heard appellant say that his girlfriend had cut him. Smith had also testified on direct examination that she had dated Cheatham.
On cross-examination, Smith stated that “I guess I have a problem with George Cheatham.” When appellant’s counsel asked her what the problem was, the State objected based on relevancy. Appellant’s counsel argued that the question went to Smith’s credibility; the trial court sustained the Staté’s objection.
Appellant contends that the trial court abused its discretion in not allowing a complete cross-examination of Smith, thereby denying the jurors potentially vital information regarding her credibility and potential bias. However, we are precluded from addressing the merits of this issue because appellant failed to proffer the excluded testimony.
Evidentiary matters regarding the admissibility of evidence are left to the sound discretion of the trial court, and rulings in this regard will not be reversed absent an abuse of discretion. Harris v. State, 322 Ark. 167, 907 S.W.2d 729 (1995). In order to challenge a ruling excluding evidence, an appellant jnust proffer the excluded evidence so that we can review the decision, unless the substance of the evidence is apparent from the context. Ark. R. Evid. 103(a)(2); Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996); Davis v. State, 319 Ark. 460, 892 S.W.2d 472 (1995). The failure to proffer evidence so this court can determine if prejudice results from its exclusion precludes review of the evidence on appeal. Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985); Willett v. State, 18 Ark. App. 125, 712 S.W.2d 925 (1986).
In the instant case, the trial court precluded appellant’s cross-examination of Smith about her relationship with George Cheatham based on the prosecutor’s objection to the line of questioning as irrelevant. Although appellant contends that the trial court’s exclusion of the testimony was erroneous, he did not proffer the excluded testimony, nor is its substance apparent from the context of the question posed to Smith. Absent a proffer of the expected testimony, this court cannot find an abuse of discretion by the trial court. Willett v. State, supra. Consequently, we cannot determine if prejudice results from its exclusion. Jackson v. State, supra.
Appellant next argues that the trial court erred in overruling his objection to remarks made by the prosecutor during closing arguments. Appellant contends that it was improper for the prosecutor to include anything in his closing arguments except the evidence in the case and deducible conclusions that may be made from the law applicable to a case. During the prosecutor’s closing, the following argument and objection occurred:
State: . . . Mr. Leaks, he’s a lucky man. He’s already been given a break when he wasn’t charged with the premeditated killing of Mr. Littlejohn. If you kill somebody with a premeditated and deliberated purpose of doing so, if you think about it and plan on it and deliberate on it, that’s one of the differences between murder in the first degree and capital murder. But, the decision was made right or wrong not to charge him with capital murder and not to seek the death penalty. We charged him with murder in the first degree. So, he has already been given a break in that regard.
Defense Counsel: I’m going to have object to that line of argument. He’s arguing that this is a capital murder case and through the good graces of the Prosecuting Attorney’s Office, they have not charged him with that, that’s highly improper.
State: Judge, he was arguing and representing in his opening comments that the defendant ought to be charged with, that he ought to be convicted of murder in the second degree. He’s asking the jury or representing to the jury that they ought to give him a break. I’m telling the jury now that after the evidence has been presented which the evidence justifies not giving him any more breaks.
Court: Objection overruled.
After the jury retired, appellant made a motion for mistrial based on the prosecutor’s remarks. The prosecutor responded that the motion was untimely, and the trial court denied the motion without further comment.
A trial court is given broad discretion in controlling counsel in closing arguments, and we do not disturb the trial court’s decision absent a manifest abuse of discretion. Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998). Indeed, remarks that are so prejudicial as to mandate a reversal are rare and require an appeal to the jurors’ passions. Id. The jury is presumed to follow the court’s instructions. Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989); Dunlap v. State, 292 Ark. 51, 728 S.W.2d 155 (1987); Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982).
We affirm the trial court’s ruling based on procedural errors as discussed below. Moreover, we conclude that the evidence of guilt is so overwhelming that any error, although not sanctioned by this court, is harmless in the context of this case.
Here, appellant failed to request any further relief when his objection was overruled, and he failed to move for a mistrial until after the jury had retired. It has repeatedly been held that motions for mistrial must be made at the first opportunity. Smith v. State, 330 Ark. 50, 953 S.W.2d 870 (1997); Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996); Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996); Johnson v. State, 325 Ark. 197, 926 S.W.2d 837 (1996); Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992).
These holdings are squarely based on settled law that for the trial court to have committed reversible error, timely and accurate objections must have been made so that the trial court could be provided with the opportunity to correct such error. See e.g., Wallace v. State, 53 Ark. App. 199, 920 S.W.2d 864 (1996). Errors arising from improper argument are frequently curable by admonition to the jury, and the trial court should have recourse to this option because his presence in the courtroom puts him in a superior position to evaluate the degree of prejudice that might arise from the improper argument, and because of the enormous waste of judicial resources which must inevitably result from declaring a mistrial when a case is all but concluded.
In Smith v. State, 302 Ark. 459, 790 S.W.2d 435 (1990), the supreme court refused to find reversible error when the prosecutor during closing argument made reference to witnesses who did not testify at the trial. The court held:
The appellant objected to the statement on the basis that the defendant does not have to prove his innocence. The objection was overruled, and the appellant made no further motion or request for relief in the nature of a request for a mistrial, a striking of the statement, or a limiting instruction. In the absence of a proper request for, and a denial of, specific relief sought by appellant, we decline to hold that the ruling of the trial court to the appellant’s general objection was reversible error. The appellant now also argues for the first time that the remark of the prosecuting attorney amounts to a comment on the failure of the defendant to testify in his own behalf. That objection was not raised at trial and will not be considered for the first time on appeal.
302 Ark. at 461, 790 S.W.2d at 436-37.
In the present case, the trial court was not afforded the opportunity to correct the error and, under the clear holdings of the Arkansas Supreme Court, the present argument was thereby waived. See, Smith v. State, 302 Ark. 459, 790 S.W.2d 435 (1990); Butler Mfg. Co. v. Hughes, 292 Ark. 198, 792 S.W.2d 142 (1987).
The dissent believes that the statement by the prosecutor was so prejudicial that a new trial is mandated, and concludes that it was not necessary for appellant to request further relief once his objection was overruled; the simple answer is that this is not the law. In Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995), the court stated the following:
It does not appear that any such appeal for an emotional or passionate response was made in this case. Further, it is difficult to fathom how the prosecutor’s remarks in any way prejudiced Milk’s case. And, lastly, defense counsel made no request for relieffol-lowing his objection. There was no error by the trial court in overruling the objection.
322 Ark. at 663, 910 S.W.2d at 691 (emphasis added). The court in Mills did not state that the holding was based on the premise that Mills did not have to request any further relief once his objection was overruled.
Although it is perhaps laudable and progressive for the dissent to have recourse to law journal articles as it attempts to change and improve the law, the changes it would make in this case involve the regulation of trial practice by attorneys and are contrary to the clear holdings of the Arkansas Supreme Court. See Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996); Mills v. State, supra; Littlepage v. State, 314 S.W.2d 361, 863 S.W.2d 276 (1993); Smith v. State, 302 Ark. 459, 790 S.W.2d 435 (1990). The ramifications of following the dissent’s rationale in terms of wasted judicial resources are significant, and we cannot overrule precedent handed down by the supreme court. Conway v. State, 62 Ark. App. 125, 969 Ark. 669 (1998). Certainly, the supreme court should be the arbiter of these fine distinctions that affect the uniform administration of the courts and the practice of law.
Furthermore, appellant was convicted of first-degree murder and sentenced as an habitual offender for that offense pursuant to Arkansas Code Annotated § 5-4-501 (a) (Repl. 1997). He was, therefore, not sentenced to the maximum time he could have received for the crime of which he was convicted, and consequently cannot show that he was prejudiced by the prosecutor’s remarks in that regard.
Finally, appellant admitted to seeking out and confronting the victim while he was armed with a loaded weapon. Appellant admitted to shooting the victim with the .38 caliber handgun, and the victim died from the single gunshot wound to the chest. Also, the trial court’s instructions made clear the elements of the charged offense and that counsel’s arguments were not evidence. Thus, while we do not condone the remarks of the prosecutor, ultimately appellant’s conviction must be affirmed because under the facts in the case at bar any error was harmless due to the overwhelming evidence of guilt. See, e.g., Efrud v. State, 334 Ark. 596, 976 S.W.2d 928 (1998); Esmeyer v. State,supra; Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995).
Pittman, J., agrees.
Crabtree, J., concurs.
Roaf, Hart, and Neal, JJ., dissent. | [
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Wendell L. Griffen, Judge.
Gudrun Ray appeals the Workers’ Compensation Commission’s determination that her injury is not compensable, arguing that the decision is not supported by substantial evidence. The Commission found that Ray was not performing employment services at the time of her injury. We reverse and remand for an award of benefits.
Ray has worked for the University of Arkansas as a food-service worker for approximately eight years. Working in the cafeteria at the University of Arkansas, appellant was entitled to two unpaid thirty-minute breaks and two paid fifteen-minute breaks each day. On April 17, 1997, during one of her paid fifteen- minute breaks, appellant slipped in a puddle of salad dressing as she was getting a snack from the cafeteria to eat during her break. Mary Carolyn Godfrey, Assistant Director for Dining Services, testified that the University provides free meals for cafeteria workers as inducement for the employees to remain on the premises. Godfrey stated that the workers’ fifteen-minute breaks are occasionally interrupted if a student asks a worker for assistance. God-frey testified that if a worker on break is approached by a student, the worker is required to leave her break and address the student’s needs.
To qualify for workers’ compensation benefits, appellant must satisfy the four requirements of Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1997). Arkansas Code Annotated section 11-9-102(5)(A) (Repl. 1997) defines “compensable injury” as “an accidental injury causing internal or external physical harm . . . arising out of and in the course of employment.” The test for determining whether an employee is acting “within the course of employment” is whether the injury occurred “within time and space boundaries of employment, when the employee is carrying out employer’s purpose or advancing employer’s interests directly or indirectly.” Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997).
On appellate review of workers’ compensation cases, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission. Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989). We should affirm the Commission’s rufing if there is any substantial evidence to support the findings made. Shaw v. Commercial Refrigeration, 36 Ark. App. 76, 818 S.W.2d 589 (1991). It is the function of the Commission to determine the credibility of the witnesses and the weight to be given to their testimony. Wade v. Mr. C. Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989). From our review of the record, we should affirm the Commission if we can find any substantial evidence to support the findings made by the Commission. Johnson, supra.
When, as here, the Commission denies coverage because the claimant failed to meet her burden of proof, the sub stantial evidence standard of review requires that we affirm the Commission’s decision if its opinion displays a substantial basis for the denial of relief. McMillian v. U.S. Motors, 59 Ark. App. 85, 953 S.W.2d 907 (1997); see also Shaw, supra. In determining the sufficiency of the evidence to sustain the findings of the Commission, we review the evidence in the light most favorable to the Commission’s findings and affirm if they are supported by substantial evidence. Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. Tyson Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 S.W.2d 617 (1988).
The Commission found appellant was not performing “employment services” at the time of her injury, stating that this finding took into consideration the fact that appellant was paid for her fifteen-minute break and was required to leave her break to help students, with obvious benefit to the University. The Commission found it compelling that appellant was reaching for an apple for personal consumption when she slipped and fell and was not assisting student diners or “otherwise benefitting the employer.” We hold that appellant was performing employment services at the time she was injured based on the fact that appellant was paid for her fifteen-minute breaks and was required to assist student diners if the need arose. Appellant’s employer gleaned benefit from appellant being present and required to aid students on her break. We find Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998), distinguishable. In Harding, an employee was injured when she tripped over rolled-up carpet as she exited an elevator on her way to a smoking area. Harding argued that her employer gained the benefit of her being more relaxed, which in turn helped her to work more efficiently throughout the rest of her work shift. In denying benefits, we held that an employee is performing “employment services” when engaged in the primary activity that he was hired to perform or in incidental activities that are inherently necessary for the performance of the primary activity. Id. We stated that “although appellant’s break may have indirectly advanced her employer’s interests, it was not inherendy necessary for the performance of the job she was hired to do.” Harding, 62 Ark. App. at 139, 970 S.W.2d at 304.
Unlike the employer in Harding, the University of Arkansas required Ray to be available to work during her break and paid her for the time she was on break, presumably because she was required to help students. The University of Arkansas was clearly benefitted by Ray’s being in the cafeteria and available for students during her paid break. The benefit was not tangential as in Harding, but was directly related to the job that Ray performed and for which she was paid. In distinguishing Harding, we specifically note that, unlike the break in Harding, the appellee employer in this case furnished food for its resting employees and paid for the break to induce them to be available to serve students even during the break period.
When a claimant is doing something that is generally required by his or her employer, the claimant is providing employment services. See Shults v. Pulaski County Special Sch. Dist., 63 Ark. App. 171, 976 S.W.2d 399 (1998). In Shults, we found that the claimant who was employed as school custodian and was injured when he fell upon entering employer’s premises sustained a compensable, work-related injury. This finding was based on the fact that part of his job duties included disabling the school alarm system upon entering the building and on the fact that the injury occurred after the claimant saw that the alarm was already disabled and attempted to enter the building quickly to investigate. Id. We specifically addressed the Commission’s statement that “merely entering upon the premises of one’s employer was not sufficient to bring one within the employment services provision of Act 796.” Shults, 63 Ark. App. at 173, 976 S.W.2d at 401. We stated that the claimant’s “duty was an activity that carried out the employer’s purpose or advanced the employer’s interests, and therefore constitutes employment services.” Id. at 174, 976 S.W.2d at 401. Similarly appellant Ray was performing a duty that advanced appellee’s interests. Just as it was not dispositive whether or not the alarm system had already been disarmed on the day of the accident in Schults, supra, it is not dispositive whether appellant was, at the specific time of her injury, assisting a student.
Whether an employer requires an employee to do something has been dispositive of whether that activity constituted employment services in a number of cases. For example, in Coble v. Modern Business Systems, 62 Ark. App. 26, 966 S.W.2d 938 (1998), we held that absent evidence that the claimant was required or expected by her employer to replace hosiery during the workday, in the event of a run in her hosiery, there was substantial evidence to support the finding that she was not performing “employment services” at the time of her automobile accident, which occurred while she was returning from a trip to the mall during her lunch break in an attempt to replace pantyhose containing a large run. Conversely, in Fisher v. Poole Truck Line, 57 Ark. App. 268, 944 S.W.2d 853 (1997), we held that the claimant was performing employment services when he traveled from his employer’s premises to retake a required urine test and was injured on his return trip. Our holding was based on the fact that the claimant was required by the employer to take the urine test. Thus, it is clear that when an employer requires an employee to be available for work duties, the employee is performing employment services.
There is not a substantial basis for the denial of benefits. Although she was on a bréale, Ray was required to be available to help students and was paid for her time. Ray was providing employment services despite the fact that her fall occurred when she was going to get an apple for herself during a paid break rather than going to serve a student.
Reversed and remanded.
Bird and Meads, JJ., agree. | [
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John B. Robbins, Judge.
On August 7, 1992, Robert C. Hudson, appellant, was found guilty of driving while intoxicated, second offense, and running a red light. He was sentenced to six months in the Boone County Jail with all but ten days suspended, fined $550.00, his driver’s license suspended one year, and he was required to attend eighteen Alcoholics Anonymous meetings. On appeal, appellant contends that the trial court erred in failing to suppress the results of a breathalyzer test because the arresting officer did not permit and assist him in obtaining a complete chemical test in addition to the breathalyzer. We find no error and affirm.
The facts are as follows. On November 27, 1991, at 11:35 p.m., appellant was pulled over after running a red light in Harrison, Arkansas. Officer Daryl Smith of the Harrison Police Department testified that when he approached appellant he smelled intoxicants on his breath and gave him a field sobriety test. Smith testified that appellant failed the field sobriety test and was arrested and taken to the Boone County Sheriff’s Office for a breathalyzer test. Appellant was read a statement of rights form which advised him of his right to additional tests at his own expense and that the officer would permit and assist him in obtaining an additional test. Appellant signed the form con senting to the breathalyzer and initialed the form indicating that he requested an additional urine test. A certified officer administered the breathalyzer which indicated appellant’s blood alcohol content to be .134 percent, over the legal limit.
Officer Smith- then transported appellant to the North Arkansas Medical Center in Harrison to have the urine test administered. Appellant and Smith were told by a hospital representative that the hospital did not administer urine tests for blood alcohol content. Appellant was told that a urine specimen cup could be provided for his use at a cost of $108.00; however, appellant would have to take the urine specimen elsewhere to have it tested. Appellant rejected that offer and also testified that he had less than $20 with him at that time. Smith testified that he and hospital personnel informed appellant that they could draw a blood specimen for a blood alcohol test; however, appellant refused the offer. He was then transported back to the jail and held until released the next day.
The trial court ruled on appellant’s motion to suppress as follows:
[T]he statute here is you’re entitled to an alternative test which may be blood or urine test. The Sheriffs Office or the Harrison Police Department is not offering the test. It’s saying, as it’s set out in the statement of rights, that you can have your own chemical test. Presumably it means that has to be a test that’s available. There’s no guarantee here — the sophistry of the argument here is that somehow you’re guaranteed a urine test. All this does is says, “The alternative test may consist of a breath test or a urine test.” Then it’s just a matter of whether that’s available. It doesn’t mean that law enforcement is required to make these tests available. They don’t have any control over what tests are available through the hospital. The Court doesn’t have any problems with finding that the officer gave reasonable assistance, under the circumstances, in trying to provide this defendant with a test. It would appear that they went to the time and trouble of taking him to the hospital for a test when he didn’t even have monies available to pay for any testing that was done. The assistance provided under the circumstances was reasona ble, so the motion to suppress will be denied.
In reviewing a trial court’s ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances. King v. State, 42 Ark. App. 97, 854 S.W.2d 362 (1993). We will only reverse if the ruling was clearly against the preponderance of the evidence. Brown v. State, 38 Ark. App. 18, 827 S.W.2d 174 (1992).
The statute in issue is Ark. Code Ann. § 5-65-204 (Supp. 1991), which provides in part:
(e) 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 in addition to any test administered at the direction of a law enforcement officer.
(1) The law enforcement officer shall advise the person of this right.
(2) 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 shall preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer.
(Emphasis added.) The test results from a breathalyzer may be admitted into evidence if there was substantial compliance with the statute. Fiegel v. City of Cabot, 27 Ark. App. 146, 767 S.W.2d 539 (1989). The officer must provide only such assistance for additional testing as is reasonable at the place and time of the particular case. Williford v. State, 284 Ark. 449, 683 S.W.2d 228 (1985). As the fact finder, the trial court must decide whether the assistance provided was reasonable under the circumstances presented. Girdner v. State, 285 Ark. 70, 684 S.W.2d 808 (1985).
The record here shows that Officer Smith took appellant to the local medical center to have a urine test performed. As pointed out above, the hospital could not perform the urine test as requested by appellant. Appellant refused the alternative to urinate in the specimen cup and take it with him. He also refused to undergo a blood test which the hospital could have performed. The evidence shows that even if the hospital could have performed the test the appellant did not have the money to pay for the test. The appellant did not present any evidence that there was another facility in the area which could have performed the urine test.
The trial court’s finding that the level of assistance offered to the appellant by Officer Smith was reasonable under the circumstances and was amply supported by the evidence. We hold that the officer’s actions constituted substantial compliance with Ark. Code Ann. § 5-65-204(e) (Supp. 1991).
Affirmed.
Jennings, C.J., and Mayfield, J., agree. | [
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John B. Robbins, Judge.
Denise Hollabaugh, M.D., is a family practice physician in Dover, Arkansas. Following a hearing on March 12, 1992, the Arkansas State Medical Board found that Dr. Hollabaugh had violated Ark. Code Ann. § 17-93-409(7) (Repl. 1992) and the medical board’s Regulation 2(4) by committing “gross negligence or ignorant malpractice” in prescribing excessive amounts of controlled substances and writing an excessive number of prescriptions for addictive or potentially harmful drugs for seven patients. The board placed Dr. Hollabaugh’s medical license on probation for one year and directed that she obtain fifty hours of continuing medical education regarding pain management. The board also ordered Dr. Hollabaugh to refrain from writing Schedule II and III narcotics prescriptions for her patients and to submit to periodic monitoring by the medical board and the Arkansas State Pharmacy Board. Dr. Hollabaugh appealed the decision of the board to the Pope County Circuit Court, which affirmed the medical board’s decision. Dr. Hollabaugh has appealed from the decision of the circuit court and argues that the medical board’s decision is not supported by the evidence. We agree and reverse.
The rules governing judicial review of decisions of administrative agencies are settled and are the same for both the circuit and appellate courts. On review of an agency decision, the circuit court is limited to a review of the evidence to determine whether there was substantial evidence to support the decision made and whether it was arbitrary, capricious, or characterized by an abuse of discretion. Deweese v. Polk County Children and Family Servs., 40 Ark. App. 139, 141-42, 842 S.W.2d 466, 467 (1992). On appeal, our review of the evidence is similarly limited. Beverly Enters.-Ark., Inc. v. Ark. Health Servs. Comm’n, 308 Ark. 221, 226, 824 S.W.2d 363, 365 (1992). When reviewing the evidence, we give it its strongest probative force in favor of the agency. Id. In order to establish an absence of substantial evidence, the appellant must show the proof before the board was so nearly undisputed that fair-minded persons could not reach its conclusion; the question is not whether the evidence supports a contrary finding but whether it supports the finding that was made. 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. Eckels v. Ark. Real Estate Comm’n, 30 Ark. App. 69, 75, 783 S.W.2d 864, 867 (1990); Arkansas Real Estate Comm’n v. Hale, 12 Ark. App. 229, 233, 674 S.W.2d 507, 509 (1984). The reviewing court may not displace the board’s choice between two fairly conflicting views even though the court might have made a different choice had the matter been before it de novo. Fouch v. Alcoholic Beverage Control Div., 10 Ark. App. 139, 141-42, 662 S.W.2d 181, 183 (1983). Whenever the record contains affirmative proof supporting the view of each side, we must defer to the board’s expertise and experience. Green v. Carder, 282 Ark. 239, 245, 667 S.W.2d 660, 663 (1984). It is well settled that administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures to determine and analyze underlying legal issues; this may be especially true where such issues may be brought up in a contest between opposing forces in a highly-charged atmosphere. Arkansas Alcoholic Beverage Control Bd. v. King, 275 Ark. 308, 311, 629 S.W.2d 288, 290 (1982).
Dr. Hollabaugh argues that the decision of the medical board is not supported by substantial evidence because the only expert testimony offered on behalf of the medical board was that of Jim Moss, a pharmacist employed by the Arkansas Department of Health who works as an investigator for the medical board. She points out that Mr. Moss did not testify about the appropriate standard of care for the patients involved in this matter or whether she had violated the standard' of care. Dr. Hollabaugh argues that, because there was no expert testimony on the appropriate standard of care or whether it had been violated, the board’s decision should be reversed under Hake v. Arkansas State Medical Board, 237 Ark. 506, 374 S.W.2d 173 (1964). In Hake, the appellant argued that the medical board’s decision to revoke his license to practice medicine was supported by no expert testimony regarding the appropriate standard of care; therefore, there was no standard by which to determine whether the acts charged amounted to malpractice.
In Hake v. Arkansas State Medical Board, the supreme court reversed and remanded the decision of the medical board because the record furnished no factual standard for the board’s conclusions and no standards by which to determine whether the physician had committed malpractice:
There is a virtual absence of evidence in the record to sustain the board’s findings, as well as no expert testimony to provide a standard for the board’s medical opinions. The valuable property rights here involved cannot be taken from appellant upon such questionable compliance with due process.
237 Ark. at 510, 374 S.W.2d at 176.
In reversing the medical board’s decision, the supreme court in Hake relied on McKay v. State Board of Medical Examiners, 103 Colo. 305, 86 P.2d 232 (1938). In that case, the Colorado State Medical Board had revoked the license of John McKay to practice medicine on the ground that he was guilty of “grossly negligent or ignorant malpractice” and of “immoral, unprofessional or dishonorable conduct.” Id. at 307, 86 P.2d at 235. There, the court stated:
There is no evidence that the drugs prescribed by McKay were not prescribed in good faith. No doubt the amount prescribed and the frequency of prescription might be such that in and of itself it would indicate to one skilled in their proper use that one could not possess ordinary skill as a physician and in good faith so frequently prescribe such quantities. But, as heretofore pointed out, the law under which the board acted, contemplates a review of the board’s action by a court presumably not expert in medical matters, with authority in the court to determine whether the board regularly pursued its authority or abused its discretion. Without testimony by an expert the court cannot determine the limits of proper treatment in good faith of one possessing ordinary skill, nor can it assume that the board members out of their own individual knowledge and skill correctly fixed the limits within which one might prescribe in these particular cases and be within the bounds of ordinary care and skill so that good faith might be presumed, and beyond which good faith and ordinary skill could not both be successfully asserted. Such matters being only within the knowledge of experts must be shown by testimony of experts appearing in the record.
.... It does not appear in the evidence that such treatment for a patient in her condition was not proper, judged by sound and recognized medical standards. The board says that in its opinion it was not, but until there was competent evidence to support it the board was not authorized to form such an opinion and exceeded its authority in so doing. The board further found, without regard to any matters of diagnosis or treatment, that writing prescriptions to be delivered in McKay’s absence from the state and in prescribing morphine in powdered form, the dose to be approximated by the patient, constituted malpractice. We find no evidence that in cases and under circumstances such as those in which this was done that it was not within the limits of reasonable discretion nor that it was a departure from what might be done by one possessed of reasonable skill in the exercise of ordinary care.
103 Colo. at 314-15, 86 P.2d at 237.
In Livingston v. Arkansas State Medical Board, 288 Ark. 1, 701 S.W.2d 361 (1986), the supreme court affirmed the medical board’s finding that the appellant, Dr. Pat Livingston, had committed “grossly negligent or ignorant malpractice” warranting the suspension of her license to practice medicine for thirty days. The court noted that “malpractice” is defined by Regulation 2 of the medical board to include “any professional misconduct, unreasonable lack of skill or fidelity in professional duties, evil practice, or illegal or immoral conduct in the practice of medicine and surgery.” 288 Ark. at 5, 701 S.W.2d at 363. The court noted that, although it had not previously defined “ignorant malpractice,” it looked to its consideration of the question of “gross negligence” in other contexts:
We have stated our commitment “to the majority rule that willful and wanton misconduct is, as a matter of law, higher in degree than gross negligence”, St. Louis S.W. Ry. Co. v. Clemons, etc., 242 Ark. 707, 415 S.W.2d 332 (1967). The U.S. District Court, Western District, Fort Smith Division, has stated that “[g]ross negligence is the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.” Robinson Ins. & Real Estate Inc. v. Southwestern Bell Tel. Co., 366 F. Supp. 307 (1973). The district court further explained that the element of willfulness is absent in gross negligence. Id.
California has a similar medical licensing statute which includes “gross negligence” as a form of unprofessional conduct. Cal. Bus. & Prof. Code § 2234(b) (Deering 1985). Interpreting this statute, (formerly § 2361) the California Court of Appeal in Gore v. Board of Medical Quality Assur., 110 Cal. App.3d 184, 167 Cal. Rptr. 881 (1980), also defined gross negligence as “a want of even slight care, but not necessarily involving wanton or willful misconduct; in other words, an extreme departure from the ordinary standard of care.” In finding the doctor in that case committed gross negligence, the court held:
Substantial evidence shows that he failed to exercise the standard of care in diagnosis, monitoring and treatment that is basically and routinely taught to students in medical school. Thus, management of his patient was an extreme departure from the standard of medical care, which we hold to be the equivalent of “want of even scant care” under the circumstances of this case.
Although the board did not differentiate in its finding between “ignorant malpractice” or “gross negligence” there was substantial evidence of an extreme departure from the ordinary standard of care, which constitutes gross negligence.
288 Ark. at 5-6, 701 S.W.2d at 363. In Livingston, however, there was expert testimony that Dr. Livingston’s actions had breached the ordinary standard of care in the community.
In this case, Mr. Moss, a pharmacist, and Dr. Hollabaugh testified. The other evidence in the record included the medical records of the patients involved in this matter along with the observations of the medical board’s investigator. Also included in the record are the affidavits of two of Dr. Hollabaugh’s patients. It is true that Mr. Moss testified about the types, amounts, and frequency of the prescriptions of certain drugs prescribed by Dr. Hollabaugh for these patients. Nevertheless, Mr. Moss did not, and could not, testify as to whether her treatment of these patients was appropriate or whether it violated the ordinary standard of care in the community. Additionally, Dr. Hollabaugh discussed her reasons for prescribing the drugs for these patients and gave much detail about their medical conditions which she felt justified her actions. She also discussed her belief that pain resulting from most medical conditions is not adequately treated by the medical profession. The board correctly states that, traditionally, we accord a great deal of deference to the findings of administrative agencies and points out that the expert credentials of the finders of fact (the medical board members) cannot be discounted. Nevertheless, the record must contain expert testimony establishing the standard of care to which Dr. Hollabaugh is to be held and whether she violated that standard of care. Without evidence in the record that the drugs prescribed for these patients were not therapeutic in nature or that the quantities prescribed were excessive, given the patients’ conditions, we cannot affirm the decision of the medical board.
The record does not show that the board conducted any hearing pursuant to Ark. Code Ann. § 25-15-212(c) (Repl. 1992) to stay, pending appeal, enforcement of its disciplinary order of March 12, 1992, which placed Dr. Hollabaugh on probation for one year. Consequently, the matter should now be moot and we will not remand the proceeding through the circuit court back to the board for further proceedings. We reverse and dismiss.
Cooper and Mayfield, JJ., agree. | [
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Terry Crabtree, Judge.
The Workers’ Compensation Commission reversed the decision of an administrative law judge that awarded the appellant, Debra Moore, temporary total disability benefits in connection with a gradual-onset injury to her right arm. The Commission found that appellant failed to prove that her injury was the major cause of her disability. The Commission also found that, even if appellant had proven the major-cause element, appellant faded to prove that her injury was caused by rapid repetitive motion. On appeal, appellant maintains that substantial evidence does not support the Commission’s finding that her injury was not caused by rapid repetitive motion. We affirm.
Appellant worked for the appellee, Mueller Industries, as a bundle operator. Her job involved moving bundles of copper pipes through a large machine. She operated a panel console on the machine, attached stickers to individual copper pipes, pushed groups of pipes flush to feed them into the machine, and pulled pipes down a conveyor belt to feed them into the machine. These duties required her to walk from one end of the machine to the other at various intervals.
Appellant suffered a compensable injury when she fell and injured her left arm on July 27, 2000. The injury to her left arm is not at issue in this appeal. Appellant was off work completely following this injury through September 2000. She was released to light duty on April 9, 2001. Appellant was released to regular duty on September 11, 2001. On that date, appellant reported a right-arm injury to appellee, and she filled out a claim for workers’ compensation benefits.
Due to her right-arm injury, appellant was taken off work on September 28, 2001. Appellant resumed full-duty work on April 15, 2002. After appellant was taken off work for her right arm injury, she received treatment for both her right and left arms, including surgery on her left arm on April 22, 2002, and November 22, 2002.
Appellant maintains that while her left arm recovered from a compensable injury, she suffered overuse syndrome in her right arm by engaging in rapid repetitive motions at work. Appellant argues that her right-arm injury is a new gradual-onset injury. In order to prevail in her claim for workers’ compensation benefits, appellant was required to prove that she suffered a compensable injury. A compensable injury means:
An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:
(a) Caused by rapid repetitive motion.
Ark. Code Ann. § 11-9-102(4)(A)(ii)(a) (Supp. 1999). In addition, subsection (E)(ii) states that the burden of proof shall be by a preponderance of the evidence, and the resultant condition is com-pensable only if the alleged compensable injury is the major cause of the disability or need for treatment. Ark. Code Ann. § 11 — 9— 102(4)(E)(ii).
Here, the Commission found that appellant failed to prove that her right arm injury was the major cause of her disability or need for treatment. As a result, the Commission determined that appellant failed to establish a gradual-onset injury. As a separate basis for denying appellant benefits, the Commission found that appellant failed to prove that her injury was caused by rapid repetitive motion. On appeal, appellant only challenges the Commission’s finding that she failed to prove that rapid repetitive motion caused her injury.
We recognize that we must affirm this case without reaching the merits of appellant’s point on appeal. The Commission denied appellant benefits on two bases, failure to prove the major-cause requirement and failure to prove that rapid repetitive motion caused her injury. In other words, the Commission offered two independent and alternative grounds to support the denial of benefits. On appeal, appellant only challenges the Commission’s second reason. Appellant does not contest that substantial evidence supports the Commission’s finding that her injury was not the major cause of her disability. Thus even if appellant’s argument had merit, we would still not reverse in light of appellant’s failure to attack the independent bases that justify the denial of benefits. Cf. Pugh v. State, 351 Ark. 5, 89 S.W.2d 909 (2002). When two alternative reasons are given for a decision and an appellant attacks only one, we must affirm. See Pearrow v. Feagin, 300 Ark. 274, 778 S.W.2d 941 (1989).
The issue that appellant raises on appeal is moot because any decision at the appellate level would afford her no relief. Id. As a general rule, the appellate courts of this state will not review issues that are moot. Cooper Tire & Rubber Co. v. Angell, 75 Ark. App. 325, 58 S.W.3d 396 (2001). To do so would be to render advisory opinions, which we will not do. Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001). Generally, a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. Id. As appellant failed to attack the Commission’s decision regarding her failure to establish the major cause of her injury, we must affirm.
Affirmed.
Stroud, C.J., and Pittman, J., agree. | [
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Andree Layton Roaf, Judge.
Appellant, Robert Cook, appeals from the Workers’ Compensation Commission’s order denying his claim for benefits based on a finding that he was not injured while performing employment services. We affirm.
Cook suffered an electrical shock as he entered a Dallas, Texas, motel bathroom. The bathroom had a leaking fight fixture, and Cook stepped in a puddle of water while turning on the fight. Cook, an overnight bid driver, drove a fixed route for ABF from Little Rock, Arkansas to Dallas, Texas, dropping off and picking up freight at various VIA points. Cook would leave Little Rock at 6:00 p.m. and arrive in Dallas at approximately 1:00 or 1:30 a.m. After arriving in Dallas, he would continue to the dispatch office where he would gather his personal belongings, record the time in his logbook, and sign in. Because the Department of Transportation mandates that drivers take an eight-hour rest break, Cook was not permitted to return to Little Rock until the next day. Pursuant to DOT regulations, ABF required its drivers to take an eight-hour rest break and provided them with hotel rooms at the Days Inn Motel in Irving, Texas. Drivers were not on the clock during their rest breaks and were not being paid. However, they were expected to be “on call” at the motel. ABF made all of the arrangements and paid for the rooms. ABF also arranged transportation from the dispatch office to the hotel. If the hotel shuttle had not arrived in thirty minutes to pick up a driver, the driver punched back in.
Upon arriving at the hotel, the drivers would sign in, indicating their name and their company. ABF drivers would then wait to be called back to work. Because of his seniority, Cook had a regular route and generally did not have to wait to be called back to work. Occasionally, ABF would call him in thirty minutes before the end of his rest period. When this happened, Cook would be transported back to the dispatch office, prepare his truck for the drive back to Little Rock, and when his eight-hour rest period ended, he would clock in and begin his trip. ABF did not prohibit the drivers from leaving the hotel during their eight-hour rest period nor were they required to stay there. They were free to do as they pleased. ABF would contact the hotel and arrange for the hotel van to transport drivers back to the dispatch office. If ABF had not contacted a driver after twelve hours, then the driver would automatically go back on the clock.
On June 28, 2002, at 7:30 a.m., Cook received his scheduled wake-up call from the hotel front desk. He got up and went to the bathroom. His injury occurred as he stepped into the bathroom and reached for the fight switch. Cook stepped in a puddle of water as he reached for the light switch and suffered an electric shock. He was transported to the emergency room.
The ALJ found that Cook’s injury was compensable, but the Commission reversed, finding that Cook was not performing employment services at the time of his injury. Cook brings this appeal.
When reviewing a decision of the Workers’ Compensation Commission, the Court of Appeals views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission. Sapp v. Phelps Trucking, Inc., 64 Ark. App. 221, 984 S.W.2d 817 (1998). This court must affirm the decision of the Commission if it is supported by substantial evidence. Id. Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion of the Commission. General Electric Railcar Repair Servs. v. Hardin, 62 Ark. App. 120, 969 S.W.2d 667 (1998). The issue on appeal 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, the appellate court must affirm its decision. Minnesota Mining & Manuf. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).
Act 796 of 1993 defines a compensable injury as “[a]n accidental injury . . . arising out of and in the course of employment. . . .” Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2002). A compensable injury 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) (Repl. 2002) (emphasis added). Act 796 does not define the phrase “in the course of employment” or the term “employment services.” Pifer v. Single Source Transp., 347 Ark. 851, 856, 69 S.W.3d 1, 3 (2002) (citing Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997)). Therefore, the supreme court has interpreted the term “employment services” as performance of something that is generally required by an employer. Pifer, supra. Our courts use the same test to determine whether an employee is performing “employment services” as they do when determining whether an employee is acting within “the course of employment.” Pifer, 347 Ark. at 857, 69 S.W.3d at 4. “The test is whether the injury occurred ‘within the time and space boundaries of the employment, when the employee [was] carrying out the employer’s interest directly or indirectly.’ ” Id.
In Pifer, supra, the supreme court noted that the activity of seeking toilet facilities, although personal in nature, has been generally recognized as a necessity such that accidents occurring while the employee is On the way to or from toilet facilities or engaged in relieving herself arise within the course of employment. Employers provide bathrooms because work interruptions would occur if the employees were forced to leave the premises to find a public restroom. The employee in Pifer, supra, was injured while returning to work from an employer-provided restroom. The court held that Pifer’s restroom break was a necessary function and directly or indirectly advanced his employer’s interest. The record showed that Pifer’s conduct was permitted, if not authorized, and that the employer provided the restroom. The court concluded that Pifer’s injury was compensable because it occurred while he was performing employment services. See also Collins v. Excel Specialty Prods, 347 Ark. 811, 69 S.W.3d 14 (2000) (holding that the employee was performing employment services when she was injured after returning from a restroom break in the employer-provided restroom).
However, in Kinnebrew v. Little John’s Truck, Inc., 66 Ark. App. 90, 989 S.W.2d 541 (1999), this court affirmed the Commission’s decision that a shower is not inherently necessary for the performance of the job a trucker was hired to do. In Kinnebrew, supra, the appellant, a truck driver, had stopped over at a rest stop for his eight-hour rest. While at the truck stop, the appellant cleaned his truck, washed laundry, and took a number for the shower facility. When a shower became available, he entered the stall, slipped and fell onto a slippery substance. The court held that the appellant was not performing employment services when he was injured while taking a shower while off duty. The court stated that showering is not inherently necessary for the job he was hired to do, and that the performance of such personal tasks, even while on the employer’s premises, was not performing employment services under Act 796 of 1993.
In this instance, there was no evidence that Cook’s entry into the bathroom was for any reason other than to attend to his own personal needs. While the supreme court held in Pifer that the use of “toilet” facilities while at work is a necessity and that an employee who is injured while using the toilet during working hours is performing employment services, the case before us is readily distinguishable from Pifer, supra. Here, Cook was “off the clock” and taking a mandated eight-hour overnight rest break when the accident occurred. There is no suggestion in the record that his planned use of the bathroom upon arising at 7:30 a.m. in the morning in question was in any respect different from his routine morning preparations, whether he was on the road or at home. We thus conclude that the facts of this case are most analogous to Kinnnebrew, supra, and that the performance of routine personal grooming and related tasks upon arising in the morning, even under the circumstances present in this case, is not the performance of employment services for the purposes of compens-ability.
Affirmed.
Bird and Crabtree, JJ., agree. | [
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John B. Robbins, Judge.
On April 15,1992, appellant was convicted by a jury of robbery and misdemeanor theft of property. He was sentenced as a habitual offender to twelve years in the Arkansas Department of Correction. Appellant contends on appeal that the trial court erred in denying his motion to proceed pro se and represent himself without the assistance of counsel. We find no error and affirm.
At a pretrial hearing held on January 14, 1992, appellant requested that the court relieve his defense counsel from representing him, citing ineffective assistance of counsel, and requested that a different and specific public defender be appointed. When questioned by the court about his claims of ineffective assistance of counsel, the appellant could not cite any specific problem that his attorney was not handling properly. The court found no reason to justify granting appellant’s request.
Prior to the commencement of the trial on April 15, 1992, appellant made an oral motion to represent himself, again contending ineffective assistance of counsel. Here, appellant was complaining that his defense counsel failed to subpoena three reverends as character witnesses as part of his defense. Appellant’s counsel responded to the comments by stating:
Character witnesses I did not subpoena. We had character witnesses here last time. I spoke with those character witnesses. Mr. Simpson was also present when I spoke to those character witnesses last time. In my opinion, from speaking with those three gentlemen at the last trial, they would do more damage than they would help. They also told me they did not want to testify unless they were actually forced to. I felt that it would do more damage than it would any help. They had been here last time. I think you remember when we were back in chambers the three reverends I had with me. You remember the last trial?
THE COURT:
Uh huh.
MR. BROWN:
Those would be the same character witnesses. And that is the strategy on my part and I do not want them here, your Honor.
* * * *
THE DEFENDANT:
But I’m trying to show you his ineffective assistance of counsel here this morning.
THE COURT:
He’s pretty effective. He won everything.
Appellant then went on to make his motion, and the following transpired:
THE DEFENDANT:
Well, Mr. Lofton, then I’m going to ask this Court if they would honor me and I would represent myself under pro se matter and ask that this jury trial, be put off until another time until I prepare myself and bring me back in about a month, please, sir.
THE COURT:
Are you ready for trial, Bill?
MR. BROWN:
I’m ready for trial.
* * * *
THE COURT:
The Court views this as a pure and simple motion for a continuance. There’s absolutely no merit to it. He’s got a good lawyer, good counsel, successful lawyer in the past. An allegation of ineffective assistance of counsel, there’s no merit to it. I haven’t heard anything. If I do hear it - And I won’t, Bill. You’re competent. If I do hear it, we’ll stop and talk about it during trial. But it won’t happen.
The Court does remember that the three minister [sic] that were here last time specifically did not want to testify about his character and indicated to the Court that they would not be helpful to his character. And they were released and he won. He won that case for him. And I respect your judgment that they wouldn’t be helpful to him this time.
So, motion for a continuance is denied, which is what it amounts to ... .
If he wanted to go to trial today and represent himself, fine. But, if he doesn’t know enough about it to go to trial today, then he obviously doesn’t know whether there’s been ineffective assistance of counsel or anything else.
So, we’ll go to trial today.
When asked for a final time whether he wished to proceed pro se, the following transpired:
THE COURT:
Do you want to represent yourself this morning?
THE DEFENDANT:
I’m not ready this morning because, your Honor, the reason I’m not ready this morning is because I don’t have the people that I would like to subpoena here present here this morning, your Honor.
* * * *
THE COURT:
You’re just looking for a continuance any way, shape, form or fashion.
THE DEFENDANT:
I would rather go to trial, your Honor.
Article 2, § 10, of the Arkansas Constitution gives a defendant in a criminal prosecution the right to represent himself. As indicated in Faretta v. California, 422 U.S. 806 (1975), which is the prevailing case on the right of a defendant to represent himself, twenty-six other states have constitutional provisions granting an accused the right to be heard or to defend himself. 422 U.S. at 813. In Faretta, the United States Supreme Court declared that a defendant has the right to conduct his own defense in a criminal case under the Sixth Amendment to the United States Constitution and it is applicable to the states by the Fourteenth Amendment. The State cannot force a defendant to accept counsel against his will or deny his request to conduct his own defense. Barnes v. State, 15 Ark. App. 153, 691 S.W.2d 178 (1985).
Here, on the morning of the trial, the appellant asked the court if he could represent himself, but coupled that request with a motion for a continuance in order to prepare his case and subpoena witnesses not present for trial. The court denied his request for a continuance and stated “ [i] f he wanted to go to trial today and represent himself, fine.” The court then asked the appellant “Do you want to represent yourself this morning?” The appellant replied “I’m not ready this morning . . . .” Consequently, we find that appellant waived his right to conduct his own defense, unless the court erred in denying his request for a continuance.
In a similar case, Burns v. State, 300 Ark. 469, 780 S.W.2d 23 (1989), the defendant asked the court to appoint him another attorney, and the trial court refused finding his counsel competent and that no good cause existed for the defendant not to proceed with his appointed counsel. The defendant in that case then asked the court for a continuance to prepare his own case and represent himself. The supreme court in Burns held that where the record reveals appellant’s appointed counsel was acting diligently and competently in defending the appellant, the trial court did not err in denying appellant a continuance so that he could prepare to represent himself.
Here, as in Burns, appellant’s counsel was found competent by the trial court and had prevailed for appellant in a previous case without calling appellant’s character witnesses. Also, as in Burns, appellant asked for a continuance to prepare his own defense when the trial court refused to find his counsel ineffective. The trial court did not err in denying appellant a continuance so that he could prepare to represent himself. See Burns v. State, id.
In a denial of continuance, it is the appellant’s burden to show that there was an abuse of discretion by the trial court. Lukack v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). The factors which the trial court considers in exercising its discretion over continuance motions are set out in Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990):
(1) the diligence of the movant, (2) the probable effect of the testimony at trial, (3) the likelihood of procuring the attendance of the witness in the event of a postponement, and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true.
303 Ark. at 384-385, 797 S.W.2d at 438.
State law requires that an affidavit be provided to justify any continuance caused by a missing witness. Ark. Code Ann. § 16-63-402(a) (1987); Brooks v. State, 308 Ark. 380, 797 S.W.2d 435 (1990). Appellant did not file any affidavit as such, and as pointed out by the trial judge and defense counsel, appellant won another case when counsel refused to call the witnesses appellant now complains were essential to his defense. We find no prejudice or abuse of discretion by the trial court in denying appellant’s motion for a continuance.
Affirmed.
Pittman and Mayfield, JJ., agree. | [
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Josephine Linker Hart, Judge.
This is an appeal from the J Sebastian County Circuit Court reversing the decision of appellant Arkansas State Board of Nursing (Board) in a disciplinary action. The Board argues that the trial court erred in reversing its decision on judicial review. We affirm the trial court and reverse the Board.
Appellee Jody Morrison was licensed as an advanced practice nurse (APN) and registered nurse in Arkansas after she was first licensed as an APN in Kansas in 1994. An APN is a nurse who has gained additional knowledge and skills through successful completion of an organized program of nursing education that certifies nurses for advanced practice roles as advanced nurse practitioners and requires national certification. See Ark. Code Ann. § 17-87-102(3) (Repl. 2002). An APN may be granted authority to prescribe drugs and medications under certain conditions. See Ark. Code Ann. § 17-87-310 (Repl. 2002). In order to obtain prescriptive authority, an APN must have a collaborative practice agreement (CPA or agreement) that outlines the procedures for consultation with a physician in the joint management of the needs of the APN’s patients. See Ark. Code Ann. §§ 17-87-102(2), 17-87-310(a)(2) (Repl. 2002).
On January 23, 2003, the Board sent appellee notice of a hearing to determine whether she had violated Ark. Code Ann. § 17-87-309(a)(6) (Repl. 2002) by engaging in “unprofessional conduct.” The Board’s regulations defines the term “unprofessional conduct” as that conduct
which, in the opinion of the Board, is likely to deceive, defraud, or injure patients or the public, means any act, practice, or omission that fails to conform to the accepted standards of the nursing profession and which results from conscious disregard for the health and welfare of the public and of the patient under the nurse’s care.
Arkansas State Board of Nursing, Rules and Regulations, Ch. 7, §XV(a)(6) (hereafter “Regulations”). The factual basis to support the Board’s charge was an allegation that appellee had admitted writing prescriptions without authority from May 16, 2002, until November 2002.
At a hearing before the Board, Georgia Lewis, the Board’s director of advanced nursing practice, described the contents of her investigative file. She testified that appellee was licensed as a registered nurse in Arkansas by endorsement from Kansas on February 12, 2002, and that her Arkansas APN license by application was issued on February 15, 2002. She noted that appellee held licenses in Missouri and Maine, in addition to Kansas, with no disciplinary action noted. The Board received appellee’s CPA with her prospective employer, Neurosurgical Associates, on February 7, 2002. On February 15, the Board received a letter from Neurosurgical Associates, stating that appellee would not be employed by them and that the CPA was null and void. Lewis testified that, after receiving the letter from Neurosurgical Associates, she communicated several times with appellee who, according to Lewis, said that she probably would not pursue getting a certificate of prescriptive authority. Lewis stated that, on November 19, 2002, her assistant, Pam Beggs, called appellee to remind her that her application would soon expire. She stated that the file showed that appellee told Beggs that she had been prescribing medicine in Arkansas.
Lewis testified that, following appellee’s disclosure of her writing prescriptions, she wrote a letter to appellee informing her that she did not have prescriptive authority and directing appellee to immediately cease prescribing medications. Lewis stated that the Board received a letter in which appellee explained that she had been prescribing an occasional Xanax and cholesterol medications, together with some other drugs, and that, to her knowledge, she had never prescribed a Schedule II drug. In the letter, appellee also stated that her Drug Enforcement Administration (DEA) registration was up to date. In addition, appellee also wrote that, to the best of her knowledge, all of her paper work had been submitted to the Board. The Board received a CPA on November 21, 2002, that, according to Lewis, did not comply with the Board’s regulations concerning the contents of such agreements.
On December 4, 2002, the Board received a letter from appellee’s employer, Dr. Kurt Mehl, of Cooper Clinic, stating appellee’s employment dates and the types of medication that she had been prescribing. Lewis testified that the letter stated “[u]n-fortunately, [appellee] was unaware that prescriptive authority number was needed to be written on her prescriptions. She has clearly written her DEA number on the prescriptions that she has written from our office.” Lewis further stated that Mehl’s letter indicated that it was the understanding of everyone at Cooper Clinic, including appellee, that all necessary paperwork had been completed and properly sent to the Board.
Lewis acknowledged that appellee had submitted a new CPA that complied with the Board’s rules. Lewis further testified that the Board had also received a letter from Steve Brown, the director of human resources for Cooper Clinic, stating that the original CPA between appellee and Dr. Mehl dated July 12, 2002, had been sent at an earlier date. She also testified that, during an earlier conference call, appellee informed the Board’s attorney and herself that a CPA had not been sent. Lewis stated that she contacted the DEA in November and was informed that appellee’s relocation registration with DEA had occurred in September 2002. On cross-examination, Lewis admitted that she did not recall making notes during the conference call.
Lewis opined that prescriptive authority could not be given at the time appellee’s APN license was issued because there was no CPA due to Neurosurgical Associates’ canceling the agreement. She stated that appellee never contacted the Board to see if it had received her CPA or if everything was in order. She also stated that appellee never asked about the scope of her prescriptive authority.
Appellee testified that she was a nurse practitioner at Cooper Clinic and that she has prescriptive authority. Appellee stated that she is supervised by three physicians on the cardiology floor at the clinic and that the physicians periodically review by random selection files on patients with whom she has worked. She stated that there has never been a time while practicing at Cooper Clinic when she did not have a physician available to her. Appellee stated that, in preparation of her moving to Arkansas, she became national-board certified by taking a certification test and passing in December 2001. After she passed the test, she began the process of applying for a license in Arkansas. She stated that Neurosurgical Associates was somewhat concerned with the language of the proposed CPA, but the agreement was sent to the Board on January 28, 2002. She stated that, prior to beginning work with Neurosurgical Associates, there was some misunderstanding as to whether her license in Kansas had been inactivated because of a disciplinary action. Appellee testified that it was not. She stated that on February 13, 2002, Neurosurgical Associates withdrew its offer of employment.
After the offer was withdrawn, appellee continued to look for employment in Arkansas and contacted Cooper Clinic. Appel-lee testified that she had called Mrs. Lewis to inquire about the status of her license. During appellee’s interview with Cooper Clinic, she was asked about the status of her Arkansas license and she informed them that she would need a CPA. According to her, the clinic administrative personnel indicated that they were familiar with the licensing process and would assist in the preparation of the agreement. Appellee stated that her change of address form with the DEA was effective July 17, 2002, but that it takes approximately six to eight weeks to receive paperwork acknowledging the change.
Appellee stated that she signed the first CPA with Cooper Clinic on May 15, 2002, the day before she commenced her employment. She also stated that she never functioned independently at the clinic but that there were times when she met with patients without the presence of a doctor. She described her first couple of months as becoming familiar with a new area of practice for her and said she spent her time reading materials that the doctors asked her to learn.
Appellee stated that she first realized that there was a problem with her prescriptive authority on November 20, 2002, when she received a phone call from Pam Beggs. She stated that she ceased prescribing medications when she was told to do so by Georgia Lewis and that she had not prescribed any medication since. She also stated that she was not aware of the separate requirements for prescriptive authority because, in Kansas, prescriptive authority is part of advanced practice licensure. Appellee stated that Kansas does require CPAs but that they are not required to be filed with the Kansas board. She stated that she believed that she was in compliance because Cooper Clinic had forwarded a CPA to the Board but that she also now realized that the original agreement she executed with the clinic was never filed with the Board.
Appellee denied Lewis’s statement that she would not pursue a certificate of prescriptive authority. Appellee also stated that Lewis informed her that all she needed to do was send in a CPA from her new employer. She admitted that she did not contact Mrs. Lewis until being contacted by Pam Beggs. She stated that she did not know the exact date she starting prescribing medications but believed that it was the end of July or early August, when Cooper Clinic moved into a new building. She stated that she did not realize it was a separate application process because she filled out a packet of information and sent it to the Board, together with several checks. She admitted that she did not send a properly completed CPA with Cooper Clinic until November or December 2002. Appellee admitted that she did, in fact, write prescriptions without authority to do so but that she did not know that she lacked authority at the time she was writing the prescriptions.
Dr. Riley Foreman, a cardiologist at Cooper Clinic, testified as to appellee’s competence and professionalism and stated that he had not observed any conduct on appellee’s part that negatively impacted on patient care. Dr. Timothy Waack, a cardiologist and the medical director at Cooper Clinic, testified that appellee was an excellent practitioner and that appellee serves the public well. He also stated that part of the clinic’s administrative function is to assist the practitioner in licensing and credentialing. He did admit that it is ultimately the professional’s responsibility to obtain the necessary licensure.
Steve Brown, Cooper Clinic’s director of human resources, testified that appellee advised the clinic of her need for a CPA, that the clinic was familiar with such agreements, that appellee signed an agreement before beginning work at the clinic, and that he advised appellee that he would obtain the necessary physicians’ signatures and file the agreement with the Board. He stated that the agreement was not filed with the Board but that he believed that it had been. He stated that the original agreement had been misplaced in a hanging folder containing appellee’s file. He admitted that he made a mistake by not sending the original agreement to the Board.
The Board found that appellee admitted that she had written prescriptions between May 16, 2002, and November 2002 and concluded that appellee was guilty of “unprofessional conduct.” The Board imposed a $1,000 civil penalty on appellee, placed appellee’s license on six months’ probation, and ordered appellee to complete a Legal and Ethical Issues course. The Board imposed several conditions of probation, including that appellee present each future employer with a copy of the Board’s order; that appellee and her employer must submit quarterly reports concerning appellee’s safe practice of nursing; and that appellee not practice nursing outside the State of Arkansas without the written permission of the Board and of the appropriate board in the state in which appellee seeks to practice.
Appellee then sought judicial review in circuit court, alleging that the Board’s finding that she was guilty of “unprofessional conduct”, was not supported by substantial evidence because the Board failed to produce evidence as to each element necessary to support such a finding of “unprofessional conduct.” The circuit court reversed the Board, finding that the Board’s decision was not supported by substantial evidence because there was no proof as to the accepted standards of the nursing profession or that appellee’s failure to obtain prescriptive authority was a result of her “conscious disregard for the health and welfare of the public and of the patient under the nurse’s care.” This appeal followed.
For reversal, the Board specifically argues that there was substantial evidence to support its decision; that the decision was within the scope of its statutory authority; and that the decision was not arbitrary, capricious, or an abuse of its discretion.
Our review is directed not toward the circuit court, but toward the decision of the agency. Arkansas State Police Comm’n v. Smith, 338 Ark. 354, 994 S.W.2d 456 (1999). It is often stated that administrative agencies are better equipped by specialization than courts to determine and analyze legal issues affecting their agencies. McQuay v. Arkansas State Bd. of Architects, 337 Ark. 339, 989 S.W.2d 499 (1999); Social Work Licensing Bd. v. Moncebaiz, 332 Ark. 67, 962 S.W.2d 797 (1998). Administrative agencies’ decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. McQuay, supra; Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992).
In determining whether a decision is supported by substantial evidence, we review the record to ascertain if the decision is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Arkansas Bd. of Exam’rs v. Carlson, 334 Ark. 614, 976 S.W.2d 934 (1998). In doing so, we give the evidence its strongest probative force in favor of the administrative agency. Id. The question is not whether the testimony would have supported a contrary finding, but whether it supports the finding that was made. Id.
The Board argues that there was substantial evidence to support the finding that appellee wrote prescriptions without proper authority and, therefore, it was error for the trial court to reverse its decision imposing discipline on appellee. Noting that appellee admitted to writing prescriptions without authority, the Board argues that this admission is sufficient evidence to support its decision. In our view, the Board’s analysis does not go far enough. Appellee was not simply charged with writing prescriptions without proper authority; she was charged with “unprofessional conduct.” Because of the language used to define “unprofessional conduct,” the Board must prove both an act or omission on appellee’s part that fell below the standard of care of the nursing profession and that such act or omission was the result of a “conscious disregard for the health and welfare of the public and of the patient under the nurse’s care. . . .” Regulations, Ch. 7, § XV(a)(6). Appellee’s admission was just the first prong necessary to support the Board’s decision. The second prong is that there must be evidence to show that appellee’s admitted actions fell below the standard of care and “which results from conscious disregard for the health and welfare of the public and of the patient under the nurse’s care. . . .” There is no evidence in this record showing that appellee’s actions were the result of a “conscious disregard of the health and safety of the public.”
Arkansas case law contains many cases requiring expert testimony on the standard of care in professional discipline cases where the applicable rules or regulations define professional misconduct as falling below certain standards. In Hake v. Arkansas State Medical Board, 237 Ark. 506, 374 S.W.2d 173 (1964), the supreme court first addressed the issue of whether expert testimony is required to establish the standard of care against which a professional is judged by a professional licensing board. There, Dr. Hake appealed an order by the Arkansas State Medical Board revoking his license to practice medicine. Dr. Hake argued that the board’s decision was not supported by any competent evidence because “the findings and opinion of the board [were] based on testimony or conversation or other matters which arose or were presented at [an] informal and unreported hearing.” 237 Ark. at 510, 374 S.W.2d at 176. The court agreed and reversed the revocation on the grounds that “there [was] a virtual absence of evidence in the record to sustain the board’s findings, as well as no expert testimony to provide a standard for the board’s medical opinions.” Id.
Hollabaugh v. Arkansas State Medical Board, 43 Ark. App. 83, 861 S.W.2d 317 (1993), involved discipline of a physician. The Arkansas State Medical Board placed Dr. Hollabaugh on probation and directed her to refrain from writing certain narcotics prescriptions, and the circuit court affirmed this decision. This court reversed the circuit court, determining that there was not substantial evidence to support the board’s decision, stating:
There is a virtual absence of evidence in the record to sustain the board’s findings, as well as no expert testimony to provide a standard for the board’s medical opinions. The valuable property rights here involved cannot be taken from appellant upon such questionable compliance with due process.
Hollabaugh, 43 Ark. App. at 87, 861 S.W.2d at 319 (citingHake). This court then held that the record must contain expert testimony establishing the standard of care to which Dr. Hollabaugh is to be held and whether she violated that standard and that, without such evidence, this court could not affirm the decision of the board.
The Board attempts to distinguish Hollabaugh and Hake, arguing that they involve doctors who admitted to over-prescribing medications, while the present case is a licensing case. We do not believe this to be a valid distinction. All three cases involve disciplinary actions. Hake involved the revocation of a medical license, while Hollabaugh and the present case involve placing the professional on probation. The present case is not one where the Board is denying appellee a license in the first instance because Georgia Lewis admitted that appellee’s R.N license was issued on February 12, 2002, and her APN license was issued on February 15, 2002. The present case involves discipline to one already licensed in the profession.
In Livingston v. Arkansas State Medical Board, 288 Ark. 1, 701 S.W.2d 361 (1986), the supreme court affirmed the medical board’s finding that Dr. Livingston had committed “grossly negligent or ignorant malpractice” warranting the suspension of her license to practice medicine for thirty days. The court noted that “malpractice” is defined by the medical board’s regulations to include “any professional misconduct, unreasonable lack of skill or fidelity in professional duties, evil practice, or illegal or immoral conduct in the practice of medicine and surgery.” 288 Ark. at 5, 701 S.W.2d at 363. In Livingston, there was expert testimony that Dr. Livingston’s actions had breached the ordinary standard of care in the community.
These cases, together with such cases as Arkansas Department of Human Services v. Haen, 81 Ark. App. 171, 100 S.W.3d 740 (2003), show that an administrative agency must make findings on the issue of intent when the applicable statute or regulation so requires. In the present case, the Board argues that appellee conceded that she was guilty of an act or omission falling below the standard of care. However, at the time, appellee’s counsel was making a motion to dismiss in the nature of a directed-verdict motion, arguing that the Board had not met its burden of proving every element of the charge of “unprofessional conduct” because there was no proof of the standard of care or proof of intent and that both elements were necessary in order to prove the charge. In this context, we believe that appellee was conceding only the act or omission, not that it fell below the standard of care or that it was done with the requisite intent. Even if this statement could be characterized as an admission that her act or omission violated the standard of care, there still must be evidence regarding whether appellee’s action was the “result of a conscious disregard of the health and safety of the public or the patient. . . .” There is no substantial evidence regarding the standard of care or regarding appellee’s intent. As such, the Board’s decision was made in excess of its statutory authority, and the circuit court was correct to reverse the Board.
Affirmed.
Bird and Baker, JJ., agree.
That section then goes on to list nineteen non-exhaustive examples of “unprofessional conduct.”
In Finch v. Neal, 316 Ark. 530, 873 S.W.2d 519 (1994), an attorney disciplinary proceeding, the supreme court clarified its holding in Hake. The attorney, citing Hake, argued that the reprimand issued to him should be reversed because there was no expert testimony regarding the standard against which to measure his conduct. The supreme court explained that the board’s decision was overturned in Hake because the board had not complied with the statutory requirement that all evidence considered by the board be included in the official record of the proceedings. The board in Hake had relied on conversations and evidence from an earlier, unofficial, unreported meeting with the doctor. | [
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Andree Layton Roaf, Judge.
Shanquita Taylor was adjudicated delinquent in juvenile court for check forgery in violation of Ark. Code Ann. § 5-37-201 (Repl. 1997). She was ordered to serve a one-year probation, complete forty hours of community service or pay a fine of $500, and pay restitution in the amount of$245.61 and court costs. On appeal, she argues that the trial court abused its discretion by admitting hearsay evidence that was used to identify her as the perpetrator of the crime. We affirm.
Shanquita and Trinett Miles are classmates. One day at school, Trinett asked Shanquita to hold her purse. Trinett had a checkbook in her purse. One week later, Trinett received a notice from her bank regarding insufficient funds in her bank account. She later discovered that some checks had been torn from her checkbook and that two checks had been forged on her account at a Wal-Mart store.
Matthew Hawkins testified that he was employed at the Wal-Mart store and accepted one of the forged checks from Shanquita. He testified that he recalled taking the check from Shanquita and identified her in the courtroom. When asked how he remembered accepting the check from Shanquita, Hawkins testified that he had been written up for failing to follow company policy regarding accepting checks; that he learned that the person who wrote the check was not the owner of the account; that he recognized Shanquita as someone who went to school with his wife; and that in order to identify the person who wrote the check, he looked for Shanquita’s picture in his wife’s yearbook. Counsel for Shanquita objected to Hawkins’s testimony about the yearbook, arguing that it was inadmissible hearsay. The objection was overruled. Hawkins said that, after looking through his wife’s yearbook, he was able to place Shanquita’s name with her face.
Shanquita testified on her own behalf. She denied taking or forging Trinett’s checks. Following the presentation of all of the evidence, the juvenile court found Shanquita guilty, and this appeal followed.
Shanquita argues that the trial court abused its discretion by permitting Hawkins’s testimony about his identification of her because his reference to her picture in the yearbook is hearsay. Shanquita also challenges the credibility of Hawkins’s testimony because the State failed to introduce the yearbook into evidence. As a result, she argues, the trial court was forced to accept as true Hawkins’s testimony that Shanquita and the person in the yearbook were the same.
Admissibility of evidence is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Martin v. State, 346 Ark. 198, 57 S.W.3d 136 (2001). Our appellate courts will not reverse a trial court’s ruling on a hearsay question unless the appellant can demonstrate an abuse of discretion. Id. “’Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ark. R. Evid. 801(c) (2004). Hearsay testimony is generally inadmissible. Ark. R. Evid. 802 (2004). The hearsay rule is not violated when a witness testifies about a physical object, which was not presented in court. Johnson v. State, 289 Ark. 589, 715 S.W.2d 411 (1986); Redman v. State, 265 Ark. 774, 580 S.W.2d 945 (1979). Also, a trial court does not abuse its discretion by admitting out-of-court statements that are not offered for the truth of the matter asserted. Buchanan v. State, 315 Ark. 227, 866 S.W.2d 395 (1993). Moreover, statements that are not offered for the truth of the matter asserted, but are merely offered to explain the witness’s conduct, are not hearsay. Brock v. State, 70 Ark. App. 107, 14 S.W.3d 908 (2000).
In this case, Hawkins’s testimony did not meet the definition of hearsay. First, Hawkins’s reliance on the picture in the yearbook is not hearsay. Notwithstanding the State’s failure to introduce the yearbook into evidence, Hawkins was free to testify about what he learned after viewing Shanquita’s picture in the yearbook. Because the yearbook is a physical object and not a statement, it is not subject to the hearsay rule. More importantly, Hawkins’s testimony was not offered for the truth of the matter asserted; rather, his testimony explained why he consulted the yearbook in the first place.
Accordingly, because Hawkins’s testimony did not meet the definition of hearsay, the trial court did not abuse its discretion by overruling Shanquita’s hearsay objection.
Affirmed.
Griffen and Neal, JJ., agree. | [
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John E. Jennings, Judge.
Appellant, the Associated Press, a nonprofit membership corporation organized under the laws of the State of New York, sued the appellees for breach of contract to provide news services. The trial judge awarded AP judgment for $848.43, the amount that appellees were in arrears on the contract at the time service was terminated, but denied AP’s claim for $18,280.28 for loss of future profits, finding that the contract was unconscionable in this regard. The sole issue on appeal is whether the court erred in holding the contract unconscionable. We find no reversible error and affirm.
Wayne Brewies, an El Dorado resident, began operating radio station KKOL, under the name “Southern Arkansas Radio Company,” in December of 1984 in Hampton, Arkansas. The station was physically located in a small house trailer. Brewies had previously worked for other radio stations, primarily as an announcer, but had no previous experience in operating a radio station. Although it appears that Brewies and his wife wanted to incorporate, it is undisputed that Southern Arkansas Radio Company is a partnership.
Hampton has a population of approximately 2,000. According to the testimony, the station was quite limited in power, having 100% coverage out to approximately twenty miles.
When KKOL began operations it had a contract with United Press International to obtain news. Brewies testified that during 1985, UPI ceased operations for Arkansas news and information. When this happened, Brewies called Mr. John Reeder of Little Rock. Reeder was an AP sales representative for Arkansas and had stopped by to talk with Brewies in Hampton while the station was still obtaining news services from UPI.
On or about June 11, 1985, AP agreed to provide news service to KKOL and installed the necessary equipment at the Hampton station.
On October 10, 1985, the parties entered into a written agreement. The. two-page printed contract provided that the agreement would be effective as of June 11,1985. It also included the following provision:
If the member fails to pay the assessment as required under this agreement or otherwise breaches the provisions hereof, including the By-Laws, AP may suspend the Service or terminate this agreement. Upon such a suspen sion or termination the Member shall be liable to AP for the total amounts which otherwise would become due to AP under this agreement, including general assessment increases, if any, accruing after the Member’s breach, during the balance of the term hereof, less the direct expenses which AP would incur in physically supplying the Service to the Member. . . .
The term of the agreement was five years. There was evidence to support the trial court’s finding that, at the time the written agreement was entered into in October, 1985, Brewies was already behind in his payments to AP. Brewies explained that this was because the station was operating at a loss. Brewies, who had a high school diploma and two and one-half years of college, testified that he did not read the agreement before signing it, although he also testified that Mr. Reeder briefly reviewed it with him beforehand.
In early December 1985, AP terminated its service to KKOL for non-payment. Thereafter, the parties entered into settlement negotiations — AP through its general counsel, Rogers and Wells of New York, and Brewies on his own behalf. When a settlement could not be reached, this suit was filed.
In support of its claim for loss of future profits AP submitted the affidavit of Roger Sturm, its assistant treasurer. The affidavit and attached calculations showed a gross loss of revenue over the four and a half year period following termination of almost $30,000.00. In computing “net loss of revenue” the appellant deducted the following weekly expenses:
Standard M-SAT charge $ 19.56
Okidata Teletype Maintenance 7.75
Okidata Teletype Amortization .55
M-SAT Amortization 7.15
Okidata Supplies 13.95
Over the four and a half year period these expenses totaled approximately $11,500.00, leaving a “net loss” of $18,280.28.
The parties agreed at trial and in this appeal that the case is governed by the Uniform Commercial Code. Ark. Code Ann. § 4-2-302 (1987) provides:
(1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.
(2) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose, and effect to aid the court in making the determination.
A determination of unconscionability, under the code or otherwise, appears to be a mixed question of law and fact. See Restatement (Second) of Contracts § 208 comment f. On appeal we will review the totality of the circumstances, see Arkansas Nat’l Life Ins. Co. v. Durbin, 3 Ark. App. 170, 623 S.W.2d 548 (1981), but will reverse the trial court’s decision only if it is clearly erroneous. Ark. R. Civ. P. 52. In Durbin we said that in determining whether a provision was unconscionable, “[t]wo important considerations are whether there is a gross inequality of bargaining power between the parties to the contract and whether the aggrieved party was made aware of and comprehended the provision in question.” We think that, under all of the facts and circumstances of the case, the trial court could find a quite significant difference in bargaining power as between the parties. There is no evidence that these kinds of news services were available in Hampton, Arkansas, from any entity other than the Associated Press. Although relevant, the fact that both parties here are merchants will not preclude a finding of uncon-scionability. See Kohlenberger, Inc. v. Tyson Foods, Inc., 256 Ark. 584, 510 S.W.2d 555 (1974); Mallor, Unconscionability in Contracts Between Merchants, 40 Sw.L.J. 1065 (1986).
We agree with the general proposition that “[i]t is not the province of the courts to scrutinize all contracts with a paternalistic attitude and summarily conclude that they are partially or totally unenforceable merely because an aggrieved party believes that the contract has subsequently proved to be unfair or less beneficial than anticipated.” Geldermann and Co., Inc. v. Lane Processing, Inc., 527 F.2d 571 (8th Cir. 1975). Nevertheless, on the facts of the case at bar, we cannot say that the trial court’s determination that the provision in question was unconscionable was clearly erroneous. The agreement is a preprinted form; the provision relating to loss of future revenue.is harsh in its operation; the contract was signed at a time when the appellee was already in default under its terms; and there appears to be a substantial disparity in the relative bargaining power of the parties.
Appellant argues that its budgets are prepared several years in advance and are computed by taking into account revenue anticipated from its various contracts. While these statements may be true, no support for them may be found within the record on appeal.
Appellant also relies on Associated Press v. Emmett, 45 F. Supp. 907 (S.D. Cal. 1942). There, a federal district court upheld, under California law, a provision in an Associated Press contract which allowed AP to recover two years worth of assessments in the event of a breach. The contention in Emmett, however, was that the contractual provision amounted to a penalty as opposed to being reasonable liquidated damages. Therefore, Emmett is not only distinguishable factually from the case at bar, but the court also proceeded under a different legal theory.
Our conclusion is that the trial court’s finding of unconscio-nability is not clearly erroneous.
Affirmed.
Cracraft, C.J., and Danielson, J., agree.
Unconscionability originated as an equitable doctrine. See 1 S. White & R. Summers Uniform Commercial Code § 4-2 (3d ed. 1988). The doctrine has been applicable in law courts in this state at least since the adoption of the Uniform Commercial Code in 1961. Act 185 of 1961, § 2-302. In the case at bar, it is doubtful at best that Ark. Code Ann. § 4-2-302 is strictly applicable, because Article 2 of the Code ordinarily applies only to transactions in goods. Ark. Code Ann. §4-2-102. Nevertheless, the Code section on unconscionability has frequently been applied by analogy in non-Code settings. See Restatement (Second) of Contracts § 208 comment a (1979). | [
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George K. Cracraft, Chief Judge.
Gary Eubanks and Associates appeals from an order dismissing its complaint brought against appellee Black and White Cab Company under the attorney’s lien statutes. We find no error and affirm.
In December 1988, Alan Franks employed appellant to represent him in a tort claim against appellee. In a written contract of employment, Franks agreed to pay appellant a contingent fee of one-third of all sums recovered from appellee by settlement or otherwise. Shortly thereafter, appellee received a letter stating that appellant represented Franks and requesting that appellee ask its insurance company to contact appellant. The letter further requested that, if appellee had no insurance, it sign an enclosed affidavit of noninsurance to “help speed up processing the case.” The letter made no mention of intent to assert a lien on the proceeds of the claim and bore the signature of neither an attorney in the firm nor the client. It did contain a stamped statement that the letter had been dictated by someone in the appellant firm “but typed and mailed in his absence.” The letter was sent by ordinary mail.
Subsequently, Franks personally settled his claim with appellee, and the entire proceeds of the settlement were delivered to Franks. Appellant then brought this action, claiming that appellee’s action had deprived appellant of its “contractual lien,” and seeking judgment against appellee for one-third of the amount paid to Franks in settlement of the claim. Both parties moved for summary judgment, asserting that no genuine issues of material fact remained to be decided. The trial court granted appellee’s motion, holding that appellant’s actions were insufficient under Ark. Code Ann. § 16-22-302 (1987) to put appellee on notice of appellant’s claim to a lien.
Arkansas Code Annotated § 16-22-302(a)(l) provided as follows:
From and after service upon the adverse party of a written notice signed by the client and by the attorney at law, solicitor, or counselor representing the client, which notice is to be served by registered mail, a return receipt being required to establish actual delivery of the notice, the attorney at law, solicitor, or counselor serving the notice upon the adversary party shall have a lien upon his client’s cause of action, claim, or counterclaim, which attaches to any settlement, verdict, report, decision, judgment, or final order in his client’s favor, and the proceeds thereof in whosoever’s hands they may come.
The intent and purpose of the statutory requirements are to assure that the adverse party knows that the attorney represents his client and to make the adverse party aware of the attorney’s intent to claim a lien on the proceeds of the claim for the amount of the attorney’s fee. Metropolitan Life Insurance Co. v. Roberts, 241 Ark. 994, 411 S.W.2d 299 (1967). The requirement that the notice be given by registered mail is intended not only to serve as proof of the adverse party’s receipt, but also to give the recipient “unmistakable warning that the attorney is insisting upon his lien and that any subsequent compromise will involve liability for the attorney’s compensation.” Whetstone v. Daniel, 217 Ark. 899, 901, 233 S.W.2d 625, 626 (1950).
We agree with appellant that strict compliance with the statute is not required and that substantial compliance will suffice. See Metropolitan Life Insurance Co. v. Roberts, supra. The extent of appellant’s reliance on Roberts, however, is misplaced. There, the only failure in compliance was that the written notice did not contain the signature of the client. There was no indication that any of the other requirements of the statute were not met. Under the circumstances of that case, the court held that the attorney had substantially complied with the statute and permitted recovery.
Here, unlike in Roberts, the letter does not contain notice of intent to assert an attorney’s lien on the proceeds of the claim, was not dispatched by registered mail, and contains the signature of neither attorney nor client. Even a liberal interpretation must be consistent with the basic intent of the statute. Whetstone v. Daniel, supra. To construe the statute as appellant suggests would simply dispense with the necessity for compliance with any of the statutory requirements. Not having given appellee the warning required by the statute, appellant must look to its client for its fee. Id.
Affirmed.
Mayfield, J., agrees. Rogers, J., concurs. | [
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Elizabeth W. Danielson, Judge.
This appeal involves the validity and effective delivery of a warranty deed signed by the grantor, H.B. Hummel, which had not been notarized or acknowledged prior to his death and was found in his safe after his death. The deed conveyed certain property to his sisters, Dott Lewis and Lois Buchanan, and reserved a life estate in the grantor. Dott Lewis died prior to the scheduled trial date below and is not a party to this appeal.
Appellee, Lois Buchanan, brought an action seeking to quiet title to the property and reformation of the property description in the deed. Appellant, Janice Simmons, individually and as admin-istratrix of the estate of H.B. Hummel, brought a counterclaim to have title to the property vested in her. The trial court found the deed was effectively delivered to the appellee and granted reformation of the deed to reflect the correct legal description of the property. We affirm.
Appellee testified that the grantor had on previous occasions discussed his intention of leaving his farm to her and their sister Dott. According to appellee, in late April of 1987, the grantor handed her a deed to the farm, saying it was “a passing of hands to make it legal.” The deed was then placed in the safe in the grantor’s home. Appellee also testified that the grantor told her the location of the combination to this safe and instructed her to record the deed if anything happened to him.
The evening of the grantor’s death, appellee located the combination to the safe and unsuccessfully tried to open it. The next day a locksmith was employed and, using the combination appellee gave him, opened the safe. The day after that, appellee attempted to record the deed but could not because the notary’s seal had not been affixed. She testified that the clerk helped her decipher the name signed on the notary public line as that of Charles E. Davis, an attorney. Appellee says she took the deed to Mr. Davis’s office and, when told Mr. Davis was not in, left it there. When she returned later that day, she was given the properly sealed deed. Appellee testified that she did not see Mr. Davis on either of her visits to his office that day. Appellant proffered testimony by Mr. Davis that he did meet with appellee, that he had not previously signed or dated the deed, but that he did so that day at her request.
After appellee retrieved the deed from the attorney’s office, she properly recorded it. She subsequently filed a petition to quiet title, and, after discovering an error in the legal description of the property (Range 32 had been inserted in the property description rather than Range 29), filed an amended petition for reformation.
Appellant contends there was no effective delivery since the deed was found in the grantor’s safe after his death. Although it must ordinarily be shown that a grantor relinquished dominion and control over the instrument, where the language of the deed reserves a life estate in the grantor, different rules apply. The fact that a deed is found among the effects of the grantor at his death raises no presumption against delivery if the grantor has reserved an interest in the property and therefore has an interest in the preservation of the deed. Cribbs v. Walker, 74 Ark. 104, 85 S.W. 244 (1905). Since H. B. Hummel had the intention of retaining possession of the property until his death, he had the right to retain the deed to effectuate this purpose. The failure to have the deed recorded was not fatal to the delivery, nor did the continued possession and control by the grantor nullify the apparent intention of delivery. Johnson v. Young Men’s Bldg. & Loan Ass’n, 187 Ark. 430, 60 S.W.2d 925 (1933).
There was conflicting testimony as to whether the grantor had intended his sisters or his daughter to have the property in question. There is also conflicting testimony as to whether the deed was executed prior to the grantor’s death. It is the province of the trier of fact to determine the credibility of witnesses and resolve conflicting testimony, Jones v. Jones, 29 Ark. App. 133, 777 S.W.2d 873 (1989), and we cannot say the chancellor’s finding that there was an effective delivery of the deed was clearly erroneous.
Appellant’s second contention is that the testimony of the attorney regarding the notarization and acknowledgment of the deed was relevant to establish the grantor’s lack of intent to pass title to the property and should have been admitted. An unacknowledged deed, if otherwise valid, passes title as between the parties. Grimmett v. Estate of Beasley, 29 Ark. App. 88, 777 S.W.2d 588 (1989). The trial court was not clearly erroneous in finding that the testimony of the attorney was immaterial.
Appellant also contends that appellee failed to establish a basis for reformation of the legal description in the deed. The chancellor found that H.B. Hummel intended to deed the property in question to his sisters and that he owned no property in Range 32 that could be confused with the property involved here. The chancellor’s finding that the discrepancy in the range number was a scrivener’s error and the description in the deed should be reformed was not clearly erroneous.
Affirmed.
Mayfield and Rogers, JJ., agree. | [
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Elizabeth W. Danielson, Judge.
Appellants, Maurice Haygood, Grover Lee Buford and Robert Clinkscale, Jr., appeal their convictions of possession of cocaine with intent to deliver, for which each was sentenced to thirty years in the Arkansas Department of Correction. On appeal, they argue that (1) the trial court erred in denying their motion to suppress; (2) the trial court erred in denying their proposed jury instruction on the elements of joint occupancy; (3) the trial court erred in denying their motion for directed verdict; and (4) the evidence was not sufficient to sustain the verdict. We affirm.
At a hearing on a motion to suppress, evidence was introduced that about 9:45 p.m. on August 17, 1989, Sergeant Mike Sylvester, of the Little Rock Police Department, was notified by a confidential informant that between 10:00 and 11:00 p.m. Robert Clinkscale, Jr., and two other black males would be leaving the Brentwood Apartments on Baseline Road in a 1981 Delta 88 Oldsmobile, bearing Arkansas license PJJ-870, with a substantial quantity of cocaine and go to Apartment 199 of the Pines Apartment complex, approximately three-quarters of a mile down Baseline Road. Sergeant Sylvester testified that the informant had previously given information which the officer had verified; that the officer was personally acquainted with Clink-scale; and that the officer through the police department files knew Clinkscale had been “involved in cocaine trafficking.” Sylvester, relying on the informant’s tip, arranged for both apartment complexes to be placed under surveillance.
Sylvester said he and Detective Joseph Fisher staked out the Brentwood Apartment complex and about 10:20 p.m. the Oldsmobile, which had been described, occupied by Clinkscale and two other black males, arrived and went to the rear of the complex. Approximately fifteen minutes later the vehicle returned and stopped almost directly in front of the officers’ surveillance vehicle; the driver Maurice Haygood, Jr., (whom Sylvester said he also knew as a cocaine trafficker) got out; and when the dome light came on, Sylvester saw Clinkscale sitting in the back seat. Haygood walked to the rear of his vehicle and had a brief conversation with a female who had exited another vehicle. She walked to a dumpster, threw something in it, and both she and Haygood got back into their vehicles and both cars left the Brentwood complex. Sylvester testified that Haygood took a circuitous route and went to the Pines Apartments. Sylvester said that, as they followed, he notified the other stakeout officers that the suspect vehicle was on the move and to detain the occupants when it stopped. He said he arrived at the Pines Apartments just moments after the appellants were removed from the car. He understood a gym bag was removed from the car and that it contained other bags which contained a significant quantity of cocaine.
Detective-Carlos Corbin testified that he and Detective Tackett were together in a vehicle when they got the call from Sylvester. They were given a vehicle description and when the vehicle pulled up to apartment 199 of the Pines Apartments, the occupants got out and were detained until Sergeant Sylvester could get there. Corbin said he and Tackett identified themselves as police officers; that he had his service revolver drawn; and that Sylvester arrived in a matter of moments. In his report Corbin wrote that he handcuffed Maurice Haygood, the driver of the car, and Robert Clinkscale, who was in the back seat, and that Detective Watson, who arrived on the scene about the same time as Sylvester, handcuffed Grover Buford, who was in the front passenger seat.
Detective Joe Fisher, Little Rock Police Department Narcotics Detail, testified that when he and Sergeant Sylvester arrived on the scene, Detectives Tackett and Corbin had already detained the occupants of the suspect vehicle. Fisher said he searched the car and found a green nylon gym bag on the passenger’s side of the back seat. Under the gym bag, he found a Crown Royal bag which contained a fully loaded nine millimeter semiautomatic pistol with the butt sticking out. Fisher said he first secured the gun, then unzipped the nylon gym bag and found another bag inside which contained “a quantity of a white powder substance and a quantity of a solid white substance,” all of which he suspected was cocaine. He said the occupants of the vehicle were then placed under arrest.
Officer Robert Martin, patrolman for the Little Rock Police Department, testified that on August 17 he received a call to meet the narcotics unit at the Pines Apartments. He said he was advised to put appellant Gary Buford in his patrol car and was going to “pat him down” when he noticed Buford was wearing a leather medallion on a cord around his neck. The medallion was of a type which frequently has a pocket in the back where razor blades or small knives are carried. He took the medallion from Buford, and in a pocket in the back of it he found a “small plastic bag containing white powder.”
Appellants’ first argument is that the trial court erred in refusing to suppress the evidence seized in the search of the automobile. In Lopez v. State, 29 Ark. App. 145, 778 S.W.2d 641 (1989), we set out the rule regarding automobile searches as follows:
An officer who has reasonable cause to believe that a moving or readily movable vehicle is or contains things subject to seizure may, without a search warrant, stop, detain, and search the vehicle and may seize things subject to seizure discovered in the course of the search where the vehicle is on a public way or waters, or other area open to the public. Cook v. State, 293 Ark. 103, 732 S.W.2d 462 (1987); Ark. R. Crim. P. 14.1. Reasonable cause exists when the facts and circumstances within the officer’s knowledge, or of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Munguia v. State, 22 Ark. App. 187, 737 S.W.2d 658 (1987). See also Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980). ... In reviewing the trial court’s action in granting or denying motions to suppress evidence obtained by warrantless searches, the appellate court makes an independent determination based on the totality of the circumstances, but it will not set aside the trial court’s finding unless it is clearly against the preponderance of the evidence. Munguia v. State, supra.
29 Ark. App. at 150-51. Reasonable cause can be based on the collective knowledge of police officers, Rowland v. State, 262 Ark. 783, 561 S.W.2d 304 (1978), and reasonable cause can be based upon a combination of verified information furnished by anonymous callers and evidence gathered by the police in furtherance of an investigation of the subject matter, Willett v. State, 298 Ark. 588, 769 S.W.2d 744 (1989), citing Illinois v. Gates, 462 U.S. 213 (1983).
Appellants contend this vehicle was not on a public street but rather in a private area lawfully entered, and thus exigent circumstances must have been present to validate the search. Because it is an “area open to the public,” we cannot agree that the parking lot of an apartment complex qualifies as a private area even though it may be privately owned.
Appellants contend this was not a valid search incident to arrest because there was no reason to believe the automobile contained anything subject to seizure. When major portions of an informant’s tip are verified by an officer’s own observation, the officer may have reasonable cause to believe the unverified bit of the informant’s information. Draper v. United States, 358 U.S. 307 (1959). The collective information known by the officers in this case — that the informant had provided reliable information in the past; that appellants Clinkscale and Haygood were known cocaine traffickers; that an automobile fitting the description provided by the informant right down to the license number arrived at the place named within the time frame described by the informant; and that the car traveled to the exact apartment number in the exact apartment complex named by the informant — provided the officers with reasonable cause to believe the vehicle contained things subject to seizure. And if they had reasonable cause to search the vehicle, they could search every part of it and its contents that could conceal the object of the search. United States v. Ross, 456 U.S. 798 (1982). Thus, we do not believe the trial court’s ruling on the motion to suppress was clearly against the preponderance of the evidence.
The appellants’ second argument is that the trial court erred in denying their proposed jury instruction on the elements of joint occupancy situations. The trial court, without objection, instructed the jury according to AMCI 3304 as follows:
There are two kinds of possession, actual and constructive. Actual possession of a thing is direct physical control over it. Constructive possession exists when a person, although not in actual possession of a thing, has the right to control it and intends to do so, either directly or through another person or persons. If two or more persons share actual or constructive possession of a thing, either or all may be found to be in possession.
