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Wendell L. Griffen, Judge.
Joe Lee Pettigrew appeals from his conviction in Pulaski County Circuit Court on August 28,.1997, on charges of possession of a controlled substance (crack cocaine) with intent to deliver and second-degree battery. Appellant argues on appeal: (1) that the trial court erred when it denied his motion to suppress seventy grams of crack cocaine seized from him following a pat-down search because the search violated his rights under the Fourth and Fourteenth Amendments to the Constitution of the United States and Rule 3.4 of the Arkansas Rules of Criminal Procedure; and (2) that the trial court erred when it denied his motion for directed verdict on the second-degree battery charge.
We hold that the pat-down search violated Pettigrew’s constitutional right to be free from unreasonable search and seizure because the totality of the evidence does not establish that the police had objective, specific, and articulated facts that justified a reasonable suspicion that Pettigrew was armed and presently dangerous so as to present a threat as prescribed by Rule 3.4 of the Arkansas Rules of Criminal Procedure. Therefore, we reverse and remand the conviction for possession of a controlled substance with intent to deliver and the fifteen-year prison sentence imposed thereon. However, we affirm the second-degree battery conviction and sentence of three years’ imprisonment and hold that the trial court did not err when it denied Pettigrew’s motion for directed verdict.
On December 12, 1996, Detectives Greg Siegler and Barry Flannery of the Little Rock Police Department were on patrol when they observed a bronze-colored vehicle parked in a parking lot near the intersection of 29th and Main Streets in Lithe Rock. The detectives testified that they observed a passenger in the vehicle who appeared to be drinking some type of alcoholic beverage, so they approached the vehicle to investigate. They found four men and a sixteen-year-old girl in the vehicle, and Siegler testified that he noticed open containers of beer and other alcoholic beverages in the vehicle. Siegler also testified (as quoted from the abstract):
I had everybody get out of the car, and they were all standing around the vehicle. I then began a pat-down search of Mr. Pettigrew, at which time I felt an object in the front waistband of his pants. At that time I asked him what that was, and at that time, he pushed away from the vehicle and began to run. I grabbed him by the back of his shirt. He continued to run. Finally, he turned around and hit me with his elbow and then hit me with his fist. I then struck him with my flashlight. He hit me again with his fist. I grabbed him around the waist and he continued to carry me down to the parking lot. At that time other members of the Street Narcotics Detail arrived. They grabbed a-hold of him. He continued to run and struggle with us. We were finally able to get him to the ground. I believe Detective Green then sprayed him with a half-second burst of OC spray. It didn’t seem to have any effect on him. We continued to struggle with him. We were finally able to get him handcuffed. Detective Gravett then removed that object that was in the front of his pants, which was approximately 70 grams of crack cocaine. . . .
When I was conducting the pat-down search on the defendant is when I felt the object in his pants. I asked him what it was, and at that time he pushed off the car and began to run. . . When he ran I did not tell him to stop. I had a hold of his shirt and he was dragging me. . . I had hold of the back of his shirt, he was running and dragging me, and I was trying to pull back stopping him. After we struggled with him, were finally able to get him handcuffed, and Detective Gravett removed the plastic bag with all this.
Pettigrew filed a motion to suppress the evidence seized by the police, and the trial court considered that motion as part of the bench trial. Pettigrew argued that the police lacked a reasonable suspicion for conducting a pat-down search of his person arising merely from the fact that they had seen him in a vehicle with four other persons where public drinking was taking place. The State argued that Detective Siegler conducted the pat-down search for his safety, and that the crack cocaine was initially felt in appellant’s waistband during the pat-down search. The trial court denied appellant’s motion to suppress. It later found appellant guilty of possession of a controlled substance with intent to deliver and sentenced him to fifteen years’ imprisonment.
The Fourth Amendment to the Constitution of the United States protects the right of people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. Leopold v. State, 15 Ark. App. 292, 692 S.W.2d 780 (1985). In reviewing the denial of a motion to suppress, we make an independent examination based on the totality of the circumstances, and will reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998); Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998). In Frette, the supreme court explained that there are three types of encounters between the police and private citizens. The first and least intrusive encounter is when an officer merely approaches an individual on a street and asks if he is willing to answer a question. Id. Because the encounter is in a public place and is consensual, it does not constitute a “seizure” within the meaning of the Fourth Amendment. The second police encounter is when the officer may justifiably restrain an individual for a short period of time if they have an “articulable suspicion” that the person has committed or is about to commit a crime. Id. The initially consensual encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would believe that he is not free to leave. The final category is the full-scale arrest, which must be based on probable cause. Id.
Rule 3.1 of the Arkansas Rules of Criminal Procedure provides that a law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. In this context, a “reasonable suspicion” has been defined as a suspicion based upon facts or circumstances that give rise to more than a bare, imaginary, or purely conjectural suspicion. Id.
Rule 3.4 of the Arkansas Rules of Criminal Procedure states:
If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and pres-endy dangerous to the officer or others, the officer . . . may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others.
Rule 3.4 is the Arkansas standard for application of the holding announced in Terry v. Ohio, 392 U.S. 1 (1968), a case where an officer observed three men who appeared to be “casing” a store for a robbery. The officer then approached them for questioning and frisked them, finding weapons on two of them. The United States Supreme Court viewed that restraint on their liberty and the subsequent exploration of the outer surfaces of Terry’s clothing as a “seizure” and “search,” respectively, thus “rejecting] the notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the officers stop short of something called a ‘technical arrest’ or a ‘full-blown search.’” Then the Court considered what it termed “the central inquiry under the Fourth Amendment — the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” (Emphasis added.) In analyzing the reasonableness of the “frisk,” the Court “balanced” the magnitude of the intrusion involved against “the governmental interest in investigating crime” and “the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. ” The Court concluded that “there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.” Id. (Emphasis added.)
On the same day that the Supreme Court decided Terry, it also decided Sibron v. New York, 392 U. S. 41 (1968), a companion case. There, an officer had observed Sibron talking with several known narcotics addicts over an eight-hour period, but was completely ignorant about the content of the conversations and had seen nothing passed between Sibron and the addicts. Nevertheless, the officer ordered Sibron aside, telling him, “You know what I am after,” and as Sibron reached into his pocket, the officer simultaneously thrust his hand into the same pocket and seized heroin. The Supreme Court reversed Sibron’s conviction, holding that not only was “probable cause” lacking to arrest but also that the officer lacked adequate grounds to support a self-protective search for weapons. Writing for the Court, Chief Justice Warren stated:
Before [an officer] places a hand on the person of a citizen in search of anything, he must have constitutionally adequate reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.
Id. (Emphasis added.)
The Supreme Court has also stated that a frisk is only justified when the officer has a reasonable suspicion that the detainee is armed. Ybarra v. Illinois, 444 U.S. 85 (1979). The test in determining whether a frisk is reasonable is an objective one. While the officer need not be absolutely certain that the individual is armed, the basis for the frisk must he in a reasonable belief that the officer’s safety or that of others is at stake. Terry, supra, at 21. Essentially, the question is whether a reasonably prudent person in the officer’s position would be warranted in the belief that the safety of the police or that of other persons was in danger. The officer’s reasonable belief that the suspect is dangerous must be based on “specific and articulable facts.” Terry, supra, at 21.
In the case now before us, there is no challenge to the validity of the initial police encounter between Detectives Flannery and Siegler and appellant and the other occupants of the vehicle that the detectives observed in the parking lot. The only issue is whether the pat-down frisk of appellant’s person was a constitu- tionaUy permissible intrusion into his personal security. This requires us to review the totality of the circumstances surrounding the pat-down frisk to determine whether the trial court’s denial of appellant’s motion to suppress was clearly against the preponderance of the evidence.
The totality of the circumstances in the record provides no “specific and articulable facts” upon which the inference could reasonably be warranted that Detective Siegler reasonably believed appellant to be “armed and presently dangerous” when he performed the pat-down search. Siegler and Detective Flannery, his partner on the encounter, testified that they were investigating what they suspected amounted to public drinking, a misdemeanor, when they encountered the vehicle in which appellant was sitting. There is no proof that appellant did anything that Siegler deemed threatening, or that Siegler had a reason to believe that appellant was armed and dangerous at the time of their encounter. Thus, Siegler had no reason to invade appellant’s personal space in order to protect himself or anyone else.
The decisions of the United States Supreme Court, the Arkansas Supreme Court, and our court, as well as Rule 3.4, clearly show that before the police place a hand on someone to perform a pat-down or “frisk” search, the officer must be able to specify objective facts from which a reasonable person can infer that the person to be searched is presently armed and dangerous. The only constitutional justification for such intrusions into the personal space of persons detained by police is to provide protection against “any weapon or other dangerous thing which may be used against the officer or others.” Ark. R. Crim. P. 3.4. Where the totality of the circumstances fails to show objective, specific, and articulable facts that someone detained by the police is armed and dangerous, the Fourth Amendment protects the detainee from the invasion of a weapons search because the police have no reasonable basis for placing hands on a detainee to search for weapons that no reasonable person would suspect to exist. This limitation on police conduct protects detained persons from unwarranted police intrusion into their personal liberty and security. It also protects the police from false or simply mistaken accusations by detainees of unjustified and offensive touching. Meanwhile, it ful fills the legitimate governmental interest in protecting the police and the public from the threat posed by armed and dangerous persons who, based on specific, objective, and articulable factors, pose a threat to the police or to other persons.
The State argues that we should reject appellant’s challenge to the denial of the suppression motion because “nothing incriminating was found during the pat-down search for weapons.” Rather, the State contends that Detective Siegler felt “an object in appellant’s waistband, but before the object could be identified, appellant fled.” By this argument, the State asserts that appellant nullified any claim that he might have otherwise asserted in challenging the propriety of the pat-down search when he attempted to flee and created “an entirely new situation for which the officers unquestionably had cause to pursue and search him.” The decision by the United States Supreme Court in California v. Hodari, 499 U.S. 621 (1991), is cited in support of this argument. In that case, police officers in Oakland, California, observed several people surrounding a car. The car sped away and Hodari, one of the people standing around it, ran away as the patrolling officers approached. An officer pursued Hodari on foot and, during the pursuit, saw Hodari toss a rock-like substance that was later found and established to be cocaine. The Supreme Court upheld Hodari’s adjudication as a juvenile against his motion to suppress the cocaine because it concluded that the cocaine was discovered following the chase of a person who had not been under police control. The State also contends that the officers had a legitimate basis for arresting appellant for fleeing and battery so that we should view the cocaine as having been discovered in the course of a valid search incident to arrest, citing Hazelwood v. State, 328 Ark. 602, 945 S.W.2d 365 (1997).
Neither argument is persuasive. Unlike the situation in Hodari, Detective Siegler actually detained appellant and was conducting a weapons search when he discovered the object that was ultimately seized and proved to be crack cocaine. A seizure under the Fourth Amendment had plainly occurred and a weapons search was underway when appellant struggled with Siegler and other officers in a vain attempt to escape. Siegler testified that he was grasping appellant’s clothing during the attempted escape and struggle. The search was initiated and resisted in this case, but it was never terminated. By contrast, in Hodari the police never initiated a weapons search; rather, the police saw the challenged evidence being thrown away during the pursuit of a person they had observed but never detained or searched.
Likewise, we find no merit in the State’s argument that the seized cocaine in this case was discovered in a valid search incident to arrest. The totality of the circumstances shows that Detective Siegler discovered the “object” that was eventually found to be crack cocaine during the course of a pat-down weapons search, not an arrest for fleeing and battery. When the pat-down occurred, Siegler had no basis for arresting appellant, having merely observed him sitting in the driver’s seat of a vehicle where the police thought that public drinking was occurring. Siegler had not seen appellant engage in any activity that constituted probable cause for an arrest. While we do not condone appellant’s conduct in attempting to escape and in striking Siegler and other police officers who helped prevent the escape, we cannot pretend that appellant’s conduct somehow “nullified” the plainly unconstitutional search.
Based on our review of the totality of the circumstances, Detective Siegler lacked specific, objective, and articulable facts to support a reasonable suspicion that appellant was armed and presently dangerous when he conducted the pat-down search. Therefore, we hold that the trial court’s denial of appellant’s suppression motion was clearly against the preponderance of the evidence so that his conviction for possession of a controlled substance with intent to deliver must be reversed and remanded.
Appellant’s challenge to the trial court’s denial of his motion for directed verdict on the second-degree battery charge does not, however, persuade us that the trial court’s decision was wrong. Directed-verdict motions are treated as challenges to the sufficiency of the evidence. Bennet v. State, 308 Ark. 393, 825 S.W.2d 560 (1992). Where the sufficiency of the evidence is challenged, we consider only that evidence which supports the guilty verdict. Stipes v. State, 315 Ark. 719, 870 S.W.2d 388 (1994). The test is whether there is substantial evidence to sup port the verdict, and on appellate review, “it is only necessary for us to ascertain that evidence which is most favorable to the [State].” Jameson v. State, 333 Ark. 128, 130, 970 S.W.2d 705 (1998). Substantial evidence is evidence of such certainty and precision as to compel a conclusion one way or another. Jenkins v. State, 60 Ark. App. 122, 959 S.W.2d 427 (1998).
A person commits battery in the second degree if:
(1) With the purpose of causing physical injury to another person, he causes serious physical injury to any person;
(2) With the purpose of causing physical injury to another person, he causes physical injury to any person by means of a deadly weapon other than a firearm;
(3) He recklessly causes serious physical injury to another person by means of a deadly weapon;
(4) He intentionally or knowingly without legal justification causes physical injury to one he knows to be:
(A) A law enforcement officer . . . while such officer ... is acting in the line of dutyf.]
Ark. Code Ann. § 5-13-202(a) (R.epl.1997) (emphasis added).
Appellant contends that there was insufficient proof that he caused a physical injury, which is defined by Arkansas Code Annotated § 5-1-102(14) (Repl. 1997) as the impairment of physical condition or the infliction of substantial pain.
There is no requirement that a victim of second-degree battery seek medical treatment in order to be deemed to have sustained a physical injury, for purposes of our statute that defines second-degree battery. See Gilkey v. State, 41 Ark. App. 100, 848 S.W.2d 439 (1993). Rather, in determining whether an injury inflicts substantial pain, the trier of fact must consider all of the testimony and may consider the severity of the attack and the sensitivity of the part of the body to which the injury is inflicted. The trier of fact is not required to set aside its common knowledge and may consider the evidence in the fight of its observations and experiences in the affairs of life. Holmes v. State, 15 Ark. App. 163, 690 S.W.2d 738 (1985).
Here, the record shows that appellant struck Detective Siegler in the face. Siegler testified that he experienced pain from bruises and scrapes on his hands, face, elbows, and knees. Detective Chandler testified that he had a painful bruise on the side of his face from a blow received from appellant during the struggle to prevent his escape. Based on our standard of review, we find this evidence sufficient to compel the conclusion that the officers sustained physical injury while acting in the line of duty so that the trial court’s denial of appellant’s motion for directed verdict was proper. Therefore, we affirm that ruling and appellant’s conviction for second-degree battery.
Reversed and remanded in part; affirmed in part.
Arey and Meads, JJ., agree. | [
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James R. Cooper, Judge.
The appellant leasing company brought an action against the appellees alleging breach of lease agreements. After a trial at which the appellees failed to appear, judgment was entered against them on March 19, 1992. Subsequently, the appellees moved for a new trial and for relief from the judgment pursuant to Rule 60. The trial court denied the request for a new trial but granted limited relief from the judgment pursuant to Rule 60. The appellant brings this appeal from the order granting relief from the judgment; the appellees cross-appeal, challenging the denial of their motion for a new trial. We reverse on direct appeal and dismiss the cross-appeal as untimely.
Parks Leasing, Inc., is in the business of leasing trailers for tractor-trailer trucks. In February 1989, Scheduled Truckways, Inc., leased 110 over-the-road trailers from the appellant for a term of sixty months. Frank Cochran, president of Scheduled Truckways, signed the lease, and the lease payments were guaranteed by Frank Cochran, Mary B. Cochran, and Bray Corporation (which is owned by the Cochrans).
Scheduled Truckways defaulted on the lease agreement, and on September 12, 1991, the appellant filed a complaint and petition for recovery of property against Scheduled Truckways, Bray Corporation, and the Cochrans. A preliminary hearing was held October 4, 1991, at which time all the appellees were represented by attorney Howard Slinkard. At that hearing, the court allowed Scheduled Truckways to retain possession of the trailers on the condition that lease payments be made into the court registry during November and December 1991. However, these payments were not made, and an order of possession was entered on January 7, 1992. At that time, the court also set the case for trial on March 19, 1992.
On January 6, 1992, Mr. Slinkard asked the court’s permission to withdraw as counsel for the appellees. However, on January 21, 1992, Mr. Slinkard continued his representation of the appellees at Mr. Cochran’s deposition. On January 24, 1992, the court allowed Mr. Slinkard to withdraw pursuant to his earlier request and required the appellees to provide the court with the name of their new counsel within ten days. The appellees never contacted the court, and the matter proceeded to trial as scheduled on March 19, 1992. The appellees failed to appear, and judgment was entered against them for over $1.6 million, plus costs and attorney’s fees, on March 19, 1992.
On March 26,1992, the appellees Bray Corporation, Frank Cochran, and Mary Cochran filed a motion for new trial pursuant to Ark. R. Civ. P. 59, alleging they had been given no notice of the March 19 trial date and that the confusion concerning their legal representation amounted to irregularity in the proceedings. Although a hearing was held on the motion for new trial on April 16,1992, the circuit court took no action at that time. On May 7, 1992, the appellees filed an amended motion for new trial, alleging error in the assessment of damages and asserting that they had been denied a jury trial. On that date, the appellees also filed a motion for relief from judgment under Ark. R. Civ. P. 60.
On June 26, 1992, the appellees filed an amended motion for relief from judgment and a second amended motion for new trial, alleging that a new trial should be granted in order to correct an error or mistake and to prevent the miscarriage of justice because the appellant had violated the Equal Credit Opportunity Act. On August 24, 1992, the circuit judge found no irregularity in the proceedings and denied the appellees’ request for a new trial under Rule 59. The circuit judge did, however, grant the appellees some relief from judgment under Rule 60 in order to prevent a miscarriage of justice. He set aside the judgment for the limited purpose of allowing the appellees to present their legal arguments concerning the proper computation of principal, interest, and late charges.
The appellant argues on appeal that the circuit judge erred in granting the appellees any relief from the judgment. The appellees have cross-appealed, arguing that the circuit judge erred in denying their motion for new trial.
When the appellees’ motion for new trial was not acted upon within thirty days of its filing, it was deemed denied. Bush v. Bush, 306 Ark. 513, 514, 816 S.W.2d 590, 591 (1991); Ark. R. App. P. 4(c). In fact, after the expiration of thirty days from the date a motion for new trial is filed, the trial court loses its ability to do so. See Wal-Mart Stores, Inc. v. Isely, 308 Ark. 342, 343, 823 S.W.2d 902, 903 (1992). The appellees’ motion for a new trial was filed on March 26, 1992, and was deemed denied on Monday, April 27, 1992. Although a notice of cross-appeal ordinarily is timely if filed within ten days of a notice of appeal, Ark. R. App. P. 4(a), no timely notice of appeal was filed from the denial of the appellees’ new trial motion. While we could otherwise treat the appellees’ “notice of cross-appeal” as a notice of appeal in its own right, we cannot in this case because the appellees’ notice was not filed until September 17, approximately five months after their new trial motion was deemed denied pursuant to Rule 4(c). See Phillips Constr. Co. v. Cook, 34 Ark. App. 224, 808 S.W.2d 792 (1991). The appellees’ failure to file a timely notice of appeal must result in the dismissal of their cross-appeal. See Upton v. Estate of Upton, 308 Ark. 677, 678-79, 828 S.W.2d 827, 828 (1992); Ark. R. App. P. 4(a).
The appellees’ motion for relief from judgment pursuant to Ark. R. Civ. P. 60 was filed on May 7, 1992. The circuit judge did not act on that motion until August 24, 1992, more than five months after the judgment was entered. At that point, the trial court had lost jurisdiction to grant relief from judgment under Rule 60(b). See City of Little Rock v. Ragan, 297 Ark. 525, 526, 763 S.W.2d 87, 88 (1989). Further, the appellant correctly points out that Rule 60(d) provides that no judgment shall be set aside unless the defendant, in his motion, asserts a valid defense to the action. There was no reference to any defense in the appellees’ May 7, 1992, motion for relief from judgment. It was not until the appellees filed their amended motion for relief on June 26, 1992, over ninety days after the entry of the judgment, that the appellees asserted a defense.
The only authority the circuit judge has to set aside a judgment , after the expiration of ninety days is found in Rule 60(c), which states:
(c) Grounds for Setting Aside Judgment, Other Than Default Judgment, After Ninety Days. The court in which a judgment, other than a default judgment [which may be set aside in accordance with Rule 55(c)] has been rendered or order made shall have the power, after the expiration of ninety (90) days after the filing of said judgment with the clerk of the court, to vacate or modify such judgment or order:
(1) By granting a new trial where the grounds therefor were discovered after the expiration of ninety (90) days after the filing of the judgment, or, where the ground is newly discovered evidence which the moving party could not have discovered in time to file a motion under Rule 59(c). . . .
(2) By a new trial granted in proceedings against defendants constructively summoned. . . .
(3) For misprisions of the clerk.
(4) For fraud practiced by the successful party in obtaining the judgment.
(5) For erroneous proceedings against an infant or person of unsound mind. . . .
(6) For the death of one of the parties before the judgment in the action.
(7) For errors in a judgment shown by an infant within twelve (12) months after reaching the age of eighteen (18) years. . . .
The appellees, however, have completely failed to show that they were entitled to relief under any of the grounds listed in Rule 60(c).
We find that, by the time the circuit judge took action on the appellees’ motion for relief from judgment, he was without jurisdiction to do so under Rule 60(b). Since the appellees presented no evidence that they were entitled to relief under Rule 60(c), we reverse and remand with directions to the circuit court to reinstate the judgment.
Reversed on direct appeal; cross-appeal dismissed.
Robbins and Mayfield, JJ., agree. | [
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Melvin Mayfield, Judge.
On July 26,1991, John Burton Hobbs was charged with interference with custody, a Class D felony, in violation of Ark. Code Ann. § 5-26-502 (1987). That statute provides in pertinent part:
(a) A person commits the oifense of interference with custody if, knowing that he or she has no lawful right to do so, he or she takes, entices, or keeps any minor from any person entitled by a court decree or order to the right of custody of the minor.
(b) Interference with custody is a Class D felony if the minor is taken, enticed, or kept without the State of Arkansas. Otherwise, it is a Class A misdemeanor.
' The charges arose when appellant went to Texas to pick up his daughter for visitation. He contended that a standing order of the court, which was served on him in the pending Arkansas divorce case, gave him eight weeks visitation in the summer and that he told his ex-wife when he picked up his daughter that he intended to keep her for eight weeks pursuant to that order.
Mrs. Hobbs had been granted temporary custody of the child, and she did not agree that appellant was entitled to eight weeks summer visitation. Therefore, when her daughter was not returned after one week, she contacted the police, and they eventually arrested appellant in Greenville, Mississippi, at the beginning of the seventh week of visitation. The child was returned to her mother, and the appellant was jailed in Arkansas.
On May 21,1992, appellant filed a motion to dismiss. One of the reasons for the requested dismissal was:
3. Pleading further, in the divorce proceeding, Case No. E-90-883, Chancellor Andre E. McNeil found Defendant, John Hobbs, guilty of criminal contempt for interference with custody, and assessed fines and time incarcerated; that pursuit of the above-styled case constitutes double jeopardy.
On May 22, 1992, a hearing was held on the motion to dismiss and the judge took it under advisement. On May 28, 1992, the trial was held without a specific ruling from the trial judge on the motion to dismiss. Hobbs was tried by a jury, found guilty of misdemeanor interference with custody and sentenced to sixty-two days (time served) in the county jail and a fine of $500.00. On appeal appellant argues that he was placed in double jeopardy, and the trial court erred in denying his motion to dismiss.
Nancy Hobbs (now Guzman) testified that she and appellant had one child, Tabitha Nicole, and that she was awarded temporary custody on January 29,1991, and given permission to move the child to San Antonio, Texas, where Mrs. Hobbs grew up, had family, and had been living since November 5, 1990. Appellant was given one week visitation every six weeks. Mrs. Hobbs said appellant picked up the child (then about twenty months old) on June 8 and was to have returned her on June 16. She said she had agreed to allow him to take Tabitha to Greenbrier, Arkansas, to spend the week with his parents, with whom he lived. Mrs. Hobbs said when Tabitha was not returned on June 16, she notified her attorney, had “fliers” printed up showing Tabitha as missing, then came to Arkansas to try to find her daughter and get her back.
On June 19, according to Mrs. Hobbs, she spoke to appellant’s father in Greenbrier, but was never able to contact appellant himself. On June 20 an ex parte order was granted which gave law enforcement officials the right to retrieve and return Tabitha to Mrs. Hobbs. She said at that point she had done all she could do and returned home to San Antonio. Mrs. Hobbs said she did not see her child again until July 25, when she got a phone call from the sheriff telling her Tabitha had been found in Greenville, Mississippi, and she flew there to pick her up.
Appellant John Hobbs testified that he and his estranged wife separated on October 4,1990, and that he didn’t see his child for two or three months because Mrs. Hobbs had moved to Texas with the child. At the temporary divorce hearing on January 29 Mrs. Hobbs was awarded temporary custody of Tabitha and appellant was given reasonable visitation. He said attached to the complaint for divorce was a small blue booklet entitled Handbook for Domestic Relations Litigants, 20th Chancery District of Arkansas, which stated that it was a court order and that he was to follow the suggested rules and regulations. He said from page six of that booklet, he understood reasonable visitation to be one week every six weeks, eight weeks in the summer, and alternate holidays. Appellant said that during the temporary hearing he was allowed four days visitation with his daughter.
According to appellant, when he talked to his former wife about summer visitation with Tabitha, he informed her that he intended to pick up the child, return to Greenbrier, and keep her for eight weeks. Appellant said Mrs. Hobbs argued with him that he was not entitled to eight weeks visitation until after the final divorce hearing but when he went to pick Tabitha up in San Antonio, Mrs. Hobbs let Tabitha go with him without any fuss. Appellant said during the time Tabitha was with him he had visited his parents and grandparents and a cousin in Greenville, Mississippi. He admitted he had also gone to Amarillo, Texas, to bid on a job, but said he did not get it, and he then went to Greenville. Appellant said he and his cousin bid on a couple of jobs and got them and that was the reason he stayed in Greenville. He said he was arrested on the seventh week of his eight week visitation period.
Appellant insisted that he did not “kidnap” Tabitha but was simply following the temporary order which said he had “reasonable visitation” and the definition of reasonable visitation contained in the Handbook for Domestic Relations Litigants. He said it “never even crossed my mind” to not return his child to her mother. Appellant also testified that he had waived extradition to Arkansas, and was brought back and jailed for sixty-two days without ever appearing before a judge.
Both the Arkansas and United States Constitutions prohibit placing a person twice in jeopardy for the same offense. Ark. Const. art. 2 § 8; U.S. Const. amend. 5. See also Baggett v. State, 15 Ark. App. 113, 690 S.W.2d 362 (1985). The Arkansas Supreme Court has said that the test of double jeopardy is not whether a defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense, and where two statutes are intended to suppress different evils, conviction under one will not preclude prosecution of the other. Decker v. State, 251 Ark. 28, 471 S.W.2d 343 (1971).
In Baggett the defendant had failed to return the child to the mother at the appointed time. He was found guilty of contempt by the chancery court and sentenced to serve ninety days in jail and pay a fine of $1,000.00. Later, he was found guilty of criminal interference with custody. In that case, the appellant argued that he was placed in double jeopardy. Because the order of the chancery court stated that it would consider remitting part of the monetary fine and jail sentence upon proper application by the defendant, this court found the order to be coercive in nature and held that the contempt order was civil and, therefore, appellant was not placed in double jeopardy. 15 Ark. App. at 120.
In the instant case, Hobbs argues that he was fined and ordered incarcerated for time served and that this constituted criminal contempt. We agree.
In Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988), our supreme court discussed the distinctions between civil and criminal contempt as follows:
The purpose of a criminal contempt proceeding is that it is brought to preserve the power and vindicate the dignity of the court and to punish for disobedience of its order. A civil contempt proceeding is instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for the benefit of those parties [citations omitted]. However, the substantive difference between civil and criminal contempt often becomes blurred. The character of the relief, rather than the trial court’s characterization of the substantive proceeding becomes the critical factor in determining the nature of the proceeding for due process purposes. The Supreme Court of the United States has clearly set out the distinction between the types of relief:
“If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court.” Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 (1911). The character of the relief imposed is thus ascertainable by applying a few straight-forward rules. If the relief provided is a sentence of imprisonment, it is remedial if “the defendant stands committed unless and until he performs the affirmative act required by the court’s order,” and is punitive if “the sentence is limited to imprisonment for a definite period.” Id., at 442. If the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court’s order.
The distinction between relief that is civil in nature and relief that is criminal in nature has been repeated and followed in many cases. An unconditional penalty is criminal in nature because it is “solely and exclusively punitive in character.” Penfield Co. v. SEC, 330 U.S. 585, 593 (1947). A conditional penalty, by contrast, is civil because it is specifically designed to compel the doing of some act. “One who is fined, unless by a day certain he [does the act ordered], has it in his power to avoid any penalty. And those who are imprisoned until they obey the order, ‘carry the keys of their prison in their own pockets.’ ” Id., at 590, quoting In re Nevitt, 117 F. 448, 461 (CA8 1902).
Hicks ex rel. Feiock v. Feiock, 485 U.S. 624 (1988).
296 Ark. at 138-40, 752 S.W.2d at 276-77.
Appellant also argues that Ark. Code Ann. § 5-1-113(1)(B)(i) (1987) provides that it is an affirmative defense to a prosecution that there has been a former prosecution for a different offense if the former prosecution resulted in a conviction unless-.
The offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of the offenses is intended to prevent a substantially different harm or evil[.]
Appellant contends that the offense proven in this criminal trial contains exactly the same facts as the offense for which he was found in contempt of court, jailed and fined in chancery court. We agree. Although the hearing in which appellant was adjudged in contempt of court was in connection with a divorce and custody case in chancery court, it resulted in appellant’s incarceration as punishment, and thus was in the nature of a criminal proceeding.
Jeopardy denotes risk and is traditionally associated with a criminal prosecution. See Serfass v. United States, 420 U.S. 377 (1975). It has been held that the risk to which the double jeopardy clause refers is not present in proceedings that are not “essentially criminal.” Helvering v. Mitchell, 303 U.S. 391 (1938). Stated another way, the risk to which the term jeopardy refers is that traditionally associated with “actions intended to authorize criminal punishment to vindicate public justice.” United States ex rel. Marcus v. Hess, 317 U.S. 537 (1943).
Fariss v. State, 303 Ark. 541, 543-44, 798 S.W.2d 103, 104 (1990).
The State contends that the double jeopardy argument was not preserved for appeal because appellant failed to get a definitive ruling from the trial court on his motion to dismiss. In order to preserve an issue for review by the appellate court an appellant must have obtained a ruling at the trial court level. Menard v. City of Carlisle, 309 Ark. 522, 529, 834 S.W.2d 632, 636 (1992); State v. Torres, 309 Ark. 422, 426, 831 S.W.2d 903, 905 (1992); Pharo v. State, 30 Ark. App. 94, 101, 783 S.W.2d 64, 68 (1990). The record shows that appellant did get a ruling on his double jeopardy motion. At the close of all the evidence counsel for appellant stated:
MR. MADDEN: Your honor, at this time the Defendant would renew all of its previous motions[.] . . .
THE COURT: The court will stand by its previous rulings and the motion[s] will be denied.
The State also argues that appellant’s former jeopardy argument is procedurally barred because he has failed to bring forth a record that demonstrates error. In order to obtain reversal of his criminal conviction an appellant must place before this court a record that shows error occurred. Kittler v. State, 304 Ark. 344, 347, 802 S.W.2d 925, 927 (1991); Burkett v. State, 32 Ark. App. 60, 796 S.W.2d 355 (1990); and Lee v. State, 27 Ark. App. 198, 210, 770 S.W.2d 148, 154 (1989). The record on appeal is limited to that which is abstracted. Irvin v. State, 28 Ark. App. 6, 13, 771 S.W.2d 26, 29 (1989).
We think appellant has brought us an adequate record. It contains the temporary order in Faulkner County Chancery Court Case No. E-90-883 granting custody to Mrs. Hobbs, and the parties agreed that the facts are not in dispute. In addition, the prosecutor admitted appellant had been found in contempt of court and sanctions were administered.
PROSECUTOR: I believe the parties were divorced in Arkansas and she was given permission to take the child out of Arkansas to live in Texas but the father brought the child back without permission from the Chancery Court. The Court found him in contempt of court and assessed fines. I will agree with the point that Judge McNeil assessed some penalties, but it was our understanding it was for civil contempt.