Based on language in Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988), appellants sought an addition to the above instruction. The additional language stated:
Where there is joint occupancy of a place where contraband is found, some additional factor must be present linking the accused with the contraband. In such cases, the State must prove two elements: (1) that the accused exercised care, control, and management over the contraband, and (2) that the accused knew the thing possessed was contraband.
The trial court refused to give the requested instruction. Appellants argue that because of the court’s action, the jury was not informed that mere presence in the automobile was insufficient to sustain the conviction, and without this instruction the jury could have thought it was compelled to find all three defendants guilty without first determining that they all knew the gym bag contained cocaine.
The State’s brief points out that even though a requested instruction is a correct statement of the law, this does not mean the trial court erred in not giving it. In Wallace v. State, 270 Ark. 17, 603 S.W.2d 399 (1980), the court said, “we have consistently held that it is not error to refuse to give a requested instruction where the subject matter is fully covered by instructions already given.” In the present case, instruction AMCI 3304 correctly states the law. An instruction not included in AMCI should be given only when the AMCI instruction does not state the law or where AMCI does not contain a needed instruction on the subject. Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985). In addition to AMCI 3304, the court instructed the jury that each defendant was presumed to be innocent and would have to be proved guilty beyond a reasonable doubt, and that, even though they were being tried jointly, the evidence must be considered separately as to each defendant. The trial judge, in deciding not to give the instruction as requested by the defendants, expressed an opinion that the additional language they wanted to add to AMCI 3304 was redundant and might “elevate to a comment on the evidence.” We find no error in the court’s failure to give the instruction with the additional language requested by appellants.
Appellants’ last two arguments constitute a challenge to the sufficiency of the evidence. In resolving the question of the sufficiency of the evidence in a criminal case, this court affirms the judgment if there is any substantial evidence to support the finding of the trier of fact. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). 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 resorting to speculation or conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989); Ryan v. State, supra.
The evidence introduced at trial did not materially differ from the evidence introduced on the motion to suppress, with the exception of the testimony of two witnesses from the Arkansas State Crime Lab. Gene Bangs, a chemist and instrumentation engineer at the Crime Lab, testified that he tested the substance which other evidence showed came from the pocket in the back of the leather medallion worn by appellant Buford, and it was cocaine that weighed 1.12 grams. The other witness from the Crime Lab was Gary Dallas, chief chemist in the Drug Section, who testified that the substance, which other evidence showed came from the gym bag found in the back seat of the car, tested positive for cocaine; that the weight of the powder substance was 542.3 grams; and the weight of the solid substance was 74.7 grams.
Appellants’ sufficiency argument contends that the evidence does not tie possession of the cocaine to any appellant. Their premise is that the evidence must show some additional factor other than mere joint occupancy of a place where contraband is found. In Plotts v. State, supra, the appellant was a passenger in his own car when a zippered clothes bag containing 5 pounds 12.7 ounces of marijuana was found on the back seat. The court stated:
Other courts have held that the prosecution can sufficiently link an accused to contraband found in an automobile jointly occupied by more than one person by showing additional facts and circumstances indicating the accused’s knowledge and control of the contraband, such as the contraband’s being (1) in plain view; (2) on the defendant’s person or with his personal effects; or (3) found on the same side of the car seat as the defendant was sitting or in immediate proximity to him. Other facts include the accused (4) being the owner of the automobile in question or exercising dominion and control over it; and (5) acting suspiciously before or during arrest.
297 Ark. at 70 (citations omitted).
In Nowden v. State, 31 Ark. App. 266, 792 S.W.2d 621 (1990), we applied the Plotts rationale to affirm the conviction in a case in which the appellant was driving a truck which neither he nor the passenger owned. The truck was stopped because the decals were peeling off the license tag, and a check revealed that the plate had been issued to another vehicle. After the stop, an officer saw a grocery sack containing green vegetable matter (later tested and found to be marijuana) which was in plain view on the floorboard on the passenger’s side of the truck. We held the evidence that Nowden was exercising dominion and control over the vehicle by driving it, plus the additional factors (1) that the contraband was in an area immediately accessible to him, and (2) that Nowden exhibited nervous behavior after he was stopped were sufficient to link him to the contraband.
Likewise, in the present case, in addition to joint occupancy, there is at least one additional factor which links each of these appellants to the cocaine found in the vehicle they were in. Clinkscale is directly linked to the cocaine because it was in a bag on the back seat right beside where he had been sitting. Buford’s conviction was based, not only on his joint occupancy of the automobile, but also on the cocaine found in the medallion around his neck. Moreover, there is evidence that it weighed 1.12 grams and under Ark. Code Ann. § 5-64-401 (d) (1987), the possession of more than one gram of cocaine creates a rebuttable presumption that it is possessed with intent to deliver. The links between appellant Haygood and the contraband are that he was exercising dominion and control over the vehicle, and instead of taking the direct route to his destination he drove a longer, more circuitous route, and the contraband was in the passenger area of the automobile he was driving and within his immediate access. When considered in the light most favorable to the appellee, we think the evidence is sufficient to support the convictions of each of the appellants.
Affirmed.
Mayfield and Rogers, JJ., agree. | [
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Elizabeth W. Danielson, Judge.
Cumberland Financial Group, Ltd., appeals from the circuit judge’s decision to admit appellee, Brown Chemical Company’s, answers to appellant’s interrogatories into evidence and to award attorney’s fees against appellant. We find no error and affirm.
In November 1988, appellant sued appellee for $52,500.00 for breach of an alleged contract to purchase goods from appellant. Attached to the complaint was a copy of an invoice dated May 11, 1988, for 4,200 gallons of Propanex-4 sold to appellee in Texarkana, Arkansas. In its answer, appellee denied purchasing anything from appellant or having any business dealings with appellant. Appellee stated that it purchased the product from a third-party defendant, Cumberland International Corporation. Appellee asserted that, in 1987, it prepaid the corporation $85,613.00 for a quantity of Propanex-4 at a total purchase price of $53,760.00, leaving appellee with a credit balance in the amount of $31,853.00. Appellee asserted that, in 1988, the corporation sold and shipped to appellee 4,200 gallons of Propanex-4, and that the credit balance appellee had with the corporation was to be applied to the debt. Appellee stated that it had not paid the corporation the $9,513.00 balance due because appellant had, without any contract or other lawful reason, insisted that appellee owed it $52,500.00 for the Propanex-4 received by appellee in 1988.
Appellant later sent interrogatories to appellee, and appel-lee’s president, George Brown, provided answers on February 27, 1989. In his responses, Brown denied that appellee ordered Propanex-4 from appellant. He stated:
No, the Defendant has not ordered Propanex-4 from Plaintiff, Cumberland Financial Group, Ltd., at any time. As shown on the sales order under the heading of Crystal Chemical Company attached to Plaintiffs Interrogatories, the Defendant, acting by and through George Brown, on January 5, 1988, placed an order with William B. Parker (W.B.P.), the salesman for Cumberland International Corporation, for Propanex-4. Defendant never received a copy of this sales order and was not aware that the sales order incorrectly stated that the 4,200 gallons of Propanex-4 was being priced to it at $12.50 per gallon. Defendant had a credit balance for its prepayment in the amount of $31,853.09 for Propanex-4 at $9.60 per gallon, for a total of 3,318 gallons. Only 882 gallons of Propanex-4 should have been billed to Defendant at the new price of $12.50 per gallon, less credit for discount of $1.00 per gallon and freight costs of $630.00.
Throughout his answers to the interrogatories, Brown denied having any agreement with appellant to purchase the product.
Before trial, George Brown died, and appellee moved to admit his responses to appellant’s interrogatories into evidence. Appellant objected on the ground that the responses to the interrogatories were hearsay and did not fall within a recognized exception to the hearsay rule. Appellee argued that Ark. R. Evid. 804(b)(5) provided a basis for the admission of this evidence. The circuit judge allowed the interrogatories to be admitted. The jury returned a verdict for appellee and found that there was no contract by appellee to purchase the Propanex-4 from appellant. The circuit judge entered judgment for appellee and awarded appellee $6,985.00 for attorney’s fees pursuant to Ark. Code Ann. § 16-22-308 (Supp. 1989).
For its first point, appellant argues that, although answers to interrogatories are admissible against the party answering them, they are not admissible against anyone else. Appellant also asserts that the answers to the interrogatories are hearsay and not within a recognized exception to the hearsay rule, notwithstanding the unavailability of Mr. Brown to appear at trial. Appellee does not dispute that the answers to the interrogatories are hearsay; it simply asserts that, under Ark. R. Evid. 804(b)(5), the answers are admissible. This rule states:
(5) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact; (ii) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statements into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.
This provision sets forth what is known as the residual hearsay exception; it was not, however, intended “to throw open a wide door for the entry of judicially created exceptions to the hearsay rule. To the contrary, [it] is to be narrowly construed.” Hill v. Brown, 283 Ark. 185, 188, 672 S.W.2d 330, 332 (1984). Any exception to the hearsay rule under this provision must have circumstantial guarantees of trustworthiness equivalent to those supporting the common-law exceptions to the rule. Hill v. Brown, 283 Ark. at 190, 672 S.W.2d at 333. See also Blaylock v. Strecker, 291 Ark. 340, 350, 724 S.W.2d 470, 476 (1987).
In Callaway v. Perdue, 238 Ark. 652, 658-59, 385 S.W.2d 4, 9 (1964), the supreme court held that it is not proper to admit answers to interrogatories into evidence even though the party who answered them has died before trial. The court stated that this is so because there is no opportunity for cross-examination; such answers are usually referred to as “sélf-serving.”
In the case at bar, however, we need not address this question, because appellee introduced more than sufficient evidence to support the judgment. For example, the testimony of William Parker, Joe Eller, and Ann Brown, along with Defendant’s Exhibits 2, 3, and 5 clearly support the judgment for appellee. We do not reverse for harmless error in the admission of evidence. Freeman v. Freeman, 20 Ark. App. 12, 16, 722 S.W.2d 877, 880 (1987). See also Peoples Bank and Trust Co. of Van Buren v. Wallace, 290 Ark. 589, 592, 721 S.W.2d 659, 661-62 (1986). In fact, appellant even points out in its argument that this evidence is “more probative” of whether the parties had a contract than the answers to the interrogatories. Accordingly, we deny appellant’s first point on appeal.
For its second point, appellant argues that Ark. Code Ann. § 16-22-308 (Supp. 1989) does not authorize an award of attorney’s fees to appellee because appellee was not the party seeking to recover on the contract relating to the purchase of the goods. Appellant asserts that, because appellee was simply defending the cause of action on the basis that no contract existed between the parties, it is not a prevailing party within the meaning of the statute. We disagree.
Arkansas Code Annotated Section 16-22-308 (Supp. 1989) provides:
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 or 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.
Whether to award attorneys’ fees under this statute is a matter within the trial court’s discretion. ERC Mortgage Group, Inc. v. Luper, 32 Ark. App. 19, 24, 795 S.W.2d 362, 365 (1990). Accord Chrisco v. Sun Indus., Inc., 304 Ark. 227, 229, 800 S.W.2d 717, 719 (1990); City of Fayetteville v. Bibb, 30 Ark. App. 31, 39, 781 S.W.2d 493, 496 (1989).
Because the party in whose favor the verdict compels a judgment is considered to be the prevailing party, ERC Mortgage Group, Inc. v. Luper, 32 Ark. App. at 24, 795 S.W.2d at 364, appellee was clearly a “prevailing party” within the terms of the statute. Accordingly, the circuit judge did not err in awarding appellee its attorney’s fees.
Affirmed.
Rogers and Cooper, JJ., agree. | [
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Wendell L. Griffen, Judge.
This appeal arises from a conviction of driving while intoxicated, third offense, of appellant, Justin Porter, in Baxter County. Appellant argues (1) that the trial court erred in finding him guilty of driving while intoxicated because the blood test taken in accordance with Ark. Code Ann. § 5-65-201 (Repl. 1997) showed a chemical analysis of .05% by weight of his blood; and (2) that the trial court erred in admitting and considering a hospital blood test as definitive proof of his intoxication when the test was not taken in accordance with the Arkansas Omnibus DWI Act. We reverse and dismiss.
On the morning of May 20, 2001, appellant crashed his car at roughly 6:30 a.m. while on his way to work, in a one-vehicle accident. Appellant was alone in the vehicle. At appellant’s subsequent bench trial, Arkansas State Trooper Jim Brown testified that he arrived on the scene shortly after the accident. Brown smelled the strong odor of alcohol on appellant’s person. He questioned appellant at the site of the accident about his operation of the vehicle. Appellant told Brown that he was on his way to work. Brown accompanied appellant to the Baxter County Hospital, where appellant received treatment for his injuries and where two blood-alcohol tests were performed on him.
The hospital’s patient summary report indicated that the first blood-alcohol test occurred at or around 7 a.m. The test showed a blood-alcohol content of .0904%. At trial, Deborah K. Williams testified that she was the Director of Laboratory Services at Baxter Regional Hospital and that she was responsible for the supervision of blood samples and processing those samples. She did not supervise the drawing of blood from appellant because she was not then employed at the hospital. However, she testified that the hospital followed a certain protocol for drug blood tests involving cleansing the test site with a non-alcohol preparation substance and drawing the blood only after the site was cleaned. The blood thus drawn was processed in the chemistry department of the hospital’s laboratory, followed by a report of the results. Williams testified that she saw no reason to believe that this procedure was not followed in the case of appellant’s first blood test. At the end of Williams’s testimony, the State moved to admit the hospital patient summary report into evidence. Counsel for appellant did not object.
Counsel for appellant subsequently cross-examined Williams, thus establishing that Williams could not tell whether a nurse, a technician, or a doctor drew the first blood test. Cross-examination also elicited Williams’s testimony stating that because the first blood test was drawn for a physician on a physician’s order, the hospital personnel, regardless of who actually drew the blood, would have followed the above procedure.
Concerning the second blood test, Officer Brown testified that he observed the second blood test being conducted at around 9 a.m. Brown stated that Julie McCoy, a lab technician, drew the blood. Brown asked her specifically to use a “red solution” rather than alcohol in preparation for needle insertion. According to the officer, the red substance looked and smelled like Betadine, a substance he had seen being used in preparation of blood alcohol tests several times before. Brown sent the sample to the Arkansas State Crime Laboratory and eventually received a result of .05%.
At the end of the State’s case, counsel for appellant moved to dismiss. He stated specifically:
The State has not proved that my client was intoxicated at the time the accident occurred. By the admission of the Trooper, at six-thirty the time of the collision, the test was drawn some time before seven o’clock. By the blood alcohol given by the State he was .09 at the time that this incident occurred, I believe the blood alcohol of the State of Arkansas was .10. This occurred in May of 2001 and the law had not yet changed. At the time that this occurred, he was under the legal limit of the State of Arkansas, and so with that I don’t believe the State can move forward in proving my client was intoxicated.
The fohowing colloquy took place:
State: Judge, I think it’s in the discretion of the Court as to the totality of the circumstances between .05 and .10, Judge.
The Court: It’s a discretionary matter. The motion will be denied.
At this point, counsel for appellant chose to rest his case. The remainder of the hearing concerned sentencing. The trial court convicted appellant of DWI, third offense, and sentenced him to twelve months in county jail with sixty days suspended. Appellant was placed on one year of supervised probation and ordered to pay court costs of $300 and a fine of $1,500. From this conviction arises this appeal.
Analysis
Appellant’s first point, and his motion to dismiss in the court below, constitutes a challenge to the sufficiency of the evidence. See Ark. R. Crim. P. 33.1(b) (2003); see also Green v. State, 79 Ark. App. 297, 87 S.W.3d 814 (2002). On appeal of the denial of a motion for dismissal, we test the sufficiency of the evidence to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Id. We need only consider the evidence supporting the guilty verdict, and we view that evidence in the light most favorable to the State. Id. 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 resorting to speculation or conjecture. Edmond v. State, 351 Ark. 495, 95 S.W.3d 789 (2003). Circumstantial evidence may provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Id.
At the time of appellant’s offense, Ark. Code Ann. § 5-65-103 (Rep. 1997) provided:
(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 there was one-tenth of one percent (0.10%) or more by weight of alcohol in the person’s blood as determined by a chemical test of the person’s blood, urine, breath, or other bodily substance.
In order to convict, the State must prove all elements under both subsections of Ark. Code Ann. § 5-65-103. Neble v. State, 26 Ark. App. 163, 762 S.W.2d 393 (1988). Furthermore, the Code provides, based on certain blood-alcohol levels within four hours after the alleged offense:
(1) If there was at that time one-twentieth of one percent (0.05%) or less by weight of alcohol in the defendant’s blood, urine, breath, or other bodily substance, it shall be presumed that the defendant was not under the influence of intoxicating liquor;
(2) If there was at the time in excess of one-twentieth of one percent (0.05%) but less than one-tenth of one percent (0.10%) by weight of alcohol in the defendant’s blood, urine, breath, or other bodily substance, such fact shall not give rise to any presumption that the defendant was or was not under the influence of intoxicating liquor, but this fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.
Ark. Code Ann. § 5-65-206(a)(1)-(2) (Repl. 1997). The Arkansas Supreme Court has held competent evidence supporting a DWI conviction to consist of a defendant’s blood-alcohol content of .06 percent, police officers’ testimony that they did not doubt that the defendant was intoxicated, that they observed the defendant’s slurred speech and red and glassy eyes, and that one officer smelled the odor of intoxicants on the defendant, who also admitted that he had “had a few.” State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996) (reversing trial court’s grant of directed verdict to the defendant based on low blood-alcohol level).
Here, we hold that the State did not prove DWI. The first blood test showed a result of .0904 percent blood-alcohol level. Even though this result may be used as evidence, according to Ark. Code Ann. § 5-65-206(a)(2), it does not trigger a presumption of intoxication. The second blood test, upon request of the investigating police officer, resulted in only .05 percent blood alcohol level, not in excess of the then legal limit.
The State also points us to the testimony of Officer Brown, indicating that appellant emitted a strong odor of intoxication when Brown came into contact with appellant. That happened around 6:30 in the morning, after appellant had crashed his vehicle in a one-vehicle accident, on his way to work. We certainly defer to the trial court’s superior ability to assess witness credibility, Crain v. State, 78 Ark. App. 153, 79 S.W.3d 406 (2002). We do not doubt officer Brown’s credibility in the question whether or not appellant omitted a strong odor of intoxication. However, we find this testimony insufficient to support the DWI conviction.
We recognize that Ark. Code Ann. § 5-65-206(a) (1)-(2) enables our trial courts to consider evidence of blood alcohol content in excess of .05 percent, but less than .10 percent. We also acknowledge that our supreme court, as stated above, has found sufficient evidence in a case where the defendant’s blood alcohol content was .06 percent, but where police testimony also established that defendant had slurred speech, red and glassy eyes, that he smelled of intoxicants, and that defendant admitted that he had a few drinks. See State v. Johnson, supra. However, the present case before us involves a defendant whose blood-alcohol content — according to the only blood test conducted according to statutory requirements — was .05 percent. Furthermore, available police testimony merely established that appellant emitted a strong odor of intoxication. There was no testimony concerning speech pattern, appearance of appellant’s eyes, any admission of his, or anything else that would support a finding of intoxication. We decline to draw a sweeping inference from an odor alone because odor, by itself, does not yet tell whether the person actually drank alcohol above the legal limit. We have previously held that the fact of an accident and odor of intoxicants alone does not constitute substantial evidence of intoxication. Stivers v. State, 64 Ark. App. 113, 978 S.W.2d 749 (1998). In that case, the accused had a one-car accident and the investigating officer testified that the accused seemed unresponsive and sleepy after the accident. Id. We found it reasonable to infer that his injuries rather than intoxication could have caused his impaired response. Id. In our present case, in light of the fact that neither blood test resulted in blood-alcohol levels in excess of the then legal limit, we cannot now hold that appellant’s case is one in which blood-alcohol content and a mere allegation of an odor of intoxication is sufficient proof for DWI. Therefore, we reverse and dismiss.
Concerning appellant’s remaining point, we note that appellant faded to preserve for appeal his second argument, concerning the alleged erroneous admission of the results of the first blood-alcohol test, because appellant failed to file a motion in limine concerning the test results before the trial or otherwise object to the admission of the results at trial. The failure to object or raise an issue in a motion prevents an issue from being raised for the first time on appeal. Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002).
Reversed and dismissed.
Hart, Vaught, and Roaf, JJ., agree.
Bird and Crabtree, JJ., dissent. | [
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Wendell L. Griffen, Judge.
Tom Harris appeals from an order of the trial court requiring him to continue paying child support for his oldest child who had reached the age of eighteen, graduated from high school, and was enrolled in college. Appellant argues that when his oldest child turned eighteen years old, a change of circumstance occurred by operation of law pursuant to Ark. Code Ann. § 9-14-237 (Repl. 2002) sufficient to warrant a modification of his child-support obligation. We agree; thus, we reverse and remand.
Appellant and appellee, Donna Harris, were divorced on January 20, 1998. Appellee was awarded custody of the parties’ two children, and appellant was ordered to pay child support in the amount of $1,200 per month. The parties’ separation and property settlement agreement was incorporated by reference into the 1998 divorce decree and provided, in part, that the $1,200 per month child support payment would “remain at this amount until such time as the children reach the age of 18,” and that the parties “shall each be responsible for one-half (V2) the reasonable expenses and costs of the college education of the children.”
On June 13, 2002, appellant filed a petition to terminate his child support for the parties’ oldest child, Lauren, because Lauren had graduated from high school and was about to turn eighteen on June 21, 2002. He also requested that child support for the parties’ other child be set in accordance with Arkansas law. In response to appellant’s petition, appellee argued that the parties negotiated the amount of child support at the time of the divorce and had agreed that child support was to remain at $1,200 per month until both children reached the age of eighteen. Appellee filed a counterclaim against appellant contending that Lauren was attending college and that appellant had refused to pay for one-half of Lauren’s college expenses.
A hearing was conducted on July 8, 2002. At the hearing, appellant testified that when the parties divorced he was making $41,000 per year. He negotiated the amount of alimony and child support that he was to pay and did not use the child-support chart. Appellant stated that he lived with his parents, rent free, for two years after the divorce, so that he could do what he could financially for his children. He acknowledged that the language used in the child-support provision of the agreement did not specify that his child-support obligation was to change upon Lauren reaching the age of eighteen. However, appellant stated that this is what he understood would happen and was part of his consideration for agreeing to pay for half of Lauren’s college expenses. Appellant also mentioned that he maintained health insurance on the parties’ two children at a cost of $125 per month, which was taken directly out of his paycheck. According to appellant, his current yearly income was approximately $58,000, and he was planning to remarry in August 2002.
Appellee testified that although at the time of the divorce she was planning to enter the insurance business, she was not working, which was a factor she considered when negotiating the child-support amounts with appellant. Appellee stated, “I had no doubt in my mind he would pay me $1200 per month until both children were eighteen, even though [when] Lauren turned eighteen Mr. Harris would be responsible for part of her college expenses.” Appellee asserted that she needed the entire $1,200 per month child support to pay for the youngest child’s tuition of $250 per month, uniforms in the amount of $400 per year, and registration fees. However, appellee testified that after the divorce, with the $1,200 per month child support, she had both the parties’ children in private school. At the time of the hearing, appellee was no longer working, but was receiving $24,000 per year in disability, as compared to her prior salary of $25,000 plus commissions. Appellee further mentioned that Lauren no longer lived with her, but that the cost of taking care of Lauren had increased because Lauren now had additional college expenses. Following the hearing, the trial court found that there had not been a change in circumstances sufficient to warrant a termination or reduction in appellant’s child-support obligation. This appeal followed.
It is well settled that on appeal our review of a trial court’s order of child support is de novo, and we will affirm the trial court unless its findings of fact are clearly erroneous. Alfano v. Alfano, 77 Ark. App. 62, 72 S.W.3d 104 (2002). A finding is clearly erroneous, even though there is evidence to support it, if the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Deluca v. Stapleton, 79 Ark. App. 138, 84 S.W.3d 892 (2002). In resolving the question of whether the trial court’s findings are clearly erroneous, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Johnson v. Ark. Dep’t of Human Servs., 78 Ark. App. 112, 82 S.W.3d 183 (2002).
Appellant argues that the trial court erred in refusing to reduce the amount of his child support when his legal obligation to support his oldest child terminated by operation of law. Arkansas Code Annotated section 9-14-237 (Repl. 2002) provides that the “duty to pay child support for a child shall automatically terminate by operation of law when the child reaches eighteen (18) years of age or should have graduated from high school, whichever is later . . . unless the court order for child support specifically extends child support after such circumstances.” Accordingly, a noncustodial parent who petitions the court to terminate child support alleging that his child has reached the age of eighteen and has graduated from high school has made a prima facie case for discontinuance of child-support payments. The burden then shifts to the custodial parent to go forward with proof that the child support should be continued. Hogue v. Hogue, 262 Ark. 767, 561 S.W.2d 299 (1978).
Appellee, however, argues that appellant was bound by the parties’ agreement incorporated into the divorce decree to pay $1,200 per month in child support until both of their children reached eighteen years of age. In Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990), the supreme court recognized that a parent who agrees, at the time of divorce, to continue support until the minor children are beyond the age of eighteen commits himself to uphold such an obligation. 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). However, such independent contracts dealing with child support are not binding on the trial court. Alfano v. Alfano, supra; Warren v. Kordsmeier, 56 Ark. App. 52, 938 S.W.2d 237 (1997). Accordingly, the trial court always retains jurisdiction over child-support issues as a matter of public policy, and no matter what the parties’ independent contract provides, either party has a right to request a modification of a child-support award. Id.
A party seeking to modify child support has the burden of showing a change in circumstances sufficient to warrant the modification. Weir v. Phillips, 75 Ark. App. 208, 55 S.W.3d 804 (2001). Factors which the trial court may consider in determining whether there has been a change in circumstances include remarriage of the parties, a minor reaching majority, change in the income and financial conditions of the parties, relocation, change in custody, debts of the parties, financial conditions of the parties and families, ability to meet current and future obligations, and the child-support chart. Woodson v. Johnson, 63 Ark. App. 192, 975 S.W.2d 880 (1998).
The first issue that we must address is whether appellant agreed to continue making child-support payments for his children past the age of eighteen. The relevant provisions of the property-settlement agreement provide (1) that the $1,200 per month child-support payment would “remain at this amount until such time as the children reach the age of 18,” and (2) that the parties “shall each be responsible for one-half (V2) the reasonable expenses and costs of the college education of the children.” Appellant contends that although the language used in the agreement did not specifically state that upon Lauren turning eighteen years of age his child-support obligation would be modified, it was his understanding that:
when I agreed to the amount of child support, that I would pay this amount of child support until one turned age 18, and support for that child would end. This was part of my consideration to pay half of Lauren’s college expenses. I thought the child support for her would end, and I would use that money to pay her college expenses.
Appellee, however, argues that the divorce decree specifically extends child support beyond the eighteenth birthday of Lauren and directs that the child support continued at $1,200 per month until both children reached eighteen. The trial court noted that the parties had contemplated a change regarding support. However, the trial court reasoned that:
If the parties wanted it changed, it could very well have been placed in the property settlement agreement once Lauren turned 18 or-graduated from high school, whichever came — I guess in this situation, last. Also, I must note that the custodial parent also has an obligation to pay one-half of the oldest child’s expenses. And the parties very well could have contemplated that what was going for child support would now go toward Lauren’s college expenses.
The trial court found that under the parties’ agreement, appellant was obligated to pay both child support and one-half of the college expenses for the children who attended college.
However, based on our de novo review of the facts of this case, we conclude that the child-support provision stating that support would “remain at this amount until such time as the children reach the age of 18,” is ambiguous; it does not clearly designate whether appellant’s child-support obligation of $1,200 per month was to continue at this amount until both children reached eighteen years of age, or change once one reached the age of majority. If an ambiguity exists, we are permitted to look outside of the agreement to determine the actual intent and conduct of the parties. Rockefeller v. Rockefeller, 335 Ark. 145, 980 S.W.2d 255 (1998). Further, in determining the true intentions of the parties, different clauses of a contract must be read together and construed so that all of its parts harmonize if that is possible. Dodson v. Dodson, 37 Ark. App. 86, 825 S.W.2d 608 (1992).
In this case, the record reveals that appellant was only making $41,000 per year at the time of divorce, but agreed to pay alimony and child support in the amount of $1,200 per month, which was above the amount required under the child-support chart. As a result, appellant lived with his parents to be able to provide financially for his children. Part of the $1,200 per month child support was used by appellee to pay tuition for both children to attend private school, as the parties had agreed. Bas.ed on these facts, when we read the “child support” provision and the “college expenses” provision together, we must conclude that the intent of the parties was that appellant’s child-support obligation would cease upon each child reaching the age of majority; however, if a child chose to attend college, the parties then agreed to share the expense of supporting the child while in college. If the parties had intended otherwise, the decree could have simply provided so by including the word “both.” However, it did not. Based on these facts, we are not inclined to read such an intent into the decree, especially when doing so would impose an obligation to pay child support not clearly evidenced by the parties’ agreement and in the face of Ark. Code Ann. § 9-14-237 (Repl. 2002).
The second issue we must address is whether there was a change of circumstances sufficient to modify child support. In the instant case, the record reveals that the parties’ oldest child had graduated from high school, had reached the age of majority, and was no longer living under the same roof as appellee. On these facts, appellant made a prima facie showing of a change of circumstances sufficient to warrant modification of child support. The burden then should have shifted to appellee to prove the need for this support. Hogue v. Hogue, supra.
Accordingly, we hold that the trial court erred in finding that the parties had agreed that appellant was to continue paying child support for the children past the age of eighteen years old and that there was not a change of circumstances sufficient to warrant modification of appellant’s child-support obligation.
Reversed and remanded.
H-art and Baker, JJ., agree. | [
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Terry Crabtree, Judge.
This is an employment-termination case. Chief Phil Johnston of the Little Rock Fire Department wrote the appellee, Richard Hubbard, a letter terminating him from his position as a driver for the fire department effective April 20, 2001. Appellee appealed his termination to the Little Rock Civil Service Commission. After a hearing, the Commission signed an order on August 9, 2001, which altered the form of discipline imposed on appellee. Rather than terminating appellee, the Commission imposed an unpaid thirty-day suspension on him, ending at the conclusion of his family-medical leave, and thereafter allowed him a one-year unpaid leave of absence to complete drug rehabilitation. The appellant, City of Little Rock, appealed the Commission’s decision to the Pulaski County Circuit Court, and the circuit court upheld the Commission’s ruling. First on appeal, appellant claims that the circuit court’s decision was not supported by substantial evidence and that the trial court did not engage in a de novo review of the case. For appellant’s second point on review, it contemplates a possible conflict-of-interest argument from appellee. We reverse and remand.
Appellee became a firefighter for the City of Little Rock on July 4, 1988, where he worked as a hoseman. In 1996, appellee was promoted and began driving fire trucks. He served as a driver until he was terminated. Appellee began having problems with drug addiction in 1993. Since July 2000, appellee has been in at least three different drug-treatment programs.
In July of 2000, appellee entered a drug-treatment program at Bridgeway in Little Rock; however, he suffered a relapse shortly thereafter. On October 2, 2000, appellee suffered a knee injury and took leave until November 7, 2000. In the meantime, on October 28, 2000, appellee entered COPAC, a drug-rehabilitation facility. Several days later, appellee’s wife met with Chief Johnston to discuss appellee’s rehabilitation and request a family-medical leave for him. That day, Chief Johnston sent a letter to appellee explaining family-medical leave procedures. On November 10, 2000, appellee’s family-medical leave began and continued for twelve weeks.
While at COPAC, appellee left the facility for a short time with two other patients and smoked marijuana and drank alcohol. Ultimately, on December 27, 2000, after sixty days of treatment, appellee left COPAC against medical advice. Appellee testified that he left the facility because it cost $6,000 per month for treatment and that this financial burden was too great for his family. On January 16, 2001, appellee called Chief Wilson and represented that he was ready to return to work. On January 18, 2001, appellee presented to Dr. Harley Haber in Little Rock, and the doctor released appellee to work effective January 22, 2001. On January 25, 2001, Chief Johnston sent appellee a pre-termination letter. On February 9, 2001, an administrative hearing was held regarding appellee. Finally, appellee received a letter dated April 20, 2001, which stated that he was terminated effective that day.
On July 17, 2001, the Civil Service Commission held a hearing concerning appellee’s termination. The Commission over turned Chief Johnston’s decision to terminate appellee and instead imposed an unpaid thirty-day suspension, to end at the conclusion of his family-medical leave, and thereafter granted appellee a one-year unpaid leave of absence. Appellant appealed to the circuit court, and it upheld the Commission’s decision to modify appel-lee’s punishment.
Appellant contends that substantial evidence does not support the circuit court’s order and that the trial court did not engage in a de novo review of the case. The circuit court reviews decisions of the Civil Service Commission de novo and has jurisdiction to modify the punishment fixed by the Commission even if the court agrees that the officer violated department rules and regulations. City of Van Buren v. Smith, 345 Ark. 313, 46 S.W.3d 527 (2001); City of Little Rock v. Hall, 249 Ark. 337, 459 S.W.2d 119 (1970). The circuit court does not merely review the decision of the Civil Service Commission for error, but instead conducts a de novo hearing on the record before the Civil Service Commission and any additional competent testimony that either party might desire to introduce. Daley v. City of Little Rock, 36 Ark. App. 80, 818 S.W.2d 259 (1991); Ark. Code Ann. § 14-51-308(e)(1)(C) (2000). The effect of this statutory provision for a de novo appeal to circuit court is to reopen the entire matter for consideration by the circuit court, as if a proceeding had been originally brought in that forum. Civil Service Commission of Van Buren v. Matlock, 206 Ark. 1145, 178 S.W.2d 662 (1944). Although the transfer from a civil service commission is called an appeal in Ark. Code Ann. § 14-51-308(e)(l), the circuit court proceeding is in the nature of an original action. Daley, supra.
In Petty v. City of Pine Bluff, 239 Ark. 49, 386 S.W.2d 935 (1965), our supreme court stated that the test on appeal to the supreme court from circuit court was whether the judgment was supported by substantial evidence. However, that holding was changed effective July 1, 1979, by Arkansas Rule of Civil Procedure 52, which now prevents us from reversing the trial court unless its findings are clearly against the preponderance of the evidence. See City of Van Buren v. Smith, supra. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Foundation Telecommunications v. Moe Studio, 341 Ark. 231, 16 S.W.3d 531 (2000).
In its order-filed on July 13, 2002, the circuit court wrote:
The Court, after hearing arguments of counsel and having reviewed the record finds that while there is substantial evidence to support Little Rock Fire Chief Johnston’s decision to terminate [Hubbard’s] employment with the Little Rock Fire Department, there is also substantial evidence to support the decision of the Little Rock Civil Service Commission to overturn the Chiefs decision and hereby affirms the Civil Service Commission’s decision for the reasons stated from the bench, which are hereby incorporated herein.
The trial judge stated from the bench:
The Court is going to rule to affirm the decision of the Civil Service Commission. I do that in disagreeing with the City’s position at this point. The City being the Chief. There is substantial evidence for the Commission’s decision. I am not saying that there is a preponderance or that there is more evidence, but there is substantial. The Court believes that the Commission is charged with having the final say on employee matters. Both the Commission and the Chief disciplined Mr. Hubbard and it is just a question of degree of discipline. The Court affirms the ruling of the Civil Service Commission.
The foregoing demonstrates that the circuit court was clearly confused as to the type of review it should conduct. In its order, the court stated that substantial evidence supported the Commission’s decision. From the bench, the trial judge referred to the substantial-evidence standard of review in addition to “a preponderance [of the evidence].”
Undoubtedly, the trial court should have engaged in a de novo review of the matter. See City of Van Buren v. Smith, supra. The substance and intent of the circuit court proceeding is to provide a judicial forum for relitigation of the case. Matlock, supra. In Matlock, the court described an appeal to circuit court from a civil service commission and quoted United States v. Ritchie, 58 U.S. 525 (1854), for the proposition that, although the transfer is called an appeal:
[W] e must not, however, be misled by a name, but look to the substance and intent of the proceeding. The district court is not confined to a mere re-examination of the case as heard and decided by the Board of Commissioners, but hears the case de novo[.]
Matlock at 1150, 178 S.W.2d at 665. We are convinced that the trial court made its decision in this case according to a substantial-evidence test. Because the trial court did not conduct a de novo review of this matter, we reverse and remand to the circuit court for a new trial consistent with this opinion. We need not address appellant’s second point on appeal as we reverse and remand on the first.
Reversed and remanded.
Stroud, C.J., and Robbins, J., agree. | [
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John F. Stroud, Jr., Chief Judge.
This appeal arose from a civil judgment of $6,014.38 in the circuit court of Pulaski County in favor of appellee and against appellant, Mercantile Bank of Arkansas and its successor entity, Firstar Bank. Appellant argues (1) that the trial court erred in finding that the conduct of appellee, Dr. John G. Vowell, did not substantially contribute to forgeries and unauthorized transactions by his daughter, Suzan Vowell, and that, as a result, appellee was not precluded from asserting the forgeries and unauthorized transactions against appellant pursuant to Ark. Code Ann. § 4-3-406; (2) that the trial court further erred in applying the allocation and preclusion provisions of Ark. Code Ann. § 4-4-406(e); and, finally, (3) that the trial court erred in apportioning the loss between appellee and appellant pursuant to the customer-account agreements. Appellee chose not to file a brief in response. We hold that there is no clear error in the trial court’s finding that Dr. Vowell’s conduct did not substantially contribute to the forgeries and unauthorized transactions. Neither do we find clear error in the trial court’s finding that the appellant bank did not fail to exercise ordinary care. Where we do find error, however, is in the trial court’s determination of which items appellee is precluded from recovering from appellant and the trial court’s allocation of the loss between appellant and appellee. We therefore affirm in part and reverse and remand in part so that the trial court can enter a new judgment in accordance with this opinion.
Appellee and his wife, now deceased, had an interest-bearing checking account and a savings/money-market account with appellant. Both appellee and his wife signed the customer- account agreements with respect to each account. Each agreement contained a provision immediately above the signature line, which provided:
SIGNATURE(S) — THE UNDERSIGNED AGREE(S) TO THE TERMS STATED ON THE FRONT AND BACK OF THIS FORM, AND ACKNOWLEDGE(S) RECEIPT OF A COMPLETED COPY ON TODAY’S DATE. THE UNDERSIGNED ALSO ACKNOWLEDGE(S) RECEIPT OF A COPY OF OUR ACCOUNT INFORMATION BROCHURE [.]
The agreements also contained the following provision:
STATEMENTS — You must examine your statement of account with “reasonable promptness.” If you discover (or reasonably should have discovered) any unauthorized payments or alterations, you must promptly notify us of the relevant facts. If you fail to do either of these duties, you will have to either share the loss with us, or bear the loss entirely yourself (depending on whether we exercised ordinary care and, if not, whether we substantially contributed to the loss). The loss could be not only with respect to items on the statement but other items forged or altered by the same wrongdoer. You agree that the time you have to examine your statement and report to us will depend on the circumstances, but that such time will not, in any circumstance, exceed a total of 30 days from when the statement is first made available to you.
You further agree that if you fail to report any unauthorized signatures, alterations, forgeries or any other errors in your account within 60 days of when we make the statement available, you cannot assert a claim against us on any items in that statement, and the loss will be entirely yours. This 60 day limitation is without regard to whether we exercised ordinary care. The limitation in this paragraph is in addition to that contained in the first paragraph of this section.
Appellant’s policy regarding bank statements is to mail monthly bank statements on any account that has deposit or withdrawal activity. The bank statement covers the previous month’s activity for the time frame that appears on the statement. The statements were usually sent to the account holder two days after the cutoff day listed on the statement and were generally considered as received two days thereafter. Appellee received bank statements at the Little Rock, Arkansas, address provided in the customer-account agreements. Appellee testified at trial that his wife had been responsible for reviewing the bank statements and balancing the checkbooks. Appellee did not personally review the accounts.
In June of 1997, appellee and his wife allowed their daughter, Suzan Vowell, now also deceased, and her boyfriend to move in with them at their home. At that time, they knew that Suzan and her boyfriend had been involved with drugs, alcohol, writing bad checks, and stealing. They also knew that Suzan had stolen checks from them in the past and forged either appellee’s or his wife’s signatures. The trial court found that appellee and his wife took precautions against future theft and forgeries by Suzan by hiding Mrs. Vowell’s purse, which contained their checkbook, under the kitchen sink. Furthermore, appellee’s wife suffered from diabetes mellitus and alcoholism, conditions that forced her to stay in bed either all or most of the time. Appellee, however, continued to rely on his wife to review the bank statements and to balance the checkbooks.
Beginning in June 1997 and continuing into September 1997, Suzan forged appellee’s wife’s signature on forty-two checks, drawn on both accounts, and committed nine unauthorized ATM withdrawals in the aggregate amount of $ 12,028.7s. Suzan found her mother’s purse hidden under the kitchen sink and stole the checkbooks and ATM card from the purse. She apparently had access to, or figured out, appellee’s PIN (personal identification number) because the number was identical with appellee’s home security-system code. Suzan also stole certain credit cards, which she used to cpnduct various unauthorized transactions, but they did not involve appellant.
The first unauthorized banking transaction appeared on the June 1997 bank statement for the checking account, covering trans actions occurring June 6 through July 7, 1997. This statement was sent to appellee on July 9, 1997. The trial court found that the statement was therefore deemed received as of July 11, 1997. This statement contained unauthorized payments totaling $230.00.
The second set of unauthorized transactions appeared on the July 1997 bank statement for the checking account, covering transactions occurring July 8 through August 6, 1997. That statement was mailed on August 8, 1997, and was thus deemed received as of August 10, 1997. This statement contained unauthorized payments totaling $1,235.25.
The third set of unauthorized transactions also appeared on the July 1997 bank statement for the savings account, covering transactions occurring July 23 through August 21, 1997, which was sent on August 23, 1997, and was deemed received as of August 25, 1997. This statement contained unauthorized payments totaling $5,140.00.
The fourth set of unauthorized transactions appeared on the August 1997 bank statement for the checking account, covering transactions occurring August 7 through September 7, 1997. That statement was mailed to appellee on September 9, 1997, and was deemed received as of September 11, 1997. This statement contained unauthorized payments totaling $1,423.50.
Finally, the fifth set of unauthorized transactions appeared on the August 1997 bank statement for the savings account, covering transactions occurring August 22 through September 22, 1997. This statement was sent on September 24, 1997, and was deemed received as of September 26, 1997. It contained unauthorized payments totaling $4,000.00. The trial court specifically found that appellee did not notify appellant of the unauthorized transactions appearing on the June and July checking-account statements within thirty days from the date each was either sent or deemed received. Finally, on September 15, 1997, appellee discovered a receipt for an unauthorized credit-card transaction and notified appellant about his discovery at a meeting with Bill Eldridge, branch manager of appellant’s Geyer Springs branch. Immediately, appellant froze appellee’s and his wife’s accounts, alerted its tellers and computer system, and began investigating the alleged forgeries and other unauthorized transactions pursuant to its policy.
As a result of the alert on appellee’s account, Suzan was arrested on September 16, 1997, after she attempted to obtain an unauthorized cash advance at appellant’s Riverfront branch. No more unauthorized transactions occurred after the alert was issued. Appellant prepared eight separate “Forged or Altered Check Affidavits of Loss,” setting forth the forty-two forged checks and nine unauthorized ATM withdrawals. Appellee’s wife signed the affidavits and Bill Eldridge notarized her signature on each affidavit.
Based on the facts before it, the trial court concluded that appellee and his wife “attempted to take proper precautions to safeguard their checkbooks, ATM cards and PIN” and that Dr. Vowell’s conduct did not “substantially contribute to the forgeries and unauthorized transactions by Suzan Vowell which were paid in good faith by Firstar.” Thus, the trial court determined that appellee was not precluded from asserting any of the forgeries and unauthorized transactions against appellant under Ark. Code Ann. § 4-3-406.
The trial court concluded, however, that appellee failed to exercise reasonable promptness in the examination and reporting of the forged checks and other unauthorized transactions on the June checking-account statement and the July checking-account statement. Therefore, the court found that appellee was precluded from asserting against appellant the forgeries contained on both of those checking-account statements. The trial court also found that appellee was entitled to an allocation of loss as between him and appellant. The trial court ordered appellant to pay $6,014.38, without going into any detailed explanation of how this allocation was calculated.
The trial court further found that appellant had not failed to exercise ordinary care and that it did not substantially contribute to the losses. Specifically, the court found that appellee was precluded from asserting against appellant the unauthorized payments in the June 1997 checking statement totaling $230.00, as well as the payments contained in the July 1997 checking statement totaling $1,235.25. The court then held:
As previously noted, the Court finds that the additional amount should be apportioned. Specifically, the Court finds that Dr. Vowell should be responsible for an additional $4,552.12 of the loss. Therefore, Dr. Vowell is entitled to recover from the defendant the total sum of $6,014.38.
From that order arises this appeal.
Arkansas Code Annotated section 4-3-406
Appellant first argues that the trial court (1) erred in finding that appellee’s conduct did not substantially contribute to the forgeries and unauthorized transactions, and (2) therefore erred in concluding that appellee was not precluded from asserting the forgeries and unauthorized transactions against appellant pursuant to Arkansas Code Annotated section 4-3-406. We find no error and affirm.
We review findings of fact by determining whether the findings are clearly erroneous, or clearly against the preponderance of the evidence. Knight v. Day, 343 Ark. 402, 36 S.W.3d 300 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. City of Van Buren v. Smith, 345 Ark. 313, 46 S.W.3d 527 (2001).
Our state uses a version of the applicable Uniform Commercial Code section 3-406, as provided in Arkansas Code Annotated section 4-3-406 (Repl. 2001). It states:
(a) A person whose failure to exercise ordinary care substantially contributes to an alteration of an instrument or to the making of a forged signature on an instrument is precluded from asserting the alteration or the forgery against a person who, in good faith, pays the instrument or takes it for value or for collection.
(b) Under subsection (a), if the person asserting the preclusion fails to exercise ordinary care in paying or taking the instru ment and that failure.substantially contributes to loss, the loss is allocated between the person precluded and the person asserting the preclusion according to the extent to which the failure of each to exercise ordinary care contributed to the loss.
(c) Under subsection (a), the burden of proving failure to exercise ordinary care is on the person asserting the preclusion. Under subsection (b), the burden of proving failure to exercise ordinary care is on the person precluded.
(Emphasis added.)
Here, the trial court concluded that appellee attempted to take proper precautions to safeguard the checkbooks, ATM cards, and PIN from their daughter, Suzan Vowell. We find no clear error in that factual determination. Consequently, we also find that the trial court did not err in concluding that appellee was not precluded from asserting the forgeries and unauthorized transactions against appellant pursuant to section 4-3-406 because the preclusion would only apply if appellee failed to exercise ordinary care that substantially contributed to the loss. Moreover, there could be no allocation of loss in this case under section 4-3-406 because it requires a lack of ordinary care by the customer and the bank, neither of which occurred here.
Arkansas Code Annotated section 4-4-406(e)
For its second point of appeal, appellant contends that the trial court erred in its application of Arkansas Code Annotated section 4-4-406(e). We agree and point out that, generally, section 4-3-406 applies to a customer’s conduct before a forgery and section 4-4-406 applies to a customer’s conduct after a forgery.
Distinct from the amount of unauthorized payments that appellee may assert against appellant bank under Arkansas Code Annotated section 4-4-406 (d)(2), which will be discussed later, we must also analyze whether the trial court properly used the allocation of loss provision that is contained in Arkansas Code Annotated section 4-4-406 (e). Section 4-4-406 (e) provides:
(e) If subsection (d) applies and the customer proves that the bank failed to exercise ordinary care in paying the item and that the failure substantially contributed to loss, the loss is allocated between the customer precluded and the bank asserting the preclusion according to the extent to which the failure of the customer to comply with subsection (c) and the failure of the bank to exercise ordinary care contributed to the loss. If the customer proves that the bank did not pay the item in good faith, the preclusion under subsection (d) does not apply.
(Emphasis added.)
According to Arkansas Code Annotated section 4-4-406(e), if a bank customer can prove that the bank failed to exercise ordinary care in paying the forged item, even though the customer failed to exercise reasonable promptness in examining the bank statements, the loss is allocated between the bank and the customer according to the extent of the customer’s failure to comply with the duties of § 4-4-406(c) and the bank’s failure to exercise ordinary care in paying the item. In order to prove a bank’s failure to exercise ordinary care, a customer must prove that the bank’s conduct does not fall within the statutory definition of ordinary care, as found in Arkansas Code Annotated section 4-3-103(a)(7) (Repl. 2001):
(7) “Ordinary care” in the case of a person engaged in business means observance of reasonable commercial standards, prevailing in the area in which the person is located, with respect to the business in which the person is engaged. In the case of a bank that takes an instrument for processing for collection or payment by automated means, reasonable commercial standards do not require the bank to examine the instrument if the failure to examine does not violate the bank’s prescribed procedures and the bank’s procedures do not vary unreasonably from general banking usage not disapproved by this chapter or 4-4-101 et seq.
See also Ark. Code Ann. § 4-4-104(c) (Repl. 2001) (making definition in § 4-3-103(a)(7) applicable to chapter 4 of title 4); comment 4 of Uniform Commercial Code, Art. 4, § 4-406 (stating that the “definition of‘ordinary care’ in Section 3-103 . . . rejects those authorities that hold, in effect, that failure to use sight examination is negligence as a matter of law” and that where a customer’s failure to examine her bank statements has led to loss under subsection (d) of § 4-406 “a bank should not have to share that loss solely because it has adopted an automated collection or payment procedure in order to deal with the great volume of items at a lower cost to all customers”).
In the instant case, the trial court’s findings contain no suggestion that appellant was negligent or otherwise failed to exercise ordinary care when it made the payments. To the contrary, the trial court specifically stated that the “Court does not find that Firstar failed to exercise ordinary care and that Firstar substantially contributed to the loss.” For purposes of this issue, it is significant that appellant made its last payment pursuant to Suzan Vowell’s unauthorized transactions and forgeries on September 4, 1997, eleven days before it received notification from appellee that there was a problem. Appellant could not have known that the transactions were the result of forgery or other unauthorized conduct. Subsection (e) requires proof that appellant failed to exercise ordinary care. Such proof was missing here, and therefore, we reverse the trial court’s allocation of loss.
Arkansas Code Annotated section 4-4-406(d)(2)
The fact that appellant exercised ordinary care in paying the items presented to it does not resolve the question of whether appellee is precluded from asserting some or all of those items against appellant. Arkansas Code Annotated subsections 4-4-406 (c) and (d) explain a customer’s duties with respect to examining his or her bank statements and the consequences of failing to do so. They provide in relevant part:
(c) If a bank sends or makes available a statement of account ... , the customer must exercise reasonable promptness in examining the statement ... to determine whether any payment was not authorized because ... a purported signature by or on behalf of the customer was not authorized. If, based on the statement . . . the customer should reasonably have discovered the unauthorized payment, the customer must promptly notify the bank of the relevant facts.
(d) If the bank proves that the customer failed, with respect to an item, to comply with the duties imposed on the customer by subsection (c), the customer is precluded from asserting against the bank:
(1) the customer’s unauthorized signature or any alteration on the item, if the bank also proves that it suffered a loss by reason of the failure; and
(2) the customer’s unauthorized signature ... by the same wrongdoer on any other item paid in good faith by the bank if the payment was made before the bank received notice from the customer of the unauthorized signature . . . and after the customer had been afforded a reasonable period of time, not exceeding thirty (30) days, in which to examine the .. . statement of account and notify the bank.
(Emphasis added.) The revised commentaries to section 4-4-406(d) offer further explanation:
2. Subsection (d) states the consequences of a failure by the customer to perform its duty under subsection (c) to report an alteration or the customer’s unauthorized signature. Subsection (d)(1) applies to the unauthorized payment of the item to which the duty to report under subsection (c) applies. If the bank proves that the customer “should reasonably have discovered the unauthorized payment” and did not notify the bank, the customer is precluded from asserting against the bank the alteration or the customer’s unauthorized signature if the bank proves that it suffered a loss as a result of the failure of the customer to perform its subsection (c) duty. Subsection (d) (2) applies to cases in which the customer fails to report an unauthorized signature or alteration with respect to an item in breach of the subsection (c) duty and the bank subsequently pays other items of the customer with respect to which there is an alteration or unauthorized signature of the customer and the same wrongdoer is involved. If the payment of the subsequent items occurred after the customer has had a reasonable time (not exceeding 30 days) to report with respect to the first item and before the bank received notice of the unauthorized signature or alteration of the first item, the customer is precluded from asserting the alteration or unauthorized signature with respect to the subsequent items.
Code Commentaries at 300-01 (Repl. 1995) (internal cross-references omitted).
Summaries of the unauthorized transactions shown on appel-lee’s bank statements were introduced as Exhibit A. We presume that the information contained in Exhibit A is correct and therefore reproduce pertinent portions of that exhibit below:
JUNE CHECKING STATEMENT (Deemed Rec’d 7/11/97)
Acct # Check # Transaction Date Amount
4331297996 2554 07/01/97 80.00
2551 07/01/97 150.00
TOTAL 230.00
JULY CHECKING STATEMENT (Deemed Rec’d 8/10/97)
Acct # Check # Transaction Date Amount
4331297996 2555 07/08/97 60.00
2612 07/11/97 60.00
2614 07/14/97 120.00
2552 07/15/97 60.00
2630 07/18/97 100.00
2631 07/18/97 100.00
2632 07/21/97 120.00
2636 07/23/97 125.00
2645 07/28/97 120.00
2560 07/30/97 120.25
2568 08/04/97 250.00
TOTAL 1,235.25
JULY SAVINGS STATEMENT (Deemed Rec’d 8/25)
Acct # Check # Transaction Date Amount
4331269888 170 07/30/97 110.00
171 07/30/97 200.00
172 08/05/97 325.00
173 08/07/97 320.00
175 08/07/97 170.00
176 08/08/97 240.00
178 08/09/97 360.00
177 08/11/97 325.00
179 08/12/97 300.00
181 08/13/97 350.00
182 08/14/97 320.00
183 08/15/97 300.00
184 08/18/97 320.00
186 08/18/97 400.00
188 08/19/97 200.00
187 08/19/97 400.00
189 08/20/97 500.00
TOTAL 5,140.00
AUGUST CHECKING STATEMENT (Deemed Rec’d 9/11/
97)
Acct # Check # Transaction Date Amount
2578 08/18/97 20.00
ATM wtd/fee 08/21/97 103.50
ATM wtd. 08/23/97 200.00
ATM wtd. 08/23/97 100.00
ATM wtd. 08/24/97 100.00
ATM wtd. 08/24/97 100.00
ATM wtd. 08/24/97 100.00
ATM wtd. 08/26/97 200.00
ATM wtd. 08/28/97 200.00
ATM wtd. 08/30/97 300.00
TOTAL 1,423.50
AUGUST SAVINGS STATEMENT (Deemed Rec’d 9/26/97)
Acct # Check # Transaction Date Amount
4331269888 190 08/22/97 400.00
193 08/25/97 200.00
192 08/25/97 400.00
195 08/25/97 500.00
196 08/26/97 400.00
198 08/28/97 350.00
199 08/29/97 400.00
202 09/02/97 800.00
203 09/03/97 150.00
204 09/04/97 250.00
205 09/04/97 150.00
TOTAL 4,000.00
Appellee is precluded from recovering on any of the items contained in the June and July checking account statements because of the thirty-day time limit contained in the customer-account agreement, which was quoted previously. According to the agreement, if the customer fails to examine his or her statement and notify the bank of any unauthorized transactions within thirty days of the date that the statement is deemed to be received, and the bank is not at fault, then the customer is precluded from recovery. The June checking account statement was deemed received on July 11, 1997, and thirty days after that date would have been August 10, 1997. The July checking account statement was deemed received on August 10, 1997, and thirty days after that date would have been September 9, 1997. Appellee did not notify the bank until September 15, 1997, which was outside the agreed-upon time limits.
The terms of the customer-account agreement do not preclude appellee from recovering on the items contained in the other three bank statements, i.e., the July savings, the August checking, and the August savings statements, because the bank was notified before thirty days had elapsed following the deemed-receipt dates of those statements, to wit September 24, October 11, and October 26, 1997.
However, the preclusion provision of Arkansas Code Annotated section 4-4-406(d)(2) does affect the July savings, the August checking, and the August savings statements because “the same wrongdoer,” Suzan Vowell, was involved in all of the unauthorized transactions contained in these statements. This section precludes appellee from recovering on any unauthorized transactions that occurred after August 10, 1997, which is thirty days from the deemed receipt-date of the first statement, i.e., the June checking account statement. This totally precludes appellee’s recovery under the August checking and the August savings statements. However, the July savings account statement contains seventeen items, some of which are precluded and some of which are not. The last ten items have transaction dates after August 10, 1997, and are therefore precluded. The first seven items, however, precede the August 10 date and are therefore not precluded:
JULY SAVINGS STATEMENT (Deemed Rec’d 8/25)
Acct # Check # Transaction Date Amount
4331269888 170 07/30/97 110.00
171 07/30/97 200.00
172 08/05/97 325.00
173 08/07/97 320.00
175 08/07/97 170.00
176 08/08/97 240.00
178 08/09/97 360.00
These seven transactions total $1,725.
Allowing recovery for the items that the bank paid before August 10, 1997, but precluding recovery for those items that were paid after August 10 is in keeping with the purpose of section 4-4-406 as explained in the comments:
3. . . . The rule of subsection (d)(2) follows pre-Code case law that payment of an additional item or items bearing an unauthorized signature or alteration by the same wrongdoer is a loss suffered by the bank traceable to the customer’s failure to exercise reasonable care in examining the statement and notifying the bank of objections to it. One of the most serious consequences of failure of the customer to comply with the requirements of subsection (c) is the opportunity presented to the wrongdoer to repeat the misdeeds. Convérsely, one of the best ways to keep down losses in this type of situation is for the customer to promptly examine the statement and notify the bank of an unauthorized signature or alteration so that the bank will be alerted to stop paying further items. Hence, the rule of subsection (d)(2) is prescribed, and to avoid dispute a specific time limit, 30 days, is designated for cases to which the subsection applies. These considerations are not present if there are no losses resulting from the payment of additional items. In these circumstances, a reasonable period for the customer to comply with its duties under subsection (c) would depend on the circumstances and the subsection (d)(2) time limit should not be imported by analogy into subsection (c).
Code Commentaries at 298-99 (Repl. 1995) (internal cross-references omitted and emphasis added).
Effect of the Customer-Account Agreements on Loss Apportionment
Appellant alternatively argues that the trial court erred in apportioning the loss between appellee and appellant pursuant to the Customer-Account Agreements. Generally, Arkansas Code Annotated section 4-4-103 (Repl. 2001) permits certain changes from the requirements set forth in title 4, chapter 4 of the Arkansas Code by means of private agreements between banks and customers. However, in the instant case, we conclude that the language contained in the applicable provisions, quoted previously, does not substantially vary from the requirements under Arkansas Code Annotated section 4-4-406, but rather virtually tracks the statute’s language. In addition, the trial court, when addressing that contractual argument below, expressly referred to its finding concerning the allocation of loss under Arkansas Code Annotated section 4-4-406(e), the one it had “previously noted.” Therefore, we need not address this argument further because, as we have pointed out previously, we find no error in the trial court’s findings of fact that appellee did not substantially contribute to the forgery, that appellant did not fail to use ordinary care in paying the forged items, and that appellee did fail to timely examine and report the forgeries reflected in the bank statements. Thus, there is no basis in this case for allocation under section 4-3-406, section 4-4-406, or the customer-account agreements.
Affirmed in part and reversed and remanded in part for entry of a judgment in the amount of $1,725.
Affirmed in part; reversed and remanded in part.
Gladwin and Baker, JJ., agree. Griffen, J., concurs. Neal and Roaf, JJ., dissent in part; concur in part.
Judge Roafs dissenting opinion mentions a federal statute that pertains to electronic-fund transfers, including ATM transactions, 15 U.S.C. § 1693 et seq. The applicability of this statute and the manner in which it affects this case were not raised before the trial court by either party below nor were they raised to this court on appeal. With no Arkansas appellate cases construing this statute and without the benefit of argument from counsel for the parties involved in this case, we decline to address the issue.
The trial court notes in its findings of fact that the July 1997 bank statement for the savings account was sent out on August 23, 1997, and “deemed received as of September 11, 1997.” This must be a clerical error, inadvertently also picked up by appellant in its brief. Pursuant to the stated policy, the trial court deemed statements as received two days after they were sent to the customer, which would have been August 25, 1997.
We note that the trial court’s order to appellant to pay $6,014.38 constitutes exactly one-half of the entire sum of Suzan Vowell’s unauthorized bank transactions and forgeries. | [
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Josephine Linker Hart, Judge.
This appeal involves an action for damages for breach of a commercial lease. The issue is whether the sole shareholder of the tenant corporation is personally liable, either under a personal guaranty of the lease or by piercing the corporate veil, for the damages caused by his corporation’s breach of the lease. The trial judge found that the shareholder was not liable under either basis. We find no error and affirm.
In October 1993, appellant Quinn-Matchet Partners, Inc., signed a commercial lease with appellee Parker Cqrporation. Appellee Richard Parker, the sole shareholder in Parker Corporation, personally guaranteed the lease. The lease contained the following provisions:
Article 22. DEFAULTS BY TENANT
A. The occurrence of any of the following shall constitute a material default and breach of this Lease by Tenant.
(i) Any failure by Tenant to pay Rent or make any other payment required to be made by Tenant hereunder within ten (10) days after receipt of written notice from Landlord.
(ii) A failure by Tenant to observe and perform any other material provision of this Lease to be observed or performed by the Tenant, where such failure continues for twenty (20) days after written notice thereof by Landlord to Tenant, except that this twenty (20) day period shall be extended for a reasonable period of time if the alleged default is not reasonably capable of cure within said twenty (20) day period and Tenant proceeds to diligently cure the default.
Article 60. PERSONAL GUARANTEE
E. Richard Parker, Jr., agrees to Personally Guarantee the Lease for a period of three (3) years from the Commencement Date. Provided the Tenant is not in default on any of the terms and condition of the Lease Agreement, the Personal Guarantee shall be released.
Appellant filed a complaint in unlawful detainer on February 29, 2000, alleging that the corporation had failed to make the monthly rental payments since February 1998 and had failed to surrender possession. The complaint also alleged that the appellee corporation’s charter had been revoked as of December 31, 1999, and, therefore Parker, as the sole shareholder of a defunct corporation, was personally liable for the debts of the corporation. After appellees voluntarily surrendered possession, appellant amended its complaint to allege that Parker was personally liable for the corporate debts because he used the corporation as his alter ego and that he had disregarded the corporate formalities.
Richard Parker testified that he was the sole shareholder, officer, and director of Parker Corporation. He admitted that he signed a lease with appellant on behalf of the corporation as president as well as giving his personal guaranty. He testified that he understood Article 60 of the lease to mean that if, at the end of the three-year period, the corporation was current in its obligations under the lease, the personal guaranty would be released but that, if the corporation was not current at that time, the personal guaranty would remain in force. He denied that the corporation was in default at the end of the three-year period, October 1996, and stated his belief that all payments due appellant had been made.
Parker admitted to documented instances, including several between March 1995 and June 1996, when the corporation was notified that it had failed to make payments due under the lease such as rent, real estate taxes, insurance premiums, and late fees. He stated that the corporation vacated the premises in February 2000 but had not made any payments since that time.
Parker stated that he made a stockholder loan to the corporation in the amount of $100,000, which he said was the amount required to obtain Small Business Administration (SBA) financing. He admitted that there was no note evidencing the terms of the loan such as due date, interest rate, or other repayment terms, and that the loan had been repaid while other creditors had not been paid.
Parker identified several of the corporation’s corporate checks payable to him personally totaling over $31,500, some of which were made while the corporation was not paying its obligations to other creditors. He also admitted that, pursuant to the advice of an accountant, the corporation made the lease payments on a vehicle titled in his individual name but stated that the vehicle was used for business purposes. He also testified that he was rarely paid a paycheck and that the money he received from the corporation was in repayment of the loan. He said that this was also done on the accountant’s advice. Parker also testified that corporate records showed that the corporation made a loan to him of approximately $98,000.
Parker testified that no corporate meetings were held because he did not realize that he was required to hold corporate meetings if he was the only shareholder. He also testified that, although the corporation sometimes kept corporate minutes, he realized that he was equating corporate resolutions with corporate minutes. He also testified that the corporation maintained separate bank accounts and that the corporate account was not used to pay his personal expenses such as mortgage or utility payments. He said that separate corporate tax returns were filed and that other financial records were kept for the corporation.
Walter Quinn, appellant’s managing director, testified that appellant, a real estate development and management company, agreed to build and lease a store to Parker Corporation for operation as a video store. He stated that he insisted on Parker’s personal guaranty before agreeing to the lease because it was a start-up business. Quinn stated that the corporation was consistently in default during the three-year guaranty period, including at the end of that period. He explained that the corporation was late with the rent or made only partial payments. He also stated that appellant sometimes paid the real-estate taxes or insurance premiums in order to protect its investment.
Quinn testified that appellant was able to relet the premises but for a reduced rental. He admitted that an exhibit showed that Parker Corporation did not owe any money sought in the suit prior to February 1998. He also admitted that, prior to 1998, appellant did not exercise any of its rights under the lease’s default provisions. He also admitted that all of the payments appellant received under the lease were drawn on the corporation’s account and not Parker’s individual account.
After a bench trial, the trial court noted that there was no dispute as to the appellee corporation’s liability for breach of the lease and awarded judgment in the amount of $58,095.39. As to the personal guaranty, the trial court found that, although Parker Corporation experienced financial difficulties as early as 1994, the corporation was current in its obligations as of October 1996; that appellant never exercised its option to declare Parker Corporation in default during the three-year guaranty period; that there was no default prior to October 1996; and that Parker’s personal guaranty was released.
As to piercing the corporate veil, the trial court found that Parker did not operate the corporation as his alter ego and, therefore, was not personally liable on the lease agreement. The trial court noted that, although the corporation did not hold shareholder or director meetings and did not maintain a corporate record book, the corporation conducted business as a separate entity. The trial court found that the corporation had articles of incorporation and stock certificates; that the corporation executed formal corporate resolutions when required; and tha^ the corporation maintained separate checking accounts and filed separate tax returns. The trial court noted that the only evidence that Parker operated the corporation as his alter ego was that Parker was paid some $30,000 between July 1998 and December 1999, and that the corporation made the payments on a vehicle titled in Parker’s name. The trial court also noted that the corporation’s accountant advised Parker to take the money as repayment of a loan made to the corporation, and that the vehicle was used for business purposes. This appeal followed.
Appellant raises one point on appeal, that the trial court erred in not finding Richard Parker personally Hable for the damages caused by Parker Corporation’s breach of its lease. Appellant divides the point into two parts. In the first part, appellant argues that the trial court erred in failing to pierce the corporate veil so as to hold Parker personally liable. In the second part, appellant argues that Parker is liable under the personal guaranty he signed.
Our standard of review for bench trials is whether the trial court’s findings were clearly erroneous or clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a); Stuttgart Reg’l Med. Ctr. v. Cox, 343 Ark. 209, 33 S.W.3d 142 (2000). This court reviews the evidence in the light most favorable to the appellee and resolves all inferences in favor of the appellee. See Ford-Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998). Disputed facts and determinations of the credibility of witnesses are within the province of the fact-finder. Id.
• In the first part of its argument, appellant argues that the trial court erred in not piercing the corporate veil because, according to appellant, Parker failed to observe corporate formalities in form and in substance. 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). 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 & 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); Thomsen Family Trust v. Peterson Family Enters., 66 Ark. App. 294, 989 S.W.2d 934 (1999). The issue of whether the corporate entity has been fraudulently abused is a question for the trier of fact, and the one seeking to pierce the corporate veil and disregard the corporate entity has the burden of proving that the corporate form was abused to his injury. See National Bank of Commerce v. HCA Health Servs. of Midwest, Inc., 304 Ark. 55, 800 S.W.2d 694 (1990).
Considering the facts of the present case in light of these principles, we do not find that the trial judge clearly erred in finding that the corporate entity was not fraudulently abused. First, the trial court found no proof in the record to support a conclusion that Parker abused the corporate form for illegitimate purposes. Appellant argues that it presented such proof by showing evidence concerning the repayment of loans to Parker while the corporation’s other creditors were not being paid and by showing the payments made by the corporation for the vehicle titled in Parker’s individual name. However, appellant presented no evidence that these were not legitimate business expenses. Because appellant was the party seeking to pierce the corporate veil, it was appellant’s burden to do so. National Bank of Commerce v. HCA Health Servs. of Midwest, Inc., supra; Rhodes v. Veith, 80 Ark. App. 362, 96 S.W.3d 734 (2003). The trial court could reasonably conclude that appellant failed to meet that burden. Second, the trial court also found that the corporation adhered to corporate formalities by keeping its own financial records and bank accounts, by filing separate tax returns, and by recording the loans made between it and Parker. Appellant argues that fairness demands that the corporate veil be pierced because the factors found to support piercing the corporate veil in Heating & Air Specialists, Inc. v. Jones, 180 F.3d 923 (8th Cir. 1999), and Humphries v. Bray, supra, are present in this case in that the corporation failed to conduct annual meetings, repaid Parker while other creditors went unpaid, and paid for a vehicle titled in Parker personally. However, the problem with appellant’s argument is that the trial court did not accept appellant’s explanation of the evidence, and the weight and value of the evidence lies within the exclusive province of the trier of fact. Garrett v. Brown, 319 Ark. 662, 893 S.W.2d 784 (1995); Winchel v. Craig, supra. Further, appellant waited more than four years after becoming aware of the corporation’s defaults and two years after the last payment before filing suit. Such a delay militates against a finding of injustice. See, e.g., Padgett v. Haston, 279 Ark. 367, 651 S.W.2d 460 (1983).
In the second part of its argument, appellant argues that the corporation was in default in 1994, 1995, and 1996 and, therefore, that Parker’s personal guaranty remained in place. However, the trial court found that the corporation was not in default prior to October 1996, and we cannot'say that this finding is clearly erroneous.
Affirmed.
Crabtree and Roaf, JJ., agree. | [
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Karen R. Baker, Judge.
Appellant, Kenneth J. McConnell, appeals the Washington County Circuit Court’s denial of his motion to suppress. Appellant entered a conditional plea of guilty to driving while intoxicated, fourth offense, and was sentenced to six years’ imprisonment with five years suspended and a $1,000 fine. Appellant has two arguments on appeal. First, appellant argues that the trial court erred in denying his motion to suppress in that the arresting officer violated Arkansas Rule of Criminal Procedure 3.1, the Fourth Amendment to the United States Constitution, and Article 2 of the Arkansas Constitution because he lacked reasonable suspicion to stop the dark BMW driven by appellant. Second, appellant argues that the officer’s stop of the dark BMW should be suppressed because the tip phoned in to the Fayetteville Police Department by the known informant did not contain sufficient indicia of reliability as articulated in Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998). We affirm.
On the evening of July 10, 2002, Michael Scott Stanley, a security officer working at the Cliffs Apartments in Fayetteville, came into contact with a dark BMW. Stanley reported to the dispatcher at the Fayetteville Police Department that once the occupant of the BMW saw Stanley, the BMW took off up the hill to a dead end. Even though the BMW’s occupant saw Stanley following him, the car continued into a dead end area. The driver of the BMW turned around and came back down the hill, making a hard right turn and “flooring” the vehicle. Stanley stated that there was a bulldozer there, which the BMW barely avoided. The driver then backed the BMW all the way down the hill, past Stanley, and sped away. Stanley chased him until he exited the parking lot. Stanley gave both a description of the car and the license plate number to the dispatcher. He also stated that there appeared to only be one occupant in the BMW. He explained that the vehicle turned east out of the parking lot and then turned again traveling north. Stanley provided his name, phone number, and date of birth to the dispatcher.
Officer Crisman testified at the suppression hearing that he responded to the dispatch. Dispatch reported to him that the vehicle had left the vicinity of the Cliffs Apartments. He reported to dispatch that he had located a car matching the description and with the same license plate number given by Stanley approximately three to four miles away from the Cliffs Apartments traveling north. Officer Crisman pulled the vehicle over behind the Butcher Block on College Avenue. Officer Crisman testified that approximately seven minutes had passed between the time Officer Crisman heard the dispatch and the time that he stopped appellant. He testified that he remembered indicating in his report that he was advised of a reckless driver; however, the tape of the call did not mention the term “reckless.” He also testified that a portion of the area in which Stanley observed the vehicle was under construction. On this particular evening, law enforcement was monitoring the construction area to prevent theft. Under these circumstances, Officer Crisman suspected a possible breaking and entering.
Following a hearing, the trial court denied appellant’s motion to suppress. Appellant then entered a conditional plea of guilty, reserving his right to appeal the lawfulness of the stop. This appeal followed.
Appellant argues that the trial court erred in denying his motion to suppress in that the arresting officer violated Arkansas Rule of Criminal Procedure 3.1, the Fourth Amendment to the United States Constitution, and Article 2 of the Arkansas Constitution because he lacked reasonable suspicion to stop the dark BMW. Upon review of a trial court’s denial of a motion to suppress, we make an independent determination based upon the totality of the circumstances; the trial court’s ruling is reversed only if it is clearly erroneous or against the preponderance of the evidence. Frazer v. State, 80 Ark. App. 231, 94 S.W.3d 357 (2002) (citing Mullinax v. State, 327 Ark. 41, 938 S.W.2d.801 (1997)). Arkansas Rule of Criminal Procedure 3.1 (2003) provides that an officer may stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit a felony or misdemeanor involving forcible injury to persons or damage to property. 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.” Saulsberry v. State, 81 Ark. App. 419, 102 S.W.3d 907 (2003).
Appellant relies on the testimony of Officer Crisman, which appellant asserts did not give rise to a reasonable suspicion in this case. Appellant focuses on the fact that Officer Crisman testified that he did not witness any violation of a traffic law by appellant and that he stopped appellant solely on the information from the dispatcher. Appellant also focuses on the fact that dispatch did not indicate that a crime had been committed and that Officer Crisman testified that he did not believe any misdemeanor or felony had been committed or was about to be committed. However, the existence of a reasonable suspicion must be determined by an objective standard, and due weight must be given to the “specific reasonable inferences” an officer is entitled to derive from the situation in light of his experience as a police officer. Muhammad v. State, 64 Ark. App. 352, 984 S.W.2d 822 (1998) (citing Coffman v. State, 26 Ark. App. 45, 759 S.W.2d 573 (1988); Terry v. Ohio, 392 U.S. 1 (1968)).
It is true that neither Stanley nor the dispatcher specifically stated that appellant was driving recklessly, was drinking and driving, or had committed any specific crime. However, the conduct reported to the police that the driver of this vehicle was driving erratically and driving backwards down a hill at high speed and narrowly missing a bulldozer before speeding away, supports a reasonable suspicion that the driver was impaired. This court in Frazer, supra stated that:
This court has previously recognized the magnitude of the State’s interest in eliminating drunk driving in comparison to relatively minimal intrusions on motorists. In balancing the rights of a motorist to be free from unreasonable intrusions and the State’s interest in protecting the public from unreasonable danger, one court has stated that “[a] motor vehicle in the hands of a drunken driver is an instrument of death. It is deadly, it threatens the safety of the public, and that threat must be eliminated as quickly as possible. ... The ‘totality’ of circumstances tips the balance in favor of public safety and lessens the . . . requirements of reliability and corroboration.” (citations omitted).
(quoting Frette, 331 Ark. at 120-21, 959 S.W.2d at 743). Under these facts, we find that a reasonable suspicion existed for Officer Crisman to stop appellant.
Appellant also argues that the officer’s stop of the dark BMW should be suppressed because the tip phoned into the Fayetteville Police Department by the known informant did not contain sufficient indicia of reliability. In Bohanan v. State, 72 Ark. App. 422, 38 S.W.3d 902, (2001), this court stated:
When reasonable suspicion is based solely on a citizen-informant’s report, the three factors in determining reliability are:
1. Whether the informant was exposed to possible criminal or civil prosecution if the report is false.
2. Whether the report is based on personal observations of the informant.
3. Whether the officer’s personal observations corroborated the informant’s observations.
Bohanan, 72 Ark. App. at 429, 38 S.W.3d at 907.
Appellant argues that the third prong of the above test was not met because the person, the vehicle, and the location were not corroborated by Officer Crisman. Specifically, appellant asserts that the known informant did not identify appellant; thus, Officer Crisman did not find the person identified by the informant. Appellant also specifically asserts that the vehicle was found 4.2 miles away from the location described by the informant and traveling in a different direction. We are not persuaded that the third prong of the test was not met in this case. Here, there was an identified informant who personally observed appellant’s actions, and the information Stanley gave to the Fayetteville Police dispatcher as to the type, color, and license number of the vehicle and the general direction of travel were all independently corroborated by Officer Crisman. Officer Crisman testified that he verified that the vehicle was the one described by Stanley by both description and the license plate number before he stopped the vehicle. The vehicle was only approximately 4.2 miles from the Cliffs Apartments, the vehicle was traveling in the direction that Stanley described, and Officer Crisman stopped the vehicle within approximately seven minutes of receiving the dispatch. Therefore, under the totality of the circumstances, the trial court’s denial of appellant’s motion to suppress was not clearly erroneous. We affirm.
Robbins, Bird and Crabtree, JJ., agree.
Griffen and Roaf, JJ., dissent. | [
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Josephine Linker Hart, Judge.
After a bench trial, each of the appellants, Ricky Gamble and Shawn Mosley, was convicted of being a felon in possession of a firearm, a Class B felony. Gamble was sentenced to six years’ imprisonment as a habitual offender with four or more felony convictions, and Mosley was sentenced to five years’ imprisonment. For reversal, appellants argue that the there was insufficient evidence that either appellant constructively possessed a firearm.
Appellants were passengers in an automobile driven by Ken-dal Wheeler when Little Rock police officers stopped the car for displaying a fictitious license plate. On two earlier attempts to perform the traffic stop, the police turned on their blue lights only to have the car pull over and then drive away. After appellants were handcuffed, the officers inventoried the contents of the car in compliance with a police departmental policy requiring impoundment of vehicles displaying fictitious license plates.
The only testimony introduced at trial on April 1, 2002, was the testimony of four police officers. Officer Sean Berryman testified'that Gamble was located in the front passenger seat and Mosley was located in the back seat on the passenger side of the vehicle. Further, he stated that when he and Officer Self first attempted to initiate a traffic stop, he saw Mosley bend over a couple of times. Officer Greg Self also testified that Gamble was in the front passenger seat and Mosley was in the back passenger seat when the officers stopped the vehicle.
Roger Wallis, an officer who arrived after the stop, testified that during his search of the car, he retrieved a .357 magnum handgun from underneath the front passenger seat of the car. He further stated that the handgun was not in plain view but was located “kind of over to the driver’s side somewhat.” Officer Christian Sterka testified that after the stop, Mosley was taken to the police vehicle and placed in the back seat. Officer Sterka stated that Mosley gave several different dates for his birth and identified himself repeatedly as Anthony Rogers. Accordingly, Sterka was unable to identify Mosley until his sister called on his cellular telephone and asked to speak to her brother, Shawn Mosley. Furthermore, Sterka stated that the back seat of the car was not securely fastened and when he lifted the seat he found a Lorcin .380 semi-automatic handgun.
At the close of the State’s case-in-chief, appellants made a motion to dismiss, asserting that the State failed to prove that either appellant had constructively possessed a firearm. Appellants rested without presenting evidence and renewed their motion to dismiss, which was again denied, and the trial court found both guilty as charged.
For their sole point on appeal, appellants argue that the State failed to produce substantial evidence that each appellant constructively possessed a firearm. Appellants argue that as joint occupants of the vehicle, their close proximity to the location of the handguns found under the front and rear passenger seats does not provide substantial evidence that either appellant possessed a handgun. They further note that the handguns were not located in their personal possessions or in plain view. Appellants argue that the evidence did not establish that either of them had a right to control the vehicle or that any relationship existed between either of them and the driver of the vehicle. Thus, appellants assert there was no evidence from which it could be inferred that they had knowledge of the handguns. Additionally, Mosley, the passenger in the backseat, argues that the State’s evidence that he had bent over on at least two occasions while the police were attempting to stop the vehicle was not suspicious behavior.
A motion to dismiss in a non-jury trial is a challenge to the sufficiency of the evidence. Green v. State, 79 Ark. App. 297, 87 S.W.3d 814 (2002). Our standard of review is well settled: “The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture.” Goodman v. State, 74 Ark. App. 1, 7, 45 S.W.3d 399, 402-03 (2001). When reviewing a denial of a challenge to the sufficiency of the evidence, the appellate court considers only the evidence that supports the judgment and affirms if that evidence is substantial. Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002).
Constructive possession requires the State to prove beyond a reasonable doubt that (1) the defendant exercised care, control, and management over the contraband, and (2) the accused knew the matter possessed was contraband. Boston v. State, 69 Ark. App. 155, 12 S.W.3d 245 (2000). Although constructive possession can be implied when the contraband is in the joint control of the accused and another, joint occupancy alone is not sufficient to establish possession. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). Other factors that sufficiently link an accused to contraband found in a vehicle jointly occupied by more than one per son include: (1) whether the contraband was found in plain view; (2) whether the contraband was found on the defendant’s person or with his personal effects; (3) whether the contraband was found on the same side of the car seat as the defendant or in immediate proximity to him; (4) whether the accused owned the vehicle in question or exercised dominion and control over it; (5) whether the accused acted suspiciously before or during the arrest. Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988).
Here, the evidence established that Gamble was seated in the front passenger seat with Mosley seated in the rear of the car. The testimony of Officer Wallis established that a .357 magnum handgun was found under the passenger seat; however, the handgun was more accessible to the driver than to appellant Gamble. It is undisputed that Gamble neither owned the vehicle in question nor exercised control over it. Further, there was no evidence that Gamble acted suspiciously before or during the arrest. Even though the handgun was found on the same side of the car as Gamble, it was more accessible to the driver; therefore, this factor does not establish that appellant had knowledge of the presence of the handgun. This court has previously held that a defendant’s mere proximity to an item not in plain view is not proof that the defendant constructively possessed the item. Walker v. State, 77 Ark. App. 122, 72 S.W.3d 517 (2002). We reach the same conclusion here. Therefore, we hold that there was not substantial evidence that Gamble constructively possessed the handgun under the front passenger seat. Thus, we reverse and dismiss with regard to Gamble.
We now address the evidence presented to support Mosley’s conviction. The evidence established that he was sitting in the back seat on the passenger side of the car. Officer Sterka testified that after noticing the back seat was not securely fastened, he lifted the seat and found a Lorcin .380 semi-automatic handgun. Officer Sterka also noted that when the officers attempted to determine Mosley’s identity, he gave several different dates of birth and repeatedly identified himself as Anthony Rogers. Mosley was not identified until his sister called his cellular phone and asked to speak to her brother, Shawn Mosley. Officer Berryman testified that Mosley bent over a couple of times from the time the officers first attempted to pull the vehicle over and the time of the traffic stop.
As stated above, the close proximity of Mosley to the handgun found by the officer when he lifted the back seat is insuf ficient in a joint occupancy situation to find that Mosley constructively possessed the handgun. See Littlepage, supra. However, whether Mosley acted suspiciously during or after the arrest can be an additional factor linking him to the handgun: See Plotts, supra. Mosley’s act of giving a fictitious name and several different dates of birth and his act of bending over in his seat repeatedly during the driver’s attempt to evade the officers constitute, at a minimum, suspicious behavior. Mosley’s close proximity to the handgun, coupled with his suspicious behavior on two occasions, is clearly indicative of constructive possession. Polk, supra. Commensurate with the holdings in Polk and Plotts, we cannot say that the trial court erred in determining that there was substantial evidence to support appellant Mosley’s conviction for being a felon in possession of a firearm.
Reversed and dismissed as to appellant Gamble and affirmed as to appellant Mosley.
Bird and Roaf, JJ., agree. | [
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John F. Stroud, Jr., Chief Judge.
Appellant, Raymond Polk, was charged with theft of property over $2500, a Class B felony. He was tried by a jury and found guilty of the offense of theft of property over $500, a Class C felony. He was sentenced to serve twelve years in the Arkansas Department of Correction. On appeal, he contends (1) that the trial court erred when it allowed the State to go forward with an accomplice theory when the information failed to allege such, and (2) that the trial court erred when it refused to reduce the charge to a Class A misdemeanor due to the value of the merchandise taken. Finding no error, we affirm.
Terry Woodfork, a security officer for J.C. Penney, testified that he was employed in that capacity on December 2, 2001. He said that, on that date, he was observing the store from “the towers,” looking for shoplifters, and that he observed appellant “walking around and just observing,” not shopping. He stated that appellant purchased a pillow in the domestic area and got a large sack, and that he then returned to the menswear area, where he began putting several shirts and other menswear items into the sack. Woodfork said that he left the tower to get closer and that he observed appellant from ten to twenty feet away, concealing merchandise. Woodfork stated that he followed appellant out of the store to his car; that appellant got in the car; and that two other people, a male and a female, then got out of the car with Penney’s bags and headed toward the store. He said that he contacted mall security before the two entered the store and asked for assistance, reporting his belief that a “circle” was going on. He said that he told mall security that he needed assistance because there were three persons involved; that he wanted security “to be there” when the two came out of the store; and that he gave them a description of the automobile. He said that he observed the male and female go into the store, and that he returned to the towers for a better view. He said that the male was concealing shirts and pants and that the female was taking costume jewelry and ladies’ outfits. Woodfork testified that when the two left the store, he came down from the towers, walked out behind them, identified himself, and asked them to step back into the store. He said that the security officers, Dukes and House, were already there and that they “converged on the car all at once.” He said that the officers took over from that point.
Woodfork testified that the merchandise that was taken was present in the car; that most of it was in the back seat; and that a few items were in the trunk. He said that a J.C. Penney’s employee, Tracy Farr, joined him and that they took possession of the merchandise. He said that he and Tracy calculated how much the merchandise was worth and then placed it in a storage area that had limited access. He said that he then went to the security substation in the mall, and that he and the security officers took photos of the shoplifters.
He testified that he thought the suspects were acting in a “circle” because of the manner they entered the store; that when appellant got in the car, the other two got out; that the other two then entered the store and split up; and that they then exited the store together, as if they knew what time to leave. He said that appellant was never in the store at the same time as the other two; that he assumed appellant and the other two were working together; and that his assumption was based on the fact that they were in one car.
Officer Jessie Dukes testified that he worked off-duty security at Hot Springs Mall on December 2, 2001. He said that he worked with Deputy Bill House and that Terry Woodfork contacted them, advising them that he had two shoplifters in the store and one outside by a white Ford Taurus. He said that he and House drove around and observed the car; that they ran the tags just as normal procedure; and that the car was reported stolen from Little Rock. He said that a black male, later identified as appellant, was sitting on the hood, looking at a paper. He said that they “backed off a little ways away from the car”; that Wood-fork subsequently notified them that he was following two people out of the store; and that he and House subsequently advised the three that they were under arrest.
Tracy Farr, a member of management at the Penney’s store, testified that her job gives her familiarity with prices and pricing merchandise at the store. She said that she was working on December 2, 2001, and that she was called to help recover some merchandise, photograph it, inventory it, and “add it up.” She said that she, Woodfork, and Mr. Jones, the store manager, compiled a list of the pieces and their prices. She then identified and reviewed the fist that they compiled, explaining how they did it. She said that the grand retail-value total for all of the merchandise was $4,006.43, and that the actual cost to J.C. Penney was $1,602.57.
We address appellant’s second point of appeal first because it essentially challenges the sufficiency of the evidence supporting his conviction. Double-jeopardy considerations require us to consider a challenge to the sufficiency of the evidence prior to examining other issues on appeal. Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002). A motion for a directed verdict is a challenge to the sufficiency of the evidence. Id. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Fields v. State, 349 Ark. 122, 76 S.W.3d 868 (2002). We do not reweigh the evidence but determine instead whether the evidence supporting the verdict is substantial. Clem v. State, supra. We affirm a conviction if substantial evidence exists to support it. Id. Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion without having to resort to speculation or conjecture. Id. We do not, however, weigh the evidence presented at trial, as that is a matter for a factfinder. Id. Nor will we weigh the credibility of the witnesses. Id.
Here, appellant contends that witness Farr had no independent actual knowledge of the value of the articles and that the knowledge she did have came solely from the retail price tags. He cites the case of Brooks v. State, 303 Ark. 188, 792 S.W.2d 617 (1990), to support his contention that her testimony was thus inadmissible. We are not persuaded. In Brooks, the value testimony came from a security guard, who based his value testimony solely on the price tags, which was found to be inadmissible hearsay. Here, Ms. Farr testified that she was a manager-level employee, that she handled the store when the manager was absent, and that as such she was familiar with store merchandise pricing. Clearly, unlike the security guard in Brooks, Ms. Farr had sufficient knowledge to support her value testimony.
Moreover, appellant contends that Farr failed to testify concerning the wholesale value of the articles and that the State failed to elicit such testimony, concluding that the merchandise value was not sufficiently shown to be an amount in excess of the statutorily required amount. However, contrary to appellant’s contention, Farr testified not only about the retail value of the merchandise, $4,006.43, she also testified about the actual cost to the store of the stolen merchandise, stating that it amounted to $1,602.57. The value evidence submitted by the State was more than sufficient to support the verdict for theft of property over $500. See Christian v. State, 54 Ark. App. 191, 925 S.W.2d 428 (1996).
In his remaining point of appeal, appellant contends that the trial court erred when it allowed the State to go forward with an accomplice theory when the information failed to allege such. Again, we disagree.
The original information filed in this matter charged appellant and two other persons with the offense of theft of property over $2500, a Class B felony. The first amended information only named appellant, charged him with the offense of theft of property over $2500, and added the allegation that appellant’s punishment should be enhanced because he had previously been convicted of more than four felonies, which were named. Both the original and the amended information alleged that the theft involved merchandise taken from the J.C. Penney’s store at the Hot Springs Mall.
In Dunlap v. State, 303 Ark. 222, 228, 795 S.W.2d 920, 923-24 (1990), our supreme court explained:
We have held that it is only necessary that an indictment name the offense and the party to be charged. Defendants may be charged by either indictments or informations. The state is not required to include a statement of the act or acts constituting the offense, unless the offense cannot be charged without doing so. The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet.
(Citations omitted.) Moreover, there is no distinction between the criminal responsibility of an accomplice and a principal. Lee v. State, 297 Ark. 421, 762 S.W.2d 790 (1989).
Here, the information named the offense and the party to be charged, and it was sufficient because it contained the elements of the offense intended to be charged and it apprised appellant of what he had to be prepared to meet.
Affirmed.
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John Mauzy Pittman, Judge.
The parties to this marital-property-division case married in 1993 and divorced in 2001. Appellee owned a farm subject to a mortgage before he married appellant, and appellant had approximately $26,000 in premarital funds at the time of the marriage. The issues at trial focused on the respective rights of the parties to these items of property and on appellant’s request for alimony.
Appellant contends that the trial court erred.in awarding her only one-third of the reduction in indebtedness on the farm mortgage; in finding that the premarital funds she deposited into the joint account were marital property; and in denying her request for alimony. We find no error, and we affirm. ■
We first address appellant’s contention that the trial court erred in failing to award her a full one-half of the reduction in indebtedness on the farm mortgage over the course of the marriage. The record shows that appellee owned a farm before he married appellant. The farm was subject to a mortgage in the amount of $141,508 when the parties married. By the time they divorced, the mortgage indebtedness had been reduced to $5,800. After trial, appellant was awarded one-third of the reduction of indebtedness. She argues on appeal that the trial judge erred in failing to award her one-half of that reduction. We do not agree.
With respect to the division of property in a divorce case, we review the chancellor’s findings of fact and affirm them unless they are clearly erroneous. Jablonski v. Jablonski, 71 Ark. App. 33, 25 S.W.3d 433 (2000). It is true that there is a presumption that an increase in the value of nonmarital property resulting from the time, efforts, and skill of a spouse is regarded as a marital asset. See Layman v. Layman, 292 Ark. 539, 731 S.W.2d 771 (1987). However, a mere reduction in a single item of indebtedness is not the same thing as an increase in the overall value of the property, which would require evidence of the fair-market value of the farm both before and after the marriage. See id. There is evidence in the present case regarding the value of the farm at the time of the divorce, but we find nothing in the record that would allow the trial judge to determine the premarital value of the farm. Without evidence of the before-and-after value of the property to show the existence and extent of any increase in the value of the nonmarital property, any reduction in debt on nonmarital property is not considered to be marital property to be divided equally; instead, the non-owning spouse is simply entitled to have the marital contribution considered in balancing the equities involved in the property division. See Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993). The trial judge did so when he awarded appellant one-third of the reduction of indebtedness on the farm and, given the evidence presented at trial, we cannot say that he erred in failing to award her more.
We next address appellant’s contention that the trial court erred in finding that appellant’s premarital funds did not remain appellant’s individual property after her marriage to appellee. Once property, whether personal or real, is placed in the names of persons who are husband and wife without specifying the manner in which they take, there is a presumption that they own the property as tenants by the entirety, and clear and convincing evidence is required to overcome that presumption. McLain v. McLain, 36 Ark. App. 197, 820 S.W.2d 295 (1991). Clear and convincing evidence is evidence by a credible witness whose memory of the facts about which he testifies is distinct, whose narration of the details is exact and in due order, and whose testimony is so direct, weighty, and convincing as to enable the fact-finder to come to a clear conviction, without hesitation, of the truth of the facts; on review, the issue is whether the trial judge’s finding that the appellee overcame the presumption that the account was held by the entirety by clear and convincing evidence, is against a preponderance of the evidence. Id.
In the present case, the record shows that appellant had approximately $26,000 from the sale of her premarital home in a savings account at the time of her marriage to appellee. After she married appellee, appellant deposited these funds into a joint account she held with him. With regard to her intention regarding her separate property, appellant testified that “[w]e did discuss prenuptial things one day. And we planned on being married for the rest of our lives and we could just both put in everything we had and go from there.” Given that appellant admitted that she deposited these funds in a joint account, that she discussed prenuptial arrangements with appellee, and that she regarded their property to be jointly held during the marriage, we cannot say that the trial judge erred in finding that she failed to rebut the presumption of gift that arises when premarital funds are commingled with marital funds.
Finally, we address appellant’s contention that the trial court erred in fading to award her alimony. The award of alimony is not mandatory, but is instead discretionary, and the trial court’s decision regarding any such award will not be reversed absent an abuse of discretion. McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000). The purpose of alimony is to rectify, insofar as is reasonably possible, the frequent economic imbalance in the earning power and standard of living of the divorced parties in light of the particular facts of each case. Holaway v. Holaway, 70 Ark. App. 240, 16 S.W.3d 302 (2000). The primary factors to be considered in awarding alimony are the need of one spouse and the other spouse’s ability to pay; secondary factors that may also be considered in setting alimony include: (1) the financial circumstances of both parties, (2) the amount and nature of the income, and (3) the extent and nature of the resources and assets of each of the parties. Id.
The record in the present case shows that appellee was sixty-four years old at the time of the divorce and was in relatively poor health. He had quadruple bypass surgery for a heart condition, and had knee, intestinal, and hernia repair surgery as well since his marriage to appellant. He has a history of repeated hospitalizations for heart problems and is no longer able to do much farm work other than bookkeeping. Appellant was fifty-eight years old at the time of the divorce and was in good health. She had previous work experience as a union construction worker earning $18.00 per hour. She is currently employed managing an RV park in Branson, Missouri. Given this evidence, we cannot say that the trial judge abused his discretion in failing to award alimony to appellant.
Affirmed.
Gladwin, Bird, and Griffen, JJL, agree.
Robbins and Hart, JJ., concur. | [
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John Mauzy Pittman, Judge.
The appellant in this criminal case was charged with committing first-degree sexual abuse on September 13, 2001. After a trial, the jury found him guilty of that offense, fined him $1000.00, and sentenced him to seven years’ imprisonment. The trial court delayed formal sentencing for several days. When the parties appeared for sentencing, appellant moved to vacate the jury verdict on the grounds that the statute he had been convicted of violating was not in force at the time he was alleged to have committed the acts constituting the offense, and that to convict him of violating the statute after it expired would be to apply it as an ex post facto law. The trial court denied the motion, stating that the newly-enacted offense of second-degree sexual assault criminalized the identical conduct, and that the appellant was not prejudiced by the name of the crime not being correctly listed in the felony information. The trial court then entered a judgment stating that appellant had been convicted of second-degree sexual assault. From that decision, comes this appeal.
For reversal, appellant contends that the trial court erred in denying his motion to vacate the jury verdict. We agree, and we reverse and remand.
Despite the trial court’s entry of a judgment of conviction for second-degree sexual assault, it is clear that appellant was tried for and found guilty of having committed first-degree sexual abuse after the statute proscribing that offense was repealed. This was error. A state cannot, consistently with the Due Process Clause of the Fourteenth Amendment, convict a defendant for conduct that its criminal statute, as properly interpreted, does not prohibit. Fiore v. White, 531 U.S. 225 (2001).
Nor do we agree that appellant was not prejudiced by the trial judge’s denial of his motion to vacate the jury verdict. The jury expressly found that appellant committed the offense of first-degree sexual abuse in violation of Ark. Code Ann. § 5-14-108(a)(4) (Repl. 1997), which provided that “[a] person commits sexual abuse in the first. degree if . . . [bjeing eighteen (18) years old or older, he engages in sexual contact with a person not his spouse who is less than fourteen (14) years old.” “Sexual contact” means any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female. Ark. Code Ann. § 5-14-101(8) (Repl. 1997). Section 5-14-108 was repealed by Act 1738 of 2001, which became effective August 13, 2001.
The trial judge entered a judgment convicting appellant of committing the newly-created offense of second-degree sexual assault in violation of Ark. Code Ann. § 5 — 14—125(a)(3) (Supp. 2001), which provides that “[a] person commits sexual assault in the second degree if the person . . . [b]eing eighteen (18) years of age or older, engages in sexual contact with the sex organs of another person, not the person’s spouse, who is less than fourteen (14) years of age[.]” These statutes clearly differ in that sexual abuse in the first degree could have been committed by touching the buttocks or sex organs, while a conviction of sexual assault in the second degree requires touching of the sex organs. At trial, appellant admitted that he touched the buttocks of a person less than fourteen years of age, although he excused this as roughhousing. There was also testimony from the victim that appellant touched her sex organs. The jury made no express findings of fact regarding the manner in which the offense was committed, and it is therefore possible that appellant was convicted because the jury believed he touched the victim’s buttocks for sexual gratification, while disbelieving that he touched the victim’s sex organs. Consequently, we reverse and remand for the trial court to enter an order vacating the judgment and setting aside the jury verdict.
Reversed and remanded with directions.
Neal and Roaf, JJ., agree.
The State contends that appellant is barred from arguing due process considerations on appeal because he based his objection at trial on ex post facto grounds. We do not agree. Although appellant’s objection did not expressly identify his conviction for violating a statute that was no longer in force as a denial of due process, the supreme court has recognized that, in a case such as the present one, the concepts of due process and ex post facto are intertwined:
“Ex post facto” literally means a law passed after the fact. That is, after the occurrence of the fact, or the crime. The constitutional prohibition on ex post facto laws is a limitation upon the powers of the legislature and does not of its own force apply to the judicial branch. However, the principle on which the clause is based, the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties, is fundamental to our concept of constitutional liberty, and as such, is protected against judicial action by the due process clause of the Fifth Amendment. Marks v. United States, 430 U.S. 188 (1977). Accordingly, the Supreme Court held that an unforeseen judicial enlargement of a criminal statute, applied retrospectively, operates precisely like an ex post facto law that is prohibited by Article I, § 10 of the Constitution of the United States, and it follows that such an interpretation is barred by the due process clause of the Fourteenth Amendment from achieving precisely the same result by judicial construction. The fundamental principle is that the required criminal law must have existed when the crime occurred. Collins v. Youngblood, [497 U.S. 37,]110 S. Ct. 2715 (1990).
Mauppin v. State, 309 Ark. 235, 251-52, 831 S.W.2d 104, 112 (1992) (emphasis in original).
The parties do not raise, and we do not address, the question of whether the State may bring new charges against appellant under the proper statute, or whether it would be barred from doing so by considerations of double jeopardy. In the absence of any indication in the record that new charges have been or will be filed against appellant, the question is not ripe for review. See Bailey v. State, 100 Nev. 562, 688 P.2d 320 (1984). We note, however, that if the State does bring such charges, appellant would be entided to oppose them by filing a motion to dismiss in the trial court and, if necessary, an interlocutory appeal in the Arkansas Supreme Court. See Sherman v. State, 326 Ark. 153, 931 S.W.2d 417 (1996). | [
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Larry D. Vaught, Judge.
This appeal involves the financial aspects of the dissolution of a twenty-five-year marriage. The trial court divided the marital estate, including the husband’s interest in a medical practice and associated entities, and also awarded spousal and child support. Appellant Cindy Cole (wife) has appealed, taking issue principally with the division of the marital estate, the award of spousal support, and the award of child support. Appellee Randall Cole (husband) has cross-appealed on the issue of calculation of his income for child-sup port purposes. We have determined that the trial court’s judgment should be reversed and remanded.
The parties were married in 1976, while husband was still in medical school. After the marriage, three children were born to the parties, with two having reached majority at the time of the divorce. Wife worked and supported the family while husband finished medical school and residency. After the parties returned from Florida in the mid-1980s, husband became associated with the Boozman-Hof Clinic (“Clinic”), the Boozman-Hof Surgery Center (“Surgery Center”), and the Genesis Partnership (“Genesis”). Husband filed a complaint for divorce, and wife answered and counterclaimed. Wife sought an unequal distribution of the marital property in her favor. The major issues at trial were the valuation of husband’s interest in the surgery center and the distribution of the marital property.
On appeal, equity cases, such as divorces, are reviewed de novo. Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 738 (2001). With respect to the division of property in a divorce case, we review the trial judge’s findings of fact and affirm them unless they are clearly erroneous. Id. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Huffman v. Fisher, 343 Ark. 737, 38 S.W.3d 327 (2001). In order to demonstrate that the trial court’s ruling was erroneous, an appellant must show that the trial court abused its discretion by making a decision that was arbitrary or groundless. Skokos v. Skokos, supra.
Guidelines for the division of marital property are set forth in Ark. Code Ann. § 9-12-315(a)(l)(A) (Repl. 2002). Factors to be considered include the duration of the marriage, the estate of each party, and the “contribution of each party in acquisition, preservation, or appreciation of marital property . . . .” Ark. Code Ann. § 9-12-315(a)(l)(A)(viii).
I. Valuation of the Surgery Center
At the time of trial, husband had a 50% interest in the surgery center, a 22.7% interest in the clinic, and a 22.7% interest in Gene sis. The clinic employs the personnel used in both the clinic and the surgery center and leases the employees to the surgery center. The clinic also provides administrative services such as accounting and marketing. Genesis owns the real estate and the equipment used by the clinic and surgery center. The parties agreed that husband’s interest in Genesis was valued at $689,700. The parties also agreed that husband’s interest in the clinic was valued at $100,000. Husband has a buy-sell agreement with Dr. William Hof, the owner of the other 50% interest in the surgery center. The agreement, effective May 4, 1998, but signed on December 28, 1998, valued the entire surgery center at $750,000. Husband testified that the $750,000 figure was arrived at without a fair market valuation but was based on what he and Dr. Hof felt they could afford to pay each other and still operate the surgery center. There was also an option given to Dr. John Billingsley to purchase a 15% interest in the surgery center for $406,855.59, dated March 1, 1999.
Wife’s expert, Cheryl Shuffield, a certified public accountant, gave an exhaustive valuation of husband’s interest in the surgery center. In her original report, she valued the interest at $1,526,100. With updated information, she valued the interest at $1,274,200, in order to account for the goodwill personally attributable to husband’s presence. Husband presented two experts, Daniel Bernick and Michael Brown, neither of whom were certified public accountants. Bernick did not do an independent evaluation; instead, he reviewed Shuffield’s report and changed certain assumptions made by Shuffield for discounts for lack of marketability (50% versus Shuffield’s 10%) and lack of a controlling interest (31.5% versus Shuffield’s 10%) to arrive at a value of $497,303. Bernick testified that, if he had done an independent valuation, he would have used a different methodology than that used by Shuf-field. Brown agreed with Bernick’s basic approach and valued husband’s interest at $297,500. Brown testified that he did not extensively review Shuffield’s report. The trial court found husband’s interest in the surgery center to be worth $375,000, the exact amount set forth in the buy-sell agreement.
This is a case in which we are left with the firm conviction that the trial court made a mistake in valuing husband’s interest in the surgery center at $375,000. Husband argues that the trial court found his experts more credible than Ms. Shuffield and made a rough average of their values and the buy-sell agreement value to reach $375,000. This is not supported in the abstract and addendum before us. The only indication in this record of the court’s reasoning when establishing the value at $375,000 is found in the posttrial hearing of September 20, 2001. During a colloquy with counsel for both parties, the trial court indicated that it would take a long time for husband to retire the debt payment to wife if the surgery center were valued at $1.2 million, and rhetorically questioned the value of the surgery center if husband became disabled. In response to a request to divide the stock in the surgery center, the court stated that, if he used another method of distribution, such as stock division, husband would quickly be bought out by Dr. Hof pursuant to the terms of the buy-sell agreement. We believe that these comments indicate that the trial court did not attempt to establish a fair market value but instead determined that it was bound by the value set in the buy-sell agreement. Arkansas law requires the use of the “fair market value” standard for valuing businesses in a marital property context. Ark. Code Ann. § 9-12-315 (Repl. 2002); Crismon v. Crismon, 72 Ark. App. 116, 34 S.W.3d 763 (2000).
A small minority of courts hold that, in a divorce, the non-shareholder spouse is bound by a shareholder valuation agreement entered into by the shareholder spouse. Hertz v. Hertz, 99 N.M. 320, 657 P.2d 1169 (1983) (holding that, where agreement set value the shareholder spouse could receive for the firm’s goodwill, non-shareholder spouse was bound by that valuation so as not to receive a greater interest upon divorce than the shareholder spouse). See also McDiarmid v. McDiarmid, 649 A.2d 810, 815 (D.C. 1994) (holding that, where partnership agreement provided husband could not recoup value of goodwill in law. firm, wife was bound). Another court has held that a shareholder’s agreement can establish a “presumptive value” for the divorcing spouse’s shares. Stern v. Stern, 66 N.J. 340, 331 A.2d 257 (1975).
The clear majority of courts hold that the value established in the buy-sell agreement of a closely-held corporation, not signed by the non-shareholder spouse, is not binding on the non-shareholder spouse but is considered, along with other factors, in valuing the interest of the shareholder spouse. This was discussed by the West Virginia Supreme Court of Appeals in a case in which the divorcing husband had executed a buy-sell agreement with his medical corporation. In Bettinger v. Bettinger, 183 W.Va. 528, 396 S.E.2d 709 (1990), the court observed:
[A] majority of courts which have considered a buy-sell agreement in a closely held corporation setting the stock value for equitable distribution purposes has determined that such an agreement should not be considered as binding, but rather should be weighed along with other factors in making a determination as to the value of such stock. E.g., In re Marriage of Melnick, 127 Ill. App.3d 102, 82 Ill. Dec. 228, 468 N.E.2d 490 (1984); In re Marriage of Moffatt, 279 N.W.2d 15 (Iowa 1979); Rogers v. Rogers, 296 N.W.2d 849 (Minn. 1980); Bowen v. Bowen, 96 N.J. 36, 473 A.2d 73 (1984); Amodio v. Amodio, 70 N.Y.2d 5, 516 N.Y.S.2d 923, 509 N.E.2d 936 (1987); In the Matter of the Marriage of Belt, 65 Or. App. 606, 672 P.2d 1205 (1983); Bosserman v. Bosserman, 9 Va. App. 1, 384 S.E.2d 104 (1989); Arneson v. Arneson, 120 Wis.2d 236, 355 N.W.2d 16 (Wis. App.1984). It is apparent that buy-sell agreements in a closely held corporation can be manipulated by the shareholders to reflect an artificially low value. This is why caution should be exercised in accepting their value for equitable distribution purposes.
Id. at 533-34, 396 S.E.2d at 714-15.
In a similar divorce case, the Virginia Court of Appeals rejected the argument that a restrictive buy-sell agreement on stock controlled the value to be assigned to the shareholder spouse’s interest in the corporation, stating:
In a majority of jurisdictions, the price set by a buy-out provision does not control the determination of value when the other spouse did not consent or was not otherwise bound by its terms. This is so even though the agreement was executed after the marriage. The reason for rejecting the value set by buy-out provisions is that they do not necessarily represent the intrinsic worth of the stock to the parties. Some courts, however, consider buyout provisions a factor to be considered. Other jurisdictions hold that the terms of the restriction presumptively control value, while a small minority regard the value specified in the agreement as controlling.
.... The price established for buy-out purposes, however, is often artificial and does not always reflect true value. The very purpose of such provisions or agreements often is to discourage sales by restricting the price which could be realized to less than the actual value to the owner.
Bosserman v. Bosserman, 9 Va. App. 1, 6, 384 S.E.2d 104, 108 (1989) (citations omitted).
In explaining the rationale for the majority view, some courts have noted that the issue is not the value the shareholder spouse would receive if he sold his shares, but rather the current value to the shareholder of his interest in the corporation. In Bowen v. Bowen, supra, the shareholder spouse had a minority interest in a closely-held corporation, subject to a buy-sell agreement that set a value that excluded the corporation’s goodwill and other intangible assets. The court held that the buy-sell agreement would be considered but was not dispositive. Id. The court explained:
[T]he defendant argues that the court should not value his interest above its buy-sell value, since if he must sell his shares, the price he would receive would be limited by the buy-sell restriction. But there should be no reason to sell the shares since the court can fashion the distribution so that a sale need not occur. Furthermore, to give the buy-sell agreement conclusive effect would not recognize the realities of the present situation: The shareholder will not sell the stock and, one hopes, will not die. In other words, he will continue to experience the benefits of being a 22% shareholder and an employee.
Id. at 48, 473 A.2d at 79. See also Money v. Money, 852 P.2d 1158 (Alaska 1993); In re Marriage of Keyser, 820 P.2d 1194 (Colo. App. 1991); Drake v. Drake, 809 S.W.2d 710 (Ky. App. 1991); Bosserman v. Bosserman, supra. In Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987), appeal after remand, 301 Ark. 80, 781 S.W.2d 487 (1989), our supreme court appeared to allow consideration of the value contained in a stock purchase agreement as one factor to be considered in valuation of a medical practice. Because the trial court in this case relied solely on the buy-sell agreement and did not establish a fair market valué, we reverse on this point.
II. Other Marital Property Issues
As noted above, the trial court made an equal distribution of marital property. However, wife complains that this was improper. Part of wife’s argument is based on the valuation of the surgery center. There are three other issues that wife raises in the total property distribution. We reverse on these issues so that the trial court can consider the valuation and distribution of marital property in toto. We briefly discuss these issues for guidance of the trial court on remand.
The parties had a membership at Pinnacle Country Club, valued at $30,000. This item was awarded to husband. There is no corresponding credit for one-half of this property interest in the decree and no explanation for this omission. While there is no requirement that each party receive a share of each item of marital property, section 9-12-315 requires an explanation for such unequal division. See Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988).
Next, wife argues that the trial court erred in awarding her the marital residence and corresponding debt, rather than ordering the residence sold and the proceeds divided equally. The parties agreed that the marital residence was valued at $360,000, with a first mortgage of $59,906 and a second mortgage of $21,000. We do not believe the trial court could do anything other than order the property sold, give wife possession of the property until it would be sold at some future time, or leave the parties as tenants in common. Ark. Code Ann. § 9-12-317 (a) (Repl. 2002). The trial court could not rely on section 9-12-317(c) in awarding wife the entire interest in the residence because that statute was not passed until 1997, after the parties acquired the property, and doing so would impair a vested interest. See Hubbard v. Hubbard, 251 Ark. 465, 472 S.W.2d 937 (1971).
Third, wife argues that husband exercised an option to purchase a condominium for $325,000 after the parties separated but before the divorce decree was entered. Husband testified that he had exercised his option but had not closed on the property. As defined in section 9-12-315, marital property is all property acquired subsequent to marriage except for those seven categories specifically listed. Generally, options acquired during the mar riage are marital property, even though the option is not exercised until after the divorce. Richardson v. Richardson, 280 Ark. 498, 659 S.W.2d 510 (1983); Dunavant v. Dunavant, 66 Ark. App. 1, 986 S.W.2d 880 (1999). Therefore, to the extent husband acquired an enforceable interest in the condominium, he acquired marital property subject to division.
III. Alimony
Wife appeals the trial court’s decision to award her what the decree labels rehabilitation alimony of $3,000 per month for four years. She contends that her needs and husband’s ability to pay justify a higher award.' The trial judge indicated in the decree that he could have found that there was no “need” for alimony.
The decision whether to award alimony is a matter that lies within the trial judge’s sound discretion, and on appeal this court will not reverse a trial judge’s decision to award alimony absent an abuse of that discretion. Ellis v. Ellis, 75 Ark. App. 173, 57 S.W.3d 220 (2001). The purpose of alimony is to rectify economic imbalance in the earning power and the standard of living of the parties to a divorce in light of the particular facts of each case; the primary factors that a court should consider in determining whether to award alimony are the financial need of one spouse and the other spouse’s ability to pay. Id. In fixing the amount of alimony, the courts consider many factors, including (1) the financial circumstances of both parties, (2) the couple’s past standard of living, (3) the value of jointly owned property, (4) the amount and nature of the parties’ income, both current and anticipated, (5) the extent and nature of the resources and assets of each of the parties, (6) the amount of income of each that is spendable, (7) the earning ability and capacity of each party, (8) the property awarded or given to one of the parties, either by the court or the other party, (9) the disposition made of the homestead or jointly owned property, (10) the condition of health and medical needs of both husband and wife, (11) the duration of the marriage, and (12) the amount of child support. Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980). Neither this court nor the supreme court has ever attempted to reduce the amount of alimony to a mathematical formula. Mitchell v. Mitchell, 61 Ark. App. 88, 964 S.W.2d 411 (1998). Presumably, it has been thought that the need for flexibil ity outweighs the corresponding need for relative certainty. Id. The court should also consider the family support chart in determining the amount of spousal support to be paid. Schumacher v. Schumacher, 66 Ark. App. 9, 986 S.W.2d 883 (1999). Moreover, in the absence of a settlement agreement to the contrary, an award of alimony is always subject to modification, upon application of either party. Bracken v. Bracken, 302 Ark. 103, 787 S.W.2d 678 (1990); Holaway v. Holaway, 70 Ark. App. 240, 16 S.W.3d 302 (2000). See also Ark. Code Ann. § 9-12-314 (Repl. 2002).
Here, we have reversed the division of marital property, a major part of the Boyles factors to be considered listed above. Alimony and property divisions are complementary devices that a trial judge employs to make the dissolution of a marriage as equitable as possible. Davis v. Davis, 79 Ark. App. 178, 84 S.W.3d 447 (2002). Further, there is no indication that the trial judge considered the family support chart in setting the amount of alimony. In Schumacher, supra, this court reversed an award of alimony where the trial court referred to an award of separate maintenance made by another court and where the record did not show that the trial court made reference to the chart. Under these circumstances, we believe that it would be best to reverse and remand this issue to the trial court in order to consider all relevant factors when determining the amount of alimony that should be awarded, including the family-support chart. Hoover v. Hoover, 70 Ark. App. 215, 16 S.W.3d 560 (2000).
IV. Child Support
Both parties appeal the trial court’s calculation of husband’s income and the corresponding award of child support. The trial court found husband’s annual net income to be $292,571, based on an average. The average was based on husband’s projection of his 2001 income as $227,573 and wife’s contention that his income was $357,569. The trial court then calculated husband’s monthly income as $24,400 but then used a monthly income figure of $24,405 . The trial court then applied the Administrative Order 10 percentage for one child (15%) to arrive at the monthly child-support figure of $3,660.
The amount of child support lies within the sound discretion of the trial judge, and the judge’s finding will not be reversed absent an abuse of discretion. 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. Smith v. Smith, supra. However, the presumption that the chart is correct may be overcome if the trial judge provides written findings that the chart amount is unjust or inappropriate. Id.
It is the ultimate task of the trial judge to determine the expendable income of a child-support payor. Stepp v. Gray, 58 Ark. App. 229, 947 S.W.2d 798 (1997). This court has stated that the trial judge “may not simply utilize one of the definitions of income found in the tax code, particularly in the case of self-employed persons, to arrive at the true disposable income of the support obligor.” Id. at 235, 947 S.W.2d at 801.
The version of the child-support chart applicable when this case was tried is found at In Re: Administrative Order No. 10: Arkansas Child Support Guidelines, 331 Ark. Appx. 581 (1998). These guidelines provided that for self-employed payors, such as husband, the amount of support shall be calculated based on the last year’s federal and state income tax returns and the quarterly estimates for the current year. Id. The trial judge should also “consider the amount the payor is capable of earning or a net-worth approach based on property, life-style, etc.” Id.
We believe that we should reverse the award of child support as well. First, the award was based, in part, on an average of husband’s income for 1999 and 2000. The revaluation and redistribution of the marital property may affect husband’s income. Second, husband’s 2001 income was, by his own testimony and that of Dr. Hof, going to be reduced because of several unusual circumstances. Further, husband’s Affidavit of Financial Means lists expenses that should not be allowed under Administrative Order 10, such as college expenses for the two adult children, charitable contributions, country club/athletic club fees, and college bonds. While it is clearly permissible to consider financial obligations of the payor spouse, including support of other children, the trial court should make a written finding regarding why it took such expenses into account. Guest v. San Pedro, 70 Ark. App. 389, 19 S.W.3d 62 (2000); Department of Human Servs. v. Forte, 46 Ark. App. 115, 877 S.W.2d 949 (1994).
Reversed and remanded.
Stroud, C.J., and Neal, J., agree.
$292,571 divided by 12 equals $24,380.
The most recent revision of the child-support guidelines, In Re: Administrative Order No. 10: Arkansas Child Support Guidelines, 347 Ark. Appx. 1064 (2002), became effective on February 11, 2002. This version now provides that for self-employed payors, the amount of support shall be calculated based on the last two years’ federal and state income tax returns. | [
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Josephine Linker Hart, Judge.
Appellant, Robert Spears, was convicted of one count of possession of a controlled substance, marijuana, with the intent to deliver, and he was sentenced to five years’ imprisonment. On appeal, in a brief with an argument section just over one page long, appellant appears to raise three issues: (1) whether the circuit court’s admission of testimony concerning appellant’s silence violated his Fifth Amendment privilege against compulsory self-incrimination; (2) whether this testimony was properly admitted as an adoptive admission made by appellant; and (3) whether the court improperly allowed the State to impeach appellant’s witness on cross-examination with extrinsic evidence on a collateral matter. Because there are three separate deficiencies in appellant’s brief, we order rebriefing.
First, we conclude that appellant’s abstract is deficient, and consequently, we are unable to reach the merits of his arguments on appeal. Appellant’s abstract consists of four pages. A portion of the first page is an abstract of the information, the judgment and commitment order, and the notice of appeal, all of which should be and are properly found in appellant’s addendum. See Ark. Sup. Ct. R. 4 — 2(a)(8) (2003). Approximately two pages of the abstract are devoted to the testimony of one police officer, four sentences pertain to the testimony of another officer, and eight sentences concern the testimony of appellant’s witness. From our review of the record, these brief excerpts are inadequate to assist this court in understanding all questions presented to the Court for decision. Also, appellant fails to abstract any of his arguments made below on these issues, further hampering our understanding of the questions presented. We also note that the State did not file a supplemental abstract.
While failure to abstract materials essential to the understanding of an argument on appeal has in the past been considered a bar to consideration of the merits of the argument, this court must now allow rebriefing to cure deficiencies in the abstract or addendum. See Arkansas Dep’t of Human Servs. v. Collier, 351 Ark. 380, 92 S.W.3d 683 (2002); Campbell v. State, 349 Ark. 111, 76 S.W.3d 271 (2002); Nichols v. Arnold, 347 Ark. 758, 66 S.W.3d 652 (2002); Simmons v. State, 80 Ark. App. 426, 97 S.W.3d 421 (2003), overruled on other grounds by Larry v. Grady Sch. Dist., 82 Ark. App. 185, 119 S.W.3d 513; McNeil v. Lillard, 79 Ark. App. 69, 86 S.W.3d 389 (2002). Rule 4-2(b)(3) of the Rules of the Supreme Court provides, in part, that
[i]f the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4-2(a)(5) and (8).
We order appellant to prepare an abstract that provides this court with a better understanding of the questions presented on appeal, including an abstract of all “material parts of the testimony of the witnesses and colloquies between the court and counsel and other parties as are necessary to an understanding of all questions presented to the Court for decision.” Ark. Sup. Ct. R. 4-2(a)(5) (2003).
Second, we observe that in the argument portions of the parties’ briefs, reference is made to materials by providing the page number of the record at which the materials may be found. This is in contravention of Rule 4-2(a)(7) of the Rules of the Supreme Court, as the parties are to refer to “the page number of the abstract or Addendum at which such material may be found.” See also King v. Baxter County Reg’l Hosp., 79 Ark. App. 97, 86 S.W.3d 13 (2002). We order the parties to provide briefs in compliance with this rule.
Third, we note that the Arkansas Supreme Court has held that “ [ajppellate counsel has a duty to file a brief that adequately and zealously presents the issues and that cites us to persuasive authority.” Pilcher v. State, 353 Ark. 357, 107 S.W.3d 172. Because the brief filed by appellant’s counsel is deficient in that regard, we order rebriefing for this reason as well.
The Arkansas Supreme Court has recently ordered rebriefing when counsel for an appellant in a criminal appeal failed to adequately present the issues raised in appellant’s brief. See Pilcher, supra. See also Latta v. State, 350 Ark. 488, 88 S.W.3d 833 (2002) (Brown, J., dissenting) (arguing that the majority should have ordered rebriefing because counsel for the defendant provided a deficient brief). Further, the Arkansas Supreme Court has otdered rebriefing when issues have not been fully developed by the parties. See Ford Motor Co. v. Harper, 351 Ark. 559, 95 S.W.3d 810 (2003) (ordering parties to rebrief and further develop a jurisdictional issue in an interlocutory appeal); Worth v. Keith, 349 Ark. 731, 79 S.W.3d 387 (2002) (ordering rebriefing in a petition for writ of mandamus to consider certain additional issues specifically enumerated by the Arkansas Supreme Court).
As is apparent from the State’s brief, the issues raised by appellant are more complex than the brief from counsel for appellant would suggest. Appellant’s argument on the first point consists of four sentences and a citation to one case. In response, the State addressed at length whether appellant was in custody, apparently implying that the Fifth Amendment privilege against compulsory self-incrimination does not apply when a person is being detained but is not in custody. Further, appellant’s arguments on the remaining two issues respectively consist of four sentences and one case and again four sentences and one case. The State provided substantially more on both issues. Appellant did not file a reply brief in response to the State’s analysis of the issues.
We note further that counsel’s conduct in this case suggests that he has half-heartedly pursued this appeal on the behalf of appellant. Appellant’s brief was originally due on August 20, 2002. The brief, however, was not filed on that date, and on October 30, 2002, this court granted counsel’s motion to file a belated brief. Counsel was granted a seven-day extension on December 2, 2002. The brief was tendered on December 9, 2002, but it lacked an addendum, and counsel then filed on December 16, 2002, a brief with an addendum. Further, counsel did not file a reply brief.
Consequently, because the brief from appellant’s counsel fails to adequately present the issues raised on appeal, we order rebriefing so that counsel may correct this problem. As explained in Pilcher, upon rebriefing, counsel should
specifically articulate his allegations of error and support those allegations of error with applicable citation to recent authority. Additionally, [counsel] should apply the persuasive authority to the facts of appellant’s case, thoroughly analyze the issues, and advocate for a result that benefits appellant. In drafting his new brief, [counsel] should avoid the use of conclusory arguments or arguments that are not fully developed. We would further suggest that if the State responds to [counsel’s] revised brief, [counsel] should consider the arguments raised by the State and respond appropriately.
A revised brief for appellant is due in thirty days, and in the revised brief, counsel should cure all the deficiencies listed above. The State may then respond to the revised brief within fifteen days by filing a brief that complies with Rule 4-2(a) (7). Thereafter, counsel for appellant will have ten days in which to file a reply brief.
Rebriefing ordered.
Bird and Roaf, JJ., agree. | [
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Wendell L. Griffen, Judge.
Appellants are the beneficiaries of the Estate of Barron C. Sanderson. They appeal from a trial court order dismissing their case with prejudice upon finding that their action was barred by the statute of limitations. Appellants argue that the trial court erred. We disagree and affirm.
From June 12, 1995, until August 19, 1997, Barron Sander-son (appellants’ decedent) was under a continuous course of treatment with appellee, Dr. Robert McCollum. On November 23, 1997, Barron Sanderson died after suffering a heart attack. The decedent was survived by his wife, Vivian Sanderson; his son, Devin Sanderson; his daughters, Peri Trudell and Danielle Hudson; his mother, Pansy Sanderson; and his sister, Sandra Jackson. No personal representative was appointed on behalf of the decedent’s estate.
On August 16, 1999, Vivian Sanderson filed a pro se wrongful-death action against appellee alleging that he was negligent in failing. to properly treat and diagnose the decedent’s cardiac problems. This complaint was styled “Vivian Sanderson, Surviving Spouse of Barron C. Sanderson, Deceased v. Robert H. McCollum, M.D.” Three days later, on August 19, 1999, the law office of Charles Karr, P.A. entered an appearance as the attorneys of record for Vivian Sanderson and filed an amended complaint. The amended complaint was styled “Vivian Sanderson, Surviving Spouse of Barron C. Sanderson, Deceased, on Behalf of Herself, the Heirs and Statutory Beneficiaries, and the Estate v. Robert H. McCollum, M.D.”
On February 15, 2001, Vivian Sanderson took a voluntary nonsuit of this action. On the same day, a wrongful-death complaint was filed against appellee in the name of the appellants, Vivian Sanderson, Devin Sanderson, Peri Trudell, Danielle Hudson, Pansy Sanderson, and Sandra Jackson, who represented all of decedent’s heirs. Appellee moved to dismiss the complaint, alleging that the action was barred by the statute of limitations. Appellants argued that they had ratified the first suit brought by Vivian San-derson and that the ratification should relate back to save their claim. The trial court treated appellee’s motion to dismiss as a motion for summary judgment, found that the first complaint filed by Vivian Sanderson was not in compliance with Ark. Code Ann. § 16-62-102 (Supp. 2001), and that the second complaint filed by appellants, as the heirs of the decedent, was barred by the applicable statute of limitations. Therefore, the trial court dismissed appellants’ complaint. This appeal followed.
When reviewing a trial court’s decision on a motion to dismiss,- the facts alleged in the complaint are treated as true and are viewed in the light most favorable to the plaintiff. Goff v. Harold Ives Trucking Co., Inc., 342 Ark. 143, 27 S.W.3d 387 (2000). All reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Martin v. Equitable Life Assur. Soc’y of the United States, 344 Ark. 177, 40 S.W.3d 733 (2001). A party, who relies upon a statute of limitations as defense to a claim, has the burden of proving that the full statutory period has run on the claim before the action was commenced. Davenport v. Pack, 35 Ark. App. 40, 812 S.W.2d 487 (1991). In order to prevail on a motion to dismiss on the basis of limitations, the complaint must be barred on its face. Id.
Appellants first argue that in Murrell v. Springdale Memorial Hospital, 330 Ark. 121, 952 S.W.2d 153 (1997), Ramirez v. White County Circuit Court, 343 Ark. 372, 38 S.W.3d 298 (2001), St. Paul Mercury Insurance Co. v. Circuit Court of Craighead County, 348 Ark. 197, 73 S.W.3d 584 (2002), and Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002), the Arkansas Supreme Court con strued the wrongful-death statute too strictly. Appellant contends that the supreme court’s rulings in these cases should be limited to hold that a wrongful-death action brought by fewer than all the heirs may not go to judgment but does toll the statute of limitations. This argument is without merit.
In Arkansas, a wrongful-death action must be brought by and in the name of the personal representative of the deceased person. Ark. Code Ann. § 16-62-102(b) (Supp. 2001). If there is no personal representative, then the action shall be brought by the heirs at law of the deceased person. Id. A wrongful-death action is a creation of statute and only exists in the manner and form prescribed by the statute; thus the wrongful-death statute must be strictly construed and nothing may be taken as intended that is not clearly expressed. Ramirez v. White County, supra. In applying all the standard rules of statutory construction, the supreme court held that the language of Ark. Code Ann. § 16-62-102(b) (Supp. 2001) was clear and unambiguous. Id. If there is no personal representative of the deceased person, then a wrongful-death action must be brought by all the heirs at law. Id. An action brought by less than all the heirs of the deceased is a nullity. St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, supra. As this is the precedent established by our supreme court, we are bound to follow it. Smith v. ALCOA, 78 Ark. App. 15, 76 S.W.3d 909 (2002); Scott v. State, 69 Ark. App. 121, 10 S.W.3d 476 (2000).
In the instant case, an estate was never opened for Barron Sanderson and no personal representative was ever appointed as administrator of the estate. Consequently, any wrongful-death action stemming from the death of Barron Sanderson had to be brought by all his heirs at law to be valid. Ark. Code Ann. § 16-62-102(b) (Supp. 2001); Ramirez v. White County, supra; St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, supra. The original pro se complaint brought by Vivian, in her individual capacity, was not in compliance with Ark. Code Ann. § 16-62-102 (Supp. 2001) because it was not brought in the name of all the decedent’s heirs at law and was a nullity. The amended complaint, which was brought by Vivian Sanderson on behalf of herself, the heirs, and the estate, was not in compliance with Ark. Code Ann. § 16-62-102 (Supp. 2001); Vivian could not bring a suit in this representative capacity because she had not been appointed as the personal representative of the estate. Thus, the amended complaint was also a nullity. Therefore, when appellants, who were Barron Sanderson’s heirs at law and the necessary parties in this action, filed their complaint on February 15, 2001, the two-year statute of limitations for filing a medical malpractice claim had run, barring their cause of action. Accordingly, the trial court did not err in dismissing their case. See Ark. Code Ann. § 16-114-203 (Supp. 2001).
Appellants, however, argue that they ratified the first suit brought by Vivian Sanderson and that we should interpret Ark. Code Ann. § 16-56-126 (Repl. 1987), the savings statute, in a liberal and equitable manner to save their cause of action. Under Ark. Code Ann. § 16-56-126 (Repl. 1987), a plaintiff, who has suffered a nonsuit, may refile the suit within one year regardless of whether the statute of limitations would otherwise prevent institution of such suit. Tatus v. Hayes, 79 Ark. App. 371, 88 S.W.3d 864 (2002). However, the savings statute cannot save a wrongful-death action when the current plaintiffs are not the same plaintiffs who were parties to first suit, which had been nonsuited. See Murrell v. Springdale Mem. Hosp., supra (the supreme court barred the wrongful-death claims of Murrell’s children because the children were not parties to the first action that had been nonsuited).
In this case, the cause of action for the wrongful-death claim accrued on November 23, 1997, the date of Barron Sander-son’s death. The plaintiff in the first wrongful-death suit was the decedent’s spouse, Vivian Sanderson. She brought the action in her individual capacity and within the time allowed by two-year statute of limitations. However, Vivian Sanderson’s suit was a nullity because it was not in compliance with Ark. Code Ann. § lb-62-102 (Supp. 2001) and was nonsuited on February 15, 2001. The second suit was filed on February 15, 2001, which was within this one-year grace period of the savings statute, but it was filed by appellants, the decedent’s heirs at law. Because appellants were not plaintiffs to the first wrongful-death complaint, they could not benefit from the application of the savings statute. Therefore, at the time appellants filed their wrongful-death suit, the two-year statute of limitations had already run, barring their claim. Appellants could not ratify the first suit filed by Vivian so as to come within the savings statute because there was no valid cause of action for them to ratify. Tatus v. Hayes, supra.
Alternatively, Vivian Sanderson argues that she has standing to bring a loss-of-consortium claim independent of a wrongful-death suit citing, Lopez v. Waldrum Estate, 249 Ark. 558, 460 S.W.2d 61 (1970), for support of her argument. In Lopez, a mother and daughter were injured in an automobile accident in 1967 caused by the driver in the other vehicle who was killed. The administrator of the driver’s estate published a notice to creditors to which anyone having a claim against the estate was to assert that claim within six months of the notice. Neither the mother nor daughter asserted a claim against the estate. At the time of the accident, the husband was overseas with the military. Upon returning home in 1969, the husband filed a complaint on his behalf, for loss of consortium and on behalf of his wife and daughter. The supreme court in Lopez dismissed the claims filed on behalf of the wife and daughter as barred by the statute of limitations, but found that the statute of limitations as to the husband’s claim had been tolled by the Soldiers’ and Sailors’ Civil Relief Act. The supreme court stated that although it has held that a loss-of-consortium claim is a derivative cause of action and that a judgment adverse to the wife would bar the husband’s action, the fact that the husband’s cause of action was derivative did not mean that it could not be independently prosecuted.
Vivian Sanderson’s reliance on Lopez is misplaced. Unlike in other personal-injury cases, in wrongful-death actions, loss of consortium cannot be alleged as a separate cause of action. See Machado v. Kunkel, 2002 Pa. Super. 232, 804 A.2d 1238 (2002); Wiard v. State Farm Mut. Auto. Ins. Co., 132 N.M. 470, 50 P.3d 565 (2002). In a wrongful-death action, the loss-of-consortium claim is only an element of damages and is dependant on the legal existence of the predicate action. See Musorofiti v. Vlcek, 65 Conn. App. 365, 783 A.2d 36 (2001); Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397 (Tex. 1993). Consequently, a defense that would constrict or exclude the defendant’s liability to the injured party would have the same effect on a loss-of-consortium action. See Sisemore v. Neal, 236 Ark. 574, 367 S.W.2d 417 (1963).
Therefore, because the statute of limitations has run, barring appellants from commencing a wrongful-death. action against appellee, Vivian Sanderson is also barred from pursuing a separate claim for loss of consortium, which was derivative to the wrongful-death action.
Affirmed.
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Karen R. Baker, Judge.
Appellant, Mollie Conner, ap peals from a judgment in the Miller County Circuit Court, Probate Division, finding that the testatrix’s will was invalid. She argues on appeal that the trial court erred in finding that the testatrix’s will was invalid due to noncompliance with Ark. Code Ann. § 28-25-103(c) and asserts that Mr. Louis Conner was in the presence of the testatrix when he subscribed his name to the will as an attesting witness. We reverse and remand.
On March 3, 1999, the decedent, Sibyl L. Brenneman, executed her third will. On that day, the legal assistant for her attorney and the notary public, two witnesses, Louis “Jack” Conner and Leona M. Marsden, and the testatrix’s sister, Mollie Conner, all assembled in the testatrix’s bedroom for execution of the documents. The will was read and explained to the testatrix. She reviewed it herself, executed it, and initialed each page while sitting in her bed in the presence of both witnesses and the notary public. One witness, Leona Marsden, signed the will on the testatrix’s bed. The other witness, Louis Conner, requested to sit down while signing the document. The notary public, both attesting witnesses, and Mollie Conner proceeded to an adjacent room that was connected by an open doorway where Louis Conner sat at a table and subscribed his name to the testatrix’s will. The notary public performed her duties and executed a self-proving will. Both witnesses signed an attestation clause and a self-proving affidavit that was notarized by the notary public.
Sibyl Brenneman died on August 12, 1999. On September 17, 1999, Mollie Conner, one of two surviving siblings of the testatrix, filed a document dated March 3, 1999, purporting to be the Last Will and Testament of Sibyl L. Brenneman. An order admitting the will to probate and appointing Mollie Conner as executrix was entered on October 5, 1999. On January 25, 2000, Ona Lee Donahoo, a niece of the testatrix, filed a petition contesting the will of the decedent, alleging that Sibyl Brenneman was not mentally competent and was under undue influence at the time the instrument was executed. On August 21, 2001, Ms. Donahoo filed an amended contest of will, alleging in addition that the will was not executed according to Arkansas law and was therefore not a valid will.
After a trial, the court entered a judgment finding that the testatrix was mentally competent and possessed testamentary capacity at the time the will was executed and that evidence did not support the conclusion that the testatrix was under undue influence at the time of execution. However, the trial court found that the will was invalid because it was not signed by one of the witnesses in the presence of the testator, and therefore, not attested in accordance with the law. From this ruling, comes this appeal.
Our standard of review in such cases is as follows:
On appeal, “[pjrobate cases are reviewed de novo ... [and] we will not reverse the probate judge’s findings of fact unless they are clearly erroneous.... A finding is clearly erroneous when, although there is evidence to support it, we are left on the entire evidence with the firm conviction that a mistake has been committed.” Snowden v. Riggins, 70 Ark. App. 1, 7-8, 13 S.W.3d 598, 602 (2000) (citations omitted); see also Ark. R. Civ. P. 52(a). Due deference will be given to the superior position of the probate judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Wells v. Estate of Wells, 325 Ark. 16, 922 S.W.2d 715 (1996). Furthermore, “[wjhile we will not overturn the probate judge’s factual determinations unless they are clearly erroneous, we are free in a de novo review to reach a different result required by the law.” Standridge v. Standridge, 304 Ark. 364, 370, 803 S.W.2d 496, 499 (1991).
Remington v. Roberson, 81 Ark. App. 36, 39, 98 S.W.3d 44, 46 (2003). Similarly, we review issues of statutory construction de novo, as it is for this court to decide what a statute means. Burch v. Griffe, 342 Ark. 559, 29 S.W.3d 722 (2000) (citing Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000); Shaw v. Shaw, 337 Ark. 530, 989 S.W.2d 919 (1999)). We are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id.
The issue in this case is the definition and meaning of the language “in the presence of the testator.” Arkansas Code Annotated section 28-25-103(c) states, “The attesting witnesses must sign at the request and in the presence of the testator.” Black’s Law Dictionary, Sixth Edition, 1990 at page 1183, defines the phrase “in the presence of the testator” as “the will is attested in the presence of the testator if the witnesses are within range of any of testator’s senses.”
Here, after witnessing the testatrix executing her will in the bedroom of her home in the presence of both witnesses, Leona Marsden subscribed her name to the will on the bed. Louis Conner, on the other hand, requested to sit down while signing and thus subscribed his name to the will in an adjacent room, while the testatrix remained in her bedroom. We hold that under these facts, Mr. Conner was within the range of the testator’s senses while in the adjacent room. Thus, Mr. Conner was “in the presence of the testator” at the time he subscribed his name to the testatrix’s will. Accordingly, we reverse and remand.
Robbins and Roaf, JJ., agree.
We sought certification of this appeal to the Arkansas Supreme Court, but certification was denied. | [
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Andree Layton Roaf, Judge.
Sherrelljean Whisenant was convicted of possession of firearms by a felon, one count of theft of property, and four counts of financial identity fraud. She was sentenced to a total of six years’ imprisonment. On appeal, Whisenant argues that the trial court erred in: (1) denying her motion for a continuance to allow her to obtain transcripts of previous proceedings; (2) denying her motion to suppress evidence found following a warrantless search of her purse; (3) failing to give a requested jury instruction on the defense of choice of evils; (4) failing to grant her motions for directed verdict on the charges of theft and financial identity fraud. We agree that the trial court erred in denying her motion to suppress evidence found in her purse and reverse on this point.
At trial, Virgil Heliums testified that Whisenant was his girlfriend and that she lived at his house. According to Heliums, Whisenant had told him that she was on probation for using her sister-in-law’s social security number to acquire a vehicle and that she was not a felon, but he began to doubt this claim. On the evening of January 13, 2001, Heliums arranged to meet with Deputy Sheriff Preston Glen from the Pike County Sheriffs Department, who verified his suspicions about Whisenant. Hel-iums informed Glen that Whisenant had firearms in his house and gave his consent to a search of his home, after first removing his own firearms from the house. When they arrived at the residence, Heliums took Glen into the bedroom and showed him two firearms belonging to Whisenant in plain view near the dresser. Whisenant stated that the guns came from her ex-husband. Glen then arrested Whisenant, who was present in the house, and she was transported to the detention center.
After a Department of Human Services caseworker, Regina Dowdle, came to the residence to arrange for someone to care for Whisenant’s minor children, Deputy Glen testified that he returned to the sheriffs department and was attempting to book Whisenant. Glen stated that Whisenant had given him several different names and dátes of birth and that he could not find her information on the computer. He returned to Hellums’s residence at approximately 2:00 a.m. on January 14 and explained that he could not find any identification for Whisenant. Heliums stated that he might be able to help and grabbed a purse off a table in the kitchen. Heliums started to search a large wallet from the purse and found two of his credit cards inside the wallet, along with a list of other credit card numbers, expiration dates, and Hellums’s name, social security number, and date of birth. Heliums then retrieved a stack of credit cards that he had in his bedroom and matched up several of these cards with the credit card numbers on the list from the wallet.
Glen testified that they had still not located any identification, so Heliums handed him another smaller wallet that was in the purse. Glen stated that he found three checks belonging to Ms. Retha Johnson on one side of this wallet and found checks belonging to Timmy Stone and to Jack Stone on the other side of the wallet. Glen testified that he then saw the edge of a plastic card inside a partially opened zipper part of the wallet and found Whisenant’s driver’s license. According to Glen, a bank printout with Jack Stone’s name and loan number was also in the wallet, and on the list from the larger wallet were Jack Stone’s name, social security number, and bank account number. On the back of that list, Glen testified that there was also a list of some of Jack Stone’s real and personal property. In addition, Glen testified that Regina Dowdle, the DHS caseworker, had found two property deeds belonging to Jack Stone inside Whisenant’s van when she was at the residence earlier that evening.
Whisenant argues that the trial court erred in denying her motions for directed verdict on the charges of theft of property and financial identity fraud. She contends that the State failed to prove that she had the intent to unlawfully appropriate the property or financial resources of any of the victims. Although Whisenant makes this argument as her fourth point on appeal, this court is required to address challenges to the sufficiency of the evidence first due to double jeopardy considerations. Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000).
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Id. On appeal from a denial of a motion for directed verdict, the sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Id. In determining whether there is substantial evidence to support the verdict, this court reviews the evidence in the light most favorable to the State and considers only that evidence which supports the verdict. Id. Substantial evidence is that evidence which is of sufficient force and character to compel a conclusion one way or the other beyond suspicion or conjecture. Id. The fact that evidence is circumstantial does not render it insubstantial; however, when circumstantial evidence is relied upon, it must exclude every other reasonable hypothesis other than the guilt of the accused. Id. The question of whether circumstantial evidence excludes other reasonable hypotheses is for the fact finder to determine. Id.
A person commits financial identity fraud if, with the intent to unlawfully appropriate financial resources of another person to his or her own use or to the use of a third party, and without the authorization of that person, he or she obtains or records identifying information that would assist in accessing the financial resources of the other person. Ark. Code Ann. § 5-37-227(a)(1)(A) (Supp. 2003). “Identifying information” includes, but is not limited to, social security numbers, driver’s license numbers, bank account numbers, credit card numbers, personal identification numbers, or any other numbers or information that can be used to access a person’s financial resources. Ark. Code Ann. § 5-37-227(a)(2) (Supp. 2003).
Whisenant’s convictions for four counts of financial identity fraud involve the identifying information of Virgil Heliums, Tim Stone, Jack Stone, and Retha Johnson. Virgil Heliums testified that he found in Whisenant’s wallet, in addition to two of his credit cards, a list of other credit card numbers belonging to him, along with the expiration dates, his birth date, full name, and social security number. Heliums testified that this list was in Whisenant’s handwriting. Whisenant claimed that she had written down this information because she had lost her wallet a couple of months earlier, and Heliums had instructed her that she needed to have a list of everything in case it happened again. Thus, she stated that she had written down both of their credit card numbers and other information for this purpose. However, Heliums stated that he did not give Whisenant permission to write down his credit card information or other identifying information.
Tim Stone testified that Whisenant had lived in his house during October and November of 2000. He identified one of his checks found in Whisenant’s wallet as one that had been voided and which had his social security number on it. He testified that he did not authorize Whisenant to have possession of this check at any time.
Jack Stone testified that a check found in Whisenant’s possession was one of his checks and that it had his social security number on it. He also identified some of his bank loan documents that were found in Whisenant’s possession. Whisenant claimed that she had this information because Stone was planning on getting a new vehicle and that she was assisting him in getting together the information he would need to get a loan. However, Stone testified that he did not authorize anyone to have possession of this check or the loan documents.
Finally, Retha Johnson testified that Whisenant had been in her house while she was in the hospital in December 2000. She stated that her three checks found in Whisenant’s possession came from a checkbook that had been lying on her bedroom dresser. Whisenant stated that Johnson had given her three bags of children’s clothing and that she found the checks in with the clothes. Whisenant testified that she placed the checks in the ashtray in her vehicle so that she could return them when she next saw Johnson. However, Johnson denied Whisenant’s explanation and testified that she did not authorize Whisenant to have possession of these checks at any time.
Because there was no evidence that she had used any of the victims’ financial information, Whisenant argues that the State failed to prove that she had the intent to unlawfully appropriate the financial resources of these victims. Intent can seldom be proven by direct evidence and must usually be inferred from the circumstances surrounding the crime. Taylor v. State, 77 Ark. App. 144, 72 S.W.3d 882 (2002). The jury is allowed to draw upon its common knowledge and experience to infer intent from the circumstances. Id.
Contrary to Whisenant’s argument, there was sufficient evidence presented in this case to support her convictions for financial identity fraud. Whisenant had possession of financial information belonging to four different persons, all of whom denied giving her permission to have this information. In addition, there was testimony by Annette Stone, who was friends with Whisenant, that Whisenant showed her Heliums’s stack of credit cards at his house on one occasion and joked as to how much he trusted her and as to “where she might go with these cards.” Although Whisenant had explanations for possessing much of this financial information, the victims denied these explanations, and the jury is not required to believe her testimony, which is self-serving. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000).
Whisenant’s conviction for theft of property was based on her possession of two of Hellums’s credit cards, along with his other credit card numbers. A person commits theft of property if he knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner thereof. Ark. Code Ann. § 5-36-103(a)(1) (Supp. 2003). The theft of credit cards or credit card account numbers is a Class C felony. Ark. Code Ann. § 5-36-103(b)(2) (Supp. 2003).
Whisenant again argues that there was insufficient evidence that she possessed this property with the purpose of depriving Heliums of it. However, Heliums testified that he did not give her permission to possess his credit cards or credit card numbers. As discussed above, given the evidence that she possessed financial information of four different persons without their permission and that she had joked to a friend as to how much Hellüms trusted her and as to where she could go with the cards, there is substantial evidence to support her conviction for theft of property.
Whisenant next argues that the trial court erred in denying her motion for a continuance, filed the day prior to trial, to allow her to obtain transcripts from her revocation hearing held several days before her trial. She argued that she needed these transcripts for possible impeachment purposes and trial preparation, as the revocation hearing involved many of the same witnesses as would testify in the trial. Whisenant argues that the denial of her motion amounted to a denial of justice because she was unable to cross-examine the witnesses with the “full arsenal” available to her.
When reviewing the grant or denial of a motion for continuance, the appellate court employs an abuse-of-discretion standard. Ware v. State, 348 Ark. 181, 75 S.W.3d 165 (2002). The appellant must not only demonstrate that the trial court abused its discretion by denying the motion, but must also show prejudice that amounts to a denial of justice. Id.
Although Whisenant claims that the transcripts from her revocation hearing were necessary to impeach the credibility of the witnesses testifying at trial, she admits that she cannot identify specific instances where the availability of the transcript would have made a difference in the outcome of the trial. This is so despite the fact that she was present at the revocation hearing and heard the testimony of the witnesses. As the trial court noted in denying her motion, in effect, Whisenant was able to obtain a “preview” of her trial during the revocation hearing, an opportunity most defendants do not have. She was able to use her notes from the hearing to impeach witnesses during her trial, even without the transcript. Thus, Whisenant is unable to demonstrate prejudice from the denial of her motion. See McArdell v. State, 38 Ark. App. 261, 833 S.W.2d 786 (1992) (holding that the defendant was not entitled to delay the trial in order to obtain a transcript from a prior proceeding where the trial was held a short time after the prior proceeding, the defendant had the same counsel at both proceedings, counsel had ample opportunity to cross-examine and impeach the witnesses, and the defendant did not show how he suffered any prejudice in not having the transcript). The State also objected to the continuance, as it had already agreed to one earlier continuance to allow the defense more time to prepare. Therefore, Whisenant has failed to show that the trial court abused its discretion in denying her motion for a continuance, and we affirm on this point.
Whisenant next argues that the trial court erred in denying her motion to suppress evidence found following a warrantless search of her purse. Prior to trial, Whisenant filed a motion to suppress the credit cards and other evidence found in her purse. She argued that the items seized subsequent to her incarceration were not incident to arrest, were not within the scope or authority of anyone who may have previously given consent to search, and were within her reasonable expectation of privacy. She asserted that the search of her purse by Heliums, at the direction of Deputy Glen, and the subsequent seizure of the evidence found in her purse were illegal. After a suppression hearing, the trial court denied Whisenant’s motion, stating that Heliums was not considered by the court to be an agent on behalf of the State.
When reviewing a trial court’s denial of a motion to suppress evidence, the appellate court makes an independent determination based on the totality of the circumstances and reverses only if the ruling is clearly against the preponderance of the evidence. Morrow v. State, 73 Ark. App. 32, 41 S.W.3d 819 (2001).
As Whisenant contends, her purse was an item in which she had a reasonable expectation of privacy. See Evans v. State, 65 Ark. App. 232, 987 S.W.2d 741 (1999) (holding that an individual’s expectation of privacy in a purse or handbag is probably greater than in any other property except the clothing worn by a person). The Fourth Amendment protects persons against unreasonable searches and seizures, and all searches conducted without a valid warrant are unreasonable unless an exception applies. Id.
However, the Fourth Amendment’s prohibition against unreasonable searches and seizures does not apply to searches conducted by private citizens not acting as an agent of the government or with the participation or knowledge of a government official. United States v. Jacobsen, 466 U.S. 109 (1984); Winters v. State, 301 Ark. 127, 782 S.W.2d 566 (1990); Morrow v. State, supra; Collins v. State, 9 Ark. App. 23, 658 S.W.2d 881 (1983). Only when it is established that the private individual acted at the request or direction of, or in a joint endeavor with, a law enforcement agency or officer can he be considered an arm of the government. Winters, supra; Morrow, supra. “If a search and seizure is instigated or encouraged by the police, Fourth Amendment constraints are applicable, ‘as the construction to be attached by the Fourth Amendment does not permit evasion by circuitous means.’ ” Morrow, supra, 73 Ark. App. at 35, 41 S.W.3d at 821 (quoting Smith v. State, 267 Ark. 1138, 594 S.W.2d 255 (Ark. App. 1980)). The mere presence of government agents and their observation of the private person’s actions does not necessarily türn a private search into a joint effort; however, the Fourth Amendment may be implicated where the government agents acquiesce to or indirectly encourage a private person’s search. United States v. Reed, 15 F.3d 928 (9th Cir. 1993).
Other courts interpreting these principles have set out a two-part test to determine whether an individual is acting as an agent of the government for Fourth Amendment purposes: (1) whether the government knew of and acquiesced in the intrusive conduct; and (2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends. United States v. Souza, 223 F.3d 1197 (10th Cir. 2000); United States v. Reed, supra; State v. Jorgensen, 660 N.W.2d 127 (Minn. 2003); Dawson v. State, 106 S.W.3d 388 (Ct. App. Tex. 2003). Both of these prongs must be satisfied before the private search may be deemed a government search. United States v. Souza, supra. Another factor that has been considered is whether the government re quested the action or offered the private actor a reward. United States v. Segal, 276 F. Supp.2d 896 (N.D. Ill. 2003).
If the private actor is not determined to be an agent of the law enforcement agency, his actions do not violate the Fourth Amendment because of their private character. United States v. Jacobsen, supra. Flowever, the government agency may not then exceed the scope of the private search unless it has the right to make an independent search. Id. For example, in Walter v. United States, 447 U.S. 649 (1980), a private party opened a misdirected carton, found rolls of motion picture films that appeared to be contraband, and turned the carton over to law enforcement. Later, without obtaining a warrant, the law enforcement agents obtained a projector and viewed the films. Id. The Court found that because the private party had not actually viewed the films, the actions of the government in viewing them was a “significant expansion of the search that had been conducted previously by a private party and therefore must be characterized as a separate search.” Id. at 657. The opposite result was reached in Jacobsen, supra, where the search by the private party actually revealed that the package contained contraband. Thus, although the private party only cut one end of the package open, the Court held that there was no additional intrusion by the government agency in removing plastic bags containing the contraband from the package and visually inspecting them where the agent learned nothing that had not previously been learned during the private search. Id.
Applying the foregoing principles to the present case, we find that the warrantless search of Whisenant’s purse violated the Fourth Amendment. The testimony presented at the suppression hearing established that Deputy Glen went to Heliums’s residence several hours after Whisenant was arrested for the purpose of finding identification on her. Glen requested that Heliums assist him in finding identification, and then, in the presence of Glen, Heliums grabbed Whisenant’s purse from the kitchen and proceeded to search it. When Heliums opened one of Whisenant’s wallets, he immediately found two of his credit cards inside. Heliums then noticed a list in that same wallet, containing credit card numbers and other financial information. After Heliums determined that his other credit card numbers were also on that list, Glen testified that Heliums then turned that wallet over to him. However, it is apparent from a close reading of Glen’s testimony that there was another smaller wallet, which Glen also searched and in which he found Whisenant’s driver’s license and the checks and other documents belonging to Retha Johnson, Jack Stone, and Tim Stone. Thus, Glen’s search exceeded the scope of Hellums’s search, and Glen needed additional justification for this search of the smaller wallet. Walter v. United States, supra.
Moreoever, even if Glen’s search did not exceed the scope of Hellums’s search, we conclude that Heliums was an agent of the police under the two-part test set out above. First, Glen knew and acquiesced in the intrusive conduct of Heliums, as he requested assistance in obtaining identification on Whisenant, then observed Heliums take Whisenant’s purse and search it, including the wallets. Second, Heliums was intending to assist law enforcement efforts when he searched the purse, as there was no evidence presented that he had his own purpose for finding Whisenant’s identification. Also, the other factor that has been considered, whether law enforcement requested the private party’s actions, is present in this case as well, as Glen requested that Heliums help find some identification.
In a case with similar facts, Tucker v. Superior Court of Fresno County, 84 Cal. App. 3d 43, 148 Cal. Rptr. 167 (1978), the court held that there was police involvement in the search and seizure, where the police officer, who had a restaurant employee detained in his police vehicle, went inside the restaurant and requested the suspect’s jacket from a waitress. The officer then followed the waitress and observed as she opened his locker and retrieved the jacket. Id. The court stated that the waitress was acting as an agent of the police because the officer initiated the search and because the locker was only opened pursuant to the officer’s request. Id. In this case, the officer’s request for identification also initiated the search of Whisenant’s purse. Also, if the government agent assists the private party in the search, or has a hand in it before the object of the search has been accomplished, he must be deemed to have participated in it. United States v. Souza, supra. Here, Deputy Glen assisted and had a hand in the search, as he was the one that found the identification, which was the object of the search. For these reasons, we conclude that Heliums was an agent of the police and that the warrantless search of Whisenant’s purse violated the Fourth Amendment. Thus, the trial court erred in denying her motion to suppress the evidence found in the purse.
For her last argument, Whisenant contends that the trial court erred in refusing to give her proffered jury instruction on the “choice of evils” defense. Whisenant testified at trial that she possessed the two firearms because they were evidence to prove that she did not commit arson in another criminal case, in which the charges against her had been dismissed the year before. According to her testimony, the guns belonged to her ex-husband and were supposed to have been burned in the fire. When she found them after the fire at her ex-husband’s parents’ house, she testified that she confiscated them, believing them to be exculpatory evidence because they would show that her ex-husband started the fire and not her.
According to Ark. Code Ann. § 5-2-604(a) (Repl. 1997), conduct which would otherwise constitute an offense is justifiable when the conduct is necessary as an emergency measure to avoid an imminent public or private injury, and the desirability and urgency of avoiding the injury outweigh, according to ordinary standards of reasonableness, the injury sought to be prevented by the law proscribing the conduct. This section is to be narrowly construed and applied. Koonce v. State, 269 Ark. 96, 598 S.W.2d 741 (1980); Pursley v. State, 21 Ark. App. 107, 730 S.W.2d 250 (1987). The commentary to section 5-2-604 states that conduct that would ordinarily be criminal may be excused because of extraordinary attendant circumstances and that this section requires comparing the injury the actor caused with the injury he sought to prevent. The commentary also lists illustrations of situations that might permit recourse to this defense, such as: (1) the destruction of buildings or other structures to keep fire from spreading; (2) breaking levees to prevent flooding a city, while in the process causing flooding of an individual’s property; and (3) temporary appropriation of another’s vehicle to remove a seriously injured person to a hospital.
In Polk v. State, 329 Ark. 174, 947 S.W.2d 758 (1997), the court held that the defendant was not entitled to an instruction on the “choice of evils” or “necessity” defense in a charge of being a felon in possession of a firearm. The defendant argued that he took the gun away from a person with whom he was fighting in self-defense and that he then drove home, took the gun out of the car, and called the police. Id. The court noted that, in addition to recklessly placing himself in that position, the defendant’s story was not credible, as he could have traveled a short distance to the police department and turned the gun over to authorities, or to his parole officer, instead of taking it home and into his house. Id.
In this case, as in Polk, supra, if Whisenant’s concern was truly to preserve the guns as exculpatory evidence, she could have notified the police, her attorney in her arson case, or her probation officer. Also, there is no proof of extraordinary attendant circumstances in this case requiring emergency measures to avoid any sort of imminent public or private injury, as required under section 5-2-604. It is not error for the trial court to refuse to give a jury instruction if there is no basis in the evidence for giving it, even if the instruction contains a correct statement of law. Pursley v. State, supra. Because there was no basis in the evidence for giving a jury instruction on the choice-of-evils defense, the trial court did not err in refusing Whisenant’s proffered instruction.
Because our reversal on the denial of the motion to suppress involves only the evidence found in Whisenant’s purse, we affirm her conviction for possession of firearms by a felon, and reverse and remand the remaining convictions, because, while all of the evidence of financial identity fraud was not found in Whisenant’s purse, we note that evidence from the purse was introduced with respect to all four counts.
Affirmed in part; reversed and remanded in part.
Robbins and Baker, JJ.,- agree.
The fact that Glen searched this wallet, not Heliums, is even more clear from Glen’s testimony at trial, where he states that he searched the small wallet, including the zippered compartment containing the driver’s license. | [
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Robert J. Gladwin, Judge.
Appellant Victoria Moore appeals from an order appointing appellees L.C. and Lois Sipes guardians of her two minor children. She makes four arguments: 1) the trial court had no jurisdiction in this matter; 2) venue was not proper in Jefferson County; 3) the trial court failed to timely consider her habeas petition; 4) the trial court erred in appointing appellees as guardians for the boys. We reverse and remand on the fourth ground.
Appellant, who lives in North Little Rock, is the mother of Kenneth Sipes, born in 1989, and Stephen Sipes, born in 1990. Appellees, who live in Pine Bluff, are the boys’ paternal grandparents. The boys’ father is Larry Sipes, from whom appellant was divorced in 1995. There is no evidence that, since the divorce, Larry Sipes has supported the children, visited them, or been a part of their lives. He did not participate in this lawsuit.
On October 18, 2002, appellees filed a petition in Jefferson County Circuit Court, asking to be appointed guardians. The boys had been living with appellees for approximately one month at that time and were attending school in Pine Bluff. Appellees sought guardianship based on their belief that they could provide a more stable environment for the children because appellant’s frequent moves had caused the children to change schools many times. Appellant responded with a request that the children be returned to her, and she filed a petition for a writ of habeas corpus. In that pleading, she alleged that the boys’ placement with appellees was temporary and that she never intended to relinquish custody.
The evidence at trial showed that, from 1998 to 2000, the boys lived with appellant in Pulaski County. Thereafter, they moved to Saline County for several months and, in late 2000, moved to Pearl, Mississippi, as the result of appellant’s job transfer. In mid-2002, appellant returned to North Little Rock. In late summer of 2002, she and the boys moved to Vicksburg, Missis sippi, and returned to Arkansas in September or October 2002. During a portion of those times, either one or both boys lived with appellees in Pine Bluff and attended school there.
Appellee L.C. Sipes testified that Kenneth and Stephen spent. a great deal of time with him and Lois after their mother’s divorce, visiting every other weekend and for an extended period during the summers. Beginning in November 2001, Kenneth began spending even more time with them after appellant had moved with the boys from North Little Rock to Pearl, Mississippi. According to Mr. Sipes, appellant called and asked them to take Kenneth in and send him to school in Pine Bluff. Appellant told them that, if they could not take him, she was going to put him in a boys’ school because she could no longer handle him. Appellees agreed to take Kenneth, and he lived with them and attended school in Pine Bluff from November 2001 to June 2002. During that time, he got into minor trouble, but there were no major problems with his behavior. Also during this period, appellant (and presumably Stephen) returned from Pearl, Mississippi, to North Little Rock. According to Mr. Sipes, appellant came to see Kenneth once during this period and called him several times. He also said that appellant provided appellees no monetary support during Kenneth’s stay.
Appellant retrieved Kenneth in the summer of 2002 and, within a short period, moved with both boys to Vicksburg, Mississippi. The boys started school in Vicksburg, but appellant decided to move back to North Little Rock just after the school year began. According to appellees, appellant called and asked if they would enroll both boys in school in Pine Bluff for the rest of the school year. They agreed and enrolled both boys in September of 2002. Within about one month’s time, appellees filed the guardianship petition that is the subject of this appeal.
Mr. Sipes explained at trial that he wanted the children to have a stable home and did not want them moving from one school district to another. He said that Kenneth’s school work has improved since he began staying with appellees. Mr. Sipes also expressed concern that someone be home for the children at night. He said that, on one occasion when he had gone to pick up the children in Pearl, Mississippi, appellant told him that, while she had been at work, the children had been out of the house all night.
On cross-examination, Mr. Sipes admitted that appellant is not a bad mother, but he said that he believed the children needed a stable place to stay for more than five or six months at a time. He also agreed with appellant’s counsel that appellant’s simply moving and taking the children from one place to another did not make her a bad parent.
Appellant admitted in her testimony that she had moved a great deal for the purpose of finding work and that she had been transferred to Pearl by her employer. She admitted that she had a strained relationship with Kenneth. She also said that she had discovered that Stephen had skipped school and that the children had stayed out all night one night while she was at work, despite the fact that she had made arrangements with a neighbor to check on them. However, she felt that the children would be better off with her. She said that she is now situated in North Little Rock with an adequate place for the children with beds, food, clothing, utilities, and transportation and that she and her husband Tony both work. Apparently, Stephen was already living with her at the time of the hearing and was in school in North Little Rock.
Appellant also disputed some of appellees’ testimony. She said that, while Kenneth had stayed with appellees the previous year, she had seen him at least every other weekend and talked to him every week. Further, she testified that, when she permitted appellees to enroll the boys in school in September 2002, it was with the understanding that she would be back to get them when she got “straightened out” within a couple of weeks. She denied any intent to leave the children there for the entire school year.
Kenneth testified and expressed his desire to live with appellees. He said that his mother had called the police when he got into a physical altercation with her and with his maternal grandmother. He also said that his mother blamed him for things his younger brother had done and that she had left the boys alone at night occasionally without anything to eat other than Hamburger Helper or macaroni and cheese.
Following the hearing, the trial court ruled from the bench that appellant was not suitable as a guardian, stating that “the Court having heard testimony about the living conditions and the supervision of these children and the moving around and their grades in school and all of the above has a real hard time finding that [appellant] is suitable at this time as the guardian ....” The court also took into consideration Kenneth’s testimony that he wanted to remain with appellees. The court then appointed appellees guardians of the persons and estates of Kenneth and Stephen and awarded appellant visitation.
Appellant argues first that the probate court had no jurisdiction in this case because jurisdiction was either in juvenile court, by way of a dependency and neglect or a Family In Need of Services (FINS) proceeding, or in chancery court by way of a custody proceeding. We disagree. Since the implementation of Amendment 80, circuit court jurisdiction includes all matters previously cognizable by circuit, chancery, probate, and juvenile court. See Amendment 80, § 19(B)(1); Administrative Order No. 14, §§ 1(a) and (b), 344 Appx. 747-48 (2001). By statute, a circuit court is now vested with jurisdiction to appoint a guardian. See Ark. Code Ann. § 28-65-107(a) (Supp. 2003). Therefore, the circuit court in this case had subject-matter jurisdiction. Further, this case is not necessarily, as appellant argues, better suited for a juvenile or chancery proceeding. Probate proceedings, as well as juvenile and chancery proceedings, often concern matters of child custody and parental rights. Custody suits and guardianship petitions involving minors are similar in that each may limit parental rights and may award custody based on the best interest of the child. See generally Robins v. Arkansas Social Servs., 273 Ark. 241, 617 S.W.2d 857 (1981). See also 4 Lynn Wardle, et al., Contemporary Family Law § 41.05 at 49 (1988) (stating that “when a guardianship proceeding is contested, the court must resolve the dispute according to the best interest of the proposed ward. In this, it is similar to custody after divorce.”) Thus, custody determinations may be made in both types of cases. In numerous instances, our courts have made what amount to custody determinations involving minors in the context of a guardianship proceeding. See, e.g., Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000); Bennett v. McGough, 281 Ark. 414, 664 S.W.2d 476 (1984); Hooks v. Pratte, 53 Ark. App. 161, 920 S.W.2d 24 (1996); In re Guardianship of Markham, 32 Ark. App. 46, 795 S.W.2d 931 (1990); Marsh v. Hoff, 15 Ark. App. 272, 692 S.W.2d 270 (1985); Monroe v. Dallas, 6 Ark. App. 10, 636 S.W.2d 881 (1982). We therefore hold that the trial court did not err in hearing the guardianship petition in this case.
Appellant argues next that venue was not proper in Jefferson County. She contends that, because she resided in Pulaski County and was the boys’ legal custodian at the time the petition was filed, appellees should have filed suit in Pulaski County. See Ark. Code. Ann. § 28-65-202(a)(1) (1987). We hold that appellant has waived this argument. She did not object to venue at the trial level, and we do not address arguments raised for the first time on appeal. See generally Utley v. City of Dover, 352 Ark. 212, 101 S.W.3d 191 (2003). Further, appellant did not object to venue in her initial responsive pleading. An objection to venue is waived if it is not raised in the defendant’s answer or in a motion filed prior to or simultaneously with the answer. Higgins v. Burnett, 349 Ark. 130, 76 S.W.3d 893 (2002); Ark. R. Civ. P. 12(h)(1) (2003).
We now turn to appellant’s argument that the trial court erred in appointing appellees guardians of her two children. We review probate proceedings de novo, but we will not reverse the decision of the trial court unless it is clearly erroneous. Blunt v. Cartwright, supra. When reviewing the proceedings, we give due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses. Id.
Before appointing a guardian, the court must be satisfied that: (1) the person for whom guardianship is sought is either a minor or otherwise incapacitated; (2) a guardianship is desirable to protect the interests of that person; (3) the person to be appointed guardian is qualified and suitable to act as such. Ark. Code Ann. § 28-65-210 (1987). Where the incapacitated person is a minor, the key factor in determining guardianship is the best interest of the child. Blunt v. Cartwright, supra. Preferential status may be given to the natural parents of the child under Ark. Code Ann. § 28-65-204(a) (Supp. 2003). This preference, however, is but one factor that the probate court must consider in determining who will be the most suitable guardian for the child. Blunt v. Cartwright, supra.
We agree with appellant that the trial court’s decision to appoint appellees as guardians in this case was clearly erroneous. A preference for the natural parent must prevail in third-party guardianship cases unless it is established that the natural parent is unfit. See Robbins v. State, 80 Ark. App. 204, 92 S.W.3d 707 (2002). See also Dunham v. Doyle, 84 Ark. App. 36, 129 S.W.3d 304 (2003) (stating that the law prefers a parent over a grandparent unless the parent is proved to be incompetent or unfit); Phifer v. Phifer, 198 Ark. 567, 129 S.W.2d 939 (1939); Hancock v. Hancock, 197 Ark. 853, 125 S.W.2d 104 (1939). The evidence in this case does not support a finding that appellant was an unfit parent. This is not a situation in which appellant has engaged in egregious conduct that would call her fitness into question. She has moved a great deal, and as a result, the boys have attended a number of schools. Further, she has not supervised them in the best manner, which allowed them to skip school and to stay out all night on one occasion. However, the evidence showed that appellant was working and was concerned about the children and trying to see to their welfare.
In those cases in which our courts have appointed a third person as a guardian over the objection of a parent, the parent has clearly been unsuitable. In Blunt v. Cartwright, supra, the father had only been employed one week, did not have a home of his own, had never had legal custody of the child, had failed to support her, and had physically abused the child’s late mother. The supreme court affirmed the appointment of the child’s maternal grandparents as guardians. In Guardianship of Markham, supra, the parents consented to the guardianship of their child by a paternal aunt. Six months later, the parents asked that the guardianship be terminated. The trial court declined to terminate the guardianship, and this court affirmed on the grounds that the parents had voluntarily consented to the initial guardianship, were smokers, had a somewhat stormy marriage, may have been marijuana users, and may not have cooperated in following medical recommendations for the child. In Marsh v. Hoff, supra, the trial court denied a relative’s petition for guardianship and instead returned the child to the natural father. We reversed on evidence showing that the father maintained filthy living conditions at his home that the home, had no hot water, that the child got some of her meals from dumpsters, and that the father co-habited with a woman who threatened and cursed the child.
Appellant’s conduct and lifestyle, especially in comparison to the above-cited cases, are not such that she may be considered unfit. Thus, despite the fact that appellees may be able to provide certain advantages to the children, appellant should not be deprived of custody in this case. We therefore reverse the trial judge on this point. \
Our ruling in appellant’s favor makes it unnecessary for us to address her argument with regard to whether the trial court conducted a timely hearing of her habeas petition.
Reversed and remanded with directions to enter an order consistent with this opinion.
Stroud, C J., and Hart, J., agree.
We particularly note that there is no evidence that the guardianship would be in Stephen’s best interest. Stephen has spent a great deal more time with his mother and, despite what is said in the court’s order, expressed a preference to live with his mother, not with appellees. | [
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Robert J. Gladwin, Judge.
Appellant Jeffery Lamar Richardson appeals from an order by the Mississippi County Circuit Court that revoked his ten-year suspended imposition of sentence on a residential burglary charge and sentenced him to five years’ imprisonment with an additional five years’ suspended imposition of sentence. He argues that the trial court erred in revoking his suspended imposition of sentence because he did not violate a written term or condition of his suspended sentence and that the trial court was without jurisdiction to revoke the suspended sentence prior to the commencement of the period of suspension. We affirm.
On January 15, 2003, appellant entered two guilty pleas. The first was for theft of property, for which he was sentenced to eleven years’ imprisonment. The second was for residential burglary, for which he was given ten years’ suspended imposition of sentence. After the trial court accepted appellant’s guilty pleas and sentenced him, it allowed him to remain out of custody until the following Monday morning, January 20, 2003, at which time he was to report to the sheriff to begin serving his sentences. The court advised appellant that if he did not surrender himself when he was supposed to, he could be sentenced for an additional twenty years. The court engaged in a colloquy with appellant, making sure he understood when he should report back and how important it was that he do so.
Appellant failed to appear the following Monday. Major Jerry Arnold with the Mississippi County Sheriffs 'Department testified that appellant made no contact with the sheriffs office. Officer Mark Cretch with the Blytheville Police Department testified that he was aware of a warrant being issued for appellant, and that on February 20, 2003, he received information as to where appellant might be located. Officer Cretch testified that while he and his partner were driving around, he saw appellant drive by. The police initiated a stop, and as Officer Cretch was approaching the vehicle, it took off at a high rate of speed. The officer testified that they pursued the subject and saw him leave the vehicle and proceed on foot. Officer Cretch said that they continued to pursue appellant, narrowed their search to an area surrounding two houses, and eventually found appellant hiding under one of the houses.
Appellant was brought back before the court on a petition to revoke the suspended imposition of sentence that had been filed January 22, 2003. The trial court found that appellant had violated the terms and conditions of the ten-year suspension imposed in the residential burglary case, and sentenced him to five years’ imprisonment with an additional five years’ suspended imposition of sentence. The sentence imposed upon revocation was to be served consecutively to the eleven-year sentence that had been imposed in the theft case. Appellant appeals from the revocation of the suspended imposition of sentence.
To revoke probation or a suspension, the trial court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of that probation or suspension. Ark. Code Ann. § 5-4-309 (Supp. 2001); Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). The State bears the burden of proof, but need only prove that the defendant committed one violation of the conditions. Rudd, supra. When appealing a revocation, the appellant has the burden of showing that the trial court’s findings are clearly against the preponderance of the evidence. Id. Evidence that is insufficient for a criminal conviction may be sufficient for the revocation of probation or suspended sentence. Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003). 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. Id.
Appellant first argues that he did not violate a written term or condition of his suspension by not turning himself in to the sheriffs department as ordered. His argument has two parts: (1) that there was no written condition of behavior that appellant should surrender on January 20, 2003, as required by Ark. Code Ann. § 5-4-303(g) (Supp. 2001), and (2) that the “good behavior” and “law-abiding life” conditions of his suspension were not violated by appellant’s failure to turn himself in as ordered.
Arkansas Code Annotated section 5-4-303(g) provides that “[i]f the court suspends the imposition of sentence on a defendant or places him on probation, the defendant shall be given a written statement explicitly setting forth the conditions under which he is being released.” In Zollicoffer v. State, 55 Ark. App. 166, 934 S.W.2d 939 (1996), we cited the supreme court’s statement in Ross v. State, 268 Ark. 189, 594 S.W.2d 852 (1980), that all conditions for a suspended sentence must be in writing if the suspended sentence is to be revocable, and that courts therefore have no power to imply and subsequently revoke based upon conditions that were not expressly communicated in writing to a defendant as a condition of his suspended sentence.
The record reflects that on January 15, 2003, appellant signed the written terms and conditions of the suspended sentence in the case involving residential burglary. Appellant is correct in his statement that the court’s directive that appellant surrender himself to the sheriffs department on January 20, 2003, was not a written condition of his suspension. However, the written conditions signed by appellant do specify that appellant “shall live a law-abiding life [and] be of good behavior,” and appellant is incorrect in his statement that his decision not to surrender to the sheriff s office did not violate these written conditions. We do not hesitate to conclude that appellant’s failure to surrender, particularly after being fully advised by the court of the necessity of such and the consequences of not doing so, constitutes an overt demonstration of lack of good behavior. Accordingly, we cannot say that the trial judge’s finding that appellant had violated the “good behavior” and “law-abiding life” conditions of his suspension was against the preponderance of the evidence.