DEFENSE COUNSEL: Penalties make it criminal. Fines make it criminal.
In fact, appellant testified that he had been incarcerated for sixty- two days and that testimony was not disputed. Because, as we have shown above, appellant’s incarceration by the chancellor was “essentially criminal,” we think jeopardy attached. Therefore, appellant could not be tried and punished a second time for the same offense.
Reversed and dismissed.
Cooper and Robbins, JJ., agree. | [
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Per Curiam.
Appellant Roxanne Marie Handy was convicted on November 8, 1991, of theft by deception and the court withheld imposition of sentence for a period of five years conditioned on good behavior and appellant making monthly restitution payments. On June 5,1992, the state filed a petition to revoke appellant’s suspended sentence for failure to make her restitution payments. At the conclusion of a hearing held August 5, 1992, the judge announced that he found that appellant had violated the terms of her suspended sentence and sentenced her to ten years in the Arkansas Department of Correction with seven of those years suspended. Appellant filed notice of appeal on August 18, 1992. The judgment and commitment order was not entered until August 26, 1992.
Appellant’s appeal must be dismissed. Rule 4(a) of the Arkansas Rules of Appellate Procedure requires that a notice of appeal be filed “within thirty (30) days from the entry of the judgment” appealed from. Notice filed prior to entry of the judgment does not comply. Mangiapane v. State, 43 Ark. App. 19, 858 S.W.2d 128 (1993). Although Mangiapane was reversed upon review, the Supreme Court opinion explained that it did so because the notice of appeal and entry of judgment predated Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992) which was decided on July 13, 1992. See Mangiapane v. State, 314 Ark., per curiam op. del. Oct. 4,1993. Here, the notice of appeal and entry of judgment occurred on August 18, 1992, and August 26, 1992, respectively, after Kelly v. Kelly was decided. We lack jurisdiction to entertain this appeal.
Dismissed.
Mayfield, J., concurs. | [
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James R. Cooper, Judge.
The appellee, Arkansas Department of Human Services, brought an action on June 22, 1992, to remove the custody of A.N.C., a minor child, from Lon Cochran, her father, and declare the child to be dependent-neglected. After hearings on September 3, 1992, and September 18, 1992, custody of the minor child was removed from the father; she was declared dependent-neglected and placed with a relative. From that decision, comes this appeal.
For reversal, the appellants contend that the trial court erred in admitting into evidence certain out-of-court statements made by the child to a Department of Human Services employee. We agree, and we reverse.
The Department of Human Services employee, Allison Hickey, testified that, in the course of her duties as the Director of SCAN, she investigated a complaint that A.N.C. had been sexually abused by her father. After testifying on direct examination that she had interviewed A.N.C., Ms. Hickey was asked what A.N.C. had told her during the course of the interview. The defense counsel objected to such testimony on the grounds that it would be inadmissible hearsay. The defense further argued that, even if the testimony was considered to be an admission by a party opponent under Rule 801(d) (2), such testimony could not be used against the father because he was a co-defendant. The trial court overruled the objection and permitted the testimony as an admission by a party opponent. We hold that the trial judge erred in so ruling.
Rule 801(d) of the Arkansas Rules of Evidence provides that a statement is not hearsay if it is an admission by a party opponent, defined as a statement offered against a party which is:
(i) his own statement, in either his individual or a representative capacity, (ii) a statement of which he has manifested his adoption or belief in its truth, (iii) a statement by a person authorized by him to make a statement concerning the subject, (iv) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or (v) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.
The crux of the appellant’s argument is that the statement made by the child is not the statement of the co-defendant father; therefore, they argue, subsection (i) does not apply and the statement does not constitute an admission by a party opponent under the Rule. We agree.
It is generally held that the admissions of one co-plaintiff or co-defendant are not receivable against another, merely by virtue of his position as a co-party in the litigation. 4 Wigmore on Evidence § 1076 (Chadbourn rev. 1972).
The best exposition of the rule is found in C.J.S., where it is stated that:
As a general rule, admissions of one of two or more coparties are competent against declarant... and they are not to be excluded merely because in terms they also affect a coparty, or because they may have an ulterior or collateral effect detrimental to a coparty.
Where, however, the interests of coparties are all dependent on the existence of a particular fact, the admission of one of them with respect to such fact cannot be received, because it could have no effect as to himself without affecting the others.
31A C.J.S. Evidence § 318(a).
The rule of exclusion applies especially where the coparties, although nominally on the same side in the litigation, actually have adverse interests. See generally 4 Wigmore on Evidence § 1076. This general principle was employed in the Arkansas case of Bryant v. Lewis, 201 Ark. 288, 144 S.W.2d 37 (1940). There the issue was whether the contents of an affidavit by a co-defendant were admissible against the other co-defendant. The Supreme Court held that they were not, and explained its reasoning as follows:
It must be remembered in this case that the interests of William Lewis and Mittie Lewis are hostile. The fact that William Lewis’ answer was verified does not make its contents evidence against Mittie Lewis. At most it is but an affidavit, or statement made under oath, by William Lewis in the absence of appellee, Mittie Lewis, who was deprived of the privilege of cross-examination and is in no sense binding upon her, or evidence against her.
Bryant v. Lewis, 201 Ark. at 291. A similar situation was presented in Higgins v. General Motors Corp., 250 Ark. 551, 465 S.W.2d 898 (1971). There the trial judge permitted GM’s admission of a product defect into evidence against the dealership, which was GM’s co-defendant. The Supreme Court stated that:
Although the letters were certainly relevant to the issue of a pre-existing defect in the brake hoses, they were not competent against Terry in view of the restrictive objection. The letters emanated from a source other than the party against whom they were sought to be introduced. As such, absent a showing that they were adopted by or otherwise binding upon it, the contents of the letter of recall constituted mere hearsay and res inter alios acta as to Terry.
Higgins, 250 Ark. at 556.
In the case at bar, the father and child, although nominally coparties, have interests that are in reality adverse; moreover, the child’s statements went to the heart of the dispute and the appellant never acquiesced in or adopted them. Under the rules cited above, the trial court erred in allowing the child’s statements into evidence against the appellant.
We reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
Robbins and Mayfield, JJ., agree. | [
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John Mauzy Pittman, Judge.
The appellant in this criminal J case pled guilty to sexual abuse in the first degree in 1999 and was sentenced to five years’ probation. On March 12, 2003, the State filed a petition to revoke, alleging that he violated the terms of his probation by committing the offense of rape on November 11, 2002. After a jury trial, appellant was convicted of rape and sentenced to twelve years’ imprisonment. Following a revocation hearing held after the jury trial, the appellant was found to have violated the conditions of his probation by committing the offense of rape, and was sentenced to five years’ imprisonment for violating the conditions of his probation. From those decisions, comes this appeal.
For reversal, appellant contends that the evidence identifying him as the rapist is insufficient to support either his conviction of rape or the revocation of his probation. We affirm.
We first address appellant’s contention that the identification evidence is insufficient to support his conviction. Our standard of review is well-settled:
In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. We do not reweigh the evidence but determine instead whether the evidence supporting the verdict is substantial. We affirm a conviction if substantial evidence exists to support it. 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. We do not, however, weigh the evidence presented at trial, as that is a matter for a factfinder. Nor will we weigh the credibility of the witnesses.
Clem v. State, 351 Ark. 112, 116, 90 S.W.3d 428, 429-30 (2002) (internal citations omitted).
The thrust of appellant’s argument is that the evidence is insufficient because the victim was unable to recognize and identify him at trial. Appellant cites Synoground v. State, 260 Ark. 756, 543 S.W.2d 935 (1976), for the proposition that a conviction must be reversed if a victim is unable to identify the accused in court. However, Synoground does not stand for that proposition, but merely held that patently unreliable identification testimony should be excluded. To the contrary, Synoground states that the reliability of eyewitness identification of a defendant is normally a question for the jury, and that, if it is not argued that the procedures leading to the identification were constitutionally infirm, it is up to the jury to determine whether the eyewitness identification is reliable. Id.; Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001).
Here, it cannot be said that the victim’s identification of appellant was unreliable. The record shows that the victim was employed as a night-shift medical records secretary at a hospital. Access to the medical records room required a key or a key card. On the day that the victim commenced her employment, she was introduced to and spoke with Alexander Stewart, who said that he needed to meet her because he was the supervisor on her shift. Approximately one week after commencing work at the hospital, the victim was working alone during the night shift when she received a telephone call from her supervisor, who identified himself as Alex and stated that he was coming over to the medical records room to explain her duties to her. The victim’s supervisor arrived shortly thereafter and, after engaging in conversation with the victim for some time, pushed her to the ground and raped her. The victim reported the rape to the hospital human resources officer, and then to the police department.
Although the victim, when asked at trial if the rapist was in the courtroom, was initially unable to recognize appellant, she did state positively that the man who raped her was the person she met on her first day at work who identified himself as Alex. In addition, Adrian Hollaway, a medical director for the hospital, did recognize appellant in the courtroom. Mr. Hollaway positively identified appellant as the Alexander Stewart who was the victim’s supervisor on the night the rape occurred.
Although the identification of the defendant as the perpetrator of the crime is an element of every criminal case, there is no requirement that the identification must be provided by the victim, and identity has been held to have been sufficiently proven where the evidence was many times more sparse and circumstantial than the evidence in the present case. See, e.g., Womack v. State, 301 Ark. 193, 783 S.W.2d 33 (1990); Becker v. State, 298 Ark. 438, 768 S.W.2d 527 (1989). Here, although the victim was unable to identify appellant as the rapist at trial, she testified that she did recognize the rapist at the time of the rape, and that the rapist was her supervisor. Given that there was other evidence to show that appellant was in fact the victim’s supervisor at the time in question, we hold that the jury was not required to find that the identification of appellant was patendy unreliable, and that there is substantial evidence identifying appellant as the rapist. See Green v. State, 310 Ark. 16, 832 S.W.2d 494 (1992). Appellant’s conviction is affirmed.
Appellant also argues that the evidence is insufficient to support a finding that he violated the terms of his probation by committing the rape for which he was convicted. We do not agree. During the revocation proceeding that followed the trial, the victim did in fact positively identify appellant as the rapist, explaining her earlier difficulty in identification as the result of appellant having changed his hairstyle, adding facial hair, and gaining weight since the time of the rape. In light of this testimony, and the evidence discussed in our foregoing analysis of his rape conviction, we cannot say that the trial court’s finding that appellant raped the victim is clearly erroneous. See Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988). The revocation of appellant’s probation is therefore affirmed.
Affirmed.
Gladwin, Robbins, Griffen and Baker, JJ., agree.
Neal, J., dissents. | [
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Karen R. Baker, Judge.
This appeal involves the priority of mortgage liens held by appellee First Federal Bank of Arkansas, F.A., and Bank of Yellville’s assignee, appellant Com Insurance Agency, Inc., on 1.95 acres in Pulaski County owned by appellants Joe Swaffar and Sandra Swaffar. We hold that the Pulaski County Circuit Court erred in deciding this case by summary judgment and reverse and remand for trial.
The Swaffars borrowed money from Bank of Yellville on August 21, 1985. They signed a note to Bank ofYellville and gave a mortgage on approximately five acres in Pulaski County to secure that debt on the same date. On June 18, 1986, Bank of Yellville gave the Swaffars a deed of partial release to 1.95 acres within their tract. The partial release deed was recorded on June 23, 1986. The Swaffars obtained it from Bank ofYellville because they had applied for a loan with First Federal Savings & Loan Association of Malvern, Arkansas (First Federal of Malvern), which would be secured by a first mortgage on the 1.95 acres; without the release from Bank of Yellville, First Federal of Malvern would not be in a first-lien-priority position. After receiving $100,000 for the release of the 1.95 acres, Bank of Yellville executed the partial release deed, and First Federal of Malvern made the loan to the Swaffars. The partial release deed, however, contained what appellee has called scrivener’s errors. On June 17, 1986, the Swaffars gave First Federal of Malvern a mortgage to secure their debt to it. This mortgage also contained an error. When First Federal of Malvern attempted to correct the legal description in their mortgage by filing a correction mortgage, it corrected the original error but made another mistake in omitting a call from the description. This correction mortgage was filed on October 7, 1988.
Bank of Yellville filed a foreclosure action against the Swaffars in the Pulaski County Chancery Court in May 1989. In its complaint, Bank ofYellville acknowledged that its deed of partial release had contained errors and asserted that, in May 1989, it had attempted to cure those errors by executing a correction deed of partial release of the 1.95 acres. This correction deed of partial release, however, was not filed, and only a copy of the original is in this record. That action was dismissed without prejudice on July 31, 1990.
Bank of Yellville made another loan to the Swaffars in November 1989, which was also secured by a mortgage on the Swaffars’ entire five acres. Resolution Trust Corporation, acting as receiver for First Federal of Malvern, assigned the 1986 Swaffar mortgage to First Federal Savings of Harrison on May 2, 1990. It was recorded on June 21, 1990, and also contained an error in the legal description.
Appellee filed this action against the Swaffars and Bank of Yellville on May 21, 2001. In its complaint, it alleged that the Swaffars were in default on the June 17, 1986 promissory note and asserted the priority of its mortgage lien on the property. In its counterclaim, cross-claim, and third-party complaint, Bank of Yellville alleged that the Swaffars had defaulted on their 1989 note and asserted the priority of its mortgage lien on the property. Appellee filed an amended complaint in June 2002, alleging that there were errors in the relevant property descriptions as a result of the parties’ mutual mistakes and requested reformation of the Swaffars’ mortgage to First Federal of Malvern to reflect the parties’ intent. Appellee also requested reformation of the correction mortgage, the assignment, and the partial release deed to reflect the proper legal description of the property. Appellee sought enforcement of the debt reflected in the promissory note and enforcement of its mortgage on the property securing that debt, as reformed.
In their answer, the Swaffars set forth the affirmative defenses of laches and limitations. In its answer, Bank ofYellville also asserted those defenses and alleged that its interest in the property was superior to that of appellee. Bank of Y ellville filed an amended counterclaim, cross-claim, and third-party complaint on July 16, 2002, asserting that the Swaffars had defaulted in their debt to it and seeking to recover the amount due under the November 15, 1989 promissory note and to foreclose on the November 15, 1989 mortgage, which it asserted was superior to the interests of all other parties.
On July 24, 2002, Bank ofYellville assigned all ofits interest in the Swaffars.’ 1989 promissory note and mortgage and its rights and claims in this litigation to appellant Corn Insurance Agency, Inc. (Corn). An order substituting Corn for Bank ofYellville in this action was signed by the circuit court on August 30, 2002.
Appellee moved for summary judgment on February 11, 2003. In support of its motion, appellee filed copies of the documents discussed above and the affidavits of First Federal of Malvern’s attorney, Don Spears, an employee of appellee, Carolyn Thomason, and appellee’s executive vice-president, Ross Mal-lioux.
Corn and the Swaffars filed a joint motion for partial summary judgment. They asserted that appellee’s complaint for reformation was time-barred and that, without reformation, the documents upon which appellee relied could not establish an enforceable lien. In support of their motion, they attached the affidavit ofjohn Tweedle, a registered land surveyor, and copies of the assignment from Bank ofYellville. They argued that there was no evidence that Bank of Yellville was mistaken as to the legal description contained in the deed of partial release; that there was no evidence that the promissory note upon which appellee relied had been endorsed to appellee or was in appellee’s possession; and that this action was filed outside the period of limitations. They also argued that there was no evidence that the correction mortgage had ever been assigned to appellee. They contended that appellee did not have a lien on the property but that, if it did, it would be inferior to that possessed by Corn. Appellants further argued that appellee had not submitted sufficient evidence to establish that it was the holder of a note.
In the July 7, 2003 order granting appellee’s motion for summary judgment and denying Corn’s motion for summary judgment, the court made the following findings:
9. That due to various scrivener’s errors as hereinabove set out on the First Federal Mortgage, First Federal Correction Mortgage, RTC Assignment and Bank ofYellville Partial Release Deed, the Court finds said errors, occurred by mutual mistakes of the parties thereto and did not properly reflect their true intent; that the aforesaid errors were contrary to the desires and intents of the parties hereto to create the first lien in favor of the Plaintiff herein on the 1.95 acres fronting Mabelvale Pike owned by the Separate Defendants, Joe Thomas Swaffar and Sandra Carol Swaffar, husband and wife; that it was the intent of the parties thereto notwithstanding their mutual mistake to provide to the Plaintiff a first Mortgage hen on 1.95 acres fronting Mablevale Pike owned by the Separate Defendants, Joe Thomas Swaffar and Sandra Carol Swaffar, husband and wife, herein, said property being correctly described as follows, to-wit:
Commencing at the Southwest corner of the Northwest 1/4 Southeast 1/4, Section 3, Township 1 South, Range 13 West; thence North 17°26'24"E 569.80 feet; thence South 88°24'07"E 189.18 feet to the point of beginning; thence South 88°24'07"E 418.82 feet to the West boundary of Mabelvale Pike; thence along said West boundary S 09°18'00"W 209.52 feet; thence North 88°30'00"W 400.05 feet; thence North 04°07'44"E 208.52 feet to the point of beginning comprising 1.95 acres, more or less.
The Court finds it was the intent that Bank of Yellville release its 1985 mortgage hen and that RTC assign the Mortgage and Correction Mortgage to Plaintiff on the property described in this paragraph.
That the Separate Defendants, Joe Thomas Swaffar and Sandra Carol Swaffar, husband and wife, have continued, since the acquisition of the aforesaid property, to be in possession of the above described property and made payments to the Plaintiff and the Plaintiffs predecessor upon said Mortgage until default as hereinafter set out; that by reason of the above scrivener’s error and the mutual mistake on the part of the parties hereto and the parties to the instruments as delineated, the First Federal Mortgage (Instrument No. 86-36060), First Federal Correction Mortgage (Instrument No. 88-53641),RTC Assignment (Instrument No. 90-34142), and Bank of Yellville Partial Release Deed 86-35810) should be reformed and construed to reflect the proper description covering 1.95 acres as set out in this paragraph.
The court found the Swaffars to be in default and granted judgment to appellee against them in the amount of $213,557.10, and $6,045 as attorney’s fees, plus interest, and found that appellee has a first lien on the property. The court ordered the property to be sold if the judgment was not paid within ten days. In granting the relief, however, the court did not reform the documents but interpreted them, stating:
IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED AND DECREED BY THIS COURT that due to the various scrivener errors as hereinabove set out on the First Federal Mortgage, First Federal Correction Mortgage, RTC Assignment and Bank ofYellville Partial Release Deed, said errors being made through the mutual mistake of the parties hereto and contrary to the desires and intentions of the parties hereto, the aforesaid description of the property as set out in the above described instruments be, and the same is hereby interpreted to reflect the more particular description reflecting the parties true intentions, described as follows, to-wit:
Commencing at the Southwest corner of the Northwest 1/4 Southeast 1/4, Section 3, Township 1 South, Range 13 West; thence North 17°26'24"E 569.80 feet; thence South 88°24'07"E 189.18 feet to the point of beginning; thence South 88°24'07"E 418.82 feet to the West boundary of Mabelvale Pike; thence along said West boundary S 09°18'00nW 209.52 feet; thence North 88°30'00"W 400.05 feet; thence North 04°07'44"E 208.52 feet to the point of beginning comprising 1.95 acres more or less.
On September 12, 2003, the court entered a final judgment finding the Swaffars to be in default on their obligation to Corn, granting Corn judgment in the amount of $156,648 plus $15,000 in attorney’s fees and ordering foreclosure if the judgment was not paid within ten days. The court found that Corn’s mortgage on the property is second to that held by appellee on the 1.95 acres and first as to the adjoining lands. This appeal followed.
Appellants do not argue that the trial court erred in deciding this case by summary judgment. Instead, they assert that, as a matter of law, summary judgment should have been granted to Corn for the following reasons: (1) appellee failed to produce evidence of an assignment of the Swaffars’ 1986 First Federal of Malvern mortgage and note to appellee, First Federal Bank of Arkansas, F.A.; (2) appellee failed to produce the original 1986 promissory note given by the Swaffars to First Federal of Malvern; (3) appellee failed to properly identify the property that was the subject of the 1986 mortgage given by the Swaffars to First Federal of Malvern; (4) appellee’s action is barred by the statute of limitations and by laches. Our disposition of the first two points on appeal renders it unnecessary to decide the third and fourth points.
Summary judgment is to be granted only when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. State Farm Mut. Auto. Ins. Co. v. Henderson, 356 Ark. 335, 150 S.W.3d 276 (2004). Normally, on a summary-judgment appeal, the evidence is viewed most favorably for the party resisting the motion and any doubts and inferences are resolved against the moving party, but in a case where the parties agree on the facts, we simply determine whether the appellee was entitled to judgment as a matter of law. Aloha Pools & Spas, Inc. v. Employer’s Ins. of Wausau, 342 Ark. 398, 39 S.W.3d 440 (2000). When parties file cross-motions for summary judgment, as was done in this case, they essentially agree that there are no material facts remaining, and summary judgment may be an appropriate means of resolving the case. Cranfill v. Union Planters Bank, N.A., 86 Ark. App. 1, 158 S.W.3d 703 (2004).
The filing of cross-motions for summary judgment, however, does not necessarily mean that there are no material issues of fact in dispute. In some cases, a party may concede that there is no issue if his legal theory is accepted and yet maintain that there is a genuine dispute as to material facts if his opponent’s theory is adopted. Wood v. Lathrop, 249 Ark. 376, 459 S.W.2d 808 (1970); Cranfill v. Union Planters Bank, N.A., supra; Chick-a-Dilly Props., Inc. v. Hilyard, 42 Ark. App. 120, 856 S.W.2d 15 (1993); Moss v. Allstate Ins. Co., 29 Ark. App. 33, 776 S.W.2d 831 (1989); Heritage Bay Prop. Regime v. Jenkins, 27 Ark. App. 112, 766 S.W.2d 624 (1989). In Cranfill v. Union Planters Bank, supra, we held that a case may appropriately be decided by summary judgment when the parties proceed on the same legal theory and the same material facts in making cross-motions for summary judgment. Here, the parties have proceeded on different legal theories. Appellee contends that, when the documents on which it relies were drafted, the parties were mutually mistaken as to the proper legal description of the 1.95 acres and that the court should interpret those documents in keeping with the parties’ intent. Appellants, however, assert that those property descriptions were legally insufficient and, therefore, appellee’s lien (if any) is secondary to that held by Corn. Accordingly, we hold that this case was not amenable to decision by summary judgment and that it should have gone to trial.
The Assignment
This case must also be reversed and remanded for two additional reasons, both of which involve a failure of proof on the part of appellee. Relying on our decision in Beal Bank, S.S.B. v. Thornton, 70 Ark. App. 336, 19 S.W.3d 48 (2000), appellants argue that appellee failed to establish that it is the assignee of the Swaffars’ June 17, 1986 note and mortgage to First Federal of Malvern. Appellee asserts that appellants failed to raise this issue to the trial court and cannot, therefore, raise it on appeal. We disagree. At the hearing on the motions for summary judgment, Corn’s attorney challenged the assignment.
Appellee filed a copy of the May 2, 1990 assignment by RTC, as receiver for First Federal of Malvern, to First Federal Savings of Harrison. There is nothing in the record, however, to reflect an assignment from First Federal Savings of Harrison to appellee. Appellee states in its brief that First Federal Savings of Harrison changed its name to First Federal Bank of Arkansas, F.A. (appellee). That fact, however, is not documented in the record. Under the holding in Beal Bank, that failure of proof should have prevented the entry of summary judgment for appellee. In Beal Bank, we explained the importance of the plaintiffs proof of assignment as follows:
Unless the defendant admits the assignment under which the plaintiff claims, the plaintiffhas the burden of proving that there was a valid assignment in order to show that he or she has a cause of action. 6 Am. Jur. 2d Assignments § 191 (1999). “Whether an assignment of contract rights has occurred is determined by the intent of the parties; the assignor must intend to transfer a present interest in the subject matter of the contract.” Id. at section 135. The intent of parties to an assignment is a question of fact derived from the instruments and the surrounding circumstances; therefore, whether an assignment occurred is a question of fact for the trial court. Id. at sections 136 and 190.
The assignee’s burden of proving the existence of the assignment is met by evidence that is satisfactory in character to protect the defendant from another action by the alleged assignor, and which shows that there was a full and complete assignment of the claim from an assignor who was the real party in interest with respect to the claim.
Id. at section 193.
70 Ark. App. at 341, 19 S.W.3d at 51.
Given the clear requirement that appellee prove that it has a valid assignment of the documents on which it relies, its failure to do so warrants reversal of the summary judgment.
The Original Promissory Note
Additionally, appellants argue that appellee’s failure to produce the original June 17, 1986 promissory note given by the Swaffars to First Federal of Malvern should have barred the entry ofjudgment for appellee. Although appellee attached a copy of this note to its amended complaint, it did not produce the original, which it admitted was in its possession. It has long been held that there can be no judgment on a note when it is not introduced into evidence and its absence is not explained. See McKay v. Capital Resources Co., 327 Ark. 737, 940 S.W.2d 869 (1997); 12 Am. Jur. 2d Bills and Notes §§ 658, 677, 679 (1997). Because appellee did not produce the original of this note or sufficiently explain its absence, it faded to establish its status as a holder entitled to sue on it.
For these reasons, we order the summary judgment for appellee reversed and this case remanded for trial.
Reversed and remanded.
Robbins and Griffen, JJ., agree.
Other parties with claims against the Swaffars’ property were brought into this action as third-party defendants. Those parties have not asserted any claims to the property superior to those held by appellee and Corn. David Henry, trustee of the JTS Irrevocable Trust, intervened in this action because the Swaffars conveyed their property to him. | [
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John Mauzy Pittman, Judge.
Appellant, Deborah Ann Roland, and appellee, Jeffery Neil Roland, were divorced by a decree of the Lonoke County Chancery Court in May 1981. In the divorce decree, appellant was awarded custody of the parties’ twenty-one-month-old child and appellee was ordered to pay appellant $100.00 per month in child support. In March 1992, appellant filed a motion to increase appellee’s child support obligation, and appellee responded with a motion to change custody. Following a hearing, the chancellor denied both motions. On appeal, appellant argues that the chancellor erred in failing to find a change in circumstances and in not following the family support chart.
At the hearing, evidence was introduced that appellee’s weekly take-home pay is $249.50; in 1981, he made $125.00 in take-home pay per week. Appellee testified that he has remarried and has two children from his second marriage. His wife does not work. He also testified that he pays approximately $700.00 per month for his Ford truck, his furniture, and his mobile home. On cross-examination in regard to his request for a change of custody, however, appellee testified that he could adequately support the child on his present income.
Appellant testified that she has also remarried and does not work. Her husband is employed and provides medical insurance for the child. She testified that she has not had an increase in child support since 1981, when the child was twenty-one months old. Appellant stated that the costs associated with rearing the child (who was thirteen at the time of the hearing) have increased. She stated that his clothes cost more; it costs more to feed him; and his activities, such as baseball, are more expensive. She also testified that, every winter, the child is ill with allergies and respiratory problems.
At the conclusion of the hearing, the chancellor denied appellee’s request for a change of custody. With regard to the issue of support, he stated:
We’re working with very, very limited resources here. Seems to me like — of course, I can understand there’s probably some bitterness here. You attorneys probably weren’t able to even talk with each other about this, I don’t know, but there has to be significant changes in income and other things.
Mr. Roland does have two other children that he’s also supporting now, and this has been over a period of twelve years, limited income. Mrs. Archer stated that she —there’s no reason why she’s not able to work. And I know that you can’t raise a child on a Hundred Dollars a month, but I don’t know what I can do. I can’t make something out of nothing.
In the order, the chancellor stated that he was denying appellant’s motion for an increase in child support because “it would be an undue burden upon the [appellee] to pay an additional amount of child support, based upon the Affidavit of Financial Means entered herein.” The chancellor ordered appellee to be responsible for one-half of the child’s medical expenses not covered by insurance. Appellee has not cross-appealed from that part of the order denying his request for a change of custody.
Appellant argues on appeal that the chancellor erred in refusing to find a material change in circumstances; in failing to refer to the family support chart; and in not making a specific written finding as to why he deviated from the family support chart.
A change in circumstances must be shown before a court can modify an order regarding child support, and the party seeking modification has the burden of showing a change in circumstances. Reynolds v. Reynolds, 299 Ark. 200, 771 S.W.2d 764 (1989); Ross v. Ross, 29 Ark. App. 64, 776 S.W.2d 834 (1989). The assumption is that the chancellor correctly fixed the proper amount in the original divorce decree. Id.
In determining whether there has been a change in circumstances warranting adjustment in support, the court should consider 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. Thurston v. Pinkstaff, 292 Ark. 385, 730 S.W.2d 239 (1987).
Reynoldsv. Reynolds, 299 Ark. at 202,771 S.W.2d at 765. There is no hard and fast rule concerning the specific nature of the changed circumstances. Arkansas Dep’t of Human Servs. v. Brown, 35 Ark. App. 11, 811 S.W.2d 326 (1991).
A chancellor’s determination as to whether there are sufficient changed circumstances to warrant an increase in child support is a finding of fact, and this finding will not be reversed unless it is clearly erroneous. See Freeman v. Freeman, 29 Ark. App. 137, 778 S.W.2d 222 (1989).
We agree with appellant that the chancellor erred in refusing to find a change in circumstances since the entry of the 1981 divorce decree. Although it does not compel a determination of changed circumstances, we note that a change of ten percent in the payor’s income can be sufficient to support such a finding. Ark. Code Ann. § 9-14-107(a) (Supp. 1991). At the hearing, appellee admitted that his take-home pay of $125.00 per week has doubled since the parties’ divorce. His affidavit of financial means showed his weekly take-home pay to be $249.50. Additionally, appellant testified that the costs of rearing the child have increased during the eleven years between the date of the divorce decree and the hearing on the petition to increase support. She testified that the child has additional expenses resulting from his participation in school activities. She further testified that the child has medical problems; only a percentage of these expenses are covered by the health insurance provided for the child by appellant’s husband.
In her brief, appellant also argues that, because a change in circumstances was proven, the chancellor erred in failing to modify the child support in accordance with the family support chart (which is $54.00 weekly, based on appellee’s take-home pay). Appellant also argues that the chancellor was required to give a fuller explanation for his deviation from the chart.
The controlling law on what is required to determine the amount of child support is set forth in Ark. Code Ann. § 9-12- 312(a)(2) (Supp. 1991):
In determining a reasonable amount of support, initially or upon review to be paid by the noncustodial parent, the court shall refer to the most recent revision of the family support chart. It shall be a rebuttable presumption for the award of child support that the amount contained in the family support chart is the correct amount of child support to be awarded. Only upon a written finding or specific finding on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the support chart, shall the presumption be rebutted.
“Reference to the chart is mandatory, and the chart itself establishes a rebuttable presumption of the appropriate amount which can only be explained away by written findings stating why the chart amount is unjust or inappropriate.” Black v. Black, 306 Ark. 209, 214, 812 S.W.2d 480, 482 (1991). The chancellor, in his discretion, is not entirely precluded from adjusting the amount as deemed warranted under the facts of a particular case. Waldon v. Waldon, 34 Ark. App. 118, 806 S.W.2d 387 (1991). The presumption may be overcome if the chancellor determines, upon consideration of all the relevant factors, that the chart amount is unjust or inappropriate. Id.
In its per curiam In Re: Guidelines for Child Support Enforcement, 305 Ark. 613, 804 S.W.2d XXIV (1991), the supreme court set out the factors the court should consider in determining whether an amount specified by the chart is unjust or inappropriate:
In adopting this per curiam, the Court creates a rebuttable presumption that the amount of child support calculated pursuant to the most recent revision of the Family Support Chart is the amount of child support to be awarded in any judicial proceeding for divorce, separation, paternity, or child support.
It shall be sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to the Family Support Chart is correct, if the court enters in the case a written finding or specific finding on the record that the amount so calculated, after consideration of all relevant factors, is unjust or inappropriate. The court may grant less or more support if the evidence shows that the needs of the dependents require a different level of support.
Relevant factors to be considered by the court in determining appropriate amounts of child support shall include:
1. Food;
2. Shelter and utilities;
3. Clothing;
4. Medical expenses;
5. Educational expenses;
6. Dental expenses;
7. Child care;
8. Accustomed standard of living;
9. Recreation;
10. Insurance;
11. Transportation expenses; and
12. Other income or assets available to support the child from whatever source.
Additional factors may warrant adjustments to the child support obligations and shall include:
1. The procurement and/or maintenance of life insurance, health insurance, dental insurance for the children’s benefit;
2. The provision or payment of necessary medical, dental, optical, psychological or counseling expenses of the children (e.g. orthopedic shoes, glasses, braces, etc.);
3. The creation or maintenance of a trust fund for the children;
4. The provision or payment of special education needs or expenses of the child;
5. The provision or payment of day care for a child; and
6. The extraordinary time spent with the noncustodial parent, or shared or joint custody arrangements.
Id. at 616-17, 804 S.W.2d at XXVI-XXVII.