Appellant also argues that, based on the decision in Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003), the period of suspension had not commenced and, therefore, the trial court was without authority to revoke the suspended sentence. Harness is distinguishable from the case at bar in that Harness was sentenced for one crime to a term of imprisonment with an additional period of suspended sentence, while appellant was sentenced for two separate crimes, for one receiving a sentence of eleven years’ imprisonment, and for the other, the suspended imposition of sentence that is the subject of this appeal. This is an important distinction because, under Ark. Code Ann. § 5-4-307 (Repl. 1997), it is determinative of when the period of suspension commences.
Arkansas Code Annotated section 5-4-307 provides as follows:
(a) Except as provided in subsection (c) of this section, a period of suspension or probation commences to run on the day it is imposed.
(b) Multiple periods of suspension or probation, whether imposed at the same or different times, shall run concurrently. The period of a suspension or probation shall also run concurrently with any federal or state term of imprisonment or parole to which the defendant is or becomes subject during the period.
(c) If the court sentences the defendant to a term of imprisonment and suspends imposition of sentence as to an additional term of imprisonment, the period of the suspension commences to ran on the day the defendant is lawfully set at liberty from the imprisonment.
(Emphasis added.)
Section (c) is inapplicable in this case; it addresses a situation in which one sentence is given, specifically, a term of imprisonment accompanied by suspended imposition of an additional term. Here, we have a period of suspension on a residential burglary charge imposed during the same time period as a term of imprisonment on a theft charge, and section (b) provides that these two shall run concurrently. Because section (c) is inapplicable, the general provision found in section (a) determines when the suspension commenced, i.e., the period of suspension commenced to run on the day it was imposed, which was January 15, 2003. Thus, the court was acting within its power when it revoked the suspension on March 10, 2003, and sentenced appellant to five years’ imprisonment with an additional five years’ suspended imposition of sentence. We affirm.
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Olly Neal, Judge.
Pro se appellant Marlene Sheppard brings this appeal from an order of the Washington County Circuit Court that awarded appellee Robert Speir custody of the parties’ child and changed the child’s birth name. On appeal, Sheppard argues that appellee failed to prove a material change in circumstances and that changing the child’s birth name was not in the child’s best interest. We affirm.
The parties in this case were never married. Sheppard is the mother of four sons: K.D., age twelve; B.B., age six; J.S., age four; and Weather’By Dot Com Chanel Fourcast Sheppard, ten months. Each child has a different father. Sheppard’s mother, Betty Miller, has guardianship of K.D. and B.B. Sheppard and her sons reside with Ms. Miller. This case only involves the custody and name change from Weather’By Dot Com Chanel Fourcast Sheppard (the child), born January 3, 2002. Following the child’s birth, Sheppard initiated an action through the Office of Child Support Enforcement to establish paternity, and genetic testing was performed to determine the paternity of the child. The testing indicated that Speir was the child’s father. Speir filed a petition seeking custody on May 16, 2002. The Office of Child Support Enforcement filed a paternity complaint on May 17, 2002. Speir later filed a motion to consolidate the paternity and custody actions. The trial court granted the motion to consolidate and scheduled a hearing on the issues of paternity and visitation for July 23, 2002. A judgment of paternity, finding that Speir was the child’s father, was entered on August 9, 2002. The paternity order stated that a hearing on the matter of custody would be held on October 31, 2002.
At the custody hearing, Speir testified that he had been married for one year and that, in addition to his child with Sheppard, he also had a two-year-old daughter. Speir’s wife is not the mother of Speir’s daughter. Speir said that his daughter visits every other weekend. Speir said that he has worked three-and-one-half years as the morning weather anchor for Arkansas, NBC Television. Speir previously worked in Illinois for Schwann’s Ice Cream Delivery Sales and at a radio station in Effingham, Illinois. Speir testified that Sheppard had interfered with his visitation by not allowing him to have court-ordered weeknight visitation. Sp.eir testified that since paternity was established, he had regularly paid child support and had made double child-support payments. At the time of the hearing, Speir had overpaid his child support by $483. During his testimony, Speir expressed a desire for the court to change the child’s name to “Samuel Charles Speir.”
Officer Thomas Wooten of the Springdale Police Department testified that he was dispatched to the home of Betty Miller on July 15, 2002. He said that the parties were in a dispute over the visitation schedule. He said that when he entered Ms. Miller’s home, he found the home chaotic. He said that a child, B.B., was running around the home.
Monica Eisenhower, a Department of Human Services investigator, testified that she investigated an unfounded report of medical neglect filed against Speir. She said that it was alleged that Speir was not providing the child his asthma medication. Eisenhower testified that Sheppard was not sending the medication and that Speir had taken measures to provide the child with asthma medication. Eisenhower also testified that, as part of her investigation, she did a home visit with Sheppard. She described the home as chaotic and “sometimes dangerous to the younger children in the home.” Eisenhower said that, while she was talking to Sheppard, B.B. was rather unruly and tried to bite Sheppard. She said at one point, while her back was turned, B.B. tried to throw a lamp shade at her.
Betty Miller testified that Sheppard and her four children reside with her. She said that her son and daughter-in-law also live with them and that up until his death, her brother had also lived with them. She said that they were purchasing the three-bedroom home in which they all lived. Miller said that K.D., B.B., and J.S. share a bedroom, her son and daughter-in-law have the master bedroom, Sheppard and the child share a room, and that she sleeps on the couch. Miller testified that she and Sheppard share in the responsibility of raising Sheppard’s children. She said that K.D. is on medication to curb his anger and that B.B. had been diagnosed as “oppositional defiant.” Miller said that B.B. wanted to jump, out of a moving vehicle. She testified that during the past twelve years, the longest Sheppard had worked a job was six to seven months. During her testimony, Miller said that the child’s name “[is] different. It’s unusual. It’s kind of stupid, but it’s kind of cute.”
Sheppard testified that she currently worked for Kentucky Fried Chicken earning six dollars an hour. She admitted that she does not hold a job very long and said that it was true that during the past five to seven years she has worked at the Elks Lodge, Allen Canning Company, Matthew Management, Waffle Hut, CiCi’s, Pizza Inn, McDonald’s, Hampton Inn, Day’s Inn, Shoney’s, Faz-zoli’s, Hardy’s Galore, Denny’s, and KPOM TV. She also admitted that she has been arrested eighteen times by the Fayetteville Police Department and eleven times by the Springdale Police Department. She testified that each arrest was for check forgery. Sheppard said that in 1994, she served twelve months in community punishment for forgery and theft of property. Sheppard admitted giving her mother guardianship of K.D. and B.B. She said that she had taken steps toward giving her mother guardianship of her younger two children.
During the hearing the following discussion was had between the court and Sheppard with regards to the child’s name.
The Court: I simply do not understand why you named this child — his legal name is Weather’by Dot Com Chanel Fourcast Sheppard. Now, before you answer that, Mr. — the plaintiff in this action is a weatherman for a local television station.
Sheppard: Yes.
The Court: Okay. Is that why you named this child the name that you gave the child?
Sheppard: It — it stems from a lot of things.
The Court: Okay. Tell me what they are.
Sheppard: Weather’by — I’ve always heard ofWeatherby as a last name and never a first name, so I thought Weatherby would be — and I’m sure you could spell it b-e-e or b-e-a or b-y. Anyway, Weatherby.
The Court: Where did you get the “Dot Com”?
Sheppard: Well, when I worked at NBC, I worked on a Teleprompter computer.
The Court: All right.
Sheppard: All right, and so that’s where the Dot Com [came from]. I just thought it was kind of cute, Dot Com, and then instead of— I really didn’t have a whole lot of names because I had nothing to work with. I don’t know family names. I don’t know any names of the Speir family, and I really had nothing to work with, and I thought “Chanel”? No, that’s stupid, and I thought “Shanel,” I’ve heard of a black little girl named Shanel.
The Court: Well, where did you get “Fourcast”?
Sheppard: Fourcast? Instead of F-o-r-e, like your future forecast or your weather forecast, F-o-u, as in my fourth son, my fourth child, Fourcast. It was —■
The Court: So his name is Fourcast, F-o-u-r-c-a-s-t?
Sheppard: Yes.
The Court: All right. Now, do you have some objection to him being renamed Samuel Charles?
Sheppard: Yes.
The Court: Why? You think it’s better for his name to be Weather’by Dot Com Chanel —
Sheppard: Well, the —
The Court: Just a minute for the record.
Sheppard: Sorry.
The Court: Chanel Fourcast, spelled F-o-u-r-c-a-s-t? And in response to that question, I want you to think about what he’s going to be — what his life is going to be like when he enters the first grade and has to fill out all [the] paperwork where you fill out — this little kid fills out his last name and his first name and his middle name, okay? So I just want — if your answer to that is yes, you think his name is better today than it would be with Samuel Charles, as his father would like to name him and why. Go ahead.
Sheppard: Yes, I think it’s better this way.
The Court: The way he is now?
Sheppard: Yes. He doesn’t have to use “Dot Com.” I mean, as a grown man, he can use whatever he wants.
The Court: As a grown man, what is his middle name? Dot Com Chanel Fourcast?
Sheppard: He can use Chanel, he can use the letter “C.”
The Court: And when he gives his Birth Certificate — is it on his birth Certificate as you’ve stated to the Court? Does his Birth — does this child’s Birth Certificate read “Weather’by Dot com” —
Sheppard: That’s how I filled out the paperwork for his —
The Court: — Chanel Fourcast?
Sheppard: Yes, and for his Social Security card, I filled it out as Weather’by F. Sheppard.
The Court: All right.
Following the custody hearing, the trial court entered an order on November 21, 2002, finding that it was in the child’s best interest to award Speir custody. The trial court also found that it would be in the child’s best interest for the child’s name to be changed to Samuel Charles Speir. After Sheppard filed a motion for new trial and a motion to vacate judgment, the trial court entered a subsequent order on March 31, 2003, stating that a material change of circumstances had occurred since the time of the child’s birth and that it was in the best interest of the child that custody be awarded to Speir. The trial court further stated that evidence supporting its conclusions were detailed in its March 4, 2003 bench order that was being incorporated by reference. From those orders come this appeal.
In her first argument on appeal, Sheppard alleges that the trial court erred when it awarded Speir custody of their child, because Speir failed to prove a material change in circumstances. In reviewing child-custody cases, we consider the evidence de novo, but will not reverse the trial court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Middleton v. Middleton, 83 Ark. App. 7, 113 S.W.3d 625 (2003). A finding is clearly against the preponderance of the evidence when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. We also give special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child-custody cases. Durham v. Durham, 82 Ark. App. 562, 120 S.W.3d 129 (2003). We know of no cases in which the superior position, ability; and opportunity of the trial court to observe the parties carry as great a weight as those involving children. Dunham v. Doyle, 84 Ark. App. 36, 129 S.W.3d 304 (2003). In custody cases, the primary consideration is the welfare and best interest of the child involved, while other considerations are merely secondary. Durham v. Durham, supra.
Arkansas Code Annotated section 9-10-113(a) (Supp. 2003) provides that an illegitimate child shall be in the custody of its mother unless a court of competent jurisdiction enters an order placing the child in the custody of another party. Freshour v. West, 334 Ark. 100, 971 S.W.2d 263 (1998). Section 9-10-113(b) provides that a biological father may petition the court for custody if he has established paternity in a court of competent jurisdiction. See id. Custody may be awarded to a biological father upon a showing that: (1) he is a fit parent to raise the child; (2) he has assumed his responsibilities toward the child by providing care, supervision, protection, and financial support for the child; and (3) it is in the best interest of the child to award custody to the biological father. Ark. Code Ann. § 9-10-113(c) (Supp. 2003).
In Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993), our supreme court held that in addition to the three factors enumerated in section 9-10-113(c), the father of an illegitimate child must show a material change of circumstances. The court found that “[ijmplicit in the order of paternity establishing visitation was a determination that custody should continue to rest in the mother.” Id. at 259, 866 S.W.2d at 401.
The present case is distinguishable from Norwood v. Robinson, supra. The paternity order in Norwood granted the appellant reasonable visitation and set the amount of child support. Two years following the entry of the paternity order, the appellant in Norwood sought to change custody. In the case at bar, Speir filed his petition for custody prior to the entry of the August 9 paternity order. Speir’s petition for custody and the paternity complaint were subsequently consolidated. The resulting paternity order only set temporary visitation and went on to state that the issue of custody would be determined on October 31, 2002. Therefore, because the issue of custody was not resolved in the paternity order, Speir was not required to show a material change in circumstances.
In its March 4 bench order the trial court stated:
There’s no question that a paternity Order was established and that the biological father of the child was found to be Randy Speir [sic]. The Statute goes on to say, ‘The court may award custody to the biological father upon a showing that, (1) he is a fit parent to raise the child.’ Mr. Speir is found by the court to retain the same employment in excess of three years, and maintain continuous employment for at least five years.
He has resided in Northwest Arkansas for the past three and a half years.
That he’s married to a Martha Speir, and that he resided with his wife and had been married for approximately a year an a half, and that Mr. Speir had one daughter, and that he his wife, Martha, had a very amicable working relationship with the mother of Mr. Speir’s daughter, and that he supported that child and enjoyed visitations with that child. This court finds that there was nothing in the evidence anywhere to support any sort of finding other than that Mr. Speir was a fit parent to raise the child. Now, Number (2), in the Statute states, ‘That he has assumed his responsibilities toward the child by providing care, supervision, protection and financial support for the child.’Well, the record shows that he began paying— as soon as paternity was established, he began paying child support. In fact, the evidence before this court suggest that he had paid in excess of $400 more than he owed in child support, and that during the course of visitation, he cared for the child.
The record will reflect an extended visitation in order to get to know the child, and that during the course of that visitation, there were some allegations made by Ms. Sheppard that were unfounded regarding his ability to care for the child and supervise and protect the child.
Certainly, he has provided financial support for the child, and I believe that the record will show that at one point the child had some problems with asthma and needed to have some albuterol medication. There was a time during the visitation this court finds that Mrs. Sheppard refused to give Mr. Speir the child’s medication for his asthma. Mr. Speir then, on his own, secured the medication for the child, and I think that he assumed his responsibilities when this child was a very, very, tender age and that the requirements in subsection (c) (2) have been met. Now, Number (3) states,‘It is in the best interests to award custody to the biological father.’ The court found that it was in the best interests of the child to award custody to the biological fatherf.] ...
The court then went on to discuss its concerns about Sheppard. The court found that, due to Sheppard’s inability to maintain employment, she had no means of taking care of the child. The court stated that Sheppard’s interference in Speir’s visitation suggested that Sheppard would not aid in the facilitation of a meaningful relationship between Speir and the child. The court further found that the grandmother’s home was not a safe place to raise a child. The court also expressed concern that the mental-health issues of Sheppard’s two older sons posed a danger to the other children.
Based upon its detailed bench order, it is clear that the trial court gave careful consideration to what was in the child’s best interest. Therefore, we cannot say that the trial court’s decision to award custody to Speir was clearly erroneous.
Sheppard also argues that the trial court’s decision to change the child’s hirth name was not in the child’s best interest. Although there is no Arkansas case law that addresses the changing of a child’s entire name, we are guided by our case law as it pertains to the changing of a child’s surname. The best interest of the child is the dispositive consideration in determining whether a child’s surname should be changed. Carter v. Reddell, 75 Ark. App. 8, 52 S.W.3d 506 (2001). Pursuant to Huffman v. Fisher, 337 Ark. 58, 987 S.W.2d 269 (1999) (Huffman I), in determining the child’s best interest, the trial court should consider the following factors: (1) the child’s preference; (2) the effect of the change of the child’s surname on the preservation and development of the child’s relationship with each parent; (3) the length of time the child has borne a given name; (4) the degree of community respect associated with the present and proposed surnames; (5) the difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed surname; (6) the existence of any parental misconduct or neglect. Id. at 68, 987 S.W.2d at 274. Where a full inquiry is made by the trial court regarding the implication of these factors and a determination is made with due regard to the best interest of the child, the trial court’s decision will be upheld where it is not clearly erroneous. Carter v. Reddell, supra. A finding is clearly erroneous when, although there is evidence to support it, upon reviewing the entire evidence, the court is left with a definite and firm conviction that a mistake has been committed. Id.
Sheppard argues that the decision to change the child’s name was not in the child’s best interest because the trial court “focused almost exclusively” on the factor of potential embarrassment to the child. The trial court can only weigh the factors for which the parties provided evidence or that were relevant under the circumstances. Matthews v. Smith, 80 Ark. App. 396, 97 S.W.3d 418 (2003).
The March 4 bench order indicates that the trial court gave due consideration to each of the six enumerated factors. In the order, the trial court stated the following:
Now, the court should consider six factors in changing the name of the children, and the first factor is the child’s preference. Well, at the time this court entered its order, the child has [sic] just one year old last month, and in October wasn’t even a year old, and so I don’t think that number one is applicable to this child. Number two is the effect of the change of the child’s name on the preservation and development of the child’s relationship with each parent.
Well, Ms. Sheppard, also known as Braun, stated to the court that she changed K.D.’s surname ... and so we have one child that has a different name in the household.
She also stated that[J although she had this second child by a man named Hartsfeld, she was at that time married to a man named Braun, and I believe her testimony was that she stayed one night with him and the next day he went back to Florida, but nonetheless, she went by the name of Braun and so she named B.B.,_So now out of four children, there are two with different surnames. She also stated that[,] after she divorced Mr. Braun, she married another gendeman, and that gentleman’s name was Robert Lee Skaggs, but that Robert Lee Skaggs was really Merle Eric Hudson III, and she stated, when asked if she was still married, she said, ‘I physically didn’t take Robert Lee Skaggs into matrimony. I physically wasn’t holding his hand, and he didn’t put a ring on my finger. Merle Eric Hudson III did.’ When asked further, she stated that she didn’t know if she was still married or not. I can’t tell you what Ms. Sheppard’s last name is, but I can tell you that the father of the child, Mr. Randy Speir [sic], has always been known as Mr. Randy Speir [sic].
The stepmother of the child’s surname is Speir, and the name of the half sister on this [sic] child’s father’s paternal side is Speir, and so in light of the numerous names of the children in the household, as well as Ms. Sheppard’s confusion, I think to preserve the child’s name as Speir for the development of the relationship of this child with both parents, is in his best interests.
The third factor is the length of time the child has borne a given name, and of course, in this child’s life, it’s been very, very short and minimal. Number four is the degree of community respect associated with the present and proposed surnames. WeE, Ms. Sheppard has testified that she has lived with her mother, Ms. Betty MiHer, in Washington County for at least the last twelve years, and in that twelve .year period of time, she’s had four children by four different fathers, aE Elegitimate, and she’s been married to at least two people, and perhaps three.
The level of community respect associated with the proposed surname of Mr. Speir, I think the evidence is clear that there’s nothing to indicate to the court that there’s any sort of disrespect or problems associated with his surname, and Ms. Sheppard, by her own volition, in this community has been arrested so many times that I think it’s in the best interests of the child to change his name to Speir.
Of course, the difficulties, harassment, and embarrassment of the child makes sense from bearing the present proposed name (Weather’by Dot com Chanel Fourcast Sheppard). I asked Ms. Sheppard about his name, and she stated to the court, ‘He doesn’t have to go to [sic] use dot com. I mean as a grown man, he can use whatever he wants. He can use Chanel,’ which she stated was after the perfume, or he could use the letter C. She stated that she filled out his social security card as Weather’by F. Sheppard, so I think by her own admission by stating that she perceives problems with the child regarding his embarrassment — and this also goes to the existence of her parental misconduct regarding giving him that name —■ I think she anticipated that the child might suffer from embarrassment, and that’s why she suggested to the court that she had already used the name F. Sheppard on his social security card and that he doesn’t have to use dot com when he’s in the first grade trying to fill out his papers as to what his name is.
Based on these facts, we hold that the trial court did not err in determining that it was in the child’s best interest to change his name.
Affirmed.
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Larry D. Vaught, Judge.
Appellant Norbert Delacey and appellee Martha Delacey were divorced on March 4, 2003. The trial court divided the parties’ property and awarded appellee custody of the couple’s two children, child support, alimony, and attorney fees. Appellant argues on appeal that the trial court erred in calculating his income for child-support purposes; in fading to consider his work schedule in setting visitation; in awarding alimony to appellee; in dividing, as marital property, his ownership interest in two businesses; in fading to divide appedee’s retirement account as marital property; and in awarding appedee $7,000 in attorney fees.
Calculation of Income for Child Support
Appellant is employed as an obstetrician/gynecologist at the Northeast Arkansas Clinic in Jonesboro. He is paid pursuant to the Clinic’s income distribution plan, as modified for the Women’s Clinic in which he works. The plan pays appellant a percentage of the professional revenues generated by the doctors at the Women’s Clinic, less a percentage of the Clime’s expenses and overhead, to arrive at a Total Net Income figure. The Clinic then deducts certain expenses attributable directly to appellant, such as insurance; dues, membership, and licenses; meeting, travel, and entertainment; payroll taxes; and profit-sharing contributions. This results in a figure called Net Physician Pay, for which appellant receives a paycheck from the Clinic. This figure is appellant’s gross income for tax purposes.
Trial exhibits showed that the Clinic paid appellant $244,291.93 in 2002 and $246,424 in 2001. However, the trial court did not use these figures to calculate appedant’s income for child-support purposes. Instead, the court relied on a calculation made by appellee’s expert, CPA David Worlow. Worlow’s calculation was derived by taking appellant’s Net Physician Pay for the month of November 2002, which was $21,667.02; deducting federal, state, and medicare taxes from that figure; adding back certain expenses directly attributable to appellant, other than insurance and payroll tax; and arriving at a figure of $16,995.68. The trial court adopted this figure as appellant’s monthly income and awarded appellee twenty-one percent of that amount — $3,569.09 — as child support. Appellant now argues that the calculation was erroneous.
Child-support cases are reviewed de novo on the record. Paschal v. Paschal, 82 Ark. App. 455, 117 S.W.3d 650 (2003). It is the ultimate task of the trial judge to determine the expendable income of a child-support payor. Cole v. Cole, 82 Ark. App. 47, 110 S.W.3d 310 (2003). This income may differ from income for tax purposes. See Brown v. Brown, 76 Ark. App. 494, 68 S.W.3d 316 (2002). As a rule, when the amount of child support is at issue, the appellate court will not reverse the trial judge absent an abuse of discretion. McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001); Paschal v. Paschal, supra.
When awarding child support, the trial judge is required to refer to the child-support chart, and the amount specified in the chart is presumed to be reasonable. Paschal v. Paschal, supra. The version of the child-support chart applicable when this case was tried is found at In Re: Administrative Order No. 10: Arkansas Child Support Guidelines, 347 Ark. Appx. 1064 (2003), which became effective on February 11, 2002. Section II of the order defines income as:
any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers’ compensation, disability, payments pursuant to a pension or retirement program, and interest less proper deductions for:
1. Federal and state income tax;
2. Withholding for Social Security (FICA), Medicare, and railroad retirement;
3. Medical insurance paid for dependent children; and
4. Presently paid support for other dependents by court order.
The definition of income included in the Administrative Order is intentionally broad and designed to encompass the widest range of sources for the support of minor children. McWhorter v. McWhorter, supra; Paschal v. Paschal, supra.
Appellant argues that the trial court erred in calculating his monthly income by using his November 2002. earnings as a representative figure, and he points out that November was his second-highest producing month of 2002. He contends that his income is based on production, which varies from month to month and therefore the court should have used a monthly average of his 2002 or 2001 yearly income rather than relying on one particular month. Had the court done so, he says, the court would have arrived at an average monthly income of either $13,009.45 for 2002, which is the $244,291.93 that the Clinic paid him that year, less state and federal withholdings and divided by twelve, or $14,241 for 2001, which is the $246,424 that he received in taxable income, less state and federal income taxes and divided by twelve.
We agree with appellant that the trial court erred in calculating his income by reference to November 2002 only. Appellant’s income fluctuates considerably from month to month over the course of a year. For example, his Total Net Income in 2001 ranged between $19,389 per month and $30,418 per month. In 2002, it ranged between $20,970 and $26,454. Thus, the income generated by appellant in one particular month does not give an accurate picture of his income generally for child-support purposes.
As for what method would give an accurate picture of appellant’s income, our research has revealed no Arkansas case, and the parties have cited none, in which our courts have either approved or disapproved a method for calculating income in the case of a payor whose income fluctuates from month to month. Administrative Order No. 10 does not address this situation, although it does require use of a two-year averaging method in the case of self-employed payors. The case of Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000), cited by appellant, is not on point because it involves the question of whether a bonus may be considered as income for child-support purposes; it does not involve a fluctuating pay schedule. But, despite the lack of precedent on this matter, we conclude that appellant’s income for child-support purposes should have been calculated by averaging his monthly earnings. Cases from other jurisdictions have approved this method when faced with a payor whose income fluctuates. See, e.g., Yerrington v. Yerrington, 933 P.2d 555 (Alaska 1997); In re: Marriage of Nelson, 297 Ill. App. 3d 651, 698 N.E.2d 1084 (1998); Lloyd v. Lloyd, 755 N.E.2d 1165 (Ind. Ct. App. 2001); In re: Marriage of Crotty, 584 N.W.2d 714 (Iowa 1998). Further, common sense dictates that an average of appellant’s monthly income over a year or two years will present a truer picture of his income than a calculation derived solely by reference to one of his highest earning months.
Notwithstanding our agreement with appellant on the use of the averaging method, we decline to adopt the income figures he presents to us on appeal, which are taken from his yearly physician’s pay figures, as reflected on his 2002 pay statement from the Clinic and his 2001 tax return. Those figures reflect appellant’s income after deductions have been made for such things as insurance; dues, membership, and licenses; meeting, travel, and entertainment; payroll taxes; and profit-sharing contributions. Rather than attempt to determine the exact amount and legitimacy of these deductions on appeal, we have decided to remand this issue for the trial court to do so, in the course of recalculating appellant’s child-support income. In making a new calculation, the trial court may permit the introduction of such additional evidence as is necessary and may consider all income to appellant, whatever its form, as mandated by Administrative Order No. 10, Section II. We note for purposes of clarity that our ruling on this issue pertains only to calculation of income for child-support purposes; calculation of appellant’s income for alimony or other purposes is not affected.
Visitation Schedule
Appellant argues that the trial court did not take his work schedule into account in setting visitation. At trial, appellant testified that he works two weekends out of every five and that he and appellee had made arrangements to accommodate his work schedule by occasionally splitting a weekend. He further said that he had no problem using an every-other-weekend schedule and that he and appellee had been successful for the most part in working out the visitation.
Following the trial, the court awarded custody of the couple’s two children to appellee and awarded appellant standard visitation. The court also ruled that:
[Appellant] should be given all other reasonable visitation in addition to the visitation specified on the chart and both parties are ordered to make every effort to accommodate [appellant’s] work schedule particularly on the weeks when he has visitation but is also on call.
Appellee now argues that the trial court failed to consider his work schedule in awarding visitation.
The setting of visitation is within the sound discretion of the trial judge. Davis v. Davis, 248 Ark. 195, 451 S.W.2d 214 (1970). Appellant agreed in his testimony that he did not have a problem with an every-other-weekend schedule. Further, the judge, in her decree, ordered the parties to make every effort to accommodate appellant’s work schedule. Appellant has therefore received the relief he requested at trial and has no basis on which to appeal this issue. See generally Brown v. State, 315 Ark. 466, 869 S.W.2d 9 (1994). Consequently, we hold that there has been no abuse of discretion on this matter.
Award of Alimony
The trial court awarded appellee $1,000 per month alimony for a period of four years. That amount was to be reduced by half upon the sale of the marital home, in which appellee was living. The award was based on the court’s determination that appellee had an earning potential of $31,000 per year as a medical technologist, on the parties’ disparity in earning potential, and on “the need to insure that [appellee] can make the mortgage payments and upkeep until the house sells.” Appellant argues that the award of alimony was erroneous because the trial court miscalculated ap-pellee’s earning potential, miscalculated his income, and failed to consider that appellee received the “vast majority” of the couple’s property in the property division.
The decision whether to award alimony is a matter that lies within the trial judge’s sound discretion, and on appeal, this court will not reverse a trial judge’s decision to award alimony absent an abuse of that discretion. Cole v. Cole, supra. The purpose of alimony is to rectify economic imbalance in the earning power and the standard of living of the parties to a divorce in light of the particular facts of each case. Id. The primary factors that a court should consider in determining whether to award alimony are the financial need of one spouse and the other spouse’s ability to pay. Id. The court may also consider: (1) the financial circumstances of both parties; (2) the couple’s past standard of living; (3) the value of jointly owned property; (4) the amount and nature of the parties’ income, both current and anticipated; (5) the extent and nature of the resources and assets of each of the parties; (6) the amount of income of each that is spendable; (7) the earning ability and capacity of each party; (8) the property awarded or given to one of the parties, either by the court or the other party; (9) the disposition made of the homestead or jointly owned property; (10) the condition of health and medical needs of both husband and wife; (11) the duration of the marriage; (12) the amount of child support. Id.
The evidence at trial showed that, before September 2002, appellee had not worked outside the home since the parties moved to Jonesboro in 1998. She worked in the home as a mother and homemaker. However, she possessed a BS degree in medical technology. Since December 2002, she had been working at a hospital part time for $20.23 per hour. Appellant argues that the trial court erred in finding that appellee’s earning potential was only $31,000 per year because, if appellee’s current $20.23 rate of pay were applied to full-time hours, she would earn $42,078.40 per year. We disagree that error occurred on this point. Appellee specifically testified that she preferred to work part-time so that she could raise her children. Further, even if appellee were capable of earning the amount that appellant suggests, appellant’s earning potential is still far greater than hers.
Appellee also claims that, because the trial court miscalculated his income, as he argued earlier regarding child support, the award of alimony is based on an erroneous finding. While we have agreed that the trial court erred in calculating appellant’s income for child-support purposes, that error does not affect the alimony award. Even if appellant’s income were calculated at the lowest amount he suggests — $13,009.45 per month — this net amount after taxes is still many times greater than the gross income appellee might earn.
Finally, appellant argues that the trial court failed to consider the fact that appellee received considerable assets in the property division and was left with no debt other than for the home mortgage. It is true that, for reasons explained by the court, the property division was unequal in appellee’s favor. However, we do not view the property division as awarding appellee the vast majority of the couple’s property. She received approximately $7,300 more in personal items, as evidenced by exhibits reflecting the personal property division that was proposed by appellant. She also received the entire balance of her retirement account of approximately $51,000; however, only $8,477 of the account was marital. As for marital debt, appellant was ordered to pay all marital debt other than the mortgage, but appellee was responsible for the $200,000 mortgage on the home.
Our review leads us to conclude that, in setting the amount of alimony, the trial court carefully took the relevant factors into account and made an appropriate award. We observe that, in addition to considering the disparity in the parties’ income, the court noted that appellant used income during the marriage to pay for gifts and trips for his girlfriend and her children. In addition, the decree provides that appellant will be allowed to claim both children as dependents for tax purposes. In light of these circumstances, we hold that the trial court did not abuse its discretion in awarding this modest amount of alimony for a limited period, particularly in light of the fact that it will be reduced by half if the house is sold.
Property Division
Appellant takes issue with two items that the trial court distributed in its property division. The first is appellee’s TIAA-CREF retirement account. The trial court awarded appellee the entire value of the account even though $8,477 of the account’s value was earned during the marriage. The second item at issue is appellant’s share of two businesses: Northeast Arkansas Management Company, LLC, and Northeast Arkansas Clinic Properties. Appellee was awarded fifty-percent of appellant’s interest in each entity.
Arkansas Code Annotated section 9-12-315(a)(l) (Repl. 2002) provides that all marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable; in that event, the court shall make some other division that the court deems equitable, taking into consideration the following factors: (1) length of the marriage; (2) age, health, and station in life of the parties; (3) occupation of the parties; (4) amount and sources of income; (5) vocational skills; (6) employ-ability; (7) estate, liabilities, and needs of each party and opportu nity of each for further acquisition of capital assets and income; (8) contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; (9) the federal income tax consequences of the court’s division of property. The statute further states that, when property is divided pursuant to these considerations, the court must state in the order its reasons for not dividing the marital property equally. Williams v. Williams, 82 Ark. App. 294, 108 S.W.3d 629 (2003). Arkansas Code Annotated section 9-12-315, however, does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. Id. The statute vests the trial court with a measure of flexibility and broad powers in apportioning property, nonmarital as well as marital, in order to achieve an equitable distribution; the critical inquiry is how the total assets are divided. Copeland v. Copeland, 84 Ark. App. 303, 139 S.W.3d 145 (2003); Williams v. Williams, supra. This court will not substitute its judgment on appeal as to the exact interest each party should have but will only decide whether the order is clearly wrong. Williams v. Williams, supra.
As for appellee’s TIAA-CREF retirement account, we find no error in the trial court’s award of the entire account to appellee. The trial court set forth its reasons for making an unequal division of property to appellee. Those reasons include appellant’s superior earning ability and appellee’s services as a homemaker, both of which are listed as factors to be considered under the statute. In light of the trial court’s consideration of these factors, we find no error on this point.
We likewise find no error in the division of appellant’s business interests. The evidence at trial revealed that Northeast Arkansas Management Company had an equity value of $900,019 and that Northeast Arkansas Clinic Properties had an equity value of $399,704. Appellant owned an approximate 2.5% interest in the management company, which made the value of his interest $22,500.47, and a 2.3% interest in the properties company, which made the value of his interest $9,193.19. The trial court awarded appellee one-half of each of these amounts, for a total of $15,846.98.
Appellant argues that the trial court erred in dividing his interest in these companies because his interest was not “vested.” Both appellant and the Clinic’s chief financial officer, Scott Davis, testified that, if appellant were to terminate his relationship with these companies, the companies would not pay him the value of his interest unless he had been with the companies for five years. At the time of trial, appellant had not been with the companies for five years; therefore, he argues, his interest in the companies was not vested.
That concept of a vested property interest arises most often in the marital property context in cases involving pension funds. In Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), the supreme court held that pension-plan benefits were marital property to the extent that a spouse had a vested interest in those benefits. The court reasoned that benefits should be considered “vested,” or more than a mere expectancy, once they cannot be unilaterally terminated by the employer without also terminating the employment relationship. See McDermott v. McDermott, 336 Ark. 557, 986 S.W.2d 843 (1999). However, the supreme court has held that non-vested pension plans are not marital property. See Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993); Durham v. Durham, 289 Ark. 3, 708 S.W.2d 618 (1986). Appellant argues that, as in Burns and Durham, his non-vested interest should not be divided as marital property.
We believe that appellant misapplies the concept of vesting in this case. A non-vested pension plan has no current value to any person. By contrast, appellant’s ownership of the businesses is a valuable, marketable asset; he owns a current, quantifiable interest in the companies. While he cannot cash out his interest upon termination until he has been with the company for five years, were the company to be sold even before the expiration of the five-year period, he would receive his share of the sale proceeds. The companies’ chief financial officer, Scott Davis, testified on this point as follows:
Question: Now, if... those companies were sold tomorrow in whole ... if another Ficor [a company that buys medical practices] came in, and said we want to buy this clinic, then in determining who got what, you would go back through and you would look at those percentages, wouldn’t you?
Answer: That is correct.
Question: All right. And ... Dr. Delacey’s percentage would be the 2.3 or 2.5 percent of whatever was left over.
Answer: That is correct.
Question: And whether it sold for the fair market value or double the fair market value, he’d get his percentage of that.
Answer: That’s correct.
Question: So, the only thing, when you talk about vesting, the only thing you’re talking about is, he can’t cash out at this time.
Answer: That is correct.
Based on the above testimony and the nature of appellant’s interest in the companies, we agree with the trial court’s decision to divide appellant’s share in the companies.
Appellant cites Hackett v. Hackett, 278 Ark. 82, 643 S.W.2d 560 (1982), for its holding that Mrs. Hackett was not entitled to part of her spouse’s capital account because “there was no evidence ... that Mr. Hackett had a vested interest in the capital account... that was fully distributive upon the date of the Hackett’s divorce.” Id. at 84, 643 S.W.2d at 562. However, Hackett was decided before Day v. Day, supra, in which the supreme court held that pensions payable in the future are considered marital property. Appellant also cites Lawyer v. Lawyer, 288 Ark. 128, 702 S.W.2d 790 (1986), for its holding that a spouse’s possibility of receiving severance pay upon termination was not vested marital property. The court in that case reasoned that there was no indication that the husband was likely to terminate his association with his employer and that it would be practically impossible to value the mere possibility that he would receive severance benefits before retirement. By contrast, in the case at bar, appellant’s interest in the businesses is not contingent on an unlikely event. He has a current interest in the businesses, and, unlike the termination rights in Lawyer, his interest is capable of being valued.
In light of the foregoing, we affirm the trial court’s decision on this point.
Attorney Fee Award
Appellee’s attorney fee bill was over $14,000. The trial judge ordered appellant to pay $7,000 of those fees. Appellant argues that the award was in error.
A trial judge in a divorce case has considerable discretion to award attorney’s fees Jablonski v. Jablonski, 71 Ark. App. 33, 25 S.W.3d 433 (2000). In determining whether to award attorney’s fees, the court must consider the relative financial abilities of the parties. Id. Considering the circumstances of this case, including the extreme disparity in the parties’ income-earning capabilities and the fact that the division of property, while unequal in appellee’s favor, was not greatly so, we find no abuse of discretion in the fee award.
Reversed and remanded in part; affirmed in part.
Neal and Roaf, JJ., agree.
The Order also addresses calculation of income for commission workers, but the method is not helpful here. The Order merely states that, for commission workers, support shall be calculated based on minimum draw plus additional commissions.
There was evidence below, for example, that appellant claimed zero dependents on his W-4, and in the past several years had received tax refunds in excess of $50,000.
The five-year period expires with one company in December 2004 and the other in July 2006. | [
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Sam Bird, Judge.
Arkansas Oklahoma Gas Corporation (AOG) filed suit on October 25, 1996, in the Crawford County Circuit Court seeking a declaration of its rights under its franchise agreement with the City of Van Burén. AOG’s amended complaint alleges that AOG pays the city a franchise fee of $49,500 per year; that the city has failed to protect the public’s use of the public rights-of-way by allowing private commercial entities to use public rights-of-way for private purposes without the payment of a franchise fee; and that the city could not, consistent with the state and federal constitutional due-process and equal-protection provisions, allow some private uses of the public rights-of-way without charge while charging other entities, such as AOG, a franchise fee to use the same public rights-of-way. The city answered, denying the material allegations of the complaint. The city also filed a counterclaim seeking a declaration that it could allow private entities to use the public rights-of-way as long as such uses were not inconsistent with the public’s use. AOG denied that the city was entitled to the relief sought in its counterclaim.
After a bench trial, the court found in favor of the City of Van Burén that a private entity can contract with the city to use public easements and rights-of-way if that use is consistent with the public’s use of the easements and rights-of-way. AOG raises two points on appeal: (1) that the trial court erred in not finding that the city violated its duty to protect the public interest by allowing private entities to use the public rights-of-way; and (2) that the city’s allowance of private uses of the public rights-of-way without charge violated AOG’s state and federal constitutional rights to due process and equal protection. We find no merit to the first of these points, and we do not reach the second point because it is not preserved for appeal. Therefore, we affirm.
Harry Short, the director of the Van Burén Municipal Utilities Commission, testified that there are several instances where private utility lines are located within the city’s public rights-of-way. He stated that previously it was a common practice to allow private sewer lines that did not meet the city’s sewer construction standards to be tied into the public sewer, but that this practice had changed in the last ten to fifteen years. Using a map, Short identified the location of four such private sewer easements, but stated that there were also other such private sewer lines whose locations were not catalogued. Short stated that the city was trying to discontinue the practice of permitting private sewer easements by requiring individuals, at their own expense, to extend their sewer lines using construction methods approved by the city, and to dedicate their lines to the public. He also stated that he did not know the depth of the private sewer lines whose location he identified on the map.
Additionally, Short explained that Allen Canning Company (Allen Canning) had obtained a discharge permit and constructed a private sewer line from its facility in Van Burén, utilizing both public rights-of-way and easements that the utilities commission had previously obtained, to a point where it was permitted to discharge its waste. Short stated that Allen Canning’s line crosses two city streets and utilizes a portion of Fourth Street, also known as Highway 59. He stated that the company obtained permission from the commission to use commission easements but was uncertain as to whether the company obtained permission from the city council to utilize the street rights-of-way.
Short stated that he was also familiar with the location of a gas pipeline constructed by Southwestern Glass Company (Southwestern) that crossed South 28th Street. He stated that Southwestern had placed a casing and a line between two city utility lines and that the matter had been brought to the attention of the city council. He said that the city council ultimately adopted an ordinance authorizing the location of Southwestern’s line under South 28th Street, but he did not know the depth and placement of the line.
Short also stated that, during the summer of 1996, there was some discussion that the city was going to develop a policy that would deal with private-line locations within public rights-of-way, but that he was not aware of whether any policy was ever officially adopted.
Gerald Atkins, a licensed civil engineer, testified on behalf of AOG that he was involved in Allen Canning’s installation of a private wastewater line from the company’s plant in Van Burén to land that the company had purchased for irrigation and disposal of wastewater. He stated that the line ran along the Highway 59 right-of-way, crossed Scott Street, crossed the right-of-way of Third Street, and crossed private property to the location that the company had purchased. Atkins explained the purpose of the Arkansas One Call Program and stated that, at one time, Allen Canning was a member of the program, but he did not know the current status of its membership. He stated that, if Third Street was being reconstructed and the engineer did not know about Allen Canning’s private pipeline, and if Allen was not a member of Arkansas One-Call, there could be a potential conflict.
Van Burén Mayor John Riggs recounted being approached by Southwestern and Waelder Oil & Gas concerning the construction of Southwestern’s private line in a city right-of-way on South 28th Street. He stated that Southwestern informed him that it could save a lot of money by going through a private gas well, that it was displeased with AOG, and that it believed that it was paying too much for natural gas. He said that Southwestern and Waelder had negotiated a contract and purchased private rights-of-way, and that the only public right-of-way that they needed was under South 28th Street. Riggs further stated that, without first consulting anyone else in city government, he gave Southwestern permission to bore under South 28th Street. He recounted a discussion with Michael Carter, president of AOG, during which Carter revealed that he thought that the mayor had made the wrong decision, while Riggs pointed out the savings that Southwestern would enjoy by direct purchase.
Riggs stated that Carter informed him that industrial rates kept the residential rates down. Riggs also stated that the matter was first discussed with the city council after Southwestern installed the private line and AOG brought up the controversy over its being located too close to city utility lines. Riggs testified that the discussion at the city council meeting was that, as long as Southwestern was in compliance with safety regulations, the location of the line would be acceptable. He stated that the council supported his decision about crossing South 28th Street but never actually passed a resolution authorizing Southwestern to use the public right-of-way.
Riggs testified that the planning commission had not developed any rules for the city concerning private utility lines within public rights-of-way. He gave the following reasons for permitting Southwestern to install its private pipeline: it would save money for Southwestern, AOG did not have an exclusive franchise, Waelder had verified that it was not becoming a public utility by running gas to a single purchaser, and the installation would comply with all safety regulations. He also indicated that Southwestern had discussed the possibility of expanding its Van Burén plant by bringing work from its Fort Smith plant. He also stated that while he understood that the city council was charged with the responsibility of dealing with the city rights-of-way, he believed that this was a circumstance where, as mayor, he had the authority to make a decision independent of a formal vote from the city council. Riggs admitted that, although the city had not yet charged a franchise fee to Southwestern, it was planning to charge a fee of $10 per month. He stated that AOG received the benefits of using the public right-of-way from their franchise agreement. He also testified that, if a private company were in compliance with all safety regulations, he would not consider the effect of the private installation on the franchise utilities. Riggs stated that he believed that entities using the public rights-of-way should be required to pay for that use.
Patrick Mickle, a civil engineer, testified that he was familiar with the right-of-way known as South 28th Circle, a part of the Van Burén Industrial Park Subdivision. He also stated that, if the industrial park should be expanded, there would need to be additional rights-of-way that would extend above the private gas line. He stated that this could pose a problem because, in reconstructing or expanding a street, excavation would need to be at a depth of approximately three feet. He stated that it was likely that the private gas line would have to be relocated and a large drainage ditch installed at a depth of four to five feet below the surface.
Michael Carter, president of AOG, testified that AOG has operated under a nonexclusive franchise in Van Burén since at least 1979 and, at the end of 2001, AOG had 5,800 customers within the corporate limits of Van Burén. He also stated that AOG served a number of industrial customers, primarily in the industrial park area. The franchise imposes on AOG the obligation to serve all residential customers, even if a particular customer may not be economical to serve. He stated that AOG is regulated by the public service commission in the amount of revenue that it is entitled to receive for services and that revenue is allocated to different-sized customers. Carter testified that the franchise gives AOG the right to use public streets for the location of gas pipelines, an important feature, because in the city limits a pipeline cannot travel very far without running alongside or having to cross a street.
He stated that the revenue impact on AOG of not having Southwestern as a gas customer would have been approximately $170,000 to AOG. He stated that, if AOG lost Southwestern as a customer, it would have to make up a significant revenue loss from other AOG customers within the city. He stated that the public service commission sets AOG’s rates and any such loss would be allocated to other customers. He admitted that, because Southwestern has remained a customer of AOG, AOG has not suffered a loss of revenue as a result of the city’s allowing Southwestern’s private use of a public right-of-way. He stated that safety was the reason for the litigation. He also stated that AOG could not understand why it had to pay a franchise fee of $49,500 per year if a private entity could come in and place private lines in public rights-of-way and “pick ofF4 AOG’s best customers.
The trial court entered a decree on December 13, 2002. However, in response to AOG’s motion for findings of fact and motion for a new trial, an amended decree was entered on December 30, 2002. In its amended decree the court found that, because AOG had a nonexclusive franchise with the city, the city did not owe a duty to AOG beyond those contained in the franchise agreement. The trial court also found that the action of the city in allowing Southwestern to build a pipeline was within the realm of discretion of the city and not so unreasonable or dangerous as to warrant judicial intervention. Finally, the trial court found that a private entity can contract with the city to use the city’s easements and rights-of-way so long as the city does not change the dedicated “use” of the rights-of-way, and that AQG offered no proof that Southwestern’s placement of its pipeline under 28 th Street changed the use of the right-of-way. This appeal followed.
The standard of review of a circuit court’s findings of fact after a bench trial is whether those findings are clearly erroneous. Ark. R. Civ. P. 52; Burke v. Elmore, 341 Ark. 129, 14 S.W.3d 872 (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. McQuillan v. Mercedes-Benz Credit Corp., 331 Ark. 242, 961 S.W.2d 729 (1998). Disputed facts and determination of the credibility of witnesses are within the province of the judge, sitting as the trier of fact. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998).
AOG first argues that the city does not have the power to divert its rights-of-ways and easements to private use and that, by doing so, the city has failed to protect the public’s use of the rights-of-way. In making this argument AOG relies on cases such as Campbell v. Ford, 244 Ark. 1141, 428 S.W.2d 262 (1968), where the supreme court held that landowners abutting a platted but unopened street suffered special damages different from the general public where the street was blocked by other abutting landowners with the acquiescence of the city, and that plaintiffs were entitled to bring an action to compel the removal of the obstruc tions. AOG also cites other cases, such as Langford v. Griffin, 179 Ark. 574, 17 S.W.2d 296 (1929); City of Osceola v. Haynie, 147 Ark. 290, 227 S.W. 407 (1921); City of Helena v. Wooten, 98 Ark. 156, 135 S.W. 828 (1911), in support of this proposition.
The trial court distinguished Campbell v. Ford and the other cases and, instead, relied upon Padgett v. Arkansas Power & Light Co., 226 Ark. 409, 290 S.W.2d 426 (1956). The trial court’s basis for this distinction was that the uses in Campbell, Langford, and Osceola changed the essential nature of the public way. In Padgett, the court stated:
Streets within the limits of municipal corporations are subject to many uses by the public to which highways in the country are not subject. Moreover, as a village grows into a town and the town grows into a city, the rights of the public in its streets are correspondingly broadened. As a rule, country highways are needed only for purpose of passing and repassing, and, subject to some exceptions, the rights of the public and of the authorities in charge are confined to the use of the surface, with such rights incidental thereto as are essential to such use. Streets, however, may be used for many purposes other than travel, such as construction of sewers and drains, the laying of gas and water pipes, the erection of telegraph, telephone and electrical power lines, and a variety of other improvements, beneath, upon, and above the surface, to which in modern times they have been subjected.
Id. at 413, 290 S.W.2d at 429.
In its reply brief, AOG argues that Padget should be limited to public utilities, noting that Southwestern’s pipeline is not a public-utility pipeline. We believe that the Campbell line of cases and Padgett are consistent in that they both allow other private uses of public rights-of-way as long as the private use is not inconsistent with the public’s use. In Campbell, Langford, and Osceola, blocking the street was not consistent with the public’s use of the street and was properly enjoined.
The trial court found that AOG presented no evidence that the city has failed to protect the public or that AOG suffered any special damage apart from the general public. As noted in Footnote 1 above, the supreme court has already held that AOG failed to prove that Southwestern’s pipeline was inconsistent with the public’s use of the rights-of-way. The court recognized the broad discretion given to city officials in matters pertaining to the use of the streets and sidewalks of a city. See City of Marianna v. Gray, 220 Ark. 468, 248 S.W.2d 379 (1952). We do not find that the trial court’s decision was clearly erroneous. See also City of Little Rock v. Linn, 245 Ark. 260, 432 S.W.2d 455 (1968).
For its second point, AOG argues that, by permitting the use of public rights-of-way by private entities without charge while charging AOG a franchise fee for such usage, the city has violated AOG’s constitutional rights. AOG argues that its due-process rights were violated when the city permitted the private use of its public rights-of-way without affording AOG notice and an opportunity to be heard prior to allowing others to use the public rights-of-way. AOG also contends that the city’s action violated its right to equal protection because AOG pays an annual franchise fee of $49,500 to the city while Southwestern is supposed to pay a franchise fee of only $10 per month.
These constitutional arguments were not addressed by the trial court in its initial decree entered on December 30, 2002. Although AOG filed a motion on January 13, 2003, requesting the trial court to address certain issues that it had not addressed in its initial decree, AOG’s motion did not request that the court address these constitutional issues; and the court did not address those issues in its amended decree entered February 11, 2003, from which this appeal is taken. It is well settled that the failure to obtain a ruling from the trial court is a procedural bar to our consideration of the issue on appeal. Barker v. Clark, 343 Ark. 8, 33 S.W.3d 476 (2000). It is incumbent upon the appealing party to obtain a ruling on an issue to preserve it for review. Ross Explorations, Inc. v. Freedom Energy, Inc., 340 Ark. 74, 8 S.W.3d 511 (2000). Accordingly, we do not reach the merits of AOG’s second point.
Affirmed.
Griffen and Crabtree, JJ., agree.
This case is factually related to Southwestern Glass Co. v. Arkansas Oklahoma Gas Corp., 325 Ark. 378, 925 S.W.2d 164 (1996), in which AOG filed suit seeking to enjoin Southwestern Glass Company from laying a gas pipeline to its plant because there was insufficient space for its safe installation, operation, and maintenance due to the pipeline’s crossing under a public street and within close proximity of an already existing gas pipeline owned by AOG. The trial court issued an order on July 18,1995, granting the injunction. The case was appealed, and on July 15,1996, the supreme court reversed the trial court because AOG failed to show how Southwestern Glass’s proposed pipeline would be inconsistent with the city’s use of its right-of-way.
Arkansas One Call is a system designed to track underground utility lines in an effort to prevent damage to the lines. If construction excavation extends to a depth of thirty inches or more, the excavator is required to call the One Call Center so that the Center can notify the utilities in the area about the planned excavation, and the utilities are required to mark the location of their lines. See Ark. Code Ann. §§ 14-271-101 through 14-271-115 (Repl. 1998). | [
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Sam Bird, Judge.
This is a workers’ compensation case involving the statute of limitations. On January 24, 1995, appellee Tim Pack fell from a tree he was trimming while working for appellant Carroll Electric Corporation. His ankles and feet were severely injured, and his claim initially was accepted as compensable. A hearing was conducted before an administrative law judge on May 20, 2002, to determine appellee’s entitlement to additional temporary total disability benefits from February 13, 1997, to a date yet to be determined; entitlement to additional medical treatment; and the effect of the statute of limitations on these claims. Appellee contended that the healing period had never been found to have ended, and that appellants had paid permanent partial disability for a period of time but had paid nothing after October 14, 1999. He contended that he was entitled to a resumption of total temporary benefits until his healing period should end, and that he was entitled to a resumption of medical treatment. Appellants contended that all appropriate benefits had been paid, that appellee’s claim for additional benefits was barred by the statute of limitations under Ark. Code Ann. § 11-9-702, and that appellee’s healing period had ended on February 13, 1997, thereby ending his entitlement to temporary total disability benefits.
The administrative law judge found that appellee was not barred by limitations from receiving appropriate benefits. After making extensive findings about appellee’s medical treatment and the duration of his healing periods; the law judge awarded temporary total disability benefits for the time periods from January 25, 1994, through February 13, 1997; from April 23 through April 27, 1998; and from September 14, 2001, to a date yet to be determined. Appellants were ordered to pay for medical services related to the compensable injuries. The law judge stated that appellee’s claim, although falling within the time for filing a claim for additional benefits under Ark. Code Ann. § 11-9-702, was more correctly characterized as a request to enforce the Commission’s prior opinion and award of November 16, 1995. The Workers’ Compensation Commission affirmed and adopted the decision of the law judge. Appellants now appeal the Commission’s decision, contending that substantial evidence does not support the finding that appellee’s claim was not barred by the statute of limitations. We affirm the decision of the Commission.
Arkansas Code Annotated section 11-9-702 (Repl. 2002) reads as follows:
(b) 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 be 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.
The Commission found that “the evidence presented would establish that the present claim is not actually a claim for additional benefits, but would more correctly be characterized as simply a request to enforce the Commission’s prior Opinion and award of November 16,1995.”
The evidence before the Commission included medical records, appellee’s testimony, and appellants’ documents regarding payments made beginning in 1994. A letter from Dr. Tom Coker on February 13, 1997, states that appellee would very likely eventually need further surgery, including fusions of each ankle; Dr. Coker assessed permanent physical impairment of seventy percent to appellee’s right ankle and forty percent to the left ankle as of the date of the letter. Appellee testified that appellants reduced his bi-weekly benefit payments after Dr. Coker issued the impairment ratings. A printout showing payments by appellants to appellee ends with a December 9, 1999, payment for permanent-partial disability benefits from December 2 to December 8, 1999. Appellants also provided at the hearing a Workers’ Compensation Form AR.-4, showing payment of temporary total disability payments for 164 weeks and one day, as well as permanent partial disability benefits for 151.65 weeks.
Appellants argue that nothing in the order or in appellee’s contentions suggested that his claim was one to enforce the prior order. They point to the statement in the prehearing order that the issues to be litigated were entitlement to additional temporary total-disability from February 13, 1997, through a date yet to be determined; entitlement to additional medical services; and the effect of the statute of limitations on these additional benefits. They assert that the medical records, particularly Dr. Coker’s letter assessing impairment ratings on February 13, 1997, clearly show that appellee reached the end of his healing period on that date.
The Commission found this case analogous to Helena Contracting Co. v. Williams, 45 Ark. App., 137, 872 S.W.2d 423 (1994), where we affirmed the Commission’s conclusion that Ark. Code Ann. § 11-9-702(b) — then found in Supp. 1993 — did not bar a claim for a resumption of benefits. In Williams we wrote the following:
[W]e do not think that the claim filed on January 31, 1990, constituted a claim for “additional compensation” so as to be subject to the limitations period stated in Ark. Code Ann. ll-9-702(b). There is nothing in the record before us to show that the award of compensation made pursuant to the Commission’s order of February 4, 1986, had expired, or that the cessation of benefits by the appellants was sanctioned in any form. Instead, it is clear from the record-that the appellants simply refused to continue the payment of benefits previously awarded by the Commission pursuant to its order of February 1986. Furthermore, it is clear that the order appealed from merely awarded temporary total disability and medical benefits related to the compensable injury. Given that the appellee was already entitled to those benefits by virtue of the Commission’s 1986 order, we think that the Commission erred in concluding that the appellee’s claim was one for “additional” compensation so as to be subject to the limitations periods provided for in 11-9-702(b). Instead, we regard the appellee’s chimas one for enforcement of the Commission’s previous order, rather than a request for additional compensation, and we hold that the claim was therefore not barred by ll-9-702(b).
45 Ark. App. at 139, 872 S.W.2d at 424.
Here, the Commission found that although appellants had paid indemnity benefits and medical expenses for a substantial period of time, as had the respondents in Williams, they had essentially ignored a prior opinion and award. The Commission noted that a hearing had been held on a prior claim appellee filed for additional temporary total disability benefits after appellants unilaterally reduced appellee’s indemnity benefits on June 5, 1995, from the previously paid temporary total disability rate to what they contended was the appropriate permanent partial disability rate. The Commission noted that on November 16, 1995, it had awarded appellee continuing temporary total disability benefits from June 5, 1995, until such time as he should reach the end of his healing period; that the November 1995 order also had awarded maximum attorney fees to appellee’s attorney; and that the order had become final when appellants’ appeal was dismissed on March 19, 1996. The Commission found that appellee’s prior claim for additional benefits had effectively tolled the statute of limitations in regard to the present claim. The Commission wrote:
The computer printout furnished by the respondents show[s] that the respondents continued to pay the claimant indemnity benefits at the permanent partial disability rate even after the Opinion and award. At no time after the respondents unilaterally reduced these benefits on June 5, 1995, were they returned to the higher temporary total disability rate. There is also no indication in any of the payments records that the awarded fee was paid to the claimant’s attorney.
We note again that appellee contended at the last hearing that he was entitled to a resumption of medical treatment and resumption of temporary total benefits until his healing period should end. This is contrary to appellants’ argument that appellee’s contentions do not suggest a request to enforce the prior opinion. Appellants do not contend that the determination of the end of the healing period had been made when they unilaterally reduced indemnity payments to appellee based on Dr. Coker’s letter of February 13, 1997, nor do they contest the Commission’s finding that they failed to follow the Commission’s order of November 1995 entitling appellee to continuing temporary total disability benefits and medical services until a future date. It is clear that appellants reduced their payments to appellee without benefit of an order to do so, and that appellee’s claim was for an enforcement of a prior award rather than for additional benefits. We affirm the Commission’s finding that Ark. Code Ann. § ll-9-702(b) is not applicable and, thus, does not bar this claim.
Affirmed.
Stroud, C.J., and Vaught, J., agree.
Neither the November 1995 award nor the March 1996 dismissal of appellants’ appeal is included in the briefs before us. It was stipulated at the hearing in the present case that “a prior opinion” of August 10,1995, had become res judicata; that opinion likewise is not included in these briefs. | [
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John B. Robbins, Judge.
Appellant Christopher N. Thronebury pleaded guilty to multiple counts of breaking or entering and multiple counts of theft of property, and as a result he was fined $1000.00 and placed on five years’ probation on May 20, 1998. On June 12, 2001, the State filed a petition to revoke Mr. Thronebury’s probation, alleging various violations of his conditions. On July 31, 2001, the trial court entered ajudgment stating that “the Court does not revoke probation.” However, the trial court found that Mr. Thronebury had violated the terms of his probation, and as a result added the additional condition that he attend and complete an in-patient drug rehabilitation program. The July 31, 2001, judgment further ordered appellant to pay the $1000.00 fine forthwith.
The State filed another revocation petition on March 15, 2002. After a hearing, the trial court found that Mr. Thronebury violated the conditions of the terms of his probation as set out in the order entered May 20, 1998, by using controlled substances. As a result, the trial court entered ajudgment on June 17, 2002, which revoked appellant’s probation and sentenced him to one year in prison, as well as an additional three-year suspended imposition of sentence.
Mr. Thronebury’s counsel filed a no-merit appeal from the June 17, 2002, revocation order 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. However, in an unpublished opinion, we denied appellant’s counsel’s motion to be relieved and ordered rebriefmg for counsel to prepare a brief, in adversarial form, to address the legality of the modification of the conditions of probation and the legality of the revocation that resulted in this appeal. See Thronebury v. State, CACR 02-974 (Ark. App. June 25, 2003). Appellant’s counsel has filed an adversarial brief as directed, and the State has responded. Upon consideration of the briefs presented and the applicable law, we find merit to appellant’s argument and we reverse and remand.
Although Mr. Thronebury did not challenge the legality of any of the judgments below, we nonetheless may address the arguments he now raises for the first time on appeal. This is because we treat problems of void or illegal sentences similar to problems of subject-matter jurisdiction and review them even if not raised on appeal and not objected to in the trial court. Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003).
Our supreme court has held that a plea of guilty, coupled with a fine and either probation or a suspended imposition of sentence, constitutes a conviction, thereby depriving the trial court of jurisdiction to amend or modify a sentence that has been executed. Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001). Act 1569 of 1999 amended Ark. Code Ann. § 5-4-301(d) to permit modifications to probated sentences that are placed into execution. However, because Act 1569 was not in effect at the time the crimes were committed by Mr. Thronebury, it does not apply to the facts of this case. See Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001).
Pursuant to Pike v. State, supra, the trial court lacked jurisdiction to enter the July 31, 2001, order, which modified Mr. Thronebury’s sentence by adding the additional condition that he complete a drug rehabilitation program. However, the trial court had the authority to revoke Mr. Thronebury’s probation when it entered the June 17, 2002, order, because the revocation was based on a violation of a condjtion in the original order of probation, and not a violation of the additional condition the trial court attempted to impose through entry of the July 31, 2001, order.
While it was within the trial court’s authority to revoke appellant’s probation and sentence him to one year in prison, the trial court exceeded its authority by modifying the terms of the original sentence when it entered an additional three years’ suspended sentence. See Gates v. State, 353 Ark. 333, 107 S.W.3d 868 (2003). By the provisions of Ark. Code Ann. § 5-4-309(f) (Repl. 1997), “[i]f the court revokes a suspension or probation, it may enter a judgment of conviction and may impose any sentence on the defendant that might have been imposed originally for the offense of which he was found guilty....” The trial court could have originally imposed terms of imprisonment for the felonies to which appellant pleaded guilty. However, pursuant to our supreme court’s interpretation of Ark. Code Ann. § 5-4-309(f) in Gates v. State, supra, the trial court lacked subject-matter jurisdiction to modify the original sentence by adding the three-year suspended imposition of sentence.
The State cites Pierce v. State, 70 Ark. App. 263, 86 S.W.3d 1 (2002), where we held that after the appellant’s sentence of probation and a fine was put into execution, the trial court lost jurisdiction to modify the sentence, but did not lose jurisdiction to revoke the appellant’s probation. We agree that the trial court did not lose jurisdiction to revoke Mr. Thronebury’s probation. However, pursuant to the precedent in Gates v. State, supra, the imposition of the additional suspended sentence constituted an unlawful modification.
A trial court has jurisdiction to correct an illegal sentence even if it has been placed into execution. Meadows v. State, 324 Ark. 505, 922 S.W.2d 341 (1996). Accordingly, we reverse the June 17, 2002, order modifying appellant’s sentence, and remand this case with instructions to the trial court to correct the illegal sentence imposed on appellant following the revocation of his probation. See Gavin v. State, 354 Ark. 425, 125 S.W.3d 189 (2003).
Reversed and remanded.
Griffen and Neal, JJ., agree. | [
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Terry Crabtree, Judge.
This is an appeal from an order of summary judgment dismissing appellant, James Crockett’s, complaint brought under the Arkansas Civil Rights Act against his former employer, appellee Counseling Services of Eastern Arkansas. Appellant contends on appeal that the trial court erred in concluding that he failed to establish a prima facie case of racial discrimination. We affirm.
Appellant, an African-American and a graduate of the University of Arkansas at Monticello, was hired in 1990 by appellee’s predecessor as an activity therapist. Appellee provides services to persons with special needs, and as an activity therapist, appellant assisted its clients with daily-living activities in an effort to mainstream them back into the community. His duties consisted of transporting clients to the center, on errands and to doctor’s appointments, preparing meals, helping clients with their laundry, and completing paperwork for billing purposes. Appellant remained in that position until he was discharged on October 24, 2001. In January 2002, appellant was awarded unemployment benefits by an appeals-tribunal referee of the Arkansas Employment Security Department, based on a finding that he was discharged for reasons which did not constitute misconduct in connection with the work. Appellant thereafter filed the present lawsuit asserting a claim under the Arkansas Civil Rights Act by contending that his termination was racially motivated.
Appellee filed a motion for summary judgment in which it maintained that it had fired appellant because of inappropriate behavior, and it contended that appellant had not made a prima facie showing of discrimination because there was no evidence to suggest that his discharge was race-related. In support of the motion, appellee referred to selected excerpts from appellant’s deposition, and it provided the affidavit of Chester Gentry, appellant’s supervisor, along with supporting documentation.
In his affidavit, Mr. Gentry, who is an African-American, stated that he had investigated several complaints that had been received about appellant’s behavior in the months preceding his termination. In August 2001, a client reported that appellant had breached confidentiality by disclosing to her employer that she was considering quitting her job to attend college. In September 2001, a client alleged that appellant had tried to start a fight with him and had put his hand in the client’s face. This client also reported that appellant picked on clients and tried to “touch all of the women.” In October 2001, a female client complained that appellant had used crude and profane language around her, had made sexual comments to her, had asked about her sexual activities with her husband, and had volunteered information about his own sexual activities. The client also alleged that appellant had hung a client’s underwear from the rear-view mirror of the van and had touched clients in inappropriate ways. Gentry stated that appellant was discharged following the investigation of these complaints. Gentry further stated that an African-American woman had been hired to fill appellant’s position. He stated that he did not discharge appellant because of his race.
In his deposition, appellant testified that he did not know why he had been fired. He said that no one had told him that he was being fired because of his race and that he could not remember anyone ever making any racial comments at the workplace. Appellant also stated that no one had said anything to make him think that he was being discriminated against on account of his race.
In response to the summary-judgment motion, appellant argued that he had made a prima facie showing that race was a motivating factor for his discharge. He contended that improper racial motivation is not lacking just because the persons who fired and replaced him were both African-Americans. He also argued that he had shown that a similarly-situated individual had not been fired. This was in reference to his deposition testimony stating that a complaint of improper sexual behavior had been levied against Mr. Gentry but had been “swept under the rug.” Appellant further contended that, based on the appeals tribunal’s decision that he was fired for reasons that did not constitute misconduct, appellee was prohibited under the doctrine of collateral estoppel from asserting the complaints that had been made against him as nondiscriminatory reasons for his discharge.
In a letter opinion, the trial court granted the motion for summary judgment by ruling that appellant had failed to establish a prima facie case of racial discrimination. The court also noted that, even if a prima facie case had been established, appellee had shown that appellant was terminated for legitimate, non-discriminatory reasons. The court thus rejected appellant’s contention that appel-lee was barred by collateral estoppel from asserting the alleged acts of inappropriate behavior as grounds for the termination. The court reasoned that the issue before the appeals tribunal differed from the issue that was before the court.
Appellant argues on appeal that the trial court erred in concluding that he had failed to establish a prima facie case of racial discrimination. Appellant also maintains the position that collateral estoppel precludes consideration of the reasons appellee offered to justify the termination decision.
This case comes to us on the grant of a motion for summary judgment. We have ceased referring to summary judgment as a drastic remedy, and we now regard it simply as one of the tools in a trial court’s efficiency arsenal. Addington v. Wal-Mart Stores, Inc., 81 Ark. App. 441, 105 S.W.3d 369 (2003). The standards governing motions for summary judgment are as follows:
As we have often stated, summary judgment is to be granted by a trial court if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried.
... Once a moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appeal, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. This court views the evidence in a fight most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review is not limited to the pleadings, a's we also focus on the affidavits and other documents filed by the parties.
Chavers v. General Motors Corp., 349 Ark. 550, 558-59, 79 S.W.3d 361, 367 (2002) (citations omitted).
Because of the way the issues are framed, we must first address appellant’s contention that collateral estoppel precludes any consideration of the reasons appellee advanced for its discharge of appellant. In this regard, appellant argues that the appeals tribunal’s decision established that he was not fired for misconduct in connection with the work and that this determination prohibits appellee from relying on its stated reasons for his termination.
The doctrine of collateral estoppel, or issue preclusion, does bar the relitigation of issues of law or fact actually litigated in a former suit, provided that the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. Beaver v. John Q. Hammons Hotels, 355 Ark. 359, 138 S.W.3d 664 (2003). Decisions of the appeals tribunal become final if not timely appealed to the Board of Review. Ark. Code Ann. § 11-10-524(c)(2) (Supp. 2003). When an administrative body acts judicially or quasi-judicially, its decisions may be given preclusive effect. See Hamilton v. A.P.C. & E. Comm’n., 333 Ark. 370, 969 S.W.2d 653 (1998).
Ordinarily, collateral estoppel is relied ■ upon by a defendant to preclude the plaintiff from relitigating an issue that has previously been decided adversely to the plaintiff. Johnson v. Union Pacific Railroad, 352 Ark. 534, 104 S.W.3d 745 (2003). Here, however, the doctrine is being wielded by the plaintiff to prevent the defendant from litigating an issue alleged to have been decided adversely to the defendant in a previous action. Our supreme court has observed that the offensive use of collateral estoppel is “more controversial” than the defensive use of the doctrine. Fisher v. Jones, 311 Ark. 450, 456, 844 S.W.2d 954, 958 (1993). Nevertheless, the court has pronounced that collateral estoppel may be used as an offensive weapon in the courts of this state. Johnson v. Union Pacific Railroad, 352 Ark. 534, 104 S.W.3d 745 (2003).
In Johnson, id., the court adopted the approach taken by the Supreme Court in Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322 (1979). The court ruled that the offensive use of collateral estoppel should be available only in limited circumstances and that trial courts are to be given broad discretion to determine if it should be applied in any given case. Discretionary, rather than mandatory, application was favored-in recognition of the fact that the offensive use of the doctrine does not promote judicial economy in the same way that defensive estoppel does and that its use may result in unfairness to a defendant.
The court noted the Supreme Court’s observation in Parklane Hosiery that the offensive use of collateral estoppel may be unfair, particularly under circumstances where the defendant in the first áction is sued for small or nominal damages and thus may not have had a great incentive to defend vigorously; where the judgment relied upon is itself inconsistent with one or more previous judgments in favor of the defendant; or where the second action affords the defendant procedural opportunities unavailable in the first action that could cause a different result. In the end, the Johnson court determined that collateral estoppel should not be applied in that case because it would result in unfairness to the defendant.
For collateral estoppel to apply at all, however, four elements must be established: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) the issue must have been actually litigated; (3) it must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment. Cox v. Keahey, 84 Ark. App. 121, 133 S.W.3d 430 (2003). We believe that the first and second elements of this test were not met.
Arkansas Code Annotated section 11-10— 514(a)(1) (Repl. 2002) provides that an individual shall be disqualified for unemployment benefits if he is discharged from his last work for misconduct in connection with the work. For purposes of unemployment compensation, the term “misconduct” has a particularized meaning. It is defined as: (1) disregard of the employer’s interest; (2) violation of the employer’s rules; (3) disregard of the standards of behavior which the employer has a right to expect of his employees; and (4) disregard of the employee’s duties and obligations to the employer. Maxfield v. Director, 84 Ark. App. 48, 129 S.W.3d 298 (2003). There is an element of intent associated with a determination of misconduct on the part of the employee. Id. Therefore, mere unsatisfactory conduct, ordinary negligence, or good-faith errors in judgment in judgment or discretion are not considered misconduct unless they are of such a degree or recurrence as to manifest wrongful intent, evil design, or an intentional disregard of the employer’s interests. Id. Whether an employee’s acts are willful or merely the result of unsatisfactory conduct or unintentional failure of performance is a fact question to be resolved by the administrative agency. See id.
Under these standards, the inquiry before the appeals tribunal was to determine whether the alleged acts of inappropriate behavior that prompted appellant’s termination rose to the level of that kind of misconduct as to render him ineligible for unemployment compensation. The appeals tribunal found only that appellant was discharged for reasons that did not amount to misconduct under unemployment compensation law. The issue to be determined in the case before us is whether appellee improperly discharged appellant because of his race. The issues in the two cases are fundamentally different, and there is no indication in the record that the issue of racial motivation was actually interjected by appellant in the unemployment-benefit proceeding. Therefore, we hold that collateral estoppel does not apply and that the reasons appellee gave for discharging appellant can be considered in this case.
Turning now to the primary issue in this appeal, the Arkansas Civil Rights Act grants to qualified persons the right to be free from employment discrimination because of race. Ark. Code Ann. § 16-123-107(a)(1) (Supp. 2001). The Act expressly instructs us to look to federal civil-rights law when considering claims brought under the Act. Ark. Code Ann. § 16-123-105(c) (Supp. 2003); Island v. Buena Vista Resort, 352 Ark. 548, 103 S.W.3d 671 (2003).
As here, where a plaintiff is unable to produce evidence that directly reflects the use of an illegitimate criterion in the challenged decision, the employee may proceed under the now-familiar three-step analytical framework described in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Flentje v. First National Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000). Under this test, the burden of persuasion never leaves the plaintiff, but there is a shift in the burden to come forward with evidence: (1) the plaintiff must present a prima facie case consisting of four distinct elements; (2) the defendant must rebut the prima facie case by showing non-discriminatory reasons for the termination; and (3) the plaintiff must show the reasons are pretextual. Id. The four elements that are necessary to establish a prima facie case of racial discrimination are: (1) that he is in the protected class; (2) that he met applicable job qualifications; (3) that his employment was terminated; and (4) that there is some additional showing that race was a factor in the termination. See id. The importance of tht prima facie showing is that it creates the inference that the employer terminated the employee for an impermissible reason. Hutson v. McDonnell Douglas Corp., 63 F.3d 771 (8th Cir. 1995).
In this case, the appellant satisfied the first three prongs of the prima-facie test. At issue is whether he succeeded in making some additional showing to support an inference that race was a factor in the termination decision. It is our conclusion that appellant failed in this burden.
The record shows that appellant was discharged by an African-American and that he was replaced by an African-American. Although we accept appellant’s premise that it cannot be presumed that persons would not discriminate against members of their own race, see Robinson v. Sears, Roebuck and Co., 111 F. Supp.2d 1101 (E.D. Ark. 2000), appellant offered no evidence at all to show that race played any role in his supervisor’s decision. We cannot assume that there was an improper motive without some evidence suggesting discriminatory intent. Our opinion in this regard is buttressed by appellant’s deposition testimony that there was no racial animus present in the workplace and that he had no sense that he had been discriminated against because of his race. Moreover, appellant testified that he did not know why he had been fired and that he had filed this lawsuit in an effort to find out.
As for appellant’s contention that he had been treated more harshly than a similarly-situated individual, the incident appellant refers to involved previous accusations of sexual impropriety made against both appellant and Mr. Gentry. Not to belabor the point, but again it should be noted that Mr. Gentry is an African-American and thus falls within the same protected group as the appellant. And by contrast, the present accusation was the second such complaint made against appellant, whereas no other had been made against Mr. Gentry. In addition, there were two other complaints registered against appellant for fighting and disclosing confidential information. The lone accusation made against Mr. Gentry is not in any way comparable to the charges that were lodged against the appellant just prior to his termination. Thus, we are unable to say that Mr. Gentry was similarly situated to appellant. See Gilmore v. AT & T, 319 F.3d 1042 (8th Cir. 2002) (persons used as comparators were not considered similarly situated because some were of the same protected class and others committed acts that were not comparable in severity or frequency); Williams v. Saint Luke’s-Shawnee Mission Health System, Inc., 276 F.3d (8th Cir. 2001) (court rejected similarly-situated claim where the accusations made against the plaintiff were more serious and more numerous than the offenses of the other employees).
From our review of the record, we agree with the trial court’s conclusion that appellant failed to establish a prima facie case because he presented no evidence from which racial discrimination could be inferred. Appellee was thus entitled to judgment as a matter of law.
Affirmed.
Hart and Roaf, JJ., agree.
Another test, known as the “mixed-motive” analysis promulgated by the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), applies when there is direct evidence of discriminatory intent. SeeThomas v. First Nat'l Bank of Wynne, 111 F.3d 64 (8th Cir. 1997). | [
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Terry Crabtree, Judge.
Appellant Karsten Cannon appeals his conviction of delivery of a controlled substance for which he was sentenced to 240 months’ incarceration. On appeal, appellant argues that the judgment should be reversed because he was forced to appear in court in prison garb, because the trial court admitted a lab report in violation of the controlling statute, and because the evidence was insufficient to support the verdict.
We affirm the judgment on the basis that appellant’s abstract is flagrantly deficient. Appellant did not abstract the judgment and commitment order, the jury’s verdict, the sentencing before the court, or the notice of appeal. One must go to the record to determine of what crime appellant was convicted and whether he timely filed a notice of appeal. Pursuant to Ark. R. Sup. Ct. 4-2(a)(6) and case law interpreting the rule, appellant’s abstract is inadequate for us to reach the merits of his appeal. The following language from King v. State, 325 Ark. 313, 925 S.W.2d 159 (1996), is informative on the effect of faffing to abstract pertinent pleadings:
We have often held that a summary of the pleadings and the judgment appealed from are the bare essentials of an abstract. D. Hawkins, Inc. v. Schumacher, 322 Ark. 437, 909 S.W.2d 640 (1995). This court does not presume error simply because an appeal is made. Mayo v. State, 324 Ark. 322, 920 S.W.2d 843 (1996). It is the appellant’s burden to produce a record sufficient to demonstrate error, and the record on appeal is confined to that which is abstracted. Midgett v. State, 316 Ark. 553, 873 S.W.2d 165 (1994).
Id. at 315, 925 S.W.2d at 160.
We are aware of the recent decision by the Supreme Court, Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997), in which the appellants failed to abstract the judgment and commitment order, and the supreme court still chose to address the merits. In Williams, the court stated:
We choose not to declare Mr. Williams’s abstract “flagrandy deficient.” Except for the omission of the judgment and commitment order, the abstract is complete and exemplary. We know from his uncontested statement of the case that Mr. Williams was convicted of conspiracy to deliver methamphetamine and that he was sentenced to thirty years’ imprisonment for that offense. We are aware that in other cases, such as the recent decision in Jewell v. Miller County Election Comm’n, 327 Ark. 153, 936 S.W.2d 754 (1997), we have declined to look to other parts of a brief or abstract to find information that should have been included elsewhere. That, however, was a case in which we were given a nine-page abstract to depict a 1500-page record and six volumes of exhibits. Even in the case of Winters v. Elders, supra, where we declared an abstract of the judgment “essential,” we had an additional reason for affirmance based on incompleteness of the record. While an abstract of the judgment from which the appeal comes is “ordinarily” required, its absence does not necessarily constitute a flagrant deficiency requiring affirmance, and it does not in this case.
Id. at 490, 944 S.W.2d at 824.
Unlike the appellant in Williams, appellant in the present case failed to abstract more than just the judgment and commitment order. The only pleading in the abstract is the information charging appellant. Also, in the case at bar, the statement of the case does not provide the crime of which appellant was convicted. And, the notice of appeal is not abstracted. See Davis v. State, 325 Ark. 36, 924 S.W.2d 452 (1996) (holding an abstract that did not include several pleadings, including the jury verdict, the judgment and commitment order, and the notice of appeal insufficient).
The dissenting opinion states that appellant’s conviction as evidenced by the judgment and commitment order, the timeliness of his appeal, and circumstances of his sentencing are not issues on appeal and, therefore, not necessary components of the abstract. This line of reasoning ignores the fact that the timely filing of a notice of appeal is a jurisdictional requirement. Henry v. State, 49 Ark. App. 16, 894 S.W.2d 610 (1995). Absent an effective notice of appeal, this court lacks jurisdiction to consider the appeal and must dismiss it. Id. See also Parnell v. State, 320 Ark. 250, 895 S.W.2d 911 (1995); Schaeffer v. City of Russellville, 52 Ark. App. 184, 916 S.W.2d 134 (1996). Therefore, whether appellant filed an effective notice of appeal is always an issue before the appellate court.
The dissenting opinion also reasons that this court can address appellant’s argument that he should not have been required to appear for trial in prison attire when he and his attorney failed to obtain civilian clothing prior to the morning of trial. The basis of this argument is that the abstract contains the arguments before the trial court concerning the clothing and the references to appellant’s attire as “jail garb,” “prison garb,” and “jail uniform.” The error in this reasoning is that, although the abstract contains the references to appellant’s clothing as prison attire, there is no description of that attire showing that it is distinctive as prison garb.
While it is generally true that a defendant should not be forced to appear for trial in prison attire and that this rule is founded on the principle that, since a defendant is presumed innocent until proven guilty, he should be allowed to appear before the jury with the appearance of an innocent man, for this rule to apply, the clothing or attire must be distinctive as prison garb. Washington v. State, 6 Ark. App. 23, 637 S.W.2d 614 (1982) (citing Estelle v. Williams, 425 U.S. 501 (1976)). See also Holloway v. State, 260 Ark. 250, 539 S.W.2d 435 (1976), rev’d on other grounds, 435 U.S. 475 (1978). In the present case, there is no description of the jail attire that appellant wore at trial. This precludes appellant from prevailing on this issue on appeal. In Barksdale v. State, 255 Ark. 272, 499 S.W.2d 851 (1973), the supreme court explained:
The court properly denied appellant’s motion for a mistrial on the grounds that he was wearing prison garb. The record shows that appellant was wearing bell-bottom white trousers, a gold shirt, a white and brown striped jacket, and house shoes. There is no evidence of any name or number on the apparel. Nor do we find any merit in the allegation that appellant was brought handcuffed in full view of the jury.
Id. at 274, 499 S.W.2d at 852. See also Washington v. State, 6 Ark. App. 23, 637 S.W.2d 614 (1982) (noting that from the record it was not clear that defendant’s orange jumpsuit was distinctive as jail attire).
In the present case, we have no description of appellant’s prison attire whatsoever. There is no evidence that his clothing had a name, number, or other indicia of prison attire. Therefore, this court does not have a basis upon which to determine that appellant’s prison attire was distinctive as such, which is essential to appellant’s argument on this point. See Washington, supra.
Applying the well-established rules that were reiterated in King, supra, and Davis, supra, the abstract in the present case is flagrantly deficient. However, if we were to reach the merits of appellant’s arguments, based on what we have been provided in the abstract, we would affirm.
Affirmed.
Stroud and Meads, JJ., agree.
Neal, Griffen, and Roaf, JJ., dissent. | [
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D. Franklin Arey, III, Judge.
The appellant in this chancery case purchased a lot in Canal Pointe, a residential subdivision, from Riverdale Harbor Incorporated. After a dispute regarding security in the subdivision, the appellant sued the appellees for fraud and breach of contract. The chancellor found that the suit was barred by the three-year statute of limitations applicable to tort claims, and granted summary judgment against the appellant. This summary judgment was appealed, and, in an unpublished decision delivered on February 21, 1996, we held that the chancellor properly applied the three-year statute of limitations because the appellant’s cause of action, in substance, sounded in tort. Subsequently, the appellees petitioned the chancery court for an award of attorney’s fees pursuant to Ark. Code Ann. § 16-22-308 (Repl. 1994). After a hearing, the chancellor awarded attorney’s fees to the appellees. This appeal followed.
The appellant contends that the chancellor erred in concluding that the appellees were entitled to an award of attorney’s fees under Ark. Code Ann. § 16-22-308 (Repl. 1994). We agree, and we reverse.
Arkansas Code Annotated § 16-22-308 provides that:
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 or 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’s fee to be assessed by the court and collected as costs.
This section has been held to authorize an award of attorney’s fees to a party who successfully defends against a contract claim. Cumberland Financial Group, Ltd. v. Brown Chemical Co., 34 Ark. App. 269, 810 S.W.2d 49 (1991). However, § 16-22-308 does not per mit an award of attorney’s fees in tort actions. Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992).
Although both contract and tort claims were advanced in the case at bar, the action was not based primarily in contract. Our prior opinion was premised on our holding that the appellant’s claims were based primarily in tort. Nonetheless, attorney’s fees were awarded to appellees subsequent to our prior opinion, upon findings that appellees were the prevailing party and that the contract claim advanced by the appellants was a “substantial issue” before the trial court.
We do not disagree with the chancellor’s finding that the appellees are the prevailing party. However, we do not think it is sufficient to base a fee award under § 16-22-308 upon a finding that a contract claim is a “substantial issue.” Where both contract and tort claims are advanced, an award of attorney’s fees to the prevailing party is proper only when the action is based primarily in contract. See Wheeler Motor Co., Inc. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993); Security Pacific Hous. Servs., Inc. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993); Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992); Kinkead v. Union Nat’l Bank, 51 Ark. App. 4, 907 S.W.2d 154 (1995).
In Wheeler Motor Co., Inc. v. Roth, the prevailing party cross-appealed from the trial court’s denial of an award of attorney’s fees. The prevailing party’s case had been submitted to the jury-on alternate contract and tort theories. Special interrogatories were utilized; one jury instruction allowed an award of damages consistent with the tort theory, and another jury instruction authorized an award of damages consistent with breach of contract. In determining whether the denial of attorney’s fee was proper, our supreme court examined the basis of the prevailing party’s claim:
When the prevailing party’s claim is based in tort, an award of attorney’s fees cannot be justified under section 16-22-308. . . . Because the jury gave [the prevailing party] an award in the amount of the purchase price, it must have based its award on restitution for revocation. This rests in tort. The jury obviously found deceit which formed the basis of revocation and the resti- tutionary award. We cannot say the trial judge erred in declining to award attorney’s fees.
Wheeler Motor Co., Inc., 315 Ark. at 329, 876 S.W.2d at 451 (citations omitted). Even though a contract claim was litigated and submitted to the jury, our supreme court looked to the basis of the prevailing party’s claim in determining whether an award of fees was justifiable under § 16-22-308.
In Security Pacific Housing Services, Inc. v. Friddle, our supreme court reversed an award of attorney’s fees to the prevailing party. At trial, the prevailing party pursued its counterclaim for breach of contract and conversion. After judgment was entered in its favor, the trial court awarded the prevailing party attorney’s fees. The losing party appealed, claiming that fees could not be justified under § 16-22-308 because the prevailing party prevailed on its claim in tort for conversion, not on its claim for breach of contract. The supreme court agreed.
[W]e conclude [the prevailing party’s] recovery was based primarily in the tort of conversion. We make this finding with full awareness that [the prevailing party’s] counterclaim included a claim for breach of contract. Merely alleging a claim for breach of contract does not mean the jury awarded damages on that basis. The evidence presented focused on the wrongful repossession and the tort of conversion. The relatively large award of punitive damages indicates the jury awarded its verdict based on the tort claim.
Security Pacific Hous. Services, Inc., 315 Ark. at 186, 866 S.W.2d at 379. Thus, litigation of a breach-of-contract claim alone was not sufficient to justify fees under § 16-22-308; the award of fees was reversed. Id.
The denial of attorney’s fees was appealed by the prevailing party in Stein v. Lukas. At trial, the prevailing party advanced both deceit and breach-of-warranty claims. The circuit court instructed the jury on both of these claims. Nonetheless, our supreme court affirmed the denial of fees under § 16-22-308.
Arkansas’ fee statute for civil actions does not embrace tort actions such as deceit. See Ark. Code Ann. § 16-22-308 (1987). In this case deceit lies at the heart of the claim leveled by the [prevailing party] against the [losing party].
Stein, 308 Ark. at 83, 823 S.W.2d at 837. The court noted that “[t]his was essentially a deceit action sounding in tort.” Id., 308 Ark. at 82, 823 S.W.2d at 836. Therefore, even though a contract claim was litigated and presented to the jury, fees were denied.
Each of these cases involved a contract or breach-of-contract claim; the claims must have been substantial enough to justify presentation to the jury. Nonetheless, in each case our supreme court denied fees to the prevailing party because the action was based primarily in tort.
Kinkead v. Union National Bank presents a different fact pattern. The prevailing party, a bank, brought a foreclosure action on its note and mortgages. The losing party counterclaimed on various tort theories, and under a federal statute. The trial court granted judgment to the prevailing party on its foreclosure complaint and on all counts of the losing party’s counterclaim; the prevailing party was awarded attorney’s fees. The losing party argued that the bank may have been entitled to receive an attorney’s fee on its foreclosure action, but it was not entitled to a fee for defending the counterclaim, since the latter was based upon tort theories and a federal statute. Our court did not agree.
We find that Stein v. Lukas, supra, is not controlling in this fact situation. In that case, the [prevailing party’s] complaint was brought on theories of deceit and breach of warranty. Here, although [the losing party] made unsubstantiated allegations of tort in their counterclaim, the trial was basically an action for foreclosure.
Kinkead, 51 Ark. App. at 18, 907 S.W.2d at 162. Thus, because the action was based primarily in contract — “basically an action for foreclosure” — an award of attorney’s fees was proper to the prevailing party that defended a counterclaim based in tort and a federal statutory cause of action.
In the case at bar, our prior opinion was premised on our holding that the appellant’s claims were based primarily in tort. We must follow this characterization of the appellant’s action, because it is the law of the case. Matters decided on a prior appeal are the law of the case and govern the appellate court’s actions on the subsequent appeal. Thurman v. Clark Industries, Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994).
Because the appellant’s action was based primarily in tort, we reverse the award of attorney’s fees. In light of our decision on this issue, the appellant’s remaining points for reversal are moot; consequently, we do not address them.
Reversed and dismissed.
Robbins, C.J., and Roaf, J., agree. | [
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Andree Layton Roaf, Judge.
Georgia-Pacific Corporation appeals a ruling by the Workers’ Compensation Commission that the appellee Laurin P. Dickens was entitled to compensation for routine medical care provided to her in 1993, 1994, and 1995, for a compensable injury which she sustained in 1984. On appeal, Georgia-Pacific argues that there is no substantial evidence to support the Commission’s findings 1) that the medical care was reasonably necessary for the treatment of Dickens’s injury, and 2) that Dickens’s claim, which was filed in 1995 for additional benefits, is not barred by the statute of limitations. We affirm.
Dickens sustained a compensable right elbow injury in 1984. Surgery was performed on her elbow in 1986, 1988, and 1989, and Dickens returned to work at Georgia-Pacific in 1989. In 1991, her treating physician determined that her healing period had ended and assigned a permanent impairment rating to her right elbow and shoulder. Although Dickens was administratively terminated by Georgia-Pacific in 1992, the company continued to pay for Dickens’s routine follow-up visits to the University of Arkansas for Medical Sciences (UAMS) in 1992 and 1993.
On March 12, 1993, the administrative law judge (ALJ) issued an opinion in a separate claim, finding that Dickens had not sustained a right shoulder injury in addition to her compensable right elbow injury. Dickens did not appeal that ruling. Subsequently, Georgia-Pacific paid for Dickens’s May 21, 1993, visit to UAMS for treatment of her elbow, but failed to pay for any further visits, although they acknowledged that they had received bills for Dickens’s office visits on April 21, 1994, and March 31, 1995. Dickens was not charged for a visit on November 4, 1993, and, therefore, no bill was sent by UAMS for this service.
After receiving the bill for the March 31, 1995, examination, Georgia-Pacific sent a letter to Dickens on May 18, 1995, informing her that they would not pay any additional medical bills because the statute of limitations had run on her workers’ compensation claim. Dickens filed a claim on May 24, 1995, for additional benefits, which gives rise to this appeal.
The ALJ denied Dickens’s claim for additional benefits, finding that the medical services provided on November 4, 1993, and April 21, 1994, did not constitute reasonably necessary medical treatment because the record reflected that Dickens’s visits to UAMS at approximately six-month intervals were for the purpose of keeping her workers’ compensation claim open. The ALJ also found that Dickens’s claim filed in 1995 was barred by the statute of limitations, because the visits in 1993 and 1994 were not reasonably necessary for the treatment of her injury and thus did not toll the statute of limitations.
The Commission reversed the decision of the ALJ, finding that the medical care provided to Dickens in 1993, 1994, and 1995, was reasonably necessary for treatment of her compensable injury. The Commission also found that the statute of limitations had not run on Dickens’s claim because Georgia-Pacific was deemed to have continued to provide medical treatment to Dickens until they informed her that they would no longer do so in the letter of May 1995.
Georgia-Pacific first argues that there is not substantial evidence to support the Commission’s finding that Dickens’s visits to UAMS on November 4, 1993, and April 21, 1994, were reasonably necessary for the treatment of her injury. Arkansas Code Annotated § ll-9-508(a) (1996) states that an employer shall provide “such medical. . . services... as may be reasonably necessary in connection with the injury received by the employee.” What constitutes reasonable and necessary treatment under this section is a question of fact for the Commission. Gansky v. Hi-Tech Eng'g, 325 Ark. 163, 924 S.W.2d 790 (1996) (citing Arkansas Dep’t of Correction v. Holybee, 46 Ark. App. 232, 878 S.W.2d 420 (1994)); see also Morgan v. Desha County Tax Assessor’s Office, 45 Ark. App. 95, 871 S.W.2d 429 (1994).
It is well settled that when reviewing decisions from the Workers’ Compensation Commission, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirms if supported by substantial evidence. Crawford v. Pace Indus., 55 Ark. App. 60, 929 S.W.2d 727 (1996) (citing Welch’s Laundry & Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283 (1992)). The issue is not whether this court might have reached a different result from that reached by the Commission or whether the evidence would have supported a contrary finding. If reasonable minds could reach the result shown by the Commission’s decision, the court must affirm the decision. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995).
In support of its argument that the visits were not reasonably necessary for the treatment of the 1984 injury, Georgia-Pacific relies upon the testimony of Dickens and upon notes made by the treating physicians during the disputed medical visits. During the hearing before the ALJ, Dickens testified that she began seeing the doctor at six-month intervals because she was advised by her attorney that she should always go back to the doctor every six months until her workers’ compensation claim was settled.
The medical records of the office visits in dispute state in part:
November 4, 1993: Ms. Dickens RTC here today for follow up of right cubital tunnel syndrome. . . . She has been given a permanent impairment rating. She thinks she is about the same. . . . She is still a little tender about the elbow and there is no really appreciable Tinel. Status about the same with s/p anterior transposition of ulnar nerve. RTC six months for follow up.
April 24, 1994: Pt. is being followed on a bi-annual basis until her Worker’s Compensation claim is setded. PE - She is no better or worse than she was six months ago. She has a slight pain around the cubital tunnel area, tenderness proximally and Tinel sign at Guyon’s canal. . . . We will see this pt. again in six months for repeat clinical exam.
December 4, 1994: . . . This is a workman’s compensation case and settlement has not been completed. She has symptoms of numbness to the ulnar distribution bilaterally, and it has remained stable. She is complaining of some new pain in the right shoulder. . . . Stable post-op course s/p bilateral cubital tunnel release. Due to her previous treatment by Dr. Hixson, I recommended to her that she should be followed by Dr. Hixson and a referral will be made for her to see Dr. Hixson. She will also be referred to Dr. Tom Roberts in the shoulder clinic.
March 31, 1995: Ms. Dickens was reexamined on March 30, 1995. Her injury appears to be stable since my last examination. Her main complaints are those of right elbow and shoulder pain and irritation along the course of the ulnar nerve. . . . She still uses her TENS unit and takes medication for her pain. . . . Ms. Dickens has remained approximately stable since her last examination. ... I will be happy to examine her on an as-needed basis.
Dickens also testified at length about ongoing problems with her elbow, and stated that she continued to take medication and to use a TENS unit for pain. She testified that her treating physician advised her to return every six months, or earlier, if she had any problems.
In fact, the disputed visits were at intervals of six, six, eight, and three months, respectively. The records describe the ongoing nature of Dickens’s symptoms, and indicate that she continued to use a TENS unit and take medication. In its decision, the Commission considered the multiple surgeries, Dickens’s persistent symptoms of pain, irritation, and limitation of motion in her elbow, and her continued use of medication and a TENS unit for pain control, in finding that the office visits to UAMS in 1993 through 1995 were reasonably necessary. The Commission further found that the medical evidence indicated that Dickens received examinations, diagnoses, and proposals for additional follow-up treatment during each of the disputed office visits.
As to Dickens’s motivation for seeking follow-up care, the Commission stated that the issue was whether she was entitled to the follow-up care, not her reasons for seeking it, and concluded that she was so entitled. We agree, and hold that there was substantial evidence from which the Commission could find that Dickens’s follow-up medical care was reasonably necessary for treatment of her compensable injury.
Although Georgia-Pacific also argues that there is not substantial evidence to support the Commission’s finding that Dickens’s claim for additional benefits is not barred by the statute of limitations, it concedes that this court should not reach this argument if we affirm the Commission’s findings on its first point on appeal. In so doing, Georgia-Pacific acknowledges that it “cannot start the running of the statute of limitations by refusing to pay what it owes.” See Conway Printing Co. v. Higdon, 45 Ark. App. 188-A, 878 S.W.2d 4 (1994).
Affirmed.
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Judith Rogers, Judge.
This is an appeal from an order of summary judgment entered upon a finding that appellants, Randy and Mary Wirth, had faffed to offer proof of proximate causation to support their claim of negligence against appellee, Reynolds Metal Company. Adthough appellants contend that the trial court erred in its decision, we affirm.
In May of 1994, appellants drilled a water well to service a new home they were in the process of building in rural Sebastian County. Appellants and their four children moved into the home on December 31, 1994. The family consumed an average of 12,000 gallons of water a month, and the well produced eight gallons of water a minute, which was sufficient to meet their needs. After using the well for four months, appellants experienced problems with the well in terms of pressure and the quantity of water it produced. In July of 1995, production of the well decreased to half a gallon a minute. In October, appellants abandoned use of the well and drilled another well one hundred feet away.
Appellants filed this suit against appellee for damages connected with the failure of the first well. In their complaint, they alleged that appellee had drilled a gas well on adjacent property at a distance of 800 feet from their water well. They claimed that the damage caused to the water well was the proximate result of appel-lee’s drilling and operation of the gas well. Appellants prayed for damages in the amount of $10,000. Appellants subsequently amended their complaint to assert a claim of negligence against appellee. Specifically, in terms of proximate causation, appellants alleged that “the slurry or cement used by the [appellee] in casing their [sic] well leaked into the natural aquifer which served as a channel through which [appellants’] water supply flowed.”
Appellee moved for summary judgment on the issue of proximate causation. Submitted with the motion were the depositions of appellant, Randy Wirth, and T.H. Musgrove, appellants’ expert who had drilled appellants’ water wells, as well as the affidavit of Darwin Hale, the tool pusher who worked on the crew that drilled appellee’s gas well. In opposition to the motion, appellants relied on the same depositions and added the affidavit of a neighbor, Omar Gibson.
In his deposition, Wirth asserted that the problems with his well began two weeks after appellee drilled its well. He said that he did not have any information and did not know that there was anything inappropriate done in the drilling of the gas well, but that it was his “personal belief that this casing and cementing is what caused my problem.”
Mr. Musgrove related that there was no continuous aquifer in the area and that he had dug appellants’ well in a fault where water tends to collect. He had not examined the gas well or appellee’s log books, and he did not know the distance between the two wells or the differences in elevation. He could not say that appel- lee’s gas well had any effect on appellants’ water well. He said that the only scenario for appellee’s well to have caused the problem would be if cement had been lost during the drilling of the gas well. He stated that “[i]f they lost cement, it could possibly have bothered the well.” He said, however, that he had not checked to see if any cement had been lost, but he opined that the man who cemented the gas well would know.
Darwin Hale stated in his affidavit that no water had been encountered during the drilling of appellee’s well and that no cement had been lost. As based on his experience and knowledge, he averred that the drilling of the gas well did not and could not have had any effect on the water well.
In his affidavit, Mr. Gibson stated that he had lived in “close proximity” to appellants’ property for three years. He said that his well had run dry from time to time and that its production had decreased substantially since the drilling of appellee’s gas well.
On this record, the trial court granted appellee’s motion for summary judgment. The court took note of Mr. Musgrove’s testimony that the drilling of the gas well would not have caused the decreased water capacity of appellants’ well in the absence of a loss of cement during drilling, and the testimony of Mr. Hale who stated that no cement had been lost. The court thus found that appellants had faded to offer proof in support of their claim of a causal relationship between the drilling of the gas well and the damage to their water well.
In this appeal, appellants have discarded the theory of causation with respect to the loss of cement. It is their argument that summary judgment was not appropriate because of the circumstantial evidence contained in the record, which consists of proof indicating that their well and Mr. Gibson’s well developed problems two weeks after the drilling of appellee’s gas well. Applying the familiar principles of summary judgment to the evidence adduced in this case, we find no merit in this argument.
Summary judgment should be granted only when a review of the pleadings, depositions, and other filings reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Johnson v. Harrywell, Inc., 47 Ark. App. 61, 885 S.W.2d 25 (1994). All proof submitted must be considered in the light most favorable to the nonmoving party, and any doubts or inferences must be resolved against the moving party. Wozniak v. Colonial Ins. Co., 46 Ark. App. 331, 885 S.W.2d 902 (1994). Rule 56(e) of the Arkansas Rules of Civil Procedure provides in pertinent part:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
The supreme court has interpreted Rule 56(e) many times and has summarized its requirements by stating that once the moving party makes a prima facie showing of entitlement, the opposing party must meet proof with proof by showing a genuine issue of material fact. Dillard v. Resolution Trust Co., 308 Ark. 357, 824 S.W.2d 387 (1992). When a prima facie showing is made, the adverse party may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. Norris v. Bakker, 320 Ark. 629, 899 S.W.2d 70 (1995); Carmichael v. Nationwide Life Ins. Co., 305 Ark. 549, 810 S.W.2d 39 (1991). An affidavit stating only conclusions is not sufficient to show the existence of a genuine issue of material fact. Hampton v. Taylor, 318 Ark. 771, 887 S.W.2d 535 (1994).
Here, the appellants alleged that the damage to their well was caused by the negligence of appellee attributable to the loss of cement when the gas well was drilled. Appellee refuted that allegation and thus made a prima facie showing of entitlement to summary judgment. See Knowlton v. Ward, 318 Ark. 867, 889 S.W.2d 721 (1994); Hensley v. White River Medical Center, 28 Ark. App. 27, 770 S.W.2d 190 (1989). It then fell to appellants to dis card the shielding cloak of formal allegations and meet proof with proof to show a genuine issue of material fact. Cash v. Lim, 322 Ark. 359, 908 S.W.2d 655 (1995); Cummings, Inc. v. Check Inn, 271 Ark. 596, 609 S.W.2d 66 (1980); J.M. Products, Inc. v. Ark. Capital Corp., 51 Ark. App. 85, 910 S.W.2d 702 (1995). This they failed to do. Although there was proof that the well developed problems shortly after the drilling of the gas well, the wells were located at a distance of over two football fields apart, and appellants offered no specific evidence demonstrating how the drilling of the gas well might possibly have caused the damage to their well. Appellants’ claim is thus based on mere allegations and conclusions, which are not sufficient to overcome appellee’s prima facie showing of entitlement to judgment as a matter of law.
To accept appellants’ argument that the mere timing of these events established a causal connection, we would have to engage in reasoning based on a logical fallacy known as post hoc ergo propter hoc, meaning “after this and therefore because of this.” Sunward Corp. v. Dun & Bradstreet, Inc., 811 F.2d 511, 521 n. 8 (10th Cir. 1987). The failure of post hoc ergo propter hoc reasoning to prove proximate causation was ably set forth by the Supreme Court of Mississippi in Western Geophys. Co. of America v. Martin, 174 So. 2d 706 (Miss. 1965). Like the instant case, Martin involved a damaged water well. Martin, the well owner, asserted that Western’s negligent conduct damaged his well. The issue on appeal was whether the trial court erred in denying Western’s motion for a directed verdict. The court described Western’s conduct and its relation in time and place to Mr. Martin’s water well as follows:
The Western Geophysical Company of America, hereinafter called Western, is engaged in seismograph work, the main purpose of which is to locate subsurface formations capable of producing oil. This work involved the detonating of small charges of dynamite in relatively, shallow holes, thereby sending out energy waves which in turn bounced off the lower formations and traveled back to the surface where they were detected and recorded by extremely sensitive instruments.
Appellee charged that on May 6, 1963, around three o’clock in the afternoon, the appellant detonated a charge of dynamite close to the appellee’s property and a water well of the appellee, so that the appellee’s water well, which had been operating properly, ceased to do so and began to pump sand, which ruined the pump. More specifically, the appellee charged Western’s wrongful act was “the firing of dynamite in the water stream that your plaintiffs water well was in and the firing of dynamite or other explosives too close to the plaintiffs house and water well.” Appellee further charged that the vibration damaged the strainer, causing the pump to pump sand and rusty water, and that the sand burned up the pump. The appellee contended that the explosion was the proximate cause of the loss of his well and that he sustained actual and punitive damages in the sum of $2,500.
Martin, 174 So. 2d at 707-08.
The court then summarized a great deal of testimony offered by Western to the effect that its conduct in setting off the dynamite charge did not damage Mr. Martin’s water well. Thereafter, the court noted:
In the case at bar, there is not any specific, competent testimony as to how and in what manner the well was damaged by the appellant’s detonation. In fact, there is no testimony on this point except by the appellee [Martin] himself, who admitted that he did not know what damage was caused; that he just assumed damage was caused.
Martin, 174 So. 2d at 713.
In concluding that the trial court should have granted Western’s motion for a directed verdict, the court relied on its previous decisions in Humble Oil and Refining Co. v. Pittman, 49 So. 2d 408 (Miss. 1950), and Kramer Service, Inc. v. Wilkins, 186 So. 625 (Miss. 1939), and observed:
The language of the court in the Pittman case deserves our attention. In that case it was said:
Against this expert testimony there is left only the circumstance that soon after the charges were fired some disturbance of the well appeared. This may of course have had a causal connection with the explosions. There is plausible ground for lay witnesses so to suspect. Yet verdicts may not rest upon suspicion or conjecture. In its last analysis the circumstantial evidence adduced to support the verdict is the theory post hoc ergo propter hoc. This basis has never of itself been held substantial enough upon which to erect proximate causation. (Citing Kramer Service Co. v. Wilkins, 184 Miss. 483, 186 So. 625, 627 (1939).)
The Pittman case relied upon the Wilkins case, in which the court, speaking through Justice Griffith, said:
There is one heresy in the judicial forum which appears to be Hydra-headed, and although cut off again and again, has the characteristic of an endless removal. That heresy is that proof that a past event possibly happened, or that a certain result was possibly caused by a past event, is sufficient in probative force to take the question to a jury. Such was never the law in this state, and we are in accord with almost all of the other common-law states. . . . “Post hoc ergo propter hoc” is not sound as evidence or argument. Nor is it sufficient for a plaintiff seeking recovery for alleged negligence by an employer towards an employee to show a possibility that the injury complained of was caused by negligence. Possibilities will not sustain a verdict. It must have a better foundation.
This terse and expressive language had no such limited application as that it governed only in employer and employee cases, but is to be paraphrased as follows: It is not enough that negligence of one person and injury to another coexisted, but the injury must have been caused by the negligence. Post hoc ergo propter hoc is not sound as evidence or argument. Nor is it sufficient for a plaintiff, seeking recovery for alleged negligence by another toward the plaintiff, to show a possibility that the injury complained of was caused by negligence. Possibilities will not sustain a verdict. It must have a better foundation. (184 Miss, at 496, 497, 186 So. at 627.)
Martin, 174 So. 2d at 714-15.
We find the Mississippi Court’s analysis in Martin and the precedents upon which Martin relies to be persuasive.
Proximate causation is an essential element for a cause of action in negligence. Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996). When a party cannot present proof on an essential element of his claim, the moving party is entitled to summary judgment as a matter of law. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992). See also Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807 (1992). Although proximate causation is usually a question of fact for a jury, where reasonable minds cannot differ a question of law is presented for determination by the court. Cragar v. Jones, 280 Ark. 549, 660 S.W.2d 168 (1983). Appellants presented no evidence upon which fair-minded people could have concluded without speculation that the drilling of the gas well had any effect on their water well. Proximate causation cannot be based on mere coincidence. Therefore, we cannot say that the trial court erred in granting appellee’s motion for summary judgment. See, e.g., Caplener v. Bluebonnet Milling Co., 322 Ark. 751, 911 S.W.2d 586 (1995) (summary judgment affirmed where plaintiff failed to offer proof that the defendant’s feed caused the death of plaintiff’s ostriches); Continental Geophys. v. Adair, 243 Ark. 589, 420 S.W.2d 836 (1967) (holding that motion for a directed verdict should have been granted when no evidence was presented to show that the defendant’s seismographic detonations caused the damage to plaintiffs’ water wells).
Affirmed.
Pittman, Griffen, and Meads, JJ., agree.
Stroud and Crabtree, JJ., dissent.
We certified this case to the supreme court as one presenting a question in the law of torts. Ark. Sup. Ct R. l-2(a)(15). However, the court returned the case to us for decision. | [
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Terry Crabtree, Judge.
Appellants Lavenia and Roderick McGuire, mother and son, appeal the order of the probate court denying their motion to set aside the court’s order approving setdement of a wrongful-death claim and authorizing attorney’s fees in the amount of thirty percent of the settlement amount. Finding no error, we affirm.
George McGuire died intestate on October 21, 1992. Appellee Edith Smith filed a petition for appointment as adminis-tratrix of the estate on June 17, 1993. The probate court appointed appellee administratrix of the decedent’s estate. Appellants Lavenia McGuire and Roderick McGuire, as widow and son of the deceased, contested the appointment, stating that they had not received notice of the petition and that appellee was not a daughter of the deceased. Appellants requested, in part, that appellee be removed as administratrix. Appellee responded that she was the daughter of the deceased and that, even if she were not, she was qualified to serve as personal representative. Appellants filed an amended motion asserting that appellee apparently was contending that she was an illegitimate daughter of the deceased and that if appellee was an illegitimate child of the deceased, her claim of inheritance was barred by Ark. Code Ann. § 28-9-209(d) (1987). Appellants also requested that no attorneys’ fees, costs, or expenses attributable to establishing appellee’s claim be taken from the assets of the estate. On January 5, 1994, the probate court entered an order striking appellee and another illegitimate sister from being characterized as, or having the status of, heirs at law of the decedent.
On January 7, 1994, appellee filed a petition for authorization to settle the wrongful-death claim of the decedent. The petition stated that the decedent had died as a result of a collision with a car driven by a North Little Rock police officer. The petition stated that North Little Rock had minimum liability coverage of $25,000 and that North Little Rock offered appellee $25,000 to settle any claim. The petition further stated that the decedent had automobile liability insurance with State Farm Insurance Company that afforded underinsured coverage of $25,000. Appellee sought to settle the claims for $50,000, with her attorney’s fee being thirty percent of the recovery. The probate court entered an order authorizing the settlement on January 28, 1994.
On August 11, 1994, appellants filed a motion to set aside the order approving the compromise, asserting that they had not been served with the petition and had only learned of the petition and order granting it five and one-half months after the fact, while reviewing the court file. Appellants asserted that they were entitled under the Arkansas Rules of Civil Procedure to be served with a copy of the petition. They alleged that, had they been served, they would have opposed the petition, particularly the distribution of nearly one-third of the recovery to appellee’s attorney. Appellants asserted that their attorney had been offered policy limits by the insurance companies and that appellee’s attorney sought and collected $15,000 for telling the insurers where to send the check. Appellants asked the probate court to set aside the order authorizing settlement and require appellee’s attorney to return the $15,000 to the estate.
Appellee responded that the motion to set aside the order was untimely and that appellants did not allege or prove any grounds that would authorize setting the order aside pursuant to Ark. R. Civ. P. 60. Appellee further contended that appellants had no standing to contest the order authorizing settlement, as the personal representative is the one authorized to compromise a claim. Appellee also asserted that appellants were not entitled to notice. Appellants amended their motion to set aside the order to state that by failing to include a certificate of service on the petition and by not serving the petition on appellants, appellee had perpetrated fraud on the court.
After hearing arguments, the probate court denied the motion to set aside the order. The court found that failure to serve appellants with the petition for authorization did not constitute fraud that would allow the court to set aside the order after the expiration of ninety days, because a personal representative is not required to give notice of such a petition. The court cited Ark. Code Ann. § § 28-49-104 (1987) and 16-62-102 (Supp. 1995) and Dukes v. Dukes, 233 Ark. 850, 349 S.W.2d 339 (1961), as authority supporting her ruling.
Appellants argue on appeal that the trial court erred in faiHng to set aside its order approving settlement. Appellants assert that appellee was required to serve them with the petition to settle the wrongful-death claim of the decedent, George McGuire. It is appellants’ position that the failure of appellee to serve them with notice constituted fraud, thus allowing the probate court to set aside the order approving the settlement more than sixty days after it was entered. Appellants argue that without notice to the beneficiaries, there could be no input as to what the best interests of the beneficiaries were and that the trial court did not have sufficient facts upon which to base an opinion that the settlement was in their best interest. Appellants rely on Rules 1 and 5 of the Arkansas Rules of Civil Procedure in arguing that they were entitled to notice.
Appellee responds that appellants’ motion to set aside the order approving the settlement was untimely filed pursuant to Ark. R. Civ. P. 60. Appellee asserts that appellants were not entitled to be served with the petition to settle the claim and that, therefore, there could be no fraud based on not serving them with the petition. Appellee states that the wrongful-death claim is not an asset of the estate, and therefore, it is understandable that it would not be necessary to give the heirs notice of any settlement of the wrongful-death claim.
Pursuant to Rule 60(b) of the Arkansas Rules of Civil Procedure, a court may modify or set aside an order to correct any error or mistake or to prevent the miscarriage of justice, upon motion of any party or the court, within ninety days of the order having been filed with the clerk. Appellants’ motion to set aside the order approving the settlement was filed long after the expiration of ninety days. However, after the expiration of ninety days, a court may vacate or modify a judgment or order upon certain, enumerated bases. Ark. R. Civ. P. 60(c). Appellants moved the court to set aside the order on the basis that appellee had practiced fraud on the court in obtaining the judgment pursuant to Ark. R. Civ. P. 60(c)(4).
In First National Bank v. Higginbotham, 36 Ark. App. 65, 818 S.W.2d 583 (1991), the supreme court explained Rule 60(c)(4):
The fraud for which a decree will be canceled must consist in its procurement and not merely in the original cause of action. Alexander v. Alexander, 217 Ark. 230, 229 S.W.2d 234 (1950). It is not sufficient to show that the court reached its conclusion upon false or incompetent evidence, or without any evidence at all, but it must be shown that some fraud or imposition was practiced upon the court in the procurement of the decree, and this must be something more than false or fraudulent acts or testimony the truth of which was, or might have been, an issue in the proceeding before the court which resulted in the decree assailed. Id. Even though the fraud that vitiates a judgment may be constructive rather than actual, constructive fraud is nonetheless a species of wrongdoing. Ark. State Hwy. Comm'n. v. Clemmons, 244 Ark. 1124, 428 S.W.2d 280 (1968). Constructive fraud is defined as a breach of a legal or equitable duty which, irrespective of the moral guilt of the fraud feasor, the law declares fraudulent because of its tendency to deceive others. Neither actual dishonesty nor intent to deceive is an essential element. See RLI Ins. Co. v. Coe, 306 Ark. 337, 813 S.W.2d 783 (1991). The party seeking to set aside the judgment has the burden of showing that the judgment was obtained by fraud, see Karam v. Halk, 260 Ark. 36, 537 S.W.2d 797 (1976), and the charge of fraud must be sustained by clear, strong, and satisfactory proof. Ark. State Hwy. Comm'n. v. Clemmons, supra.
Id. at 69, 818 S.W.2d at 585.
In the present case, appellee did not practice fraud in order to obtain the order granting authority to settle the wrongful-death claim. It is undisputed that the petition for authorization to settle the wrongful-death claim did not contain a certificate of service representing to the trial court that the petition had been served upon appellants. This being so, failure to serve appellants cannot constitute fraud. There is no evidence that appellee represented to appellants that she would serve them with a copy of the pleadings if she petitioned the court to approve settlement. Nor is there evidence that appellee represented to the court that she had served appellants with the petition. This is simply a situation in which appellee petitioned the court for authority to settle the wrongful-death claim and did not serve appellants with the petition. The court then made its decision. The fact that the court may have reached a decision that appellants consider to be erroneous is not grounds to set aside an order after ninety days from the date of filing has expired. Smart v. Biggs, 26 Ark. App. 141, 760 S.W.2d 882 (1988). There is no evidence in this case that the order was obtained through fraud, and the trial court properly refused to set aside its order approving the compromise of the wrongful-death claim pursuant to Rule 60(c)(4).
Furthermore, applying statutory and case law, appellee was not required to serve appellants with notice of her petition to setde the lawsuit. Appellants rely on Rules 1 and 5 of the Arkansas Rules of Civil Procedure in arguing that they were entitled to be served with the petition to authorize settlement. Rule 1 of the Arkansas Rules of Civil Procedure provides that the rules shall govern the procedure in circuit, chancery, and probate courts in all actions of a civil nature with the exceptions stated in Rule 81. Rule 81 provides that the rules apply to all civil actions, “except in those instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure in which event the procedure so specified shall apply.” Rule 5 of the Arkansas Rules of Civil Procedure provides in part:
Except as otherwise provided in these rules, every pleading and every other paper, including all written communications with the court, filed subsequent to the complaint, except one which may be heard ex parte, shall be served upon each of the parties, unless the court orders otherwise because of numerous parties.
Rules 1 and 5 of the Arkansas Rules of Civil Procedure are not controlling in this matter.
Applying Ark. Code Ann. §§ 16-62-102 (Supp. 1995) and 28-49-104 (1987) and the case of Dukes v. Dukes, 233 Ark. 850, 349 S.W.2d 339 (1961), appellants were not entided to notice. Section 16-62-102, entitled “Wrongful death actions — Survival,” provides in pertinent part:
(b) Every action shall be brought by and in the name of the personal representative of the deceased person. If there is no personal representative, then the action shall be brought by heirs at law of the deceased person.
(d) The beneficiaries of the action created in this section are the surviving spouse, children, father and mother, brothers and sisters of the deceased person, persons standing in loco parentis to the deceased person, and persons to whom the deceased stood in loco parentis.
(e) No part of any recovery referred to in this section shah be subject to the debts of the deceased or become, in any way, a part of the assets of the estate of the deceased person.
(g) The judge of the court in which the claim or cause of action for wrongful death is tried or is submitted for approval of a compromise settlement, by judgment or order and upon the evidence presented at trial or in connection with any submission for approval of a compromise setdement, shah fix the share of each beneficiary, and distribution shah be made accordingly. However, in any action for distribution shah be made accordingly. . . .
(h) Nothing in this section shah limit or affect the right of probate courts having jurisdiction to approve or authorize settlement of claims or causes of action for wrongful death, but the probate courts shah consider the best interests of ah the beneficiaries under this section and not merely the best interest of the widow and next of kin as now provided by § 28-49-104.
Ark. Code Ann. § 16-62-102(b), (d), (e), (g), and (h) (Supp. 1995). Section 28-49-104 of the Arkansas Code Annotated provides in material part:
(a) When it appears to be for the best interest of the estate or in the case of an action for wrongful death or for the best interest of the estate or widow or next of kin, the personal representative, upon the authorization of or approval by the court, may effect a compromise settlement of any claim, debt, or obligation due or owing to the estate, whether arising in contract or tort, or he may extend, renew, or in any manner modify the terms of any obligation owing to the estate.
Ark. Code Ann. § 28-49-104(a) (1987).
In Dukes v. Dukes, 233 Ark. 850, 349 S.W.2d 339 (1961), the Arkansas Supreme Court addressed the appellant’s argument that the trial court erred in holding that he had received notice of the settlement of a wrongful-death action. The appellant was the decedent’s son, who appeared through his grandmother. The appellee was the decedent’s widow, who was the administratrix of the estate, and who, as the administratrix, had filed an action for wrongful death and settled it. The appellant challenged the appellee’s use of part of the setdement proceeds to pay debts of the estate. The supreme court rejected the appellant’s argument that the trial court erred in determining that he had been given notice of the administratrix’s actions, simply stating:
The probate court did find that the “exceptor had notice through counsel of steps taken by the administratrix” and it appears from the record that the matter of the settlement of the death claim was discussed informally between counsel. We do not think the matter of notice was important. In Reed, et al v. Blevins, et al, 222 Ark. 202, 258 S.W.2d 564, this court said:
“Under the foregoing Statute [Act 53 of 1883 which is similar to the one in question here] we have always held that when a personal representative was appointed, such personal representative was the only person who could maintain a suit for damages for wrongful death * * *” and in Southwestern Gas & Electric Company v. Godfrey, 178 Ark. 103, 10 S.W.2d 894, it was said that joining of party plaintiffs other than the personal representatives was error, though not prejudicial.
Id. at 851-52, 349 S.W.2d at 340. Applying this language from Dukes to the present case, it is apparent that appellee, as the personal representative, was the only person who could pursue the action for wrongful death, and appellants were not entitled to notice of the petition for authority to settle the claim.
The court in Dukes went on to address the appellant’s argument that the trial court erred in holding that the amount recovered in the wrongful-death claim should be applied to the debts of the estate. The court held that this was error, because:
“The damages are recovered in the name of the personal representative of the deceased, but do not become assets of the estate. * * * The administrator is the formal party to the maintenance of the action, and becomes a mere trustee for those entitled under the statute to the amount recovered.”
It therefore becomes evident that the administratrix has but one relationship to the recovery for a wrongful death and that is as a trustee of conduit and beyond that status, in these circumstances, she may not go.
Id. at 853, 349 S.W.2d at 341 (quoting in part Adams v. Shell, 182 Ark. 959, 961, 33 S.W.2d 1107, 1108 (1931)). Dukes supports appellee’s position that she was not required to serve appellants with her petition for authority to settle the wrongful-death claim. Appellee is the personal representative in this case and, thus, the only one authorized to pursue the wrongful-death claim. Additionally, the damages recovered from the settlement of the wrongful-death claim did not become assets of the estate.
In Cude v. Cude, 286 Ark. 383, 691 S.W.2d 866 (1985), the Arkansas Supreme Court explained that the personal representative of the decedent, not the beneficiaries, has the right to pursue a wrongful-death action and to choose an attorney for that purpose. In Cude, the appellant, who was the decedent’s widow, sought to have the administrator of the estate removed for unsuitability. The appellant contended that the administrator had made misrepresentations and had a conflict of interest. The administrator had asked two attorneys to pursue a wrongful-death claim and did not notify the appellant concerning the arrangement. The appellant hired her own attorneys to pursue a wrongful-death action on behalf of herself and her daughter. The supreme court noted that the appellant failed to understand that such an action can only be pursued by the administrator. The court explained:
We are cited to no authority showing that Burrel had a duty to consult with Angelia about his pursuit of a wrongful death action. The personal representative of the decedent, in this case the administrator, is clearly the party to bring the action. Ark. Stat. Ann. 27-907 (Supp. 1983). While the widow and daughter of the deceased are beneficiaries of any wrongful death recovery, Ark. Stat. Ann. 27-908 (Repl. 1979), we are cited to no case or statute giving them standing as parties to the action. Therefore, it was not they, but Burrel, whose duty and right it was to pursue the action, subject to the probate court’s approval, and to choose Counsel for that purpose.
Id. at 385-86, 691 S.W.2d at 867. In concluding, the court pointed out that the appellant could have counsel to see that her interests are protected, but that she would not be a party to the suit. Applying Cude to the present case, appellants would not be parties to any wrongful-death action. Appellee is the only one with the duty and right to file an action or settle the claim and to choose counsel for that purpose. It follows that appellants are not entitled to notice of the petition for authorization to settle the claim.
The court in Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990), cited both Dukes and Cude in rejecting the appellant’s argument that counsel retained by her, as a beneficiary, were entitled to fees on a portion of the wrongful-death proceeds attributable to the beneficiary. The court stated that, pursuant to Ark. Code Ann. § 16-62-102(b), every wrongful-death action shall be brought by the personal representative of the deceased person, if there is a personal representative. The court explained that the wrongful-death provisions do not create an individual right in a beneficiary to bring suit. The court further explained:
It is the duty of the personal representative, not the beneficiaries, to choose counsel to pursue a wrongful death claim pursuant to our wrongful death code provisions.
Id. at 362, 784 S.W.2d at 158 (citing Cude, supra). Thus, in the present case, it was appellee’s right and duty to choose counsel to pursue the wrongful-death claims and to decide how to contract with the counsel concerning his fee.
While this court does not approve of or encourage the practice of not serving the beneficiaries with notice of a petition for authority to settle a wrongful-death claim, the probate court did not err in denying the motion to set aside the order approving settlement and authorizing payment of thirty percent of the recovery to appellee’s attorney. The probate court correctly found that appellee did not perpetrate fraud on the court in obtaining the order. We affirm.
Pittman, Stroud, and Meads, JJ., agree.
Rogers, J., concurs. | [
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Andree Layton Roaf, Judge.
This is a workers’ compensation case. The appellant, Michael G. Lay, worked as a delivery driver for the appellee, United Parcel Service (“UPS”). Lay claimed that he sustained right tennis elbow as a result of repeated lifting of packages and an electronic clip board, and that he further injured the elbow when he attempted to lift an unusually heavy package. On appeal, he asserts that the Commission’s decision finding that he failed to prove a compensable injury from either a specific identifiable incident or rapid repetitive motion was not supported by substantial evidence. We affirm.
The evidence in this case and the disposition by the Commission may be summarized as follows. Michael Lay worked for twenty-one years as a delivery driver for UPS. His duties, in addition to driving, included picking up packages weighing up to 150 pounds, and typing a record of his transactions on a one-foot square, two-inch thick, four-to-five-pound electronic clip board called a diad board. Lay claimed that he was required to remove the board from its holder, which was mounted at arm’s length on the dashboard of his truck, and replace it, each time he made one of his estimated seventy-five to eighty daily pick-up or delivery stops.
Beginning in December of 1992, Lay began experiencing elbow problems, diagnosed later that month by Dr. Jeffrey DeHaan as “lateral epicondylitis,” commonly known as tennis elbow. Dr. DeHaan treated Lay with a cortisone shot. Over the next two years, Lay returned to Dr. DeHaan six times for the same treatment, but Dr. DeHaan’s notes indicated the effectiveness of the treatments steadily decreased.
Lay further claims that on January 30, 1995, he attempted to lift a box that weighed considerably more than the seventy pounds or less that was indicated by the lack of a warning label required by UPS on heavy packages. Lay testified that he immediately felt a “pop,” followed by elbow pain. Lay claims this injury was witnessed by several fellow-employees and that he immediately reported his injury to a supervisor, Allen Berry.
Lay did not seek immediate medical attention. He claims that he chose instead to endure the pain until his next scheduled appointment to receive a cortisone shot on February 10. When that treatment proved ineffective, he returned to be examined by a Dr. Alkire in the absence of Dr. DeHaan, on February 14. Dr. Alkire performed surgery on Lay’s right elbow three days later.
Lay returned to work on April 3, 1995, and worked his regular shift until a week later, when he took a four-day vacation. On April 17, 1995, while unloading computers, he again felt a “pop” and pain in his right elbow. Lay claims he also informed supervisory personnel of this injury. Dr. DeHaan performed a second surgery on Lay’s elbow, and Lay returned to work on June 4, 1995.
Lay did not file a Workers’ Compensation claim until after the first surgery on February 17, 1995. He ultimately sought temporary, total disability benefits from February 17, 1995, through April 3, 1995, and from April 20, 1995, through June 2, 1995, along with payment of his medical bills and compensation for a five percent disability to the right upper extremity. UPS denied that Lay suffered a job-related injury, and the ALJ found that Lay did not sustain a compensable injury attributable to either a specific identifiable incident or rapid repetitive motion. Lay appealed to the Workers’ Compensation Commission, which affirmed the ALJ, and adopted his findings.
Lay argues that the Commission should have found his injury compensable as either a “specific incident” injury, or as a “rapid repetitive motion” injury. We will address each theory in turn.
1. Specific incident
Lay was denied benefits under this theory because the Commission found that the medical evidence was silent as to the causal connection between his elbow problems and a specific traumatic incident as required by Ark. Code Ann. § 11-9-102(5) (Repl. 1996). Lay argues that his own testimony proves the specific time and place of the alleged incident, and that several other UPS employees witnessed the accident. Moreover, he argues that the medical evidence does not rule out the possibility that he did in fact suffer a traumatic injury on January 30, 1995.
It is well setded that determining the credibility of witnesses and the weight to be given to their testimony is exclusively within the province of the Commission. James River Corp. v. Walters, 53 Ark. App. 59, 918 S.W.2d 211 (1996). Moreover, 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. Jackson v. Circle T. Express, 49 Ark. App. 94, 896 S.W.2d 602 (1995). This court views the evidence and all reasonable inferences deducible therefrom in a light most favorable to the findings of the Commission and affirms that decision if it is supported by substantial evidence. Broadway v. B.A.S.S., 41 Ark. App. 111, 848 S.W.2d 445 (1993).
The Commission’s decision finding that Lay faded to prove that his injury was attributable to a specific incident is supported by substantial evidence. As the Commission noted, the medical records that were made part of the record fail to mention Lay’s alleged traumatic injury. The records do, however, indicate that the elbow injury was of long standing and gradually increasing severity. Dr. DeHaan’s notes for October 6, 1994, Lay’s last visit before his purported January 30, 1995, accident, are illustrative:
Michael is here F/U bilateral tennis elbow. He’s having a flareup of his problems and we once again went through a long dissertation on surgery vs. not surgery. Once again he wished injections in lieu of surgery. We’d do this and I’ll see him back here again on a prn basis.
Furthermore, the testimony of the only other witness to appear at the hearing besides Lay, Eddie Magness, the manager of the UPS distribution center where Lay worked, did not support Lay’s claim of a traumatic injury. Magness testified that he was not made aware of the alleged injury until after Lay’s first surgery on February 14, 1995, but that he had been aware that Lay was experiencing elbow problems for some time prior to the purported January 30, 1995, injury. Additionally, Magness denied that Allen Berry mentioned Lay’s alleged accident. Finally, Lay himself testified that he did not seek medical help for this injury until an already scheduled appointment some eleven days later.
Consequently, there is substantial evidence to support the Commission’s finding that Lay did not prove that he sustained a compensable traumatic injury on January 30, 1995.
2. Rapid repetitive motion
Lay also argues that loading and unloading packages, as well as pulling out and replacing the four-to-five pound diad board each time he made one of his seventy-five to eighty pick-up or delivery stops each day, constitutes rapid repetitive motion, and he asserts that Dr. DeHaan’s expert medical testimony provides the necessary causal connection to the etiology of his injury.
To find an injury compensable under this theory, a claimant must prove by a preponderance of the evidence that: (1) the injury arose out of and in the course of his employment; (2) that the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death; (3) that the injury was caused by rapid repetitive motion; (4) that the injury was a major cause of the disability or need for treatment. Ark. Code Ann. § 11-9-102(5) (Repl. 1996). Additionally, to be compensable, the injury must be established by medical evidence, supported by “objective findings.” Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1996).
In rejecting Lay’s claim for benefits, the Commission found that, while he had satisfied the requirements relative to objective medical evidence and “major cause,” he had failed to prove that the job he performed was either rapid or repetitive. Further, the Commission relied on their narrow interpretation of what constituted “rapid repetitive motion” stated in their opinion in Baysinger v. Air Systems, Inc., which this court subsequently reversed. 55 Ark. App. 174, 934 S.W.2d 230 (1996).
In Baysinger, the Commission found not compensable a welder’s carpel tunnel syndrome caused by hammering and grinding metal, because he failed to prove that it was caused by “rapid repetitive motion.” In reversing, this court found that the Com mission had interpreted Ark. Code Ann. § 11-9-102(5) (Repl. 1996) too narrowly, when it required performance of a single repetitive movement for prolonged periods of time for his injury to be compensable. On remand, this court ordered the Commission to consider Baysinger’s multiple tasks together to determine compensability.
We do not find the holding of this court in Baysinger to be dispositive of this case. The precise issue addressed by the court in Baysinger was whether multiple tasks involving different movements could be considered together to satisfy the repetitive element of “rapid repetitive motion.” In Lay’s case, the Commission determined that Lay had not proved that his job was either rapid or repetitive. Although the multiple tasks Lay performed, involving loading and unloading boxes, and lifting the clipboard may be considered together, as repetitive under the holding in Baysinger, the statute further requires that the motions be rapid. Lay asserts that his motions were rapid because he made nearly eighty deliveries per day in a ten-to-eleven-hour shift, an average of one every eight minutes. He does not assert that driving the delivery truck or making the deliveries constituted a part of the rapid repetitive tasks. Rather, he, in essence, claims that he briefly performed several different rapid motions, and that those motions were repeated at differing intervals, during which he was required to drive to various locations, make the deliveries, return to his truck, and drive to the next location.
Although we do not provide a comprehensive definition of what constitutes “rapid repetitive motion,” we conclude that the motions as described by Lay, separated by periods of several minutes or more, do not constitute rapid repetitive motion under the meaning of section 11 — 9-102(5) (A) (ii) (a). Consequently, we cannot say the Commission erred in ruling that Lay had not met his burden of proving that his job involved rapid repetitive motions.
Affirmed.
Griffen, J., agrees.
Crabtree, J., concurs. | [
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John E. Jennings, Judge.
This case presents a question in the law of insurance. The facts are not in dispute. On June 6, 1994, James Austin rented a 1994 Ford Probe from Trotter Ford in Pine Bluff. The rental agreement he signed provided that he would use the vehicle in conformity with all laws and would refrain from using it while under the influence of intoxicants. Later that day Mr. Austin became intoxicated and rear-ended a car driven by the appellee, Cleophes Thomas. Thomas sued Austin and obtained a default judgment for $17,500.00. In October 1995, Thomas filed a direct action against appellant, Liberty Mutual Insurance Company, the liability carrier for Trotter Ford. Liberty Mutual defended on the basis that Austin had violated the terms of the rental agreement by driving under the influence of alcohol. The circuit court granted Thomas’s motion for summary judgment and Liberty Mutual appeals. We affirm.
The circuit judge held that the supreme court’s decision in Commercial Union Ins. Co. v. Johnson, 294 Ark. 444, 745 S.W.2d 589 (1988), controlled. We agree. In Commercial Union, the liability carrier’s insured, Teresa Davis, loaned her car to Marty Self with the express restriction that he drive it only “on a county road for a short distance.” Instead, Self drove the car upon a highway and collided with a vehicle driven by Ray Johnson. Johnson obtained a judgment against Self and then sued Commercial Union directly. In granting summary judgment in favor of Johnson the circuit court held that, “Commercial [Union] may not deny coverage due to the fact that Teresa Davis issued limitations on the manner of usage of the insured automobile.” Commercial Union Ins. Co. v. Johnson, 294 Ark. at 446. The supreme court affirmed:
We hold that if permission has been given by the insured owner of the insured vehicle to a driver who then causes injury or property damage during the permissive use, insurance coverage pursuant to an omnibus clause is not affected by the fact that the permissive use may have exceeded or differed from that which was specified or intended by the owner.
Commercial Union at 445.
In the course of its opinion the supreme court considered both authority and policy. The court quoted with approval from Arndt v. Davis, 183 Neb. 726, 163 N.W.2d 886 (1969). There the Nebraska Supreme Court said:
Proponents of this rule [“initial permission rule”] justify it on the ground that it is good public policy to protect persons injured in automobile accidents against uninsured motorists. They fur ther justify the rule on the theory that the purpose of the omnibus clause is to broaden the coverage of the policy to cover all persons operating the insured automobile with the knowledge and consent of the insured owner and insist that once the owner has placed the automobile in the possession of the driver and consented to his operating the automobile, any deviation from the purposes for which the automobile was entrusted to the operator is immaterial.
Commercial Union, 294 Ark. at 448.
The Commercial Union court stated that other cases which have adopted the rule usually provide that it governs “short of theft or conversion.” 294 Ark. at 454. Appellant argues that Austin’s use of the vehicle while under the influence of alcohol constituted a conversion. Appellant notes that the Restatement (Second) of Torts § 228 (1965) provides that “[o]ne who is authorized to make a particular use of a chattel, and uses it in a manner exceeding the authorization, is subject to liability for conversion to another whose right to control the use of the chattel is seriously violated.” The Restatement (Second) of Torts § 222A, in defining what constitutes a conversion, gives these examples in comment d:
25. A rents an automobile to B to drive to X City and return. In violation of the agreement, B drives to Y City, ten miles beyond X City. No harm is done to the car. This is not a conversion.
26. The same facts as in illustration 25, except that while the car is in Y City it is seriously damaged in a collision, with or without negligence on the part of B. This is a conversion.
Obviously, if a technical conversion such as the one given in the example in the Restatement (Second) of Torts provided an exception to the initial-permission rule, the plaintiff in Commercial Union would not have prevailed. This is not, however, what the supreme court had in mind. The court said, “Although the question is not before us now, we agree that an insurer should not be liable to a thief or a person who has no permission to use a vehicle and who converts it to his or her own use.” Commercial Union, 294 Ark. at 454 (emphasis added).
Appellant also argues that Austin’s gross misuse of the vehicle warrants a weighing of competing public policies and that the State’s interest in protecting the public from drunk drivers outweighs the competing interest in protecting the public from uninsured motorists. The argument is based in part on the concurrence of three justices in Commercial Union written by Justice Glaze:
The majority now adopts a rule which extends insurance coverage to all situations, regardless of how grossly the person using the vehicle violates the original terms of the entrustment or bailment. I have a strong reluctance to adopt such an all-inclusive rule, especially when the facts here do not require it and the parties do not brief or argue the various rules set out in the majority opinion.
Suffice it to say, there are jurisdictions — noted by the majority — that have rejected the “initial permission” or “Hell or High Water” rule the majority adopts today. There are compelling and sound reasons to reject a rule that extends insurance coverage to situations where a person grossly violates the trust of an insured who permits the person to use the insured’s vehicle. Until the proper facts and arguments are before the court on this issue, the court should limit its decision, leaving open the issue of whether Arkansas should adopt such a rule.
While we might weE appreciate the point made by the concurring justices, our duty is to foüow the majority decision. Beyond that, we agree with the appeEant that this State has a strong pohcy of discouraging driving whEe intoxicated and also has a policy against driving through stop signs. Both are forbidden by the rental agreement in the case at bar. It seems unlikely, however, that a clause in a liability insurance contract relieving the carrier from liability because of its insured’s violation of these or any other traffic laws would be upheld. Arkansas Code Annotated section 27-19-713(^(1) (Repl. 1994) provides that no violation of a motor-vehicle liability policy shaE defeat or void that insurance policy. A state’s public policy is best evidenced by its statutes. See Guaranty Nat’l Ins. v. Denver Roller, Inc., 313 Ark. 128, 854 S.W.2d 312 (1993). If, as it seems, a liability carrier may not escape liabEity based on a violation of law by its own insured, may it then obtain the same object by way of restrictions contained in its insured’s rental agreement?
We conclude that the supreme court’s decision in Commercial Union governs this case, in principle; that a technical conversion under the law of torts does not provide an exception to the initial-permission rule; that public policy considerations do not require reversal; and that the decision of the trial court must be affirmed.
Affirmed.
Meads and Roaf, JJ., agree. | [
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Judith Rogers, Judge.
The appellants, Byron McKimmey and Jack Mobbs, appeal from an order of summary judgment in favor of appellees Randall Fielder, individually and as executor of the Estate of Ruby Fielder, Charles Munnerlyn, and Eddie Garrett. For reversal, appellants advance several issues in which they argue that the trial court erred in granting summary judgment against them. On cross-appeal, Randall Fielder contends that the trial court erred in denying his motion for an attorney’s fee. Because the abstract of this case is flagrantly deficient, we affirm the decision of the chancellor in all respects.
Rule 4-2 (a) (6) of the Rules of the Supreme Court and Court of Appeals provides that the appellant’s abstract or abridgement of the record should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision. As far as we can tell, this case involves a failed real estate transaction. The abstract of this two-volume record consists of a single paragraph, three and one half pages long. It is a narrative which only describes the course of the proceedings below with only vague references to the pleadings, documents and other filings contained in the record. While nearly all of the required pleadings and orders are noted in the abstract, their essential components are missing. The abstract, such as it is, is confusing and leaves us with no clear understanding of the record.
More importantly, the abstract is by no means an impartial condensation of the record, without comment or emphasis, as is required by the rule. It represents appellants’ own version of events, and it is interspersed with argument in such a manner that it is difficult to distinguish between what the record would show and what may appear to be only argument. As one example, the abstract states, “A hearing was scheduled on various motions, but attorneys Brazil and Adkisson entered an Ex Parte discussion with Judge Baker the day before the hearing was scheduled. As a result the hearing was canceled.” No reference to any page in the transcript is given to support this statement.
When an abstract is flagrantly deficient, we may affirm for noncompliance with the abstracting requirements. Ark. R. Sup. Ct. 4-2(b)(2). The abstract here is totally inadequate for an understanding of the issues raised in this appeal. Therefore, we affirm based on appellants’ failure to submit a proper abstract. See Carmical v. City of Beebe, 316 Ark. 208, 871 S.W.2d 386 (1994); 4-Way Tire & Battery, Inc. v. Int'l Buyers Corp., 263 Ark. 561, 566 S.W.2d 143 (1978). We do note that appellants have attached verbatim copies of the order of summary judgment and an option agreement, among other things, as an appendix to their brief. However, that procedure does not meet the requirements of the. abstracting rules. Jackson v. Kinark Corp., 282 Ark. 548, 669 S.W.2d 898 (1984). We also see no reason why these matters could not have been abstracted in words rather than included as an appendix to the brief.
The abstracting requirements also apply to cross-appellants. McPeek v. White River Lodge Enterprises, 325 Ark. 68, 924 S.W.2d 456 (1996). While Mr. Fielder argues on cross-appeal that the trial court erred in denying his motion for an attorney’s fee, he did not provide a supplemental abstract, and appellant’s abstract does not reference such a motion or any ruling made by the trial court. Both the motion and the trial court’s ruling are material components of the record necessary for a resolution of the issue raised. As it stands, we are in no position to say that this issue was even raised or considered by the trial court. Consequently, we cannot decide this point on appeal. Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996).
Affirmed.
Bird and Roaf, JJ., agree. | [
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Terry Crabtree, Judge.
Appellant Lilly Kildow appeals the decision of the Workers’ Compensation Commission affirming the Administrative Law Judge’s order denying benefits for her Carpal Tunnel Syndrome (CTS). The Commission based its denial of benefits on appellant’s failure to prove adequate rapidity of motion to satisfy the Commission’s interpretation of “rapid repetitive motion injury.” See Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) (1996).
Appellant urges two points for reversal. First, she argues that the Commission’s interpretation of the statute requiring proof of rapid repetitive motion is erroneous in light of the specific inclusion of CTS as a compensable injury in the statute. Second, appellant argues that the Commission’s denial of benefits, even under its interpretation of the “rapid repetitive” dispute, is not supported by substantial evidence. We reverse based on a lack of substantial evidence to support the Commission’s decision; however, in doing so, we reject appellant’s statutory construction argument and affirm the Commission’s requirement that carpal tunnel syndrome claimants must prove rapid repetitive motion.
I. Facts
Appellant was employed by appellee Baldwin Piano Company from February 1, 1993, until March 7, 1994. Her duties consisted primarily of manning a station on an assembly line where she secured small electrical components to a l/8th-inch-thick board with three to five small wires that were two to three inches in length. Appellant typically gripped the board with her left hand while squeezing and twisting the wires with pliers in her right hand, and then sent her completed task to the next station on the assembly line. She testified that she performed these operations over and over again for eight to ten hours a day, five to six days a week, with two fifteen-minute breaks, a thirty-minute lunch break, and short restroom breaks as needed for nearly a year. Beginning in January of 1994, she complained to her supervisor of pain in her wrists. The pain worsened until she saw the company physician, Dr. David Ureckis, on March 10, 1994.
Dr. Ureckis’s initial report noted a nerve conduction velocity test suggesting borderline CTS. Dr. Ureckis put appellant in splints, took her off work, prescribed anti-inflammatory medication, and referred her to Dr. Tom Patrick Coker for surgical evaluation.
Dr. Coker’s initial report from March 31, 1994, stated that she had “an EMG which confirms a right carpal tunnel. The left wrist was non-significant.” Appellant was seen by Dr. Coker seven times and completed a multi-visit course of physical therapy over the next several months.
Appellant was involved in a motor-vehicle accident on August 20, 1994, which complicated her medical records with chiropractic and psychological treatment apparently unrelated to her workers’ compensation claim. Eventually, she was referred to another specialist, Dr. David A. Davis, a neurologist, who opined:
Her constellation of symptoms would suggest reflex sympathetic dystrophy, perhaps supported by the bone scan. I am unable to make that diagnosis because of the absence of significant temperature or skin changes, and because of the give way weakness and peculiar hypethesia, both of which suggest symptom magnification. I’ll be discussing with you referring her to the University of Arkansas Medical School for evaluation in that regard.
Appellant was referred to UAMS, and treated by Dr. Harris Gellman, a professor and Chief of the Hand Surgery Service. Dr. Gellman reviewed the tests of the previous treating physicians and administered additional tests before recommending carpal tunnel release surgery.
Appellee denied coverage for appellant’s CTS and medical treatment. The Administrative Law Judge held that appellant’s activities were not sufficiently rapid, and the Commission agreed. Appellant brings this appeal, raising two points.
II. 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). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993). The issue is not whether this court might have reached a different result from that reached by the Commission or whether the evidence would have supported a contrary finding. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). If reasonable minds could reach the result shown by the Commission’s decision, we must affirm the decision. Id.
Even if the Commission’s reading of the statute requiring claimants to prove both rapid and repetitive motion is upheld, appellant still claims that the facts here do not amount to substantial evidence to support a finding that her work was not sufficiently rapid to qualify as a rapid repetitive motion injury. The question for this court is whether reasonable minds would accept the finding that appellant’s work was not “rapid” based on the evidence in the record.
More specifically, the relevant finding is found in the opinion of the Commission, along with some explanation of the Commission’s view of the proof required to establish carpal tunnel syndrome as compensable:
The claimant failed to prove by a preponderance of the evidence that her carpal tunnel syndrome was cause [sic] by rapid repetitive motion. Although the Act does not establish any guidelines with regard to the extent of motion necessary to satisfy the requirement of rapid motion or with regard to the nature of the motion necessary to satisfy the requirement of repetitive motion, we held in Throckmorton v. J&J Metals, FC Opinion filed August 14, 1995 (E405318), that “the requirement that the condition be caused by rapid repetitive motion requires proof that the claimant’s employment duties involved, at least in part, a notably high rate of activity involving the exact, or almost exactly, same movement again and again over extended periods of time.” We further held that whether the employment duties satisfied the statutory requirement is a fact question to be decided based upon the evidence presented in each case.
The claimant has failed to prove by a preponderance of the evidence that her injury was caused by rapid repetitive motion. There is simply no evidence in the record to prove that the claimant’s activities fall within the definition of rapid.
The only evidence regarding appellant’s job activities came from her own testimony before the ALJ. No company representatives disputed her account of her daily tasks.
In denying benefits for appellant’s CTS, the Commission relied on the requirements for gradual-onset injuries announced in its own opinion, Throckmorton, supra. Notably, the Commission defines the two terms, “rapid repetitive,” together as a single, interrelated concept.
However, our holding in Baysinger v. Air Systems, 55 Ark. App. 174, 934 S.W.2d 230 (1996), rejected the Commission’s language “exact, or almost exactly, the same movement again and again.” In fight of our holding in Bay singer, the Commission’s decision in Throckmorton is erroneous, as a matter of law, to the extent that it requires claimants to prove “exact, or almost exactly, the same movement again and again.”
In discerning a definition for the term “rapid repetitive” , we are bound to give the words their ordinary meaning, give effect to the intent of the legislature, and make use of common sense. State Office of Child Support Enforcement v. Harnage, 322 Ark. 461, 910 S.W.2d 207 (1995).
In its ordinary usage, rapid means swift or quick. Concise Oxford Dictionary 1137 (9th Ed. 1995). In the present case, appellant testified that her job entailed assembling electrical components on boards by gripping and twisting short wires on small pieces for eight to ten hours a day, five to six days a week on an assembly fine. Further, when appellant returned to work under her doctor’s fight-duty orders, she was restricted to placing no more than one board per minute onto the line. It is clear to us that reasonable minds could not agree that appellant’s testimony does not establish that her job did involve swift or quick motion. While testimony on how many boards appellant assembled in a given day might better prove rapidity, it is a matter of common sense that reasonable minds would expect work on an assembly line to move at a swift or quick pace.
Further, our recent opinion in Baysinger v. Air Systems, Inc., 55 Ark. App. 174, 934 S.W.2d 230 (1996), stated, “We feel that the Commission’s interpretation of the statute is too restrictive and precludes multiple tasks — such as the hammering and grinding motions performed by claimant — from being considered together to satisfy the requirements of the statute.” Id. at 176, 934 S.W.2d at 231. While Baysinger addressed the repetitive nature of a claimant’s CTS, and the Commission in this case takes issue with the “rapid” prong of the rapid-repetitive analysis, Baysinger is analogous to the facts here, and supports reversal based on the fact that the Commission’s application of “rapid” is not supported by substantial evidence.
The appellant in Baysinger was a metal worker who used his hands to shape, grind, polish, and pound pieces of metal with heavy vibrating tools. We remanded to the Commission for a finding of whether such exertion, considered together, would satisfy the requirements of the statute. Here, when considered together, reasonable minds could not agree that appellant’s assembly-fine work of gripping, twisting, and squeezing wires to secure small components to boards all day long does not qualify as “rapid repetitive” in the ordinary and generally accepted meaning of the words. Therefore, we reverse and remand to the Commission for an award of benefits.
III. Statutory Construction
Next, appellant argues that the Commission’s interpretation of Ark. Code Ann. § 11-9-102(5) (A) (ii) (a) (1996) is erroneous based on the plain meaning of the Act, the legislative intent, and various maxims of statutory interpretation. Specifically, appellant argues that it is unnecessary to prove rapidity and repetition when there is a diagnosis of CTS since CTS is specifically defined as compensable in the statute. The relevant part of the statute reads:
(5) (A) “Compensable injury” means:
(ii) An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:
(a) Caused by rapid repetitive motion. Carpal tunnel syndrome is specifically categorized as a compensable injury falling within this definition;
Ark. Code Ann. § 11-9-102 (5)(A)(ii)(a) (1996) (emphasis added).
Commissioner Humphrey, dissenting from the Commission’s decision in the present case, best stated appellant’s argument for applying the statute to CTS claimants:
The plain language of the statute in question supports claimant’s contention, in that it explicitly states that CTS is both compensa-ble and falls within the definition of “rapid repetitive motion” — without provision or regard for how either “rapid” or “repetitive” are themselves defined. Thus, Ark. Code Ann. 11-9-102(5) (A) amounts to no less than an affirmative declaration that CTS is, without limitation, a compensable injury already within the category of injuries caused by rapid repetitive motion.
(Emphasis in original.)
Appellant discusses the law of statutory interpretation for her argument that CTS is specifically categorized as compensable. However, the first rule in considering the meaning of a statute is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Henson v. Fleet Mortg. Co., 319 Ark. 491, 892 S.W.2d 250 (1995). While this court has frequently cited the legislative intent expressed in Act 796 of 1993 mandating strict and literal construction of the workers’ compensation statutes, and admonishing the court to leave policy changes to the legislature, this colorful history does not change the court’s duty to settle disputes arising from the questioned language. Additionally, basic principles of administrative law mandate that we give some deference to an agency’s construction of statutes, and we view the Commission’s construction as persuasive, unless it is clearly wrong. Ark. Dept. of Human Serv. v. Hillsboro Manor Nursing Home, Inc., 304 Ark. 476, 803 S.W.2d 891 (1991).
While we reverse for lack of substantial evidence supporting the Commission’s decision, we affirm the Commission on its holding that carpal tunnel syndrome claimants must prove rapid repetitive motion to sustain a claim for a compensable injury. In so holding, we read the challenged language of the statute in pari materia, or in context with the entire section defining compensable injuries, we view the Commission’s construction as persuasive, and we hold that carpal tunnel syndrome is not exempted from the proof requirement of other gradual-onset injuries, but is merely listed as an example of a type of gradual-onset injury that may be proven by evidence of rapid repetitive motion.
Affirmed in part, reversed in part, and remanded for an award of benefits.
Stroud and Roaf, JJ., agree.
Meads and Neal, JJ., concur.
Griffen, J., dissents.
At least one commentator has noted the anomalous inclusion of “rapid” in Arkansas’s statute, and suggested that, “Possibly, the term rapid does not have any real significance in the 1993 Act. The addition of the term may be the result of unartful drafting arising out of the common knowledge that many repetitive motion cases involve rapid repetitive motion.” John D. Copeland, The New Arkansas Workers’ Compensation Act; Did the Pendulum Swing Too Far?, 47 Ark. L. Rev. 1, 15 (1994).
We are mindful that assigning meaning to the term “rapid repetitive” may inappropriately exclude valid work-related carpal tunnel syndrome claims in certain fields of work that are characterized not by the speed of the work, but by abnormally strenuous or meticulous activity with the hands. We welcome from the legislature their promise in Act 796 of 1993 stating in part, “In the future if such things as . . . the extent to which any physical condition, injury or disease should be excluded from or added to coverage by the law ... it shall be addressed by the General Assembly . . . and should not be done by the courts.” Id. at 2256. | [
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Andree Layton Roaf, Judge.
The appellant, Monid Burl Mearns, Jr., appeals from a decree of divorce, raising five points for reversal. Mr. Mearns asserts that the chancellor erred in: 1) setting the amount of child support he was ordered to pay; 2) refusing to award him alimony from the appellee, Joyce Coffman Mearns; 3) refusing to award him seventy-five per cent of the marital property; 4) finding him in contempt for planting a listening device in Mrs. Mearns’s telephone; and 5) awarding Mrs. Mearns $8,000 of the $10,000 realized from the sale of the parties’ 1961 Corvette. We hold that the chancellor abused his discretion in making the award of child support and in refusing to award alimony to Mr. Mearns, and reverse and remand on those two issues. However, we find no error with respect to the other three points raised by Mr. Mearns and affirm as to those issues.
On October 10, 1994, Monid Burl Mearns, Jr. (Monid), appellant herein, filed suit for divorce from his wife of 20 years, the appellee Joyce Coffman Mearns (Joyce). Monid had been the family’s principal breadwinner for the first fifteen years of the marriage. When the Mearnses married, Joyce stopped working to raise the couple’s two children. When the children reached school age, Joyce began working part-time.
In 1986, Dow Chemical closed its facility in Russellville where Monid worked on the production line. Rather than relocate to a Dow facility in Texas, Monid chose to remain in Arkansas, purportedly at his wife’s behest. He invested all of his Dow retirement, savings, and stock in an auto-parts business. Later, Joyce convinced him that the family should also purchase a chicken farm from her relatives for her to operate.
However, shortly after they purchased the chicken farm in 1989, Joyce received a full-time position with the U.S. Postal Service, and Monid found that he could not operate both the auto parts store and the chicken farm. The Mearnses decided to sell the auto parts business and applied the proceeds to the mortgage debt on the chicken farm. Consequently, in 1989, raising chickens became Monid’s full-time occupation. While chicken farming provided some tax advantages, it afforded the family relatively little regular income, so Joyce became the family’s primary wage-earner. Monid also began to suffer from back and prostate problems as well as asthma and arthritis.
In 1994, Joyce allegedly left Monid for another man, taking the parties’ teenage son with her. The break-up was acrimonious. Monid sold for $10,000 a 1961 Corvette that the Mearnses had hoped would bring as much as $35,000. Monid also apparently planted a listening device in Joyce’s telephone. Joyce liquidated certain marital assets, and gassed Monid with pepper spray after ransacking his residence.
In the final decree, the chancellor awarded child support in the amount of $37.50 per week, without making reference to the Arkansas child-support chart or making any other findings of fact; denied Monid’s prayer for alimony; divided equally all marital property not specifically apportioned by agreement of the parties; and found that the value of the 1961 Corvette was $16,000 and awarded Joyce $8,000 of the $10,000 sale price. Additionally, the chancellor found Monid in contempt for bugging Joyce’s telephone and Joyce in contempt for committing battery upon Monid with pepper spray, and ordered each party to pay the other $500 in attorney fees.
Í. Child Support
At the conclusion of the final hearing, Monid moved in open court to have his child support reduced from $37.50 per week, the amount indicated by his original support affidavit dated October 24, 1994, which he had agreed to pay at the initial separation hearing. Monid argues that his income is below the corresponding family support chart amount awarded by the court. He con tends that the chancellor should have calculated his child-support obligation from his current support affidavit, dated October 19, 1995, which showed that his net income from all farming activities over the last ten months was a loss of $347.18. Moreover, he contends that his sole source of income was his chicken farm, and the court required him to abandon that endeavor to facilitate the sale of the farm.
Ordinarily, the amount of child support lies within the sound discretion of the chancellor, and the chancellor’s findings will not be disturbed on appeal in the absence of a showing of an abuse of discretion. Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990). While other factors may be considered in determining support, reference to the family support chart is mandatory. Black v. Black, 306 Ark. 209, 812 S.W.2d 480 (1991). A chancellor is allowed by statute to deviate from the family support chart, but the chart’s presumptions shall be rebutted,
[o]nly upon a written finding or specific finding in the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the family support chart ....
Ark. Code Ann. § 9-12-312(a)(2) (Supp. 1995).
Regarding self-employed payors, like Monid, the basis for support:
shall be calculated based on last year’s federal and state income tax returns and the quarterly estimates for the current year. Also the court shall consider the amount the payor is capable of earning or a net-worth approach based on property, lifestyle, etc.
In re: Guidelines for Child Support, 314 Ark. 644, 647, 863 S.W.2d 291, 294 (1993) (emphasis added). Clearly, this directive contemplates the continued self-employment of the payor. By ordering the chicken farm sold, the court relieved Monid of the source of income upon which his child support was based; his future income from the farm will be zero. Accordingly, simply assessing the same level of support that was based upon the income from his then viable business misapplies the guidance found in the supreme court’s per curiam order. See Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 130 (1993).
Although the chancellor’s deviation from the family support chart without making appropriate findings of fact constitutes an abuse of discretion, it does not relieve Monid of his obligation to support his child. We therefore reverse and remand the child-support issue to the chancery court to reconsider Monid’s future child-support obligation, consistent with the dictates of Ark. Code Ann. §9-12-312(a)(2).
2. Alimony and Property Settlement
Although Monid raises as separate issues the chancellor’s decision to award him neither alimony nor a disproportionate share of the marital property, because these arguments are related, we discuss them together.
Monid argued that the equities dictated that he should have been awarded both alimony and a larger share of the marital assets, because he needed these provisions to survive. While Joyce disputed Monid’s entitlement to alimony and a more advantageous property settlement, she nonetheless conceded that Monid’s long work history primarily involved manual labor, and although she claimed that he was a good auto-parts salesman, she nonetheless described his auto-parts store as a failure. Moreover, Joyce verified that Monid indeed had the health problems that he claimed.
While it is true that an award of alimony is not mandatory, and is solely within the chancery court’s discretion, Ducharme v. Ducharme, 316 Ark. 482, 872 S.W.2d 392 (1994), we can reverse if the chancellor has failed to address the equities involved. See Stevens v. Stevens, 271 Ark. 248, 608 S.W.2d 17 (1980). We find that the instant case is just such a situation and is analogous to Warren v. Warren, 270 Ark. 163, 603 S.W.2d 472 (Ark. App. 1980), in which we reversed a chancellor’s denial of an alimony award to an ex-wife of fifteen years, who lacked special job skills, and did not receive a property settlement that was substantially more than fifty percent of the marital assets.
The primary factors to be considered in the award of alimony are the needs of the spouse requesting alimony and the other’s ability to pay. Mulling v. Mulling, 323 Ark. 88, 912 S.W.2d 934 (1996). In Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980), the supreme court articulated a list of factors that a court may consider determining whether to award alimony. The list includes:
[1] the financial circumstances of both parties,
[2] the couple’s past standard of living,
[3] the value of joindy owned property,
[4] the amount and nature of the income, both current and anticipated, of both husband and wife,
[5] the extent and nature of the resources and assets of each of the parties,
[6] the amount of income of each that is “spendable,” available to each of the parties for the payment of living expenses,
[7] the earning ability and capacity of both husband and wife,
[ 8 ] property awarded or given to one of the parties, either by the court or the other party,
[9] the disposition made of the homestead or jointly owned property,
[10] the condition of health and medical needs of both husband and wife,
[11] the duration of the marriage,
[12] the amount of child support.
(citations omitted)
Id. 268 Ark. at 124, 594 S.W.2d at 20.
When we apply the Boyles factors to the instant case, we are compelled to conclude that the chancellor abused his discretion in fading to make an award of alimony to Monid. The evidence reflects that Monid is unemployed and without independent financial means, while Joyce has a secure job paying more than $40,000 per year, in addition to being the beneficiary of a trust fund set up by her parents. For most of the marriage, the Mearnses lived a comfortable lifestyle, residing in a single family residence and able to afford a variety of cars and trucks. The value of all the parties’ property, real and personal, does not appear from the record to be exceptional, and the proceeds from one of the most valuable assets, the 1961 Corvette, was divided $8,000/ $2,000 in Joyce’s favor. As already noted, Monid is unemployed, but more importandy, at age 57 and in declining health, and without a college degree or professional license, it is unlikely that he will find a job that will enable him to approach a standard of living comparable to what he enjoyed during the marriage. Conversely, Joyce has a secure income, and during the pendency of the divorce was able to place a substantial portion of her salary into savings. Moreover, Joyce has retained the main instrumentality that enables her to earn her livelihood, her specially adapted delivery vehicle, while the court ordered the sale of the chicken farm that Monid had been operating. At age 43, Joyce is also apparently in better health than Monid. There is considerable evidence in the record documenting Monid’s prostate and back problems, as well as asthma and arthritis, all of which was corroborated by Joyce’s testimony. This is also a marriage of long duration: the Mearnses had been married some 20 years at the time they separated.
Because we find that the evidence in this case clearly supports an award of alimony to Monid, we reverse and remand to the chancellor to set an appropriate amount.
With regard to Monid’s argument for a greater share of the marital property, alimony and property settlements are complimentary devices that a chancery court must employ to make the dissolution of a marriage of long standing as equitable as possible. See Boyles v. Boyles, supra; see also Tortorich v. Tortorich, 50 Ark. App. 114, 902 S.W.2d 247 (1995). While we agree with Monid’s argument that the same facts and circumstances that would justify an award of alimony would also support an award of a disproportional share of the marital property, our review of the record supports Joyce’s contention that virtually all of the marital property was disposed of by agreement of the parties, leaving only her savings accounts and retirement subject to division by the court. We note that the value of these assets apparently do not much exceed $10,000 and therefore, we cannot conclude that, in light of our decision to direct the chancellor to award alimony, giving him a greater than fifty percent share of these assets would better redress the inequity complained of. We therefore direct the chancellor to look only to alimony to provide for Monid.
3. Contempt
Monid argues that there was no basis in law or fact for finding that he violated the temporary order, which enjoined the parties in “any manner from molesting or harassing each other.” We disagree. The finding of contempt is a factual finding that will not be reversed unless it is clearly against the preponderance of the evidence. Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761 (1991). A review of the evidence presented at the contempt hearing clearly justifies the chancellor’s finding.
An eavesdropping device was found on Joyce’s phone by a telephone company employee, after Monid had unmonitored access to the instrument. Monid admitted at the hearing that he had used Joyce’s phone after the separation hearing. A transmitter was also found attached to Joyce’s phone fines, and Monid admitted that he was familiar with how to record a telephone conversation, and knew where to buy electronic equipment designed for that purpose. William Parks, the constable of Hector, Arkansas, observed Monid sitting in his truck, wearing headphones, within receiving range of the device, which could be received by a standard FM radio, and Monid confirmed that he was at that location on three or four occasions. Finally, Joyce testified that she did not place the device on her own phone, and that she felt “harassed” and frightened by Monid sitting outside her residence. Consequently, we cannot say that the finding of contempt was clearly against the preponderance of the evidence.
4. Apportionment of the Corvette Proceeds
In its November 3, 1994, Temporary Order, the chancellor directed Monid to repurchase the 1961 Corvette that he had sold for $10,000 shordy before fifing his petition for divorce. The buyer refused to reconvey the automobile, and at the final hearing, the court heard testimony as to its value. In the final decree, the chancellor awarded Joyce half of the value that the court assigned to the car, or $8,000. Monid argues that the sale was proper and that the chancellor erred in dividing the proceeds disproportionately.
A chancellor has discretion to determine whether an offset is appropriate when parties to a divorce expend marital property during the pendency of proceedings. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993). Among the factors to be considered is whether overreaching occurred. Id. The court may even intervene to defeat a fraudulent act by an estranged spouse before a petition for divorce is filed. See Renn v. Renn, 207 Ark. 147, 179 S.W.2d 657 (1944). We find that the chancellor properly exercised his discretion in this case.
Monid also argues that the court abused its discretion in qualifying Joyce’s expert witness who testified about the value of the Corvette. We find this argument has no merit. Under Rule 702 of the Arkansas Rules of Evidence, the test for admissibility of expert testimony is whether specialized knowledge will aid the trier of fact in understanding the evidence or in determining a fact in issue. Williams v. Ingram, 320 Ark. 615, 899 S.W.2d 454 (1995). Whether to allow a witness to give expert testimony rests largely within the sound discretion of the trial court, and that determination will not be reversed absent an abuse of that discretion. Wade v. Grace, 321 Ark. 482, 902 S.W.2d 785 (1995). Absolute expertise concerning a particular subject is not required to qualify a witness as an expert. Dildine v. Clark Equip. Co., 282 Ark. 130, 666 S.W.2d 692 (1984).
Joyce’s witness, John Rogerson, a serious collector and Corvette enthusiast for twenty-six years, had entered Corvettes that he owned in classic auto shows, was familiar with the market value of older Corvettes, and had actually driven the car in question. We find no abuse of discretion in allowing Mr. Roger-son to offer expert testimony.
Finally, Monid argues that the value set by the court was clearly erroneous. He recounts a number of minor mechanical defects, and points to the testimony of his own expert witness who appraised the value as between $10,000 and $12,000 as support for his contention that the chancellor’s finding was clearly against the preponderance of the evidence. We disagree.
We will not reverse a chancellor’s finding of fact unless the decision was clearly erroneous. Jones v. Jones, supra. There is certainly substantial evidence to support the chancellor’s finding. Experts for both Monid and Joyce agreed that the value of the Corvette exceeded $10,000, as did Monid himself, when he testified at the separation hearing. Moreover, it was undisputed that the Mearnses had hoped to get as much as $35,000 out of the vehicle when they sold it. Joyce testified that there was over $20,000 invested in the car, not counting-the considerable number of hours Monid had spent refurbishing it. Finally, $16,000 was within the range of values stated by expert testimony. We find that the court was not clearly erroneous when it found the value of the Corvette to be $16,000.
Affirmed in part; reversed in part and remanded.
Bird, Griffen, and Neal, JJ., agree.
Pittman and Jennings, JJ., dissent. | [
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Terry Crabtree, Judge.
Appellant Floyd Fulkerson leased farmland along an oxbow lake on the Arkansas River, described as Willow Beach Island, from appellees Waymon Calhoun and Pauline Watson from roughly 1946 to 1992. In 1973, appellant acquired a deed to property bounding the lease held, known as the Bryson Place, purporting to convey the southern half of section 18, which encompasses the southeastern quarter of Willow Beach Island. In 1992, appellant acquired a deed from the Commissioner of State Lands purporting to convey the northern half of section 18, encompassing the northeastern quarter of the island. This deed was based on an erroneous certification from the Pulaski County Assessor declaring the land tax delinquent. Less than three months later (in violation of the deed confirmation requirements of Ark. Code Ann. § 18-60-607 (1987)), appellant presented the deed from the Land Commissioner to the chancery court seeking to quiet title in the parcel, without naming appellees as interested parties.
Appellant then instituted the present action to quiet title in Willow Beach Island, alleging title in fee simple to the south half of section 18, partly encompassing Willow Beach Island, and naming appellees as interested parties. Appellees counterclaimed to quiet title in Willow Beach Island and to declare the Commissioner’s deed invalid.
The chancellor ruled in favor of appellees, citing the erroneous certification of the tax delinquency of the disputed land that was the basis for the Commissioner’s deed, the lack of notice and premature confirmation of the Commissioner’s deed in chancery court, the appellant’s actual notice of appellees’ conflicting claims to the property, and appellees’ survey and expert testimony estab- fishing ownership in appellees of all of Willow Beach Island by metes and bounds.
Appellant brings this appeal challenging the chancellor’s decree invalidating appellant’s deeds and quieting title in appellees.
While both parties to this appeal discussed at length the law of accretions and reliction, we find that neither principle of water law is necessary to an understanding of the chancellor’s decree or relevant to the issues appealed. Further, appellant’s failure to follow the rules on abstracting the relevant portions of the record prevents us from engaging in a meaningful review of the issues raised on appeal and requires us to affirm for noncompliance with the rule.
Arkansas Supreme Court Rule 4-2(a)(6) discusses what a litigant must present to the court for successful consideration of an appeal. In pertinent part, the rule reads:
The appellant’s abstract or abridgment of the record should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision. A document, such as a will or contract, may be photocopied and attached as an exhibit to the abstract. However, the document or the necessary portions of the document must be abstracted. Mere notation such as “plaintiff’s exhibit no. 4” is not sufficient. On a second or subsequent appeal, the abstract shall include a condensation of all pertinent portions of the record filed on any prior appeal. Not more than two pages of the record shall in any instance be abstracted without a page reference to the record. In the abstracting of testimony, the first person (i.e., “I”) rather than the third person (i.e., “He, She”) shall be used. The Clerk will refuse to accept a brief if the testimony is not abstracted in the first person or if the abstract does not contain the required references to the record. In the abstracting of depositions taken on interrogatories, requests for admissions, and the responses thereto, and interrogatories to parties and the responses thereto, the abstract of each answer must immediately follow the abstract of the question. Whenever a map, plat, photograph, or other similar exhibit, which cannot be abstracted in words, must be examined for a clear understanding of the testimony, the appellant shall reproduce the exhibit by photography or other process and attach it to the copies of the abstract filed in the Court and served upon the opposing counsel, unless this requirement is shown to be impracticable and is waived by the Court upon motion.
Ark. R. Sup. Ct. 4-2(a)(6) (Emphasis added.)
In this deed dispute, the chancellor’s decision and the arguments of both appellant and appellees are fraught with references to plats, sections, deeds, leases, accretions, metes and bounds, surveys, and maps. It is readily apparent that these supporting documents are the basis for the appellant’s claims, appellees’ counterclaim, and the chancellor’s ruling. However, appellant failed to abstract or photocopy and attach in exhibit form the necessary documents. Without an abstract of these supporting documents, it is impossible for this court to engage in a meaningful review of the merits of the appeal. In a complex and contentious dispute challenging the validity of deeds, an abstract of only the complaint, counterclaim, decree, and limited testimony is flagrantly deficient when considered against all the underlying documents necessary to a full understanding of the issues that are absent from the abstract.
When an exhibit is necessary to an understanding of the testimony about an issue, but is not included in the abstract, the issue is summarily affirmed. Carton v. Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993). Here, the unabstracted results of competing surveys and maps derived from those surveys are essential to an understanding of the testimony.
Further, where the crucial document necessary for an understanding of one argument was not abstracted, the supreme court held that it amounted to a gross violation of the rule. Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993). In the present case, the disputed deeds are not even abstracted or attached in exhibit form for the court to consider.
Finally, where the appellant has failed to abstract exhibits to his complaint, the supreme court has affirmed for noncompliance with the rule. Chrysler Credit Corp. v. Scanlon, 319 Ark. 758, 894 S.W.2d 885 (1995). Appellant’s complaint in the present case was accompanied by an unabstracted exhibit, and appellee’s counterclaim included several unabstracted exhibits. Read with out these supporting documents, both pleadings are rendered largely meaningless to the court on appeal. Based on these flagrant deficiencies and pursuant to Ark. R. Sup. Ct. 4-2(b)(2), we affirm for noncompliance with the Rule.
However, based on the limited information in the abstract, we would also affirm the chancellor’s decision on the merits. First, the chancellor heard expert testimony regarding the metes and bounds descriptions of the appellees’ estates occupying the entire Willow Beach Island. Further, appellant’s longstanding lease of the disputed property and his admission to the U.S. Agricultural Soil Conservation Service of ownership of the island in appellees for crop subsidy purposes makes a subsequent claim of ownership in the disputed land a far-fetched proposition. Also, appellees’ chain of title, based on what little information was properly before this court to review, was far superior to appellant’s questionable claims based on subsequently voided deeds. Finally, the defects in the tax deed secured from the Commissioner of State Lands are fatal to any claim appellant had to the disputed land. Specifically, the fact that the parcel was erroneously certified as tax delinquent by the county assessor and the fact that the deed-confirmation proceeding before the chancery court took place without notice to appellees and before the statutorily prescribed two-year period for the right of redemption for tax deeds, see Ark. Code Ann. § 18-60-607 (1987), both cast grave doubt on the validity of appellant’s deed and support the chancellor’s judgment for appellees.
Based on these facts adduced from the briefs and oral arguments, we would affirm this case on the merits even if the flagrantly deficient abstract did not require us to affirm for noncompliance with Rule 4-2.
Affirmed.
Pittman and Meads, JJ., agree. | [
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D. Franklin Arey, III, Judge.
The appellant, Rebekah Priest, challenges the Workers’ Compensation Commission’s determination that she sustained a 5% impairment to the body as a whole. This rating is based upon an independent medical evaluation by Dr. Jim Moore. The claimant sought to cross-examine Dr. Moore at the hearing before the Administrative Law Judge pursuant to Ark. Code Ann. § ll-9-705(c)(2)(B) (Repl. 1996). When the ALJ failed to issue a subpoena to ensure Dr. Moore’s presence, appellant raised a due process claim grounded on the denial of her right to cross-examine Dr. Moore at the hearing. We reverse and remand.
The parties stipulated that the appellant sustained a compen-sable back injury on November 2, 1990. Her injury was primarily treated by Dr. Phillip Johnson; he assigned the appellant permanent physical impairment to the extent of 15% to the body as a whole. The appellant agreed to an independent medical evaluation by Dr. Moore. Dr. Moore’s report of this evaluation, dated September 13, 1993, opined that the appellant sustained a 5% impairment to the body as a whole.
The employer indicated its intent to offer Dr. Moore’s independent medical evaluation into evidence. The appellant requested the opportunity to cross-examine Dr. Moore by deposition, but cancelled a scheduled deposition contending that she was unable to pay Dr. Moore’s fees. Thereafter, the appellant requested that the employer produce Dr. Moore for cross-examination at the hearing before the Administrative Law Judge pursuant to Ark. Code Ann. § ll-9-705(c)(2)(B). When the employer declined, the appellant sought a subpoena for Dr. Moore pursuant to Ark. Code Ann. § ll-9-706(a). The ALJ did not issue the requested subpoena. The appellant then objected to the introduction of Dr. Moore’s report, arguing that she was denied due process because she was unable to cross-examine Dr. Moore.
The ALJ concluded that the appellant was not denied due process by the admission of Dr. Moore’s medical evaluation into evidence. The ALJ cited Dr. Moore’s report, and determined that Dr. Moore’s rating of 5% impairment was more accurate than Dr. Johnson’s rating of 15%. The full Commission affirmed and adopted the ALJ’s decision as its own decision.