In this per curiam, the supreme court stated: “In determining requested modifications of child support orders entered prior to the effective date hereof, the trial court should consider the totality of the present circumstances of the parties and avoid modifications that would work undue hardship on the parties or any persons presently dependent thereon.” 305 Ark. at 618, 804 S.W.2d at XXVIII. In this case, the chancellor stated that, based upon appellee’s affidavit of financial means, it would be an “undue burden” to order him to pay more child support. In that affidavit, appellee listed his monthly bills and his children born of his second marriage. According to the per curiam quoted above, it was certainly permissible for the chancellor to consider the effect of an increase in appellee’s child support obligation on his ability to pay his bills and to support his other children.
Nevertheless, from the chancellor’s remarks at trial and the order denying appellant’s petition for increased support, there is no indication that the chancellor referred to the family support chart. Given the presumption that the chart amount is reasonable, it is incumbent on the chancellor to give a fuller explanation of his reasons for rejecting the chart. See Cochran v. Cochran, 309 Ark. 604, 832 S.W.2d 252 (1992), where the chancellor had observed at the conclusion of the hearing that, if he followed the family support chart, the amount of child support would double, a result which he considered to be unreasonable. The supreme court reversed on appeal, stating that the chancellor’s observation that the chart amount of child support was unreasonable is not an adequate explanation for his deviation from the family support chart. It stated: “If appellate review is to have much significance, a greater account of why the chart amount is inappropriate under the circumstances of the case is essential.” Id. at 607, 832 S.W.2d at 254.
On appeal, this court has the power to decide chancery cases de novo on the record before us, but in appropriate cases, we also have the authority to remand such cases for further action. See Black v. Black, 306 Ark. 209, 812 S.W.2d 480 (1991). We therefore remand this case to the chancellor for a determination of child support in accordance with Ark. Code Ann. § 9-12-312 and the guidelines for child support enforcement. Because this case requires a remand, we leave it to the discretion of the chancellor to decide whether a more detailed and explanatory opinion will suffice to meet the requirements of the supreme court’s per curiam order and Ark. Code Ann. § 9-12-312(a) (2) or whether further proof from the parties is necessary on the applicable factors and other relevant matters. We affirm that part of the order denying appellee’s petition for a change of custody and ordering appellee to be responsible for one-half of the child’s medical needs not covered by insurance.
Affirmed in part; reversed and remanded in part.
Robbins, J., agrees.
Mayfield, J., concurs. | [
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Wendell L. Griffen, Judge.
A jury convicted appellant Bobby Morris of Class B felony nonsupport and sentenced him to serve forty years in the Arkansas Department of Correction. He argues that the trial court erred in failing to grant his motion to dismiss and his motion for a directed verdict because the statute of limitations for a Class B felony is three years, and he was convicted for arrearages that date back more than three years from the time he was charged with nonsupport. Because the Arkansas Supreme Court has squarely rejected appellant’s arguments, we affirm.
On November 5, 2002, appellant was charged with Class B felony nonsupport. On June 17, 2003, the State filed an amended information, more specifically alleging that appellant owed over $25,000 in child support as a result of not paying support from May 1, 1986, through June 1, 2003. On the morning of his trial, appellant filed a written motion to dismiss the charge, arguing that calculation of the arrearages exceeded the three-year statute of limitations for prosecution of a Class B felony.
Immediately before trial, appellant orally raised his motion to dismiss. He asserted that if arrearages were calculated for the three-year period prior to the filing of the information, he could be charged, at the most, with a Class C felony. The State countered that the offense of nonsupport is an ongoing offense. The trial court denied the motion. Appellant later moved for a directed verdict based on the same argument. The trial court denied appellant’s motion and subsequently denied his renewal, which was also based on the same argument. Appellant was convicted of the Class B felony and was ordered to serve forty years at the Arkansas Department of Correction. This appeal followed.
Appellant asserts that the three-year statute of limitations that applies to Class B felonies limits the State to calculating arrearages to those arrearages that occurred no more than three years prior to the date he was charged. He asserts that the legislature has carved out no exceptions to the three-year statute of limitations that governs Class B felonies. Thus, he maintains that his charges should have been reduced to a Class C felony. Appellant reasons that classifying nonsupport as a continuing offense allows the State to wait until a person’s arrearages reaches the level of the charging class that the State desires, ranging from a misdemeanor to a Class B felony. He notes that, according to the State’s argument, he could have been charged in 1996 with a Class A misdemeanor, in 1997 with a Class C felony, and in 1998, with a Class B felony.
The State contends that the legislative intent that nonsupport should be considered a continuing offense is seen in the fact that the legislature chose to elevate the class of offense based upon the total amount of arrearages. Otherwise, a person could never be guilty of Class B nonsupport unless they failed to pay a one-time payment of $25,000. Further, the State cites to the Commentary to the Arkansas Code and to dicta in which the Arkansas Supreme Court lists nonsupport as an example of a continuing offense. See Original Comment to Ark. Code Ann. § 5-1-110 (Repl. 1997); see also Hagen v. State, 318 Ark. 139, 883 S.W.2d 832 (1994) (stating in dicta that nonsupport is a continuing offense).
Whether to grant a motion to dismiss a criminal prosecution lies within the discretion of the trial court. Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994). A motion for a directed verdict is a challenge to the sufficiency of the evidence. Miles v. State, 350 Ark. 243, 85 S.W.3d 907 (2002). On appeal from the denial of a motion for a directed verdict, this court reviews the evidence in a light most favorable to the State, and affirms if substantial evidence supports the jury verdict; only evidence supporting the guilty verdict need be considered. Id.
Arkansas Code Annotated § 5-26-401(a)(2) (Supp. 2003) provides that a person commits the offense of nonsupport if he fails to provide support to his legitimate child who is less than eighteen years old. This statute further provides that nonsupport is a Class B felony if the person owes more than $25,000 in past-due-child support, and is a Class C felony if the person owes between $10,000 and $25,000 in past-due child support. A prosecution for a Class B or Class C felony must be brought within three years after the felony is committed. Ark. Code Ann. § 5-l-109(b)(2) (Supp. 2003).
For statute of limitations purposes, a single, noncontinuing offense is committed when every element of the crime occurs. Ark. Code. Ann. § 5-l-109(e)(l). However, a continuing offense is committed for statute of limitations purposes at the time a course of conduct or the defendant’s complicity therein is terminated. Ark. Code. Ann. § 5-l-109(e)(l). A continuing offense is seen in the legislative purpose to prohibit a continuing course of conduct. Ark. Code. Ann. § 5-l-109(e)(l). The test to determine if a situation involves a continuing offense is whether the individual acts are prohibited, or whether the prohibited conduct is the course of action which the individual acts consti tute. McClennan v. State, 337 Ark. 83, 987 S.W.2d 668 (1999). Ifit is the former, then each act is a separate offense; if it is the latter, the offense is a continuous offense. Id.
The State asserts that the issue of whether nonsupport is a continuing offense is an issue of first impression. However, the Arkansas Supreme Court has recently addressed this issue, and in so doing, has squarely held that nonsupport is a continuing offense. See Hampton v. State, 357 Ark. 473, 183 S.W.3d. 148 (2004). The Hampton defendant filed a motion in limine, seeking to limit the time period in which the State could charge him with nonsupport and seeking to limit the amount of time used to calculate the amount of child support owed. Id. The Hampton defendant argued that, because he was charged with Class D felony nonsupport, and because prosecutions for Class D felonies must be brought within three years of the date the offense is committed, he could only be charged with arrearages dating no earlier than three years prior to the date the information was filed. Id. The State countered that the offense of nonsupport was a continuing offense. The trial court in Hampton denied the defendant’s motion. The Arkansas Supreme Court affirmed the trial court’s ruling, holding that nonsupport is a continuing offense, and that the prosecution was timely because the information was filed within three years after the offense was committed. Id.
The Hampton case compels affirmance in the instant case. The only difference between the Hampton case and this case is the appellant here was charged with a Class B felony instead of a Class D felony. However, the same statute provides a three-year statute of limitations for Class B, C, and D felonies. Ark. Code Ann. § 5-l-109(c). Here, appellant was originally charged on November 5, 2002. An amended information was filed on June 17, 2003, alleging that appellant failed to pay support from May 1, 1986, through June 1, 2003. Therefore, the offense, a continuing offense, was committed as ofjune 1, 2003, and the charge was filed within three years of the date the offense was committed. Accordingly, the trial court did not err in denying appellant’s motion to dismiss or his motion for a directed verdict.
Affirmed.
Neal, J., agrees.
Roaf, J., concurs.
Appellant states that the appropriate three-year period is June 1999 through June 2002. However, appellant was charged in June 2003, not June 2002. Even if the statute of limitations began when the information was originally charged, in November 2002, the prosecution still began within three years from the date the information was charged, and therefore, was timely.
At trial, appellant also argued in his motion for a directed verdict that the State failed to show that his failure to pay was willful. However, he asserts only the statute-of-limitations argument on appeal.
We note that the Hampton court stated that it held in McClennan v. State, supra, that nonsupport is a continuing offense. This statement appears to be in error, because the statement in McClennan that nonsupport was a continuing offense was dicta. The issue in McClennan was whether three instances of performing a terroristic act should be charged as a single, continuing offense. In stating the law governing continuous offenses, the McClennan court noted that nonsupport under § 5-26-401 was a continuing offense. Therefore, we do not cite McClennan as direct authority that nonsupport constitutes a continuing offense. | [
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Olly Neal, Judge.
Appellant Paul Hendrickson appeals from a decision of the Drew County Circuit Court dismissing his claim to recover funds expended for the benefit of the appellees Randall Carpenter and Nita Carpenter. On appeal, he alleges that the trial court erred when it found that his complaint was barred by a three-year statute of limitations.
The facts of this case are as follows. On June 4, 1992, appellant agreed to guarantee an $80,000 loan by Union Bank and Trust Company of Monticello to the appellees. A year and a half later, on December 27, 1993, appellant purchased the note from the bank. Following appellant’s purchase of the note, the appellees continued to make payments on the note until June 14, 1999. On December 10, 2002, appellant filed a complaint seeking to be reimbursed $136,150. In her reply, appellee Nita Carpenter acknowledged that appellant was the guarantor on the note but disputed the amount due. However, in his reply, appellee Randall Carpenter made a 12(b)(6) motion to dismiss asserting that (1) the statute of limitations had run and (2) appellant was attempting to enforce “an alleged collateral suretyship promise without a sufficient writing nor a signature of the person to be charged evidencing a contract.” The trial court found that appellant was seeking contribution and that the matter was controlled by a three-year statute of limitations, and therefore, appellant’s cause of action was barred. From that decision comes this appeal.
Rule 12(b)(6) of the Arkansas Rules of Civil Procedure provides that:
Every defense, in law or in fret, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may, at the option of the pleader, be made by motion:
(6) failure to state facts upon which relief can be granted.
In reviewing a trial court’s decision on a motion to dismiss under Ark. R. Civ. P. 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Martin v. Equitable Life Assurance Soc’y, 344 Ark. 177, 40 S.W.3d 733 (2001). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Id. Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Arkansas Dep’t of Envtl. Quality v. Brighton Corp., 352 Ark. 396, 102 S.W.3d 458 (2003). We look to the underlying facts supporting an alleged cause of action to determine whether the matter has been sufficiently pled. Id.
In his complaint, appellant alleged the following:
3. This is a claim brought by Plaintiff to recover certain funds advanced to or for the benefit of Defendants Carpenter.
5. Plaintiff paid the sum of $80,000 to Union Bank & Trust Company pursuant to his guaranty of a note owing by Defendants Carpenter to Union Bank. Attached is a copy of Plaintiff s check used to satisfy said note together with copies of receipts given by the bank in connection with this payment.
In an October 1,2003, order, the trial court applied Rule 12(b)(6) and found that the complaint alleged a cause of action. In the order the trial court also found that:
This is an action by a surety who claims that he paid an obligation which he and defendants owed and is entitled to contribution.
Pursuant to Hazel, et al v. Sharum, et al., 182 Ark. 557, S.W.2d 315 (1930), in a case similar to the one at bar, the Arkansas Supreme Court stated all of the signers of the note in question were joint obligors. They were joindy and severally liable to the bank for the whole amount of the note. Each was liable for the whole amount. The right of action for contribution accrues when one surety pays more than his share of the common liability. In most cases it is said that the contract for contribution between sureties is one which the law implies for their mutual protection and indemnity. Nearly all cases agree, however, that no cause of action arises until payment by one of their common debtors is made and the statute of limitation begins to run against an action to enforce contribution at the time of such payment; and the three-year statute of limitations is held applicable. Cooper v. Rush, 138 Ark. 602, 212 S.W. 94 (1919)[.] In this case, the promissory note allegedly executed between Union Bank & Trust Company and the obligors is eligible. However, for purpose [sic] of this proceeding, it is the assumption that the promissory note was executed by defendants as makers and plaintiff as guarantor. It is the Court’s opinion that each signer of the note is an obligor to the bank. There is no allegation of an assignment of the promissory note by the bank to the plaintiff. Thus, the Court assumes that defendant [sic] ceased making payments to plaintiff on June 14,1999. The record shows that this action was filed December 10, 2002. The right of action for contribution is an implied obligation, one which is not in writing between the parties hereto and the Court finds that the three-year limitation statute controls. Accordingly, this action is barred by the three-year statute of limitations.
Appellant argues that he was seeking subrogation as an accommodating party and not contribution. Although this court gives great deference to findings of fact by the trial court due to the trial court’s superior position to determine credibility issues, it does not give such deference to matters of law, in that the trial court stands in no better position to apply the law than this court. Acord v. Acord, 70 Ark. App. 409, 19 S.W.3d 644 (2000).
A guarantor is one who makes a contract, which is distinct from the principal obligation, to be collaterally liable to the creditor if the principal debtor fails to perform. First Commercial Bank, N.A., v. Walker, 333 Ark. 100, 969 S.W.2d 146 (1998). A party is entitled to contribution when he is jointly and severally liable on a note, and subsequently pays the entire obligation. See Wroten v. Evans, 21 Ark. App. 134, 729 S.W.2d 422 (1987). Subrogation is an equitable remedy that rests upon principles of unjust enrichment and attempts to accomplish complete and perfect justice among parties. Morris v. Arkansas Dep’t of Fin. & Admin., 82 Ark. App. 124, 112 S.W.3d 378 (2003). A party’s subrogation rights arise when one not primarily bound to pay a debt, or remove an incumbrance, nevertheless does so; either from his legal obligation, as in the case of a surety, or to protect his own secondary right; or upon the request of the original debtor, and upon the faith that, as against the debtor, the person paying will have the same sureties for reimbursement as the creditor had for payment. Welch Foods v. Chicago Title Ins. Co., 341 Ark. 515, 17 S.W.3d 467 (2000).
The trial court erred when it relied on Hazel v. Sharum, supra. The parties in Sharum, supra, were co-makers on the note at issue. Co-makers on a note are jointly and severally liable. See 12 Am. Jur.2d Bills and Notes § 439 (1997). In the present case, if we treat the facts alleged in the complaint as true and view them in the light most favorable to appellant, then appellant was a guarantor. As guarantor, appellant was not jointly and severally liable for the payment of the appellees’ note. When appellant paid the note, he assumed the position of the bank. See Blackford v. Dickey, 302 Ark. 261, 789 S.W.2d 445 (1990) (stating that the person paying will have the same sureties for reimbursement as the creditor had for payment). Therefore, the loan papers between appellees and the bank constituted evidence of the agreement between appellant and appellees. Thus, a written agreement existed between the parties. Arkansas Code Annotated section 16-56-111 (a) (Supp. 2003) provides that actions to enforce a written obligation shall commence within five years after the cause of action shall accrue. The trial court erred when it found that appellant was seeking contribution and that the cause of action was barred by a three-year statute of limitations. Therefore, we reverse and remand the decision of the trial court.
Reversed and remanded.
Hart, Vaught, Baker and Roaf, JJ., agree.
Griffen, J., dissents. | [
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Robert J. Gladwin, Judge.
Lisa Anne Gilbert was charged with attempted capital murder and filing a false report. A Yell County jury found her guilty of attempted first-degree murder and filing a false report, and she was sentenced to an aggregate term of thirty years’ imprisonment. She raises two points on appeal: (1) the trial court erred in denying her motion to suppress certain statements she made to police; (2) her conviction for attempted first-degree murder should be reversed because she established the defense of renunciation. We affirm.
At the suppression hearing, Lieutenant David Kimball with the Yell County Sheriffs Department testified that he advised appellant of her Miranda rights prior to interviewing her. On the rights form, twenty-year-old appellant indicated that she had graduated from high school and could read and write. Kimball testified that her statement was taped and transcribed. He stated that, during the interview, appellant asked, “Do I need a lawyer or something?” to which he responded, “Are you asking for a lawyer?” Kimball testified that appellant did not answer and that the matter never came up again during the interview.
In denying her motion to suppress, the trial court found that appellant had waived her right to counsel when she signed the Miranda rights form and that her question was not a request for a lawyer and was not a request to stop the interview. The trial court noted that Kimball inquired as to whether she wanted a lawyer and that she did not make the request even though she had ample opportunity to do so.
At trial, Kimball testified that on March 5, 2002, someone called at approximately 9:00 p.m. to report that a child had been abducted. Kimball went to the residence of Brian Blevins to speak to appellant about her missing child, two-year-old S.D.W. Kim-ball testified that appellant did not appear to be distraught at all. He also testified that appellant’s story was different from the time she called the police to when the police arrived to speak with her in person. At first, appellant told Kimball that she stopped her car to pick up the baby’s bottle, which had fallen behind the seat, and that people pulled in behind her car and took the baby. Appellant’s second version was that some people ran her off the road, stuck a gun in her back, and took the child. Kimball testified that he noticed that appellant did not call S.D.W. by name until approximately twenty minutes after he arrived and that she had been referring to him as simply “the child” or “the kid.” Kimball stated that appellant was taken to the police station and was interviewed by him twice. During the first interview, appellant repeated her inconsistent stories. She was interviewed by another officer, who persuaded her to tell him where the police could find S.D.W. When Kimball subsequently interviewed appellant for the second time, he told her that S.D.W. had been found. Kimball testified that appellant stayed with her initial story that S.D.W. had been abducted but then changed her story again. According to Kimball, appellant said that she took S.D.W. to the overlook on Mount Nebo and that she walked with him to the end of the overlook and then turned around and walked back to the car. Kimball stated that appellant told him that she took S.D.W. to the end of the overlook a second time and threw him over the side and did not look back. Kimball testified that S.D.W. was located thirty-five feet and six inches down from the railing. He also stated that he did some research and determined that the temperature that night was twenty-eight degrees at 2:00 a.m. Kimball testified that appellant’s disclosure as to where she thought S.D.W. could be found was instrumental in finding him in such a short time.
Detective Gary Morrison testified that appellant told him two different stories about how her son came to be missing, with a slight variation from what she told Kimball, in that appellant said she stopped to put the baby’s shoe back on and not to retrieve his bottle. Morrison noted that appellant appeared calm but confused. He stated that after appellant revealed S.D.W.’s location, he and other officers went to Mount Nebo to search for the boy. Morrison testified that he walked out on the first overlook and that he thought he saw something, so he called the child’s name. Morrison heard something, so he went down a steep, rocky hill and through a briar thicket. Morrison testified that when he picked S.D.W. up, the child clung to him.
Sheriff Bill Gilkey testified that he interviewed appellant between the two interviews conducted by Kimball. Gilkey stated that he began talking about S.D.W. and explained how cold it would get later in the night and how it was imperative that they find him soon. Gilkey stated that he asked her where they might find S.D.W. and that, although she at first said she did not know, appellant finally said that the abductors might have taken him to Mount Nebo. Gilkey stated that he asked whether S.D.W. was at Mount Nebo and where, precisely. Gilkey testified that appellant said that S.D.W. was at Mount Nebo and could be found at one of the overlooks. Gilkey stated that S.D.W. was found almost immediately after appellant told him where the child could be found.
After the State rested its case, appellant moved for a directed verdict. Her attorney said, “I move for a directed verdict to the offense of capital murder. I don’t believe the State has met the burden of proof that she attempted to commit capital murder and she took any actions which were in the furtherance of her desire to commit capital murder or that her actions were actually for the purpose of committing capital murder.” The trial court denied her motion.
Appellant then took the stand in her own defense. Appellant testified that on the day in question, she called her employer and claimed to be sick when she was actually just under a lot of stress. She testified that she went to her mother’s house and asked her mother to keep S.D.W. that night but that her mother could not and there was no one else to keep him. Appellant testified that she took S.D.W., picked up a friend, and went to her former boyfriend’s house to talk about a disagreement they had several months prior. The former boyfriend would not talk to her, so she left while the others stayed and watched movies. She stated that she drove around with S.D.W. She was upset, and S.D.W. was cranky. Appellant stated that she went to Mount Nebo to think and be alone. She said that she tried everything but could not get S.D.W. to stop crying. Appellant stated that she took him to the end of the lookout and sat him up on a post. She was holding his hands, but he was fussing and squirming. Appellant said that the next thing she knew, S.D.W. was not there. She insisted that he fell and that she did not throw him. Although she heard S.D.W. below, it was dark and she did not think she could get down to him, so she left the mountain. She went back to her former boyfriend’s house and told him to call the police. On the stand, appellant admitted that she lied to the police but insisted that she wanted to find S.D.W. without getting herself into trouble.
Dr. Brad Diner, a psychiatrist, and Dr. Dean Whiteside, a psychologist, opined that appellant suffered from a depressive disorder but that appellant knew right from wrong. Dr. Diner testified, however, that appellant’s emotional state clearly affected her thinking and behavior.
Appellant renewed her directed-verdict motion on the basis that the State had not satisfied the elements that she intended to commit the offense and that she acted purposefully. The trial court denied her motion.
Appellant argues that the trial court erred in denying her motion to suppress certain statements she made to Kimball. She contends that she had already told Kimball what happened but that he continued to drill her. She concedes that her question concerning a lawyer was not unequivocal but that she did the best she could to convey to Kimball that she was concerned about continuing to talk to him without a lawyer present.
When reviewing a trial court’s ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances and will reverse the trial court’s decision if it was clearly against the preponderance of the evidence. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). Any conflict in the testimony of different witnesses is for the trial court to resolve. Id. A statement made while in custody is presumptively involuntary, and the burden is on the State to prove by a preponderance of the evidence that a custodial statement was given voluntarily and was knowingly and intelligently made. Id.
In determining whether a confession was voluntary, the following factors are considered: age, education and intelligence of the accused, lack of advice of his constitutional rights, length of detention, the repeated and prolonged nature of the questioning, or the use of physical punishment. Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004). Appellant was twenty years old, had completed high school, and could read and write. At the outset of her recorded interview, which began at 2:42 a.m. and ended at 3:10 a.m., Kimball reminded appellant of the rights she had received earlier that night and read them to her again, offering to explain anything she did not understand. Appellant indicated that she understood her rights and had not been pressured or coerced to give a statement.
A defendant may cut off questioning at any time by unequivocally invoking her right to remain silent. Whitaker v. State, 348 Ark. 90, 71 S.W.3d 567 (2002). When the right to remain silent is invoked, it must be “scrupulously honored.” Id. No law enforcement officer shall question an arrested person if the person has indicated in any manner that he does not wish to be questioned, or that he wishes to consult counsel before submitting to any questioning. Ark. R. Crim. P. 4.5. A defendant may also waive an invocation of his right to silence. Whitaker, supra. Specifically, answering questions following a statement that attempts to invoke the right to remain silent may waive that right by implication. Id. The accused may change his mind and decide to talk to law enforcement officials. Id. An equivocal request for counsel does not obligate the police to cease questioning and seek clarification but interrogation may continue until the suspect clearly requests counsel. Moore v. State, 321 Ark. 249, 903 S.W.2d 154 (1995).
Appellant said to Kimball, “Do I need a lawyer or something?” Appellant’s question did not constitute an unequivocal invocation of her right to remain silent. Kimball, acting with an abundance of caution, inquired of appellant whether she was asking for a lawyer. By doing so, Kimball clearly gave appellant an opportunity to clarify whether she had indeed invoked her right to remain silent. Instead, appellant did not answer Kimball’s question. Kimball testified at the suppression hearing that if appellant had answered “yes,” he would have ended the interview. Under these circumstances, Kimball was not obligated to cease questioning because appellant’s question, and subsequent unresponsiveness, was not sufficiently definite to invoke her right. Moreover, appellant continued answering questions and did not mention a lawyer again during the interview. Considering the totality of the circumstances, we cannot say that the trial court erred in denying appellant’s motion to suppress.
Next, appellant contends that in giving information to the police as to the child’s whereabouts, she abandoned her effort to commit the offense of murder. She admits that she could have been more forceful in her renunciation but maintains that she effectively conveyed the location of her son to police, despite her depressive mental state. Appellant maintains that her conviction should be reversed because she renounced her attempt to commit the offense.
A person attempts to commit an offense if he purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as he believes them to be. Ark. Code Ann. § 5-3-201 (a)(2) (Repl. 1997). It is an affirmative defense to a prosecution under § 5-3-201 (a) (2) or (b) that the defendant abandons his efforts to commit the offense, thereby preventing its commission, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose. Ark. Code Ann. § 5-3-204(a) (Repl. 1997). Once the State meets its burden of proving the elements of an offense beyond a reasonable doubt, the burden shifts to the defendant to prove an affirmative defense by a preponderance of the evidence. Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001). The question as to which way the evidence preponderates is primarily a jury question. See Walker v. State, 308 Ark. 498, 825 S.W.2d 822 (1992).
Appellant failed to preserve her challenge to the sufficiency of the evidence because her directed-verdict motions did not address the lesser-included offense of criminal attempt to commit first-degree murder, of which she was convicted. See Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996). Because she did not question the sufficiency of the evidence for the lesser-included offense, either by name or by apprising the trial court of its elements, her argument is waived. See id.
In any event, if appellant’s sufficiency argument had been preserved, we would have considered only that evidence that supported the verdict, and we would have found it to be substantial. See Banks v. State, 315 Ark. 666, 869 S.W.2d 700 (1994). Moreover, there was evidence to support the jury’s rejection of appellant’s defense. Appellant’s attempt to commit first-degree murder was completed when she left her baby at Mount Nebo, which was long before her purported renunciation of the offense.
Affirmed.
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Robert J. Gladwin, Judge.
Appellant Christine Sherman Iva ..appeals the Crittenden County Circuit Court’s ruling that appellee Earley Wallace acquired tide to two lots located in Earle, Arkansas, by adverse possession. We reverse and dismiss.
In 1960 Sam and Armetta Davidson acquired the lots in question by warranty deed. Upon Armetta’s death, title to the property vested in Sam. Sam died in 1974 and left a will bequeathing one half of his interest in the property to Howard Wallace, Jr., his step-grandson, and one half to Christine Wallace Sherman, his step-granddaughter. On August 20, 1974, Christine and Howard filed an affidavit for the collection of small estates by distributees with the Crittenden County Probate Court, stating that the property of Sam Davidson was divided one half to Christine and one half to Howard.
In 1976 Howard and Earley Morton, who were unmarried at the time, took possession of the property. In 1981 Howard and Earley were married and continued to live on the property. Howard died in December 2002, and Earley filed a petition to quiet title to the land.
Christine neither paid any taxes nor requested rent from her brother. She stated that she asked her brother if he needed help paying taxes and that he declined. Christine testified that the reason she did not ask for rent and did not inspect the property was because her brother was living there. She also testified that she and Earley disliked one another and that she had once stated that she was going home to Detroit and was never coming back because of problems with Earley. When asked why she did not try to file a petition to get Earley off the property, Christine testified it was because of her brother; he wanted Earley there, so she did not want to do “anything like that.” Christine testified that Earley sent a letter in 1994 requesting that she sign documents to remove her name from the property. Christine said she called her brother and told him, “I’m not going to take my name off the property. My step-father willed it to both of us, and I’m not removing my name.” Christine also testified that “at no time did my brother ever give me any notice whatsoever that he was holding this property adverse to my interest.”
Earley testified that she had lived on the property since 1976. She testified that she and Howard made numerous repairs and substantial improvements to the house but that Christine did not contribute any money. Earley said that when she and Howard took possession of the property, there was no agreement between them and Christine as to who would own and possess the property. She said that Christine did not give them permission to live there and that they did nothing to conceal their possession of the property from Christine.
Earley also testified that in 1994 Howard went to legal services and had some papers prepared and sent them to Christine to get her name removed from the property. She stated that Christine called and talked to Howard and that Howard told her afterwards that Christine was angry and that if he was the “short liver,” Christine was going to give Earley trouble about the property. Earley admitted that she and Howard both knew that Christine owned one half of the property, but they went ahead and fixed up the property. She said that Howard sent letters asking Christine to turn over her interest in the property. Earley admitted, however, that she did not know if Howard ever gave Christine any notice that he was holding the property adverse to her interest.
The trial court held that [“regardless of whether [Howard], the co-tenant of Christine Sherman, exercised possession of the property hostile to Christine Sherman and regardless of whether [Howard] exercised possession of the property with the intent to hold against [Christine,] the court finds that Earley Wallace, who was not a co-tenant, exercised possession of the property hostile to [Christine] and with the intent to hold against [Christine] for over seven years. The court finds that the relationship between [Christine] and [Earley] was hostile and that [Earley] had sent notice in 1994 of her intent to claim ownership of the property.”] The trial court concluded that Earley had established ownership of the property by adverse possession.
The dispossession of the cotenant is a question of fact, and we will not reverse the trial court’s decision absent a showing that it was clearly erroneous. See Graham v. Inlow, 302 Ark. 414, 790 S.W.2d 428 (1990). In Utley v. Ruff, 255 Ark. 824, 502 S.W.2d 629 (1973), the supreme court set forth the general principles of law concerning adverse possession:
Tide to land by adverse possession does not arise as a right to the one in possession; it arises as a result of statutory limitations on the rights of entry by the one out of possession. Possession alone does not ripen into ownership, but the possession must be adverse to the true owner or record tide holder before his tide is in any way affected by the possession, and the word “adverse” carries considerable weight.
Id. at 826, 502 S.W.2d at 631.
In Mitchell v. Hammons, 31 Ark. App. 180, 792 S.W.2d 333 (1990), we discussed adverse possession as it relates to a claim against a cotenant:
In examining the issue of adverse possession we begin with the familiar rule that the possession of one tenant in common is the possession of all. A tenant in common is presumed to hold in recognition of the rights of his cotenants. It has been said that the presumption continues until an actual ouster is shown. Since possession by a cotenant is not ordinarily adverse to other cotenants, each having an equal right to possession, a cotenant must give actual notice to other cotenants that his possession is adverse to their interests or commit sufficient acts of hostility so that their knowledge of his adverse claim may be presumed. In order for the possession of one tenant in common to be adverse to that of his cotenants, knowledge of his adverse claim must be brought home to him directly or by such notorious acts of an unequivocal character that notice may be presumed. The statutory period of time for an adverse possession claim does not begin to run until such knowledge has been brought home to the other cotenants. There is no “hard and fast” rule by which the sufficiency of an adverse claim may be determined; courts generally look to the totality of the circumstances and consider such factors as the relationship of the parties, their reasonable access to the property, kinship, and enumerable [sic] other factors to determine ifnon-possessory cotenants have been given sufficient warning that the status of a cotenant in possession has shifted from mutuality to hostility. When a tenant in common seeks to oust or dispossess the other tenants and turn his occupancy into an adverse possession and thus acquire the entire estate by lapse of time under the statute of limitations, he must show when knowledge of such adverse claim or of his intention to so hold was brought home to them, for it is only from that time that his holding will be adverse. When . . . there is a family relation between cotenants, stronger evidence of adverse possession is required.
Id. at 184-185, 792 S.W.2d at 335 (citations omitted).
In Ueltzen v. Roe, 242 Ark. 17, 411 S.W.2d 894 (1967), the supreme court listed the following as factors to be considered in determining whether possession is adverse: (1) possession of the property; (2) payment of taxes; (3) enjoyment of rents and profits; (4) making of improvements; (5) payments of insurance made payable to the possessor; (6) holding possession of lands for a long period of time, suchas thirty years; (7) selling timber; (8) executing leases; (9) assessment of property in one’s own name; (10) selling crops; (11) the execution, delivery, and recording of a deed by one cotenant that purports to convey the entire property; (12) generally treating property as one’s own. However, the court noted that it was necessary to look at the evidence as a whole:
What in one case would be sufficient as a warning might not be enough in another. Relationship of the parties, their reasonable access to the property and opportunity or necessity for dealing with it, their right to rely upon conduct and assurances of the tenant in possession, kinship, business transactions direcdy or incidentally touching the primary subject matter, silence when one should have spoken, natural inferences arising from indifference — these and other means of conveying or concealing intent may be important in a particular case, but not controlling in another; for after all what a designated plaintiff or defendant had in mind when he or she consummated an act or engaged in a course of conduct often depends upon the personal equation and the individual’s method of expression. There can, therefore, be no “open and shut” rule by which purpose can be measured.