On appeal, the appellant presses her claim that her due process right to cross-examine Dr. Moore was violated by the ALJ’s failure to issue the requested subpoena. We cannot reach the merits of this issue. The full Commission did not make findings of fact in support of its conclusion that the appellant was not denied due process. “The Commission must find as facts the basic component elements on which its conclusion is based.” Lowe v. Car Care Marketing, 53 Ark. App. 100, 102, 919 S.W.2d 520, 521 (1996). Such fact-findings are necessary to permit appellate review of the constitutional issues presented. Green v. Smith & Scott Logging, 54 Ark. App. 53, 54-55, 922 S.W.2d 746, 747 (1996). Since we are unable to determine the facts upon which the Commission relied in concluding that appellant’s due process rights were not violated, we reverse and remand for the Commission to make specific findings of fact. Lowe, 53 Ark. App. at 102-103, 919 S.W.2d at 521.
We take this opportunity to provide the Commission with some guidance on remand. Parties appearing before admin istrative agencies are entitled to due process in the proceedings. U.S. Const, amend. XIV, § 1; Ark. Const, art. II, § 8; see Smith v. Everett, 276 Ark. 430, 637 S.W.2d 537 (1982); Arkansas Pub. Service Comm’n v. Continental Tel. Co., 262 Ark. 821, 561 S.W.2d 645 (1978); Arkansas State Bd. of Nursing v. Long, 8 Ark. App. 288, 651 S.W.2d 109 (1983). The Workers’ Compensation Commission is no exception: parties appearing before the Commission should not be deprived of the essential requisites of due process of law. See Aetna Cas. & Sur. Co. v. Dyer, 6 Ark. App. 211, 639 S.W.2d 536 (1982); 7 Arthur Larson, The Law of Workmen’s Compensation § 79.25(c) (1997).
One aspect of due process is the opportunity to subpoena and cross-examine adverse witnesses. Branch v. Hempstead County Mem’l Hosp., 539 F.Supp. 908 (W.D. Ark. 1982) (cross-examination); Smith, 276 Ark. at 431-32, 637 S.W.2d at 538. The right to cross-examine adverse witnesses extends to parties appearing before the Workers’ Compensation Commission. See Davis v. Arkansas Best Freight Sys., Inc., 239 Ark. 632, 393 S.W.2d 237 (1965); accord, Commercial Union Companies v. Smallwood, 550 P.2d 1261 (Alaska 1976); Artis v. Industrial Comm’n, 164 Ariz. 452, 793 P.2d 1119 (Ariz. Ct. App. 1990); Scheytt v. Industrial Comm’n, 134 Ariz. 25, 653 P.2d 375 (Ariz. Ct. App. 1982); Hart v. JJ. Newberry Co., 179 Mont. 160, 587 P.2d 11 (1978); 7 Larson, supra, § 79.25(c).
The Commission is not “bound by technical or statutory rules of evidence or by technical or formal rules of procedure. . . .” Ark. Code Ann. § ll-9-705(a). That does not end our inquiry. “It is true that the Workmen’s Compensation Commission is an administrative agency and that the technical rules of evidence do not apply to its procedure. . ., nevertheless, it has been repeatedly held that a litigant has the right to cross-examine a witness.” Davis, 239 Ark. at 634, 393 S.W.2d at 238 (citation omitted); see Hart, 179 Mont. at 162, 587 P.2d at 12. Thus, a hearing before the Commission cannot be conducted in such a way that a party is denied the right to cross-examine an adverse witness.
The Commission also has some discretion in the issuance of subpoenas to compel the attendance of witnesses at its hearings. Ark. Code Ann. § ll-9-706(a). Of what moment is the right to cross-examine an adverse witness, if that adverse witness cannot be brought to the hearing by subpoena? The Commission’s discretion to issue subpoenas cannot be exercised in such a way that a party is denied a reasonable opportunity to cross-examine an adverse witness. Cf. Smith, 276 Ark. at 432, 637 S.W.2d at 538 (in a proceeding before the appeals tribunal, the opportunity to subpoena and cross-examine witnesses is a component of due process). This is consistent with our supreme court’s concern for the rights of parties appearing before administrative agencies.
Where reliance is placed by an administrative agency upon testimony of certain witnesses in making a critical factual determination, it will be an abuse of discretion to fail to hear material evidence which might impeach, not only the testimony, but the findings made by the agency as well. . . . The more liberal the practice in admitting testimony, the more imperative is the obligation to preserve the essential rules by which rights are asserted or defended.
Arkansas Pub. Service Comm’n, 262 Ark. at 838-39, 561 S.W.2d at 655 (citations omitted).
We do not mean to suggest that parties can rest on their right to cross-examine adverse witnesses in administrative proceedings. In some instances, the right to cross-examine must be reserved in a timely fashion. See Chambers v. Bigelow-Liptak Corp., 233 Ark. 330, 344 S.W.2d 588 (1961). The right to cross-examine may be waived. See Palazzolo v. Nelms Chevrolet, 46 Ark. App. 130, 877 S.W.2d 938 (1994).
We want to be clear as to what this opinion does not determine. We do not reach the merits of this matter; we do not decide whether appellant has a valid constitutional claim, and we do not decide whether there is substantial evidence to support the Commission’s award. We simply note that we cannot affirm the Commission’s decision, because there is a question whether the appellant’s procedural due process claim was properly disposed of below. This question can only be answered after the Commission makes its findings of fact.
Reversed and remanded.
Crabtree, J., agrees.
Pittman, J., concurs.
The concurrence suggests that we err when we provide guidance on the law to be followed on remand of this case. If we err by providing such guidance, we do so in good company. See Crockett & Brown, P.A. v. Wilson, 321 Ark. 150, 901 S.W.2d 826 (1995); Spring Creek Living Center v. Sarrett, 319 Ark. 259, 890 S.W.2d 598 (1995); Suggs v. State, 317 Ark. 541, 879 S.W.2d 428 (1994); Grimes v. Inc., 299 Ark. 560, 776 S.W.2d 336 (1989). Our court has given the Commission guidance on the law involved upon remand for making findings of fact. See Belcher v. Holiday Inn, 49 Ark. App. 64, 896 S.W.2d 440 (1995); cf. Tabor v. Levi Strauss & Co., 33 Ark. App. 71, 801 S.W.2d 311 (1990) (remand with instructions to recalculate wages based upon directions from our court).
We agree with the concurring judge that this due process discussion is dicta; the last paragraph of this opinion confirms our agreement. Nothing in this due process discussion prevents counsel from marshalling their arguments and proof; it does not dictate an outcome before the Workers’ Compensation Commission, or a consideration of some other aspect of due process that we have not discussed.
Finally, we note that the concurrence does not object to the accuracy of our recitation of the law, only to its articulation. | [
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John Mauzy Pittman, Judge.
Keith Cox-Hilstrom appeals from a jury-trial conviction of theft of leased personal property and theft by deception, for which he was sentenced to concurrent terms of five years and three years, respectively, in the Arkansas Department of Correction. Appellant argues that the court erred in disallowing exculpatory testimony of a defense witness, in refusing appellant’s proposed jury instructions on theft of leased personal property, and in failing to direct a verdict on the charge of theft by deception. We affirm in part and reverse and dismiss in part.
On November 10, 1993, appellant leased from Gary Anschutz Superior Car Wash and Quick Lube, a business in Fort Smith, Arkansas. After Anschutz terminated the lease, appellant vacated the premises on March 10, 1994. Anschutz subsequently discovered that tools and equipment were missing and filed a police report which resulted in the charge of theft of leased property.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). Preservation of appellant’s right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of trial errors. Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994). Anschutz had an account with the Southwest Times Record, a Fort Smith newspaper. Appellant was charged with theft by deception of more than $200.00 for maintaining an account under Anschutz’s account number at the newspaper. Appellant challenges the sufficiency of the evidence to support his conviction of theft by deception and contends the State failed to prove that he knowingly obtained the property of another by deception. Anschutz testified that the account had a zero balance in November 1993 when appellant leased the business. Billing statements from the newspaper dated from November 1993 to March 1994 reflecting a balance due of $886.99 were introduced into evidence. Appellant’s conviction is based on the charges made to the account from November 1993 to March 1994. In denying appellant’s motion for directed verdict, the court stated that the November 1993 statement showing a previous balance of $70.25 and a $70.25 credit, leaving a zero balance, should have indicated to appellant that this was an existing account and that appellant, unless he sought to deceive, would have requested a new account when he took over the business rather than charging to Anschutz’s account.
Appellant testified that he leased the business in November 1993 and advertised in the newspaper that the business was under new management. The November 1993 statement of the newspaper reflects the charge for the ad, identifying the ad as “now under new mgmt.” Newspaper representatives said that they were aware' that appellant was now running the business and that the newspaper’s statements were addressed to “Superior Car Wash,” were sent to the business address, and were received by appellant. There was no evidence that the newspaper submitted the statements to Anschutz or sought payment from Anschutz after November 1993. Curtis Haney, a salesman with the newspaper, sold ads to appellant. He testified that he thought the account belonged to appellant and that he was unaware that it was Anschutz’s account.
Theft by deception occurs when a person “knowingly obtains the property of another person, by deception or by threat, with the purpose of depriving the owner thereof.” Ark. Code Ann. § 5-36-103(a)(2) (Repl. 1993). A person acts “knowingly” with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result. Ark. Code Ann. § 5-2-202(2) (Repl. 1993). Finally, “deception” means:
(i) Creating or reinforcing a false impression, including false impressions of fact, law, value, or intention or other state of mind that the actor does not believe to be true; or
(ii) Preventing another from acquiring information which would affect his judgment of a transaction; or
(iii) Failing to correct a false impression that the actor knows to be false and that he created or reinforced or that he knows to be influencing another to whom he stands in a fiduciary or confidential relationship; or
* * *
(v) Employing any other scheme to defraud.
Ark. Code Ann. § 5-36-101 (3) (A) (Repl. 1993).
When reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the State and will affirm where there is substantial evidence to support the verdict. Martin v. State, 328 Ark. 420, 944 S.W.2d 512 (1997). Evidence is sufficient to support a conviction if the trier of fact can reach a conclusion without having to resort to speculation or conjecture. McGehee v. State, 328 Ark. 404, 943 S.W.2d 585 (1997). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another. Id. A review of the record indicates that there is no evidence to support appellant’s conviction of theft by deception. There is no evidence that appellant made a misleading or false representation to the newspaper. Wiley v. State, 268 Ark. 552, 594 S.W.2d 57 (Ark. App. 1980). The trial court’s basis for overruling appellant’s motion for directed verdict was the reflection of a previous balance on the November 1993 statement, which the court held should have alerted appellant that he was charging to an existing account and that he should have opened a new account. Appellant testified that he leased the entire business, and there was evidence from which the fact finder could infer that appellant reasonably believed that he also assumed the Superior Car Wash account with the ■ newspaper. Athough the lower court found that appellant charged on Anschutz’s account, each of the statements is addressed to Superior Car Wash and Anschutz’s name is not on the statements.
There is insufficient evidence to support the conclusion that appellant “knowingly” sought to deceive the newspaper by creating a false impression or by failing to correct a false impression that he knew to be false. The only evidence that is unfavorable to appellant is that, admittedly, he failed to pay the account during the five-month period. However, there was testimony that the business declined during the winter months and that appellant’s check for the February 1994 lease payment was returned for insufficient funds. Appellant testified that he did not pay the amount due because of financial constraints. We believe that the conviction for theft by deception is based on speculation and conjecture and must be reversed.
Appellant also argues that the court erred in refusing to allow a defense witness, James Davis, to testify. Davis would have testified that he was with appellant’s employee, Roni Ward, at Wal-Mart and that he saw Ward take cash from a money bag belonging to appellant’s business to make purchases for her personal use. The State argues that appellant’s argument should be rejected due to his failure to make a sufficient proffer. However, we hold counsel’s offer of proof as to the witness’s anticipated testimony to be sufficient. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996); Ark. R. Evid. 103(a)(2). The trial court ruled that the testimony was irrelevant and inadmissible because there was no evidence that Ward had stolen money from Anschutz. Appellant contends that, because Ward stole from him, it could be inferred that she was of such character that she would also steal from Anschutz. We believe that the trial court’s ruling was correct. Evidence that someone other than the defendant may have committed the crime is inadmissible unless it points directly to the third party’s guilt. Echols, supra. If it creates no more than an inference or conjecture as to the third party’s guilt, it is inadmissible. Echols, supra; Johnson v. State, 326 Ark. 430, 934 S.W.2d 179 (1996); Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993); Billings v. State, 53 Ark. App. 219, 921 S.W.2d 607 (1996). The testimony was that only Ward and appellant had keys to the leased premises and that she knew that items had been removed from the premises. However, there was no evidence presented linking Ward to the theft of Anschutz’s property. We conclude that the trial court did not abuse its discretion in excluding the testimony. Zinger, supra.
Appellant’s next argument concerns the court’s instruction to the jury on theft of leased personal property. The State and the appellant both agree that there is not a model instruction for theft of leased property. Appellant argues that the court erred in refusing his proposed jury instruction, which essentially repeats the entire text of Ark. Code Ann. § 5-36-115 (Repl. 1993), concerning theft of leased personal property. The trial court ruled that appellant’s instruction had no application to the case or was covered in other instructions. Arkansas Code Annotated § 5-36-115(c) provides that it is prima facie evidence of intent to commit theft when the one who has leased the personal property of another fails to return the property to the owner after receiving notice from the owner that the lease has terminated. Appellant argues that Anschutz did not provide notice, that notice is required, and that the jury should have been instructed with § 5-36-115(c) as to the giving of notice and with subsection (f) which provides for waiver of notice. However, the owner’s notice is not an element of the offense of theft of leased personal property. Subsection (c) merely provides a method by which the State may prove a prima facie case of intent to commit theft. The State was not restricted to the method set forth in subsection (c) to prove commission of the offense.
The court gave the following jury instruction:
To sustain the charge of theft of leased personal property the State must prove beyond a reasonable doubt that [appellant] intentionally and fraudulently took or appropriated in any wrongful manner the property of Gary Anschutz, which was leased to [appellant].
The offense of theft of leased personal property is committed when a person shall “intentionally, fraudulently, or by false pretense take, carry, lead, drive away, destroy, sell, secrete, convert, or appropriate in any wrongful manner any personal property which is leased,. . .and thereby fraudulently obtains possession of that personal property.” Ark. Code Ann. § 5-36-115(a) (Repl. 1993). In determining if the trial court erred in refusing an instruction in a criminal case, the test is whether the omission infects the entire trial such that the resulting conviction violates due process. Hardcastle v. State, 25 Ark. App. 157, 755 S.W.2d 228 (1988); Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980). The burden of showing prejudice is much heavier when an instruction is omitted than when an erroneous instruction is given. Evans v. State, 287 Ark. 136, 697 S.W.2d 879 (1985). We find no error in the court’s instruction.
Appellant also argues that the court erred in failing to instruct the jury as to an affirmative defense set forth in Ark. Code Ann. § 5-36-115(e) (Repl. 1993). We have stated that all of the factors listed in subsection (e) must be established in order to prove an affirmative defense. Parks v. State, 24 Ark. App. 139, 750 S.W.2d 65 (1988). Appellant did not provide evidence that his failure to return the property was lawful or that he, when demand was made, returned the property. There is no error in refusing to give an instruction where there is no evidence to support the giving of that instruction. Id.
Affirmed in part; reversed and dismissed in part.
Robbins, C.J., and Jennings and Rogers, JJ., agree.
Arey and Bird, JJ., dissent. | [
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Lawson Cloninger, Judge.
Appellant, accused of engaging in deviate sexual activity with a person under the age of eleven, was charged with five counts of rape. The jury found appellant guilty of three of the charges and appellant was sentenced to ten years on each charge with two of the sentences to run concurrently. For his appeal, appellant argues four points for reversal: 1) that his confession was not voluntary and should have been suppressed; 2) that the trial court unduly restricted examination of a witness and the victim; 3) that it was error for the trial court to allow the victim to testify about other wrongs committed by appellant; and 4) that the state improperly questioned appellant about prior acts and the trial court should have declared a mistrial. We do not agree with any of appellant’s arguments and affirm.
Appellant’s nephew, aged nine, called the police and told them that he had been raped by his “Uncle Andy.” Several days later Floyd J. Hancock, a detective sergeant with the Springdale, Arkansas, police department, went to appellant’s residence and asked appellant to come to the station and answer some questions regarding his nephew’s complaint. Appellant replied that he had a job interview and would come in later, which he did. Sergeant Hancock, testifying at a Denno hearing, stated that he read appellant his Miranda rights and recorded appellant’s responses. To test appellant’s literacy, he asked appellant to read one of the questions out loud, which appellant was able to do. Appellant then initialed each of the questions and signed the form. Sergeant Hancock also signed the form.
The interview with appellant took approximately one hour. During that time, Sergeant Hancock discussed with appellant a seminar he had attended. He told appellant that he had learned at the seminar that adult males who have a sexual preference for young males were extremely difficult to help and that the first step towards getting help was to admit that they had a problem to begin with. Sergeant Hancock also told appellant that it was possible for the court to order counseling and there might be counseling at the penitentiary. Appellant then gave a statement in which he admitted he had allowed his nephew to perform oral sex on him on five different occasions, but he alleged that it was his nephew who always initiated it. It is appellant’s contention that Sergeant Hancock’s statements about counseling amounted to promises of leniency and therefore his statement was not given voluntarily and should have been suppressed.
There is a presumption that an in custody confession is involuntary and the burden is on the state to show the statement to have been voluntarily, freely and understandably made, without fear or hope of reward. Tatum v. State, 266 Ark. 506, 585 S.W.2d 957 (1979). The appellate court makes an independent determination based upon the totality of the circumstances, with all doubts being resolved in favor of individual rights and safeguards, and the court will not reverse the trial court’s holding unless it is clearly erroneous. Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981). Any conflict in the testimony of different witnesses is for the trial court to resolve. Harvey, supra.
When we consider the totality of the circumstances we consider both statements the police made to the accused and how vulnerable the accused is. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). We find that no promises were made to appellant for leniency. In fact, Sergeant Hancock’s statements implied that appellant would be punished. Nor do we think appellant was particularly vulnerable. The questioning lasted about one hour, he was read his rights, and Sergeant Hancock took particular care to make sure appellant understood them. There was no indication that appellant was not sober, and appellant was allowed to come to the police station at his own convenience. We believe the trial court’s finding that appellant’s confession was made voluntarily is not clearly erroneous. See Davis, supra.
Appellant next argues that the trial court unduly restricted his right to examine witnesses. Robert Tomlinson was called as a defense witness to testify about a conversation he had with the victim prior to appellant’s arrest. The state objected on the grounds that it was hearsay and the court sustained the objection. Appellant then made a proffer of Mr. Tomlinson’s testimony. Tomlinson was expected to testify that while the victim was angry with Tomlinson he threatened to call the police and tell them that Tomlinson had raped him. Appellant then called the victim and attempted to elicit testimony about the threat to Tomlinson. The trial court found that the testimony would be irrelevant to the issue of appellant’s guilt. It is appellant’s contention that the evidence is relevant to show that the victim may have had a motive for his accusations and that they may not have any basis in reality. We agree with the trial court’s ruling.
The alleged threat would be a collateral matter and a witness cannot be impeached on a collateral matter by calling another witness to contradict the testimony of the first witness. Kellensworth v. State, 275 Ark. 252, 631 S.W.2d 1 (1982). An issue that cannot be independently proven is collateral. Kellensworth, supra. The proper time to raise the matter was on cross examination of the victim, and appellant failed to do this. In his ruling, the trial judge specifically stated that the victim was expected to deny making the threat. At that point, it would become improper to allow Tomlinson to testify that the threat was made. Such a tactic would have distracted the jury from the main issue and wasted time. Kellensworth, supra.
Appellant also contends that it was error for the trial court to refuse to exclude the victim’s testimony of other wrongs committed by appellant. By agreement, the state was confined to charging appellant with only the five instances of oral sex to which appellant had confessed. At a pre-trial hearing the court declined to rule on the admissibility of evidence regarding instances of anal sex. During the trial the victim was allowed to testify about the instances of anal sex.
U.R.E. Rule 404(b) makes admissible evidence of other crimes, wrongs or acts for the purpose of proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The evidence must have relevancy independent of a mere showing that the defendant is a bad character. Collins v. State, 11 Ark. App. 282, 669 S.W.2d 505 (1984).
In appellant’s confession he denied that he was the one that made sexual overtures to the victim; he claimed that it was the victim who initiated any sexual contact. At trial, appellant denied that there had been any sexual contact at all. He alleged that he made the statement he did only because he was “ready to get out of there and go home.”
In trials for incest or carnal abuse the state may show other acts of intercourse between the same parties to show the relation and intimacy of the parties, their disposition and antecedent conduct toward each other. Collins, supra. We believe the evidence complained of by appellant was relevant to show that appellant’s participation was not just passive acceptance of his nephew’s advances, as he alleges.
Appellant’s last argument regards the court’s refusal to grant a mistrial after the state had alluded to prior similar conduct. During cross examination of appellant, the state asked him if he had ever been offered therapy. Appellant denied it and then the state asked if he had ever done anything like this before. Again appellant’s response was no. The state then asked, “Wasn’t there a time, three years ago, when something like this happened and you had a chance to get some therapy?” Appellant then objected and requested a mistrial. The trial court refused the request but did admonish the jury to disregard the statement. It is appellant’s argument that the admonishment did not erase the prejudice formed in the minds of the jury. We disagree.
Appellant relies on the case of Maxwell v. State, 279 Ark. 423, 652 S.W.2d 31 (1983), in which the prosecutor asked the defendant if he had previously pled guilty to raping an eleven-year-old girl and been sentenced to thirty years. In that case, the Arkansas Supreme Court found that a mistrial should have been granted. However, that case can be distinguished from the one at bar. Here appellant was given a chance to deny the statement, appellant did not previously plead guilty nor was he convicted, and the allusion to previous misconduct was not specific. In Maxwell, supra, the court noted that it was obvious that the prosecutor’s remarks were deliberate. There was no evidence of any deliberate misconduct in this case.
The granting of a mistrial is a drastic remedy and should be resorted to only when justice cannot be served by continuing with the trial. Avery v. State, 15 Ark. App. 134, 690 S.W.2d 732 (1985). The trial court is vested with considerable discretion because of his superior position to determine the possibility of prejudice, and that discretion will not be reversed in the absence of manifest abuse. Avery, supra.
We do not think that the state’s remarks were prejudicial in light of the fact that appellant was charged with five counts of rape and only convicted of three. The trial court’s admonition was sufficient. An admonition from the presiding judge to the jury cures the prejudicial statement unless the error is so prejudicial that justice could not be served by continuing the trial. Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980). We do not find any abuse of the trial court’s discretion.
Affirmed.
Glaze, Corbin, and Cooper, JJ., dissent. | [
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George K. Cracraft, Chief Judge.
S. Norris Broadhead and Paul E. Broadhead appeal from an order of the chancery court quieting title to a tract of land in Jimmy McEntire and granting a judgment against appellants in favor of Robbie Sullins for monies paid to the appellants under a contract for sale of the same tract of land. The appellants advance nineteen points for reversal, but they are so intertwined that it is not necessary that we address them separately.
On April 1,1975, appellants entered into a written contract to sell forty acres of land to Peggy Washburn for $3,000.00, of which $600.00 was paid down and the balance to be paid in five annual installments of principal and interest. Robbie Sullins alleged that in 1976 she purchased Washburn’s interest in the contract and informed an agent of the appellants of the transaction. Sullins made, and appellants accepted, the first four payments when due. The fifth payment was tendered in 1980 but refused by appellants. Meanwhile, the property was sold in November of 1976 for non-payment of the 1975 taxes. Appellee McEntire purchased the property at the tax sale in November of 1976 and was issued a clerk’s tax deed on December 8, 1978.
In May of 1983, appellee Sullins filed her complaint for specific performance of the Washburn contract alleging an oral assignment of the contract from Washburn. The appellants filed an answer denying the existence of the contract, and pleading the statute of limitations, estoppel, laches, and the statute of frauds. On September 5, 1984, the appellee McEntire, claiming under his tax deed, filed a petition to quiet title to the property as against the appellants and Sullins. The appellants and Sullins filed answers alleging the tax sale and deed were void for noncompliance with the statutes relating to tax sales. Both cases were consolidated for trial.
The matter was submitted to the court on stipulation of facts and evidence as to the manner in which the tax sale under which McEntire claimed had been held. It was stipulated that the appellants had entered into the contract of sale with Washburn for the sale of the property, that Sullins made all of the payments due by Washburn under the contract, and that all except the final payment were accepted by the appellants. It was further stipulated that Sullins reimbursed Washburn for the $600.00 down payment made to the appellants and that Sullins made the payments to an agent of the appellants “who had notice that Sullins was claiming to be an assignee of the Washburn contract.” The stipulation contained evidence of the manner in which the tax sale in issue had been held. It was also stipulated that McEntire had paid taxes on the tract for more than seven years.
The chancellor held that, pursuant to Ark. Stat. Ann. § 34-1907 (Repl. 1962), McEntire’s tax payments under color of title constituted prima facie evidence of title and, since the appellants and Sullins offered no proof to the contrary and based their entire defense on the failure of the sheriff and clerk to maintain appropriate records and properly conduct the tax sale, the McEntire title should be confirmed. He further found that appellee Sullins based her claim of the lands on an oral assignment of the contract from Peggy Washburn and that the appellants had accepted the monies. The chancellor ruled, however, that Ark. Stat. Ann. § 38-101 (Repl. 1962) requires that an action to charge a person with the sale of lands be in writing and, “inasmuch as Washburn was not made a party to the action, and no proof of the agreement was proffered after the same was denied by the petition,” denied Sullins’ prayer for specific performance. The chancellor found further that, since appellants had failed in their obligation to protect the title and at the same time accepted Sullins’ payment with knowledge that some sort of agreement existed between Washburn and Sullins, they should not be permitted in equity to retain the monies as it would result in unjust enrichment. It was ordered that Sullins recover the funds paid to appellants. Appellants filed a timely notice of appeal. The appellee Sullins has not filed a cross-appeal as required by Rule 4(a) of the Rules of Appellate Procedure.
We agree that the chancellor’s order that appellee McEntire’s title be confirmed was erroneous. Defects in the tax sale under which McEntire claimed were alleged in the pleadings and evidence was presented in support of those allegations. The chancellor did not rule on the effect of any of the alleged defects, but concluded that title should be confirmed pursuant to Ark. Stat. Ann. § 34-1907 (Repl. 1962). That section provides that, in an action to confirm title, where one cannot show a perfect title, he may establish a prima facie title by showing that he and those under whom he claims had color of title to the lands for more than seven years and during that time he, and those under whom he claims, had continuously paid taxes on the property. The property in issue was forfeited for nonpayment of 1975 taxes and the tax sale was not held until November of 1976. At that time, it was struck off by the clerk and sold to appellee. Our statutes provide a two-year period of redemption from such sales and therefore the clerk’s deed in this case was not executed and delivered to McEntire until December 8, 1978. A certificate of purchase issued at a tax sale, however, is not color of title. Driver v. Driver, 223 Ark. 15, 263 S.W.2d 914 (1954); Townsend v. Penrose, 84 Ark. 316,105 S.W. 588 (1907); Loganv. Eastern Arkansas Land Co., 68 Ark. 248, 57 S.W. 798 (1900). Since this action was commenced on September 5, 1984, a date less than seven years after appellee acquired his color of title and before he completed seven tax payments under it, appellee McEntire was not entitled to the benefit of § 34-1907.
For the same reason we find no merit in the argument that title had vested in McEntire under Ark. Stat. Ann. § 37-102 (Repl. 1962) which, when coupled with Ark. Stat. Ann. § 37-101 (Repl. 1962), works to invest title in one who has paid taxes on wild and unenclosed lands for a period in excess of seven years. Appellee McEntire also argues that he is entitled to have his title confirmed by actual physical possession of the property for more than seven years. This argument must fail for two reasons. First, there was evidence that he had only been on the property four or five times during the seven-year period and his other acts of possession were merely fitful. Secondly, it was stipulated by the parties that the property was wild and unimproved and not occupied by anyone.
We also conclude that to quiet title in appellee McEntire was error for yet another reason. Ark. Stat. Ann. § 34-1907 (Repl. 1962) authorizes a deed of confirmation on prima facie evidence of title only where the proceedings are not controverted. Kennedy v. Burns, 140 Ark. 367, 215 S.W. 618 (1919). Here, the issues surrounding the validity of the tax proceedings were clearly controverted in the pleadings. The trial court should have determined those issues.
On de novo review of chancery cases, where we find the chancellor’s finding to be clearly erroneous but the record is fully developed so that we can see where the equities lie, we correct the record here by entering the decree that should have been entered rather than remanding for a new trial or further proceedings. Fergusons. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). At the trial, appellants and appellee Sullins advanced evidence in support of a number of deficiencies in the tax sale. We find sufficient merit in one of these to dispose of the issue and therefore do not address them all.
Ark. Stat. Ann. § 84-1102 (Repl. 1980) requires that the list of delinquent lands be recorded and have attached to it a certificate of the clerk stating in what newspapers the notice of delinquent lands was published and the date of publication. It has been held that this section requires the certificate of the clerk to be made prior to the sale and, where made on the date of the sale, the sale is void. Standard Securities Co. v. Republic Mining & Manufacturing Co., 207 Ark. 335, 180 S.W.2d 575 (1944); Binghams. Powell, 152 Ark. 484, 238 S.W. 597 (1922). A joint exhibit entered by stipulation shows that, although the clerk did attach the required certificate to the record, he did so on the date the sale was held.
In Boyd s. Meador, 10 Ark. App. 5, 660 S.W.2d 943 (1983), we reaffirmed previous holdings that a failure of the clerk to attach his certificate to the delinquent list prior to the sale voids the sale. We further held that such a deficiency is fatal to the validity of the tax sale and that the defect is not cured by the two-year statute of limitations contained in Ark. Stat. Ann. § 84-1118 (Repl. 1980). As the failure of the clerk to comply with the provisions of § 84-1102 was fatal to the validity of the tax sale under which the appellee McEntire claims, the chancellor erred in quieting title in him. The decree must be reversed to that extent.
Appellants further contend that the trial court erred in entering judgment in favor of the appellee Sullins for the money paid under the alleged assignment of the contract. Appellants first argue that the chancellor erred in holding that they had an obligation to pay the taxes on the property. The contract between appellants and Washburn provided that the buyer was to receive no legal or equitable right under the contract until the purchase price had been paid in full, at which time the seller obligated himself to execute a special warranty deed conveying the lands free of all liens and encumbrances. Ark. Stat. Ann. § 84-107 (Repl. 1980) provides that the taxes assessed on real property shall be a preferential lien and bind the lands from the first Monday in January of the year in which the assessment was made and continue until the taxes have been paid, provided that, as between a grantor and grantee, the lien shall not attach until the last date fixed by law for the county clerk to deliver the tax book to the collector in each year after the tax lien attaches. Ark. Stat. Ann. § 84-807 (Repl. 1980) provides that the tax books shall be delivered to the collector on or before the third Monday in February of each year. The contract was entered into in April of 1976, some six weeks after the tax books had been delivered to the collector. Under these circumstances it has been held that the seller is liable for the payment of taxes under the warranty. Hatch v. Lowrance, 178 Ark. 274, 10 S.W.2d 358 (1928).
Appellants do not deny entering into the contract with Washburn, that the monies were paid to his agent, or that he had knowledge that Sullins was claiming to be an assignee of Washburn’s contract. There was introduced into the record four checks totalling the sum of $3,028.00 drawn on Sullins’ account, payable to the Broadheads and bearing their endorsement. There is nothing in the record to indicate that they did not receive the money and retain it. Each check bore a memorandum that it was in payment of the Washburn contract. The record contains no indication that the appellants had in any way renounced their contract or failed to recognize the payments by the assignee until 1980, when Sullins tendered the fifth and final payment. Under these circumstances we agree that the chancellor was correct in applying the doctrine of unjust enrichment, which is based upon the principle that one return money or its equivalent received by him under such circumstances that, in equity and good conscience, he ought not retain it. Frigillana v. Frigillana, 266 Ark. 296, 584 S.W.2d 30 (1979); Fite v. Fite, 233 Ark. 469, 345 S.W.2d 362 (1961). In entering his decree, however, the chancellor did not award prejudgment interest on this sum and on remand the decree should be modified to so provide.
Appellants finally contend that the chancellor erred in not holding that Sullins’ claim for restitution was barred by the three-year statute of limitations requiring actions on contracts not under seal and not in writing to be commenced within three years after the cause of action accrues, Ark. Stat. Ann. § 37-206 (Repl. 1962). Sullins argues that the payments were made pursuant to a written agreement which is governed by the five-year statute of limitations provided in Ark. Stat. Ann. § 37-209 (Repl. 1962). We do not address that issue because the record does not establish that the period of limitations had run under either statute.
Appellee Sullins commenced her action for specific performance or, in the alternative, for refund of payments on May 19, 1983. The first repudiation of obligation to Sullins occurred when the appellants refused to accept the payment tendered in 1980. The record reflects that Sullins made her payments on June 16, 1976, April 6, 1977, June 2, 1978, and May 14, 1979. There is nothing in the record to indicate the date on which the fifth and final payment was tendered and rejected. The stipulation reflects only that it was rejected in 1980.
One who relies upon a statute of limitations as a defense to a claim has the burden of proving that the full statutory period had run on the claim before an action was commenced. Without any proof of the date on which the tender was rejected, there was no evidence before the chancellor to sustain a finding that the full three-year period had run before this action was commenced on May 19, 1983.
Furthermore, if there is any reasonable doubt as to which of two statutes of limitation applies to a particular action or proceeding, and it is necessary to resolve the doubt, it will generally be resolved in favor of the application of the statute containing the longer period of limitations. Dunlap v. McCarty, 284 Ark. 5, 678 S.W.2d 361 (1984); Jefferson v. Nero, 225 Ark. 302, 280 S.W.2d 884 (1955).
Finally, appellee Sullins argues that the chancellor should have ordered specific performance of her completely performed oral agreement. Since she filed no notice of cross-appeal, we do not address that issue. Rules of Appellate Procedure, Rule 4(a); Elcare, Inc. v. Godo, 267 Ark. 605, 593 S.W.2d 159 (1980).
That part of the decree which quiets title to the lands in McEntire is reversed and dismissed. That part of the decree which awards the appellee Sullins judgment against appellants Broadhead is affirmed, but the cause remanded for the entry of a decree awarding Sullins appropriate prejudgment interest.
Corbin and Mayfield, JJ., agree. | [
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James R. Cooper, Judge.
Southwestern Bell Telephone Company appeals that portion of a rate case decided by the Arkansas Public Service Commission dealing with the calculation of the Company’s cost of capital and the resulting calculation of its required return on its rate base. The Company argues four points for reversal, all of which concern the proper treatment to be accorded investment tax credits (ITC’s) and accumulated deferred income taxes (ADIT’s) in calculating the correct rate of return.
Bell’s first point for reversal is that the manner in which investment tax credits and accumulated deferred income taxes were treated by the Commission was arbitrary, capricious, unreasonable, and not supported by substantial evidence. Secondly, Bell claims that the treatment given ADIT’s and ITC’s arbitrarily mismatches tax benefits with rate base and expense items. Thirdly, Bell alleges that the treatment given ADIT’s and ITC’s by the Commission violates federal tax law and regulation, and finally, Bell claims that the Commission’s treatment of ADIT’s and ITC’s violates due process of law.
We agree with Bell on its first point and reverse on that point.
Southwestern Bell’s rate of return was determined in this case by what is known as the “weighted cost of capital” approach. In using this approach, the various components of a company’s capital structure are weighted as to their cost with respect to their relative proportions in the company’s total capital structure and are then added together to obtain an overall figure for the company’s cost of capital. The weighted cost of capital is then translated into the rate of return on rate base, and the company is permitted the opportunity to earn that return on its investment.
Both Bell and the Commission agree that ITC’s and ADIT’s should be recognized in setting rates, but they differ as to how they should be recognized. These tax benefits accrue on a company’s books by virtue of investment in plant and equipment upon which the company earns a return. Since ratepayers pay a return on that plant and equipment and thereby supply the funds which generate the tax benefits, the parties agree that ratepayers should receive some consideration in ratemaking for the benefits generated by those funds.
Both parties agree that ITC’s and ADIT’s can and should be given regulatory treatment in either one of two “theoretically equivalent” methods: (1) a deduction from rate base, or (2) inclusion in the company’s cost of capital calculation as a cost-free source of capital. The second method was employed in this case by the Commission. In the first method, the amount of tax benefit attributable to Arkansas plant and equipment would be derived from the company’s accounts and deducted from the company’s rate base. In the second method, the tax benefits are included in the cost of capital calculation, or an adjustment is made to account for the tax benefit after the company’s cost of capital is calculated without the benefits being included. For purposes of this appeal, the parties agree that Bell’s Arkansas intrastate rate base is $732,715,000.00; that the total of ITC’s and ADIT’s attributable to Bell’s Arkansas investment is $109,154,000.00 (which is the sum of the amounts carried in Accounts Nos. 174 and 176 on the Company’s books); and that Arkansas customer deposits total $3,828,000.00, on which the Company pays six percent interest. Further, for purposes of this appeal, the parties do not quarrel with Bell’s capital structure as adopted by the Commission, nor do they disagree that the Commission’s calculation of Bell’s cost of capital is 11.719% without any adjustment for ITC’s and ADIT’s. There also seems to be no question but that 14.81 % of Arkansas intrastate rate base is attributable to ADIT’s and ITC’s, and that 16.72% of Bell’s total company rate base is attributable to these tax benefits.
As noted above, the Commission calculated Bell’s weighted cost of capital to be 11.719%. This calculation included total company common equity bearing a cost of 13.5% and total company debt carrying with it a cost of just over 9.5%. However, the Commission included Arkansas-only customer deposits, which, as noted earlier, carry a cost of 6.0%. After calculating the weighted cost of capital, the Commission then adjusted that figure to account for 16.72% total company ITC’s and ADIT’s, yielding an overall rate of return to be allowed on rate base of 9.76%. Applied to the Company’s Arkansas rate base of $732,715,000.00, the required earnings on rate base as allowed by the Commission are $71,512,984.00.
The Company complains that use of company-wide ITC’s and ADIT’s, as opposed to Arkansas-only ITC’s and ADIT’s, is incorrect and gives Arkansas ratepayers the benefit of tax savings generated by investments they have not supplied. According to Bell, if the Commission’s methodology is used and the weighted cost of capital is adjusted to reflect 14.81% of Arkansas-only ITC’s and ADIT’s, the resulting rate of return is 9.98% and yields a required earnings on rate base figure of $73,124,957.00. Thus, alleges Bell, the Commission’s calculation understates required earnings by $1,611,973.00.
We note that the “theoretically equivalent” method whereby ITC’s and ADIT’s are deducted from intrastate rate base would yield a required earnings on rate base of $73,075,113.00, which is a net difference of only $49,844.00 from the calculation Bell claims the Commission should have made in using the method it applied.
Arkansas Statutes Annotated Section 73-229.1 (Supp. 1985) limits and governs our review as follows:
The finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive. The review shall not be extended further than to determine whether the Commission’s findings are so supported by substantial evidence, and whether the Commission has regularly pursued its authority, including a determination of whether the order or decision under review violated any right of the petitioner under the laws or Constitution of the United States or of the State of Arkansas.
When reviewing an order of the Public Service Commission, we give due regard to the limitations on the scope of our judicial review and the expertise of the Commission. The Commission’s findings of fact are not disturbed on appeal if supported by substantial evidence, which is a question of law. In addressing the questions of law raised on appeal, we may not pass upon the wisdom of the Commission’s actions or judge whether the Commission has appropriately exercised its discretion. Usually, this Court must defer to the expertise of the Commission, which derives its ratemaking authority from the legislature. However, our review is not a mere formality, and we must determine whether there has been an arbitrary or unwarranted abuse of the Commission’s discretion, although considerable judicial restraint should be observed in finding such an abuse. This Court does not advise the Commission how to discharge its functions in arriving at findings of fact or in exercising its discretion, and our review of the reasonableness of the actions of the Commission relates only to findings of fact and to a determi nation of whether its actions were arbitrary. Southwestern Bell Telephone Company v. Arkansas Public Service Commission, 18 Ark. App. 260, 715 S.W.2d 451 (1986).
The Commission is free, within its statutory authority, to make the pragmatic adjustments which may be called for by particular circumstances. No public utility has a vested right to any particular methods of valuation or rate of return, and the Commission has wide discretion in choosing its approach to rate regulation. Generally, this Court is not concerned with the methodology used by the Commission in arriving at the result as long as the Commission’s action is based on substantial evidence. It is the result reached, not the method employed or the theory, which primarily controls. Our inquiry is concluded if the Commission’s regulator’s decision is supported by substantial evidence and the total effect of the rate order is not unjust, unreasonable, unlawful or discriminatory. Southwestern Bell, supra-, Walnut Hill Telephone Company v. Arkansas. Public Service Commission, 17 Ark. App. 259, 709 S.W.2d 96 (1986).
We find the Commission’s approach to ADIT’s and ITC’s to be inconsistent. While it is true that no company has a vested right to any particular method or formula, a utility does have a right to have whatever method or formula the Commission may choose to utilize applied in a consistent manner. In this case, no expert witness endorsed the tax benefit treatment used by the Commission. Bell witness Kaufman used total company debt and equity in his calculation of the Company’s cost of capital, and adjusted for Arkansas-only ADIT’s and ITC’s. Kaufman did not include customer deposits in his cost of capital calculation. The Attorney General’s witness Wilson used total company equity and debt and ádjusted for Arkansas-only ADIT’s and ITC’s, as had Kaufman. However, witness Wilson also used Arkansas-only customer deposits in his calculation. PSC staff witness Kilburn took a total-company approach to her cost of capital calculation, using total company debt, equity, customer deposits and ADIT arid ITC in her calculation. She testified that, because all dollars are fungible, it is not possible to distinguish what specific investment dollars represented by the various components of a company’s capital structure support a specific portion of the Company’s rate base in a particular jurisdictional area. She testified that the cost of capital for Southwestern Bell on a total company basis was the best way of deriving the required return the Company should be allowed to earn on its rate base.
Kaufman recommended an overall rate of return of between 11.16% and 11.40%. Wilson recommended a return of approximately 10.23%, and Kilburn recommended a return of 9.83%. No witness sponsored any testimony which embraced the 9.76% return calculated by the Commission in its final order.
While we do not intend to suggest any particular method of determining a company’s cost of capital nor the particular ratemaking treatment to be given ITC and ADIT, we hold that, when the Commission selects a particular method advocated by an expert witness, the methodology selected should be applied in a manner consistent with the rationale and theory underlying the methodology.
Here, the expert witnesses agreed that total company equity and debt cannot be practicably segregated on a jurisdictional basis, and that a total company approach to these two components of capital structure was appropriate. The Commission apparently agreed with that concept. Witnesses Kaufman and Wilson testified that Arkansas-only ITC and ADIT amounts were susceptible of determination on a jurisdictional basis, and Wilson further testified that Arkansas jurisdiction-only customer deposits were likewise identifiable and should be included in the Company’s cost of capital calculation; Kilburn, as noted earlier, testified that Arkansas jurisdiction-only dollars were indistinguishable and, consequently, she advocated a total-company approach throughout the rate calculations. The Commission apparently agreed with Wilson that customer deposits of nearly $4,000,000.00 bearing a cost of 6.0% were identifiable, but disagreed that Arkansas-only ITC and ADIT were identifiable on a jurisdiction-only basis. Accordingly, the Commission’s final order used total company debt and equity along with Arkansas- only customer deposits and then adjusted to account for total-company ITC and ADIT. Therefore, the Commission adopted portions of all the expert witnesses’ theories and disregarded other portions of the expert witnesses’ theories. We find the Commission’s approach in this particular instance to be arbitrary and unreasonable, as well as internally inconsistent in that the Commission, on the one hand, agreed that customer deposits were identifiable on a jurisdictional basis but, on the other hand, did not agree that ITC and ADIT could be identified on a jurisdictional basis.
We do not agree with Bell’s contention that the inclusion of total company amounts of ITC and ADIT in calculating its cost of capital violates the Internal Revenue Code and IRC Regulations. Bell argues that Section 167 of the Internal Revenue Code and regulations require a consistency between ADIT as used to determine tax liability and as used in the capital structure. The Commission, on the other hand, seems to hold that the problem is simply one of timing, and not jurisdictional allocations, and that the Internal Revenue Code sanctions these timing differences. Bell claims that the Commission’s action violates the I.R.C. by including more deferred tax than was actually shown on the books of the Company. This, Bell contends, could cause the IRS to take the position that Bell had not used a normalization method of regulated accounting as defined in IRS Reg. Section 1.167(L) - l(h)(6)(i), which in turn could result in the loss of tax benefits.
We think that Bell’s argument is speculative at this juncture and deals with possibilities which may or may not come to pass.
Finally, Bell argues that due process requires the Commission to make jurisdictional separations. We do not agree. No utility has a vested right to any particular method or formula. Southwestern Bell, 18 Ark. App. 260; Walnut Hill, 17 Ark. App. 259. As noted earlier, due process does require that, if the Commission elects to use a particular formula, the formula should be applied in a consistent manner. The requirements of due process do not extend so far as to mandate that a particular method or formula be used.
We reverse and remand, with directions that the Commission shall recalculate the appellant’s appropriate rate of return, giving proper and consistent consideration to Investment Tax Credits and Accumulated Deferred Income Taxes, and applying the methodology selected in a consistent manner throughout.
Reversed and remanded.
Glaze and Corbin, JJ., concur.
“Rate base” is the net value of a company’s investment in plant and equipment dedicated to providing utility service to ratepayers.
Besides Arkansas, Bell operates in four other states and has interstate facilities regulated by the federal government.
Arkansas-only ITC’s and ADIT’s have been used consistently by the Commission in the past and, in fact, were used in the Commission’s first order in this case, which was superseded on rehearing by the final order utilizing the calculations which are the subject of this appeal.
As noted earlier, Arkansas intrastate rate base is agreed to total $732,715,000.00, and ITC’s and ADIT’s on the Company’s books total $109,154,000.00. The “rate base approach” would then require that the difference, $623,561,000.00, have the weighted cost of capital figure of 11.719% multiplied against it, which yields a required earnings on rate base of $73,075,113.00.
According to Kilburn, the concept of “fungibility” means that, once dollars are pooled (into the funds of a multi-state utility), they cannot later be traced back to a source in any particular state. | [
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Melvin Mayfield, Judge.
The Second Injury Fund appeals a decision of the Workers’ Compensation Commission holding it liable to the claimant, Ethmer Lee Yarbrough, for permanent partial disability benefits of 25% to the body as a whole.
The claimant first received an injury to his back on June 28, 1978, while working for Halstead Industries. He was treated conservatively and released to return to work September 12, 1978, with no permanent disability rating. Although he continued to be bothered by “nagging” back pain, claimant worked for Halstead until he was terminated in 1981 for getting into a fight with his foreman. Within a week, he went to work for Frankie Jones. On September 10, 1982, while working for Jones, the claimant was helping lift a prefabricated rafter and felt his back pop, and he was immediately seized with severe back pain. Surgery was performed for ruptured discs at L4 and L5 on September 24, 1982. The claimant reinjured his back the following spring in a noncompensable accident at his home, and surgery was again performed for a ruptured disc at L5.
After a hearing held to determine the extent of claimant’s disability and the liability, if any, of the Second Injury Fund, the administrative law judge held that the claimant had a 45% permanent disability to the body as a whole, that the Second Injury Fund was liable for 25% of that disability, and that Frankie Jones was liable for the other 15%. The full Commission affirmed the law judge.
On appeal to this court, the Fund argues that it should not have been held liable in any amount because the claimant did not have a disability that rendered him a handicapped worker prior to the injury sustained on September 10, 1982, while working for Frankie Jones, and that the Commission erred in holding that employer knowledge of a prior disability or impairment is not a prerequisite to applying the Second Injury Fund statute.
We have now clarified the meaning of the words “disability, impairment, and handicapped” as used in the second injury statute, Ark. Stat. Ann. § 81-1313(i) (Supp. 1985). In Osage Oil Co. v. Rogers, 15 Ark. App. 319, 692 S.W.2d 786 (1985), Second Injury Fund v. Girtman, 16 Ark. App. 155, 698 S.W.2d 514 (1985), and Second Injury Fund v. Coleman, 16 Ark. App. 188, 699 S.W.2d 401 (1985), we held that the word “disability” means loss of earning capacity due to a work-related injury, that “impairment” means loss of earning capacity due to a nonwork-related condition, and that “handicapped” means a physical disability that limits the capacity to work; and in Second Injury Fund v. Fraser-Owens, 17 Ark. App. 58, 702 S.W.2d 828 (1986), we added that “anatomical impairment” means the anatomical loss as reflected by the common usage of medical impairment ratings. These cases make it clear that, before the Second Injury Fund is liable, one must have a preexisting condition that is independently causing a loss of earning capacity at the time of the second injury, and which continues to do so.
In this case, the law judge’s opinion was filed on September 14, 1984, and the full Commission affirmed and adopted that opinion on February 25, 1985. Osage Oil Co. v. Rogers, supra, was not decided by us until July 3, 1985. Until that case, and the other cases that followed it, defined and clarified the meaning of the words disability, impairment, handicapped and anatomical impairment, the Commission’s view and the view of this court as to the meaning of those words were not in complete agreement. Therefore, we think it necessary to remand this case for the Commission’s reconsideration in light of the cases mentioned above.
We must, however, now address the meaning of a provision of the second injury statute not heretofore defined or construed by us. Ark. Stat. Ann. § 81-1313(i) (Supp. 1985) provides, in part:
It is intended that latent conditions, which are not known to the employee or employer, not be considered previous disabilities or impairments which would give rise to a claim against the Second Injury Fund.
The Fund argues in this appeal that the purpose of second injury fund statutes in general is to eliminate the competitive employment disadvantage suffered by handicapped workers. See Chicago Mill & Lumber Co. v. Greer, 270 Ark. 672, 606 S.W.2d 72 (1980). But, the Fund asserts, the statutes were also an attempt to encourage employers to put and keep handicapped people in the work force. Our statute supplies an incentive in that respect by attempting to insure “that an employer employing a handicapped worker will not, in the event such worker suffers an injury on the job, be held liable for a greater disability or impairment than actually occurred while the worker was in his employment.” The Fund’s brief in this case, therefore, states:
How can a worker be at a competitive employment disadvantage if his or her employer is unaware of any such prior condition? Will the purposes of [the statute] be fulfilled by employers [or carriers] scurrying to find out if its worker had a prior disability only after he is injured on the job? If the employer is unaware of any condition before the injury giving rise to the claim, there is no employment disadvantage to be eliminated. Knowledge of such condition on the part of the employer is essential to existence of an employment disadvantage. Knowledge on the part of the employee is irrelevant.
When the language of a statute is clear and unambiguous, resort to statutory construction is inappropriate. Patrick v. State, 265 Ark. 334, 576 S.W.2d 191 (1979). When statutes are being construed, the legislative intent behind the wording used must be determined. Amason v. City of El Dorado, 281 Ark. 50, 661 S.W.2d 364 (1983). In City of North Little Rock v. Montgomery, 261 Ark. 16, 18, 546 S.W.2d 154 (1977), the Arkansas Supreme Court said:
We have held that “[T]he meaning of a statute must be determined from the natural and obvious import of the language used by the legislature without resorting to subtle and forced construction for the purpose of limiting or extending the meaning. **** It is our duty to construe a legislative enactment just as it reads.” Black v. Cockrill, Judge, 239 Ark. 367, 389 S.W.2d 881 (1965). We have also said “[I]n construing statutes in the absence of any indication of a different legislative intent, we give words their ordinary and usually accepted meaning in common language.” Phillips Petroleum v. Heath, 254 Ark. 847, 497 S.W.2d 30 (1973).
However, in Bird v. Pan Western Corp., 261 Ark. 56, 60, 546 S.W.2d 417 (1977), the court also said:
The ordinary and generally accepted meaning of words used in a statute must yield to the meaning intended by the General Assembly when it is clear from the context of the act that a different meaning is intended. . . .Thus, in construing an act, the courts are bound by specific definitions of a word by the legislature in that act, regardless of the usual and ordinary meaning of that word; unless the definition is arbitrary, creates obvious incongruities in the statute, defeats a major purpose of the legislation or is so discordant to common usage as to generate confusion. (Citations omitted.)
When construing an act, the legislative intent is to be acquired from a consideration of the statute which gives effect to every word if possible. Holt v. Howard, 206 Ark. 337,175 S.W.2d 384 (1943). Any construction which would render meaningless one or more clauses of the act is to be avoided if possible. Id. While “and” and “or” can be convertible, it is well settled that such a substitution may not be made “unless the whole context of the statute requires, plainly and beyond question, that it be done in order to give effect to the intention of the Legislature.” Shinn v. Heath, 259 Ark. 577, 535 S.W.2d 57 (1976); see also Hines v. Mills, 187 Ark. 465, 60 S.W.2d 181 (1933); and Beasley v. Parnell, 111 Ark. 912, 917, 9 S.W.2d 10 (1928). The reason is that, when words have a settled legal meaning, it is dangerous to conjecture that they were used in other than their legal signification. Beasley, 111 Ark. at917-18. “In its ordinary sense the word ‘or’ is a disjunctive particle that marks an alternative generally corresponding to ‘either’ as ‘either this or that’; it is a connective that marks an alternative.” Id. at 918.
Apparently, New York is the only state that has required actual employer knowledge of the employee’s previous condition in every case in the absence of clear and unequivocal wording in the statute to that effect. See 2 Larson, Larson’s Workmen’s Compensation Law § 59.33(b)(1986). New York has, by judicial interpretation, required that there be actual knowledge on the part of the employer. Bass v. Westchester Concrete, Inc., 84 A.D.2d 634, 444 N.Y.S.2d 283 (1981); McCoy v. Perlite Concrete Co., 53 A.D.2d 749, 384 N.Y.S.2d 234 (1976).
Larson criticizes the New York rule of requiring actual employer knowledge in each case stating:
The New York rule is defensible only if it is assumed that the exclusive purpose of the second injury principle is to encourage the hiring of the handicapped. This is, of course, the central purpose — but the principle also embraces the idea of achieving this result in a way that works hardship on neither the employer nor the employee. If one did not care about incidental hardship to the employee, one could do the hire-the-handicapped job by merely using an apportionment statute. And if one cares about the element of hardship to the employer, one could argue the employer ought to be relieved of the cost of the preexisting condition, whether he knew of it or not, purely on the ground that the cost of this impairment, not having arisen out of this employment, should not in fairness fall upon this employer.
A more down-to-earth reason for disapproving the New York rule is that, as we have seen, it involves one of those distinctions that consume far more litigation time and cost than the policy at stake is worth.
2 Larson, Larson’s Workmen’s Compensation Law § 59.33(e) (1986).
We have concluded that the language in Ark. Stat. Ann. § 81-13130) referring to latent conditions “which are not known to the employee or employer” requires knowledge by either the employee or the employer, but not both. We think this is what the statute says, and we are persuaded that this is what it means.
This construction of section 81-1313(i) was, of course, not known by the Commission at the time it rendered its decision in this case. So, we think it proper on remand for the Commission to also reconsider its decision in view of our decision on this point.
Remanded for reconsideration in keeping with this opinion. | [
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Donald L. Corbin, Judge.
In this case involving a boundary line dispute, appellants, Marion Gibson, Dale Gibson, S.E. Decker and Hazel Decker, attempt to appeal from an order dated July 18,1985, overruling their motion for new trial. We hold that appellants’ motion was deemed to have been disposed of thirty days after December 31,1984, in accordance with Ark. R. App. P. 4(c). Inasmuch as appellants did not file their notice of appeal within ten days of the deemed disposal of the motion for new trial as provided in Rule 4(d), we are required to dismiss appellants’ appeal.
Following the entry of the adverse judgment, appellants filed a timely motion for new trial on December 31,1984, alleging that there was newly discovered evidence material to their case which they could not have discovered and produced at trial with reasonable diligence. ARCP Rule 59(a)(7). As additional grounds for new trial, appellants contended that the decision of the trial court was contrary to the preponderance of the evidence and was contrary to the law. ARCP Rule 59(a)(6). The record reflects that appellants’ motion for new trial was not heard within thirty days from its filing, and that appellants did not, within that time frame, present it to the trial court and obtain a ruling either taking the motion under advisement or setting a definite date for the motion to be heard. Approximately seven months later, the trial court overruled appellants’ motion for new trial after considering it upon its merits.
The sequence of the pertinent filings are set out for clarity:
1984
December 21 — Judgment filed.
December 31 — Motion for new trial filed.
1985
July 18 — Order entered overruling motion for new trial.
July 25 — Notice of appeal from denial of new trial filed.
In Smith v. Boone, 284 Ark. 183, 680 S.W.2d 709 (1984), the supreme court dismissed the appellants’ attempted appeal from a judgment because the notice of appeal was not filed within the time permitted by law. The court in Smith followed Ark. R. App. P. 4(c), which provides as follows:
It shall be the duty of the party filing any of the motions mentioned in section (b) of this rule to present the same to the trial court within thirty (30) days from the date of filing, and if the matter cannot be heard within those thirty (30) days, the moving party shall, within those thirty (30) days, request the court to set a definite date for hearing said motion. Unless the motion shall have been presented to the trial court and taken under advisement within the thirty (30) days, or the court shall have set a definite date for the hearing, it shall be deemed that the motion has been finally disposed of at the expiration of thirty (30) days from its filing, and the time for filing notice of appeal shall commence to run from the expiration of the thirty (30) days. If, within the thirty (30) days, the motion shall have been presented to the court and taken under advisement, or the court shall have fixed a definite date for a hearing, the motion shall not be deemed to have been disposed of until the court shall enter its order granting or denying the motion.
In Smith the court noted that a written record of the trial court’s action in taking the motion under advisement or setting a date for its hearing is mandatory.
Ark. R. App. P. 4(d) provides that:
If the motion is denied by the court or is deemed to have been disposed of at the expiration of thirty (30) days from its filing, any party desiring to appeal from the judgment, decree or order originally entered shall have ten (10) days from the entry of the order denying the motion or from the date of its disposition as herein provided, within which to give notice of appeal; but this rule does not shorten the time for filing notice of appeal to less than thirty (30) days from the date of entry of the original judgment, decree or order.
In Reynolds v. Spotts, 286 Ark. 335, 692 S.W.2d 748 (1985), the supreme court applied Rule 4(c) and (d) to bar an attempted notice of appeal filed on August 30,1984, with respect to a case in which a new trial motion was deemed disposed of on April 25, 1984. The court there held that the time for filing a notice of appeal ran out ten days from April 25, 1984.
In a per curiam decision, Monk v. Farmers Insurance Co., 290 Ark. 38, 716 S.W.2d 201 (1986), the supreme court reaffirmed this position and granted the appellee’s motion to dismiss the appeal for the appellant’s failure to file a timely notice of appeal pursuant to Rule 4(c) and (d). The appellant’s motion for new trial was deemed to have been disposed of and appellant did not appeal within ten days of the deemed disposal of the motion for new trial.
In the case at bar appellants did not obtain a written record of the trial court’s action in taking their motion for new trial under advisement or setting a date for its hearing. Accordingly, appellants’ motion was deemed to have been disposed of thirty days after December 31,1984. Appellants did not file their notice of appeal within ten days of that date and it was therefore untimely. Assuming arguendo that appellants had in fact followed Rule 4(c), the trial court nevertheless lost jurisdiction to rule on appellants’ motion ninety days after the judgment was filed pursuant to ARCP Rule 60(b). Mullen v. Couch, 288 Ark. 231, 703 S.W.2d 866 (1986).
Dismissed.
Clqninger, J., agrees.
Mayfield, J., concurs. | [
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Donald L. Corbin, Judge.
This is an appeal from an order of the Pulaski County Circuit Court registering a Texas default judgment entered against appellant, Dr. John E. Allen, and his son, David Scott Allen. We find no merit to appellant’s contention that the Circuit Court of Harris County, Texas, lacked personal jurisdiction over appellant and that its judgment was unenforceable in this state and affirm.
The record reflects that the Texas default judgment was based upon a $25,000 promissory note which appellant, a resident of Arkansas, signed to guarantee the payment of legal services rendered to his son by appellees, Roy Beene and William Tipton. Appellant’s son, a resident of Texas, had been charged in Texas with several criminal offenses. Before appellees were retained to represent appellant’s son, they received a phone call from a Houston physician who had been asked by appellant to assist him in locating an attorney for his son. John Achor, a Little Rock attorney representing appellant, went to Houston and met with appellees concerning the criminal charges pending against appellant’s son. Mr. Achor’s trip expenses were paid for by appellant. Appellant subsequently contacted appellee Beene by telephone and a promissory note was mailed to appellant as a result of this conversation. It was signed by appellant in Little Rock and returned by mail to appellees. Appellant’s son received a probated sentence and appellees made demand upon appellant for payment of the promissory note. Appellees filed suit in Texas to collect on the note and appellant was personally served in Little Rock by the Pulaski County Sheriff. There was testimony that appellees were contacted by David Bird, a Houston attorney, to negotiate a settlement and appellees delayed taking their default judgment against appellant for thirty or forty days. Appellant did not defend the lawsuit and a default judgment was entered against him. Appellees filed their Application For Registration Of Foreign Judgment pursuant to Ark. Stat. Ann. § 29-801 et. seq. (Repl. 1979) on September 5,1984. On August 6,1985, an order was entered registering appellees’ foreign judgment in the amount of $22,822.
Appellant argues that his contacts with Texas were not constitutionally sufficient to justify its exercise of personal jurisdiction over him. In this regard he relies upon the fact that the negotiations leading up to the execution of the promissory note took place by telephone; that the promissory note was signed by appellant in Arkansas and mailed to Texas; that the purpose of the note was to guarantee payment of legal fees incurred in Texas; and that appellant did not hire appellees to represent his son nor negotiate their fee.
Section 4 of Tex. Rev. Civ. Stat. Ann. art. § 2013b (Vernon 1964), the Texas “Long-Arm Statute,” provides as follows:
For the purpose of this Act, and without including other acts that may constitute doing business, any foreign corporation, joint stock company, association, partnership, or non-resident natural person shall be deemed doing business in this State by entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State, or the committing of any tort in whole or in part in this State.
Article 2031b reaches as far as the federal constitutional requirements of due process will permit. U-Archor Advertising, Inc. v. Burt, 553 S.W.2d 760 (Tex. 1977), cert. denied, 434 U.S. 1063 (1978). In O’Brien v. Lanpar Co., 399 S.W.2d 340 (Tex. 1966), the Texas Supreme Court recognized the following statement of the three basic elements that must exist to sustain jurisdiction over a non-resident:
‘(1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state;
(2) the cause of action must arise from, or be connected with, such act or transaction; and
(3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.’
In Product Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir. 1974), a dual test was set out for determining whether a court may take jurisdiction without depriving the defendant of due process: (1) The quality of the defendant’s contacts with the forum state must be of such a purposeful nature that the court can determine that such contacts were deliberate rather than fortuitous so that the possible need to invoke the benefits and protections of the forum’s laws was reasonably forseeable, if not foreseen, rather than a surprise, and (2) It must be fair and reasonable to require the defendant to come into the state and defend the action.
In Diversified Resources Corp. v. Geodynamics Oil and Gas, Inc., 558 S.W.2d 97 (Tex. Civ. App. 1977), suit was brought against a foreign corporation on a note and settlement agreement. The court there determined the trial court had jurisdiction over the foreign corporation, stating:
We hold, therefore, that the defendant by executing the note, which clearly reflected the payments were due in the State of Texas, and by executing the agreement which settled the lawsuit on file in the Southern District of Texas wherein the settlement was to be performed in the State of Texas, not only purposefully conducted business in the State of Texas but it also contracted to perform its obligations within the State of Texas, thus invoking the benefits and protections of this State’s law.
Id. at 99. The evidence in Diversified established that there were contacts by the defendant in Texas in addition to the making of payments in that state. The Court of Civil Appeals of Texas also found jurisdiction over the person of the defendant in Pizza Inn, Inc. v. Lumar, 513 S.W.2d 251 (Tex. Civ. App. 1974). A Texas corporation brought suit there against a nonresident for breach of a franchise contract. The court concluded that the defendant was “doing business” in Texas as defined by Article 2031 b by entering into a contract by mail with a resident of Texas, which contract was performable, at least in part, in Texas.
We agree with the trial court’s determination in the case at bar that there were sufficient minimum contacts by appellant within the state of Texas enabling it to exercise personal jurisdiction over appellant. Appellee Beene testified that he had set a fee and was in the process of negotiating with appellant’s son when appellant sent John Achor to meet with appellees in March. He stated that he decided in April that he would not represent appellant’s son unless his fee was guaranteed by appellant. Appellant’s action in executing a promissory note guaranteeing payment of his son’s legal fees for legal services rendered by apipellees in Texas constituted “doing business” in Texas within the purview of the Texas “Long-Arm” statute. The agreement was performable in Texas, the note was payable in Texas and there was also evidence of an attempted settlement of the debt in Texas. Furthermore, appellant contacted appellees in Texas and as a result of this conversation, appellees sent a promissory note for appellant to sign. We hold the evidence conclusively establishes that appellant purposefully elected to consummate transactions in Texas, that appellees’ cause of action arose from and was connected with these transactions and that the assumption of jurisdiction by Texas did not offend traditional notions of fair play and substantial justice.
Affirmed.
Cracraft, C.J., and Mayfield, J., agree. | [
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Lawson Cloninger, Judge.
Appellant Arkansas Real Estate Commission raises three points for reversal of a circuit court ruling overturning a Commission decision. Under our standard of review for administrative proceedings, we find no error in the court’s determination, and we accordingly affirm its order.
On March 11, 1985, the Commission heard evidence on whether to suspend or revoke appellee Jasper Hoggard’s real estate broker’s license. Appellee had been charged with failing to supervise the activities of real estate salesmen licensed under him as the principal broker at SMI Investments, failing to notify appellant of his changing addresses, and failing to return his and his salesmen’s licenses upon leaving SMI Investments. The Commission found appellee guilty of failing to supervise properly and of failing to return the licenses in violation of the law and revoked his license.
On April 8,1985, the Commission heard further evidence at appellee’s request. Subsequently, appellant affirmed its earlier decision but ordered that appellee could be relicensed upon successful completion of the broker’s examination after one year.
Appellee filed an appeal with the Circuit Court of Washington County. The circuit judge found that appellee had substantially complied with the requirements of the law in returning his license. Moreover, the court found that there was no evidence of record that appellee had actual knowledge that a suspended broker had undertaken to sell real estate or that appellee had engaged in any sort of arrangement, conspiracy, or understand ing with the suspended broker to sell real estate or had knowledge of such conduct. Holding that the evidence of record fell short of being substantial, the circuit court reversed the decision of the Commission. From that ruling, this appeal arises.
The Commission argues, in its first point for reversal, that the trial court erred in holding that appellee had to have actual knowledge of improper acts in order for appellant to impose disciplinary action. Appellant contends that such a requirement negates the principal broker’s supervisory responsibility emphasized by Ark. Stat. Ann. § 71-1306(e) (Supp. 1985) and Arkansas Real Estate Commission Regulation 33.
In reviewing the actions of an administrative commission or agency, a circuit court’s review of the evidence is limited to a determination of whether there was substantial evidence to support the action taken. On appeal, we are similarly limited to a determination of whether the action of the commission or agency is supported by substantial evidence. Arkansas Real Estate Commission v. Hale, 12 Ark. App. 229, 674 S.W.2d 507 (1984). See also Black v. Arkansas Real Estate Commission, 275 Ark. 55, 626 S.W.2d 954 (1982). Substantial evidence has been defined as valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion; it must force the mind to pass beyond conjecture. Arkansas Real Estate Commission v. Hale, supra.
On the basis of the record, we cannot see how a reasonable mind could have reached the conclusion that appellee was guilty of wrongdoing in the supervision of Robert Eckels, a broker whose license had been revoked and who had offered to sell real estate to a Commission investigator. Eckels had placed an advertisement in a Fort Smith newspaper on November 27,1984, that prompted an investigation. Appellee was in Dallas from Wednesday through Sunday of that week, and was unaware of the listing. The circuit court found that there was no substantial evidence that appellant had actual knowledge of Eckels’s action. Nothing in either the statutes or the Commission Regulations imposes the burden of constructive knowledge upon brokers. We therefore believe the court was correct.
Appellant’s second point for reversal is merely an elaboration of the theme stated in its first point — i.e., that the circuit court erred in reversing the Commission’s finding that sufficient evidence existed to find that appellee had failed strictly to supervise the salesmen associated with his firm. Putting the actual knowledge argument aside, appellant contends that appel-lee’s failure to review the newspaper real estate advertisements on his return from Dallas, which presumably would have led to the detection and possible prevention of Eckels’s unlawful conduct, constituted a failure strictly to supervise the broker’s activities.
Arkansas Real Estate Commission Regulation 33 states that “It shall be the duty of a broker to instruct his salesmen to regard the fundamentals of real estate practice and the ethics of the profession and to exercise strict supervision of their real estate activities.” Although it was appellee’s customary practice to review all real estate advertisements in the local paper, we do not see how his act of omission in this instance amounts to substantial evidence of a violation of Regulation 33. In any event, the advertisement was listed under a business heading, and Eckels had permission from the Commission to continue to sell non-residential property. Eight of the nine listings in the ad were for business real estate; the ninth, which brought about the investigation, was an apartment listing. Appellee was not a target of the investigation and did not learn about the advertisement until the Commission notified him in advance of the March 11, 1985, hearing. This does not, in our view, constitute substantial evidence of a failure strictly to supervise sales personnel.
In its third point for reversal, appellant argues that the circuit court erred in holding that there was no substantial evidence to support the Commission’s finding that appellee failed to return all licenses under Regulation 13(b), which requires a broker, upon closing his firm or place of business, to return all licenses and pocket cards to the Commission for cancellation. Appellee had begun moving from Fort Smith to Springdale on January 3, 1985. He submitted his broker’s license and pocket cards to appellant on January 15, 1985, almost two weeks later.
Appellant contends that appellee did not surrender his license as principal broker until the commission’s staff contacted him at Springdale and speculates that he intended to leave his license with the firm he had left until the suspension imposed on Eckels was lifted in February. We do not, however, sit as a factfinder, and such conjecture is beyond the scope of our review.
The record indicates that, in the process of relocating, appellee made frequent trips between Fort Smith and Springdale during the period in question. He was in the Fort Smith office on January 7,11, and 12, winding down business. Appellee received a phone call from the Commission on January 14, 1985, and mailed in his license the following day. There is no substantial evidence to indicate that he was engaged in any business transactions during the time in which he was moving, and nothing in the record justifies appellant’s speculation regarding his motives for delay.
Affirmed.
Cooper, J.. and Wright, Special Judge, agree. | [
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Donald L. Corbin, Judge.
Appellant, Farmers and Merchants Bank, appeals a decision of the Randolph County Chancery Court, cancelling and releasing a promissory note. Appellee, James L. Poe, cross-appeals the decision of the chancellor awarding appellant the expenses related to collection of the note in question in a bankruptcy action. We affirm.
There were two notes involved in this litigation. The “Coy Rogers” note involved a secured real estate loan from appellant to appellee James Poe in 1979. In January of 1980, appellee James Poe and another individual obtained a loan from appellant on the security of two certificates of deposit to start a retail clothing store in Memphis, Tennessee. In January of 1981, the business was incorporated as Studio One, Inc., and the second note in question, known as the “Studio One” note, was made with Studio One, Inc., as a maker. This note was secured by the inventory of Studio One, Inc. It is disputed by the parties whether appellee James Poe was a co-maker or guarantor of this note.
In April of 1981, a fire destroyed the inventory of Studio One, Inc.; however, it was insured in a sufficient amount to discharge the indebtedness owed on the “Studio One” note. In July of 1981, Studio One, Inc., was placed in a Chapter Seven involuntary bankruptcy proceeding by its unsecured trade creditors. The trustee in bankruptcy challenged appellant’s claim to a perfected security interest in the inventory of Studio One, Inc., because appellant did not perfect its security interest until July 1, 1981. As a result of this challenge by the trustee in bankruptcy, appellant only received $10,000 of the insurance proceeds paid into the bankruptcy estate of Studio One, Inc. The parties entered into an agreement on October 23,1984, providing for the $ 10,000 payment on the “Studio One” note to appellant. This agreement contained specific reservation of rights provisions in favor of appellant and appellee James Poe. With respect to the “Studio One” note, the chancery court held that appellant was barred from proceeding on a collection of the balance of the “Studio One” note because of the settlement of the claim in the bankruptcy proceeding.
The “Coy Rogers” note, became involved in this suit because a tender of payment was made by appellee James Poe to appellant which did not match the balance due on it because appellant charged this note with the “Studio One” accrued interest. The chancellor ruled that the interest on the “Studio One” note could not be charged to the “Coy Rogers” note and granted judgment for a lesser amount. Appellant raises four issues and appellee James Poe cross-appeals. We will consider each issue in the order raised.
I.
THE COURT INCORRECTLY APPLIED THE LAW CONCERNING THE EFFECT OF THE SETTLEMENT AGREEMENT.
Appellant relies on the language in Ark. Stat. Ann. § 85-3-606 (Add. 1961) which states:
Impairment of recourse or of collateral. — (1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder
(a) without express reservation of rights releases or agrees not to sue any person against whom the party has to the knowledge of the holder a right of recourse or agrees to suspend the right to enforce against such person the instrument or collateral or otherwise discharges such person, except that failure or delay in effecting any required presentment, protest or notice of dishonor with respect to any such person does not discharge any party as to whom presentment, protest or notice of dishonor is effective or unnecessary; or
(b) unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.
(2) By express reservation of rights against a party with a right of recourse the holder preserves
(a) all his rights against such party as of the time when the instrument was originally due; and
(b) the right of the party to pay the instrument as of that time; and
(c) all rights of such party to recourse against others.
Appellant specifically relies on § 85-3-606(2)(a)(b) and (c), alleging that pursuant to the terms of the settlement agreement, it had preserved its rights to personally sue appellee James Poe for the deficiency on the “Studio One” note. However, appellant also admits that appellee James Poe preserved his rights to raise impairment of collateral as a defense. The evidence was uncon-tradicted that the collateral was impaired because of appellant’s failure to properly file its security agreement with the Tennessee Secretary of State so as to perfect its security interest in the Studio One, Inc., inventory.
The loan to Studio One, Inc., was made on January 9,1981; however appellant’s financing statement was not filed until August 10,1981. This was effected subsequent to the beginning of Studio One, Inc.’s bankruptcy action in July of 1981. Appellee James Poe adduced evidence that appellant not only impaired the collateral but also established the extent to which that impairment resulted in a loss. See Van Balen v. Peoples Bank & Trust Co., 3 Ark. App. 243, 626 S.W.2d 205 (1981). The loss was easily established by the fact that had the security interest been perfected, the proceeds from the insurance covering the loss of the Studio One, Inc., inventory would have covered the entire indebtedness owed appellant. Appellant failed to present proof to rebut the evidence that it had failed to perfect its security interest nor did it rebut the proof of the extent to which that impairment resulted in a loss.
In J. White and R. Summers, Handbook of the Law under the Uniform Commercial Code, § 13-15 (1980), it is noted that Section 3-606(1 )(b) does not authorize the creditor to reserve his rights when he impairs the collateral. The evidence in the instant case supports the conclusion that appellant unjustifiably impaired the collateral and this act by appellant discharged appellee James Poe. Appellant could not reserve its rights by virtue of the settlement agreement of October 23, 1984, and we hold that the trial court’s application of the law in respect to the settlement agreement was not in error.
II.
THE EVIDENCE IS NOT CLEAR, STRONG AND CONVINCING THAT APPELLEE JIM POE WAS A GUARANTOR OF THE NOTE RATHER THAN A CO-MAKER.
We agree with the chancellor’s determination that the issue of whether appellee James Poe was a guarantor or maker on the “Studio One” note was immaterial. In construing the language of Ark. Stat. Ann. § 85-3-606, the Arkansas Supreme Court stated: “ ‘[a]ny party to an instrument’ as used therein is broad enough to include all makers and endorsers.” Rushton v. U.M.&M. Credit Corp., 245 Ark. 703, 707, 434 S.W.2d 81, 83 (1968). Accordingly, appellee James Poe could properly raise the defense of impairment of collateral either as a maker or a guarantor.
Appellant erroneously argues that appellee James Poe’s status on the “Studio One” note is critical because if the trial court had determined appellee Poe’s status to be a co-maker on the note, that determination would eliminate any question concerning impairment of the collateral. This argument is without merit inasmuch as the term “any party to an instrument” in § 85-3-606(1) includes makers and endorsers.
III.
THE COURT ERRED IN FAILING TO HOLD THAT PRINCIPLES OF ESTOPPEL SHOULD BE APPLIED AGAINST APPELLEE IN EXECUTING THE NOTE DATED DECEMBER 23, 1982.
The main thrust of appellant’s contention here is that when appellee James Poe executed the renewal note on December 23, 1982, appellee Poe was aware that a serious question existed concerning appellant’s perfection of its security interest in the Studio One, Inc., inventory. Appellant suggests that inasmuch as this note was executed and ratified with knowledge of this defect or defense, appellee James Poe is estopped from contending that the collateral was impaired. Appellant refers this court to 11 Am. Jur. 2d Bills and Notes § 391 (1964), pertaining to whether the execution of a renewal note cuts off defenses available against the original note. This section, however, provides that in a great many cases, it has been held on the grounds of either waiver or estoppel that the renewal of a note precludes defenses of which the maker has knowledge. See The City National Bank of Fort Smith, Arkansas v. Vanderboom, 290 F.Supp. 592 (W.D. Ark. 1968), aff'd, 422 F.2d 221 (8th Cir. 1970). Appellant also cites as authority a number of Arkansas cases for the general rule that as between the maker and the payee, any defense that would be good against the original note would be equally good against a note taken in renewal without additional consideration. See Dodd v. Axle-Nut Sign Co., 126 Ark. 14, 189 S.W. 663 (1916).
In the instant case, the chancellor determined appellee James Poe was a guarantor on the “Studio One” note. We believe this finding is amply supported by the evidence. The renewal note dated December 23, 1982, established appellee James Poe’s status as a guarantor. A memo from appellant’s cashier to appellee James Poe dated March 18, 1982, was entered into evidence and requested appellee Poe to sign and return an attached Guaranty Agreement. The language of the settlement agreement dated October 23,1984, reflects that appellee James Poe was considered by appellant as a guarantor on the “Studio One” notes. The notes which pre-dated the renewal note of December 23,1982, also established appellee James Poe’s status as a guarantor. Correspondence between appellant and appellee James Poe’s attorney reflected appellee Poe’s guarantor status. Appellant’s Extension Agreement dated March 26, 1984, referred to appellee James Poe’s personal guaranty of the “Studio One” note. A proof of claim form filed by appellant on May 9, 1984, in the Studio One, Inc., bankruptcy action indicated appellant’s claim was subject to the “endorsement of Jim Poe and Catherine M. Poe d/b/a.”
In addition to the above documentary evidence supporting the conclusion that appellee James Poe was a guarantor on the “Studio One” note, there was also credible testimony by appellee Poe to this effect. Although we review chancery cases de novo, we will not set aside the 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); ARCP Rule 52(a). We agree with the chancellor’s finding that appellee James Poe was a guarantor and not a maker on the “Studio One” note. Accordingly, appellee James Poe’s status on the “Studio One” note as a guarantor disposes of appellant’s argument that appellee Poe was estopped from contending appellant unjustifiably impaired the collateral due to its failure to perfect a security interest in the collateral.
Appellant also argues that although appellee James Poe was aware of the problems with the bankruptcy proceedings, he nevertheless renewed the “Studio One” note on December 23, 1982. We find no merit to this contention for the same reasons we have enunciated in the issue concerning appellant’s failure to perfect its security interest in the collateral and appellee James Poe’s knowledge of this defect. Appellee James Poe’s defense to the note was not precluded in view of his status as a guarantor on the “Studio One” note.
IV.
THE COURT SHOULD HAVE FOUND APPEL-LEE WAS ESTOPPED BY RIFFEL’S LETTER OF JULY 3, 1984.
Appellant has requested that we examine the letter of July 3, 1984, from appellee James Poe’s attorney to appellant’s president. The letter was written in reference to appellant’s Extension Agreement dated May 8,1984, and provided in pertinent part as follows:
I will contact the lawyer handling the bankruptcy matter in Memphis to find out to what extent, if any, this obligation is involved or affected by the bankruptcy proceedings and once that information is in hand, I will be in contact with Mr. Poe and will advise you as to what seems to be the best course to pursue at this time.
We are, of course, counting on the fact that your efforts to have all or part of your obligation paid by the principal corporation will be successful thereby reducing Mr. and Mrs. Poe’s individual liability. Therefore, we encourage you to make every effort to secure payment from the corporation. When that has been done, any personal guarantees will be honored.
Appellant argues that the purpose of the letter was to reaffirm appellee James Poe’s guaranty of the “Studio One” note and that by doing so, appellee Poe waived his defenses to the enforcement of his guaranty. Appellant contends that appellee James Poe’s conduct in this regard provided appellant with a separate basis for asserting estoppel. We do not agree with appellant’s interpretation of the letter and find no merit to this argument.
The chancellor obviously considered the letter as a whole within the time and context in which it was written and concluded that appellee James Poe’s attorney did not know the true state of affairs surrounding the bankruptcy action at the time the letter was written. It is well settled that whether estoppel is applicable is an issue of fact to be decided by the trier of fact. Askew Trust v. Hopkins, 15 Ark. App. 19, 688 S.W.2d 316 (1985). Furthermore, the party asserting estoppel must prove it strictly, there must be certainty to every intent, the facts constituting it must not be taken by argument or inference, and nothing can be supplied by intendment. Ward v. Worthen Bank & Trust Co., 284 Ark. 355, 681 S.W.2d 365 (1984), citing Martin, Inc. v. Indiana Refrigeration Lines, Inc., 262 Ark. 671, 560 S.W.2d 228 (1978). We cannot conclude the chancellor’s finding that appellee James Poe was not estopped by his attorney’s letter to appellant was clearly erroneous.
CROSS-APPEAL
APPELLEE SHOULD NOT BE REQUIRED TO PAY ATTORNEY’S FEES INCURRED EXCLUSIVELY FOR THE BENEFIT OF APPELLANT.
Appellee James Poe contends that if the chancellor properly determined appellant unjustifiably impaired the collateral, the legal expenses incurred by appellant were not expenses related to the collection of the note inasmuch as appellant’s negligent actions rendered collection impossible. Appellee James Poe argues that appellant’s legal fees were incurred in the furtherance of appellant’s business and not appellee’s.
The chancellor ordered appellee James Poe to pay appellant’s legal fees incurred in the bankruptcy proceeding. It is well settled that the award of attorney’s fees addresses itself to the sound discretion of the trial court and will not be reversed in the absence of an abuse of discretion. Troutt v. First Federal Savings & Loan Association of Hot Springs, 280 Ark. 505, 659 S.W.2d 183 (1983); Pack v. Hill, 18 Ark. App. 104, 710 S.W.2d 847 (1986). Appellee James Poe cites us to no authority on this point. Assignments of error presented by counsel in their brief, unsupported by convincing argument or authority, will not be considered on appeal unless it is apparent without further research that they are well taken. Warner v. Warner, 14 Ark. App. 257, 687 S.W.2d 856 (1985). We fail to find an abuse of discretion on the part of the chancellor here.
Affirmed on direct appeal; affirmed on cross-appeal.
Cloninger and Mayfield, JJ., agree. | [
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Tom Glaze, Judge.
Appellee, a deputy sheriff and radio dispatcher for the Pulaski County Sheriff’s Office, was injured en route from his home to work. In his claim for workers’ compensation benefits, appellee contended he had sustained an accidental injury arising out of and in the course of his employment. Appellant countered, arguing appellee’s claim for benefits was barred by the “going and coming” rule. In awarding benefits to appellee, the Commission determined the “going and coming” rule did not apply because appellee’s employer considered the appellee on duty at the time of his accident. We affirm.
Arkansas recognizes the general rule that injuries which occur while an employee is going to or from work are not compensable. City of Sherwood v. Lowe, 4 Ark. App. 161, 628 S.W.2d 610 (1982). In this cause, the sole issue is whether substantial evidence exists to support the Commission’s decision that appellee’s claim is not barred by the “going and coming” rule. We have no problem in concluding there is such evidence.
Appellant argues appellee’s claim is not compensable because, at the time of his accident, appellee, when going to work, was riding his own personal motorcycle, wearing civilian clothes and not enforcing any laws. Appellant suggests the only evidence that could support compensability is the testimony of appellant’s commander, Major Zoeller — who said appellee was on duty commencing at the time he left his residence. Appellant discounts Zoeller’s testimony because appellee worked only an eight-hour shift, was paid for eight hours and was not furthering the sheriff department’s interests when he was injured.
While Zoeller indicated appellee and other deputies were paid a salary for an eight-hour shift, he also stated that appellee was “considered ... on duty from the time he leaves home until the time he gets back home after the end of his shift. And if it took him thirty minutes to get to work and thirty minutes to get home, he’d be on duty nine hours a day. . . .” Zoeller also expressed that the sheriffs department, because of the Fair Labor Standard Act, was going to have to start paying for nine hours instead of eight.
In Hawthorne v. Davis, 267 Ark. 816, 596 S.W.2d 329 (Ark. App. 1979), aff'd, 268 Ark. 131, 594 S.W.2d 844 (1980), our Court, quoting from 100 C.J.S. Workmen’s Compensation § 535 (1958) at page 536, said:
In a compensation proceeding evidence is admissible as to statements made by an employer or his representative where the statement constitutes a declaration or admission against the employer’s interest; and an admission by an employer that workmen were injured in an accident arising out of and in the course of their employment may be admissible in evidence although the claim for compen sation is being contested by the employer’s insurance carrier. [Emphasis supplied.]
Appellant claims Major Zoeller’s admission that appellee was on duty when he was injured is a mere “naked assertion.” We cannot agree. Zoeller related that the departmental policy, that a deputy is considered on duty from the time he leaves home, came into effect as a result of the take-home-car program, and has as its rationale the idea that the officer’s presence is “more noticeable on the street.” As already mentioned, that “going-to-work time” is a period for which Zoeller says the department is required to pay a salary. Also, Zoeller stated appellee is required by departmental policy to take action at any time when he witnesses an offense occurring in his presence. We mention these policy and salary factors only to show that, rather than a naked assertion by Zoeller, there appear to be valid reasons why the sheriff’s department expects its deputies to be on duty when going to and from work. Based upon the facts and testimony before us, we believe there was substantial evidence from which the Commission could, and did, conclude that appellee was on duty and within the scope of his employment when he sustained his injury.
Affirmed.
Cooper and Mayfield, JJ., dissent; Corbin, J., not participating; Wright, Special Judge, agrees.
Consistent with that policy, Zoeller testified that deputies, including those in the radio room, are required to wear their uniforms. Zoeller said that when appellee was injured, deputies, who were in the radio room, were allowed to wear the cooler civilian clothes because the air conditioner in the office was malfunctioning. The sheriff department’s expressed reasons for considering deputies on duty when going to and from work make insignificant the fact appellee was wearing civilian clothes at the time of his accident. | [
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Tom Glaze, Judge.
Appellant appeals from a jury verdict convicting him of aggravated robbery. He was sentenced to twenty years in the Department of Correction. We affirm, as modified, and issue this memorandum opinion pursuant to section (d) of the per curiam In re Memorandum Opinions, 16 Ark. App. 301, 700 S.W.2d 63 (1985).
This case is clearly controlled by the supreme court’s recent decision in a companion case. See Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986). Trotter was decided on the same facts and evidence presented in the instant case. The court held that the proof did not support the jury’s finding of aggravated robbery. Further, the court held that first degree battery was a lesser included offense of aggravated robbery. We are bound by that decision.