Id. at 21-22, 411 S.W.2d at 896, (citing Linebarger v. Late, 214 Ark. 278, 216 S.W.2d 56 (1948)).
Christine argues that the trial court erred in concluding that Earley adversely possessed the lots in question. She contends that because possession by one cotenant is not ordinarily adverse to another cotenant, there were not sufficient acts of hostility to put her on notice that Earley was holding the property adversely. Christine also argues that the court erred in concluding that the equities of the case were weighed in favor of Earley because of the improvements she made.
Earley relies on the case of Martin v. Certain Lands in Izard County, 9 Ark. App. 181, 656 S.W.2d 713 (1983), to support her position that she obtained the property by adverse possession. In Martin, L.A. Harvell had sole possession of a 120-acre tract of land for sixty-nine years. There was an agreement with his four brothers, who were cotenants, that if he paid off a debt on the land he could have it. Harvell paid the debt and remained in sole possession of the property. Harvell’s sister never objected to his living there and selling the timber. According to Harvell’s nephew, nothing had been done concerning a division of the property for fifty years because there would be controversy and they wanted to avoid a “showdown.” Further, Harvell paid the taxes on the property for sixty-nine years. In affirming the trial court’s finding that Harvell had established ownership by adverse possession, this court held that there was recognition on the part of the cotenants of the hostile character of Harvell’s possession.
The case at bar is clearly distinguishable from Martin. First, there was no clear recognition that Earley’s possession was hostile. She first entered the land with Howard, and her possession was permissive. After she and Howard married and Howard died, her interest in the property was derived from Howard’s interest, so she was a cotenant. Further, Christine indicated that she did not attempt to oust Earley because her brother wanted her there and Christine would not do “anything like that.” Again, this shows permissive possession.
Earley’s argument that the letter sent in 1994 is proof of her intention to hold the property adversely to Christine’s interest is misplaced. Earley’s testimony was that Howard sent the letter, not her. Further, there is no testimony whatsoever that the letter stated an unequivocal intent to hold the property adversely to Christine’s interest. Both parties testified that the letter was a request for Christine to relinquish her interest in the property, which Christine declined. A request to relinquish one’s interest in property does not in and of itself constitute a statement of intent to hold against the recipient’s interest.
Earley also argues that her paying taxes and making improvements on the property were evidence of her hostile intent to hold the property. The trial court stated that these improvements caused the equities to be weighed in favor of Earley. In Graham v. Inlow, supra, the supreme court stated:
It is well settled that a tenant in common has the right to make improvements on the land without the consent of his cotenants; and, although he has no lien on the land for the value of his improvements, he will be indemnified for them, in a proceeding in equity to partition the land between himself and cotenants either by having the part upon which the improvements are located allotted to him or by having compensation for them, if thrown into the common mass.
302 Ark. at 417, 790 S.W.2d at 430 (citations omitted).
We agree with Christine and hold that the trial court’s ruling was clearly erroneous. As a cotenant, Earley was required to prove that she gave actual notice to Christine that her possession of the property was adverse and hostile to Christine’s interest, or to prove there were acts sufficiently hostile in nature that notice could be presumed. The request for Christine to relinquish her interest in the property, the payment of taxes, and the making of improvements to the land were not such notorious acts of an unequivocal character as to put Christine on notice that Earley was holding the property adversely to her interest.
For the reasons stated above, we hold that the circuit court’s judgment was clearly erroneous. Accordingly, we reverse and dismiss.
Reversed and dismissed.
Robbins and Vaught, JJ., agree. | [
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John B. Robbins, Judge.
Appellant Bank of Litde Rock (BLR) appeals the order of the Jefferson County Circuit Court that denied its motion for a deficiency judgment against appellees Casadyne Corporation and Bill C. Casto, individually andas president of Casadyne Corporation. Casto borrowed money from BLR and secured the debt by a first mortgage on certain real property. After Casto defaulted on the loan, a foreclosure suit was instituted, but prior to trial, the property was privately sold. The sale proceeds that BLR received at closing did not cover the outstanding balance of the mortgage loan. Casto resisted BLR’s subsequent attempt to recover a judgment for the deficiency. The trial judge found that BLR had elected its remedy by participating in a private sale and releasing its mortgage lien that excluded Casto from protecting his interests. Therefore, the circuit court denied the motion for a deficiency judgment. We reverse and remand.
The facts are not in dispute, and we recite them here to properly consider the merits of the appeal. In June 1998, BLR extended a loan in the amount of $150,000 to Casto secured by a mortgage Hen on property located in Pine Bluff, Arkansas. Under the terms of the promissory note, Casto was obligated to make thirty-five monthly installment payments, and a balloon balance being due in June 2001. BLR chose not to renew the note, Casto was unable to pay, and BLR instituted a foreclosure complaint on October 10, 2001, naming Casto and Casadyne Corporation as defendants. The mortgage and promissory note set forth BLR’s rights upon default which included, in addition to remedies under applicable law, the right to demand payment of reasonable attorney’s fees and collection costs.
In December 2001, after learning that Casto had deeded the property to Commercial R.E., Inc. (CRE), BLR filed an amended foreclosure complaint to add CRE as a defendant. Trial was set for October 31, 2002. A few hours prior to trial, CRE received a $150,000 offer on the property from Mr. Doyle Kittler, and a copy of the offer was provided to BLR. By letter, BLR requested the trial court to hold the trial in abeyance, in anticipation that the sale would go forward “and an order of dismissal would be entered in the next few weeks.” The letter was copied to appellant Casto and CRE.
Prior to closing, BLR provided information for a closing statement, reporting that the amount owed to BLR for principal and interest was $142,860.32, and later reporting that additional monies were due under the terms of the promissory note and mortgage for reimbursement of a reasonable attorney’s fee. This increased the amount due at closing to $148,333.03. This figure was provided to Casto, but Casto was not present at the sale closing, which was conducted on November 15, 2002.
In preparation for closing, the final figure BLR provided CRE as the amount owed on the note was $148,575.85. CRE informed BLR that it incurred additional closing costs that would cause the net sales proceeds actually realized to be less than the $150,000 sales price and that it would not have the additional funds to pay the difference to BLR. Nevertheless, the sale proceeded and BLR collected $140,136.98 and released its mortgage so that the sale could be closed. No notice about the deficiency was given Casto prior to the closing.
On November 21, 2002, BLR filed a motion with the trial court in the pending foreclosure action seeking a deficiency judgment against Casto in the amount of $8,300.12. At BLR’s request, the trial judge dismissed defendant CRE from the foreclosure suit on December 9, 2002. A hearing on this matter was conducted on February 11, 2003, after which the trial judge concluded that BLR had elected its remedy and that BLR’s motion would be denied. The trial judge emphasized that Casto was given no notice of the shortfall and was thereby precluded from seeking contribution from CRE. He also noted that this private sale prevented a public sale “for sufficient funds to satisfy BLR.” This appeal resulted.
On appeal, BLR argues that it pursued two consistent remedies as was provided for in the promissory note and mortgage and also under Arkansas law; that the amounts due were not paid in full upon sale of the property; and that Casto and his corporation are liable to provide one satisfaction of this debt. Casto responds that BLR controlled the collection of the monies due; that it improperly excused CRE from paying the full amount owed on the mortgage debt out of the $150,000 sales price; that proceeding to foreclosure would have ensured a higher sales price and would have covered the debt in its entirety; and that he and his corporation were wrongly denied notice of any deficiency prior to closure.
Appellant BLR correctly states that the election-of-remedies doctrine bars more than one recovery on inconsistent remedies. Wilson v. Fullerton, 332 Ark. 111, 964 S.W.2d 208 (1998). The general rule as to election of remedies is that, where a party has a right to choose one of two or more appropriate but inconsistent remedies, and with full knowledge of all the facts and of his rights he makes a deliberate choice of one, then he is bound by his election and cannot resort to the other remedy. Coats v. Gardner, 333 Ark. 581, 970 S.W.2d 802 (1998). However, where the law furnishes a party with two or more concurrent and consistent remedies, he may prosecute one or all until satisfaction is had; but a satisfaction of one is a satisfaction of all. Haney v. Phillips, 72 Ark. App. 202, 35 S.W.3d 373 (2000). He may select and adopt one as better adapted than the others to work out his purpose, but his choice is not compulsory or final. Id.
A mortgagee may ordinarily pursue all of his remedies at once, or he may pursue them successively. See Haney, supra. State courts have uniformly held that holders of notes secured by a mortgage can both sue the maker of the note and also foreclose on the property, regardless of which action they pursue first, without offending the election-of-remedies doctrine. See id. citing Szego v. Anyanwutaku, 651 A.2d 315 (D.C. App. 1994) and Kepler v. Slade, 119 N.M. 802, 896 P.2d 482 (1995)). Arkansas law is consistent with these general rules. See Haney, supra. The circuit court erred in finding that the motion for a deficiency judgment in the foreclosure suit was barred under the election-of-remedies doctrine. See Haney, supra.
In the present appeal, the current owner (CRE) of the mortgaged premises desired to sell the property and voluntarily located a willing buyer. These parties agreed to a price of $150,000.00. Casto was on notice that a sale was about to close, and he believed that the amount he owed would be covered. Although a shortfall resulted to his detriment, Casto remained liable. In Pulaski Federal Savings & Loan Assn. v. Woolsey, 242 Ark. 612, 414 S.W.2d 633 (1967), the supreme court held that the original note obligors who conveyed mortgaged realty to third parties who assumed payment of the note, but without release from the payee of the original obligor’s primary obligation, remained liable for the deficiency on foreclosure. Despite Casto’s contention that the bank failed in its duty to give notice to him about the deficiency prior to closure, his citation to the Uniform Commercial Code is not persuasive. The remedies of the bank with respect to the real estate mortgage are not governed by the Code. See Bank of Bearden v. Simpson, 305 Ark. 326, 808 S.W.2d 341 (1991). The U.C.C. provides for the regulation of security interests in personal property and fixtures. Arkansas Iron & Metal Co. v. First Nat’l Bank of Rogers, 16 Ark. App. 245, 701 S.W.2d 380 (1985).
In sum, the trial court erred in finding that BLR was barred from seeking a deficiency judgment on the basis of an election of remedies.
Reversed and remanded.
Gladwin and Vaught, JJ., agree.
CRE is not a party to this appeal. Consequently, we do not address any rights or liabilities that may exist between appellees and CRE.
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Terry Crabtree, Judge.
Billy Dodson was found guilty in a jury trial of manufacturing methamphetamine, possession of drug paraphernalia with intent to manufacture methamphetamine, and possession of methamphetamine with intent to deliver. As a result of these convictions, he was sentenced to ten years in prison. Appellant contends on appeal that his convictions are not supported by substantial evidence and that the trial court erred in denying his motion to suppress. We hold that the evidence is sufficient to sustain his convictions, but we reverse the denial of the motion to suppress.
The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Dye v. State, 70 Ark. App. 329, 17 S.W.3d 505 (2000). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003). In determining whether a finding of guilt is supported by substantial evidence, we review the evidence, including any that may have been erroneously admitted, in the light most favorable to the verdict. Dye v. State, supra.
The evidence presented at trial, when viewed in the appropriate light, reflects that on June 20, 2002, Officer Jack Fitzhugh of the Cabot Police Department was dispatched to appellant’s home after appellant reported setting a fire in the front yard. Officer Fitzhugh extinguished the fire and observed that the burn pile contained items used to manufacture methamphetamine, such as three one-gallon cans of Coleman camp fuel, matchboxes with the striker plates removed, bottles of Drano, a bottle of Heet, assorted coffee filters, and blister packs from cold medication. Appellant volunteered that he was burning his wife’s methamphetamine lab because he was mad at her. Appellant was also heard to say that, if arrested, he would try to hang himself in jail and feign mental illness so that he would be found not guilty or only get probation. There was testimony that appellant’s hands were stained with iodine.
In short order, other officers arrived at the residence, and a search warrant was subsequently obtained. In a kitchen cabinet, officers found a mason jar containing methamphetamine oil, coffee filters that had a white powdery substance on them, a Pyrex dish, paint thinner, an empty bottle of Heet, and a coffee grinder. A mason jar was found in the hallway that contained iodine and was topped with a coffee filter that was stained with iodine. In the living room, they found camp fuel, an empty salt container, and Red Devil Lye.
In the master bedroom, the officers found a Kraft cheese box that contained .2809 grams of methamphetamine, coffee filters, and plastic corner bags. The closet in the master bedroom contained matchboxes with the striker plates removed, empty blister packs, a spatula, a Pyrex plate, tin foil, Heet bottles, hydrogen peroxide bottles, iodine, a box of syringes, freezer bags, alcohol swabs, packages of latex gloves, eight feet of tubing, and a bottle of brake fluid. On a night-stand, there was a mason jar that contained a bilayer solution. Another mason jar with saturated coffee filters was found on a filing cabinet. This cabinet contained yet another mason jar that had several Actifed pills inside. They also found a phone bill with appellant’s name on it.
In the southwest bedroom, more Actifed cold pills were found. A coffee filter containing a white powder and a professional brand of drain opener were found in a closet. In the north bedroom, across the hall from the master bedroom, there were extensive iodine stains on the floor. It was said that it was not a normal amount of stain one would expect from just one “cook.” There was a total of fifteen boxes of various brands of decongestant found in the house. Additionally, there was testimony relating the various items found to the process of manufacturing methamphetamine.
Kelly Dodson, appellant’s wife, testified that she married appellant in February 2002, some four months prior to the search. She said that they lived at the residence, which had been her home prior to the marriage, but she stated that she had left several days before the search because appellant had been physically and emotionally abusive to her. She testified that between March and June 2002, appellant cooked methamphetamine an average of four or five times a week; that he sold it to others or traded methamphetamine for auto parts; that he had once traded methamphetamine for a Ford Probe; that she had accompanied him to purchase the ingredients for making methamphetamine; and that there were times when others would bring the ingredients for appellant to make methamphetamine in exchange for their getting some of the methamphetamine he produced. Ms. Dodson admitted that she had used methamphetamine and had been “strung out” for quite some time, but that she was now a recovering addict. In a plea bargain, she had pled guilty to attempt to manufacture metham phetamine, possession of drug paraphernalia, and possession of methamphetamine, for which she was placed on probation for six years.
Appellant contends that the evidence is not sufficient to sustain his conviction for possession of drug paraphernalia with intent to manufacture methamphetamine because the State did not produce the evidence necessary to show actual or constructive possession. We disagree.
To convict one of possessing contraband, the State must show that the defendant exercised control or dominion over it. Abshure v. State, 79 Ark. App. 317, 87 S.W.2d 822 (2002). However, neither exclusive nor actual possession is necessary to sustain a charge of possessing contraband; rather, constructive possession is sufficient. Id. Constructive possession may be implied when the contraband is in the joint control of the accused and another; however, joint occupancy alone is insufficient to establish possession or joint possession. Id. The State must establish: (1) that the accused exercised care, control, and management over the contraband; and (2) that the accused knew the matter possessed was contraband. Id. Control and knowledge may be inferred from the circumstances where there are additional factors linking the accused to the contraband. Id. This control and knowledge can be inferred from the circumstances, such as proximity of the contraband to the accused; the fact that it is in plain view; and the ownership of the property where the contraband is found. Id.
In this case, appellant admitted that he was burning what he, himself, described as a methamphetamine lab. Items associated with the production of methamphetamine were scattered throughout the house where appellant resided, some of it in plain view, and a large cache was found in the master bedroom. Appellant’s hands were stained with iodine, an ingredient used in the manufacturing process, and there were obvious iodine stains on the floor in one of the bedrooms. Ms. Dodson testified that appellant manufactured methamphetamine on a regular basis and that he sold or traded the methamphetamine he produced. On this record, we cannot conclude that there is no substantial evidence to support the guilty verdict.
Appellant also contends that there is insufficient evidence to support his conviction for manufacturing methamphetamine because there was no HCL generator discovered in the search. There was, however, a substance identified as methamphetamine oil found in the house. There was testimony that the production of methamphetamine oil was the second-to-last stage in the process of manufacturing methamphetamine and that the final stage involved the application of an HCL generator to methamphetamine oil in order to reduce the methamphetamine in the oil to a powder, its useable form. There was further testimony that tubing and the substances necessary to make an HCL generator were among the items discovered.
The term “manufacture” means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis. Ark. Code Ann. § 6-64-101(m) (Repl. 1997). We have upheld methamphetamine-manufacturing convictions where not all of the ingredients necessary for the production of methamphetamine were present. In Cherry v. State, 80 Ark. App. 222, 95 S.W.3d 5 (2003), there was no lithium found, but we concluded that its absence was adequately explained by testimony that the substance was consumed during the manufacturing process. In Aydelotte v. State, 85 Ark. App. 67, 146 S.W.3d 392 (2004), anhydrous ammonia was not found, but we determined that there was sufficient evidence of manufacturing based on testimony that the manufacturing process had been completed and on evidence establishing that anhydrous ammonia had been used in the production process. Anhydrous ammonia was also missing in Smith v. State, 68 Ark. App. 106, 3 S.W.3d 712 (1999), yet we determined that the evidence was sufficient because the testimony showed that the manufacturing process had begun and that the appellant was expecting the delivery of the ammonia to complete the process. In the case at bar, although the manufacturing process was not finished, it had proceeded to all but the final stage, and the components necessary for completion had been assembled. We hold that there is substantial evidence to support appellant’s conviction for manufacturing methamphetamine.
Appellant’s final sufficiency argument concerns his conviction for possession of methamphetamine with intent to deliver. He contends that there is no evidence of the intent to deliver. Notwithstanding this argument, the methamphetamine that was discovered weighed .2809 grams, and there is a statutory rebuttable presumption that one in possession of a stimulant drug weighing in excess of200 milligrams possesses the contraband with the intent to deliver. Ark. Code Ann. § 5-64-401 (d) (Supp. 2003). Given the presumption and the testimony that appellant produced methamphetamine for sale, we cannot say there is no substantial evidence to support the conviction.
Appellant’s last point on appeal is that the trial court erred in denying his motion to suppress. This motion was made on the ground that the search was conducted at night although the warrant did not authorize a nighttime search. We find merit in this argument.
At the suppression hearing, it was disclosed that the officers first arrived at appellant’s residence shortly after 7:00 p.m. After Officer Fitzhugh conducted a protective sweep of the house, Detective John Dodd left at approximately 7:20 p.m. to obtain a warrant. The warrant was executed at 8:35 p.m.
The privacy of citizens in their homes, secure from nighttime intrusions, is a right of vast importance which is attested not only by our rules but also by our state and federal constitutions. Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991); Carpenter v. State, 36 Ark. App. 211, 821 S.W.2d 51 (1991). Our rules of criminal procedure provide that a search conducted at night, which is set between the hours of 8:00 p.m. and 6:00 a.m., is permitted only if the issuing magistrate finds the existence of one of three exigent circumstances found in Rule 13.2(c). Rule 13.2(c) also requires the search warrant to contain an appropriate order authorizing a nighttime search. Hale v. State, 61 Ark. App. 105, 968 S.W.2d 627 (1998); Carpenter v. State, supra. The search in this instance clearly violated the rule because it was conducted at night and the warrant contained no authorization for a nighttime search.
Even though the search violated Rule 13.2(c), our law provides that a motion to suppress should be granted only if the violation is considered “substantial.” Ark. R. Crim. P. 16.2(e). Illegal nighttime searches are typically regarded as substantial violations. See Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993); Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991); State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991); Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990); Zeiler v. State, 46 Ark. App. 182, 878 S.W.2d 417 (1994); Ramey v. State, 42 Ark. App. 242, 857 S.W.2d 828 (1993). In Brothers v. State, 261 Ark. 64, 546 S.W.2d 715 (1977), however, the court found no material departure from the rule where the search began at “about 8 p.m.” By contrast, in State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991), a search that began at 9:00 p.m. was considered a substantial violation. In this case, the warrant was executed at 8:35 p.m. This was well beyond the 8:00 p.m. deadline and is a lapse of time that cannot be regarded as negligible. We hold that the rule was substantially violated.
We must also consider whether the executing officers acted in good faith under United States v. Leon, 468 U.S. 897 (1987). Richardson v. State, supra. The test to be applied under Leon is an objective one, Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999), and the objective standard requires officers to have a reasonable knowledge of our rules. Richardson v. State, supra. The warrant did not authorize a search at night, and it appears that the officers did not even seek permission for a nighttime search. Yet, they executed the search after 8:00 p.m. We cannot say that the good-faith exception salvages this search. See State v. Martinez, supra.
Reversed and remanded.
Griffen and Baker, JJ., agree.
Appellant did not challenge the legality of this search in his motion to suppress.
Those circumstances are that the place to be searched is difficult of speedy access; that the objects to be seized are in danger of imminent removal; and that the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy. | [
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James R. Cooper, Judge.
The appellant in this criminal case was charged with first degree sexual abuse, a violation of Ark. Code Ann. § 5-14-108 (1987). After a jury trial, he was convicted of that offense and fined $5,000.00. From that decision, comes this appeal.
For reversal, the appellant contends that the evidence is insufficient to support his conviction; that the trial court erred in permitting a witness called by the State to testify concerning the appellant’s post-arrest silence; and that the trial court improperly denied his motion for a new trial. We find reversible error in the evidentiary point raised, and therefore we reverse and remand for a new trial.
Pursuant to Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), we consider the sufficiency of the evidence (including any erroneously admitted evidence) before considering other arguments. When the sufficiency of the evidence to support a criminal conviction is challenged on appeal, we review the evidence in the light most favorable to the appellee and affirm if the verdict is supported by substantial evidence. Dillard v. State, 20 Ark. App. 35, 723 S.W.2d 373 (1987). Substantial .evidence is evidence which induces the mind to go beyond mere suspicion or conjecture, and is of sufficient force and character to compel a conclusion one way or the other with reasonable certainty. Id.
We need not recite the facts in detail. There was testimony to show that the appellant fondled the breasts of the twelve-year-old victim while she was working with three other children processing honey on the appellant’s bee farm. There was also testimony concerning two later meetings in which the appellant told the victim that he would be dreaming of her, and kissed her. The appellant concludes that there was insufficient evidence to show that the appellant touched the victim for the purpose of sexual gratification, see Ark. Code Ann. § 5-14-108(a)(3) (1987), because the witnesses’ accounts of the later meetings between the appellant and the victim were contradictory and, he asserts, were therefore so inherently improbable as to fail to rise to the level of substantial evidence. We do not agree. The Arkansas Supreme Court rejected a similar argument in Parker v. State, 290 Ark. 94, 717 S.W.2d 197 (1986), holding that irregularities and inconsistencies in the testimony of three witnesses did not render the evidence insufficient to support a conviction. As was the case in Parker, supra, the inconsistencies in the testimony in the case at bar related to the details observed by the witnesses. The discrepancies, conflicts, and inconsistencies were for the jury to assess in weighing the testimony, id., and we hold that the appellant’s conviction is supported by substantial evidence.
We next address the appellant’s contention that the trial court deprived him’of due process of law by allowing the arresting officer to testify that, after the appellant was advised of his Miranda rights, the appellant remained silent when accused of the offense. The record shows that the arresting officer testified as follows during the State’s case-in-chief:
Q. Did Mr. LaRue agree to talk with you about this girl?
A. I asked Mr. LaRue if he’d like to talk about the accusations, yes, sir.
Q. And his response was?
A. He just started talking.
Q. And what did he say, sir?
A. Mr. LaRue told me that he owned and operated the Razorback Honey Bee farm in Dyer, and that at times he employs the local children to help him around his business. He told me that in the process of his business that sometimes he has to use a knife and he has to be careful around the children and that it was possible that he may have been working next to [the victim] and may have moved her over, by touching [the victim] on the shoulder. It was at that time that I told Mr. LaRue that I wasn’t talking about him touching [the victim] on the shoulder, that I was talking about him intentionally reaching his hands through the back of her arms, rubbing her around the breast area. I told him that I was talking about him telling [the victim] I’ll be thinking about you tonight, asking her do you want me to touch you, again. I told him that I was talking about him grabbing her by the arm and kissing her on the mouth. After I did this, Mr. LaRue appeared to me to become very despondent, he bowed his head, he started to speak a couple of times, at which time he got choked on his words. After waiting several minutes, I told Mr. LaRue that not only did I deal with victims, I also deal with suspects. And from my past experience, that his demeanor was leading me to believe that he was guilty. Again, he still sit [sic] there and didn’t say anything. I then told Mr. LaRue that from my experience, when I’m dealing with suspects, I’ve seen them become defensive, mad, they’ve pounded on my desk, they at least said I didn’t do it or I’m not guilty. I told Mr. LaRue, I said, you have not even told me that you didn’t do it. That wasn’t until after I said this that Mr. LaRue raised his head, slapped my desk, and said no, I didn’t do it.
Shortly thereafter, the appellant’s attorney approached the bench and requested a mistrial, which was denied.
The appellant argues that the above-quoted testimony was impermissible under Doyle v. Ohio, 426 U.S. 296 (1976), where the United States Supreme Court held that it is fundamentally unfair and a' denial of due process to allow a defendant’s silence at the time of arrest to be used to impeach an explanation subsequently offered at trial. We agree. See Stephens v. State, 290 Ark. 440, 720 S.W.2d 301 (1986). The arresting officer’s testimony in the case at bar not only mentioned the appellant’s post-arrest silence, it focused attention on his silence by offering the officer’s opinion that, in his experience with suspects, silence was indicative of guilt. Although it is possible for the State’s mention of the defendant’s silence to be harmless error if there is no prosecutorial focus by repetitive questioning or arguing on a defendant’s silence and where the evidence of guilt is overwhelming, Vick v. State, 301 Ark. 296, 783 S.W.2d 365 (1990), we cannot say the error in the case at bar was harmless. Here, the appellant denied touching the victim for purposes of sexual gratification, and testified that he had been working in close quarters and had merely moved the victim aside. Given this testimony, and the contradictions in the testimony of the witnesses called by the State, we conclude that the evidence of guilt was not overwhelming, and we reverse and remand. Our resolution of this issue makes it unnecessary for us to address the appellant’s assertion of juror misconduct because that issue is not likely to recur on retrial.
Reversed and remanded.
Mayfield and Rogers, JJ., agree. | [
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Judith Rogers, Judge.
This is a post-divorce action involving the disposition of the marital residence. In ordering the property sold, the chancellor allowed the appellant the actual costs incurred as a result of certain repairs she made to the residence, but also held the appellant liable to the appellee for rent for a specified “holdover” period. Based upon our de novo review of the record presented, we reverse.
The evidence discloses that the parties were divorced pursuant to a decree entered on August 12, 1983. The decree provided, in part, that title to the residence, which had previously been held as a tenancy by the entireties, would thereafter be held as a tenancy in common. The decree also indicated that the appellant would be responsible for making the monthly mortgage payment, and that she would continue to remain in the home until one of three contingencies was met. In the event of one or more of these contingencies, the house was to be sold and the net proceeds divided equally between the parties. One such contingency was accomplished on June 3, 1989, when the parties’ youngest child turned eighteen. On this date, the appellant retained possession and continued to occupy the residence.
On April 5, 1990, the appellee filed a cause of action seeking the sale of the marital residence, rental income from June 3,1989, and attorney’s fees. The appellant candidly admitted that the property was subject to sale; however, she argued, based upon the decision in Flucht v. Villareal, 28 Ark. App. 1, 720 S.W.2d 187 (1989), that she should be compensated for the value of improvements made to the residence and that the appellee was not entitled to rent as she was currently making the mortgage payment which inured to the benefit of both of them.
A hearing was held on April 17, 1990, in which the chancellor concluded that the appellant had failed to prove, with reasonable certainty, any enhanced value with regard to the improvements. It was the chancellor’s determination that the work that was done on the residence was in the form of repairs rather than improvements. The chancellor further found the appellee was not entitled to rent from June 3, 1989, to May, 1990, in that the appellant had been making the monthly mortgage payment which had reduced the loan thus benefiting both parties. On April 30, 1990, the appellant filed a motion for a new trial. In ruling on the motion, the chancellor attempted to balance the equities. He stated from the bench as follows:
. . . [I] am going to — to balance some equities on and I am going to treat this — make an accounting here, and give Mrs. Clifton credit for the $2,307.69 that she has made for the maintenance and upkeep of this home ... On the other hand, I’m going to grant Mr. Prevalett’s client relief — from June 3,1989, in awarding his client one half of the rent for twelve months from June 3, through May, of this year . . . I’m going to grant Mrs. Clifton off the top of the sale $2,307.69 . . . For her actual cost in maintaining and the upkeep of this residence. I’m also granting Mr. Clifton one half of what the Court finds to be a reasonable amount of rent on this house of $250.00 a month and half of $250.00 obviously is $125.00 and multiply that by twelve (12) and come up with $1,500.00. So I’m going to allow Mrs. Clifton $807.69 — that will be her net take off that she will get off the top of the sale of this house, and again, I’m trying to do equity.
Although the appellant presents five issues which she contends mandate reversal, we have consolidated those issues into two contentions regarding the sufficiency of the evidence to support the chancellor’s findings. The appellant’s arguments address the rights of cotenants with regard to the reimbursement for repairs and the entitlement to rental income. Specifically, the appellant contends that the chancellor’s decision denying her claim for the value of improvements she made to the marital residence is clearly erroneous and further that the chancellor clearly erred in ordering her to pay $ 125.00 in rent to the appellee from June 3, 1989 to May 1990. Because we find error in the decision below, we reverse.
One of the characteristics of a tenancy in common is that each tenant has the right to occupy the premises, and neither tenant can lawfully exclude the other. Graham v. Inlow, 302 Ark. 414, 790 S.W.2d 428 (1990). The occupation of one tenant in common is deemed possession by all. Cooper v. Cooper, 251 Ark. 1007, 476 S.W.2d 223 (1972). Possession by a tenant is presumed to be possession by all cotenants, Morgan v. Morgan, 15 Ark. App. 35, 688 S.W.2d 953 (1985).
The appellant first argues that the chancellor clearly erred in holding her liable to the appellee for rent from June 3, 1989 to May, 1990. We agree. When the parties were divorced in 1983, title was changed from a tenancy by the entireties to a tenancy in common. This was accomplished by operation of law and was specifically provided for in the decree. See Ark. Code Ann. § 9-12-317 (1987). We do not consider the meeting of the contingency in 1989, the youngest child reaching the age of eighteen, as an act of dispossession or ouster. Furthermore, neither the record nor the decree contains any indication that the appellant was in exclusive possession of the premises. It has been held that acts of possession, payment of taxes, enjoyment of rents and profits, and making of improvements by one tenant in common are consistent with cotenancy and do not necessarily amount to disseizen. Johnson v. James, 237 Ark. 900, 377 S.W.2d 44 (1964). Dispossession of a cotenant is a question of fact and a tenant in possession who does not exclude his cotenants is not liable for rent. Beshear v. Ahrens, 289 Ark. 57, 709 S.W.2d 60 (1986); Hamby v. Wall, 48 Ark. 135, 25 S.W. 705 (1886). Based upon the above cited law, the chancellor’s finding holding the appellant liable for rent is clearly erroneous.
In reviewing the remaining argument on appeal, we find the chancellor erred in awarding the appellant $2,307.69 for the actual costs she incurred in having repairs made to the residence. We do not find the chancellor’s decision that the expenses incurred were for repairs as opposed to improvements to be clearly erroneous. The chancellor simply considered the money the appellant spent as attributable to the upkeep of the residence.
As a part of this issue, the appellant argues that the court wrongfully excluded the testimony of C.L. McWaters, a real estate appraiser, with regard to the enhanced value of improvements. We disagree with the appellant’s characterization of the trial court’s ruling in that the record indicates the trial court did in fact allow the witness to testify on this particular issue. At the conclusion of the hearing, the court determined that the testi mony did not sustain the appellant’s contention as to the enhanced value of improvements, but the court did find the appellant was entitled to her actual costs expended for the repairs.
In examining the case law concerning improvements to the property, this court has specifically rejected the granting of actual costs to the party that made the improvements. Graham v. Inlow, 302 Ark. 414, 790 S.W.2d 428 (1990); Flucht, supra. The court further stated in Flucht that the proper test for valuing improvements is the increase in the value of the estate, not the actual costs.
Although we review chancery cases de novo on the record, the test on review of this case is not whether we are convinced that there is clear and convincing evidence to support the trial judge’s findings, but whether we can say that the trial judge’s findings were clearly erroneous. Freeman v. Freeman, 20 Ark. App. 12, 722 S.W.2d 877 (1987). While we will not overturn 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, 803 S.W.2d 496, (1991).
Here, the chancellor did not find the repairs added any significant value to the property or that they were permanent in character such that the property would have an enhanced permanent value. See Lawrence v. Lawrence, 231 Ark. 324, 329 S.W.2d 416 (1959). Therefore, we reverse the award of $2,307.69 for the actual costs of the repairs and note that when the property is sold, the net proceeds are to be divided evenly between the parties. We note that if the parties had contemplated the recovery of these costs they could have made some provision for this in the decree.