In Trotter, the court, quoting Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977), held:
[i]n this situation we may, depending upon the facts, “reduce the punishment to the maximum for the lesser offense, reduce it to the minimum for the lesser offense, fix it ourselves at some intermediate point, remand the case to the trial court for the assessment of the penalty, or grant a new trial either absolutely or conditionally.”
290 Ark. at 277.
First degree battery is a class B felony punishable by five to twenty years imprisonment. The jury sentenced appellant to twenty years in prison, and we see no reason, based upon the record and evidence presented, to change the length of the sentence under the lesser offense — the same as imposed by the supreme court in Trotter. Therefore, we fix appellant’s sentence at twenty years for the lesser included offense of first degree battery.
Affirmed as modified.
Cracraft, C.J., and Corbin, J., agree. | [
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James R. Cooper, Judge.
This is an appeal from a decision of the Chancery Court of Pulaski County holding that the property settlement agreement incorporated into the parties’ divorce decree was an independent contract and, therefore, unmodifiable. The appellant contends that the chancellor erred in finding the agreement to be unmodifiable and in refusing to consider evidence of the parties’ understanding as to when alimony was to cease under the contract.
The parties were divorced on December 13, 1977. The divorce decree set forth, verbatim, the original of the property settlement agreement (Agreement) entered into November 15, 1977, and adopted and incorporated the entire agreement. The Agreement provides in pertinent part:
WHEREAS, it is the desire and intention of the parties that their relations, with respect to property and financial matters, be finally fixed by this agreement in order to settle and determine in all respects and for all purposes their respective present and future property rights, claims and demands in such a manner that any action with respect to the rights and obligations, past, present or future, of either party with respect to each other, be finally and conclusively settled and determined by this agreement ....
NOW, THEREFORE, in consideration of the premises and undertakings herein contained, and for other good and valuable consideration, the parties agree:
9. Husband shall pay to wife the sum of $150.00 per month payable on the first of each and every month beginning December 1, 1977, as support for said wife.
12. The terms and provisions of this agreement shall constitute a stipulation of the divorce action instituted by the wife against the husband in the Chancery Court of Pulaski County, Arkansas, cause number 76-3660.
(Emphasis added.) The agreement also sets forth detailed provisions regarding property division and child custody, visitation, and support.
It is well settled law that there are two types of property agreements regarding the payment of alimony. Seaton v. Seaton, 221 Ark. 778, 255 S.W.2d 954 (1953); Linehan v. Linehan, 8 Ark. App. 177, 649 S.W.2d 837 (1983). The court in Seaton distinguished between these two different types of agreements:
One is an independent contract, usually in writing, by which the husband, in contemplation of the divorce, binds himself to pay a fixed amount or fixed installments for his wife’s support. Even though such a contract is approved by the chancellor and incorporated in the decree, as in the Bachus case, it does not merge into the court’s award of alimony, and consequently, as we pointed out in that opinion, the wife has a remedy at law on the contract in the event the chancellor has reason not to enforce his decretal award by contempt proceedings.
The second type of agreement is that by which the parties, without making a contract that is meant to confer upon the wife an independent cause of action, merely agree upon “the amount the court by its decree should fix as alimony.” Pryor v. Pryor, 88 Ark. 302,114 S.W. 700,129 Am. St. Rep. 102, which construed an agreement of the first type, and Holmes v. Holmes, 186 Ark. 251,53 S. W.2d 226, involving an agreement of the second type. See also 3 Ark. L. Rev. 98. A contract of the latter character is usually less formal than an independent property settlement; it may be intended merely as a means of dispensing with proof upon an issue not in dispute, and by its nature it merges in the divorce decree. In the Holmes case we held that the second type of contract does not prevent the court from later modifying its decree.
221 Ark. at 780.
The appellant contends that the agreement is a modifiable one, which was intended merely as a means of dispensing with proof on issues not in dispute and, therefore, merged into the divorce decree. As support for this contention, he points to paragraph twelve (12) of the Agreement, supra, which provides that the agreement shall be a stipulation in the divorce action. The appellee counters that the agreement is an independent contract and is nonmodifiable, relying on language in the Agreement which provides that the agreement is finally fixed and determined in all respects and purposes and conclusively settled by the Agreement. We agree with the appellee, and find that Linehan, 8 Ark. App. 177, is controlling.
In Linehan, the parties entered into a stipulated agreement, orally dictated into the record in open court, providing that the agreement would be incorporated into the decree by reference. 8 Ark. App. at 179. Like the Agreement here, the stipulation was detailed, covering all aspects of the controversy from property division to child visitation, and was incorporated into the decree without variance. We recognized that there were two types of stipulations: procedural, aimed at facilitating the lawsuit by simplifying proof, and contractual, dealing with the subject of the lawsuit, such as the rights or property at issue. 8 Ark. App. at 180-81. We pointed out that a contractual stipulation can only be withdrawn on grounds for nullifying a contract and stated:
We are not saying that a stipulation in every instance will have the full force and effect of a binding agreement or a contractual right, but when, as here, all the rights and liabilities of the parties are covered in such a total and complete agreement, then it will not be modifiable.
Id. The Agreement in the case at bar, like the agreement in Linehan, is a comprehensive and complete agreement, setting forth everything from child custody to proper visitation. Moreover, it is a written agreement, signed prior to entry of the decree, and by its language, it attempts to finally settle all of the parties’ differences. We affirm the chancellor’s decision on this point.
The appellant next contends that the chancellor erred in refusing to consider evidence as to the parties’ intent as to when alimony should cease. The chancellor found in her order that “what the parties may have intended is not relevant, as the contract must be gathered from the four corners of the instrument, where there is no ambiguity and the instrument is a complete integration of the parties [sic] agreement, as is the case here.”
Paragraph nine (9) of the Agreement merely states that the husband is to pay the wife $ 150.00 a month as support; it is silent as to when, if ever, this obligation ceases. Alimony has long been defined in Arkansas as
a continuous allotment of sums, payable at regular intervals, for [the wife’s] support from year to year, and continues only during the joint lives of the parties, or, in case of divorce from the bonds of matrimony, until the wife marries again. . . .
Birnstill v. Birnstill, 218 Ark. 130, 131, 234 S.W.2d 757, 758 (1950) (quoting Brown v. Brown, 38 Ark. 324 (1881)); accord, Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980). Where no definite time is fixed, a decree for alimony will, by its nature, cease with the death of either party, or, upon the remarriage of the wife, the husband may obtain relief by making proper application to the court. Casteel v. Casteel, 38 Ark. 311 (1882). The former causes cessation of alimony automatically. See, Snyder v. Snyder, 13 Ark. App. 311, 683 S.W.2d 630 (1985). However, remarriage does not automatically terminate the right to alimony, as there may be circumstances under which the court may be justified in continuing alimony payments. Frawley v. Smith, 3 Ark. App. 74, 622 S.W.2d 194 (1981). Normally, however, remarriage of the receiving spouse is, in and of itself, a sufficient reason for the termination of alimony. Id.; accord, Beasley v. Beasley, 247 Ark. 338, 445 S.W.2d 500 (1969); Wear v. Boydstone, 230 Ark. 580, 324 S.W.2d 337 (1959). Because there are two circumstances in which alimony normally ceases, one automatic and the other not, we find the provision for alimony in this case to be ambiguous as to its termination date. Therefore, we hold that the chancellor erred in refusing to consider evidence of the parties’ intent as to when alimony should terminate.
In this case, the chancellor allowed evidence of intent into the record, although she specifically said she did not consider it. The evidence as to intent presented in the record is in hopeless conflict. In such a case, determining the credibility of the witnesses is a critical issue, which must be resolved before the court can reach a decision on the issue of intent. See, Reed v. Radebaugh, 8 Ark. App. 78, 648 S.W.2d 816 (1983). The chancellor is in a superior position to determine the credibility of the witnesses, as she has the opportunity to observe their demeanor when testifying, while we are restricted to the written record. See, Bone v. Bone, 12 Ark. App. 163, 671 S.W.2d 217 (1984). Although we do not normally remand cases we have before us on de novo review, instead entering the decree that the chancellor should have entered, we do so only when the record is so fully developed that we can plainly see where the equities lie. McDonald v. McDonald, 19 Ark. App. 75, 716 S.W.2d 788 (1986); Bercher v. Bercher, 268 Ark. 877, 596 S.W.2d 369 (Ark. App. 1980). Under the circumstances of this case, we find it to be in the interests of justice to reverse and remand, directing the chancellor to consider evidence showing when the parties intended for alimony to terminate.
Reversed and remanded.
Cloninger and Mayfield, JJ., agree. | [
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Melvin Mayfield, Judge.
This is an appeal from a conviction of theft by receiving. Appellant was sentenced to one year in the Pope County Detention Center and a $1,000.00 fine.
The evidence shows that in August of 1984, James Hitchcock purchased a young calf outside the Conway Sale Barn from James Blackman. Hitchcock took the calf to the farm of J. D. Pennington to board it. Three days later, it was stolen. In March 1985 Hitchcock and Pennington went to a meeting of the Arkansas Cattlemen’s Association. During a discussion of the problem of cattle thieves, Mr. and Mrs. B. B. Carter became aware that a calf they had purchased in late August 1984 matched the description of the calf that had been stolen from Hitchcock. They all went to the Carters’ place and Hitchcock identified the calf, now several months old, as the one stolen from him. The Carters named appellant as the person who had sold them the calf. Appellant contended he had gotten the calf from Phillip Chenowith, who had bought it at the sale in Atkins. Appellant said he was with Chenowith when he bought the calf and that he sold calves for Chenowith by agreement.
Appellant first argues that the trial court erred in failing to grant his motion for directed verdict and his motion for judgment notwithstanding the verdict as there was not sufficient evidence to sustain his conviction.
A motion for directed verdict is a challenge to the sufficiency of the evidence; it is proper only where there are no factual issues to be determined. In a criminal case, the test is whether there is substantial evidence to support the verdict and, on appeal, it is only necessary to view that evidence which is most favorable to the appellee in determining whether there is substan tial evidence. Clark v. State, 15 Ark. App. 393, 695 S.W.2d 396 (1985). To be substantial, the evidence must do more than merely create a suspicion; it must be of sufficient force and character as to force the mind beyond conjecture and compel a conclusion one way or the other with reasonable certainty. Biniores v. State, 16 Ark. App. 275, 701 S.W.2d 385 (1985).
In this case, there is evidence that on August 30, 1984, the appellant sold a calf, which was less than a week old, to the Carters and that it matched the description of a calf that had been stolen from Hitchcock the day before. Moreover, there is very little evidence that Chenowith had purchased the calf at the sale. The owner of the sale barn would not identify the calf as having been sold through his barn, Chenowith did not have any documentation at the trial to show he purchased the calf at the sale, and the appellant admitted he knew Chenowith had stolen cattle before. Theft by receiving only requires that one receive, retain, or dispose of the stolen property knowing, or having good reason to believe, that it was stolen. Ark. Stat. Ann. § 41-2206 (Repl. 1977). The commentary to the statute states that “the jury need not find that the actor actually knew that the property was stolen; it is sufficient that he was on notice of facts that would lead a reasonable person to entertain such a belief.” Although the appellant testified that he “was sure” the calf came from the sale barn, he admitted he did not see Chenowith pay for it and did not know that Chenowith paid for it. We think the jury’s verdict was supported by substantial evidence.
The appellant next contends that the trial court erred in refusing to admit the testimony of his witness Bill McKissick. According to the proffer made by appellant’s counsel, McKissick would have testified that Hitchcock said he had sold the calf at the Conway sale after it was returned to him. This was offered to impeach Hitchcock’s testimony that he had the calf butchered. McKissick also would have testified that, contrary to what Hitchcock had testified, Hitchcock had told McKissick that he was aware the calf had been stolen when he bought it outside the sale barn at Conway. In addition, the proffer stated that McKis-sick would testify that Hitchcock had offered him money to testify against the appellant, and had offered him $2,500.00 to shoot or harm the appellant.
The trial court refused to admit this testimony because McKissick’s name had not been disclosed to the State in response to the State’s motion for discovery. In the first place, the appellant says the court erred because the State was not diligent in requesting an order from the court requiring such disclosure. In reply, the State points to its motion which requests that it be treated as “a continuing request to disclose pursuant to Rule 19.2.” We agree that the State, by filing a timely motion for discovery, discharged its duty and was not required to request an order from the court to compel appellant to comply.
Secondly, appellant contends that McKissick’s testimony should have been admitted as rebuttal testimony. The Rules of Criminal Procedure, Rule 17.1(a)(i) and Rule 18.3, require both the prosecution and the defense to disclose to each other the names of witnesses they intend to call at trial. However, it has been held that if a witness called in rebuttal by the State is a genuine rebuttal witness, offering evidence to rebut that presented by the defense, not pertaining to evidence the State would be obligated to present in its case in chief, then the State is not required to furnish the name of such witness. Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980); see also, McCorkle v. State, 270 Ark. 679, 607 S.W.2d 655 (1980). The appellant argues that the same rationale should apply to witnesses presented by the defense for the purpose of impeaching testimony presented by the State’s witnesses.
However, the proffered testimony that Hitchcock had told McKissick that he took the calf and sold it was really not admissible for impeachment purposes because it concerned a collateral matter. One may not cross-examine a witness (in this case, Hitchcock) about a collateral matter and then impeach him by proof of a contradictory statement. James v. State, 11 Ark. App. 1, 7, 665 S.W.2d 883 (1984). Furthermore, McKissick’s testimony that Hitchcock had said he knew the calf had been stolen when he bought it was not admissible under Uniform Evidence Rule 608(b). Although this evidence might tend to show that Hitchcock was guilty of theft by receiving, under the decision of Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982), it was a matter that could not be even inquired into on cross-examination because it was not probative of truthfulness or untruthfulness as required by Rule 608(b). Although an undesir able trait, an absence of respect for the property rights of others does not directly indicate an impairment of the trait of truthfulness. See Rhodes v. State, supra. Moreover, even if the misbehavior is denied by the witness and even if it is probative of truthfulness or untruthfulness, it may not be shown by extrinsic proof where there has been no criminal conviction for such conduct. Unif. R. Evid. 608(b).
The proffered testimony that Hitchcock had offered McKissick money to testify against the appellant, or to physically harm him, would tend to show bias against the appellant and would be independently provable and, therefore, not collateral or admissible only for impeachment purposes. Kellensworth v. State, 275 Ark. 252,255,631 S.W.2d 1 (1982); see also, Hackett v. State, 2 Ark. App. 228, 619 S.W.2d 687 (1981). Even so, we cannot agree with appellant’s argument that he complied with Criminal Procedure Rule 18.3 because he disclosed the identity of witness McKissick as soon as practicable before trial. This is appellant’s third reason for suggesting that the trial court erred in refusing to admit McKissick’s testimony. The evidence cited in support of this contention is counsel’s statement that McKissick would testify that Hitchcock’s approach to him had occurred “within a week of trial date,” and that appellant’s counsel had not known about this until the night before trial and had informed the prosecuting attorney and the court about it on the morning of the trial.
It is, of course, obvious that an event occurring “within a week of trial date” could afford opportunity for several days notice to the prosecutor. The record is silent, however, as to how the notice of this event was transmitted to appellant’s counsel or why it was not received sooner. Whether to exclude matters not disclosed under the discovery provisions of the Rules of Criminal Procedure is within the sound discretion of the trial court. Lear v. State, 278 Ark. 70, 75, 643 S.W.2d 550 (1982); Rubio v. State, 18 Ark. App. 277, 282, 715 S.W.2d 214 (1986). Under the circumstances in the present case, we cannot say that the trial court abused its discretion in refusing to admit into evidence the proffered testimony of appellant’s witness, Bill McKissick.
Affirmed.
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Tom Glaze, Judge.
Appellee, Hawkins Oil & Gas, Inc., brought suit against the appellants for recovery of money paid by mistake in excess of an agreed per-acre price for an oil and gas lease. The trial court found that the overpayment was not intentional but was the result of a mistake in the calculation of the number of acres and accordingly granted judgment for the appellee. We find the chancellor’s ruling was in error and reverse.
Natural Energy Research, Inc., through its president, procured the subject oil and gas lease from the appellants. Natural Energy later assigned the lease to Hawkins Oil & Gas in consideration of the sum of money Natural Energy had paid appellants for it. The written lease agreement prepared by Natural Energy and executed by appellants recited that the land contained 390 acres when in fact it contained only 273.05 acres. The agreed price was $50.00 per acre.
The president of Natural Energy, a former abstracter and legal secretary, was familiar with legal descriptions. She initially had the real estate records checked by an employee, who discovered that the subject land contained 273.05 acres. Even though the correct acreage (273.05) was known, that same employee personally supervised the preparation of the lease which erroneously reflected 390 acres. After Natural Energy assigned the lease to appellee, the appellee discovered the error in acreage, causing it to file this lawsuit. At trial, the parties stipulated that appellants received $5,847.50 more than the agreed consideration because of the error. The trial court rendered judgment in that amount to appellee.
Appellants argue that, although they were unaware of the mistake, appellee had the opportunity to discover the error; therefore, appellee should bear the loss of the overpayment, because appellee’s assignor and predecessor in title (Natural Energy) had full knowledge of the correct amount when the incorrect acreage was inserted in the lease. In Northcross v. Miller, 184 Ark. 463, 43 S.W.2d 734 (1931), and Blackburn v. Texarkana Gas & Electric Co., 102 Ark. 152, 143 S.W. 588 (1912), the supreme court adopted the rule that one voluntarily paying a claim with knowledge of the facts or under such circumstances that he is affected with such knowledge cannot recover the payment on the ground that the claim was unenforceable. Although appellants argue otherwise, we believe the holdings in Blackburn and Northcross are controlling and the facts here fall squarely within the rule set out in those cases. In sum, the critical evidence in the present appeal is that Natural Energy had not only constructive but also actual knowledge of the correct acreage. Accordingly, we must reverse and dismiss this cause.
Reversed.
Cooper and Corbin, JJ., agree.
We note that Natural Energy Research, Inc., was not joined as a party below. | [
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George K. Cracraft, Chief Judge.
St. Paul Fire & Marine Insurance Company appeals from a decision of the Arkansas Workers’ Compensation Commission holding it liable for benefits due an employee of Southwestern Improvement, Inc., who was injured after the employer had received notice of cancellation of the workers’ compensation policy. The sole issue for us to determine is whether the notice requirements of Ark. Stat. Ann. § 81-1338(b) (Repl. 1976) are mandatory. We conclude that those provisions are mandatory and affirm the decision of the Commission.
The facts are not in dispute. The appellant issued its policy of workers’ compensation insurance to appellee for a one-year term. Before the term of the policy expired, the appellee defaulted in the payment of premiums. On February 22,1983, the appellant sent to appellee its notice of cancellation for nonpayment of premium and stated that the policy would expire after ten days unless the premium was paid. The premium was not paid within that period. No notice of cancellation was sent to the Arkansas Workers’ Compensation Commission until July 13,1983. On April 6,1983, Ruby Jenkins received a compensable injury while working for the appellee.
The appellant contended that it had effectively cancelled its coverage as to the employee prior to the accident and therefore the employer became primarily liable. It argued that it should be held liable due to its failure to notify the Commission only if the employer failed to pay the award. The Commission held that the notice sent the employer was ineffective to cancel the policy because of the statutory requirement that notice also be given to the Commission. We agree.
Ark. Stat. Ann. § 81-1338(b) (Repl. 1976) provides:
(b) Cancellation. No contract or policy of insurance issued by a carrier under this act shall be cancelled prior to the date specified in such contract or policy for its expiration until at least thirty (30) days have elapsed after a notice of cancellation has been sent to the Commission and to the employer or until ten (10) days have elapsed after such notice if the cancellation is for nonpayment of premium, provided however, that if the employer procures other insurance within the notice period, the effective date of the new policy shall be the cancellation date of the old policy.
This section requires that one of two conditions precede an effective cancellation when due to nonpayment of premiums — that notice of cancellation be given to both the employer and the Commission, or that other insurance be procured within the notice period. Here, notice was not given to the Commission and no new insurance was procured. In 4 Larson, Workmen’s Compensation Law, § 92.31 (1986), it is stated:
In view of the essential role of insurance in compensation process, and the serious potential effects of noninsurance on both employer and employee, requirements for cancellation of insurance are generally exacting, and are strictly construed and applied. Failure to deliver the notice of cancellation by the required means, such as registered mail, use of a slightly erroneous address, specifying a cancellation date earlier than that permitted by statute, even by one day, failing to notify a third party entitled to notice, or giving oral assurances that the cancellation was a mistake, have been held to vitiate attempted cancellations. [Emphasis added.]
Our statute, as do statutes in a number of sister states, provides that cancellation is not effected until notice has been given to both the employer and the Commission for the specified period of time. The courts in those sister states have consistently held that the notice requirements of the cancellation provisions of their compensation acts are to be strictly construed and strictly complied with and that notice given only to the employer does not effectively cancel the policy, but that it remains in force. See e.g., Cloutier v. General Ship Contracting Co., 243 N.Y.S.2d 947, 19 A.D.2d 442 (1963); Empire Fire & Marine Ins. Co. v. Spurlock, 593 P.2d 768 (Okla. 1979).
In St. Paul Fire & Marine Ins. Co. v. Central Surety & Ins. Corp., 234 Ark. 160, 162, 350 S.W.2d 685, 686 (1961), our court recognized that the notice requirement of this section “is to be construed strictly to the end that employees will not be left without the protection of insurance coverage.” The purpose of such notice is to enable the Commission to know that there is compliance with the workers’ compensation law. Traders & General Ins. Co. v. Henderson, 235 Ark. 896, 362 S.W.2d 671 (1961).
Appellant argues that the workers’ compensation act makes the employer primarily liable for benefits to an injured worker; that the construction of the notice provisions made by the Commission is unjust and harsh; and that it should only be liable for payment of benefits if the employer defaults on its primary obligation. It was the clear intent of this legislation to protect the injured worker and secure the payment of benefits due him under the act by requiring that each employer give security for its primary liability by procuring and keeping in force, a policy of insurance approved by the Commission, or by posting other securities specified by the Commission which may be liquidated and utilized in the payment of benefits in the event the uninsured employer defaults. Ark. Stat. Ann. § 81-1336 (Supp. 1985). It was not intended that one become a self-insured employer by merely failing to procure or keep in force the required insurance or that the insurance, once procured, be cancelled without affording that knowledge to the Commission. We conclude that § 81-1338(b) clearly expresses the legislative intent that once a policy of insurance has been procured in satisfaction of the legislative requirement, it may not effectively be cancelled without notice to both the employer and the Commission. The intent that these notice requirements be strictly construed and applied is apparent and the reasons for so providing are clear.
Affirmed.
Corbin and Mayfield, JJ., agree. | [
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Per Curiam.
Appellant’s motion to set bond is denied. | [
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Melvin Mayfield, Judge.
In this appeal from the Pulaski County Circuit Court the question is whether an employment contract for a definite term may be terminated by the employer because of the employee’s short-term illness.
Appellee, Ronnie McBride, is a bandleader and entered into a verbal agreement with appellant, Ernest Joshua, whereby appellee would perform at appellant’s nightclub six nights per week (Monday through Saturday) from May 7, 1984, through August 25, 1984. Appellee was to be paid $1,300.00 per week. Appellee obtained permission from the nightclub’s manager, Richard Smith, to be absent from work on Saturday, June 2, 1984, so that he could get married that day. It was agreed that the club would find a replacement band and that appellee would not be paid for that night.
On Monday, June 4, 1984, appellee became ill with food poisoning and was unable to perform. His wife informed Richard Smith that appellee would be unable to perform that night and that he would be at work the next day. On June 5,1984, appellee received a telephone call from Smith telling appellee to take two weeks off. Appellee attempted to resolve the matter with appellant, but they could not reach an agreement as to the amount due appellee and the contract was terminated. The appellant’s son, Michael Joshua, testified that appellee was terminated because he was not at work on June 4, 1984. This was not denied by the appellant or his manager, Smith.
Appellee filed suit against appellant for damages for breach of contract in the amount of $14,300.00. After a trial before the circuit judge sitting as a jury, a judgment in the amount of $12,600.00 was entered in favor of appellee. In the judgment, the court made the following findings:
1. There was a verbal contract of employment between the parties;
2. There was no dispute as to the period of the contract; and
3. A personal service contract will allow for illness.
Findings of fact of a circuit judge sitting as a jury will not be reversed on appeal unless clearly against a preponderance of the evidence, and in making that determination, we give due regard to the superior opportunity of the trial court to judge the credibility of the witnesses and the weight to be given to their testimony. Jones v. Innkeepers, Inc., 12 Ark. App. 364, 676 S.W.2d 761 (1984); ARCP Rule 52(a).
On appeal, appellant does not question the amount of damages allowed but does argue that the court erred in holding that the contract involved would “allow for illness.” It is appellant’s contention that the parties had an “implied contract” which would include the requirement that appellee supply a replacement band during his absence on June 4,1984. We do not agree that the contract between the parties was “implied,” but think it was an express, verbal agreement that did not expressly include the requirement that appellee furnish a replacement band when he was absent. Parties, by their conduct, can enable a court to give substance to an indefinite term of a contract. “In essence, the court looks to the conduct of the parties to determine what they intended.” Welch v. Cooper, 11 Ark. App. 263, 268, 670 S.W.2d 454 (1984).
In this case, there was testimony that in the past, when appellee and his band performed at appellant’s club, appellee had been required to supply a replacement band when he was absent. However, there was no evidence that this obligation had ever been placed upon appellee in the event of an unforeseeable, short-term illness. Appellee was not required to supply a replacement band on June 2, 1984, when he got married and his absence on that night was a foreseeable event for which plans for an alternate band could have been made by appellee if appellant had so required. In light of these facts, we cannot say the circuit judge was clearly erroneous in failing to find an implied requirement that appellee supply a replacement band in the event of illness.
The appellant cites the cases of Newton v. Brown & Root, 280 Ark. 337, 658 S.W.2d 370 (1983) and M.B.M. Co. v. Counce, 268 Ark. 269, 596 S. W.2d 681(1980) for the proposition that he had the right to terminate appellee’s employment without cause. However, in those cases, the employment relationships were terminable at will. Here, the contract was for a definite term and was not terminable at will. In Griffin v. Erickson, 277 Ark. 433, 436-37, 642 S.W.2d 308 (1982), the Arkansas Supreme Court stated:
Generally, a contract of employment for an indefinite term is a “contract at will” and may be terminated by either party, whereas a contract for a definite term may not be terminated before the end of the term, except for cause or by mutual agreement, unless the right to do so is reserved in the contract.
Thus, the issue presented here is whether appellee’s one-day absence due to food poisoning provided appellant with good cause to terminate appellee.
It is true, as a general rule, that “ [c] ontracts to perform personal acts are considered as made on the implied condition that the party shall be alive and capable of performing the contract, so that death or disability, including sickness, will operate as a discharge, termination of the contract, or excuse for nonperformance. . . .” 17A C.J.S. Contracts § 465, at 623 (1963). Temporary illnesses of short duration, however, are not usually cause for termination:
Whether the employment of one engaged for a definite term may be terminated by the employer because of illness of the employee depends on all the circumstances, including the nature of the business and the employee’s duties, the character and possible duration of the illness, the necessities of the employer, the effect on him of a cessation of the employee’s services, and whether the employee’s duties may be reasonably and substantially performed for a time by another. Generally an employer may, in the absence of a stipulation to the contrary, treat an employment contract as terminated by illness or injury of the employee for all or a substantial part of the term whereby the purpose of the employment contract is frustrated or substantial performance becomes impossible, thereby materially affecting the employer’s interests. On the other hand, a brief or temporary illness or disability which does not prevent substantial performance of the contract by the employee does not justify termination of the contract of employment.
53 Am. Jur. 2d Master and Servant § 50 (1970). See also Hortis v. Madison Golf Club, Inc., 92 A.D.2d 713, 461 N.Y.S.2d 116 (1983); Fishery. Church of St. Mary, 497 P.2d 882 (Wyo. 1972); Growers Outlet, Inc. v. Stone, 131 N.E.2d 210 (Mass. 1956); Citizens Home Ins. Co. v. Glisson, 61 S.E.2d 859 (Va. 1950).
Whether justification exists for termination of the contract under the facts and circumstances of a particular case is usually a question of fact. Citizens Home Ins. Co. v. Glisson, supra. By terms of the contract in the present case, appellee was to perform at appellant’s nightclub for over three months; his absence because of illness, however, lasted only one day. It is our conclusion that the trial judge’s decision in this case was not clearly against the preponderance of the evidence.
Affirmed.
Cracraft, C.J., and Glaze, J., agree. | [
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Per Curiam.
Luther Shamlin was convicted of arson and of conspiring with John I. Purtle and/or Linda Nooner to commit theft by deception in an amount exceeding $2500.00, growing out of alleged arsons of a car and a home for the purpose of collecting on fire insurance policies.
Petitioner perfected an appeal which is presently pending in this court. Purtle was subsequently acquitted of the alleged conspiracy in a trial in which the testimony of some of the witnesses differed in some respects from that given in Shamlin’s trial. Shamlin has filed a petition in the Court of Appeals requesting that we reinvest the trial court with jurisdiction and permission to entertain his petition for writ of error coram nobis. The petition is filed in this court because the trial court lost jurisdiction when the record was lodged here, and the court in which the conviction was obtained is the proper court to entertain a petition for a writ of error coram nobis.
When such a petition is directed to the appellate court, the burden on the petitioner is less than that imposed on him in the trial court where the merits of the petition are to be determined.
THE ROLE OF THE TRIAL COURT
In the trial court the writ is granted only when it is convincingly shown that there is an error of fact extrinsic to the record (such as insanity at the time of trial, a coerced plea of guilty, or material evidence withheld by the prosecutor) which would have prevented the rendition of the judgment had it been known to the court. Penñ v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). The rule stated in Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975), is as follows:
(1) The function of the writ of coram nobis is to secure relief from a judgment rendered while there existed some fact which would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment;
(2) Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. The court is not required to accept at face value the allegations of the petition;
(3) Due diligence is required in making application for relief, and, in the absence of a valid excuse for delay, the petition will be denied; and
(4) The mere naked allegation that a constitutional right has been invaded will not suffice. The application should make a full disclosure of specific facts relied upon and not merely state conclusions as to the nature of such facts.
257 Ark. at 645-646, 519 S.W.2d at 741.
It is not the function of such a writ to review the evidence presented at the trial or determine that it was improperly admitted. Coram nobis does not lie to review an issue of fact or to contradict an adjudicated issue. Gross v. State, 242 Ark. 142, 412 S.W.2d 279 (1967). Nor is newly discovered evidence a proper basis for the issuance of the writ except in the narrow circumstance recognized by the supreme court in Penn v. State, supra, (newly discovered confession of a third party that he, not the petitioner, had committed the crime).
THE ROLE OF THE APPELLATE COURT
In Jenkins v. State, 223 Ark. 245, 265 S.W.2d 512 (1954), the burden of one seeking permission from an appellate court to present the writ to the trial court was defined as follows:
An application made to the appellate court for permission to proceed in the lower court should make a full disclosure of the specific facts relied on and not merely the conclusions of the party as to the nature and effect of such acts. In the exercise of its discretion as to whether the petition for leave should be granted the court should look to the reasonableness of the allegations of the petition and to the existence of the probability of the truth thereof, and grant leave only when it appears the proposed attack on the judgment is meritorious.
223 Ark. at 246, 265 S.W.2d at 513 (quoting 24 C.J.S. Criminal Law § 1606 (21) (1961) (emphasis added).
Jenkins also indicates that the allegation of those facts which the petitioner believes would lead to a different result should be supported by affidavit or other documentation. Here we are supplied only with portions of the record in the two separate trials of the alleged co-conspirators without affidavits or other documentation.
POINT I
Petitioner’s Point I involves an exhibit and testimony received in his trial which he contends were shown in the Purtle trial to have been withheld in violation of the discovery rules.
In petitioner’s trial, an insurance adjuster introduced as a business record an inventory said to have been made after the fire at Nooner’s home. Listed on the document were appliances which were claimed to have been destroyed in the fire and the time, place, and price of their purchase. He stated that the inventory was based on information furnished by Nooner.
In Purtle’s subsequent trial, it was brought out on cross-examination that at the time the adjuster met with Nooner he only listed the items which she claimed had been destroyed in the fire. The adjuster stated that the documentation of the time, place, and price at which they were purchased was furnished at a later date and not inserted on the exhibit until immediately before petitioner’s trial. The trial court ruled that, as the entries of value had not been made close in point of time to the events described, the document had lost its status as a business entry, at least to the extent of the recitation of value. The adjuster then introduced the document showing only the entries made at the time of the first interview and testified without objection to the items’ values from the documents furnished him by Nooner. From the record it appears that only the copy of this instrument showing the list of destroyed appliances had been furnished to the prosecutor and released to petitioner on discovery.
There is no evidence that the prosecutor was any more aware of the sequence of these events than petitioner’s counsel. Both had a copy of the instrument released on discovery and the opportunity to examine the exhibit introduced by the witness, but neither discovered the difference. It was not alleged or shown that the information contained on the admitted document was false, or known to have been false and willfully withheld. To the contrary, this information was presented to the jury at Purtle’s trial from receipts and documents furnished the adjuster by Nooner. This does not establish a fact which, if known, would have prevented petitioner’s conviction. It simply would establish a fact which, if known, would have at best required a different order of proof which was readily available at both trials.
POINT II
At petitioner’s trial, Richard Walls, an insurance investiga tor with expertise in arson, testified that he made an examination of the car after the fire. From his examination he determined that the fire was of incendiary origin and that this opinion was confirmed by a chemical analysis of residue taken from the vehicle to a chemical laboratory. His written report of his observations and actions was then introduced into evidence.
In Purtle’s trial, the same witness testified that after examining the vehicle he determined from the physical evidence that the heat generated by the fire was of such intensity that it could only have been reached by use of an accelerant. He stated that he had taken samples from the car for chemical analysis in order to confirm his opinion and that the analysis had so confirmed it. He testified on cross-examination, however, that he dictated his report on August 1st, but that the chemical analysis report was not dated until August 9th. It is not alleged or shown that the information contained in the report introduced in petitioner’s trial was false or known to have been false and fraudulently presented. To the contrary, despite the discrepancy in the date on which the witness said he dictated the report, the report contained a verbatim recitation from the chemical analysis report he referred to and which was also in evidence.
Petitioner contends that “because this evidence adverse to the witness’ credibility was exculpatory in nature the state had a duty to disclose it to the petitioner.” Again there is nothing in the record to indicate that the State was any more aware of the discrepancies in the dates than was petitioner’s counsel. Apparently the document had been furnished on discovery and the discrepancy was not discovered by the prosecution or the defense at petitioner’s trial. The petitioner argues that had the State discovered the discrepancy and disclosed it to them, they might have successfully attacked the credibility of the witness by showing that “he relied in his report on an analysis which had not yet been made.” The witness may have offered any one of a number of satisfactory explanations as to why he testified that he had dictated it on August 1st and fully rehabilitated himself. Furthermore, the failure to discover it in time to attempt impeachment is as attributable to the defense as to the prosecution. We conclude that this does not furnish any justification for a determination that the attack on the judgment of conviction is meritorious or that the defense was less at fault in not discovering it than the prosecution.
POINT III
The petitioner next argues that as he was being tried for conspiring with Purtle to burn the car, Purtle’s subsequent acquittal of participating in the conspiracy is a fact dehors the record which mandates a different result.
We find no merit in this argument. Ark. Stat. Ann. § 41-713(2)(c) (Repl. 1977) provides that it is not a defense to a prosecution for conspiracy to commit an offense that the person with whom the defendant is alleged to have conspired has not been charged, prosecuted, convicted, or has been acquitted of an offense based upon the conduct alleged.
POINT IV
At both trials, Homer Alexander testified that a few days before the fire he was with petitioner when he purchased seven containers of charcoal lighter fluid at a local hardware store at a price of $1.99 each. He stated that the purchase was made with cash. At petitioner’s trial, the manager of that store testified for the defense that the cash register tapes for that date did not show that any sales of seven items at $1.99 had been recorded in the department where charcoal lighter fluid is sold. He admitted that the sales might have been rung up in some other department. Apparently in some other department the tapes did show such a transaction. In closing argument, the prosecutor held the register tapes in his hand but merely alluded to the witness’s testimony.
In the subsequent trial, the same manager testified that he had made further inquiry since his testimony in petitioner’s trial and discovered that the seven items had in fact been paid for by check rather than cash as Alexander testified. A check payable to the store in that amount was exhibited showing that it had been issued by a third party in payment for “building materials.” Petitioner argues in his motion that the prosecutor misstated the evidence to petitioner’s jury either “knowingly or by gross negligence.” Nothing in the portions of the trial records submitted to us supports that allegation. According to the store manager, the rather conclusive evidence, that the tape entry referred to in petitioner’s trial had nothing to do with petitioner, was discovered by him after petitioner’s trial. It was at best newly discovered evidence of a defense witness which does not form the basis for a writ of error coram nobis. Also, the issue of whether Alexander was with petitioner when he purchased seven quarts of charcoal lighter fluid was squarely before the trial court. Coram nobis does not lie to review or to contradict an adjudicated issue. Gross v. State, supra.
We cannot conclude that the allegation that these discrepancies in the evidence presented at the separate trials were known to the prosecutor and knowingly and fraudulently withheld on discovery is anything more than a conclusion drawn by petitioner. The supporting documents to his petition do not establish the probability of the truth of those assertions. Nor can we conclude that the attack on the judgment of conviction is meritorious. The petition is denied.
Denied. | [
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Donald L. Corbin, Judge.
Appellant, Del Monte Frozen Foods, Inc., appeals the decision of the Workers’ Compensation Commission which awarded Limmel W. Harmon, cross-appellant and appellee in this case, benefits based on a 70% permanent partial disability rating. Appellant argues on this appeal that the Second Injury Fund, appellee, should bear a portion of the expense of Harmon’s injury due to a prior impairment. We affirm the Commission’s finding on this point.
In the cross-appeal, Limmel Harmon, cross-appellant and appellee, appeals the finding of the full Commission which reduced the permanent total disability rating awarded to Harmon by the Administrative Law Judge to 70% permanent partial disability. We affirm the full Commission’s finding on this point as well.
On July 15,1982, Harmon sustained an injury consisting of a lumbosacral strain arising out of and occurring in the course of his employment by Del Monte. On July 9, 1954, Harmon sustained a non-compensable fracture of his pelvis while engaged in military service. As a result of the fractured pelvis, Harmon received a permanent disability rating of 10% to the body as a whole. On or about February 21,1963, Harmon was diagnosed as having spondylolisthesis at L5 with left hip pain secondary thereto. On April 18, 1963, surgery was performed to effect a lateral lumbosacral fusion. Following the lumbosacral fusion, Harmon experienced a two-year period during which he remained in a back brace. He was practically asymptomatic from the spondylolisthesis from that time up until the July 15, 1982, lumbosacral strain arising out of his employment at Del Monte. Harmon was relatively asymptomatic from the July 9, 1954, pelvis fracture after 1963.
Following the July 15, 1982, compensable injury, Harmon attempted to return to work for Del Monte but was unable to endure extended periods of work activity. He has been advised by his physicians to limit lifting, bending and twisting. He was under no such limitations prior to July 15,1982. As a result of the July 15, 1982, lumbosacral strain, Harmon sustained an actual anatomical impairment of 5% to the body as a whole. The Commission found that the lumbosacral strain aggravated Harmon’s pre-existing condition of spondylolisthesis. The full Commission made the following conclusion in its opinion:
Harmon did not have an impairment prior to July 15, 1982, within the meaning of Ark. Stat. Ann. § 81-1313(i) (Supp. 1983) as that statute has been construed by the Arkansas Court of Appeals. See Osage Oil Company v. Rogers, 15 Ark. App. 319, 692 S.W.2d 786 (1985).
Harmon is disabled as a result of the July 15, 1982 lumbosacral strain which aggravated his pre-existing back condition. Since his pre-injury condition did not independently operate to affect his ability to work this case does not properly present an issue of apportionment. Rather, the preponderance of the evidence shows that Harmon is disabled from the aggravating effects of the July 15,1982, lumbosacral strain upon his pre-existing and asymptomatic back condition of spondylolisthesis.
The issue raised on the appeal by Del Monte Frozen Foods is whether liability for benefits resulting from the disability rating over the 5% attributed to the 1982 Del Monte injury should be the sole and separate responsibility of the Second Injury Fund, hereinafter referred to as “SIF”. In Osage this court held that “impairment” in Ark. Stat. Ann. § 81-1313(i) means loss of earning capacity due to a non-work related condition. Id. at 324, 692 S.W.2d at 789. The question before us is whether Harmon’s pre-existing injuries constituted an “impairment” under Ark. Stat. Ann. § 81-1313(i) (Supp. 1985).
On appellate review the evidence and all inferences deducible therefrom must be viewed in the light most favorable to the finding of the Commission. We give the testimony its strongest probative force in favor of the finding of the Commission, whether it favored the claimant or the employer. Id. at 322, 692 S.W.2d at 788. We must affirm if the Commission’s finding is supported by substantial evidence; even when a preponderance of the evidence might indicate a contrary result, we affirm if reasonable minds could reach the Commission’s conclusion. Id. at 322, 692 S.W.2d at 788. Questions of credibility and the weight and sufficiency of the evidence are matters for determination by the Commission. The Commission is better equipped, by specialization and experience, to analyze and translate evidence into findings of fact than we are. Id. at 322, 692 S.W.2d at 788.
The evidence in the record illustrates that Harmon did not experience a decrease in his capacity to earn wages as a result of either the congenital condition of spondylolisthesis or the 1954 pelvis fracture. Therefore, we find that there was substantial evidence to support the Commission’s findings that Harmon did not have an “impairment” within the meaning of Ark. Stat. Ann. § 81-1313(i) prior to July 15,1982 and that, under Osage, the SIF is not liable for any of the benefits which are a consequence of the July 15, 1982, injury. We affirm the Commission’s findings on this point.
The question raised by Harmon’s cross-appeal is whether Harmon proved by a preponderance of the evidence that he is permanently and totally disabled. Dr. Austin Grimes stated in his April 14, 1983, report that Harmon’s lumbosacral strain should not have increased his permanent anatomical impairment by more than 5% over the pre-employment status. By letter dated September 6, 1983, to Crawford and Company, Dr. Grimes estimated Harmon’s combined permanent partial physical impairment from all sources, including the compensable injury, to be 30% to the body as a whole. Dr. Grimes and Dr. Ted Honghiran concurred that Harmon could return to work but also agreed that he should curtail activities involving lifting, bending, and twisting his back. The evidence indicated that Harmon’s vocational history is that of a manual laborer. He has a fourth grade education. His employment potential lies in work settings that will not require sustained physical exertion that may expose his back to new injury. Harmon testified that he planned to go back to work and stated that he felt he could work a 40-hour week.
Based on this evidence the Commission reversed the ruling of the ALJ holding Harmon permanently and totally disabled. The Commission awarded permanent disability benefits of 70% to the body as a whole. Giving the testimony its strongest probative force in favor of the findings of the Commission we find that there was substantial evidence presented to support the Commission’s conclusion. Therefore, we affirm the Commission’s finding on the point raised in the cross-appeal.
Affirmed.
Mayfield, J., concurs.
Cloninger and Glaze, JJ., dissent. | [
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Melvin Mayfield, Judge.
Larry Haynes has appealed from the Board of Review’s denial of unemployment benefits. The denial was made pursuant to Section 5(a) of the Arkansas Employment Security Law, Ark. Stat. Ann. § 81-1106(a)(Supp. 1985), based upon a finding that appellant voluntarily left his last work without good cause connected with the work.
The appellant had been employed at Food-4-Less in Gid-dings, Texas, for several months when he quit about September 15,1985, and moved to Arkansas. Upon arriving in Arkansas, he applied for unemployment compensation by filing a form, which he signed, containing a statement that he had been living with friends in Texas who moved, and he was not making enough to get out on his own, so he was forced to quit work. Later, he signed another form, also filed with the agency, which contained a statement that he quit work because he was moving back to Arkansas where he had acquired a better paying job, but when he got here the manager had changed his mind about hiring him. The appellant’s employer responded with a statement signed by its manager. It stated that the manager found out the appellant’s friends were moving and he asked the appellant if he was moving also; that the appellant said he was staying there to work; but that appellant did not show up for work the next Monday and never called.
The employment security agency denied appellant’s application for benefits and he appealed to the appeal tribunal. At the hearing before the tribunal, the appellant testified that his reason for quitting the job was that his brother, who had been taking care of their disabled father, had called and said he was getting married and was leaving Arkansas, so appellant had felt it necessary to return to Arkansas to care for their father. He also testified that he had explained this to his manager and was told that he could go back to work anytime he could come back to Texas. This testimony was taken by telephone, as the referee was in Little Rock and the claimant was then in Pocahontas.
The appeal tribunal and the Arkansas Board of Review affirmed the agency’s denial of benefits. On appeal to this court, the appellant argues that there is no competent evidence in the record to contradict his testimony that his leaving work was the result of a personal emergency and that he made reasonable efforts to preserve his job rights. Therefore, appellant claims, he was entitled to benefits under Ark. Stat. Ann. § 81-1106(a) (Supp. 1985).
We must affirm the Board’s decision if it is supported by substantial evidence. Harris v. Daniels, 263 Ark. 897, 567 S.W.2d 954 (1978). Neither the appeal tribunal nor the Board of Review is bound by common law or statutory rules of evidence. Ark. Stat. Ann. § 81-1107(d)(4)(Supp. 1985); see also Bockman v. Ark. State Medical Board, 229 Ark. 143, 313 S.W.2d 826 (1958). Hearsay evidence can constitute substantial evidence in unemployment compensation cases, but the claimant must be given the opportunity to subpoena and cross-examine adverse witnesses at some stage of the proceedings. Leardis Smith v. Everett, Director, 276 Ark. 430, 637 S.W.2d 537 (1982). However, when the claimant does not request another hearing in order to cross-examine witnesses whose hearsay statements have been received in evidence, he effectively waives his right of cross-examination and due process requirements are not violated. Farmer v. Everett, Director, 8 Ark. App. 23, 648 S.W.2d 513 (1983); Swan v. Stiles, Director, 16 Ark. App. 27, 696 S.W.2d 765 (1985).
The record in this case contains three conflicting statements made by appellant himself and a fourth version of the facts made by the manager of the grocery store where appellant was employed. One of the statements made by appellant was made in the sworn testimony taken by the appeals referee. The other two statements by the appellant were signed by him and furnished to the employment security agency in the course of applying for unemployment compensation. These were clearly admissible, even in a court of law, as admissions by a party. Unif. R. Evid. 801 (d)(2)(i); see First National Bank of Brinkley v. Nash, 2 Ark. App. 135, 140, 617 S.W.2d 24 (1981); accord Roberson v. State Dept, of Employment Security, 295 So. 2d 190 (La. App. 1974).
As to the statement signed by the appellee’s manager and filed with the employment security agency, the record shows that it was read to the appellant by the appeals referee when appellant’s testimony was taken by telephone. Thus, appellant was aware of this statement but made no request to cross-examine the manager. Therefore, under the Farmer and Swan cases, supra, the statement was properly before the referee for consideration. See also, Brunello v. Mill City Auto Body, 348 N.W.2d 409 (Minn. App. 1984)(holding written statements by both sides admissible in unemployment compensation cases).
Resolving the conflicts in the evidence was for the Board of Review and it is not required to accept a party’s testimony as undisputed. Butlerv. Director of Labor, 3 Ark. App. 229, 624 S. W.2d 448 (1981). We find that the Board’s decision in this case is supported by substantial evidence.
Affirmed.
Cracraft, C.J., and Glaze, J., agree. | [
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George K. Cracraft, Chief Judge.
Betty Carter appeals from a decision of the Workers’ Compensation Commission holding that she had failed in her burden of proving that a compensable injury sustained in the employ of Flintrol, Inc., was causally connected to the multiple sclerosis from which she now suffers. The appellant testified that on February 29,1984, while working on an assembly line, she slipped, fell, and struck her head on the floor. She stated that, before the fall, she had no difficulty in maintaining her balance and had not seen a doctor in a number of years. She stated that she was off work for four days due to back pain and balance problems resulting from the fall. Upon returning to work, she continued to have difficulty with her balance, began experiencing vision problems, and became nauseated. She was initially seen by Drs. W. F. Sheppard and Ramon Lopez. They referred her to Drs. Patrick O’Sullivan and Jon Robertson, who hospitalized her for twelve days in Memphis. She was diagnosed as having multiple sclerosis and has been unable to work since that time.
The medical reports of Drs. O’Sullivan and Robertson disclosed the diagnosis of multiple sclerosis. In a letter, Dr. O’Sullivan stated that “there is evidence in medical literature supporting the idea that multiple sclerosis may be triggered or aggravated by trauma.” He gave no personal opinion as to the connection between the trauma and the multiple sclerosis sustained by the appellant. Dr. Wheatley Beard opined that she had “a subdural hematoma and secondarily multiple sclerosis and other vascular diseases.” Dr. Lopez stated, “I do not feel that the multiple sclerosis has any relation whatsoever to her injury and appears to be just coincidental.” Dr. Stevenson Flanigan examined the appellant and reported that:
My immediately available reference material on multiple sclerosis does not disclose that such a condition can arise from trauma. It is conceivable that such a condition could be aggravated by trauma, as one of the reports I reviewed seemed to suggest. That report recorded a blow to the head. I would, however, consider the symptoms of multiple sclerosis in this case coincidental with the injury.
The administrative law judge found that the appellant had proved by a preponderance of the evidence that she sustained a compensable injury in the fall. In his discussion of the evidence, he noted that the medical opinions differed regarding a causal connection between the fall and the multiple sclerosis. He stated: “The medical evidence linking the situation to the trauma at work is a little shallow, but it is there.” For those reasons, he found that the causal connection did exist. On appeal, the Commission affirmed the finding that the injury was compensable, but reversed the finding that there was a causal connection between the injury and the disability resulting from multiple sclerosis.
In her argument, the appellant acknowledges that the medical evidence as to the causal connection was in conflict, but disagrees with the Commission’s conclusion that “the medical opinion supporting the appellant’s position is so nebulous as to be deprived of any persuasive worth.” The argument is predicated upon the decision of this court in Pittman v. Wygal Trucking Plant, 16 Ark. App. 232, 700 S.W.2d 59 (1985). We agree with the Commission that Pittman is distinguishable from this case. In
Pittman, the only medical testimony on the issue of causation was that of a physician who opined that, based on the history given him, it was “possible and probable” that a causal relationship existed between the claimant’s injuries and his disability from disease. There, although there was lay testimony suggestive of a causal connection, the Commission held that the physician’s “best guess” was an inappropriate basis for decision making. This court reversed the Commission’s requirement in that case that medical testimony must rise to terms of medical certainty before a claimant’s burden of proof could be met. We held that because the medical experts used such terms as “possible,” “probable,” and “might cause,” among others, does not preclude a finding of causal connection provided there is other evidence supporting that conclusion. In Kearby v. Yarbrough Brothers Gin Co., 248 Ark. 1096, 455 S.W.2d 912 (1970), our supreme court recognized that causal connection is generally a matter of inference and possibilities may often play a proper and important role in the establishment of that relationship.
We do not construe the Commission’s opinion as applying the “medical certainty” rule to Dr. O’Sullivan’s testimony. The Commission pointed out that, in Pittman, there was medical opinion that there was a probability of causal connection, and here there was no such medical opinion. Dr. O’Sullivan did not testify that there was a causal connection, but only that “there is evidence in medical literature supporting the idea that multiple sclerosis may be triggered or aggravated by trauma.” He stated no opinion based upon the reading of that literature. Here, the Commission concluded that there was no medical opinion that there was a causal connection and agreed with the opinion of Dr. Flanigan, professor of neurology at the University of Arkansas for Medical Sciences, that the onset of symptoms of multiple sclerosis was merely coincidental and had no connection with the appellant’s work-related injury. It also had before it the opinion of Dr. Lopez, which fully agreed with that of Dr. Flanigan. The Commission concluded:
In the face of this expert medical testimony of Dr. Flanigan, we are unable to find the claimant has met her burden of proof with regard to the multiple sclerosis. Since the claimant has the burden of producing evidence and persuading the Commission of its soundness and has failed to produce the requisite evidence, her claim for benefits for treatment of and disability attributable to the multiple sclerosis condition must be denied.
We cannot agree with the appellant that the Commission erroneously held that one cannot meet the burden of proving causal connection without medical opinion based upon a reasonable degree of medical certainty. Based upon the testimony of Drs. Flanigan and Lopez, we cannot conclude that the finding of the Commission that the appellant had failed in her burden of proof is not supported by substantial evidence.
We do not mean to imply that the claimant must in every case establish the causal connection of the injury to the disability by expert medical testimony, or that there are not cases in which the relationship between the injury and onset of disability can give rise to an inference of such a connection without medical testimony. Harris Cattle Co. v. Parker, 256 Ark. 166, 506 S.W.2d 118 (1974); Chambers v. Jerry’s Dept. Store, Inc., 269 Ark. 592, 599 S.W.2d 448 (Ark. App. 1980). The determination of whether the causal connection exists is a question of fact for the Commission to determine. We do hold that the Commission is not required to rely upon inference where there is positive medical testimony to the contrary. The weight to be given that medical testimony is also a matter for the Commission to determine.
Affirmed.
Corbin and Glaze, JJ., agree. | [
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Ernie E. Wright, Special Judge.
The Alcoholic Beverage Control Board brings this appeal from a decision of the circuit judge, ordering the Board to issue a retail liquor and off-premises beer permit for appellee to operate a package store in the southwest corner of Union County. On appeal from the ABC Board’s denial of the permit, the circuit court ordered the permit issued.
The appellant argues two points for reversal: (1) that the circuit court erred in remanding the case to the ABC Board for the taking of additional evidence, and (2) the circuit court erred in reviewing the evidence on its own when the Board made no findings on the additional evidence. We affirm in part, reverse in part, and remand.
In November 1982, appellee filed an application for a retail liquor and off-premises beer permit to operate a package store in the Dodge City community in Union County. On January 18, 1983, the ABC Director issued a decision finding that (1) the building appeared inadequate and in need of remodeling, and (2) adequate police protection may not be available in the rural area. The director concluded “that the public convenience and advantage would not be promoted by granting the applied for permits.”
Appellee appealed to the Board, and a hearing was held on March 23, 1983. The Board’s attorney read into the record a letter from the sheriff giving assurance that adequate police protection was available. Appellee testified concerning remodeling being done to the building to be used. However, because appellee failed to bring plans and specifications for the remodeling to the hearing, the hearing was postponed until April 20, 1983.
At the April 20 hearing, appellee presented plans for building improvements. No one appeared in opposition to the application, no objections were made to the final plans for the building to be used for the package store, and no further objections to the adequacy of police protection were made. The Board summarily voted to sustain the Director’s decision and deny the permit on the ground of insufficient proof of broad public need.
Appellee filed an appeal to the circuit court on May 13,1983, and requested leave to present additional evidence. On November 8,1984, appellee filed a motion in circuit court, alleging that the issue of public convenience and advantage was first raised at the April 20 hearing, that this issue was not stated as a reason for denial of the permit in the director’s decision, and that the Board waived any action they could take for denial based on this issue. Appellee requested that the court either order the Board to issue the permit to appellee, or order a hearing to supplement the record on the issue of public convenience and advantage. The Board responded, stating that it conducted a de novo hearing and was not bound by the director’s decision. The Board further contended that public convenience and advantage is always an issue of proof, and that the court could order additional evidence only on a showing of good reason for failure to present the evidence at the Board hearing.
The trial judge issued an order on March 18, 1985, remanding the case to the Board for the taking of evidence on the issue of public convenience and advantage. The court found from the record there were good and sufficient reasons that evidence of public convenience and advantage was not presented before the agency. Ark. Stat. Ann. § 5-713(f) (Repl. 1976) empowers the circuit court, upon motion before hearing an appeal from a final decision of an administrative agency, to order additional evidence to be taken when the court finds the evidence is material and that there were good reasons for failure to present the evidence before the agency. It is clear from its order that the trial court considered the evidence material because the evidence concerned the sole ground upon which the Board denied the application. The court order carried with it the implication the Board would make a new decision taking into account the additional evidence.
There was substantial evidence supporting the court’s finding that there were good reasons for appellee’s failure to present evidence as to the public convenience and advantage. The ABC director, in denying the application, indicated the deficiencies in the application were only the adequacy of the building and the adequacy of police protection. At the first hearing before the Board, a letter from the Union County Sheriff, giving assurance that adequate police protection was available, eliminated that issue. There was evidence that appellee was in the process of remodeling a building to be used for the outlet. At that time, appellee had expended $2500 to $3000 in the remodeling, but the work was not fully completed, and he did not have with him detailed plans showing the remodeling to be done. Further hearing on the application was delayed to permit the appellee to furnish floor plans and other information on the remodeling. The proceedings before the Board indicate that the Board’s primary concern was the adequacy of the building.
The record reveals that at the April 20 hearing, appellee produced evidence that the remodeling had been completed, and the issue as to the sufficiency of the building was dropped.
We do not reverse the trial judge’s findings incident to the determination to remand the case to the ABC Board, for the taking of additional evidence as to the public convenience and advantage, unless his findings were clearly erroneous, and from a careful review of the record we are unable to say the trial judge’s findings on this point were clearly erroneous. ARCP Rule 52(a).
We now turn to appellant’s second point for reversal. At the hearing for supplemental evidence before the Board on April 22, 1985, appellee presented several witnesses who testified to the need for a liquor store in the area, and population records for surrounding townships were introduced. At the close of the hearing, the Board chairman asked for a decision motion. The Board’s attorney responded that the hearing was solely for the purpose of receiving testimony, and the hearing was concluded without a decision taking the additional evidence into consideration.
On August 8, 1985, the circuit judge issued an opinion in which he stated:
On April 22, 1985, the ABC Board met and evidence was presented on the sole issue of public convenience and advantage. No decision was made by the Board and the record is now before this Court for a decision. It is unusual that this Court is in a unique position of considering, on its own, the evidence presented at the April 22,1985 hearing, and it does not have to review the Board’s findings on that evidence as it was never considered in the Board’s determination of public convenience and advantage.
The judge concluded that there was substantial evidence in the record to support the position that the public convenience and advantage would be served by issuing the permit, and ordered the permit issued to appellee.
We do find merit in the Board’s second point. We note that the Board’s attorney advised the Board that it was not to make a decision based on the evidence presented at the supplemental hearing. Ark. Stat. Ann. § 5-713(f) (Supp. 1985) clearly provides that when the circuit court orders an additional hearing, “[t]he agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.” Therefore, even without specific instructions from the court, the Board has the statutory authority to make findings of fact and conclusions of law based on the evidence presented, and it had a duty to make a decision after considering the additional evidence that was vital to a final decision.
However, the circuit judge acted without authority in making his own findings of fact and conclusions of law in the absence of a decision by the Board. Ark. Stat. Ann. § 5-713(g) provides:
The review shall be conducted by the court without a jury and shall be confined to the record, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony may be taken before the court.
Ark. Stat. Ann. § 5-713(h) provides that the court may affirm, reverse, or modify the agency’s decision, or remand for further proceedings. Our statutes do not authorize the circuit judge to make his own findings of fact and conclusions of law in administrative proceedings, in the absence of a decision by the administrative agency.
The long-standing rule is that when an administrative agency fails to make a finding upon a pertinent issue of fact, the courts do not decide the question in the first instance. The cause is remanded to the agency so that a finding can be made on that issue. Hays v. Batesville Manufacturing Co., 251 Ark. 659, 473 S.W.2d 926 (1971); Reddick v. Scott, 217 Ark. 38, 229 S.W.2d 1008 (1950); Lawrence v. Everett, 9 Ark. App. 138, 653 S.W.2d 140 (1983).
Accordingly, we reverse and remand this cause to the circuit court, with directions to remand it to the ABC Board with directions that the Board make findings of fact and enter a decision on the application, taking the additional evidence into consideration.
Affirmed in part and reversed in part and remanded.
Cooper and Cloninger, JJ., agree. | [
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James R. Cooper, Judge.
The appellees brought a declaratory judgment action to determine the rights of the parties under an insurance contract issued by the appellant, Travelers, to the appellee, Olive’s Sporting Goods.
In July 1984, Wayne Lee Crossley and Ruby Swint entered Olive’s and told the salesman that they wanted to purchase guns for Ms. Swint’s protection. Ms. Swint filled out the necessary forms, but the guns, a .45 caliber Colt pistol and 12 gauge Smith and Wesson shotgun, were paid for by Crossley. Approximately eight days later, Crossley was stopped by Sergeant Wayne Warwick of the Hot Springs Police Department. Crossley shot and wounded Warwick with the .45 caliber Colt allegedly purchased from Olive’s. Crossley then drove to the Grand Central Motor Lodge in Hot Springs, entered the lounge, and began shooting with both the pistol and the shotgun. Helen Frezee, Juanita Allen, James Stephens, and Tom Altringer were killed and John D. Crue was wounded. Crossley then committed suicide. Officer Warwick died approximately two years later, allegedly as a result of the injuries sustained in the shooting.
John Crue and the survivors of Officer Warwick and James Stephens, the appellees in the case at bar, have filed suits against Olive’s alleging that it was negligent in the sale of the guns. In the separate action filed by Olive’s for a declaratory judgment, Travelers contended that the insurance policy it issued to Olive’s limited its liability to a maximum of $300,000.00. It was the contention of the appellees (Olive’s and some of the victims of Crossley’s shooting rampage), that the $300,000.00 policy limit applied to each victim because each shooting constituted a separate occurrence. The trial court agreed with the appellees, and the appellant appeals arguing three points: that the trial court erred in finding that there was more than one occurrence as that term is used in the contract; that the trial court erred in finding that the contract was ambiguous with regard to the aggregate coverage; and that the trial court erred in finding that the “products hazard” and “completed operations hazard” sections had no application. We do not reach the merits of the appellant’s arguments because we find that, since there was no justiciable controversy between the parties, the trial court erred in entering a declaratory judgment.
Our declaratory judgment act was not intended to allow any question to be presented by any person: the matters must first be justiciable. Andres v. First Arkansas Development Finance Corp., 230 Ark. 594, 324S.W.2d 97 (1959). The court in Andres, quoting Anderson, Declaratory Judgments § 186 (2d Ed. 1951), stated the following:
“The requisite precedent facts or conditions, which the courts generally hold must exist in order that declaratory relief may be obtained, may be summarized as follows: (1) There must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy; in other words, a legally protectable interest; and (4) the issue involved in the controversy must be ripe for judicial determination.”
In the same authority in § 221 at page 488 the rule is stated:
“The Declaratory Judgment Statute is applicable only where there is a present actual controversy, and all interested persons are made parties, and only where justiciable issues are presented.”
Andres, 230 Ark. at 606,324 S.W.2d at 104. It is our opinion that a determination of the extent of Travelers liability in the event Olive’s is found to be negligent is premature and not ripe for judicial determination. Maryland Casualty Co. v. Chicago and North Western Transportation Co., 126 Ill. App. 3d 150, 466 N.E.2d 1091 (1984). Furthermore, a determination of whether an insurer is liable for damages on an unlitigated, contingent claim is not appropriate for declaratory judgment. Freeport Operators, Inc. v. Home Insurance Co., 666 S.W.2d 566 (Tex. Civ. App. 1984). To make such a determination would be tantamount to issuing an advisory opinion, something courts are prohibited from doing. Id.
The case of Batteast v. Argonaut Insurance Co., 118 Ill. App. 3d 4, 454 N.E.2d 706 (1983), involved facts similar to the case at bar. The appellant brought a personal injury action which alleged that he had suffered brain damage while in the care of St. Bernard’s Hospital. The insurance company did not deny coverage and had not refused to defend the hospital in the tort action. During settlement negotiations, a dispute arose over the extent of coverage provided in the policy, and the appellant sought a declaratory judgment against the insurance carrier. In holding that there was no actual controversy between the parties, the court stated:
The controversy here stems from the parties’ differing interpretations of the provisions regarding amount of coverage in the applicable insurance policy. Regardless of their disagreement, the plaintiffs right to any amount is contingent upon a finding of liability in the underlying tort action. Even if liability is later established, a resolution of the dispute would remain unnecessary unless the damages awarded exceeded $1 million. Moreover, if we were to allow this action, there is no reason why every tort claimant would not, upon filing a personal injury action, concomitantly file a declaratory judgment action to determine the maximum amount of coverage to which he would be entitled in the event that liability was subsequently established. We cannot create the right to such premature litigation. The instant fact situation does not present an actual controversy between the parties.
454 N.E.2d at 708. Although that court’s final determination was that the appellant did not have standing, the situation was analogous to the case at bar, and the same reasoning is applicable. In the present case, Travelers has not denied liability, (up to $300,000.00), or denied a duty to defend Olive’s. The only controversy concerns the extent of Travelers potential liability. Unless and until a final determination is made that Olive’s is liable for an amount in excess of $300,000.00, there is no justiciable controversy and this action is premature. See Allstate Insurance Co. v. Novak, 210 Neb. 184, 313 N.W.2d 636 (1981).
Reversed and dismissed.
Corbin, C.J., concurs. | [
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John E. Jennings, Judge.
The appellant, James Standley, was found guilty by a jury of the manufacture of a controlled substance (marijuana), possession of a controlled substance (cocaine), possession of a controlled substance with intent to deliver (marijuana), and being a felon in possession of a firearm. The trial court sentenced him to a total of 30 years in prison and fined him a substantial sum. Before trial, appellant filed a motion to suppress evidence. After a hearing, the trial court denied the motion. The sole issue on appeal is whether this was error.
On or about August 26, 1986, Captain Lonnie Nichols, a Carroll County Sheriff’s Deputy, received a phone call from a confidential informant telling him that appellant was growing marijuana at his home. On September 2, 1986, Carroll County Sheriff Leroy Shower and two deputies, drove out to appellant’s place, in rural Carroll County, in an unmarked pickup truck. They saw that appellant’s house was surrounded by a fence and that there were tall weeds growing up in back of the house. They could not see what lay behind the weeds from the road.
The officers decided to park the truck on the road and investigate from behind appellant’s east fence. To do so they went through a gate into a field, apparently owned by appellant’s neighbor, went over a cross-fence, and entered an area of heavy woods located just to the east of appellant’s property. From this vantage point they could see into a garden area, fenced off with barbed wire and bounded on three sides by tall weeds. The officers could see what appeared to be five foot marijuana plants growing in the garden area (see diagram).
Deputy Behymer estimated that it was about 20 to 30 yards from their vantage point in the woods to the marijuana patch. There was also testimony that the marijuana lay less than 50 feet from the back of appellant’s house. In order to get a closer look, the officers crossed Standley’s east fence and entered an open area just to the east of the fenced marijuana patch. They did not cross the fence that surrounded the patch.
They then left the area and obtained a search warrant from Municipal Judge Allen Epley. The subsequent search produced marijuana, cocaine, and several firearms.
The question for decision is whether what the officers did, before obtaining the search warrant, constituted an unreasonable search in violation of the Fourth Amendment, as made applicable to the states through the due process clause of the Fourteenth Amendment. We affirm the trial court’s decision that it did not.
The substance of appellant’s argument is (1) that the fenced marijuana patch was a part of the curtilage of his home and (2) that because the officers had no permission to be in the appellant’s neighbor’s woods nor to be in the open area on appellant’s property behind the marijuana patch, their visual observation into the curtilage constituted an unreasonable search. While we agree with the first proposition we cannot agree with the second.
In Sanders v. State, 264 Ark. 433, 572 S.W.2d 397 (1978), the defendant had a garden located between 100 and 200 yards behind his house trailer. A fence separated the trailer from the garden. The garden contained vegetables and growing marijuana plants. A water hose ran from the house trailer to the garden. Police officers searched the defendant’s house and found the marijuana growing in his garden. On appeal the supreme court held that the garden was part of the curtilage.
In Gaylord v. State, 1 Ark. App. 106, 613 S.W.2d 409 (1981), we held that the test to be applied in distinguishing an open field from curtilage was whether the marijuana patch lay within the defendant’s reasonable expectations of privacy, rely ing on Katz v. United States, 389 U.S. 347 (1967).
In United States v. Dunn, 480 U.S. _, 107 S. Ct. 1134 (1987), the court said that the curtilage question should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home; whether the area is included within an enclosure surrounding the home; the nature of the uses to which the area is put; and the steps taken by the resident to protect the area from observation by people passing by. The Court said that these factors were only “useful analytical tools,” in determining whether the area in question is so intimately tied to the home itself that it should be placed under the home’s “umbrella” of Fourth Amendment protection. Dunn at _, 107 S. Ct. at 1139. Whether we apply the holding in Sanders, the test we used in Gaylord, or the factors described in Dunn, the appellant’s marijuana patch was part of the curtilage.
Our next inquiry is whether the officer’s conduct constituted an unreasonable search of appellant’s property. State v. Peakes, 440 A.2d 350 (Me. 1982), is almost in point. There two police officers had received an anonymous tip that the defendant was growing marijuana in a garden behind his house. They drove past his house on a rural road but were unable to see the garden. They obtained permission from the defendant’s neighbor to go onto the neighbor’s land, walk to the boundary line separating the two tracts, and from there were able to see the growing marijuana plants. They left and obtained a search warrant. The defendant contended that the officers’ observation of the plants constituted an unreasonable search of his property, a contention which the Supreme Court of Maine rejected. The court said:
The defendant correctly notes that his garden was not open or exposed to the public. But the defendant made no attempt to conceal the garden from the view of his neighbors. He cannot be said to have had an actual expectation of privacy in the garden under the circumstances. There was no invasion of his property. The officers observed something which was “open and patent” to the defendant’s neighbors and their invitees. [Citations omitted.]
The only real difference between Peakes and the case at bar is that here the permission of appellant’s neighbor was not obtained. But in Oliver v. United States, 466 U.S. 170 (1983), the Court held that the government’s intrusion upon an open field does not become a search in the constitutional sense merely because that intrusion is a trespass at common law. In the case of open fields, the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment. Oliver, 466 U.S. at 184.
Unquestionably, a wooded area may be an open field as that term is used in the context of the Fourth Amendment. Oliver, 466 U.S. 170, 180 n.11; Bedell v. State, 257 Ark. 895, 521 S.W.2d 200 (1975). While this is not an open field search case it is clear that the officers’ observations were made from “open fields.”
The Court in Oliver reversed State v. Thornton, 453 A.2d 489 (Me. 1982). In Thornton an officer received a tip from an unidentified informant that marijuana was growing in a wooded area behind the defendant’s mobile home. The officers crossed a fence, entered onto the defendant’s property through a footpath and found marijuana growing in two clearings fenced in with chicken wire. The marijuana could not be seen from the public road or from neighboring land. The property was posted with no trespassing signs. The Maine Supreme Court had unanimously held that the officers’ conduct constituted an unreasonable search.
In California v. Ciraolo, 476 U.S. 207 (1985), once again the police had received an anonymous tip that the defendant was growing marijuana in his backyard, which was enclosed by two fences and shielded from view at ground level. The officers hired a private airplane, flew over the defendant’s house and identified marijuana plants growing in the yard. These observations provided the basis for a subsequent search warrant.
The United States Supreme Court reversed the California court’s holding that the warrantless aerial observation of defendant’s yard violated the Fourth Amendment. The Ciraolo Court said:
That the area is within the curtilage does not itself bar all police observation. The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer’s observation from a public vantage point where he has a right to be and which renders the activities clearly visible. [Citations omitted.]
In United States v. Dunn, 480 U.S. _, 107 S. Ct. 1134 (1987), police officers had information that chemicals which could be used in drug preparation were located in the vicinity of a barn on the defendant’s 200 acre ranch. The barn was located about 60 yards from the defendant’s house. The ranch had a perimeter fence and several cross fences, including a fence which surrounded the ranchhouse but did not enclose the barn.
Without a warrant and without probable cause the officers crossed the outer fence and entered the ranch. They crossed two more fences to get near the barn where they smelled what they thought were drugs. They approached the barn and although they did not enter it, they shined a flashlight through an opening to observe what they thought to be a drug laboratory. The officers then left and obtained a warrant.
While the Court in Dunn expressly held that the barn was not part of the curtilage, it did assume, for purposes of the opinion, that the “barn enjoyed Fourth Amendment protection and could not be entered and its contents seized without a warrant.” Dunn, 480 U.S. at_, 107 S. Ct. at 1140. The Court said:
[T]he officers never entered the barn, nor did they enter any other structure on respondent’s premises. Once at their vantage point, they merely stood, outside the curtilage of the house and in the open fields upon which the barn was constructed, and peered into the barn’s open front. And, standing as they were in the open fields, the Constitution did not forbid them to observe the phenylacetone laboratory located in respondent’s barn. . . .
Under Oliver and Hester, there is no constitutional difference between police observations conducted while in a public place and while standing in the open fields. Similarly, the fact that the objects observed by the officers lay within an area that we have assumed, but not decided, was protected by the Fourth Amendment does not affect our conclusion.
Dunn, 480 U.S_, 107 S. Ct. at 1141.
Observations from outside the curtilage of activities within are not generally interdicted by the Constitution. Fullbright v. United States, 392 F.2d 432 (10th Cir. 1968).
Our conclusion is that under Oliver, Ciraolo, and Dunn, the warrantless naked-eye observation of the appellant’s curtilage from an adjacent open field did not constitute an unreasonable search within the meaning of the Fourth Amendment.
Affirmed.
Cooper and Mayfield, JJ., agree. | [
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John E. Jennings, Judge.
On April 2,1977, Grace Cossey was injured in an automobile accident. The driver of the other car was Stephen Crowed, an employee of Builder’s United Construction, Inc. At the time of the accident Builder’s United was insured by appellee, Transamerica Insurance Company.
On March 7, 1980, Cossey filed a lawsuit against Crowed and Builder’s United. No answer was filed and on November 18, 1981, Cossey took a default judgment against both defendants for $17,000.00. On November 27,1984, Cossey filed a direct action against the insurer, Transamerica. In a second amended complaint filed February 9, 1987, in the direct action proceedings, Cossey asked the trial court, alternatively, to set aside the default judgment previously rendered in her favor. On October 16,1987, the trial court granted summary judgment to Transamerica and refused to set aside the default judgment.
On appeal, the sole point relied upon by the appellant is that the trial court erred in refusing to set aside the default judgment under Ark. R. Civ. P. 60(c). We affirm.
Appellant cites no Arkansas cases in which a plaintiff has sought to set aside a default judgment entered in his favor, and we can find none. However, the general rule is that, under appropriate circumstances, he may. See Annotation, 40 A.L.R.2d 1121 (1955); Cf. Combs v. Hyden, 142 Ind. App. 426, 235 N.E.2d 77 (1968). For purposes of this decision we assume, without deciding, that in appropriate circumstances the trial court has the power to set aside a default judgment at the request of the successful plaintiff.
Even so, it is within the sound discretion of the trial court to grant or deny a motion to set aside a default judgment, and the question on appeal is whether there has been an abuse of that discretion. Burns v. Shamrock Club, 271 Ark. 572, 609 S.W.2d 55 (1980); Johnson v. Jett, 203 Ark. 61,159 S.W.2d 78 (1952). Here the plaintiff seeks to set aside her default judgment against Crowed and Builder’s United. There is no indication that either defaulting defendant has received notice of the plaintiff’s request to set aside her own judgment against them. The accident occurred in 1977 and the default judgment was taken in 1981. It was not until 1987 that the plaintiff, for the first time, sought to have her default judgment set aside.
On these facts we cannot say that the circuit judge abused his discretion in refusing to set aside the default judgment.
Affirmed.
Mayfield, J., dissents. | [
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James R. Cooper, Judge.
The appellant was charged by information with securities fraud, filing a false statement with the Arkansas Securities Commission, and theft of property. After a jury returned a verdict of guilty on all three counts, the appellant was sentenced to eight years for fraud and fined $10,000.00; four years for false filing and fined $6,000.00; and eight years for theft and fined $ 11,000.00. The trial court ordered the prison sentences to run concurrently, and the fines were cumulative.
The appellant argues ten points on appeal. We find that the conviction for false filing should be dismissed because the charge was barred by the statute of limitations. The appellant’s convictions are otherwise affirmed.
The appellant was charged on February 14, 1985, with making false and misleading statements in violation of Ark. Stat. Ann. § 67-1250 (Repl. 1980) [Ark. Code Ann. § 23-42-110 (1987)], in a document filed with the Arkansas Securities Commission. On October 26, 1979, the appellant allegedly caused to be filed with the Commission a claim for exemption for Founder’s Development Corporation which contained false and misleading statements. The Commission’s request for additional information on the dilution factor of the stock was responded to by a letter dated November 6,1979. The Commission then issued a letter acknowledging the filing and compliance with the filing requirements on November 20,1979, and noted that the exemption was effective for one year. The record reveals only one other communication with the Commission: a letter received by the Commission dated December 15, 1980, indicating that Marvin Clausing, M.O.N.E.Y. Makers Ltd., and Herbert Brechtel had invested in Founder’s.
It is the appellant’s contention that the charge filed against him in February 1985, alleging that he had filed falsely, was beyond the statute of limitations found in Ark. Stat. Ann. § 67-1255(i) (Repl. 1980) [Ark. Code Ann. § 23-42-105(a) (1987)]. That section provides:
Prosecutions for offenses described in this Section must be commenced within the following periods of limitation: (1) Felonies — five (5) years from the date of the occurrence; (2) Misdemeanors — one (1) year from date of occurrence. The five year felony and one year misdemeanor period of limitation does not begin to run until after the commission of the last overt act in the furtherance of a scheme or course of conduct.
The issue is when the prohibited conduct occurred. The State contends that the letter received on December 15,1980, was the last overt act committed by the appellant or, in the alternative, that the one-year period of time the exemption remained on file constituted a continuing course of conduct. We disagree on both points.
There is no evidence in the record to establish that any of the information in the December 1980 letter was false or misleading. It is clear from the plain language of § 67-1250 that the filing of a document is criminal only if it contains false or misleading statements. We find that the last overt act which occurred was the letter concerning the dilution factor filed in November 1979. Therefore, the charge filed on February 14, 1985, was beyond the five-year statutory period, and we accordingly reverse and dismiss the appellant’s conviction for filing false and misleading statements.
Because we dismiss this charge against the appellant, we will not address it further in connection with the appellant’s remaining arguments.
THE SUFFICIENCY OF THE EVIDENCE
The appellant challenges the sufficiency of the evidence. In accordance with Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), we review the sufficiency of the evidence, including any allegedly erroneously admitted evidence, prior to the consideration of other trial errors. In criminal cases, we view the evidence in the light most favorable to the State, and affirm if there is any substantial evidence to support the verdict. Biniores v. State, 16 Ark. App. 275, 701 S.W.2d 385 (1985). Substantial evidence must do more than merely create a suspicion; it must be of sufficient force and character to force the mind beyond mere conjecture and compel a conclusion one way or the other with reasonable certainty. Id. The fact that evidence is circumstantial does not render it insubstantial — the law makes no distinction between direct evidence of a fact and evidence of circumstances from which a fact may be inferred. Breault v. State, 280 Ark. 372, 659 S.W.2d 176 (1983).
In Count I the appellant was charged with fraud or deceit in connection with the offer, purchase, or sale of securities. Arkansas Statutes Annotated § 67-1235 (Repl. 1980) [Ark. Code Ann. § 23-42-507 (1987)] provides as follows:
It is unlawful for any person, in connection with the offer, sale or purchase of any security, directly or indirectly
(1) to employ any device, scheme, or artifice to defraud,
(2) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, or
(3) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.
The persons identified in the bill of particulars as victims in Count I were Herbert Brechtel and Marvin Clausing; both testified at the trial. Clausing testified that he specifically remembered the appellant giving him a “confidential memorandum” prior to investing, which contained information on Founder’s. Brechtel did not recall the memorandum, but acknowledged his signature on the cover indicating that he had received it. He stated that he had talked with the appellant about investing, that he did not know a lot about investing in stock, and that he relied on what the appellant told him. Brechtel invested $15,000.00 and he received 30,000 shares of Founder’s stock; Clausing purchased 16,000 shares of Founder’s stock for $8,000.00.
In the confidential memorandum, P.A. Treadway was listed as a director, as president, and as secretary of Founder’s. The biographical sketch of Treadway stated that she majored in psychology at Kent State University, that she was an “Arkansas educator,” and that she had a background in marketing and management. At trial, Treadway testified that she was the appellant’s secretary, that she did not attend Kent State, that she had only been a substitute teacher for a short while, and that the only marketing and managerial experience she had was as manager of a rental company for a short period of time. She also testified that she had signed various documents at various times at the appellant’s request, but that she had never been either an officer or stockholder of Founder’s. Both Clausing and Brechtel stated that, if they had been aware of the true facts of Treadway’s background and status, they would not have invested in Founder’s.
At the time Clausing and Brechtel invested, Founder’s was in default on a note it had given M.O.N.E.Y. Makers for the purchase of forty acres of property. Universal Growth, a corporation in which the appellant was the principal stockholder and an officer, had purchased eighty acres of land for approximately $240,000.00 in September 1979. On October 22,1979, Universal entered into a purchaser’s agreement with M.O.N.E.Y. Makers, another business entity in which the appellant was the principal member. This agreement provided that, upon payment of the purchase price of $240,000.00, forty acres of the land owned by Universal would be conveyed to M.O.N.E.Y. Makers. On the same day, M.O.N.E.Y. Makers entered into an identical agreement with Founder’s; the only difference was that the purchase price of the same forty acres was $260,000.00. The end result was that, by passing the land through the different entities, the appellant had artificially inflated the value of the land. Furthermore, by the terms of the various purchase agreements, legal title would not pass until the land was paid for in full. In the event of a default, title would revert to the business entities owned by the appellant. None of these facts were disclosed either to Brechtel or Clausing, and Clausing stated that he was under the impression that his investment was to be used only for improving the land and that there was no money owed on the land itself.
It is clear that these facts were material to Founder’s financial condition. We find that this evidence is sufficient to support the jury’s finding that the appellant made untrue statements of material facts and failed to reveal material facts which misled the victims. See Selig v. Novak, 256 Ark. 278, 506 S.W.2d 825 (1974).
In Count III, the appellant was charged with theft of property, a violation of Ark. Stat. Ann. § 41-2203 (Repl. 1977) [Ark. Code Ann. § 5-36-103 (1987)]. According to § 41-2203, a person commits theft of property if he knowingly obtains the property of another person, by deception, with the purpose of depriving the owner thereof. The bill of particulars listed seven teen victims, including Clausing and Brechtel, and involved over $79,000.00. There are five volumes of record in this case and hundreds of pages of documents, spread sheets, and financial records. Without going into unnecessary detail, the record shows that the appellant (1) induced investors to invest in one of his several business entities; (2) deposited the money into the appropriate bank account of that business entity; and (3) subsequently withdrew the money and transferred it to another business entity. Generally, as one business entity became financially troubled, the appellant would create another entity, gather investors, then transfer the funds to the troubled entity.
For example, Leamon Bush, who was listed in the bill of particulars as a victim in Count III, first invested $5,000.00, and then another $2,250.00, in an entity called Air Base Mini-Rental, which was purported to be a business which purchased equipment, such as lawnmowers, for rental to the public. He stated that he believed his money was going to be used to purchase equipment. However, the record reveals this business never got off the ground; according to Treadway, only a few pieces of equipment were purchased, not nearly enough to operate this type of business. Bush further stated that he was told his investment would also entitle him to an interest in Air Base Mini Storage.
According to the cancelled checks in the record, Bush’s checks were deposited into the Air Base Mini-Rental checking account. The account was opened in August 1981 and closed in October 1982. A check from investor Carol Felix for $5,000.00 was also deposited in this account. The appellant falsely represented to Bush that the total capital contribution in Air Base Mini-Rental was $100,000.00.
Bush stated further that he did not know where his money went. According to the checks written on the Air Base Mini-Rental account, $2,900.00 went to M.O.N.E.Y. Makers and $1,076.25 went to Diversified Land (another of the appellant’s business entities). Later, a $2,900.00 check from Diversified Land was deposited which indicated it was repayment of a loan. There were also checks written which were purportedly for construction costs; however, no construction was done for Air Base Mini-Rental, and apparently the checks were for construction by other business entities. There were also two checks to United Jewelers which totaled $77.58, and a check made out to cash, endorsed by Kroger, which was purported to be for a lawnmower. Out of approximately $12,000.00 invested by Bush and Felix, only a little over $3,000.00 was actually spent on rental equipment.
Eventually, Bush had a falling out with the appellant and Clausing. The appellant told Bush that Air Base Mini-Rental and Air Base Mini Storage were to be merged. Clausing resisted the merger and was ousted from the company; later, the appellant returned Bush’s money to him.
The appellant commingled the various investment funds and treated them as his own without regard to the best interests of the investors. John Mallet invested $6,150.00 in Square One Mini Storage on November 1, 1982, and his check was deposited in Square One’s checking account. On November 22, 1982, $6,000.00 was withdrawn from Square One’s account; on the same day $6,000.00 was placed into the account of M & R R.V. and Boat Storage, which at one time was owned entirely by the appellant and his wife. Again, on the same day, $6,000.00 was withdrawn from M & R’s account and $6,000.00 was placed into Diversified Land’s account.
When Mallet purchased his interest in Square One, he was told that the total capital contribution was $164,000.00 and that his money was to be used to complete a new storage building. When Mallet later discovered that he was the only investor, he confronted the appellant and was told that his money had been used in the construction of another building. The appellant offered him a five percent interest in Air Base Mini Storage, without regard to the effect this would have on Air Base’s previous investors.
We are not persuaded by the appellant’s defense that he was juggling the accounts because of the effect a bounced check for $5,000.00 had on the business entities. If this was true, it would not have been necessary for the appellant to run the $6,000.00 through four different accounts. Furthermore, reconciling conflicts in the testimony and weighing the evidence are within the province of the jury, and it is the jury’s prerogative to accept such portions of the testimony which it believes to be true and discard that deemed false. Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985), reh’g denied, 287 Ark. 473A, 702 S.W.2d 411 (1986).
It is the appellant’s contention that, since the investors either got their money back or received property in lieu of cash, the State failed to prove that the investors were “deprived” of their property. In addition to voluntary refunds and settlements, there was evidence that several investors had been reimbursed after filing lawsuits which either were concluded or settled out of court. “Deprived” is defined in Ark. Stat. Ann. § 41-2201(4) (Repl. 1977) [Ark. Code Ann. § 5-36-101(4) (1987)] as follows:
(a) to withhold property or to cause it to be withheld either permanently or under circumstances such that a major portion of its economic value, use, or benefit is appropriated to the actor or lost to the owner; or
(c) to dispose of property or use it or transfer any interest in it under circumstances that make its restoration unlikely.
The evidence clearly establishes that the appellant did not use the funds he received from the investors for the purposes represented to them. Consequently, the investors were deprived of the use and benefit of their property. See Hixson v. State, 266 Ark. 778, 587 S.W.2d 70 (Ark. App. 1979), cert. denied, 444 U.S. 1079 (1980). We hold that there was sufficient evidence to support the verdict as to Counts I and III.
THE TESTIMONY CONCERNING AN INJUNCTION
The appellant next argues that the trial court erred in allowing Nancy Jones, Assistant Securities Commissioner, to testify about an injunction issued against the appellant in an unrelated case. An order entered in February 1973 temporarily enjoined the appellant and others acting in concert with him from offering or selling securities within the State of Arkansas. In July 1974 an order was entered continuing the injunction. In a 1985 action to which the Commission was not a party, the chancellor found that the injunction had expired.
At trial, Ms. Jones testified that, had the department known that the appellant was involved in the 1979 exemption request, the department would not have allowed the exemption because the department had participated in and was aware of the earlier injunction proceeding against him. The appellant argues on appeal that this statement was irrelevant and prejudicial. We disagree.