Based upon our de novo review of the record, we reverse the chancellor’s decision below, and accordingly hold the appellant not liable for rent and not entitled to the $2,307.69 previously awarded for her actual costs of repairs made to the marital residence.
Reversed.
Cooper and Danielson, JJ., agree. | [
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Judith Rogers, Judge.
The appellant, Sugarloaf Development Co., Inc. [hereinafter “Sugarloaf’], appeals from an adverse decision in the Cleburne County Chancery Court in an action in which it sought a reduction in its sewer betterment assessment. On appeal, Sugarloaf contends that the chancellor erred in finding that no material physical change had occurred on the property so as to warrant a reduction in its assessed value, and that the chancellor erred in denying its motion for a new trial. We find merit in both issues raised, and reverse and remand.
In August of 1973, Sugarloaf platted for development a forty-nine acre tract of land into eighty-one lots. The subdivision, located in Heber Springs, Arkansas, was named Cedarglades No. 2 [hereinafter “Cedarglades”], and was to be developed for residential purposes. Sometime in the late 1970’s or early 1980’s, the appellee sewer improvement district was formed, and after litigation, the property was assessed in 1985 in the amount of $184,183. Since its inception, only two lots have been sold in the subdivision and on December 23, 1986, Sugarloaf obtained an order from the county court reverting the property from lots and blocks to raw agricultural acreage. In the subsequent years, no reassessment was made by the district, and Sugarloaf filed this lawsuit against the district and its commissioners after receiving no response from the district to communications requesting a reduction in its assessment. In its complaint, filed on July 21, 1989, Sugarloaf contended that its betterment assessment for Cedarglades was presently excessive in light of the reversion to acreage, and asked that it be reduced. In his letter opinion of January 2, 1990, the chancellor agreed with Sugarloaf that the assessment was excessive, but denied relief partially on a finding that there had been no physical change in the property. As its first issue, Sugarloaf contests this finding made by the chancellor.
On appeal from a chancery court case, the appellate court considers the evidence de novo, and it will not reverse unless it is shown that the lower court’s decision is clearly contrary to a preponderance of the evidence. Kerby v. Kerby, 31 Ark. App. 260, 792 S.W.2d 364 (1990). A finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been committed. Duckworth v. Poland, 30 Ark. App. 281, 785 S.W.2d 472 (1990).
We agree with the chancellor that an assessment cannot be revised unless there is a material physical change in the property. This requirement is not statutory, but is found in the applicable case law. In Street Improvement District No. 74 v. Goslee, 183 Ark. 539, 36 S.W.2d 960 (1931), the supreme court held that assessments cannot be increased or diminished except for some physical change in the property since the original assessment. See also Paving District No. 2 of Harrison v. Johnson, 186 Ark. 1033, 57 S.W.2d 558 (1933). We disagree, however, with the chancellor’s application of this law to the facts of this case.
Carl Foust, president of Sugarloaf, testified that the company was formed to develop Cedarglades and other real estate. With regard to this subdivision, he said that initially roads were cut on the property, and that sewer lines had been constructed by the district on the western and eastern boundaries, leaving the central portion unserved. Mr. Foust testified, however, that the development had not been successful, citing the inability to sell but two of the eighty-one lots, despite heavy advertising, and the expense of development. He said that the property remained unimproved, as the roads were never paved, nor were utilities ever run into the subdivision. He also said that the subdivision was reverted to acreage, excepting the two lots that were sold and one road, due to the failure of the project and that Sugarloaf had been attempting to sell the property in two or three tracts, or as a whole. He stated that Sugarloaf s annual assessment was $6,078.04 and that he had twice written the district asking for a reduction in the overall assessment since the reversion, and that he had received no response. He acknowledged that the property had derived some benefit from the placement of the sewer lines, but stated that the property was still being assessed as a subdivision, which no longer exists. Finally, Mr. Foust related that the ad valorem taxes on the property had been decreased by fifty percent.
Warren Christopher, a local realtor, testified that he and his company had a listing at one time to sell the property. Mr. Christopher described the land as being unimproved, and “rough” and “rocky.” He related that of the two lots sold, one had a house situated on it with no services except city water. He said the difficulty in selling lots in the subdivision was due to the absence of streets and utilities. Noting what he deemed the “prohibitive” costs required to make this an ongoing subdivision, he said that they were unable to find a purchaser to develop the property. He said that the property ranged in value from $67,000 to $75,000.
Sugarloaf also presented the testimony of Ray Owen, Jr., who said that he had worked with thirty to thirty-five improvement districts both as an assessor and an attorney. He testified that a betterment assessment is arrived at by taking the difference of the before and after value of the property with the improvement. He related that numerous factors are considered in assessing the benefit accruing to property including the proximity to the sewer, the size and use of the land, topography, accessibility to public highways and whether there are improvements on the land. He said that generally it was normal for assessments to increase with development and growth or in the case of a split-off, just as it would decrease if an improvement were destroyed, such as if a house burned. He explained that annual assessments would pick up on these changes in property, and that he believed that the reversion of a subdivision to agricultural acreage was a factor that would be considered, and should work to lower the betterment assessment. As examples, Owen explained that a tract of land platted into lots was treated differently upon assessment than a tract without lots. He said that when property is subdivided, each lot is assessed separately, increasing the assessment from that which it was as a whole. When a portion of a tract is sold, called a split-off, he said that the total assessed benefits for the two tracts would be greater than it was as a single tract.
Mr. Owen further stated he was “surprised” at the current assessment, amounting to $3,760 an acre, as compared to similar property in the area. He testified that, for instance, the Wolford tract, which is adjacent to Cedarglades and consists of sixty-one acres, is valued at $84,498 by the county tax assessor with an assessed benefit of $22,000, or $369 an acre; the Stark tract, which is twenty acres and includes a residence, is valued at $75,420, the betterment assessment being $12,772 or $639 an acre; the twelve and a half acre Ogelsby tract, also including a residence, is valued at $96,105 and is assessed $11,713, for $938 an acre; and the Kelly tract, twenty acres, is valued at $27,500 with an assessment of $10,000, or $500 an acre. Owen placed the value of the land at $67,348 based on the county tax assessor’s figure, and opined that it was worth $82,000 with the improvement, yielding an assessment of $14,642.
Through its witnesses, the district maintained that it was without authority to reduce the assessment as no physical change had occurred. In this regard, the district asserted that the reversion was a change on paper only, and that the property, as far as physical outlay, was in the same condition as when the assessment was originally made.
Under Ark. Code Ann. § 14-90-602 (1987), assessments may be revised by an improvement district on an annual basis, either increasing or diminishing the assessment against particular pieces of property as justice may require. We think the record supports the chancellor’s view that the assessment here is currently excessive, but we also believe that the evidence reflects a material physical change in the property which would allow a reduction in the assessment.
Assessments are founded upon the special benefit conferred upon property by the improvement, and an assessment cannot be sustained if the amount is in excess of the benefits in the enhancement of the value of the property received by the owner from the improvement. See Kelley Trust Co. v. Paving District No. 46 of Fort Smith, 184 Ark. 408, 43 S.W.2d 71 (1931). In this case, the property was subdivided based on the intent that development would occur, and the original assessment was premised on the higher value of a subdivision, rather than acreage. However, in the past sixteen years only two lots have been sold, and the property remains unimproved with no real prospect for development. Due to the reversion to acreage, the subdivision no longer exists in its original form, thus materially changing the character of the property. If, as revealed by the testimony, assessments increase with growth and development, we fail to see why the converse would not apply when anticipated improvements never come to fruition. Under the particular circumstances of this case, we are persuaded that the reversion to acreage, as affecting the value of the land and the benefits accruing to it, constitutes a material physical change. We hold then that the chancellor’s finding to the contrary is clearly erroneous, yet we do note that the chancellor was clearly disturbed by this ruling since he had also found that the assessment exceeded the benefit to the property.
Sugarloaf next argues that the chancellor erred in denying its motion for a new trial. In this lawsuit, Sugarloaf was proceeding under Ark. Code Ann. § 14-90-604(a)(2) (1987), which provides:
If on the hearing it appears that all outstanding bonds, interest coupons, and other indebtedness of the district have been fully paid, or that to facilitate the liquidation of the district all of its bonds, coupons and other indebtedness have been acquired and are held by a trustee or by the commissioners of the district exclusively in trust for the property owners of the district, and if it further appears that the assessment is excessive and should be reduced, it shall be the duty of the court to reduce the assessment as equity and good conscience may require, taking into consideration the market value of the property involved, the benefits accruing to the property by reason of the improvement, the assessments against similar property in the district, the amount of other taxes and assessments against the property in other districts in which the land may be, and any other pertinent facts.
(Emphasis ours.) In his letter opinion, the chancellor concluded that in any event he was without authority to reduce the assessment based on testimony at trial that there was an outstanding bond indebtedness. Appellant filed a motion for a new trial, pointing to the disjunctive phrase emphasized above, and asking that the record be reopened for the taking of testimony on this issue. The trial court denied the motion. In oral argument, counsel for Sugarloaf conceded that evidence on this issue had inadvertently been omitted at trial, but urges that “in equity and good conscience” the chancellor should have allowed the reopening of the record for proof on this question. We agree.
The instant case is not unlike that of Bobo v. First Nat’l Bank of Hope, 244 Ark. 448, 425 S.W.2d 521 (1968). There, the supreme court reversed the chancellor’s finding of a fraudulent conveyance because the record contained no evidence that the transferor and transferee of the property were related in order to support the presumption of fraud. The court, however, also reversed on cross-appeal the chancellor’s denial of the appellee’s request to reopen the record for the introduction of testimony showing them to be mother and son.
A trial court has the discretionary authority to reopen the record for the presentation of important evidence which, through inadvertence, was not placed before the trier of fact. See H & M Realty Co. v. Union Mechling Corp., 268 Ark. 592, 595 S.W.2d 232 (1980). The principle involved is that evidence should be reopened where to do so would serve the interests of justice and cause no undue disruption of the proceedings or unfairness to the party not seeking to have it reopened. Id. As observed by the supreme court in Midwest Lime Co. v. Independence County Chancery Court, 261 Ark. 695, 551 S.W.2d 537 (1977):
However, a chancellor has the power to allow defects in proof to be supplied at any time. Such action is in his discretion and is not subject to review here except where his action is arbitrary, and the rights of some of the parties are improperly affected. When, in the judgment of the chancellor, the ends of justice will be served, this Court has said that it is his plain duty to allow further proof to come in.
Id. at 706, 551 S.W.2d at 542 (quoting Bradford v. Eutaw Savings Bank of Baltimore, 186 Md. 127, 46 A.2d 284 (1946) (citations omitted). Both below and on appeal, the parties have assumed that evidence on this point is necessary to appellant’s request for relief. Under the circumstances, we believe the chancellor abused his discretion in not reopening the record for the presentation of proof on this issue.
Reversed and remanded.
Danielson and Mayfield, JJ., agree.
Although the district argues that Ark. Code Ann. § 14-90-602 (1987) speaks in permissive terms, in that it may but is not required to revise assessments, we note that the district cannot insulate itself from inaction, as an excessive assessment results in a prohibited taking of property without just compensation. See Kelley Trust Co. v. Paving Improvement District No. 47 of Fort Smith, 185 Ark. 397, 47 S.W.2d 569 (1932).
Arkansas Code Annotated § 14-86-602 (1987) provides that where any improvement district shall have issued bonds or incurred indebtedness, the total amount of the assessed benefits shall never be reduced upon reassessment. There was evidence that the total amount of assessments for the district beginning in 1985 was $4,297,985 which had increased to $4,616,364 in 1989, leaving a difference of $318,399. | [
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Per Curiam.
John Stephen Hill has appealed from his conviction of two counts of possession of a controlled substance with intent to deliver, for which he was sentenced on July 19, 1990. At that time, Ark. R. Crim. P. 36.4 provided that when sentence was pronounced the trial judge had to personally advise the defendant of his right to assert ineffective assistance of counsel and the manner in which to do so.
The attorney general has filed this motion, stating that the record in this case fails to disclose that the trial court advised appellant of his rights with regard to the issue of ineffective assistance of counsel, and praying that the case be remanded with directions that the trial court now comply with the rule. In support of its motion, the State contends that Looney v. State, 32 Ark. App. 191, 798 S.W.2d 452 (1991), requires remand of all cases in which the trial court has failed to comply with that rule, so as to afford the accused an opportunity to assert a claim of ineffective assistance if he so desires. We do not agree that Looney so held.
In Looney, the appellant was not advised of the manner in which the issue of ineffective assistance might be raised, but he attempted to raise that issue for the first time on appeal. Under those circumstances, we held that the failure to comply with Rule 36.4 required that the case be remanded to the trial court, where the appellant’s claim of ineffective assistance could be asserted and disposed of as provided in that rule.
Here, on the other hand, appellant’s brief raises only the issue of whether the trial court erred in denying his motion to suppress evidence. He does not contend that the trial court erred in failing to comply with the rule in question or assert that he was, in fact, denied effective assistance of counsel. Nor has he filed a motion seeking remand. In the absence of some showing that appellant wishes to raise the issue of ineffective assistance, there is no demonstration that the trial court’s error resulted in prejudice.
Motion denied. | [
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John F. Stroud, Jr., Chief Judge.
After the trial court’s denial of their motions to suppress, appellants, Jeff Bristow and Dana Bradford, purportedly entered conditional pleas of guilty pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure. Bristow pleaded guilty to manufacture of a controlled substance, methamphetamine; he was sentenced to eight years in the Arkansas Department of Correction, to be followed by a ten-year suspended imposition of sentence. Bradford pleaded guilty to possession of a controlled substance, methamphetamine, and she was sentenced to five years’ probation. Appellants’ sole point on appeal is that the trial court erred in denying their motions to suppress. We hold that the appeal must be dismissed because the appellants failed to properly preserve their right to appeal pursuant to a conditional plea under Rule 24.3(b), and this court therefore does not have jurisdiction to hear the appeal.
Rule 24.3(b) of the Arkansas Rules of Criminal procedure provides:
With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.
In McCormick v. State, 74 Ark. App. 349, 354, 48 S.W.3d 549, 552 (2001) (substituted opinion on grant ofreh’g), this court held:
When Rule 24.3(b) is not strictly complied with, this court lacks jurisdiction to hear an appeal, even when the record reveals that the trial court attempted to enter a conditional plea. It has previously been held that Rule 24.3(b) requires a contemporaneous writing by the defendant, as well as proof that the conditional plea was approved by the trial court with the consent of the prosecuting attorney.
(Citations omitted.)
The addendum contains documents signed by both appellants entitled “Guilty Plea Statement” with the word “Conditional” handwritten above those words. Their attorney also signed these documents; however, the prosecuting attorney’s office did not sign these documents. Both of the judgment and commitment orders also indicate a conditional plea of guilty, but there is no indication in those documents that the prosecutor approved of the conditional-plea agreements.
In McCormick, supra, this court originally dismissed the appellant’s appeal for lack of jurisdiction on the basis that there was no consent from the prosecutor when her only involvement in the proceeding appeared to be her recommendation of a sentence and her opinion on an appeal bond. On grant of rehearing, this court held that assent was manifested by the prosecutor by appearing in court and acquiescing to the entry of the negotiated-plea agreement, and to hold otherwise “would be to give the State the benefit of the bargain while simultaneously relieving it of its obligation to consent.” Id. at 355, 48 S.W.3d at 552.
The present case is distinguishable from McCormick. Here, the only hearing contained in the record is the one on the motions to suppress the evidence found pursuant to the search warrant. There is no transcript in the record of a sentencing hearing; therefore, unlike in McCormick, this court cannot know if the prosecutor was present at sentencing or not. Inasmuch as the conditional-guilty pleas are not signed by the prosecutor, and we have no record before us that indicates acquiescence by the prosecutor to a conditional plea, we must dismiss appellants’ appeal for lack of jurisdiction due to the precedent mandating that we strictly construe the requirements of Rule 24.3(b).
Appeal dismissed.
Robbins and Crabtree, JJ., agree. | [
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Wendell L. Griffen, Judge.
This appeal is from the trial court’s refusing to impose a constructive trust on certain real property in favor of appellant Billie Tripp and the trial court’s reforming a deed to another piece of real property owned by appellant and another person. We affirm in part and reverse and remand in part.
Appellant and Cathy Miller acquired real property in Independence County, Arkansas, from Charles and Trula Wilson in 1994. Cathy Miller was the daughter of appellee C.L. Miller. The real estate contract did not specify the nature of the tenancy created. The deed conveyed the property to appellant and Cathy Miller as joint tenants with the right of survivorship. The transaction was an escrow agreement whereby the Wilsons deposited a warranty deed with the escrow agent (Citizens Bank) until the purchase price of $23,887.50 was paid.
Appellee and Cathy Miller owned approximately 220 acres of real property located in Stone County, Arkansas, as joint tenants with right of survivorship. Appellee conveyed his interest in the Stone County property to Cathy Miller on July 27, 1995. On August 18, 1995, appellant and Cathy Miller executed a promissory note in favor of Citizens Bank in order to obtain funds with which to build a home on the Independence County property. As security for the note, Cathy Miller mortgaged the Stone County property to Citizens Bank.
Cathy Miller committed suicide on July 5, 1997, and appel-lee was named administrator of his daughter’s estate. On January 20, 1998, Citizens Bank filed a complaint to foreclose the mortgage on the Stone County property. Appellant answered the foreclosure complaint, agreeing that the property should be sold and the indebtedness paid. Appellee filed an answer and cross-complaint, alleging that the deed to the Independence County property should be reformed to provide that Cathy Miller’s estate owned an undivided one-half interest. The cross-complaint also alleged that appellee’s home was located on the Stone County property, that he conveyed the Stone County property to his daughter as an estate-planning device, that the mortgage was executed without appellee’s knowledge or consent, and that appellant would be unjustly enriched by having the Stone County property foreclosed in order to pay the debt for construction of a residence on the Independence County property. Appellant answered the cross-complaint, alleging that she and Cathy Miller owned the property as joint tenants with right of survivorship and that Cathy Miller promised to convey the Stone County property to appellant as joint tenants with right of survivorship, and denying that appel-lee was entitled to any relief. Appellant filed a counterclaim against appellee alleging that appellant and Cathy Miller had an agreement to own all of their property jointly and seeking a constructive trust on the Stone County property and on personal property owned by Cathy Miller.
A foreclosure decree was entered. The property was sold to appellee for $41,000. The issues raised by the cross-complaint and counterclaim between appellant and appellee proceeded separately from the foreclosure issues.
Appellant testified that she and Cathy Miller acquired the Independence County property and built a house. She stated that Cathy Miller told the person drafting the contract that title was to be a joint tenancy with right of survivorship. She also said that the first time she saw the deed was when it was delivered to her by the escrow agent. She stated that, although she was the beneficiary of three life insurance policies on Cathy Miller’s life, one of the policies would not pay because the death was ruled a suicide- and the other two policies paid a total of $43,000. She testified that she used the insurance proceeds to pay a debt to Citizens Bank but not the mortgage on the Stone County property.
Appellant testified that she was asking the court to impose a constructive trust on the Stone County property. She stated that it was unfair for appellee to own the property because that was not what Cathy Miller wanted or what appellee had agreed to. Appellant admitted that there was no contract between appellee and herself or between Cathy Miller and herself. She also admitted that neither appellee nor Cathy Miller made a gift of the property to her. She stated that appellee benefited from his conveying the property to Cathy Miller by having the mortgage, taxes, and insurance paid by appellant and Cathy Miller and by having a place to live at no expense to him. Appellant testified that Cathy Miller had told her on two occasions that she (appellant) was her (Cathy Miller’s) only heir. She testified that the Stone County property was to be Cathy Miller’s and her retirement but that appellee could live on the property until his death. She also testified that the Stone County property was not placed jointly in her name because of problems with her former husband. Appellant testified that, at the funeral home, appellee told her that she was Cathy Miller’s only heir and not to worry.
Appellee testified that he voluntarily conveyed the Stone County property to Cathy Miller but that he did not know she had mortgaged it until after her death. He admitted that there were no restrictions on Cathy Miller’s ownership. He stated that he knew Cathy Miller and appellant were building the house in Independence County when he conveyed the property to his daughter. He stated that he conveyed the property because his health was bad and he did not want Cathy Miller to have legal problems after his death. He testified that he purchased the property at the foreclosure sale. He also testified that it was possible that he had told appellant that she was Cathy Miller’s only heir. He also admitted that Cathy Miller paid off the mortgage, insurance, and taxes on the property. Appellee stated that he did not believe that he should have any interest in the Independence County property but that he should be compensated for the money he expended.
Judy Swaim, a friend of appellant and a co-worker with Cathy Miller, testified that Cathy Miller told her that she (Miller) was going to use the Stone County property to finance construction of the home in Independence County. She also stated that Cathy Miller told her that the place was to be her retirement with appellant. Swaim also confirmed appellant’s testimony concerning Cathy Miller’s fear of appellant’s former husband obtaining an interest in the Stone County property and of the conversation between appellant and appellee at the funeral home after Cathy Miller’s death.
The trial court issued a letter opinion on May 1, 2000, and judgment was entered on October 10, 2000. Some of the findings contained in the letter opinion do not correspond to findings in the judgment, but there is no explanation in the record for the discrepancies. The trial court reformed the deed to the Independence County property to reflect that appellant and Cathy Miller owned the property as tenants in common and not as joint tenants with right of survivorship, as provided in the deed. The judgment found that the contract for purchase joined appellant’s and Cathy Miller’s name with “and,” indicating a tenancy in common. The trial court noted that there is a statutory presumption that a tenancy in common is created unless the contrary is shown. The trial court also relied on the fact that appellant did not know that title to the property was as joint tenants with right of survivorship. The trial court’s letter opinion does not discuss the reformation issue. In its letter opinion, the trial court found that appellant should not have to pay appellee for the foreclosure judgment paid by appellee.
However, in the October 10, 2000, judgment, the trial court found that appellant was unjustly enriched by appellee’s having paid the foreclosure judgment and appellee was entitled to equitable subrogation. The trial court also found that appellee made a gift of his interest in the Stone County property to Cathy Miller. Further, the trial court found that, although there was life insurance on Cathy Miller’s life with appellant as beneficiary, none of those proceeds were used to pay off the mortgage, which was the joint debt of appellant and Cathy Miller. The trial court also found that appellee’s purchase of the property at the foreclosure sale in order to save his home resulted in the unjust enrichment of appellant. The court awarded appellee judgment against appellant in the sum of $40,465. The court’s letter opinion originally found that appellee voluntarily paid the mortgage and therefore appellant should not have to pay appellee. The trial court also found that appellant did not meet her burden of proving a constructive trust. This appeal followed.
Appellant raises three points on appeal: (1) that the trial court erred in reforming the deed; (2) that the trial court erred in not imposing a constructive trust in favor of appellant; and (3) that the trial court erred in granting appellee a money judgment against appellant.
Equity cases are reviewed de novo on appeal. McKay Props., Inc. v. Alexander & Assocs., 63 Ark. App. 24, 971 S.W.2d 284 (1998). This court does not reverse a trial court’s findings of fact unless they are clearly erroneous. Id. Although the imposition of a constructive trust requires clear and convincing evidence of the necessary facts, the test on review is not whether we are convinced that there is clear and convincing evidence to support the trial court’s findings but whether we can say that the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Betts v. Betts, 326 Ark. 544, 932 S.W.2d 336 (1996).
For her first point, appellant argues that the trial court erred in reforming the deed to the Independence County property. Appellant and Cathy Miller received a deed to the property in Independence County as “joint tenants with the right of survivor-ship.” The trial court reformed the deed to hold that appellant and Cathy Miller held the property as tenants in common and that the estate of Cathy Miller held an undivided one-half interest in the property. The trial court reasoned that, because the contract for sale provided that appellant’s and Cathy Miller’s names were joined by “and,” it indicated that a tenancy in common was created. The trial court also noted that there is a statutory presumption in favor of a tenancy in common.
We hold that the trial court erred in relying on the contract for sale when the deed unambiguously created a joint tenancy with right of survivorship. The general rule is that, in the absence of fraud or mistake, the contract for sale is merged into the deed executed under the contract. Duncan v. McAdams, 222 Ark. 143, 257 S.W. 2d 568 (1953). The trial court should not have considered the presumption found in Ark. Code Ann. § 18-12-603 (1987) because that presumption arises only where a deed is ambiguous as to the estate created and the trial court did not find that the deed was ambiguous.
Section 18-12-603 is a statute like many throughout the country. At common law, joint tenancy was favored and, where possible, that estate was held to exist. Ferrell v. Holland, 205 Ark. 523, 169 S.W.2d 643 (1943). However, in Arkansas, and in many other states, statutes have been adopted that presumptively construe an instrument to create a tenancy in common rather than a joint tenancy. Id. These statutes do not prohibit joint tenancies, but merely provide for a construction against a joint tenancy if the intention to create it is not clear. Mitchell v. Mitchell, 263 Ark. 365, 565 S.W.2d 29 (1978); Metropolitan Life Ins. Co. v. Gardner, 245 Ark. 742, 434 S.W.2d 266 (1968). A statute such as section 18-12-603 is not an expression of a public policy against joint tenancies but is merely a choice by the legislature of a rule of construction that selects one of two possible interpretations of a provision otherwise ambiguous. James v. Taylor, 62 Ark. App. 130, 969 S.W.2d 672 (1998). In the present case, the deed at issue is clear and unambiguous in creating a joint tenancy with right of survivorship. See Brissett v. Sykes, 313 Ark. 515, 855 S.W.2d 330 (1995) (holding that whether a survivorship interest was created is to be determined from the four corners of the deed); James v. Taylor, supra. Therefore, reliance upon section 18-12-603 is unnecessary. We reverse on this point.
For her second point, appellant argues that the trial court erred in failing to impose a constructive trust in her favor on the Stone County property. A constructive trust is an implied trust that arises by operation of law when equity demands. Malone v. Hines, 36 Ark. App. 254, 822 S.W.2d 394 (1992). It is imposed where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it. Edwards v. Edwards, 311 Ark. 339, 843 S.W.2d 846 (1992). The duty to convey the property may arise because it was conveyed through fraud, duress, undue influence or mistake, breach of fiduciary duty, or wrongful disposition of another’s property. Id. The basis of a constructive trust is the unjust enrichment that would result if the person having the property were permitted to retain it. Id. To impose a constructive trust, there must be full, clear, and convincing evidence leaving no doubt with respect to the necessary facts. Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996). The burden is especially great when title to real estate is sought to be overturned by parol evidence. Id.
The argued basis for imposition of a constructive trust in this case is an alleged agreement between appellant and Cathy Miller that they would hold the property acquired during their relationship as joint tenants with right of survivorship. Appellant also alleged that appellee told her after Cathy Miller’s death that she was Cathy Miller’s only heir and implied that he would convey the property to her. We do not consider this sufficient for imposition of a constructive trust. Appellee had no obligation, legal, moral, or otherwise, to convey the property to appellant. Further, appellant testified that Cathy Miller had not made a gift of the property to her and that she did not have a contract with Cathy Miller.
We also do not believe that appellant established the existence of a confidential relationship between herself and appellee, which is one of the elements of a constructive trust. See Lucas v. Grant, 61 Ark. App. 29, 962 S.W.2d 388 (1998). The fact that appellant and Cathy Miller had a confidential relationship is irrelevant to the constructive-trust issue. We affirm on this issue.
In her third issue, appellant argues that the trial court erred in awarding appellee a money judgment against her. In its letter opinion, the trial court originally found that appellant should not have to pay appellee because he would have received any money from the sale of the property in excess of the amount of the mortgage debt. In the judgment, the trial court found that appellant was unjustly enriched by appellee’s having paid the mortgage, a joint debt of appellant and Cathy Miller. Appellee took the property by intestate succession as an heir at law of Cathy Miller, subject to the mortgage debt. See Yeates v. Yeates, 179 Ark. 543, 16 S.W.2d 996 (1929). If appellee wanted to retain the property, he would have to satisfy the mortgage. A real estate mortgage is extinguished after both the foreclosure of the mortgage and the sale of the mortgaged property. See Ark. Code Ann. §§ 18-49-103(c) (Supp. 2001), 18-49-105 (1987); Pulaski Fed. Sav. & Loan Ass’n v. Woolsey, 242 Ark. 612, 414 S.W.2d 633, 635 (1967). See also In re Gordon, 161 B.R. 459 (Bankr. E.D. Ark. 1993). Because of the foreclosure and sale of the property, the contractual relationship between appellant and Citizens Bank terminated and the debt was extinguished. There was nothing for which appellant could be unjustly enriched. We reverse on this point.
Affirmed in part, reversed and remanded in part.
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John B. Robbins, Judge.
Appellant Sharon Hays Martin-dale filed a. petition to determine ownership of property following the death of her husband, Sherman Martindale, Jr. In her petition, Mrs. Martindale claimed entitlement to cattle and farm equipment acquired during their marriage. The appellees, Estate of Sherman Martindale, Jr., et al, asserted that the assets at issue belonged to Mr. Martindale in his individual capacity at the time of his death and, consequently, are property of his estate. After a trial, the trial court ruled that Mr. Martindale was the sole owner of the cattle and equipment at the time of his death, and that it was the property of his estate. The trial court also ordered that Mrs. Martindale be reimbursed by the estate in the amount of $35,113.83 for expenses she incurred with respect to the cattle and equipment subsequent to Mr. Martindale’s death.
For reversal of the trial court’s order, Mrs. Martindale argues that the trial court erred in failing to find that the cattle and equipment were owned jointly instead of solely by Mr. Martin-dale. The appellees have cross-appealed, and argue that the trial court erred in ordering reimbursement of expenses incurred by Mrs. Martindale, and further request that a credit should be given against any amount of reimbursement for income received by Mrs. Martindale or for her use of the estate’s farm equipment. We reverse on direct appeal, and we reverse on cross-appeal.
The evidence at trial established that Mrs. Martindale and Mr. Martindale were married in 1985, and that Mr. Martindale died on January 18, 2001. In 1990, the couple started a catde business called S&S Limousin Farms, and a substantial amount of cattle and farm equipment remained at the time of Mr. Martin-dale’s death. In his will, Mr. Martindale purported to give to his three daughters from a previous marriage, who are appellees herein, an interest in the cattle and farm equipment. Prior to the trial in this matter, Mrs. Martindale filed her election to take against the will.
Mrs. Martindale testified that she and Mr. Martindale farmed cattle and hay on real property that was owned by Mr. Martindale and also on property that they held jointly. She stated that throughout the farming operation the expenses were paid from a joint checking account. Initially, the account was styled, “Sherman or Sharon Martindale Limousin Farm Account,” and it was subsequently styled, “Sherman or Sharon Martindale.” Various checks were signed by either Mrs. Martindale or Mr. Martindale and were used for such things as purchasing cattle, buying or making payments for farm equipment, reparations, veterinarian bills, artificial insemination bills, feed, fuel, supplies, and membership dues to the North American Limousin Foundation.
Mrs. Martindale presented evidence that she and Mr. Martindale signed a promissory note in 1992 and borrowed $40,000.00 in order to acquire thirty-one head of Limousin cattle. The loan payments were made from their joint account. Loans were also taken for buying equipment such as a bailer, mower and rake that cost $19,000.00, a tractor that cost $27,000.00, and a soil aerator that cost $6750.00. Mrs. Martindale testified that all of the downpayments and monthly payments for these loans were made from their joint checking account.
Mrs. Martindale represented that she actively participated in the farming operation from its inception, and continued doing so after the death of her husband. She stated that she kept records and was involved in buying and selling cattle. Mrs. Martindale also maintained that she did everything from spreading chicken manure to bottle feeding calves to mowing hay, and that, “I did this every year, all the time.” Mrs. Martindale testified that after Mr. Martindale died, she paid a total of more than $35,000.00 for expenses such as equipment payments, reparations, supplies, farm labor, and insurance.
Mrs. Martindale introduced the insurance policy for the farm equipment, and the policy names both her and Mr. Martindale as the insureds. Also introduced into evidence was a financial statement bearing both of their names that listed as assets $35,000.00 in cattle and $35,000.00 in equipment.
Mrs. Martindale testified that the joint farm account was funded by a monthly payment of $7000.00 generated from a grocery store owned separately by Mr. Martindale. However, proceeds from the sale of cattle and hay were also deposited into the account. Mrs. Martindale stated that she never considered the money in the joint account to be only Mr. Martindale’s, and that he never said anything to that effect. Mrs. Martindale stated, “I considered it our farm and not Sherman’s farm,” and that, “I never did consider the farm equipment to be Sherman’s only.”
Mr. Martindale’s sister, Sue Shakingbush, was familiar with the farming operation and stated that the “S&S” in the name of the farm stands for “Sherman and Sharon.” Mrs. Shakingbush further stated that both Sherman and Sharon Martindale owned the farm equipment.
Raymond Akins helped work on the farm, and he, too, stated that “S&S” stands for “Sherman and Sharon.” Mr. Akins testified that both before and after Mr. Martindale’s death, Mrs. Martindale has continuously worked on the farm performing such work as feeding cattle and driving a tractor or bulldozer. Mr. Akins thought that both of them owned the cattle and equipment.
Mrs. Martindale argues on appeal that the trial court clearly erred in finding that the catde and farm equipment were owned solely by Mr. Martindale. She maintains that the farm was at all times operated jointly by her and Mr. Martindale, as evidenced by the fact that every expense was paid from their joint bank account. Mrs. Martindale also notes that she was authorized to conduct business on behalf of the farm, signed a promissory note to purchase cattle, was named on a financing statement that listed the cattle and equipment, and was named as an insured. Considering the indicia of ownership presented at the trial, Mrs. Martindale contends that she proved she was a joint owner of the cattle and farm equipment.
In response to Mrs. Martindale’s argument, the appellees raise several points that they contend demonstrate a lack of joint ownership. The appellees point out that registration certificates issued by the North America Limousin Foundation reflect that the cattle were registered in Mr. Martindale’s name only. The appellees also note that the probate inventory prepared by the personal representative of the estate identifies the cattle and farm equipment as part of the estate, and that the personal representative met with Mrs. Martindale before preparing the inventory. Moreover, the appellees argue that Mr. Martindale’s intention to keep the property in his individual capacity is evidenced by the fact that he treated it as such when preparing his will. The appellees further direct us to security agreements for farm equipment signed only by Mr. Martindale, and personal property tax assessments that include the equipment and are signed only by him. Finally, the appellees contend that the trial court was justified in relying on the fact that the joint account was being funded by Mr. Martindale’s separate assets.
A party can destroy the nonmarital status of property by placing it in an account held jointly with a spouse. McKay v. McKay, 66 Ark. App. 268, 989 S.W.2d 560 (1999). A presumption arises that a spouse placing money in a joint account intended to make a gift of an interest in this money to the other spouse. Id. 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 it takes clear and convincing evidence to overcome that presumption. Lofton v. Lofton, 23 Ark. App. 203, 745 S.W.2d 635 (1988). Furthermore, once property is owned by a husband and wife as tenants by the entirety, it retains its character of being entirety property even though the form of the asset may change. See, e.g., Mathis v. Mathis, 52 Ark. App. 155, 916 S.W.2d 131 (1996).
In bench trials, the standard of review on appeal is not whether there is any substantial evidence to support the finding of the trial court, but whether the trial court’s findings were clearly erroneous. Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997). We hold that the trial court clearly erred in finding that Mrs. Martindale was not a joint owner, or more accurately, a co-owner as a tenant by the entirety, of the property at issue where there was no clear and convincing evidence to rebut the presumption that the joint bank accounts were held by the entirety, and all of the property was purchased from these accounts.
While the appellees correctly assert that the registration certificates for the cattle reflect Mr. Martindale’s name, the membership application lists Mrs. Martindale as a person authorized to do business and bears her signature. Moreover, Mrs. Martindale signed a promissory note to purchase cattle, and bought and sold cattle throughout the farming operation. The fact that the certificates only reflect Mr. Martindale’s name is not alone determinative of ownership. This fact was established by the testimony of the Martindale’s veterinarian, who stated that he has been a partner in a cattle-farming operation where all the cattle were registered in his partner’s name.
While it is true that Mr. Martindale’s will treats the property as nonmarital and it is listed in the inventory of the estate, Mrs. Martindale correctly asserts that there was other, jointly-owned property that Mr. Martindale attempted to dispose of in his will. The property tax assessments referenced by the appellees are in Mr. Martindale’s name, but also list Mrs. Martindale as his spouse. While the appellees correctly note that security agreements and bills of sale for farm equipment contain only Mr. Martindale’s name, this alone does not end the inquiry in light of the other evidence. It is not disputed that the equipment was purchased with funds from the Martindales’ joint bank account.
Mrs. Martindale testified that Mr. Martindale had a separate bank account from the time they were married until he closed it in 1993, and yet no contributions to the farm were made from this account. Instead, Mr. Martindale elected to open a joint account bearing both of their names and all farm expenses were paid from that account. The fact that the account was generated in part by Mr. Martindale’s separate assets does not render the joint account, or purchases made from that account, his sole property in the absence of clear and convincing evidence of separate ownership. From our review of the record, we cannot find the clear and convincing evidence necessary to support the trial court’s ruling that the cattle and equipment were solely owned by Mr. Martindale, and now by his estate.
We now turn to the appellees’ cross-appeal. The appellees argue that the trial court erred in ordering the estate to reimburse Mrs. Martindale for $35,113.83 that she allegedly spent in operating the farm after Mr. Martindale’s death. Mrs. Martin-dale agrees that if we reverse on direct appeal, we should reverse on cross-appeal as no reimbursement will be necessary if she owns the cattle and farm equipment. Because we reverse on direct appeal, we also reverse on cross-appeal.
Reversed on direct appeal and on cross-appeal.
Stroud, C.J., and Crabtree, J., agree. | [
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Andree Layton Roaf, Judge.
Andree Sean William Starks, a.k.a. Shawn Starks, was convicted in a Pulaski County jury trial of possession of cocaine with intent to deliver for which he was sentenced to forty years in the Arkansas Department of Correction. On appeal, Starks argues that the trial court erred in denying his motion to suppress evidence that was seized without a search warrant. We agree and reverse and remand for a new trial.
At Starks’s suppression hearing, ly Tyrell, a patrol sergeant with the Little Rock Police Department, testified that he was called to a shooting at a residence located at 905 Adams on February 9, 2000, at 8:15 p.m. He stated that upon his arrival, he observed a great deal of broken glass and numerous holes in both the window glass and walls, apparently from bullets entering and exiting the house. According to Sgt. Tyrell, he was met at the front door by an individual named Marcus Allen, who opened the door, pointed toward the rear of the house, and stated, “He’s in the back.” Sgt. Tyrell entered the residence and saw Starks, who had been shot in the neck, lying in the doorway of the “back bedroom.” Sgt. Tyrell began to “secure” the scene and immediately found a nine-millimeter pistol and several nine-millimeter shell casings. He then found a .40 caliber shell casing, and in the back bedroom he found a “medium” sized cloth pistol case that was unzipped and empty. An infant child was also found in the residence. Sgt. Tyrell stated that after the ambulance arrived and Starks was transported to the hospital, he went back into the back bedroom where he had found the pistol case to search for the .40 caliber pistol. He claimed that he was concerned that children would be reentering the residence and felt that he had to find the gun. According to Sgt. Tyrell, when he reentered the bedroom, he noticed that one corner of the bed was not laying flat. When he investigated, he found a silver shoe box holding up the corner of the bed. He opened the box and found several packages of what appeared to be cocaine and marijuana. He asserted that the box was so full of cocaine that it could not be completely closed.
Sgt. Tyrell stated that when he arrived, only two males, Starks and Allen, and an infant child were in the house. He also testified that he completed “processing the scene” before allowing the family members, which included at least one child, back into the house. The trial judge denied the suppression motion, and Starks proceeded to trial.
Stark’s sole argument on appeal is that the trial court erred in denying his motion to suppress evidence seized without a search warrant. He contends that it is uncontroverted that the drugs in question were seized without a warrant, and it is well settled that every warrantless search and seizure is unreasonable unless it is shown that it fits within one of the enumerated exceptions. Starks argues that the purported search for the .40 caliber pistol was not justified pursuant to Rule 14.3 of the Arkansas Rules of Criminal Procedure because this was not a situation in which a delay in finding the gun would result in imminent loss of life or serious bodily injury. He notes that the premises were already secure and only contained police personnel. He also argues that the search was not justified pursuant to Rule 14.4, the plain-sight exception, because Sgt. Tyrell had to reenter the bedroom to find the contraband.
As a threshold issue, citing Richard v. State, 64 Ark. App. 177, 983 S.W.2d 438 (1998), and Ramage v. State, 61 Ark. App. 174, 966 S.W.2d 267 (1998), the State argues for the first time on appeal that Starks failed to establish that he had standing to challenge the search. We find that the State’s argument is not persuasive.
The rights secured by the Fourth Amendment are personal in nature. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). Accordingly, before an appellant can challenge a search on Fourth Amendment grounds, he must have standing. Id. Whether an appellant has standing depends upon whether he manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. Id. There has evolved a line of cases that require an appellant to prove that he has standing to challenge a search. See, e.g., id.; Whitham v. State, 69 Ark. App. 62, 12 S.W.3d 638 (2000); Richard v. State, supra; and Ramage v. State, supra.
We are mindful that this court has held in Richard v. State and Ramage v. State that it is permissible to raise the issue of standing for the first time on appeal. However, having considered the issue, we cannot say that Starks has failed to establish that he had a subjective expectation of privacy in the residence. In Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992), the supreme court stated that an individual does not have standing to contest a warrantless search and seizure if there is no showing that the person owned or leased the searched premises or maintained any control over the premises. See also Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990). Although Starks did not testify at his suppression hearing, his standing to challenge the search was nonetheless established through Sgt. TyrelTs testimony to the effect that Starks and Allen were in control of the dwelling on the night in question. Under these facts, both Starks and Allen could be found to have standing to challenge the search. Moreover, in Fouse v. State, 73 Ark. App. 134, 43 S.W.3d 158 (2001), we held that the State can waive the right to raise a standing challenge on appeal by making affirmative declarations to the trial court that are inconsistent with such a challenge. Here the State also prosecuted Starks for maintaining a drug premises, and pursuing this charge is entirely inconsistent with the position that the State now takes . Furthermore, the instant case is distinguishable from Richard v. State and Ramage v. State, in that we cannot say from our review of the record as a whole that there was no basis for finding that Starks had a subjective expectation of privacy. Indeed, the facts clearly cut the other way in that Crystal Starks, who by the time of the trial had married Starks, testified that, on the night in question, Starks was babysitting their daughter in her residence. She stated that Starks did not live in the house that she was renting, but he was a frequent overnight guest. We therefore reject the State’s standing argument and reach the merits of Starks’s appeal.
When we review a ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances, viewing the evidence in the fight most favorable to the State, and reverse only if the ruling is clearly against the preponderance of the evidence. Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996). The Fourth Amendment protects an individual’s legitimate expectation of privacy against unreasonable searches and seizures, and entry into a dwelling in which an individual has a reasonable expectation of privacy must be viewed as illegal unless the State established the availability of an exception to the warrant requirement. Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997).
We find that the police unquestionably were justified in entering the dwelling as Starks lay bleeding on the floor. However, the circumstances changed when Starks was taken away by ambulance. After that point, Sgt. Tyrell’s reentry into the back bedroom to look for the .40 caliber gun exceeded the scope of his emergency duties. While Sgt. Tyrell expressed his intention to make the premises safe for small children before he turned it over to the “family members” waiting outside, his motivation did not justify searching the house for a weapon under the supreme court’s analysis of the emergency exception discussed in Wofford v. State, supra.
Under the emergency exception, a warrantless entry into a home may be upheld if the State shows that the intruding officer had “reasonable cause” to believe that the home contains:
(a) individuals in imminent danger of death or serious bodily harm; or
(b) things imminently likely to burn, explode, or otherwise cause death, serious bodily harm, or substantial destruction of property; or
(c) things subject to seizure which will cause or be used to cause death or serious bodily harm if their seizure is delayed.
Ark. R. Crim. P. 14.3. Any search that follows the emergency entry may be upheld under this rule only if the search was “reasonably necessary for the prevention of such death, bodily harm, or destruction,” id., and is “strictly circumscribed by the exigencies” that necessitated the emergency entry in the first place. Wofford v. State, 330 Ark. at 19, 952 S.W.2d at 651. Moreover, there must be a direct relationship between the area to be searched and the emergency. Id. (citing with approval People v. Mitchell, 347 N.E.2d 607 (N.Y. 1976)). Here, we did not have imminent harm, but rather potential or speculative harm. Sgt. Tyrell was not searching for a time bomb, but rather a firearm, that may or may not be present, and if present, may or may not be loaded, and if present and loaded, may or may not have been later found by a child, who may or may not have been inclined to pick-it up and fire it, if she was even physically able to do so. Because Sgt. Tyrell’s search of the residence exceeded the scope of the intrusion that was authorized by Starks’s need for emergency medical attention, the trial court erred in failing to suppress the evidence seized pursuant to that illegal search. See Evans v. State, 33 Ark. App. 184, 804 S.W.2d 730 (1991).
Reversed and remanded.
Griffen and Vaught, JJ., agree.
In pertinent part, the offense of maintaining a drug premises is codified as follows: It is unlawful for any person to . . . knowingly keep or maintain any store, shop, warehouse, or other structure or place or premise, which is resorted to by persons for the purpose of using or obtaining these substances or which is used for keeping them in violation of subchapter 1-6 of this chapter.
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Sam Bird, Judge.
This is a second appeal by appellant Carey Barker from the Faulkner County Circuit Court’s grant of summary judgment in favor of appellee Rogers Group, Inc. Barker asks this court to overturn the acquired-immunity doctrine or, in the alternative, she argues that her complaint against Rogers alleged that Rogers performed its contractual responsibilities in a negligent manner. Barker also contends that the court’s order granting summary judgment was in error because genuine issues of material fact existed. Rogers asks this court to dismiss Barker’s appeal, contending that we lack subject-matter jurisdiction to hear it because Barker filed this appeal prematurely. We hold that we do have subject-matter jurisdiction. Therefore, we reach the merits of the case, and we affirm.
Rogers was awarded a contract by the Arkansas Highway and Transportation Department (AHTD) to resurface a portion of Arkansas Highway 65 in Faulkner County. The contract specified that Rogers was to use Type 3 asphalt in resurfacing the highway. In verifying that Rogers complied with the contract’s specifications, AHTD monitored daily the application of the asphalt to the highway surface. The work was completed in September 1996 and was approved and accepted by the highway department.
Two years later, Barker was a passenger in Heath Loftin’s vehicle, which was involved in a collision with a vehicle driven by James C. Evans on a part of Highway 65 that had been resurfaced by Rogers. The accident resulted in the death of Loftin and serious injuries to Barker. Barker contends that the accident was caused when Loftin’s car hydroplaned because of the slick surface of the roadway due to the use of Type 3 asphalt.
On February 12, 1999, Barker filed suit against Rogers, Evans, and Loftin’s estate. She alleged that Rogers was negligent in resurfacing the roadway with Type 3 asphalt, which it knew was dangerous; in failing to warn the driving public or public officials of the dangerous conditions; in failing to take steps necessary to cure the imminently dangerous conditions that it had created; in undertaking a project in which the wrong asphalt mix was called for; and in creating an unsafe condition, failing to warn and to cure the hazard. Rogers filed an answer denying Barker’s contentions and pleading the acquired-immunity doctrine as an affirmative defense. Marilyn K. Loftin, administratrix of Loftin’s estate, filed a cross-claim against Rogers.
On June 28, 1999, Rogers filed a motion for summary judgment in which it maintained that it had acquired immunity because it was required to comply with the contract in which AHTD specified the use of Type 3 asphalt. In support of its motion for summary judgment, Rogers attached affidavits of C.W. McMillian, the resident engineer for AHTD on the project performed by Rogers, and Eddie Reidmueller, a quality control manager for Rogers.
In his affidavit, McMillian stated that the AHTD specified that Type 3 asphalt be used in the resurfacing project and that Rogers was required by the department to comply with the specifications. He stated that in addition to specifying the type of asphalt, the department specified the procedures used in preparing the surface and applying it. McMillian stated that it was his responsibility to oversee tbe project and to make sure that it met the specifications of the contract. He stated that had Rogers not been in compliance, he would have required Rogers to promptly correct the noncompliance. He then stated:
The Department determined that Type 3 asphalt was suitable and appropriate for this job. Had Rogers Group employees advised the Department that they were informed that Type 3 asphalt was not suitable for this job, we would have told them that it was suitable and directed that they continue using Type 3 asphalt.
In his affidavit, Eddie Riedmueller stated that he was involved in Rogers’s performance of the contract with AHTD regarding the resurfacing of part of Highway 65. He stated that an inspector with AHTD was present at the site everyday and that, periodically, a supervisor or an engineer would be present at the site to inspect the work. The supervisor or the engineer had the authority to order the correction of any defects that they found in the work. However, Riedmueller stated that AHTD never ordered any corrections pertaining to the asphalt. In addition, Riedmueller stated that Rogers had no input with AHTD concerning its choice of the type of asphalt to be used.
Barker responded to Rogers’s motion, stating that she could show that Rogers was negligent in resurfacing the road and in using Type 3 asphalt, which causes vehicles to hydroplane. She also contended that the affirmative defense of acquired immunity relied upon by Rogers is directly related to the accepted-work doctrine, which was abolished by the Arkansas Supreme Court in Suneson v. Holloway Constr. Co., 337 Ark. 571, 992 S.W.2d 79 (1999). Therefore, she argued, Rogers could be liable for its negligence in using Type 3 asphalt. However, she presented no affidavits, deposition testimony, or any other evidence opposing Rogers’s motion.
On August 18, 1999, the court granted summary judgment and dismissed Barker’s complaint against Rogers with prejudice. The court held that the only allegation of negligence in Barker’s complaint was that Rogers was negligent in using Type 3 asphalt, the material that AHTD required. Therefore, the court held- that since Barker was not contending that Rogers was negligent in its performance of the contract, but, rather, that it was negligent in using Type 3 asphalt, Rogers acquired the immunity that the highway department would enjoy from tort liability.
Barker filed her first notice of appeal on September 7, 1999. On May 10, 2000, we dismissed Barker’s first appeal because the order from which she appealed did not dispose of her claim against the Loftin estate and the Loftin estate’s cross-claim against Rogers. The order dismissing the cross-claim by Loftin was entered May 1.
Our mandate dismissing Barker’s first appeal for want of a final order was issued on May 31, 2000. On that same day, Barker filed her second notice of appeal. On June 1, 2000, our mandate dismissing Barker’s first appeal was filed in Faulkner County Circuit Court. A final order disposing of Barker’s claim against the Loftin estate and the Loftin estate’s cross-claim against Rogers, and also granting Rogers’s motion for summary judgment, was entered on June 2, 2000.
After the second notice of appeal was filed with this court, Rogers filed a motion asking us to dismiss Barker’s second appeal, contending that the notice of appeal was filed too early and that this court lacked subject-matter jurisdiction. We denied the motion. Rogers, in its brief in the appeal at bar, renewed its motion to dismiss, asserting that this court lacked subject-matter jurisdiction because the circuit court did not reacquire jurisdiction until the mandate of this court was filed on June 1, and that since Barker’s notice of appeal, filed May 31, was filed before the circuit court reacquired jurisdiction, the early filing made the notice invalid. We do not agree.
Subject-matter jurisdiction is the power of a court to adjudge certain matters and to act on facts alleged. Timmons v. McCauley, 71 Ark. App. 97, 27 S.W.3d 437 (2000). Rule 5-3 of the Rules of the Supreme Court states:
(a) Mandate to be issued in all cases. In all cases, civil and criminal, the Clerk will issue a mandate when the decision becomes final and will mail it to the clerk of the trial court for filing and recording. A decision is not final until the time for filing of petition for rehearing, or, in the case of a decision of the Court of Appeals, the time for filing a petition for review has expired or, in the event of the filing of such petition, until there has been a final disposition thereof.
The supreme court recently addressed the question of when a mandate becomes final in Barclay v. Farm Credit Servs., 340 Ark. 65, 68-69, 8 S.W.3d 517, 519 (2000), stating:
It is axiomatic that this court takes jurisdiction of a matter once the record on appeal is filed with the Clerk of the Supreme Court. [The supreme court] loses jurisdiction to the trial court once the mandate is issued from this court to the trial court. A mandate is the official notice of the action taken by the appellate court. The mandate is directed to the trial court, and it instructs the court to recognize, obey, and execute the appellate court’s decision. (Citations omitted and emphasis added.)
Here, because the mandate was issued on May 31, becoming effective on that date rather than on the date it was filed with the circuit court, Barker’s notice of appeal was not filed prematurely, and we have subject-matter jurisdiction to reach the merits of the case.
In reviewing a trial court’s grant of summary judgment, we need only decide if the granting of the motion was appropriate based upon whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Mashburn v. Meeker Sharkey Fin. Group, Inc., 339 Ark. 411, 5 S.W.3d 469 (1999). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Id. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Id. Summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law. Id. Once a moving party establishes a prima facie entitlement to the summary judgment by affidavits, depositions, or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. 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 its pleadings, but its response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. Ark. R. Civ. P. 52.
For her first point on appeal, Barker contends that because the supreme court in Suneson v. Holloway Const. Co., supra, abohshed the accepted-work doctrine, this court should, based upon the reasoning in Suneson, abolish the acquired-immunity doctrine. We are not persuaded by Barker’s argument that the supreme court’s abolition of the accepted-work doctrine in Suneson, supra, also had the effect of abohshing the acquired-immunity doctrine. The accepted-work doctrine was based upon a different public policy and rationale than the acquired-immunity doctrine. The general rule of the accepted-work doctrine was that after the contractor turned the work over to and it had been accepted by the proprietor, the contractor incurred no further liability to third parties by reason of the condition for the work, but the responsibility, if any, for maintaining or using it in its defective condition is shifted to the proprietor. Suneson v. Holloway Const. Co., supra. This is not analogous to the case at bar. The acquired-immunity doctrine shields a contractor from damages resulting from its performance of the contract, where the contract has been performed in accordance with the terms of its contract with a governmental agency that is immune from tort liability. Jordan v. Jerry D. Sweetser, Inc., 64 Ark. App. 58, 977 S.W.2d 244 (1998). The theory behind the acquired-immunity doctrine is that a contractor for a public agency shares the sovereign immunity of the public body from liability for damages necessarily involved in the performance of the contract. Guerin Contractors v. Reaves Food Ctr, 270 Ark. 710, 606 S.W.2d 143 (Ark. App. 1980). The acquired-immunity doctrine does not protect a contractor who performs work in a negligent manner, and such negligence results in damages to others. Id. At Southeast Constr. Co. Inc. v. Ellis, 233 Ark. 72, 77, 342 S.W.2d 485, 488 (1961), the supreme court stated the public policy rationale behind the acquired-immunity doctrine:
If the contractor was required, at its peril, to check and double check all plans given it and required to keep an engineering force for the purpose of interpreting these plans, and was not permitted to follow the orders of the engineering force of its superior, then the cost of public improvement would be so increased as to make them almost prohibitive.
Based upon the pleadings and affidavits, we find that the court did not err in granting summary judgment and finding that Rogers has acquired immunity by complying with the AHTD contract specifications, which required the application of Type 3 asphalt.
Barker also argues that this case falls within an exception to, the acquired-immunity doctrine that applies when a person suffers damages as a result of the contractor’s negligence in the performance of a contract with a public agency that is immune from liability for negligence. We do not find this exception to be applicable here because the theory of liability asserted in Barker’s complaint is that Rogers was negligent in its use of Type 3 asphalt that was specified in its contract with AHTD, not that Rogers was negligent in its performance of the contract. Although Barker argues that she did plead negligence on the part of Rogers in its performance of the contract, from our careful review of her complaint we find that the only negligence referred to in the complaint was that Rogers was negligent in its application of Type 3 asphalt. Nowhere in the complaint did Barker allege that Rogers was negligent in the performance of the contract other than' by its use of Type 3 asphalt.
Barker also contends that the court was in error in granting summary, judgment because genuine issues of material fact remain. These issues include whether Rogers had a duty to warn of imminently dangerous conditions, whether it had a duty to correct a dangerous situation it created, whether it used the appropriate type of asphalt, and whether it strictly adhered to the contract. As stated above, because Rogers strictly adhered to the contract specifications, it cannot be held liable. Therefore, there are no genuine issues, of material fact on which a jury could determine that Rogers was hable. Without Barker’s contention that Rogers negligently performed the contract, the only issue before the jury would be whether Rogers complied with the contract. In its motion for summary judgment, evidence in the form of affidavits was introduced that showed Rogers had in fact strictly complied with the contract. Barker did not meet proof with proof and has presented no evidence that Rogers did anything other than comply with the contract.
Finally, Barker argues that if even this court should find that the trial court did not err in granting summary judgment, we should modify the trial court’s judgment, which dismissed Barker’s complaint with prejudice, to a dismissal without prejudice so as to allow her to amend her complaint to plead with specificity that Barker was negligent in the performance of the contract. She cites Bushong v. Garman Co., 311 Ark. 228, 235, 843 S.W.2d 807, 811 (1992), for support of her position that “when summary judgment is granted because of a failure to state a claim, the dismissal should be without prejudice in order to afford the plaintiff-appellant a chance to plead further.”
In Bushong, the trial court granted summary judgment, with prejudice, upon finding that there was no genuine issue of any material fact. On appeal, the supreme court concluded that the trial court’s grant of summary judgment was error but, rather, that the case should have been dismissed because of the failure of the complaint to state a claim upon which relief could be granted. In modifying the trial court’s summary judgment order to be a dismissal for failure to state a claim, the supreme court also modified the order to provide that the dismissal would be without prejudice.
We do not believe that Bushong is applicable to this case, and we disagree with Barker’s argument. Rule 52 of the Arkansas Rules of Civil Procedure states:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving part is entitled to a judgment as a matter of law. (Emphasis added.)
In Bushong, the court made a distinction between the grant of summary judgment for failure to state a claim and grant of summary judgment when there is no genuine issue of material fact. Unlike in Bushong, we hold that the trial court in the case at bar did not err in granting summary judgment because we agree that, based on the pleadings filed, along with the affidavits submitted by Rogers with its motion for summary judgment, there are no genuine issues of material fact and that Rogers is entitled to judgment as a matter of law.
Affirmed.
Jennings and Griffen, JJ., agree. | [
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JOHN B. ROBBINS, Judge.
Appellee Denise Galloway has been J employed on an assembly line by appellant White Consolidated Industries for fourteen years. On June 5, 1989, she sustained a compensable low back injury while handling heavy refrigeration equipment in the course and scope of her employment. Mrs. Galloway suffered a recurrence of her compensable injury on May 10, 1998, while hanging clothes in her home. The appellant covered related medical treatment, which included diagnostic testing, prescription medications, and physical therapy. However, in 1999 appellant controverted Mrs. Galloway’s claim that she was entitled to undergo intradiscal electrothermal treatment (IDET), a procedure introduced in 1997 as an alternative to spinal fusion. The appellant argued that the procedure was experimental and not reasonably necessary for the treatment of Mrs. Galloway’s back condition. After a hearing, the Commission disagreed, finding that the IDET procedure constitutes reasonable and necessary treatment. For reversal, appellant argues that the Commission’s decision is not supported by substantial evidence. We find no error and affirm.
This court affirms findings of fact by the Commission if the decision is supported by substantial evidence. Branscum v. RNR Constr. Co., 60 Ark. App. 116, 959 S.W.2d 429 (1998). Substantial evidence exists if reasonable minds could have reached the same conclusion without resort to speculation or conjecture. Arkansas Dep’t of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991).
Mrs. Galloway testified on her own behalf and stated that, since the June 1989 injury, she has continued to work but has been given restrictions limiting her bending, stooping, and lifting. She stated that she has been on constant medication and has undergone periodic physical therapy. Despite her treatments, Mrs. Galloway experiences daily problems related to her low back condition, including backache, pain and numbness in her legs and feet, and sleepless nights. She stated that for several years she has been under the care of Drs. Edward Saer and J. Tod Ghormley, and that both doctors have recommended the IDET procedure. According to Mrs. Galloway, her doctors informed her that the only other option was fusion surgery, but neither recommended it. Mrs. Galloway testified that, after speaking with her doctors, she has decided that she wants to undergo the IDET procedure.
In a medical report prepared on May 18, 1999, Dr. Saer indicated that Mrs. Galloway has two abnormal discs and that, although her condition cannot be cured, there are procedures that may help alleviate her pain. Dr. Saer stated further in the report:
Unfortunately, with two level disc disease, a fusion is not really a good option. If L4-5 was the only symptomatic level then I think that would be an option. The L3-4 level does not look like it is “bad enough” to warrant fusion. I did discuss the IDET procedure (intradiscal electrothermal treatment) with her. This could be done at two levels and I think she would be a candidate for that. She’s had symptoms for many years and is having predominantly back pain. I did discuss this with her and gave her some information about this. She’s going to think about this and let us know how she wants to proceed.
In a report authored by Dr. Ghormley on July 19, 1999, he stated, “I agree that sending [Mrs. Galloway] to Dr. Saer for the intradiscal electrothermal treatment would be helpful,” and that, “Risks I believe would be minimal.”
On appeal, White Consolidated Industries argues that, notwithstanding the opinions of Drs. Saer and Ghormley, Mrs. Galloway failed to establish that the IDET procedure is a reasonably necessary treatment for her compensable injury. The appellant submits that the testimony of Mrs. Galloway, as well as the opinions of her doctors, were refuted by documentary medical literature that it collected and presented to the Commission. This literature reveals that the IDET procedure was pioneered in 1997, and that while short-term studies have been conducted, there has been insufficient time to study the long-term effects of the treatment. The appellant notes that the documentary evidence indicates that the IDET procedure may not alleviate the symptoms of some patients and may need to be repeated. This uncertainty was acknowledged by Dr. Saer in his August 26, 1999, report when he stated, “She asked what would happen if she had this procedure and was still symptomatic and I think that is something we would just have to evaluate at that time.”
The appellant also makes reference to a pamphlet introduced by Mrs. Galloway, entitled “An Introduction to SpineCath Intradiscal Electrothermal Therapy.” The pamphlet indicates that many factors may prevent a physician from recommending IDET therapy, including “very narrow disc height, severe disc herniation, spinal instability, very advanced stages of disc degeneration, or various general health concerns.” The appellant points out that the opinions expressed by Drs. Saer and Ghormley do not address any of the above concerns. In addition, the pamphlet states it is “very important for your physician to diagnose that the disc is the primary source of your back pain,” and appellant notes that Dr. Saer reported in April 1999 that it was “difficult to pinpoint any one specific area as the cause of her symptoms.”
The appellant contends that the medical opinions relied on by the Commission in awarding compensation for the IDET procedure were insufficient because they amounted to mere conclusions, without any medical explanation as to why the procedure is necessary in treating Mrs. Galloway’s specific condition. Moreover, appellant urges that the medical opinions were faulty in that they failed to address the probability of success of the procedure, and further failed to discuss the effect of the procedure on other back problems afflicting Mrs. Galloway, such as degenerative disc disease. Particularly in fight of the fact that the IDET procedure is new in the Arkansas medical and legal communities, the appellant contends that the procedure was erroneously authorized by the Commission.
The appellant correctly asserts that it is only required to provide medical services that are reasonably necessary in treatment of the compensable injury. See Ark. Code Ann. § ll-9-508(a) (Repl. 1996). What constitutes reasonably necessary medical treatment is a question to be determined by the Commission. Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). In the instant case, we hold that there was substantial evidence to support the Commission’s finding that the IDET procedure is reasonably necessary in treating Mrs. Galloway’s compensable low back condition.
In its opinion, the Commission specifically stated that it gave greater weight to the opinions of Mrs. Galloway’s treating physicians than the documentary evidence offered by appellant. Indeed, it is the function of the Commission to weigh medical evidence, Continental Express v. Harris, 61 Ark. App. 198, 965 S.W.2d 811 (1998), and in this case the medical opinions of Drs. Saer and Ghormley supported the Commission’s decision, and these were the only opinions addressing the issue of whether or not the IDET procedure was necessary in this case. The appellant cites no authority, and we know of none, that requires a 100 percent success rate before a procedure may be deemed reasonably necessary under workers’ compensation law. Nor does it cite authority or convincing argument for the proposition that the opinions of medical experts must be accompanied by specific details underlying and supporting their opinions. In the instant case, Drs. Saer and Ghormley treated Mrs. Galloway for her compensable back condition for a number of years, and both recommended the IDET procedure as an alternative to fusion surgery. The procedure is designed to alleviate Mrs. Galloway’s chronic back pain, and after weighing her alternatives she consented to her doctors’ recommendation. The Commission was free to accept the only medical opinions offered in this case, and they amounted to substantial evidence supporting its decision.
Affirmed.
Jennings and Baker, JJ., agree. | [
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Terry Crabtree, Judge.
The appellant, Laurie Walls, appeals a decision of the Arkansas Board of Review (“Board”) that reversed the Appeal Tribunal’s award of unemployment insurance benefits and concluded that she was disqualified from receiving those benefits because she was discharged for misconduct in connection with her work. We reverse and remand for an award of benefits.
Appellant worked for JVA International, Inc., on the “pleater” in the manufacturing area, and in other areas as necessary. Ms. Dora Courville, the employer’s human resources director, testified before the Appeal Tribunal that appellant was discharged for absenteeism while still in her ninety-day probationary period. Ms. Courville stated that she and appellant’s supervisor spoke with appellant on October 19, 2000, warning her about her attendance. They chose not to terminate appellant at that time. Apparently, appellant was absent the next day, and was then terminated.