Arkansas Rules of Evidence Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
In Smith v. State, 266 Ark. 861, 587 S.W.2d 50 (Ark. App. 1979), cert. denied 445 U.S. 905 (1979), we stated that evidence of other prior or similar transactions involving the offer and sale of securities is admissible to show habit, practice, or a common scheme, plan, and course of conduct, provided that the previous conduct is not too remote in time from the offense charged and is similar in nature to the offense charged. Remoteness is addressed to the sound discretion of the trial judge, whose determination will be reversed on appeal only when it is clear that the questioned evidence has no connection with the case. Id. The evidence in question was highly relevant to show the appellant’s intent to defraud and, in light of the appellant’s assertions that his actions were the result of his being a “bad businessman,” to show lack of mistake.
Even if we were to find that the testimony was erroneously admitted into evidence, we would not reverse. This court will not reverse on the basis of nonprejudicial error. Hughes v. State, 17 Ark. App. 34, 702 S.W.2d 817 (1985). In light of the trial court’s restriction of Jones’s testimony concerning the injunction, the appellant’s refusal of the trial court’s offer to admonish the jury, and the presentation of other testimony about the injunction by the appellant, we fail to see any prejudice.
JURY INSTRUCTIONS
The appellant makes several arguments regarding various instructions given to the jury by the court, and several instructions offered by the appellant and refused by the court. We note at the outset that there are no model instructions in the AMCI for securities fraud. In determining whether the trial court erred in refusing an instruction in a criminal case, the test is whether the omission infects the entire trial so that the resulting conviction violates due process. Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980). Just because an offered instruction contains a correct statement of the law does not mean that it is error for a trial court to refuse to give it. Id.
The first instruction that the appellant contends was erroneously given is the court’s instruction number 10. This instruction tracks the language found in the Arkansas Securities Act, states the purpose of the Act, and discusses generally disclosures, registration, and exemptions. The last paragraph states:
The anti-fraud provisions of the Arkansas Securities Act, which is charged to have been violated in this case, have the purpose of controlling and remeding [sic] schemes to defraud. The particular section of the law charged in this case was designed to protect the investors by requiring full and truthful disclosures of important facts regarding the character of a security and to prevent investors from being victimized by fraud.
The instruction proffered by the appellant is nearly identical with the exception of language added to the end which states “the Act does not authorize the Arkansas Securities Department to pass upon the merits of the securities’ proposal to be offered.” However, this language, which the appellant wishes to add, is misleading. The “confidential memorandum” which was received by Clausing and Brechtel was filed by the appellant with his request for an exemption. Although Ark. Stat. Ann. § 67-1251 (Repl. 1980) [Ark. Code Ann. § 23-42-212 (1987)] states that registration of a security does not indicate that the Commission has made any recommendation or passed on the merits of the security, Ark. Stat. Ann. § 67-1248(c) (Repl. 1980) [§ 23-42-505(a)] does authorize the Commissioner to deny or revoke any exemption.
The appellant next argues about an instruction regarding the alleged fraud in the offer and sale of the securities. The court instructed:
Roy Hardcastle is charged with the offense of securities fraud in the offer, sale, or purchase of Founder’s Development stock as charged in Count I. To sustain this charge the State must prove beyond a reasonable doubt that Roy Hardcastle knowingly violated Section I of the Arkansas Securities Act which provides:
It is unlawful for any person, in connection with the offer, sale or purchase of an security to directly or indirectly—
(1) to employ any device, scheme or artifice to defraud, or
(2) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made in light of the circumstances under which they are made, not misleading, or
(3) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit on any person.
The court then instructed the jury on the definition of “knowingly” as found in AMCI2203-P. It is the appellant’s contention that the phrase “that the defendant acted knowingly and with the intent to defraud,” should have been included in the instruction.
The instruction given by the court essentially tracks the statute, Ark. Stat. Ann. § 67-1235 (Repl. 1980) [Ark. Code Ann. §23-42-507 (1987)]. This section does not specify any intent necessary for conviction of the crime of securities fraud. If the statute defining an offense does not describe a culpable mental state, culpability is nonetheless required and is established if a person acts purposely, knowingly, or recklessly. See Martin v. State, 261 Ark. 80, 547 S.W.2d 81 (1977). Arkansas Statutes Annotated § 67-1255(a) (Repl. 1980) [Ark. Code Ann. § 23-42-104(a) (1987)] provides:
Any person who knowingly violates Section 1 [§ 67-1235] of this Act [§§ 67-1235-67-1262] shall be guilty of the offense of “securities fraud”.
“Knowingly” shall be defined as set forth in the Arkansas Criminal Code. Ark. Stat. Ann. § 67-1255(j) (Repl. 1980) [Ark. Code Ann. § 23-42-104(f) (1987)]. Furthermore, fraud is not limited to common-law deceit under the Act. Ark. Stat. Ann. § 67-1247(d) (Repl. 1980) [Ark. Code Ann. § 23-42-102(4) (1987)]. We find that the instruction given was adequate, a correct statement of the law, and fully covered the requisite mental state of the appellant. Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983).
SEVERANCE OF COUNTS I AND III
The appellant contends that Counts I and III are unrelated; that the facts were not connected; and that it was prejudicial for the trial court to deny his motion to sever. We disagree.
When offenses are based on the same conduct or on a series of acts connected together or constituting parts of a single plan or scheme, they may be joined for trial, but the decision to join or sever offenses is within the discretion of the trial court, and the appellate court will not reverse absent an abuse of discretion. Rubio v. State, 18 Ark. App. 277, 715 S.W.2d 214 (1986); A.R.Cr.P. Rule 21.1(b). The offense alleged in Count I was the use of false and misleading statements to procure the sales of the securities. Clausing and Brechtel and their involvement with Founder’s were the basis of the charge in Count I, and they were also listed as victims in Count III. The charges in Count III resulted from the appellant’s commingling of bank accounts that belonged to Founder’s as well as to the business entities in Count III. We find no abuse of discretion and affirm the trial court’s finding that the acts involved constituted a continuing course of conduct. A.R.Cr.P. Rule 21.1(b).
THE MOTION TO DISMISS
The appellant argues that the trial court erred in refusing to dismiss the charges in Count III because the felony information did not describe an offense, and because the alleged acts of theft were security transactions.
An information is not defective if it “sufficiently apprises the individual of the specific crime with which he is charged to the extent necessary to enable him to prepare for his defense.” Richard v. State, 286 Ark. 410, 413, 691 S.W.2d 872 (1985). An information will not be affected by any defect which does not tend to prejudice the substantial rights of the defendant on the merits. Drew v. State, 8 Ark. App. 120, 648 S.W.2d 836 (1983).
The appellant’s attack on the information is merely an exercise in semantics. The information stated that the appellant, “through on or about the 31st day of December, 1983, did with the purpose of depriving the true owners of their property, take unauthorized control over property of a value in excess of $2,500.00, by deception, such being the property of another.” It is the appellant’s argument that the words “by deception” should have been deleted from the information.
The appellant received both a bill of particulars and a supplemental bill of particulars. The appellant’s attorney stated that he did not object to the content of the information, and that his objection was “legal.” We simply fail to discern any prejudice to the appellant because the prosecutor included additional language which more fully described the offense.
The appellant also argues that the trial court should have dismissed the information because the “facts” described a securities transaction and not theft of property. We find no error because there is no provision in our law which permits a criminal charge to be dismissed, prior to trial, because the facts that may be presented do not amount to criminal conduct, although a case may be dismissed if the charge does not state a criminal offense under the law. State v. Jamison, 277 Ark. 349, 641 S.W.2d 719 (1982). The jury was the factfinder, and, until the evidence had been presented to them, there was no basis to dismiss the information for the reason the appellant argues.
DELAY BY PROSECUTOR IN FILING THE INFORMATION
The Securities Commission began an investigation of the appellant in April 1982. The first felony information was filed on February 14, 1985, and the amended information was filed on July 18, 1985. In 1984, the appellant defended several civil actions involving the same transactions which are at issue in this case. The appellant contends that the three-year-period between the initiation of the investigation by the Commission and the filing of the information was an unreasonable delay.
In April 1982, the Commission appointed Steve Bennett to investigate these cases. He testified that he did little with the case and that he left the Commission in June 1983. Nancy Jones was appointed to investigate in October 1983. She testified that her investigation did not begin as a criminal investigation and that she did not remember when the investigation became a criminal one. She testified further that the Commission does not have the authority to prosecute, and that once it was determined that criminal acts had taken place, the case was referred to the prosecuting attorney’s office.
The prosecution cannot delay the filing of charges in order to gain a tactical advantage over the accused. Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984). Furthermore, the prosecution cannot delay if the delay causes substantial prejudice to the appellant’s right to a fair trial. United States v. Marion, 404 U.S. 307 (1971). However, a prosecutor may delay action until he is satisfied that the charges should be brought and can be proven. United States v. Lovasco, 431 U.S. 783 (1977).
The only prejudice alleged by the appellant is that his resources were exhausted from the defense of the civil actions, and thus he was not “at his best” to defend the criminal action. We think that the delay in filing this complicated case has been sufficiently explained, that the prosecution neither sought nor obtained any tactical advantage, and that there was no prejudice to the appellant.
THE TRANSFER OF THE CASE
This case was originally assigned to the Pulaski County Circuit Court, First Division. On motion of the prosecutor the case was transferred to the Fifth Division. The reason given was that the prosecutor, Jim Neal, had been transferred to Fifth Division. The appellant objected, stating that he did not think that Mr. Neal was going to actually try the case because of a conflict of interest, and that the transfer would cause another delay. The trial judge stated that he was granting the transfer because the lawyers were being frequently changed, that the parties had hesitated and delayed, that too much time had been spent on the case already, and that they should “get somebody that understands it and knows what they’re doing.”
The appellant alleges that he was prejudiced because the transfer caused unreasonable delay. The trial in First Division was scheduled to begin in December 1985. The trial began in Fifth Division on June 30, 1986, which was, as the State points out, within the eighteen months mandated by Arkansas law on speedy trials. A.R.Cr.P. Rule 28.1.
The appellant, although stating that the delay prejudiced him, does not state specifically how he was prejudiced, and this Court will not reverse because of an alleged error unless actual prejudice is shown. Hughes v. State, 17 Ark. App. 34, 702 S.W.2d 817 (1985), reh’g denied, 17 Ark. App. 37-A, 705 S.W.2d 455 (1986). Furthermore, from the remarks in the record, the trial judge was obviously frustrated with the delays and felt that a transfer would expedite matters.
The appellant also argues that the transfer violated his fifth, sixth, and fourteenth amendment rights to a fair and speedy trial. However, the appellant did not offer an objection to the trial court based on these constitutional rights, and we will not address issues raised for the first time on appeal. Wilson v. State, 272 Ark. 361, 614 S.W.2d 663 (1981).
EXCLUSION OF A VENIREMAN
During jury selection, one of the potential jury members told the trial court that she would have a problem considering the full range of penalties because she “knew some people who had been there” (in prison). After continued questioning by the court and the prosecutor, the potential juror again stated that she did not know if she could consider the full sentencing range provided by Arkansas law for the offenses with which the appellant was charged. She was stricken for cause, and the appellant argues that the court erred in doing so.
The question of a juror’s qualifications lies within the sound discretion of the trial judge. Miller v. State, 8 Ark. App. 165, 649 S.W.2d407 (1983).Itis proper to excuse for cause a juror who cannot consider the possible range of sentences. Allen v. State, 281 Ark. 1, 660 S.W.2d 922 (1983), cert. denied, 472 U.S. 1019 (1985). We find no abuse of discretion in excluding this juror for cause.
MOTION FOR A NEW TRIAL
The appellant’s last argument is that the trial court erred in denying his motion for a new trial. During the trial, one of the jurors was seen talking to an attorney who represented an insurance company against which the appellant had filed a claim. The appellant states that the insurance claim was related to his criminal case. However, the appellant concedes that there was no harm, and asserts only that it created a prejudicial situation. Because the appellant withdrew the argument in his reply brief and because he concedes that there was no harm, we will not address this argument.
We reverse and dismiss the appellant’s conviction for filing false and misleading statements with the Commission because the charges were brought beyond the statute of limitations; the appellant’s convictions for securities fraud and theft of property are affirmed.
Affirmed in part and reversed and dismissed in part.
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Beth Gladden Coulson, Judge.
In this appeal from a decision of the Washington County Chancery Court, appellant, Northwest National Bank, raises two points for reversal. We find neither argument persuasive and affirm.
On August 23, 1984, James Dickson executed a $35,000 note to appellant bank. The note stated that it was secured by a security agreement covering assignment of various Merrill Lynch accounts. A standard financing statement and security agreement form dated August 23, 1984, signed by Dickson and appellant bank, stated that Dickson granted to appellant bank (the “Secured Party”) a “Security Interest pursuant to the Uniform Commercial Code” in the property described. File numbers were appended to each case. The property description was prefaced with the phrase: “Assignment of fees payable to James F. Dickson for the following Merrill Lynch cases.” The printed language of the form also stated that this security interest included “all replacements thereof and all accessories, parts and equipment now or hereafter affixed thereto or used in connection therewith (hereinafter collectively called the “Goods”); and. . . UNTIL DEFAULT hereunder, Debtor shall be entitled to the possession of the Goods and to use and enjoy the same.”
On November 1, 1984, appellant bank hand delivered a letter to the Fayetteville branch of appellee Merrill Lynch, Pierce, Fenner & Smith, Inc., which stated that:
Mr. James Dickson has pledged as collateral on a loan at Northwest National Bank accounts receivable from Merrill Lynch, Pierce, Fenner [&] Smith, Inc. (Paramount Petroleum, Ray Lofton, William Christensen, George Hernreich, Steve LaFontain, First National Bank of Little Rock, Jerry Dan McBride, Butch McCallum, Bill Kersey, Larry Cabelka, CMI Investments [,] Allied Electric and Electric Service Co. of Ft. Smith, Goff, and Epley).
Please mark your records so that payments are made to Mr. Dickson and Northwest National Bank.
A copy of the August 23,1984, financing statement and security agreement was attached to the letter.
Appellant bank and Dickson subsequently extended the due date on the note to April 15, 1986, by executing five extension agreements which all stated that the collateral securing the original obligation would continue to secure the amended obligation. No other agreements or instruments were executed by the parties. Between August 23, 1984, and the due date, appellant bank accepted various payments of principal and interest from Dickson. When the note became due on April 15,1986, Dickson failed to pay the outstanding balance of $10,782.54 to appellant bank.
Frances Sabbe, a loan officer with appellant bank, wrote Dickson a letter on September 22, 1986, notifying him that his loan was “seriously delinquent” and requesting a conference for discussion of a plan for repayment. On October 28, 1986, appellant bank’s attorney wrote to the Fayetteville branch of appellee Merrill Lynch, advising that no payment of Dickson’s legal fees had been received and requesting an accounting. Receiving no reply to either letter, appellant bank filed suit against Dickson and appellee Merrill Lynch, praying for a judgment against Dickson and an accounting and judgment against appellee Merrill Lynch.
At trial, on September 22, 1987, only two persons testified: Frances Sabbe on behalf of appellant bank and Paula Sutton, administrative manager of appellee Merrill Lynch in Little Rock, Arkansas. James Dickson did not testify. In a judgment filed on October 7,1987, the chancellor found for appellant bank against Dickson but dismissed the cause of action against appellee Merrill Lynch, finding that even though appellee had been notified of the security agreement between appellant and Dickson on November 1, 1984, the security agreement did not constitute an assignment, and the November 1,1984, letter from appellant to appellee had no legal effect. From that decision, this appeal arises.
Appellant argues, in its first point for reversal, that the chancellor erred in ruling that the note and security agreement between James Dickson and Northwest National Bank did not constitute an assignment to appellant bank of the legal fees owed Dickson by Merrill Lynch. On appeal, chancery cases are tried de novo on the record; we will not reverse the findings of the chancellor unless they are clearly erroneous, i.e., clearly against the preponderance of the evidence. A.R.C.P. Rule 52(a); RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S. W.2d 642 (1986). We give due regard to the opportunity of the trial court to assess the credibility of the witnesses. Special Insurance Services, Inc. v. Adamson, 20 Ark. App. 8, 722 S.W.2d 875 (1987).
When accounts receivable are assigned to secure the performance of a debt, the account debtor, under Ark. Code Ann. § 4-9-318(3) (1987) “is authorized to pay the assignor until the account debtor receives notification that the amount due or to become due has been assigned and that payment is to be made to the assignee.” Appellant contends that the preponderance of the evidence shows that an assignment had been made, that Northwest National Bank had notified appellee of its status as assignee and that payment should have been made to appellant bank.
The Arkansas Supreme Court, in Robinson v. City of Pine Bluff, 224 Ark. 791, 276 S.W.2d 419 (1955), held that, to constitute an assignment, no particular words are necessary. The court, quoting Edison, et al. v. Frazier, 9 Ark. (4 Eng.) 219 (1848), defined an assignment as “the setting over, or transferring, the interest a man hath in anything to another,” and emphasized that an assignment is an expression of intention by the assignor that his rights should pass to the assignee. 224 Ark. at 794, 276 S.W.2d at 421.
In Turner v. Rust, 228 Ark. 528, 309 S.W.2d 731 (195 8), the Arkansas Supreme Court noted that an assignment is generally interpreted or construed under the rules governing construction of contracts, with the primary object always being to ascertain and carry out the intention of the parties. To insure validity, the assignment must adequately describe or identify the property or thing to be assigned, “but, when such a description is inserted, the assignment ordinarily passes to the assignee all of the rights, title, or interest of the assignor in or to the property or property rights that are comprehended by the terms used, or are within the intention or understanding of the parties, as ascertained in accordance with the general rules of construction.” 228 Ark. at 534-535; 309 S.W.2d at 735. Where a contract is ambiguous, the court will accord considerable weight to the construction given to it by the parties themselves, evidenced by subsequent statements, acts, and conduct. RAD-Razorback Ltd. Partnership v. B.G. Coney Co., supra.
The chancellor in the present case recognized that there was undoubtedly a security agreement but held that “the bank could not unilaterally impose a duty of payment on Merrill Lynch simply by virtue of that instrument,” despite the use of the term “assignment” in the document. As the Arkansas Supreme Court stated in Wimberley Grocery Co. v. Border City Broom Co., 166 Ark. 570, 266 S.W. 679 (1924):
At § 73 of the chapter on Assignments, in 5 C.J., p. 906, it is said: “Where the assignment is in writing, no special form of words or language is required to be used, although the operative words of an assignment generally used are ‘sell, assign, and transfer,’ or ‘sell, assign, and set over.’ It may be in the form of an order on the debtor or holder of the fund assigned to pay the debt or fund to another person. Any language, however informal, if it shows the intention of the owner of the chose in action to transfer it, will be sufficient to vest the property therein in the assignee.”
166 Ark. at 577, 266 S.W. at 682. While no particular words are necessary to constitute an assignment, the traditional language of assignment may be used by a court as an indication of the intention of the parties to effect an assignment. The chancellor here found no such suggestion of intent.
Frances Sabbe, appellant bank’s own witness, testified that there was “no separate document called an assignment”; only the financing statement and security agreement existed to show a relationship among the parties. She verified that the “assignment” of Dickson’s fees, reflected in those instruments, was for the purpose of providing collateral on the loan. The ultimate purpose, then, of the assignment language on the two forms was to provide a means of perfecting a security interest in the accounts receivable.
In the security agreement, it was provided that “UNTIL DEFAULT hereunder, Debtor shall be entitled to the possession of the Goods and to use and enjoy the same.” If, as appellant bank suggests, this language creates an ambiguity, the contract, prepared by Northwest National Bank, must be strictly construed against it, Gilstrap v. Jackson, 269 Ark. 876, 601 S.W.2d 270 (1980), in the light of the subsequent statements, acts, and conduct of the parties, RAD-Razorback Ltd. Partnership v. B.G. Coney Co., supra. During the twenty-six months between the time the loan was made, in August, 1984, and the time it was declared in default, in October, 1986, appellant bank continued to accept payments of principal and interest from Dickson, who continued to collect fees on the cases described in the security agreement. Frances Sabbe acknowledged that, under the agreement, Dickson was permitted to collect those fees until the time of default. It is therefore unfeasible for the security agreement in this case to be considered at the same time an assignment. It would have been a clear expression of intent for the parties here to have executed a separate oral or written agreement. For example, in Newton v. Merchants & Farmers Bank of Dumas, 11 Ark. App. 167, 668 S.W.2d 51 (1984), a letter, separate from a consumer note and security agreement, provided:
I, Kenneth Rogers, D/B/A Ken Rogers Plumbing Co., hereby assigns [sic] set over and deliver to Merchants and Farmers Bank of Dumas, Arkansas, a certain subcontract between Wayne Newton Construction Company of Magnolia Arkansas and Delta Lodge Motel, in the amount of $22,100, dated February 11, 1981.
11 Ark. App. at 170, 668 S.W.2d at 52. No such independent agreement was made in the present case, and the chancellor was not clearly erroneous in ruling that the note and security agreement did not constitute an assignment to appellant bank of the legal fees owed James Dickson by appellee Merrill Lynch.
In its second point for reversal, appellant bank contends that the chancellor erred in ruling that the letter dated November 1, 1984, from Northwest National Bank to appellee Merrill Lynch had no legal and binding effect. The chancellor’s rationale was that because no valid assignment had been made, the letter was merely notice from the bank to Merrill Lynch that there was a security agreement between appellant and Dickson. We agree.
The text of the letter of November 1, 1984, nowhere indicates that an assignment has been made. There appears a statement that “Mr. James Dickson has pledged as collateral on a loan at Northwest National Bank accounts receivable from Merrill Lynch, Pierce, Fenner [&] Smith, Inc.” and a request that appellee Merrill Lynch “mark your records so that payments are made to Mr. Dickson and Northwest National Bank.” The attached copy of the financing statement and security agreement showed only that appellant bank had been granted a security interest in the accounts receivable and that Dickson was entitled to possession of those “goods” until default. Neither the security agreement nor the letter provided appellee instruction regarding the amount of money involved, the time when payments were to begin, or the duration of the purported assignment.
The record clearly reveals that Dickson made payments under the terms of his note until the extended due date of April 15, 1986. Appellant bank’s witness, Frances Sabbe, who signed the November 1, 1984, letter, testified that she did not consider the loan in default until October 28, 1986, the date on which Northwest National, through its attorney, made demand upon appellee Merrill Lynch for payment of Dickson’s fees. At no time prior to default, however, was appellee informed of the various loan extensions granted Dickson by appellant or asked for an accounting of fees owed or paid to Dickson.
These actions and omissions indicate that appellant bank considered the transaction to be governed by the Uniform Commercial Code’s provisions on the secured party’s collection rights:
When so agreed and in any event on default the secured party is entitled to notify an account debtor or the obligor on an instrument to make payment to him whether or not the assignor was theretofore making collections on the collateral and also to take control of any proceeds to which he is entitled.
Ark. Code Ann. § 4-9-502(1) (1987). Similarly, Ark. Code Ann. § 4-9-503 (1987) provides that “Unless otherwise agreed, a secured party has on default the right to take possession of the collateral.” No other agreement was made, and appellant did not seek the accounts receivable before default. By its own conduct appellant bank seemed to have regarded its letter of November 1, 1984, as nothing more than notice to appellee Merrill Lynch of the existence of the security agreement. The evidence does not suggest that the chancellor was clearly erroneous in deciding that the letter had no legal and binding effect.
Appellee Merrill Lynch, in its brief, renewed its motion to strike Appendix A from appellant’s brief on the grounds that it is not a part of the record and violates Rule 9(d) of the Rules of the Supreme Court and Court of Appeals. Appellant’s Appendix A consists of a photocopy of a consumer note and security agreement from the record in Newton v. Merchant & Farmers Bank of Dumas, supra. As it is not a part of the record in this case it was not considered and the motion to strike is moot.
Affirmed.
Mayfield and Cooper, JJ., agree. | [
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Sam Bird, Judge.
This is an appeal from a decision of the Workers’ Compensation Commission. Terry Humphrey, the appellant, was employed by Faulkner Nursing Center, appellee/ cross-appellant, on December 18, 1992, when she attempted to lift a patient back into a wheelchair. The patient was sliding to the floor, and the restraint on the wheelchair was choking her. As appellant attempted to lift the patient, she and a coworker, who was also lifting the patient, heard a loud pop in appellant’s right shoulder. Appellant states that her hand became numb and her arm and hand began turning blue and became cold.
As a result of this injury, the appellant had a diskectomy and spinal fusion with bone graft at the C5-6 level of her spine. Her surgeon, Dr. Richard Peek, assigned her a thirty-five percent permanent physical impairment to the body as a whole. However, Dr. Earl Peeples also examined the appellant and gave her a permanent anatomical impairment of ten percent to the body as a whole based upon her neck injury and the fusion procedure.
The administrative law judge found that the appellant had proven by a preponderance of the evidence that she is permanently and totally disabled as a result of impairments to her right arm, right shoulder, and neck. However, after a de novo review of the record, the full Commission found that the appellant was not permanently and totally disabled but that the appellant was entitled to a thirty-five percent permanent physical impairment to the body as a whole based upon the combination of impairments to her neck, right shoulder, and right arm. On April 8, 1997, the Commission entered an order and remanded this case to the law judge to receive additional evidence in order to determine what portion of the appellant’s thirty-five percent impairment rating is attributable to the scheduled arm impairment. In addition, the Commission directed the law judge to determine the degree of impairment to the appellant’s earning capacity related to her neck and shoulder impairments without regard to the scheduled arm impairment.
On April 21, 1997, the appellant filed a notice of appeal contending that the Commission erred in finding that she was not permanently and totally disabled and that her arm impairment was a scheduled injury. On May 2, 1997, the appellee filed a cross-appeal arguing that the Commission’s finding that the appellant has a thirty-five percent physical impairment is not supported by substantial evidence. However, this court cannot reach the merits of this case and must dismiss the appeal for lack of a final order.
It is a well-established rule that in order for this court to review a decision of the Workers’ Compensation Commission, the order from which the parties appeal must be final. Rogers v. Wood Mfg., 46 Ark. App. 43, 877 S.W.2d 43 (1994); Adams v. Southern Steel & Wire, 44 Ark. App. 108, 866 S.W.2d 432 (1993); TEC v. Falkner, 38 Ark. App. 13, 827 S.W.2d 661 (1992); American Mut. Ins. Co. v. Argonaut Ins. Co., 33 Ark. App. 82, 801 S.W.2d 55 (1991); St. Paul Ins. Co. v. DeSota, 30 Ark. App. 45, 782 S.W.2d 374 (1990). For an order to be final, the order must dismiss the parties from the court, discharge them from the action or conclude their rights as to the cause of action. Baldor Electric Co. v. Jones, 29 Ark. App. 80, 777 S.W.2d 586 (1989). Further, an order that is remanded to the law judge for the taking of additional evidence and one that does not award compensation for monetary benefits is not a final order. Baldor Electric Co. v. Jones, supra; Adams v. Southern Steel & Wire, supra. This court is obliged to raise on its own motion the finality of an order because it goes to our own jurisdiction. Rogers v. Wood Mjg., supra. See also TEC v. Falkner, supra; Baldor Electric Co. v. Jones, supra.
This appeal is dismissed because the order from which the parties appeal and cross-appeal is not a final order.
Robbins, C.J., Jennings, Crabtree, and Meads, JJ., agree.
Griffen, J., dissents. | [
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Terry Crabtree, Judge.
On March 27, 1996, at approximately 1:30 a.m., police officers executed a search warrant at the residence of appellants, Kevin and Sherry Hale. As a result of items seized from their home, appellants were charged with possession of methamphetamine with intent to deliver, possession of drug paraphernalia, and misdemeanor possession of marijuana. Prior to trial, appellants sought to suppress the evidence obtained during the search. After a hearing, the trial court denied their motion. Appellants then entered conditional guilty pleas to the possession of methamphetamine charges, and each was sentenced to forty-two months in the Department of Correction.
On appeal, they argue that it was error to deny their motion to suppress because (1) the facts contained in the affidavit in support of the search warrant did not justify the authorization of a nighttime search, and (2) the officers’ failure to knock and announce their presence before entering was unreasonable. We disagree, and therefore affirm.
In reviewing a trial court’s ruling on a motion to suppress, this court makes an independent determination based upon the totality of the circumstances and will reverse the trial court’s ruling only if it is clearly against the preponderance of the evidence. Thompson v. State, 42 Ark. App. 254, 856 S.W.2d 319 (1993).
I. The Nighttime Search
Appellants first argue that the affidavit submitted by Officer Roger Ahlf of the Arkansas State Police did not contain sufficient facts to justify a nighttime search. Officer Ahlf submitted the four-page affidavit to Municipal Judge Leroy Froman at approximately 12:30 a.m. on March 27, 1996. In requesting the warrant, Ahlf alleged that a controlled drug purchase had taken place earlier that night using marked bills, and that there was a possibility that evidence would be destroyed unless officers were allowed to conduct the search at night and without having to knock and announce their presence before entering the home. Judge Fro-man authorized the execution of the warrant at any time day or night.
Rule 13.2 of the Arkansas Rules of Criminal Procedure sets out three bases for the issuance of a nighttime search warrant. The rule states:
(c) Except as hereafter provided, the search warrant shall provide that it be executed between the hours of six a.m. and eight p.m., and within a reasonable time, not to exceed sixty (60) days. Upon a finding by the issuing judicial officer of reasonable cause to believe that:
(i) the place to be searched is difficult of easy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy;
the issuing judicial officer may, by appropriate provision in the warrant, authorize its execution at any time, day or night, and within a reasonable time not to exceed sixty (60) days from the date of issuance.
It has consistently been held that the affidavit in support of a search warrant must set out facts showing reasonable cause to believe that circumstances exist which justify a nighttime search. Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990). Appellants assert that there were insufficient facts contained in the affidavit to allow the issuing judge to form reasonable cause to believe that evidence might be destroyed.
Officer Ahlf s affidavit contained the following relevant facts in support of a nighttime search: that during the nighttime hours of March 26, a confidential informant had purchased methamphetamine from appellants using marked bills; that the informant had seen quantities of contraband and paraphernalia in the bathroom; that the purchase had taken place in the bathroom; that several other purchases by other confidential informants had taken place in the bathroom at night; and that an informant stated that appellants normally stayed awake at night and slept during the day.
At the hearing on the motion to suppress, the trial judge ruled that a nighttime search was justified based on the need to retrieve the marked bills used by the confidential informant in the transaction of March 26th. Our supreme court has held that this is a valid justification for allowing a nighttime search. In Neal v. State, 320 Ark. 489, 898 S.W.2d 440 (1995), the court stated:
The affidavit of Lt. Hyatt revealed his chief reason for requesting a nighttime search warrant was his concern that the marked money used by the confidential informants to purchase marijuana from Mr. Neal would be removed from Mr. Neal’s home. He stated that the informants said there were others present who indicated they were going to purchase marijuana. Judge Coxsey could easily have concluded that in the course of doing business the marked money might have been dispatched from Mr. Neal’s home. We hold the nighttime search was justified on the ground that it was necessary to conduct the search as quickly as possible after the purchase the confidential informants reported they had made from Mr. Neal.
320 Ark. at 494-95, 898 S.W.2d at 444.
The totality of the circumstances militates against suppression of the evidence. In considering appellants’ motions below, the trial court ruled that the marked money in and of itself justified the immediate entry to seize the evidence, and we cannot say that this finding was clearly against the preponderance of the evidence. Thompson, supra. Further, the fact that buys took place in the appellants’ bathroom would justify a nighttime search in order to prevent the possible destruction of evidence. There was no error in allowing a nighttime search in accordance with Rule 13.2.
Appellants also argue that there was a problem with the warrant itself. They properly cite Carpenter v. State, 36 Ark. App. 211, 821 S.W.2d 51 (1991), for the proposition that “the warrant must contain not only a finding of justification for a nighttime search, but also an appropriate order authorizing the same.” Appellants assert that the warrant simply stated that a nighttime search was required, and that such language was not sufficient. However, Carpenter dealt with a nighttime search warrant that was completed by “checking off” boxes on a standard printed form. In this case, the warrant clearly contained an appropriate order for a nighttime search.
II. Knock-and-Announce
The Fourth Amendment incorporates the common-law requirement that police officers must knock and announce their identity before entering a dwelling. Wilson v. Arkansas, 514 U.S. 927 (1995). However, the “flexible rule of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.” Richards v. Wisconsin, 117 S.Ct. 1416, 1418 (1997) (citing Wilson, supra). In order to justify a “no-knock” entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous, futile, or that it would inhibit the investigation of the crime by, for example, allowing the destruction of evidence. Id. at 1421.
It is the duty of a court confronted with the question to determine whether the facts and circumstances of a particular entry justified dispensing with the knock-and-announce requirement. Id. We will not reverse that finding unless it is clearly against the preponderance of the evidence. Thompson, supra. In the present case, the trial court found that the no-knock entry was appropriate in light of the officers’ reasonable suspicion that evidence might be destroyed. Appellants argue that the entry was unreasonable.
We cannot say that the trial court’s ruling on the motion to suppress was clearly against the preponderance of the evidence. Officer Ahlf stated in both his affidavit and at the motion hearing that several drug purchases had taken place in appellants’ bathroom, and that in his experience drugs were often flushed to avoid detection. Other confidential informants told investigators that quantities of drugs were kept in the bathroom. In short, the same facts that justified the authorization of a nighttime search authorized the no-knock execution.
This is not to say that officers are permitted to forcibly enter a home without knocking and announcing any time a nighttime search warrant is issued. Whether the reasonableness requirement adopted by the Supreme Court in Wilson has been satisfied depends largely upon the facts of each case. In this case, the entry into appellants’ home was reasonable under the circumstances.
Affirmed.
Jennings and Bird, JJ., agree. | [
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Wendell L. Griffen, Judge.
Buddy Hiner seeks reversal of a Board of Review decision that he is not entitled to unemployment benefits. We hold that the decision of the Board of Review that appellant voluntarily left his work without good cause connected with the work is not supported by substantial evidence. Therefore, we reverse the decision, and remand the case to the Board so that an order awarding benefits can be entered.
Appellant was employed by Hiner Oils, Inc., for twenty-eight years. For most of that time he held the position of vice-president with the firm. After the murder of his brother, Gerald Hiner, who was the president and owner of the firm, appellant worked as company president. He was named co-executor of the estate of Gerald Hiner along with Gerald Hiner’s son, Paul Hiner. Paul Hiner and his sister inherited all the stock of the corporation after their father’s death, and decided to sell the firm to a new entity to be known as Hiner Distributing, contrary to the desires of appellant. It is undisputed that because of appellant’s opposition to the sale Paul Hiner and his sister contemplated initiating probate proceedings aimed at removing appellant as co-executor of the estate of Gerald Hiner, and that appellant’s prospect for defeating that effort was dim because his nephew and niece owned all the stock of Hiner Oils.
As part of an agreement connected with the sale of the business to Hiner Distributing on September 1, 1994, appellant agreed to resign as co-executor of the estate of Gerald Hiner and as president of Hiner Oils, effective August 31, 1994. Appellant signed a covenant not to compete with the new entity for five years, for which he was paid $60,000. Appellant also agreed to serve as consultant to the new firm for three months (September, October, and November 1994), and was paid $5,000 per month for his services. However, appellant was not retained as an employee of the new firm. He had no employee benefits during the three months that he was a paid consultant, and was unemployed afterward.
Believing that he had been laid off or discharged, appellant filed a claim for unemployment insurance benefits with the Employment Security Division of the Arkansas Department of Labor (the Department). The Department denied benefits pursuant to Ark. Code Ann. § 11-10-513 (Supp. 1997), finding that he voluntarily left his last work without good cause connected with the work. Appellant appealed to the Appeal Tribunal, which reversed the Department’s determination, found that appellant was discharged for reasons other than misconduct in connection with the work based on Ark. Code Ann. § 11-10-514, and modified the decision by awarding benefits. After the employer appealed to the Board of Review, the Board reversed the Appeal Tribunal and found that appellant voluntarily left his last work without good cause connected with the work, pursuant to Ark. Code Ann. § ll-10-513(a)(l).
Although appellant’s first argument is that substantial evidence supports the decision by the Appeals Tribunal that awarded him unemployment benefits and that the Board of Review erred in reversing that decision, that argument does not correctly address the standard of review applicable to appeals from decisions by the Board of Review. On appeal in unemployment compensation cases, findings of fact by the Board of Review are conclusive if supported by substantial evidence, and review by the Court of Appeals is limited to determining whether the Board could reasonably reach its decision upon the evidence before it. Rodriguez v. Director, 59 Ark. App. 8, 952 S.W.2d 186 (1997). Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. This Court reviews the evidence and all reasonable inferences deducible therefrom in a light most favorable to the Board of Review’s findings. Rucker v. Director, 52 Ark. App. 126, 915 S.W.2d 315 (1996). We do not conduct a de novo review of the evidence in an appeal from a Board of Review decision. 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. Cowan v. Director, 56 Ark. App. 17, 936 S.W.2d 766 (1997).
The Board of Review held that appellant was disqualified from receiving unemployment benefits because he voluntarily left his job with Hiner Oils without good cause connected with the work pursuant to Ark. Code Ann. § 11 — 10—513(a)(1). The term “good cause” means a justifiable reason for not accepting the particular job offered. Id.; Rowlett v. Director, 45 Ark. App. 99, 872 S.W.2d 83 (1994). To constitute good cause, the reason for refusal must not be arbitrary or capricious, and the reason must be connected with the work itself. Id. The question of what is good cause must be determined in the light of the facts in each case. Wacaster v. Daniels, 270 Ark. 190, 603 S.W.2d 907 (Ark. App. 1980). Although benefits will be denied an employee who leaves employment for general economic reasons not connected with some specific unfairness perpetrated by his employer, where the employer does an act that causes economic injury to the employee that act may be good cause connected with the work within the meaning of the statute. Jackson v. Daniels, 269 Ark. 714, 600 S.W.2d 426 (Ark. App. 1980).
We have recently held that good cause sufficient to have a successful unemployment benefits claim is cause that would reasonably impel an average able-bodied, qualified worker to give up his employment. Garrett v. Director, 58 Ark. App. 7, 944 S.W.2d 865 (1997). Good cause depends not only on the good faith of the employee involved, which includes the presence of a genuine desire to work and to be self-supporting, but also depends on the reaction of an average employee. Id.
Viewing the evidence in the light most favorable to the Board of Review, we are unable to find substantial evidence to support its finding that appellant voluntarily quit his position as president of Hiner Oils without good cause connected with the work. Although appellant testified that he voluntarily signed a letter of resignation and the covenant not to compete, and that he was paid $60,000 as consideration for doing so and for resigning as co-executor of the estate of Gerald Hiner, there is no evidentiary basis for concluding that he did so without good cause connected with his work. Appellant’s job was terminated because his employer was being sold to another entity. Appellant had no power to halt or otherwise control the circumstances of the sale because the company was owned by his nephew and niece, who inherited Gerald Hiner’s stock following his demise. The undisputed evidence is that the niece and nephew were preparing to initiate probate proceedings to remove appellant as co-executor of their father’s estate in furtherance of their decision to sell the business. It is also undisputed that appellant was neither promised nor offered a job as an employee with the prospective purchaser of the business. The sale of the firm to the new owner ended appellant’s status as an employee of Hiner Oils, left him without medical coverage for his heart condition, and resulted in him being retained by the owner as a consultant for only three months when he had previously been vice-president and president of the business.
Like the appellant in Garrett v. Director, supra, the appellant in this case attempted to resolve his concerns about continued employment without success. He could not convince his niece and nephew to keep the business they inherited. He could not persuade the purchaser to retain him as an employee. These were certainly legitimate reasons for resigning his positions as president of Hiner Oils and co-executor of the estate of Gerald Hiner. The fact that appellant voluntarily accepted $60,000 in exchange for entering into a covenant not to compete with the new firm and agreed to be a paid consultant with the new firm does not mean that he lacked good cause to give up his job with Hiner Oils. This undisputed proof prevents us from holding that the Board of Review reasonably decided that appellant left his job as president of Hiner Oils voluntarily and without good cause connected with the work.
We reach this decision especially mindful of the purpose behind our unemployment compensation legislation, and the benefits provided thereby. As Judge George Howard wrote in Wacaster v. Daniels, supra, unemployment compensation laws were enacted during the Great Depression of the 1930s to provide a reasonable and effective means for the promotion of economic security and to assist financially those employees who are involuntarily unemployed because of the reduction of an employer’s workforce due to adverse economic conditions. These measures are not designed to penalize employers or reward employees, but are designed to promote the common good or general welfare of the State. More particularly, the goal is to provide for employees who are able to work, available for work, but cannot find work.
The Arkansas General Assembly articulated this humane and beneficent purpose by the following statement of legislative intent when the Arkansas Employment Security Law was originally enacted:
Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this State. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the Legislature to prevent its spread and to lighten its burden which may fall with crushing force upon the unemployed worker and his family. The achievement of social security requires protection against this great hazard of our economic life. This can be accomplished by encouraging employers to provide more stable employment and by the systematic accumulation of funds during periods of employment from which benefits may be paid for periods of unemployment, thus maintaining purchasing power and limiting the serious social consequences of poor relief assistance.
See Ark. Code Ann. § 11-10-102 (Repl. 1996).
When we consider this public policy purpose in light of the undisputed evidence concerning the imminent sale of the company for which appellant had worked for twenty-eight years, the fact that appellant would have not only been replaced as president of the business but was not promised employment except as a short-term paid consultant without employee benefits, and the fact that appellant was unemployed after his three-month consultant situation expired following the sale, we are unable to hold that the Board of Review reasonably found that appellant voluntarily left his job as president of Hiner Oils without good cause connected with the work. Therefore, we reverse and remand the case to the Board of Review so that it can award appellant his unemployment benefits.
Appellant also argues that the Board of Review erred when it permitted the employer’s attorney to testify on behalf of the employer and remain its advocate. While this argument appears to have merit, we are unable to address it because the record does not demonstrate that appellant objected to the testimony by the lawyer. Based on our established position that arguments raised for the first time on appeal will not be considered, we decline to reverse the Board of Review on that ground. See Hooks v. Pratte, 53 Ark. App. 161, 920 S.W.2d 24 (1996). However, attorneys for litigants are reminded that Rule 3.7 of the Model Rules of Professional Conduct adopted by our supreme court expressly provides that a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where the testimony relates to an uncontested issue, the testimony relates to the nature and value of legal services rendered in the case, or disqualification of the lawyer would work substantial hardship on the client. The general rule exists to prevent prejudice to opposing parties and conflict of interest between lawyers and their clients. Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995).
Reversed and remanded.
Robbins, C.J., and Meads, J., agree. | [
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Olly Neal, Judge.
Appellant, Peggy Arnold, appeals from a decision of the Workers’ Compensation Commission finding that she failed to prove by a preponderance of the evidence that her carpal tunnel syndrome was causally connected to her employment with appellee, Tyson Foods, Inc. Appellant argues that the Commission’s finding is not supported by substantial evidence. We disagree, and therefore affirm the Commission’s decision.
Appellant has continuously worked for appellee since 1978. She worked as a production line worker for several years until she advanced to the position of Cryovac packing superintendent in 1989. Several months before appellant’s term as superintendent, a night shift was added that required her to work regularly on the production fines. Appellant testified that, in 1989, she began to notice a tingly or numb feeling in her hands while performing her job of rerunning chickens. This task required her to retrieve a chicken out of the tank filled with ice while grasping it with her left hand. She then used both hands to squeeze the chicken out of a shrunken bag to avoid damage to the chicken.
In 1991, appellant informed the company nurse that her hands were causing her pain. Thereafter, she was given splints to wear. In May of 1996, appellant complained to appellee that she had no feeling in her hands. She sought treatment from Dr. Donald Bailey, who ordered nerve conduction tests when he noticed that appellant was wearing splints. The results of the tests revealed that appellant suffered from moderately severe carpal tunnel syndrome in both wrists, which required surgery. Dr. Peter Heinzelmann, who recommended surgery for appellant, and Dr. Bailey both opined that appellant’s injury was work-related.
At a hearing on March 4, 1997, the administrative law judge found that appellant sustained a compensable injury based on objective medical evidence, that her injury was work-related, and that appellant had proven that she was entitled to temporary total disability for the periods she had not worked after the injury was discovered by Dr. Bailey. The Workers’ Compensation Commission reversed the decision of the ALJ, finding that appellant failed to prove her contention that she had worked 75% on the production line during her supervisory position. The Commission further found that because appellant was involved in such activities as racquetball, walleyball, and volleyball after she became superintendent, she failed to meet her burden to show that a causal connection existed between her injury and her employment. From these findings, appellant brings this appeal.
When the Workers’ Compensation Commission denies a claim because of a claimant’s failure to meet her burden of proof, the substantial-evidence standard of review requires that the appellate court affirm the Commission’s decision if its opinion displays a substantial basis for the denial of relief. Roberson v. Waste Management, 58 Ark. App. 11, 944 S.W.2d 858 (1997). Substantial evidence is that relevant evidence which reasonable minds might accept as adequate to support a conclusion. Id. The appellate court views the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the findings of the Commission and affirms that decision if it is supported by substantial evidence. Jeter v. B.R. McGinty Mechanical, 62 Ark. App. 53, 968 S.W.2d 645 (1998). The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. University of Ark. Med. Sciences v. Hart, 60 Ark. App. 13, 958 S.W.2d 546 (1997).
In this case, appellant argues that the Arkansas Supreme Court decision in Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998), is controlling. She contends that it is unnecessary for her to prove that her carpal tunnel syndrome involves rapidity and repetition and that the Commission erroneously focused on the percentage of time she worked on the production fine as a superintendent. Although this statement of the Arkansas law is correct, we note that both the pre-Act 796 and Act 796 law require the claimant to prove that her injury arose “out of and in the course of employment.” Ark. Code Ann. § 11-9-401 (a)(1) (1987 and Repl. 1996). Even though it is virtually undisputed that appellant suffers from carpal tunnel syndrome, she still bears the burden of proof by a preponderance of the evidence that her injury occurred from her employment with appel-lee, and not from any other source.
The evidence presented by appellant in this case showed that she began to notice problems with her hands in 1989. Shordy after, she received splints to wear from the company nurse. However, from 1989 to 1996, appellant made several visits to her personal physician without once mentioning that she was having problems with her hands. Appellant testified that when she received splints from the company nurse, she did not express to any on-staff medical personnel that the pain in her wrists and hands were work-related. Moreover, while appellant argues that the Commission failed to mention the medical evidence that concluded that her injury was causally connected to her workplace, we note that the Commission took into account that in 1996, appellant was initially seen by Dr. Bailey for a wholly unrelated problem than her hand problem. Further, appellant’s testimony does not reveal that she told Dr. Bailey or any of her other treating physicians that her injury was work-related. It is well settled that the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Oak Grove Lumber Co. v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998). The Commission has the duty to use its experience and expertise in translating evidence of medical experts into findings of fact. Id.
The Commission noted several facts in finding that the evidence failed to prove that appellant’s injury was causally related to her workplace. First, two supervisors who worked directly under the supervision of appellant testified that appellant worked no more than thirty minutes at a time on the production line. Second, the Commission stated that appellant’s injury could be causally related to the sporting activities she maintained during the time she worked for appellee. There was testimony by Billy Joyce Reed, the complex personnel manager, who testified that she would estimate that she and appellant played volleyball, racquetball, and walleyball a “hundred times.” Glenda Kirk, the company nurse, testified that when appellant came to her office in 1991, appellant stated that her hands were hurting and that she would have to stop playing volleyball and racquetball. Finally, appellant was a superintendent during the time that she first noticed a problem with her hands. There was evidence that the responsibilities of a superintendent included training supervisors in production and administration of policies and regulations, monitoring safety and ergonomics, and working with the new-hire training program. Yet, the record indicates that appellant never told anyone that her injury was work-related, despite the fact that her position required her to maintain safety regulations and to report any work-related injuries.
We have stated on many occasions that the determination of the credibility and weight to be given a witness’s testimony is within the sole province of the Workers’ Compensation Commission. American Greetings Corp. v. Garey, 61 Ark. App. 18, 963 S.W.2d 613 (1998); Gansky v. Hi-Tech Eng’g, 325 Ark. 163, 924 S.W.2d 790 (1996). 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. McMillan v. U.S. Motors, 59 Ark. App. 85, 953 S.W.2d 907 (1997).
Based on the foregoing reasons, we find that substantial evidence exists to support the Commission’s finding that appellant failed to prove by a preponderance of the evidence that the carpal tunnel syndrome she sustained was causally related to her employment with appellee.
Affirmed.
Pittman, Arey, Bird, and Griffen, JJ., agree.
Roaf, J., dissents. | [
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John F. Stroud, Jr., Judge.
Jimmy White, a forklift driver at Georgia-Pacific’s Crossett plant, injured a foot and ankle when he slipped and fell on a step. The incident occurred when he stepped through a doorway to take a smoke break approximately two hours into his shift. After a hearing, the administrative law judge concluded that the injury did not occur in the course and scope of Mr. White’s job duties for Georgia Pacific. The Commission adopted and affirmed the decision of the law judge. Mr. White now raises two points in appealing the Commission’s decision. He contends 1) that “there does not exist substantial evidence to support the decision” that he did not prove by a preponderance of the evidence that his injury occurred in the course and scope of his employment, and 2) that the injury is compensable under the personal comfort doctrine. We affirm.
We note initially that when a workers’ compensation claim is denied, the substantial evidence standard of review requires us to affirm' the Commission if its opinion displays a substantial basis for the denial of the relief sought. Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987). On appeal in workers’ compensation cases, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and will affirm if those findings are supported by substantial evidence. Jeter v. B.R. McGinty Mechanical, 62 Ark. App. 53, 968 S.W.2d 645 (1998). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The issue on appeal 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. Id.
Under Arkansas Code Annotated section 11-9-102 (5) (A) (i) (Supp. 1997), an accidental injury causing internal or external harm to the body, arising out of and in the course of employment and which requires medical services or results in disability or death, is a compensable injury. Act 796 of 1993 excluded from the definition of “compensable injury” an injury inflicted upon an employee at a time when employment services were not being performed. See Ark. Code Ann. § 11-9-102(5)(B)(iii) (Supp. 1997). The term “employment services” is not defined by the Act.
In Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997), our supreme court affirmed the compensability of an injury suffered in an automobile accident by a nurse en route to provide nursing services in a patient’s home. The Olsten decision included the Commission’s construction of the term “employment services”:
[C]onsidering the ordinary and usually accepted meaning of this term in common language, we find that an employee is performing employment services when she is engaging in an activity which carries out the employer’s purpose or advances the employer’s interests. Obviously, an employee carries out the employer’s purpose or advances the employer’s interests when she engages in the primary activity which she was hired to perform. However an employee also carries out the employer’s purpose or advances the employer’s interests when she engages in incidental activities which are inherently necessary for the performance of the primary activity.
328 Ark. at 384, 944 S.W.2d at 526 (1997). We followed the reasoning of the Olsten court in Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998), where we held that an employee is performing employment services when he is engaged in the primary activity that he was hired to perform or in incidental activities that are inherently necessary for the performance of the primary activity. We rejected the argument made in Harding that an employee’s break advanced her employer’s interest by allowing her to relax, which in turn helped her to work more efficiently during the rest of her work shift. In that case, the claimant worked on the third floor of her office building but was not allowed to smoke there; on her way to the designated smoking area, she exited the elevator on the first floor, tripped over a rolled-up carpet, and was injured. The Commission found that her claim was not compensable because she was not performing employment services when she was injured. We addressed her arguments regarding compensability, arguments similar to those of appellant in the present case, as follows:
Appellant argues, on public policy grounds, that her break advanced her employer’s interest by allowing her to relax, which in turn helped her to work more efficiently throughout the rest of her work shift. We are not unsympathetic to this argument. Under former law, the definition of compensable injury did not include a strict requirement that the injury occur while the worker was performing employment services, and a claimant’s activities at the moment of injury were relevant only to the separate and broader question of whether the injury arose out of and in the course of the employment. It is clear that, under former law, appellant’s injury while en route to the break area would have been in the course of her employment pursuant to the personal-comfort doctrine. It may be true that the interests of both workers and employers would be better served by a more uniform application of an administrative remedy than they would be by the uncertainty inherent in a tort claim based on premises liability. Nevertheless, the legislature, rather than the courts, is empowered to declare public policy, and whether a law is good or bad, wise or unwise, is a question for the legislature, rather than the courts. In the present case, Act 796 of 1993 applies and, although appellant’s break may have indirectly advanced her employer’s interests, it was not inherently necessary for the performance of the job she was hired to do. Consequently, we hold that the Commission did not err in finding that appellant was not performing employment services when she was injured.
62 Ark. App. at 138-39, 970 S.W.2d at 303-04 (citations omitted).
We again addressed the issue of whether a break advances an employer’s interest in Ray v. University of Arkansas, 66 Ark. App. 177, 990 S.W.2d 558 (1999). In that case, the university provided the employee two unpaid thirty-minute breaks and two paid fifteen-minute breaks. The employee, a food-service worker in the cafeteria, was injured when she slipped in a puddle of salad dressing as she was getting herself a snack in the cafeteria during a paid fifteen-minute break. There was testimony that the university provided free meals for cafeteria workers as inducement for them to remain on the premises, that the fifteen-minute breaks were occasionally interrupted by students asking workers for assistance,' and that a worker who was approached by a student was required to leave her break and address the student’s needs. The Commission found it compelling that appellant was reaching for an apple for personal consumption when she slipped and fell and was not assisting student diners or “otherwise benefitting the employer.” We reversed the Commission’s denial of the claim, ruling as follows:
We hold that appellant was performing employment services at the time she was injured based on the fact that appellant was paid for her fifteen-minute breaks and was required to assist student diners if the need arose. Appellant’s employer gleaned benefit from appellant being present and required to aid students on her break.
We find Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998), distinguishable. . . .
Unlike the employer in Harding, the University of Arkansas required Ray to be available to work during her break and paid her for the time she was on break, presumably because she was required to help students. The University of Arkansas was clearly benefitted by Ray’s being in the cafeteria and available for students during her paid break. The benefit was not tangential as in Harding, but was directly related to the job that Ray performed and for which she was paid. In distinguishing Harding, we specifically note that, unlike the break in Harding, the appellee employer in this case furnished food for its resting employees and paid for the break to induce them to be available to serve students even during the break period.
66 Ark. App. at 180-81, 990 S.W.2d at 560-61 (1999).
In the present case, appellant testified at the hearing that it was his job as a forklift operator to load veneer dryers with lum ber. Regarding his breaks, he stated that his workday was supposed to include two ten-minute breaks and a lunch break, but that he didn’t get the official short breaks because there was no one to relieve him; that he therefore didn’t have time to smoke in the designated areas, and he usually stayed in the job area to watch his job and be alert for the supervisor’s call; that on the date of the accident he stepped about two feet away from his forklift to an outside door in front of No. 5 dryer, planning to smoke and watch his job; and that he had taken smoke breaks there in the past and his supervisor was aware of it. He testified that he fell when he stepped out the doorway and slipped on algae on the concrete, and that he heard his ankle snap. He wore a cast and didn’t go back to work until almost nine weeks later. Although he couldn’t put pressure on his leg when he first returned to work, he was working “full speed” by the time of the hearing.
Appellant argues that it appears from the employer’s provision of three breaks a day that the employer believed that breaks were important for the business. He supports this argument with his unrebutted testimony that employees receive three breaks, the first for a smoke break, the second for lunch, and the third for a smoke break; that he sometimes did not get his breaks because no one was available to relieve him; that he commonly would stay in his job area to see if his dryers needed attention and to be alert for his supervisor, who might call him. He further testified that on the night he was injured his supervisor had told him to take the break when he could; that his supervisor previously had seen him in the area where he was injured and had never complained; and that when he sustained his injury, he was not more than approximately two or three feet from the forklift and twelve to fifteen feet from a dryer. He contends that at the time he was exercising a break, he was engaged in the services of his employment.
In Harding, we found that employment services were not being performed because the claimant was on a floor of the building other than that where she worked, headed for the only area where she was allowed to smoke. In Ray, we held that the benefit to the employer was not tangential as in Harding, but was directly related to the job that the employee performed and for which she was paid. We think that this case is governed by the Harding case, and that there was substantial evidence to support the finding of the Commission that appellant was not performing employment services at the time of his injury, which occurred as he was exiting his work area to take a smoking break. Although appellant’s break may have indirectly advanced his employer’s interest, and although under former law and the personal-comfort doctrine the injury sustained en route to a break would have been in the course of employment, under Act 796 of 1993 this claim is barred by the finding that appellant was not performing employment services at the time of injury. See Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998).
Affirmed.
Robbins, C.J., and Meads, J., agree. | [
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Robert J. Gladwin, Judge.
Appellant Scott Nixon appeals the November 16, 2007 judgment entered by the Washington County Circuit Court that dismissed his negligence lawsuit against appellee Rebekah Chapman. His sole point on appeal is that the circuit court erred in granting appellee’s motion in hmine in the lawsuit, specifically in finding that appellee did not enter a plea of guilty in open court to a charge of careless and prohibited driving. We affirm.
On the morning of May 15, 2004, appellant was traveling west on U.S. Highway 412, when appellee pulled out in front of appellant’s vehicle while entering the highway. In order to avoid a collision, appellant took evasive action and quickly maneuvered his vehicle into the outside lane. As he attempted to pass appellee in that outside lane, appellee changed lanes, again driving her vehicle in front of appellant’s. Appellant applied his brakes to avoid a collision, at which time he lost control of his vehicle, careened off of the highway into a ditch, overturned the vehicle into a field, and came to rest right-side-up but facing back toward the east. As a result of the accident, appellant suffered damages totaling $166,000.
At the time of the accident, appellee was cited for careless/prohibited driving. Her arraignment date for the traffic citation was scheduled for June 21, 2004. She contacted the prosecutor’s office and negotiated a settlement agreement prior to that date, whereby she forfeited bond or paid a fine, and the matter was taken under advisement by the Springdale District Court on May 20, 2004.
As a result of the accident, appellant filed a negligence suit against appellee. Appellee filed a motion in limine related to the district-court traffic citation on November 7, 2007, and appellant filed a response on November 13, 2007. A trial on the merits was scheduled for November 13, 2007, and after a hearing was held on the motion in limine on that same morning, the circuit court refused to allow the introduction of evidence into the record related to appellee’s traffic citation and resulting negotiated plea. Subsequently, the jury found by a preponderance of the evidence that there was no negligence on the part of appellee, and no damages were awarded to appellant. A judgment was entered by the trial court on November 16, 2007, dismissing the complaint against appellee with prejudice. Appellant filed a notice of appeal on December 13, 2007, and he filed an amended notice of appeal on December 20, 2007.
Appellant challenges the circuit court’s grant of appellee’s motion in limine excluding any evidence regarding her receipt of a traffic citation that resulted from the accident that was the subject matter of the negligence lawsuit. In discussing our standard of review for evidentiary rulings, we have said that circuit courts have broad discretion and that a circuit court’s ruling on the admissibility of evidence will not be reversed absent an abuse of that discretion. Green v. Alpharma, Inc., 373 Ark. 378, 284 S.W.3d 29 (2008).
Appellant points out that, although a violation of a statute or ordinance is not considered negligence in itself, it can be offered as evidence of negligence to be considered by a jury. See Bridgforth v. Vandiver, 225 Ark. 702, 284 S.W.2d 623 (1955); AMI 903. He cites Arkansas Code Annotated section 27-51-104 regarding careless driving, which states that it shall be unlawful for any person to drive or operate any vehicle in such a careless manner as to evidence a failure to keep a proper lookout for other traffic, vehicular or otherwise, or in such a manner as to evidence a failure to maintain proper control on the public thoroughfare or private property in the State of Arkansas. Appellant asserts that evidence of appellee’s violation of the statute can be shown by the plea arrangement and court docket report. He maintains that this evidence demonstrates that she did plead guilty to the violation.
Appellant acknowledges the limitation on evidence of traffic violations that can be shown to a jury, citing Arkansas Code Annotated section 27-50-804, which specifically provides that no record of the forfeiture of a bond or of the conviction of any person for any violation of this subtitle shall be admissible as evidence in any court in any civil action. He notes the historic interpretation that evidence of a traffic citation, a “mere charge,” is inadmissible. See Bearden v. J.R. Grobmeyer Lumber Co., 331 Ark. 378, 961 S.W.2d 760 (1998). He distinguishes, however, the situation where an individual enters a plea of guilty in open court, which has been considered admissible evidence. See Dedman v. Porch, 293 Ark. 571, 739 S.W.2d 685 (1987). Arkansas courts have held that such guilty pleas are admissible as declarations against interest. Patterson v. Odell, 322 Ark. 394, 909 S.W.2d 648 (1995).
Additionally, he cites Ice v. Bramlett, 311 Ark. 157, 842 S.W.2d 29 (1992), where the individual was issued a traffic citation and subsequently negotiated a plea arrangement. The supreme court examined the plea agreement and determined that it was not admissible because there was insufficient evidence showing that he actually received a traffic citation. Additionally, the supreme court held that the admission-of-guilt language in the plea agreement was ambiguous, and that there was neither evidence of an appearance before the municipal judge nor a signature by the individual on the agreement.
In the instant case, appellant contends there is much more evidence indicating that appellee made a plea in open court than was present in either Bramlett or Dedman. He asserts that the evidence proves that appellee was issued a careless driving citation after the accident occurred, and that she subsequently negotiated a plea arrangement under which she would be placed on probation for a certain period and pay a fine and court costs — likely in return for the traffic citation being expunged from her driving record. Appellant states that the plea arrangement, the Springdale District Court docket sheets, and the Springdale Police Department Citation Tracking Report clearly show that appellee received a traffic violation related to the accident and that she pled guilty in open court. Specifically, he points to a notation that states, “Plea: GL.”
Appellant also asserts that the docket report shows a signature by the presiding judge, and claims that the signature is a clear indication that the plea was made in open court by the city attorney, on behalf of appellee. He urges that, just because appellee did not want to inconvenience herself by traveling to Springdale from her home in Fort Smith to sign the traffic citation plea, she should not be able to prevail on her claim that the plea was not made in open court. Appellant argues that there is no requirement in any of the cases cited that the appellee have had an actual physical appearance in the courtroom. In this situation, appellee contacted the city prosecutor’s office and negotiated that agreement, including that he would enter the plea on her behalf. The district court judge heard the plea and approved the negotiated plea agreement. Appellant contends that because the guilty plea was made in open court, the related evidence should have been presented to the jury for consideration of whether or not appellee was negligent in the accident.
Appellee counters appellant’s argument by reiterating the well-established rule that only when a defendant enters a plea of guilty in open court is it proper to admit evidence relating to either a traffic-citation conviction or even the mere issuance of that citation in a subsequent civil case. She points out that appellant stipulated to the fact, and the trial judge specifically found, that she did not appear in open court.
Appellee references Dedman, supra, where the individual was issued a traffic citation for failure to yield the right-of way, and later paid the citation rather than appear in court. On appeal from the circuit court’s refusal to allow the introduction of evidence regarding the payment of the citation, our supreme court cited Arkansas Code Annotated section 27-50-804, stating that they were “unable to find a case which holds that paying a traffic ticket entitles the opposing side to introduce evidence of such as an admission against interest.” Dedman, 293 Ark. at 574, 739 S.W.2d at 687.
That holding is consistent with the facts of the current case. Appellee did not appear in court, and accordingly, did not enter a plea in open court. Instead, she contacted the prosecutor’s office and negotiated a settlement agreement prior to the scheduled arraignment date. The settlement agreement was presented to the district court on May 20, 2004, and the district court accepted the settlement agreement, under which she forfeited bond or paid a fine, and took the matter under advisement.
With respect to appellant’s reliance on Bramlett, supra, appel-lee reminds us that the circuit court disallowed the testimony of a probation officer in that case, which would have indicated a belief that a defendant who walks up to the cashier’s window at the court and pays a ticket is committing an admission of guilt. The circuit court concluded that the proffered testimony differed from telling the jury that a defendant knowingly pled guilty in court, and our supreme court affirmed that ruling. In fact, the supreme court stated that there was “a lack of evidence indicating that [Bramlett] ever appeared before the municipal judge, or that he appeared in any hearing or formal activity in which the municipal court conducts business.” Bramlett, 311 Ark. at 162, 842 S.W.2d at 32. This scenario is analogous to the case presently before us.
Finally, appellee rejects appellant’s argument that the plea of guilty was entered in open court, on her behalf, by the city attorney. We agree. The city attorney did not represent appellee in this matter, but rather simply presented the negotiated settlement to the district court, as is customary practice; and the district judge approved the agreement without appellee being present. This is consistent with Dedman and Bramlett, and we hold that the circuit court did not abuse its discretion in refusing to allow evidence of the citation and subsequent settlement agreement to be introduced into evidence in the civil action between the parties.
The motion in limine also referenced Arkansas Rule of Evidence 410 as support for precluding the plea of guilty from being admissible in the civil action; however, appellant claims that the motion did not state the rule in its complete context, which reads as follows:
Evidence of a plea of nolo contendere, whether or not later withdrawn, and a plea, later withdrawn, of guilty or admission to the charge, or of an offer to plead to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal action, case, or proceeding against the person who made the plea or offer.
(Emphasis added.) Appellant asserts that Rule 410 does no more than disallow withdrawn pleas. See Patterson, supra. He maintains that in the current case, there was no withdrawal of a guilty plea or even an attempted withdrawal. Accordingly, he claims that Rule 410 has no application in this case and cannot constitute support for the prevention of the admission of evidence showing that appellee was issued a citation and subsequently pled guilty in open court. While this issue was raised in the parties’ pleadings, it was neither developed nor ruled upon during the hearing related to the motion in limine. Accordingly, we decline to address it.
Affirmed.
Robbins, J., agrees.
Bird, J., concurs.
We note that no clarification of this notation was presented to this court beyond appellant’s cursory statement in his brief. Although appellant’s counsel argued at the hearing on the motion in limine that he had witnesses that would testify that the “GL” stood for guilty, no such evidence was introduced and no finding with respect to the notation was made by the circuit court. | [
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Wendell L. Griffen, Judge.
The Arkansas Board of Registration for Professional Geologists (hereinafter “Board”) appeals from a February 6, 1998 decision in the Pulaski County Circuit Court, that directed the Board to approve Richard Ackley’s application for registration as a professional geologist. The Board argues that its decision — that Ackley did not possess the statutory educational qualifications to be licensed — was not arbitrary and capricious. We disagree and affirm the decision of the circuit court with directions to enter an order that the Board issue Ackley’s certificate of registration forthwith, pursuant to Arkansas Code Annotated section 17-32-308 (Repl 1995).
Richard Ackley applied for registration as a licensed professional geologist with the Board on January 26, 1995. Ackley included with his application a transcript from Cornell University. That transcript shows that Ackley earned a Bachelor of Science degree in 1973 and that in January of 1974 he earned a Master’s Degree in Civil Engineering. On September 21, 1995, the Board denied Ackley’s application for registration, informed him in its denial letter that the denial was based on his failure to meet the educational requirements for certification, but stated that his application would be reviewed upon proof that he met the education requirements. In his response to this denial, Ackley obtained and submitted to the Board a letter from the Associate Director of the School of Civil and Environmental Engineering at Cornell in March 1996; the letter set forth that Ackley majored in “geotechnical engineering and geological engineering.” Again, the Board denied Ackley’s application for registration on May 9, 1996. In a letter dated July 1, 1996, the Board informed Ackley that his degrees did not meet statutory requirements. On September 19, 1996, Ackley spoke on his own behalf before the Board for consideration of his application. The Board delayed the reevaluation of Ackley’s application until additional requested materials were supplied by Cornell University. On January 27, 1997, the Board again denied the application, on the grounds that Ackley did not meet the minimum educational requirements for registration and that the materials from Cornell did not support his claim of enough hours of credit leading to a major in geology. This finding was announced in a letter dated January 30, 1997.
Ackley appealed the Board’s decision pursuant to Arkansas Code Annotated section 25-15-212 (Repl. 1996) in Pulaski County Circuit Court, alleging that the Board’s actions were arbitrary and capricious, and not supported by substantial evidence. The trial judge ruled in Ackley’s favor on February 13, 1998, and ordered the Board to certify Ackley. On appeal, the Board argues that its decision was not arbitrary and capricious and that the denial of Ackley’s application for license was supported by substantial evidence. The Board insists that Ackley did not meet the statutory educational requirements for licensing because he has neither the proper major nor the minimum number of hours of geological course work. On the other hand, Ackley argues that the Registrar at Cornell University certified that he majored in “Geological and Geotechnical Engineering.” Because his major was in the proper field, Ackley argues that the minimum number of hours was irrelevant. Ackley contends that his transcript indicates his degree, which is not synonymous with his major.
In order to publicly practice geology in Arkansas, Arkansas Code Annotated section 17-32-301 (Repl. 1995) requires a person to be registered as a professional geologist under state law. The statute governing registration as a professional geologist states:
(a) To be eligible for a certificate of registration, an applicant shall meet each of the following minimum qualifications:
(2) Have graduated from an accredited college or university which has been approved by the board with a major in either geology, engineering geology, or geological engineering or have completed thirty (30) semester hours or forty-five (45) quarter hours, or the equivalent, in geological science courses leading to a major in geology.
Ark. Code Ann. § 17-32-304 (Repl. 1995) (emphasis added). The statute requires that an applicant have majored in one of the three categories, or have completed a minimum number of hours towards a geology major; the two requirements are independent from one another.
The Board is subject to the Arkansas Administrative Procedure Act (APA) according to Arkansas Code Annotated section 17-32-204 (Repl. 1995). Under the Arkansas APA, a court may reverse or modify the agency 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.
Ark. Code Ann. § 25-15~212(h) (Repl. 1996). On appeal from circuit court, the appellate review of administrative decisions is directed to the decision of the administrative agency, rather than the decision of the circuit court. Arkansas Dep’t of Human Servs. v. Thompson, 331 Ark. 181, 959 S.W.2d 46 (1998). When reviewing administrative decisions, the court reviews the entire record to determine whether there is any substantial evidence to support the agency’s decision. Green v. Carder, 282 Ark. 239, 667 S.W.2d 660 (1984). Substantial evidence is “valid, legal, and persuasive evidence or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Moore v. King, 328 Ark. 639, 643, 945 S.W.2d 358, 360 (1997). An absence of substantial evidence is shown by demonstrating that the proof before the agency was “so nearly undisputed that fair-minded persons could not reach its conclusions.” Moore, 328 Ark. at 643. The credibility and the weight of the evidence is within the agency’s discretion. Moore, supra.
An agency’s action is considered arbitrary and capricious where it is not supported on any rational basis; the party challenging the agency decision “must prove that such action was willful and unreasonable, without consideration and with a disregard of the facts or circumstances of the case.” Moore, 328 Ark. at 644. Administrative agencies are better equipped than courts by specialization, insight through experience, and more flexible procedures to determine and analyze legal issues affecting their agencies; this recognition explains the limited scope of judicial review, and the refusal of a court to substitute its own judgment and discretion for that of an agency. Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992). However, this does not mean that an agency may go beyond the legitimate interpretation of a statute and substitute its own standards; rather, the legislative intent of the statute must be imposed. Kettell v. Johnson & Johnson, 337 F. Supp. 892 (E.D. Ark. 1972).
The Board based its decision on an erroneous view of law that both the hours and the major were required, and that a major was the same as a degree. The plain language of the statute shows that certification is concerned with an applicant’s major, not the label of his or her degree. Thus, the Board’s zealous concern over Ackley’s two degrees (Bachelor of Science and Master’s in Civil Engineering), could not provide substantial evidence for the Board’s denial of his application if the evidence shows that he has the proper major.
Throughout the process, the record shows that the Board construed a “major” to mean a “degree.” It denied Ackley’s application because he holds degrees issued through the Department of Civil Engineering at Cornell University. The first degree earned was a Bachelor of Science, with honors. The October 11, 1996 statement submitted to the Board from the Cornell University registrar certifies that Ackley received the Bachelor of Science degree on January 17, 1973, “with a major field of study in Geologic and Geotechnical Engineering.” In the same statement, the Cornell registrar certified that Ackley was awarded the degree of Masters of Engineering “with a major field of study in Geologic and Geotechnical Engineering.” Notwithstanding this clear evidence and the plain language of the statute, and despite the admission by one Board member that at the university he attended geology was under the department of civil engineering, the Board repeatedly denied Ackley’s application to be certified a professional geologist because he did not hold a degree in geology, engineering geology, or geological engineering.
We hold that the Board’s denials of Ackley’s application were not supported on any rational basis and, therefore, were arbitrary and capricious. Ackley received a Bachelor of Science, with honors, on January 17, 1973, and a Master’s in Civil Engineering on January 23, 1974. A letter from Cornell University, dated October 11, 1996, certifies that both degrees were awarded with “a major field of study in Geologic & Geotechnical Engineering.” Chairman Steele’s comment that he contacted two individuals at Cornell who claimed that the letters from Cornell “should have read that [Ackley] has a concentration or an emphasis or a track in geology or geological engineering and not a major” shows that the Board obtained information from Cornell that Ackley had been educated in geological and geotechnical engineering. Evidence was presented that “geotechnical engineering” was “the application of scientific methods to problems in engineering geology.” Although the Board contended during oral argument that a major in “geological and geotechnical engineering” did not fit the statutory requirement of a major in “geological engineering,” no evidence in the record supports this interpretation. By conflating two independent means of meeting the statutory education requirements to mean that Ackley was required to possess a degree in geology, engineering geology, or geological engineering, the Board acted in a manner wholly inconsistent with the statute and the proof. The Board disregarded the facts and circumstances of this case and substituted its standard for the plain requirement in the statute. No fair-minded person could have reached the same conclusion as the Board did on these facts. It is unfortunate that Ackley has been forced to wait almost four years for his license and endure the disappointment, humiliation, and frustration of repeated denials due to what appears to be a form of professional protectionism by an agency dominated by members who hold degrees in geology rather than engineering.
The circuit court found that the Board’s decision was arbitrary and capricious so that Ackley’s license should issue. However, the court’s comment when it issued its ruling suggested the Board could reanalyze Ackley’s application in light of additional information, stating:
[T]he Court’s of the opinion that the matter ought to be returned to the Board with directions to issue the license to the application, failing something more than is this record upon which they relied to deny the record. In other words, I don’t want to foreclose the possibility that if there’s something here [that] would prevent it. [Emphasis added.]
However, the Board has repeatedly considered Ackley’s application. The sole basis given for its decisions denying licensure has been the Board’s erroneous application of the statutory education requirements. Those determinations, although arbitrary and capricious, are nonetheless dispositive on whether Ackley meets all other conditions to be licensed as a professional geologist in Arkansas. Having completed its review of Ackley’s application and limited the basis for denying licensure to its erroneous judgment about the education requirement, the Board has no basis in procedure, law, or public policy for reopening his file to determine whether Ackley may be disqualified on other grounds that it somehow neglected to identify over the years.
The decision of the circuit court is affirmed, with directions that the court enter a order requiring the Arkansas Board of Registration for Professional Geologists to grant Ackley his license forthwith in conformity with this opinion. See Arkansas State Bd. of Phar. v. Patrick, 243 Ark. 967, 423 S.W.2d 265 (1968).
Affirmed with directions.
Meads and Arey, JJ., agree.
Ark. Code Ann. §§ 25-15-201 et seq. | [
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Judith Rogers, Judge.
This is an appeal from an order dismissing appellant’s complaint to set aside the sale of her tax-delinquent land. On appeal, appellant argues that she did not receive proper notice of the sale. We disagree and affirm.
The record reveals that appellant has lived at 1980 Sweet Valley Road, El Dorado Hills, California, 95762, since 1980. She has owned the subject property in Pine Bluff, Arkansas, since 1988. Appellant testified that she has not paid taxes on the Pine Bluff property since 1993. It appears from the record, however, that taxes on the property had not been paid since 1990. The property was certified delinquent in July of 1994. On September 15, 1994, the Land Commissioner mailed a certified letter to appellant’s last known address in the tax records notifying her that the taxes on the Pine Bluff property were delinquent, that she could redeem the property, and that the property would be offered for sale on September 17, 1996. The letter was addressed to appellant at 1980 Sweet Valley Road, Folsom, California, 95630. This letter was returned marked “attempted not known.” Upon learning of appellant’s correct address, a second certified letter was mailed to appellant on June 25, 1996, at 1980 Sweet Valley Road, Eldorado Hills, California, 95762, notifying her that the property was delinquent, that she could redeem the property, and that a sale date was set for September 17, 1996. This letter was returned “unclaimed or refused.”
Appellant denied receiving either of the letters mailed by the Commissioner. She testified that she called the county and state offices to inquire why she had not received her tax statements. She said that she gave the offices her correct address. Appellant did admit, however, that she had visited Arkansas in 1997 and a couple of years earlier, but she did not go to the Commissioner’s office or county tax office to inquire why she was not receiving her tax statements.
The trial court found that there was a problem with the address and tax billings from the tax office; however, the court concluded that the first notice that was mailed to the wrong address was cured by the second letter mailed to the correct address. Also, the court noted that appellee took additional effort to provide notice by sending a certified letter to the occupant of the premises in Pine Bluff. The court ruled that the Commissioner fully complied with the applicable statutes.
This court reviews chancery cases de novo, reversing the chancellor only when the findings of fact are clearly erroneous or clearly against the preponderance of the evidence. Sanders v. Ryles, 318 Ark. 418, 885 S.W.2d 888 (1994); Ward v. Davis, 298 Ark. 48, 765 S.W.2d 5 (1989). In cases involving redemption of tax-delinquent lands, we have stated that strict compliance with the requirement of notice of the tax sales themselves is required before an owner can be deprived of his property. Pyle v. Robertson, 313 Ark. 692, 858 S.W.2d 662 (1993); Trustees of First Baptist Church v. Ward, 286 Ark. 238, 691 S.W.2d 151 (1985).
Arkansas Code Annotated section 26-37-301 (Repl. 1997) provides that:
(a)(1) Subsequent to receiving tax-delinquent land, the Commissioner of State Lands shall notify the owner, at the owner’s last known address, by certified mail, of the owner’s right to redeem by paying all taxes, penalties, interest, and costs, including the cost of the notice.
(2) All interested parties known to the Commissioner of State Lands shall receive notice of the sale from the Commissioner of State Lands in the same manner.
(b) The notice to the owner or interested party shall also indicate that the tax-delinquent land will be sold if not redeemed prior to the date of sale. The notice shall also indicate the sale date, and that date shall be no earlier than two (2) years after the land is certified to the Commissioner of State Lands.
Appellant argues that she never received notice of her right to redeem or notice of the sale of her property. She contends that the first notice sent by the Commissioner was mailed to the wrong address.
Arkansas Code Annotated section 26-37-301 provides that after receiving tax-delinquent land, the Commissioner of State Lands shall notify the owner of his/her right to redeem, notify that the land will be sold, and notify the owner of the sale date. Under this section, the Commissioner is required to notify the owner, at the owner’s last known address by certified mail. After reviewing the evidence, it is clear that the Commissioner, subsequent to receiving the tax-delinquent land, sent certified notice to appellant’s last known address. Even though the first notice mailed by the Commissioner was mailed to the wrong address, the Commissioner sent a second notice to the correct address of appellant where she had resided since 1980. We cannot say that the chancellor’s decision that the second notice satisfied the statutory requirement was clearly erroneous.
Appellant contends that Ark. Code Ann. section 26-37-301 requires a minimum of two certified notices to the owner of the tax-delinquent property. She argues that the second notice, even if it had been received, was not sent two years before the sale date affording her ample opportunity to act. We disagree.
Appellant has misconstrued the statute. Arkansas Code Annotated section 26-37-301 only requires one notice after the land is received by the Commissioner. We are concerned, however, that the statute does not provide a required time period for notification prior to the sale date. As the statute reads, the Commissioner is only required to give notice after receiving the land. This requirement could lead to notification a week before the sale date. Unfortunately, we are unable to require more than the statute provides.
Affirmed.
Pittman and Stroud, JJ., agree. | [
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Sam Bird, Judge.
This case involves the interpretation of our Sex Offender Registration statute, currently codified at Ark. Code Ann. § 12-12-901 et seq. (Supp. 2007). Rondd Fountain appeals the sentencing court’s judgment and commitment order of September 12, 2007, which required him to register as a sex offender. He contends that the court did not have statutory authority to order sex-offender registration for the offense of misdemeanor public sexual indecency. We hold that the court acted within the authority of Ark. Code Ann. § 12-12-903 (Supp. 2007), and we affirm its order.
We review issues of statutory interpretation de novo, as it is for the appellate court to determine the meaning of a statute. Claver v. Wilbur, 102 Ark. App. 53, 280 S.W.3d 570 (2008). Although the decision of the circuit court is not binding, we will accept its interpretation of the law unless there is a showing that the interpretation was in error. See Langston v. Langston, 371 Ark. 404, 266 S.W.3d 716 (2007); Potter v. City of Tontitown, 371 Ark. 200, 264 S.W.3d 473 (2007).
The basic rule of statutory construction is to give effect to the intent of the General Assembly. Id. Rules of construction are not needed when a statute’s language is plain and unambiguous and conveys a clear and definite meaning, but we will not apply a literal interpretation that results in absurd consequences contrary to legislative intent. See id. The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. K. C. Props, of N. W. Ark. v. Lowell Invest. Partners 373 Ark. 14, 280 S.W.3d 1 (2008). Ambiguity occurs only if the statute is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Id.
When the meaning is not clear, the appellate court looks to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Potter, supra. The statute will be construed so that no word is left void, superfluous, or insignificant; meaning and effect are given to every word if possible, and provisions not included by the legislature will not be read into the statute. See id. Our review includes an examination of the whole act and a reconciliation of all provisions “to make them consistent, harmonious, and sensible in an effort to give effect to every part.” See Ward v. Doss, 361 Ark. 153, 159, 205 S.W.3d 767, 770 (2005). All statutes relevant to the subject matter will be construed, and the meaning of an act will be derived from a holistic reading. Arkansas Hearing Instrument Dispenser Bd. v. Vance, 359 Ark. 325, 197 S.W.3d 495 (2004).
Our decision requires an examination of the following portions of Ark. Code Ann. § 12-12-903, the Definitions chapter of our Sex Offender Registration statute:
(12)(A) “Sex offense” includes, but is not limited to:
(i) The following offenses:
(a) Rape, § 5-14-103;
(b) Sexual indecency with a child, § 5-14-110;
(c) Sexual assault in the first degree, § 5-14-124;
(d) Sexual assault in the second degree, § 5-14-125;
(e) Sexual assault in the third degree, § 5-14-126;
(0 Sexual assault in the fourth degree, § 5-14-127;
(g) Incest, § 5-26-202;
(h) Engaging children in sexually explicit conduct for use in visual or print medium, § 5-27-303;
(i) Transportation of minors for prohibited sexual conduct, § 5-27-305;
(j) Employing or consenting to use of a child in a sexual performance, § 5-27-402;
(k) Pandering or possessing visual or print medium depicting sexually explicit conduct involving a child, § 5-27-304;
(l) Producing, directing, or promoting a sexual performance by a child, § 5-27-403;
(m) Promoting prostitution in the first degree, § 5-70-104;
(n) Stalking when ordered by the sentencing court to register as a sex offender, § 5-71-229;
(o) Indecent exposure, § 5-14-112, if a felony level offense;
(p) Exposing another person to human immunodeficiency virus when ordered by the sentencing court to register as a sex offender, § 5-14-123;
(q) Kidnapping pursuant to § 5-ll-102(a) when the victim is a minor and the offender is not the parent of the victim;
(r) False imprisonment in the first degree and false imprisonment in the second degree, §§ 5-11-103 and 5-11-104, when the victim is a minor and the offender is not the parent of the victim;
(s) Permitting abuse of a minor pursuant to § 5-27-221;
(t) Computer child pornography, § 5-27-603;
(u) Computer exploitation of a child in the first degree, § 5-27-605(a);
(v) Permanent detention or restraint when the offender is not the parent of the victim, § 5-11-106;
(w) Distributing, possessing, or viewing of matter depicting sexually explicit conduct involving a child, § 5-27-602;
(x) Computer child pornography, § 5-27-603;
(y) Computer exploitation of a child, § 5-27-605;
(z) Internet stalking of a child, § 5-27-306;
(aa) Crime of video voyeurism, § 5-16-101, if a felony level offense;
(bb) Voyeurism, § 5-16-102, if a felony level offense; and
(cc) Any felony-homicide offense under § 5-10-101, § 5-10-102, or § 5-10-104 if the underlying felony is an offense fisted in subdivisions (12)(A)(i)(a)-(y) of this section;
(ii) An attempt, solicitation, or conspiracy to commit any of the offenses enumerated in subdivision (12) (A) (i) of this section; and
(in) An adjudication of guilt for an offense of the law of another state, for a federal offense, for a tribal court offense, or for a military offense:
(B)(i) The sentencing court has the authority to order the registration of any offender shown in court to have attempted to commit or to have committed a sex offense even though the offense is not enumerated in subdivision (12) (A) (i) of this section.
(ii) This authority applies to sex offenses enacted, renamed, or amended at a later date by the General Assembly unless the General Assembly expresses its intent not to consider the offense to be a true sex offense for the purposes of this subchapter;
(13)(A) “Sex offender” means a person who is adjudicated guilty of a sex offense or acquitted on the grounds of mental disease or defect of a sex offense.
Fountain contends on appeal that the sentencing court exceeded its authority by ordering sex-offender registration for his offense of public sexual indecency. He notes that the offense of misdemeanor public sexual indecency was placed into our criminal code in 1975, preceding the enactment of our Sex Offender Registration statute in 1997 and the latest amendments in 2007. See 1975 Ark. Acts 280, § 1811; 1997 Ark. Acts 989, § 3; 2007 Ark. Acts 210, § 1. Fountain concludes that, because the offense of public sexual indecency is not enumerated under Ark. Code Ann. § 12-12-903(12)(A)(i) and does not fit within subdivision (12)(B)(ii) as an offense “enacted, renamed, or amended” later than our Sex Offender Registration laws, the court’s order requiring him to register as a sex offender was outside the bases of authority found in section 12-12-903(12)(B).
We do not agree with appellant’s argument. Here, the sentencing court’s authority to order registration is based on section 12-12-903(12)(A), which specifies that the definition of sex offense “is not limited to” offenses listed in subdivision (12)(A)(i). Section 12-12-905(a)(l) clearly states that our sex-offender registration requirements apply to persons “adjudicated guilty on or after August 1, 1997, of a sex offense,” and, although not included among the sexual offenses enumerated in section (12)(A)(i), the crime of public sexual indecency is classified as a sexual offense in section 5-14-111. Thus, under the clear language of sections 12-12-905 and 12-12-903(12)(A), the registration requirements of our Sex Offender Registration statute apply to a person adjudicated guilty of public sexual indecency on or after August 1, 1997.
Further, the legislative history of our Sex Offender Registration statute contradicts Fountain’s arguments that there are only two bases for a sentencing court’s authority to order registration and that section 12-12-903(12)(B)(ii) limits the authority to order registration for sex offenses not listed in (12)(A) to those “enacted, renamed, or amended” after the registration statute was enacted and amended. 2001 Ark. Acts 1743 added both the provisions of (12) (B) and the words “includes, but is not limited to” to (12)(A)’s definition of “sex offense.” Most importantly, 2003 Ark. Acts 21, 2nd Ext. Sess., changed the original words of subsection (12)(B)(ii) from “is limited” to “applies,” further clarifying the provisions of (12)(A) (sex offense “includes, but is not limited to” those listed) and (12)(B)(ii) (the sentencing court’s authority to order registration “applies to sex offenses enacted, renamed, or amended at a later date by the General Assembly”). Giving effect to the provisions of both subdivisions (12) (A) and (B), we hold that (B) (ii) does not restrict a sentencing court’s authority to order registration for a person’s conviction as a sex offender for a sexual offense neither enumerated in (A) (i) nor included under the provisions of (B)(ii).
Affirmed.
Glover and Marshall, JJ., agree.
Fountain does not appeal the conviction itself or the validity of the twelve-month jail sentence he received. | [
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