The employer’s attendance policy states in part that:
Employees can help by notifying their Supervisors in advance when they know they must be absent or late. An employee is required to call his/her Supervisor promptly if unforseen circumstances will cause the employee to be absent or late. Call your Supervisor as soon as possible. This will enable the Supervisor to keep the department running smoothly. Absenteeism or tardiness beyond one (1) occurrence average per month for six (6) months without proof of illness will automatically lead to termination.
Ms. Courville stated that appellant did not provide doctor’s statements for every day she was absent. Further, Ms. Courville testified that appellant’s mother notified the employer by telephone on October 10, 2000, that appellant was absent due to illness, but that the employer was not told that appellant would be absent the following day. Ms. Courville noted that appellant did not provide any information from her doctor which would give the employer notice of the severity of her medical problem.
Appellant testified that all of her absences from work, except one absence due to her son being sick, were due to her own illness. She said she was experiencing abdominal cramping and swelling, and it was eventually determined that she had an infected gall bladder. Appellant stated that her mother telephoned the employer from the doctor’s office on October 10, 2000, to advise that appellant was sick and undergoing tests, and that appellant would not be at work on October 11, 2000, because she was to undergo a medical test. Appellant acknowledged that she did not provide a medical excuse for every absence, but stated that she had no insurance and could not always afford a physician. Appellant stated that she probably could have telephoned her doctor to obtain an extension to her medical excuses, but that she was under the impression that consecutive days of absence were considered one incident.
Our scope of appellate review is well settled:
On appeal, the findings of the Board of Review are conclusive if they are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. 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.
Love v. Director, 71 Ark. App. 396, 399, 30 S.W.3d 750, 752 (2000). The statutory authority on which the Board relied in denying appellant benefits was Ark. Code Ann. § 11-10-514(a)(1)-(2) (Supp. 1999). Ark. Code Ann. § 11-10-514(a)(l) provides that “an individual shall be disqualified for benefits if he was discharged from his last work for misconduct in connection with his work.” Ark. Code Ann. § 11-10-514(a)(2) provides that “in all cases of discharge for absenteeism, the individual’s attendance record for the twelvemonth period immediately preceding the discharge and the reasons for the absenteeism shall be taken into consideration for purposes of determining whether the absenteeism constitutes misconduct.” The seminal decision concerning “misconduct” as used in Ark. Code Ann. § 11-10-514(a) is Nibco, Inc. v. Metcalf, 1 Ark. App. 114, 118, 613 S.W.2d 612, 614 (1981), where we provided the following definition of the term:
[Mjiscoduct involves: (1) disregard of the employer’s interests, (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 his employer.
To constitute misconduct, however, the definitions require more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvert-encies, ordinary negligence in isolated instances,' or good faith error in judgment or discretion. There must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design.
In the case at bar, we hold that the Board’s finding that appellant was discharged from her last work for misconduct is not supported by substantial evidence. The Board found that appellant violated the employer’s written policy requiring notice of absences, and that this constituted misconduct. It is true that appellant violated the employer’s written policy requiring notice of absences. However, we hold that there is no evidence that appellant ever intentionally violated the rules so as to manifest wrongful intent or evil design. As such, we reverse and remand this case for an award of benefits.
Reversed and remanded.
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JOSEPHINE LINKER Hart, Judge.
A jury found Frederick J Goodman guilty of attempted manufacture of a controlled substance (methamphetamine) and possession of drug paraphernalia and sentenced him to a total of 180 months in the Arkansas Department of Correction. For reversal, appellant argues that (1) there was insufficient evidence to sustain his convictions and, accordingly, the trial court erred by denying his directed-verdict motion; (2) his rights under the Fourth and Fourteenth Amendments were violated and the trial court erred in denying his suppression motion; and (3) the trial court erred by denying his motion for a continuance. Although we agree that appellee failed to demonstrate that there was apparent authority to justify the warrantless search, we conclude that the consenting party had actual authority, and because we do not find any other errors of law, we affirm.
A criminal information was filed on September 22, 1999, alleging that on March 4, 1999, appellant manufactured methamphetamine and possessed drug paraphernalia. Thereafter, appellant moved to suppress evidence seized at his trailer home. On May 11, 2000, prior to the trial, the court heard appellant’s motions for a continuance and suppression of evidence.
The trial court addressed the continuance motion first. Appellant told the court that he was dissatisfied with his legal counsel and thought that he had failed to prepare for the trial. His attorney responded by telling the court that appellant had failed to be cooperative in the preparation of a defense and, as such, asked to be relieved as counsel. The trial court, while acknowledging the attorney’s predicament, denied the request to be relieved as counsel. In addition, the trial court noted that appellant had more than six months to work with his attorney to organize a viable defense and had failed to do so. Accordingly, the trial court also denied the continuance motion.
Thereafter, the trial court considered the motion for suppression and heard the testimonies of Corporal Allen Brand, Cecilia Mashburn, and appellant.
Corporal Brand testified that he arrived at appellant’s home on March 4, 1999, in response to a terminated 911 call in which a woman was screaming for help and, upon arrival, found Cecilia Mashburn in the front yard. Although Mashburn lacked any visible signs of injury and appellant only stood in his doorway, Brand forced appellant to the ground at gunpoint and restrained him with handcuffs. Brand then stated that Mashburn told him that appellant had been “cooking the meth” in the home, verbally consented to a search, and led him to the back bedroom in the trailer. While in this bedroom, Brand, without direction from Mashburn, searched underneath a mattress and found a “meth lab.”
Mashburn told the court that she had lived at appellant’s residence off-and-on for approximately nine months, and although she did not have a permanent residence, she considered herself a guest in appellant’s home. She further testified that when the police arrived at appellant’s home, she informed the police that appellant was “cooking dope” and consented to the search of the trader.
Appellant testified last and stated that Mashburn was merely a guest in his home and did not have authority to consent to a search by police. In fact, according to appellant, he specifically told Mash-burn that she did not have permission to consent to such a search.
The trial court denied the suppression motion, reasoning that it was reasonable for the police to believe that Mashburn possessed authority to grant the search and that, additionally, she in fact had such authority in light of the amount of time she resided at appellant’s trailer and the fact that she had no other residence. The case immediately proceeded to trial.
At trial, in addition to the testimony she gave at the suppression hearing, Mashburn testified that prior to March 3, 1999, the day before appellant’s arrest, she had lived in his home while he had been incarcerated. Moreover, with regard to March 3rd, she testified that she, Craig DePriest, and appellant were Hving in appellant’s home. During that evening, appellant admitted to Mashburn that he and DePriest were producing drugs in the trailer’s back bedroom. Sometime during the night, appellant’s daughter called, reporting that she was having a baby. When appellant was awakened, he thought that DePriest and Mashburn were engaging in sexual activity and became angry. Both Mashburn and DePriest fled from the trailer, but appellant was able to catch Mashburn and brought her back to the trailer. Appellant then began to hit and curse her periodically until Mashburn called 911, said “help,” hung up the telephone, and turned it off. Thereafter, the police arrived at which time Mashburn told the police about appellant’s drug manufacturing and consented to the police search.
In addition to giving testimony substantially similar to the testimony he gave during the suppression hearing, Corporal Brand testified that he and Officer Chris Moore found the following in the bedroom: a hot plate, pair of scales, two soda bottles connected by a hose taped to both botdes, a substance that was growing in one of the two soda bottles, and a gallon container containing a substance. Officer Moore then testified and confirmed much of what Brand told the jury. Moore, however, confirmed that Brand had sought consent to search the trailer from Mashburn, who, in fact, gave her consent. Finally, Dan Hedges, a forensic chemist at the Arkansas State Crime Laboratory, testified that based on his expertise, training, and experience, the contents of the trailer found by the police comprised a working methamphetamine laboratory.
At that time, the State rested, and appellant moved for a directed verdict, arguing that the State had failed to prove that appellant was the person who actually manufactured the illegal substances. The trial court, without comment, simply denied the directed-verdict motion. Whereupon, appellant renewed his suppression motion, which was also summarily denied.
Appellant’s sister, Ginger Gunner, was the only witness called for the defense. She testified that she and her sister owned the property where appellant was living and that Mashburn had been living with appellant off and on for the last five or six years. Gunner also stated that prior to March 3rd, Mashburn had lived in the trailer with her children for approximately four months' while appellant had been incarcerated.
Following Gunner’s testimony, appellant rested. Thereafter; a jury found appellant guilty and sentenced him to serve concurrent terms of 120 months for attempted manufacture of a controlled substance and sixty months for possession of drug paraphernalia. 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 his directed-verdict motion because there was insufficient evidence to sustain the convictions of attempted manufacture of methamphetamine or possession of drug paraphernalia. 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 judge plainly denied appellant’s directed-verdict motion; however, he did so without stating the basis for his determination. Accordingly, we must ascertain whether the evidence offered in light of the applicable standard of review presented a viable question of fact to be decided by the jury. We conclude that a viable question of fact existed and agree that denial of the directed-verdict motion was proper.
Rule 801(d) (2) (i) of the Ark. R. Evid. provides that a statement of a party that is “his own statement, in either his individual or representative capacity ...” constitutes nonhearsay. While appellant concedes that Mashburn’s testimony concerning his admission is evidence that he committed the crimes, he argues that pursuant to King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996), this evidence was insufficient because it constituted uncorroborated accomplice testimony. In response, appellee argues that appellant is procedurally barred from raising this argument, commensurate with Jones v. State, 318 Ark. 704, 712, 889 S.W.2d 706, 709 (1994), inasmuch as it is being raised for the first time on appeal. We agree with appellee. While it is true that appellant argued in his directed-verdict motion that the State failed to prove that he actually manufactured the illegal substance, it is also true that appellant failed to raise the issue of uncorroborated accomplice testimony at that time. As such, we are disposed to conclude that the nonhearsay testimony was sufficient evidence to present the matter to the jury and affirm on this point.
II. Unreasonable search and seizure
For his next argument, appellant contends that he was denied his right to be free from unreasonable searches and seizures. Specifically, he argues that the trial court erred by denying his motion to suppress the items seized as a result of the warrantless search. Appel-lee, however, argues that the search and seizure was reasonable inasmuch as it was conducted commensurate with a lawful consent of a third party.
Our standard of review of suppression motions is wellsetded — if, following an independent determination based on the totality of the circumstances, we conclude that a denial of a suppression motion was not clearly against the preponderance of the evidence, then we will affirm. E.g., Welch v. State, 330 Ark. 158, 164, 955 S.W.2d 181, 183 (1997). In our view, the trial court’s finding that the search and seizure at issue was reasonable was not clearly erroneous. Thus, we affirm.
The right to be free from unreasonable searches and seizures is guaranteed by both the Bill of Rights, U.S. Const., amend. 4, and the Arkansas Constitution, Ark. Const, art. 2, § 15. This right is personal in nature, Rakas v. Illinois, 439 U.S. 128, 133 (1978), and “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment. . . .” Katz v. United States, 389 U.S. 347, 357 (1967). Specifically, “searches and seizures inside a home without a warrant are presumptively unreasonable [and] . . . [i]n terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house.” Payton v. New York, 445 U.S. 573, 586, 590 (1980). These principles are “subject only to a few specifically established and well-delineated exceptions.” Katz, 389 U.S. at 357. For example, searches based on voluntary third-party consent can be considered reasonable. See United States v. Matlock, 415 U.S. 164 (1974).
Under Matlock, however, for the consent to be valid, the party giving the consent must have “common authority” over the premises. Matlock, 415 U.S. at 171. Moreover, this “common authority” requirement cannot be inferred because “the burden of establishing . . . common authority rests upon the State.” Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). As the high Court went on to explain:
[W]hat we hold today does not suggest that law enforcement officers may always accept a person’s invitation to enter premises. Even when the invitation is accompanied by an explicit assertion that the person lives there, the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry. As with other factual determinations bearing upon search and seizure, determinations of consent to enter must “be judged against an objective standard: would the facts available to the officer at the moment. . . ‘warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?” Terry v. Ohio, 392 U.S. 1 (1968). If not, then warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the search is valid.
Rodriguez, 497 U.S. at 188-189. Accordingly, for appellee to prevail, it must demonstrate that the facts available to the officer at the moment would warrant a person of reasonable caution in the belief that, the consenting party had authority over the premises or-, alternatively, that the consenting party had actual authority to grant the consent.
1. Apparent authority
To determine whether the police officers had a reasonable caution in the belief that Mashburn had authority over the premises (i.e., apparent authority), we must first establish that the warrantless search was based on a mistake of fact, not a mistake of law. See United States v. Whitfield, 939 F.2d 1071, 1073 (1991). Stated differently, Rodriguez “applies to situations in which an officer would have had a valid consent to search if the facts were as he reasonably believed them to be.” Whitfield, 939 F.2d at 1074. See also Grant v. State, 267 Ark. 50, 589 S.W.2d 11 (1979). The measure'of reasonableness requires, of course, a review of the information available to the officer at the moment the third-party consent was given. While it is possible that the officer’s observations alone can substantiate a determination that an officer reasonably believed that the consenting party had common authority, “sometimes the facts known by the police cry out for further inquiry, and when this is the case it is not reasonable for the police to proceed on the theory that ‘ignorance is bliss.’ ” 3 Wayne R. LaFave, Search and Seizure § 8.3(g) at 749 (3rd ed. 1996).
Here, the observations of the officer who received the third-party consent were insufficient to sustain a conclusion that he reasonably believed that the consenting party had common authority over the premises that was searched. According to the officer’s testimony, the only matters he observed were: (1) a woman who was standing in the front yard of appellant’s house, (2) who he may have reasonably believed made a terminated 911 telephone call, and (3) who stated that appellant was manufacturing a controlled substance in a certain room in the house. We conclude that these scant pieces of information were legally insufficient to sustain a warrant-less search based on apparent authority. Whether purposefully or innocently, the officer remained ignorant of critical information that would have provided a better insight into whether a third-party consent would be valid or whether a search warrant should be obtained.
The better practice in this case would have been for the officer to make additional inquiries to determine the consenting party’s relationship to the premises. Because that was not done, we can only consider the officer’s observations to which he testified in reaching a conclusion as to whether a person of reasonable caution would have also believed that the consenting party had authority over the premises. Accordingly, on a review of the entire evidence, we are left with a definite and firm conviction that the finding that Mashburn had apparent authority was clearly against the preponderance of the evidence. We, therefore, hold that under the Fourth Amendment and Ark. Const, art. 2, § 15, there was a lack of apparent authority to justify the government’s warrantless search of appellant’s home. As such, we now turn to the question of whether the consenting party had actual authority.
2. Actual authority
A conclusion that the consenting third party had actual authority rests on a determination of whether this party had common authority over the premises that was subject to the warrantless search. Moreover, as stated in Matlock, 415 U.S. at 172 n.7 (citations omitted):
Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.
Here, the general consensus was that Mashburn lived in appellant’s home for an extended period of time. That evidence alone, however, is ordinarily insufficient because the simple statement that one is “living” in a particular place, does not by itself provide sufficient insight into the nature of the living arrangement, which under Matlock is critical to determine whether one’s mutual use is sufficient to permit a warrantless search. Nevertheless, we are satisfied that appellee has met its burden. The testimony of Mash-burn and Gunner reveals that prior to March 3, 1999, Mashburn lived in the trailer for at least two months while appellant was incarcerated on a different matter. This evidence is in direct conflict with appellant’s contention that Mashburn was a mere guest in his home. The evidence demonstrates that the living arrangement was such that Mashburn did in fact have mutual use of the property. To conclude otherwise could not be reconciled with her exclusive use of the trailer. Accordingly, we do not conclude that the trial court’s determination that Mashburn had actual authority was clearly erroneous. We, therefore, affirm on this point.
III. Continuance
For his final argument, appellant argues that the trial court erred by denying his motion for a continuance. We, however, disagree with appellant and affirm on this point.
Rule 27.3 of the Arkansas Rules of Criminal Procedure provides that “[t]he court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.” Moreover, absent an abuse of discretion, we will affirm a trial court’s denial of a motion for continuance. See Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998).
Here, appellant sought a continuance because he had failed to communicate with his attorney in order to prepare for trial. However, the record reveals that the trial court had previously granted a continuance motion because the appellant was unprepared to present his defense. Although the trial court shall grant' a continuance upon a showing of good cause, the court must also endeavor to bring about a prompt resolution of the case. In this regard, we do not conclude that the trial court abused its discretion by denying appellant’s motion and requiring the matter to proceed to trial on the scheduled date. To conclude otherwise would reward appellant for his unreasonable inaction and be contrary to the well-setded principle that “failure to exercise due diligence alone can be the basis to deny a motion for a continuance.” Jones v. State, 317 Ark. 131, 137, 876 S.W.2d 262, 265 (1994). Accordingly, we also affirm on this point.
Affirmed.
Stroud, C.J., and Crabtree, J., agree.
Appellant was represented on appeal by a different attorney.
This standard, which is an objective/subjective mixture, is reflected in Ark. R. Crim. P. 11.2(c), which provides that for a third-party consent to search a premises to be effective, it must be made “by a person, [who,] by ownership or otherwise, is apparently entitled to give or withhold consent.”
Whether appellant actually owned the trailer in which he lived is unclear. Gunner testified that she and her sister owned “the property,” but she did not state that they also owned the trailer. Our decision, however, is not colored by appellant’s potential lack of ownership of die trailer because it is unquestioned that appellant - either as owner, lessee, licensee, or otherwise - made this trailer his home, and “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511 (1961). | [
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JOHN E. JENNINGS, Judge.
In February 1988, Citizen’s Bank J of Jonesboro sued the appellant, Doug Adams, on a promissory note. In August 1988, the bank obtained a default judgment against Adams for $13,500.00. In the early 1990’s a series of garnishment actions were filed, and in 1992 the bank obtained an order directing one of the garnishees tó pay it $1,100.00. Although served in each of the garnishment actions, Adams did not respond.
In June 1998, the bank filed a petition for a writ of scire facias. Adams was served but filed no response, and an order was entered reviving the judgment. In November 1999, Adams filed a motion to vacate the 1988 judgment on the grounds of insufficient service of process. The trial court denied the motion, and this appeal followed. We affirm the decision of the trial court.
Appellant argues that the original default judgment was void ab initio for lack of in personam jurisdiction. Arkansas Rule of Civil Procedure 4(d)(8)(A) provides:
Service pursuant to this paragraph shall not be the basis for the entry of a default or judgment by default unless the record contains a return receipt signed by the addressee or the agent of the addressee or a returned envelope, postal document or affidavit by a postal employee reciting or showing refusal of the process by the addressee. If delivery of mailed process is refused, the plaintiff or attorney making such service, prompdy upon receipt of notice of such refusal, shall mail to the defendant by first class mail a copy of the summons and complaint and a notice that despite such refusal the case will proceed and that judgment by default may be rendered against him unless he appears to defend the suit. Any such default or judgment by default may be set aside pursuant to Rule 55(c) if the addressee demonstrates to the court that the return receipt was signed or delivery was refused by someone other than the addressee.
When the circuit clerk’s file was examined during the proceedings on the motion to vacate the judgment, it contained the following affidavit signed by the appellee’s attorney:
That service was made upon the Defendant, Doug Adams, by certified mail, return receipt requested, refused and served by first class mail on April 26, 1988. That said first-class letter has not been returned by the Post Office. (Attached hereto as Exhibits “A” and “B” are the original Summons and first-class letter return receipt showing service upon the Defendant.)
The file also contained the following letter from appellee’s attorney to the appellant:
Please be advised that Citizen’s Bank of Jonesboro has filed suit against you for the balance due them in the amount of Thirteen Thousand Forty Two and 98/100 Dollars ($13,042.98) paid at the rate of Three and 78/100 Dollars ($3.78) per day. Your refusal to accept the certified letter will not stop the proceedings that have been filed against you. You have twenty (20) days in which to answer the complaint of Citizen’s Bank of Jonesboro or a Default Judgment may be entered against you for this debt. If you would like to discuss this matter, please call me at your earliest convenience. Thank you for your cooperation. Sincerely/s/.
The 1988 default judgment recited:
That service of summons upon the Defendant has been made in the manner and method prescribed by the laws of the State of Arkansas; that the Complaint and summons were served upon the Defendant by restricted delivery mail, refused and served by first class mail personally more than twenty (20) days prior hereto and the Defendant has not answered this Complaint nor filed any pleading herein; that the Defendant is in default; and that this Court has personal jurisdiction over the parties hereto and the cause of action herein.
In its order denying appellant’s motion to vacate judgment in 1999, the court found:
Service of process was had by certified mail effected by counsel for the plaintiff, which service was evidenced by a copy of a letter in the file dated April 26, 1988, directed to Mr. Doug Adams, c/o Jonesboro Fitness Center, 2223 Conrad Drive, Jones-boro, Arkansas, 72401, with pleadings, as evidenced by the affidavit of plaintiffs attorney, dated June 16, 1988, filed for record on June 16, 1988, which affidavit reflects service upon the defendant, Doug Adams, by certified mail, return receipt requested, “refused” and service of first class mail and recites that said first class letter has not been returned by the post office and referring to attached original summons, first class letter and return receipt, although no return receipt appears in the file.
Appellant contends that the absence from the clerk’s file of a return receipt showing refusal by the addressee renders the default judgment void. Arkansas Code Annotated § 16-65-108 (1987) provides that all judgments rendered without notice, actual or constructive, “shall be absolutely null and void.” Finally, appellant relies on Pile et al. Ex Parte, 9 Ark. 336 (1849), for the proposition that a judgment obtained without notice, being void, is not converted into a valid judgment by a subsequent writ of scire facias.
In the case at bar the required return receipt showing refusal of the certified letter, which is required by Rule 4(d)(8)(A) does not appear in the record. The question then is whether this absence renders the 1988 default judgment void or merely voidable. We conclude that the trial court’s determination that the judgment was not “void” was correct.
The Arkansas Supreme Court has drawn a distinction between service and proof of service. In Lyons v. Forrest City Machine Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990), the court said that failure to make proof of service does not affect the validity of service because proof of.service may be made by means other than demonstration on the return of the serving official. In Webster v. Daniel & Straus, 47 Ark. 131, 142-43, 14 S.W. 550 (1886), the court observed:
There is a very clear and obvious distinction between a total want of service of process and a defective service of process, as to their effect in judicial proceedings. In the one case the defendant has no notice at all of the suit or proceeding against him. The judgment or decree in such case, it is conceded is coram nonjudice and void, upon the principles of law and justice. In the other case, the defective service of process gives the defendant actual notice of the suit or proceeding against him, and the judgment or decree in such case, although erroneous, would be valid until reversed by a direct proceeding in an appellate jurisdiction, and its validity can not be collaterally called in question. And this view of the law is believed to be sustained by reason, principle and authority.
See also, Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001) (drawing a distinction between insufficient service and a total lack of service).
In Frazier v. Merrill, 237 Ark. 242, 372 Ark. 264 (1963), the court held that:
[A] judgment of a court of general jurisdiction cannot be collaterally attacked, unless the record affirmatively shows want of jurisdiction, and every fact not negatived by the record is presumed in support of the judgment of a court of general jurisdiction, and where the record of the court is silent upon the subject, it must be presumed in support of the proceedings that the court inquired into and found the existence of facts authorizing it to render the judgment which it did.
Id. at 245-46. See also, Phillips v. Commonwealth Sav. & Loan Ass’n, 308 Ark. 654, 826 S.W.2d 278 (1992); Talkington v. Schmidt, 219 Ark. 333, 242 S.W.2d 150 (1951); Morgan v. Stocks, 197 Ark. 368, 122 S.W.2d 953 (1938); Winfrey v. People’s Savings Bank, 176 Ark. 941, 5 S.W.2d 360 (1928). When a judgment recites that the defendant was “duly served with summons herein as required by law,” it must be taken as true unless there is something in the record to contradict it. Kindrick, Curator v. Capps, 196 Ark. 1169, 121 S.W.2d 515 (1938); Austin-Western Rd. Machinery Co. v. Blair, 190 Ark. 996, 82 S.W.2d 528 (1935); Love v. Kaufman, 72 Ark. 265, 80 S.W. 884 (1904).
An overly technical approach to problems such as the one in the case at bar is neither necessary nor advisable. As one commentator has said:
A judgment rendered without jurisdiction is “void” and has no effect as res judicata or otherwise. ... But a rule that avoids a solemn judgment whenever one of the parties chooses to attack it is a rule asking for trouble. A judgment ought to settle a dispute, and rights and tides derived from a judgment today ought not to be overturned twenty years from now. No society can be stable if judicially secured rights are not secure at all. Courts, having created the rule of voidness, recognized its defects.
Dan B. Dobbs, The Validation of Void Judgments: The Bootstrap Principle, 53 Va. L. Rev. 1003 (1967). See also, Knox v. Knox, 25 Ark. App. 107, 753 S.W.2d 290 (1988). Public policy dictates that there be an end of litigation. Baldwin v. Traveling Men’s Ass’n, 283 U.S. 522 (1930).
In the case at bar, the defect complained of is one of proof of service as opposed to a lack of the notice required by the United States Constitution. See Pennoyer v. Neff, 95 U.S. 714 (1877). Clearly, the language of Rule 4(d)(8)(A) is mandatory and clearly the judgment against the appellant could have been set aside at some stage of the proceedings, but the defect complained of did not render the court’s judgment absolutely void.
Here, the trial court concluded that the objection raised by the appellant to the default judgment had been waived. Waiver is the voluntary relinquishment of a known right. Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993). The question of waiver is ordinarily one of fact for the trial court to decide. Beal Bank v. Thornton, 70 Ark. App. 336, 19 S.W.3d 48 (2000). Objections to the sufficiency of process can be waived. See Southern Transit Co. v. Collums, 333 Ark. 170, 996 S.W.2d 906 (1998). We hold that the trial court’s decision that the objection had been waived is not clearly erroneous.
Meeks v. Stevens, 301 Ark. 464, 785 S.W.2d 18 (1990), is distinguishable. The holding in Meeks is that the trial court acquires no jurisdiction when the return of certified mail is marked “unclaimed” by the postal service. This is a problem of notice, not proof of notice. Beyond this, Meeks did not involve the passage of time and the intermittent reliance on the judgment present in the case at bar.
Because we affirm the judgment of the trial court on the basis of waiver, we need not reach the question of estoppel. See Wallace v. Hale, 341 Ark. 898, 20 S.W.3d 392 (2000); Farm Bureau Mut. Ins. Co. v. Campbell, 315 Ark. 136, 865 S.W.2d 643 (1993); Storey v. Brewer, 232 Ark. 552, 339 S.W.2d 112 (1960); Restatement (Second) of Judgments § 66.
Affirmed.
Stroud, C.J., Hart, and Crabtree, JJ., agree.
Baker and Neal, JJ., dissent.
NationsBank, the appellee here, is the successor in interest to the original creditor.
For a cogent criticism of this traditional distinction see the introductory note to Chapter 5, Restatement (Second) of Judgments at pages 143 and 144.
See Restatement (Second) of Judgments § 74. | [
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LARRY D. VAUGHT, Judge.
Appellant was arrested and i /charged with: 1) possession of a schedule II controlled substance — methamphetamine; 2) manufacture of a schedule II controlled substance — methamphetamine; and 3) possession of drug paraphernalia. He was convicted of possession of methamphetamine, attempted manufacture of methamphetamine, and possession of drug paraphernalia. Appellant’s first point on appeal is that the trial court erred in admitting the alleged drug paraphernalia. We disagree and affirm appellant’s paraphernalia conviction. Appellant also argues that the trial court erred in allowing the State to amend its information that originally charged manufacture of a controlled substance to attempted manufacture a controlled substance after a directed verdict on the original charge had been entered in his favor. We agree and reverse appellant’s conviction of attempted manufacture.
Appellant was arrested after an anonymous call was placed to the Greene County Sheriff s Office, indicating that there were two suspicious men near a wooded area in Greene County. Appellant and his co-defendant were observed by poHce leaving a wooded area and getting into a green Geo Metro. The appellant was observed driving the car and the police pulled him over in a driveway near the location where they first entered the vehicle. Both appellant and his co-defendant were asked to produce identification. After appellant presented his identification, the officer determined he had multiple outstanding city warrants and a parole revocation warrant. The vehicle registration indicated the vehicle belonged to Wayne Wilson. Appellant was then arrested by Sheriff Langston.
Sergeant Toby Carpenter arrived at the scene to assist the arresting officer. When Carpenter arrived at the scene, appellant was in the Sheriff s pickup and the co-defendant was standing near the Geo Metro. Prior to the car being towed, Carpenter inventoried the vehicle. The inventory indicated the following items had been recovered from the vehicle: a black garden hose, burnt tinfoil, two bottles of pseudoephedrine, moist coffee filters, and a white substance (later identified as methamphetamine). After taking the co-defendant to jail, Carpenter returned to an area just south of the scene of the arrest. Photographs taken by Carpenter showed a trash bag, which was found partially covered by brush and trees, that contained an altered flashlight, a drain opener, salt, coffee filters, several baggies, a soda botde fid, a glass measuring cup, and several muddy shoe prints. The area also contained two bottles of anhydrous ammonia, four punched cans of starter fluid, and an HCI generator.
At trial, appellant moved for a directed verdict on all three counts. The trial court denied his motion as to the counts related to possession of a controlled substance and possession of drug paraphernalia, but granted the directed verdict on the manufacture count. After granting the directed verdict on the manufacture, the trial court allowed the State to amend the information to attempted manufacture, over appellant’s double-jeopardy objection. Appellant was convicted of: 1) possession of methamphetamine and sentenced to a term of ten years; 2) possession of drug paraphernalia and sentenced to a term of ten years; and 3) attempted manufacture methamphetamine and sentenced to a term of thirty years. All sentences were ordered to run concurrently. Appellant does not challenge his possession-of-methamphetamine conviction on appeal.
Sufficiency of the Evidence
On appeal, Hughes’s first point heading challenges the admissibility of the evidence in support of possession of drug paraphernalia; however, the actual argument contained in the appeal has elements of a sufficiency of the evidence argument. Additionally, appellant has met the minimum threshold of citing authority or convincing argument in support of the point. The argument section of appellant’s brief contains phrases like “no evidence presented”; “the jury had to leap to the conclusion”; “was there any proof’; and “the State failed to prove.” Also, the State concedes in its brief that much of the authority appellant cites in his first point of appeal goes to sufficiency of the evidence. While it is true that the appellant’s sufficiency of the evidence argument could have been offered in a much more straight-forward manner, the argument was preserved for appeal and will be considered by this court.
A directed-verdict motion is treated as a challenge to the sufficiency of the evidence and will be considered before all other arguments on appeal. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000). When reviewing a denial of a directed verdict, we look at the evidence in the fight most favorable to the State, considering only the evidence that supports the judgment or verdict. Darrough v. State, 330 Ark. 808, 810, 957 S.W.2d 707, 708 (1997); Killian v. State, 60 Ark. App. 127, 128, 959 S.W.2d 432, 433 (1998). We will affirm if there is substantial evidence to support a verdict. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). Evidence is sufficient to support a verdict if it is forceful enough to compel a conclusion one way or another. Hall v. State, 315 Ark. 385, 868 S.W.2d 453 (1993). Where the evidence is circumstantial, the appellate court must consider whether the evidence was sufficient to exclude all other reasonable hypotheses. Carter v. State, 324 Ark. 395, 398, 921 S.W.2d 924, 925 (1996).
After appellant’s arrest, the Geo Metro belonging to Wayne Wilson was inventoried. A black rubber hose with blue residue on one end was found in the “backseat or back portion” of the vehicle. The hose was introduced into evidence over appellant’s objection. A piece of burnt aluminum foil was also introduced over appellant’s objection. The officer that conducted the inventory of the vehicle testified that the tinfoil was beside the passenger’s seat, in the console of the vehicle. The testimony indicates that both of these items were in plain view. Also, damp coffee filters containing a “large amount of moist white powder” were found under the driver’s seat and were admitted into evidence without objection. The coffee filters and the white powder (subsequently identified as methamphetamine) both smelled strongly of ether. Finally, a botde of pseudoephedrine was found under the driver’s seat. Under the passenger’s seat the inventory revealed another bottle of pseudoephedrine and a police scanner.
A report written by Toby Carpenter, regarding what the arresting officer had observed at the time of arrest was introduced into evidence, without a hearsay objection. The report placed appellant in the driver’s seat of the vehicle registered to Wayne Wilson. The report, authored by Toby Carpenter, recounted what Sheriff Lang-ston observed when he responded to a call regarding two suspicious men. Specifically, Carpenter’s statement said, “Langston asked both subjects for their ID and learned that the driver, Robert Hughes, had multiple warrants . . . .”
No drug paraphernalia was found on the appellant’s person at the time of his arrest; therefore, we must consider whether appellant had constructive possession of the various items of drug paraphernalia found in the Geo Metro.
Constructive possession may be imputed when the contraband is found in a place that is either accessible to the defendant and subject to his exclusive dominion and control, or subject to the joint dominion and control by the defendant and another. Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976). In order to prove constructive possession, the State must establish beyond a reasonable doubt that 1) the defendant exercised care, control, and management over the contraband, and 2) that the accused knew the matter possessed was contraband. See Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998); Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995). In Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994) the supreme court outlined a five-part analysis to determine if constructive possession had been established:
It is not necessary for the State to prove literal physical possession of drugs in order to prove possession. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Possession of drugs can be proved by constructive possession. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). Constructive possession can be implied when the drugs are in the joint control of the accused and another. However, joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession. There must be some other factor linking the accused to the drugs. Osborne, 278 Ark. at 50, 643 S.W.2d at 253. Other factors to be considered in cases involving automobiles occupied by more than one person are: (1) whether the contraband is in plain view; (2) whether the contraband is found with the accused’s personal effects; (3) whether it is found on the same side of the car seat as the accused was sitting or in near proximity to it; (4) whether the accused is the owner of the automobile, or exercises dominion and control over it; and (5) whether the accused acted suspiciously before or during the arrest. Plotts v. State, 297 Ark. 66, 69, 759 S.W.2d 793, 795 (1988).
In considering if sufficient evidence exists to support a charge of possession of the drug paraphernalia, we first note that appellant was placed in the driver’s seat of the vehicle by Carpenter’s report. Second, moist coffee filters and the methamphetamine located under the driver’s seat were admitted into evidence without objection. Third, a bottle of pseudoephedrine was found under the driver’s seat and was admitted into evidence without objection. Fourth, the hose and tinfoil were in plain view and were admitted into evidence and must be considered (even if erroneously admitted) in a sufficiency review. Fifth, Carpenter testified that the car smelled of ether. Sixth, Carpenter testified that the vehicle belonged to a person that was related to appellant. Finally, Carpenter testified that appellant stated his reason for being in the woods was that he would receive “approximately ten grams of meth for helping them cook.”
Based on this evidence, we conclude that the State offered sufficient evidence to support the charge of possession of drug paraphernalia.
Admission of Evidence
Appellant also argues that the evidence, consisting of a black rubber hose and a sheet of burnt tinfoil that was discovered in the vehicle and introduced, over appellant’s objection, is not relevant because no foundation connecting appellant to the vehicle had been laid at the time the information was introduced.
The State correctly cites Dansby v. State, 338 Ark. 697, 1 S.W.3d 403 (1999), for the proposition that a decision whether to admit relevant evidence rests in the sound discretion of the trial court and that decision will not be disturbed absent an abuse of discretion. Additionally, “relevant evidence” is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Ark. R. Evid. 401.
Appellant argues that the trial court erred in allowing the rubber hose and the burnt tinfoil to be introduced because the items were found in a vehicle that did not belong to appellant and there was no evidence introduced at the time the questionable items were introduced connecting appellant to the vehicle. While the Carpenter report (which is the only evidence placing appellant in the driver’s seat of the Geo Metro) had not been introduced into evidence when the items were offered, the evidence is clearly relevant to the charge of possession of drug paraphernalia, and the State, albeit later in the testimony, did establish a proper foundation for its admission. The trial court’s decision to allow the rubber hose and the burnt tinfoil to be introduced into evidence was not an abuse of discretion.
Double Jeopardy
The trial court directed a verdict in favor of appellant on the manufacture of a controlled substance (a class Y felony) and then allowed the State to amend the information to attempt to manufacture methamphetamine (a class A felony). The State argues that appellant failed to cite any authority for this portion of his argument and it should not be considered on appeal. In the alternative the State argues that the trial court’s action is proper since attempt to manufacture is a lesser-included offense and the original charge was not yet submitted to the jury.
Appellant argues on appeal “that when the greater charge of manufacturing was directed by the Court, the charge had gone away.” This is in essence a “double-jeopardy” argument. The proper objections were made below, and the double-jeopardy argument that appellant offered below is included in the abstract. While the State is correct that appellant presents no authority for the proposition that double jeopardy prevents the trial court from allowing the information to be amended after a verdict has been directed, appellant does, however, present convincing argument in support of his position which will allow appellate review. See Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996).
We need look no further than Hanner v. State, 41 Ark. App. 8, 847 S.W.2d 43 (1993), to dispose of this issue. Hanner was charged with two counts of rape. At trial, following the conclusion of the State’s case, Hanner moved for a directed verdict of an acquittal with respect to one of the charges of rape. The trial court granted the motion. The State conceded that the evidence was insufficient to support that charge, but asked that the jury be instructed on first-degree sexual abuse. The court allowed the State to amend the information, over the double-jeopardy objection of Hanner. On appeal, this court held that after a directed-verdict motion is granted “the State bears the burden to demonstrate that it will rely on conduct other than that for which the defendant has already been prosecuted.” Hanner, 41 Ark. App. at 10, 847 S.W.2d at 44.
In the case at bar, the State has failed to carry its burden. No new evidence was introduced, no new trial was requested, instead the information was merely amended. Once the trial court entered a directed verdict in favor of appellant on the charge of manufacture of a controlled substance, any new charge, relying on the same evidence, is barred by double jeopardy.
The appellant’s possession-of-drug-paraphernalia conviction is affirmed; the appellant’s attempted-manufacture conviction is reversed.
Affirmed in part; reversed in part.
Griffen, J., agrees.
ROAF, concurs.
The officer testified that it may have been on the floorboard of the vehicle, but that it was in the back of the vehicle.
The officer later testified that the tinfoil was “between the passenger seat and the console.”
Interestingly, Langston did not testify at trial. While Carpenter’s statement regarding what Langston observed is clearly hearsay, no objection was made by appellant contesting the introduction of this statement below. | [
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John B. ROBBINS, Judge.
This is an appeal from the Fulton County Circuit Court’s dismissal of appellant Rose Turnbough’s complaint for the monetary value of the unused sick leave that she accumulated before resigning from her teaching position with appellee Mammoth Spring School District Number Two. We find no error in the circuit judge’s decision and affirm.
After twenty years’ employment with appellee, appellant resigned in 1999 to take a job in Missouri. At the time of her resignation, appellant requested payment for her ninety days of unused sick leave. After appellee refused to pay. her, appellant filed this action for a declaration of her rights under the Teachers’ Minimum Sick Leave Law, Ark. Code Ann. §§ 6-17-1201 through 6-17-1209 (Repl. 1999), and under the terms of her contract with appellee. Finding that the statutes and the contract did not support her claim, the circuit judge dismissed her complaint.
On appeal, appellant argues that the trial judge erred in holding that she is not entitled to payment for her unused sick leave under the terms of the Teachers’ Minimum Sick Leave Law; that appellee’s sick-leave policy is more restrictive than the statutes permit and is against public policy; and that appellee’s sick-leave policy violates the Privileges and Immunities Clause of the United States Constitution. We need not address appellant’s third argument because she did not obtain a ruling on it by the trial court. A ruling by' the trial court on a challenged issue is a prerequisite to our review of that issue. Even questions raised at the trial level, if left unresolved, are waived and may not be relied upon on appeal. Office of Child Support Enfant, v. Neely, 73 Ark. App. 198, 41 S.W.3d 423 (2001).
The Teachers’ Minimum Sick Leave Law
Addressing appellant’s first argument on the merits, we find no error in the circuit judge’s construction of the relevant statutes. Appellant argues that, according to Ark. Code Ann. §§ 6-17-1204(a) and 6-17-1207 (Repl. 1999), appellee was required to pay her the value of her accumulated sick leave, in which she asserts a vested right. In considering the meaning of a statute, we consider it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000). If the language of a statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. Id. All statutes on the same subject are in pari materia and must be construed together. Boothe v. Boothe, 341 Ark. 381, 17 S.W.3d 464 (2000).
Section 6-17-1204 provides:
(a) Each school district in the state shall provide sick leave for each of its teachers at a minimum rate of one (1) day per month or major portion thereof that the teacher is contracted, at full pay.
(b) Such leave shall be in force beginning with the first day of the first school term for which each teacher is employed.
(c) If a teacher resigns or leaves his teaching position for any reason before the end of the school term, the employing district may deduct from his last paycheck full compensation for any days of sick leave used in excess of the number of days earned.
(d) A teacher shall be entitled to sick leave only for reasons of personal illness or illness in his immediate family.
Section 6-17-1206 states that, whenever an employee of a school district leaves that district and accepts employment in another district within this state, he shall be granted credit by the new school district for any unused sick leave, not to exceed ninety days, that he accumulated while employed by the former district. According to section 6-17-1205, unused sick leave shall be accumulated at a rate of one day per month until ninety days have been accumulated. Under the terms of section 6-17-1208, school districts are free to provide more liberal sick-leave benefits to their employees:
The number of days of sick leave provided by this subchapter are mínimums only, and nothing in this subchapter shall prohibit any school district from providing more days of sick leave or from having a more liberal policy for the administration of sick leave, including, but not limited to, the establishment of sick leave pools or banks and allowing district employees who are husband and wife to each utilize the other’s accumulated sick leave.
Section 6-17-1207 states that “[pjayment for unused sick leave shall be made from the salary fund of the district, and these moneys shall be included in meeting the annual requirements for payment of teachers’ salaries.” As appellant points out, the Teachers’ Minimum Sick Leave Law, as enacted by Act 137 of 1971, provided in section five that “[n]o payment for unused sick leave shall be made to teachers.” See Ark. Stat. Ann. § 80-1253 (Supp. 1977). In Act 1016 of 1979, the General Assembly repealed section 80-1253 and substituted a new version of it, Ark. Stat. Ann. § 80-1253 (Supp. 1979), which is now codified at Ark. Code Ann. § 6-17-1207. Appellant argues that, in the 1979 act, the General Assembly made it clear that payment for unused sick leave is required. We disagree.
In our view, the 1979 act simply repealed the prohibition against paying teachers for unused sick leave but.did not require it or dictate the circumstances under which payment is made. It does, however, permit such payments and establishes their source, if they are made. A logical construction of the amended Teachers’ Minimum Sick Leave Law, in its entirety, is that school districts are free to decide whether to compensate teachers for unused sick leave; however, if they choose to do so, they must make these payments from their salary funds. If the General Assembly had intended to require school districts to pay teachers for unused sick leave, it could have expressly stated so. We will not read language into a statute that is not there. Conagra Frozen Foods, Inc. v. Director, 34 Ark. App. 108, 806 S.W.2d 27 (1991). Our construction of the Teachers’ Minimum Sick Leave Law, as amended, is in harmony with its obvious purpose: to prevent employees from losing compensation and suffering financial hardship in the event of personal illness or the illness of an immediate family member. Even if an employee has not utilized all of the sick leave to which he is entided, the purpose of the law has been served — this “safety net” was available to him if needed. Although we are not bound by the decision of the trial court, in the absence of a showing that the trial court erred in its interpretation of the law, we will accept that interpretation as correct on appeal. Stephens v. Arkansas Sch. for the Blind, supra; Moore v. Pulaski Co. Special Sch. Dist., 73 Ark. App. 366, 43 S.W.3d 204 (2001). Accordingly, we cannot say that the circuit judge erred in construing these statutes as he did.
Appellant’s Contract with Appellee
Due to our conclusion that the Teachers’ Minimum Sick Leave Law does not mandate that school districts ever pay teachers for unused sick leave, the appellant’s argument that appellee’s policy regarding payment for unused sick leave is more restrictive than the statute permits becomes moot. Consequently, the only question remaining is whether appellant’s teaching contract required appellee to pay her for her unused sick leave. Traditional contract principles apply to teachers’ employment contracts. Maddox v. St. Paul Sch. Dist., 16 Ark. App. 112, 697 S.W.2d 130 (1985). A contract is unambiguous and its construction and legal effect are questions of law when its terms are not susceptible to more than one equally reasonable construction. Fryer v. Boyett, 64 Ark. App. 7, 978 S.W.2d 304 (1998). When contracting parties express their intention in a written instrument in clear and unambiguous language, it is the court’s duty to construe the writing in accordance with the plain meaning of the language employed. Id.
Appellant’s contract incorporated appellee’s personnel policies within its terms. Appellee’s sick-leave policy provided:
All full time personnel of the Mammoth Spring School District will be provided with one (1) day of sick leave for each month they are under contract. The sick leave that is not used by an employee may be accumulated up to a total of ninety (90) days. If an employee is absent only in the morning or afternoon, he will have used only one-half day sick leave. Sick leave days may be used only for the reasons of personal illness of the immediate family. Sick leave may also be used in case of a death in the immediate family. In case of doubt, the administration may require a doctor’s statement to verify illness. Immediate family is defined as spouse, child, parent, grandparent, brother, sister, uncle or aunt, either by blood or marriage.
An employee who is absent from school except for these reasons outlined in Act 818 of 1989 [which amended the Teachers’ Minimum Sick Leave Law] will have deducted from his salary one day’s salary for each day absent.
Whenever a certified person employed by another School District in this state shall accept employment in this School District, he/she shall be granted credit for any unused sick leave accumulated in the former School District, not to exceed a maximum of 90 days. Said accumulated and unused sick leave credit shall be granted to teacher upon furnishing proof in writing thereof from the School District of former employment of the teacher.
PAY FOR UNUSED SICK LEAVE
Certified personnel will be paid for unused sick leave in excess of ninety (90) days at the rate of a substitute teacher pay.
Any certified employee who is eligible and files for Arkansas Teacher retirement will be paid at the current rate paid for substitute teachers, for any unused sick leave, not to exceed 90 days.
It is undisputed that appellant was not eligible for retirement when she resigned from employment with appellee. Additionally, she is not seeking payment for unused sick leave in excess of ninety days. Accordingly, it is clear that she did not satisfy the terms of appellee’s sick-leave policy that provide for the payment of unused sick leave and that the circuit judge correctly construed the contract as providing her with no basis for relief.
Affirmed.
Jennings and Baker, JJ., agree.
Appellant includes in her listing of points on appeal the novel issue that “the trial court erred in denying the appellant’s claim of adverse possession”; however, she does not follow with any novel argument in support of this contention, nor can we conceive of how this point could possibly be relevant on this appeal. | [
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Sam BIRD, Judge.
William Hadl was charged by felony information with attempting to manufacture methamphetamine, possessing drug paraphernalia with intent to use, and possessing drug paraphernalia with intent to manufacture methamphetamine. He filed a pretrial motion to suppress evidence of items that police officers seized in a warrantless search of his home and the surrounding premises. The trial court denied the motion after conducting a suppression hearing, and the case proceeded to a jury trial. At trial Hadl renewed his motion to suppress, and it was again denied. At the close of all the evidence the trial court granted a motion for a directed verdict on the charge of attempting to manufacture methamphetamine. The remaining counts were submitted to the jury.
Hadl was convicted of possessing drug paraphernalia with intent to use, for which he was sentenced to ten years’ probation, and of possessing drug paraphernalia with intent to manufacture methamphetamine, for which he was sentenced to six years’ imprisonment in the Arkansas Department of Correction and assessed a fine of $100. On appeal he raises two points: (1) that the trial court erred in refusing to suppress evidence because it was obtained by the police tactic of “knock and talk,” and (2) that the trial court erred in refusing to suppress evidence that had been seized by police during the search but that the prosecuting attorney was unable to make available for examination by appellant. We affirm.
Whether the trial court erred in refusing to suppress evidence obtained by the police tactic of “knock and talk”
In reviewing a trial court’s denial of a motion to suppress, the appellate court makes an independent examination based on the totality of the circumstances and will reverse only if the ruling was clearly against the preponderance of the evidence. Muhammad v. State, 337 Ark. 291, 988 S.W.2d 17 (1999); Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997). “Knock and talk” is a method used by police officers to obtain valid consent to search. See, e.g., United States v. Powell, 929 F. Supp. 231, 232 (S.D. W.Va. 1996); United States v. Cruz, 838 F. Supp. 535, 543 (D. Utah 1993). The tactic has been used by police officers when there is information that drugs can be found in a residence but probable cause for a search warrant is lacking. See State v. Smith, 488 S.E.2d 210 (N.C. 1997). In Smith, the trial court explained the procedure as follows:
The officers . . . proceed to the residence, knock on the door, and ask to be admitted inside. Thereafter gaining entry, the officers inform the person that they’re investigating information that drugs are in the house. The officers then ask for permission to search and apparently are successful in many cases in getting the occupant’s “apparent consent”.
488 S.E.2d 210, 212 (N.C. 1997).
Under Ark. R. Crim. P. 11.1, an officer may conduct searches and make seizures without a search warrant or other color of authority if consent is given to the search or seizure. The consent for a warrantless search of an individual’s home must be given freely and voluntarily, and the burden rests upon the State to prove by clear and positive evidence that consent was given freely and voluntarily. Burdyshaw v. State, 69 Ark. App. 243, 10 S.W.3d 918 (2000). On appeal, the reviewing court makes an independent determination based on the totality of the circumstances to determine if the State has met its burden. Id. Although we have stated that the State must prove that consent was not the product of duress or coercion, we have declined to say that mere acquiescence to lawful authority is not consent. See Evans v. State, 33 Ark. App. 184, 804 S.W.2d 730 (1991), citing Schneckloth v. Bustamonte, 412 U.S. 218 (1973), and Bumper v. North Carolina, 391 U.S. 543 (1968).
Hadl concedes on appeal, as he did below, that he gave the officers permission to conduct the search and that he never revoked the consent. He argues, however, that the “knock and talk” search is inherently coercive, and that it therefore violates the Fourth and Fourteenth Amendments of the United States Constitution as well as Arkansas Rules of Criminal Procedure governing arrest. Hadl also points to the rule of State v. Ferrier, 960 P.2d 927 (Wash. 1998), that prior to entering a house, police officers who conduct a “knock and talk” procedure to gain consent for a warrantless search of a home must inform a person that he or she may lawfully refuse to consent and may revoke the consent at any time. However, the Arkansas Supreme Court has stated that knowledge of the right to refuse consent to search is not a requirement to prove the voluntariness of consent, and that a finding of voluntariness will be affirmed unless that finding is clearly against the preponderance of the evidence. Chism v. State, 312 Ark. 559, 853 S.W.2d 255 (1993).
Officer Chris Poe of the Jonesboro Police Department testified at both the suppression hearing and at trial. Poe stated that he and Officer Weaver, acting on information about a possible methamphetamine lab, went to a house on Willow Road that turned out to be William Hadl’s home. Poe said that he initially went to the rear of the house and Weaver went to the front, but that Weaver called him to the front of the house after Hadl’s son answered the door. Poe testified that he told Mr. Hadl about the officers’ information, that Hadl denied having a lab at the house, that Poe asked Hadl for consent to search his house, and that Hadl assented and also gave permission for Poe to go to the back of the house. Poe stated that he spent at least an hour in the house, that he found in Mr. Hadl’s bedroom marijuana seeds and drug paraphernalia, and that he found an HCL generator beside the back porch at the rear of the house. Both officers testified that items pertaining to methamphetamine were found outside.
Arkansas case law and rules of criminal procedure do not require police officers who gain consent for a warrantless search of a home to first inform a person that he or she may lawfully refuse to consent and may revoke the consent at any time. In the present case, Officer Poe testified that after he and Officer Weaver approached Hadl’s house, Hadl’s son consented to the officers’ search of the house, and Hadl consented to further search of the premises. The search resulted in seizure of items that led to the charges against Hadl and, ultimately, to his convictions. We find that the officers’ testimony constitutes clear and positive evidence that consent was given freely and voluntarily, and was not the product of duress or coercion. Therefore, we affirm the trial court’s denial of Hadl’s motion to suppress the items that were found as a result of the warrantless search.
Whether the trial court erred in refusing to suppress evidence because the prosecutor was unable to produce certain seized evidence
At trial, the State introduced into evidence photographs of the seized items rather than the actual items that were seized. Hadl argues that his motion to suppress the photographs of the evidence should have been granted on the basis that the State destroyed the evidence. He argues that the items could have been subjected to fingerprint identification, and that such fingerprint evidence could have proved exculpatory if the fingerprints were found to belong to someone else. He concedes that the photographs accurately depict the items seized.
At the pretrial suppression hearing, the trial court ruled that Hadl could argue to the jury that fingerprints could have been taken as proof of who owned the items but that prints were not taken. At trial the court also ruled that Hadl’s argument of prejudicial destruction of evidence could be made to the jury, and that the absence of items could be the subject of cross-examination. Officer J. P. French of the Jonesboro Police Department and the Second Judicial District Drug Task Force then testified that he took the photographs of the evidentiary items because the chemicals were considered to be hazardous waste. He testified that the hazardous-waste contractor was contacted after the items were tested at the state crime lab, and that the police department had no control of the items after the contractor seized them.
The Supreme Court held in Brady v. Maryland, 373 U.S. 83 (1963), that the prosecution’s suppression of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution. In Strickler v. Greene, 527 U.S. 263 (1999), the Brady holding was extended to encompass impeachment evidence as well as exculpatory evidence, and the duty to disclose was held to apply even in the absence of a request by the accused. Larimore v. State, 341 Ark. 397, 17 S.W.3d 87 (2000). Such evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,” and the rule encompasses evidence “known only to police investigators and not to the prosecutor.” 341 Ark. at 404, 17 S.W.3d at 91 (quoting Strickler, supra).
Hadl states on appeal that he “feels that there is a reasonable probability” that the missing evidence “would have resulted in a different outcome” of his case. We do not view his bare allegation as rising to a reasonable probability that impeachment or exculpatory evidence would have been favorable to his defense. Thus, we find no merit in his contention that the trial court erred in refusing to suppress evidence because the prosecutor was unable to produce the seized items.
Affirmed.
Jennings, J., agrees.
Griffen, J., concurs. | [
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Andree LAYTON Roaf, Judge.
Victor Mature Jackson appeals from an order of the Union County Circuit Court affirming his dismissal by the El Dorado School District, hereinafter “the District.” On appeal, Jackson argues: 1) the circuit court erroneously applied a substantial compliance standard rather than strict compliance; 2) the District failed to comply with the law requiring a “simple but complete statement of the reasons” for a termination recommendation; and 3) the District failed to vote on the truth of each reason given to Jackson in support of the recommended termination. We conclude that the District failed to strictly comply with the procedural requirements of the Arkansas Teacher Fair Dismissal Act (ATFDA), and therefore, this case must be reversed.
Jackson had been a teacher with the District for twenty-two years. On February 3, 1999, a front-page article appeared in the íocal paper stating that Jackson had been arrested for theft by receiving and simultaneous possession of drugs with intent to deliver and handguns. The article also stated that police confiscated from Jackson’s residence a quantity of marijuana, ten handguns, at least four “long guns,“and other consumer goods including televisions, VCRs, lawnmowers, and automobile parts and accessories.
The El Dorado Police Department prepared an incident report, dated February 2, 1999, that recited that Jackson’s offenses were “theft by receiving” and “simultaneous possession of controlled substances w/int. to del/ handgun.” In a section listing “types of criminal activity (max 3),” buying, distributing/selling, and possessing/concealing, were checked. A narrative by Detective Dykes recited that Jackson had consented to the search of his residence on February 2, 1999, and that a quantity of weapons and drugs were discovered in the search.
The day after the article appeared, the superintendent and another school official met with Jackson to discuss the charges in the incident report. At the meeting, the superintendent gave Jackson a letter styled: “Notice of Termination and Suspension,” notifying him of his immediate suspension as a teacher, and advising him that the superintendent would recommend to the school board that Jackson be terminated for the reasons stated in the police incident report and the February 3, 1999, newspaper article. Copies of the incident report and article were attached to the letter.
The District provided Jackson with a hearing before the school board on March 23, 1999. In a transcript of the school-board meeting that was made a part of the later hearing in circuit court, Detective Randy Dodd testified that after the department had received complaints about Jackson selling drugs and exchanging property for money, they approached Jackson at school and he admitted that he was running a loan business. They accompanied Jackson to his residence where he consented to a search, and they found a defaced handgun, a quantity of consumer merchandise, numerous cases of beer, and a bowl of “dime” bags of marijuana in plain view in a storage room. Detective Dodd stated that Jackson admitted that he had been running a pawn business for four years, but wanted to consult with an attorney before discussing the marijuana. Ultimately Jackson gave a statement to Detective Sgt. Phillips in which he admitted that he was selling drugs. The police department could not make a case that the pawned items were stolen and ultimately they were returned to Jackson. Jackson admitted that he did not have a pawn license, but claimed that he was unsure whether he needed one. Detective Dodd also testified that he had reports that someone was selling beer for Jackson on Sunday, but that investigation of that offense was outside the department’s jurisdiction.
Doyle Woodall, principal at Northwest Elementary where Jackson taught, testified that he had to “talk to” Jackson about complaints of people “coming and going” on campus. Jackson’s attorney objected to the presentation of “write-ups” concerning Jackson’s visitors as being outside of what was contained in the notice, and the board was admonished not to consider them.
Jackson’s brother, Grady Wayne Christopher, stated that he owned the marijuana found at Jackson’s house and used it to manage his pain. Jackson admitted to operating what he called a “loan company, “denied knowing that the defaced firearm was defaced, claimed he did not know that there was marijuana in his store room, stated that his firearms were locked up, denied making the statement to Sgt. Phillips, claimed he bought the beer from an acquaintance who had bought it on a credit card and needed cash and that he sold it to friends who came to his house to watch ball games on his big-screen TV Jackson admitted that he pled guilty to two of the criminal charges filed against him,-operating a pawn shop without a license, and possession of a defaced firearm. Jackson was acquitted of the charge of possession of a controlled substance with intent to deliver.
At the conclusion of the hearing, the school board went into executive session and discussed the evidence. When it returned to regular session, the board voted six-to-two to terminate. Subsequently all board members signed a letter dated March 30, 1999, that recited the evidence presented at the March 23 hearing and stated in pertinent part that “the Board found the reasons as contained in the notice to you ... to be true and by a vote of six to two terminated your contract effective immediately.” The letter further stated that:
Specifically, the Notice states that if the charges as reported in the front page article of the El Dorado News Times dated February 3, 1999, are true, then cause exists for your termination in the District. The Board specifically finds that you were arrested as stated in the newspaper article, you had in your possession marijuana sufficient to warrant charging you with possession with intent to deliver, you had in your possession a defaced firearm, and evidence indicated you were operating a pawn shop without a license. Accordingly, the Board found the charges as stated in the newspaper article and as set forth in the Notice of February 5, 1999, from the Superintendent to you to be true.
Accordingly and pursuant to the vote taken in the presence of your attorney following the hearing on March 23, 1999, your contract with the El Dorado School District is terminated as of 9:00 p.m. on March 23, 1999.
The letter was signed by all eight school-board members with the two dissenting members indicating “no” beside their names.
Jackson filed a complaint in circuit court that alleged in pertinent part that his termination was void because the District failed to strictly comply with the ATFDA in regard to the notice and voting procedure of the board, and that the board’s decision to terminate him was arbitrary, capricious, and discriminatory. Jackson requested reinstatement, back pay, and attorney fees.
At the circuit court hearing, Jackson introduced depositions of the school-board members along with documentary evidence of his notice of termination. In the depositions, two of the eight board members testified that they voted against termination in essence because they did not believe that there was enough evidence at the time to determine if Jackson was guilty of the charges levied against him. Of the remaining members, four stated that they concluded that Jackson owned the marijuana found in his home and also that he had committed some of the other offenses that were discussed at the meeting, one testified that she was unable to decide about the marijuana, but voted to terminate based on the “perception problem” that retaining Jackson would create, and one other member stated that his “final vote” was “in favor of the superintendent’s recommendation. ” Several board members testified that no consensus was reached in executive session, that no “straw vote” was taken on the various issues considered, and that matters not specifically contained in Jackson’s written termination notice were discussed, including the sale of beer on Sunday, operation of an illegal pawn shop, and possession of a defaced weapon.
The circuit court upheld the school board’s decision, finding that the allegations of running an illegal pawn business, possessing a defaced weapon, and the sale of beer were “related matters.” The court found that Jackson had adequate notice of the charges, including the pawn shop charge, and that, even though acquitted of the drug charges, Jackson was “well aware of the basis for the recommendation,” and he had “ample opportunity” to prepare a defense. In the order affirming Jackson’s dismissal, the circuit court opined that because a majority of the board members felt that the marijuana belonged to Jackson or that he had knowledge of it, the outcome would have been the same, and without a showing of “prejudice,” the alleged error in considering matters outside the scope of the notice was harmless. The trial court further found that the action of the board was not arbitrary and capricious within the meaning of the ATFDA. Jackson appeals from this order.
The substantive portion of the Arkansas Teacher Fair Dismissal Act (ATFDA), Ark. Code Ann. § 6-17-1501 etseq. (Repl. 1993), allows a school district to terminate a teacher for any reason that is not arbitrary, capricious or discriminatory. Ark. Code Ann. § 6-17-1503 (Repl. 1993). A reason will be considered arbitrary and capricious only if it is not supportable on any rational basis. Lee v. Big Flat Pub. Schs., 280 Ark. 377, 658 S.W.2d 389 (1983). The procedural part of the ATFDA mandates that a school district strictly comply with certain procedures in order to terminate or non-renew a teacher. While it is not the function of the appellate court to substitute its judgment on renewal matters for either that of the circuit court or that of the School Board, whether or not a district has stricdy complied is a question of law to be reviewed by the appellate court. Hamilton v. Pulaski County Special School Dist., 321 Ark. 261, 266, 900 S.W.2d 205 (1995). If a school district fails to strictly comply with the procedures, then the termination is void. Western Grove School Dist. v. Terry, 318 Ark. 316, 885 S.W.2d 300 (1994).
We first address Jackson’s argument that the district’s termination notice failed to comply with the “simple but complete” notice requirement. He asserts that the notice only addressed two charges, theft by receiving and simultaneous possession of drugs with intent to deliver and handguns. However, other matters were considered by the board including: (1) incidents and reprimands in previous years in connection with persons coming on campus to communicate and engage in personal business with Jackson; (2) whether Jackson sold beer on Sundays; (3) whether Jackson was running a pawn shop without a license; (4) the perception that the publicity surrounding Jackson’s arrest made it impossible to retain him as a teacher; (5) whether he was in possession of a defaced firearm; and (6) whether he was in possession of marijuana (regardless of whether there was an intent to deliver or simultaneous possession of a firearm). This argument has merit.
At all relevant times with regard to this case, the notice requirement of the Arkansas Teacher Fair Dismissal Act as set forth in Ark. Code Ann. § 6-17-1507 (Repl. 1993), provided:
(a) A teacher may be terminated during the term of any contract for any cause which is not arbitrary, capricious, or discriminatory.
(b) The superintendent shall notify the teacher of the termination recommendation.
(c) The notice shall include a simple but complete statement of the grounds for the recommendation of termination and shall be sent by registered or certified mail to the teacher at the teacher’s residence address as reflected in the teacher’s personnel file.
As Jackson correctly notes, strict compliance with the notice provisions is required. Hamilton v. Pulaski County Special School Dist., supra.
Here, the notice document, consisting of the superintendent’s letter and the attached February 3, 1999, newspaper article and police incident report, only gave Jackson notice that the District intended to dismiss him if the charges of theft by receiving and simultaneous possession of drugs with intent to deliver and firearms were “true.” Jackson was not given notice about the illegal pawn business charge, the possession of a defaced firearm charge, or the illegal beer sale charge. The depositions of the school-board members and the board’s letter to Jackson proved that these charges were discussed, included in the decision to terminate, and were at least as important as the charges of which Jackson had notice.
We are not unmindful of the dissent’s contention that strict compliance with aspects of the ATFDA may be waived; however, we believe that their reliance on Lester v. Mt. Vernon-Enola Sch. Dist., 323 Ark. 728, 917 S.W.2d 540 (1996) is misplaced. In Lester, the supreme court acknowledged that a waiver was possible, however, it rejected the argument that a waiver existed in that case because there was no evidence in the record that the appellant made a knowing and intelligent waiver of strict compliance with the time specified in the ATFDA in which to conduct a hearing before the school board. Significantly, the supreme court failed to find an effective waiver in Lester despite the fact that the appellant had requested a hearing “as soon as possible.” Similarly, in the instant case, we can find no evidence whereby we can conclude that Jackson made a knowing and intelligent waiver of the notice requirement. Moreover, while it is true that Jackson admitted that officials from the District had discussed with him some of the additional charges that were to be presented to the school board, they apparently did not disclose all the charges, which would have rendered the notice infirm even under a substantial-compliance standard.
Jackson also argues that the termination vote is infirm because the District failed to vote on the truth of each reason given in support of the recommended termination. Citing Nettleton Sch. Dist. v. Owens, 329 Ark. 367, 948 S.W.2d 94 (1997), Jackson contends that the school board failed to strictly comply with the requirement that it make “specific written conclusions with respect to each of the reasons” for his termination and obtain a majority vote on each. of the reasons. Jackson asserts that several board members voted to terminate based on reasons other than those that he received notice of in the superintendent’s letter. Furthermore, he contends that the attempt to comply with the written-findings requirement by having the board sign a letter one week later did not succeed because it was clear that there was not a vote on each reason, as required by Nettleton. This argument also has merit.
The portion of the ATFDA in question, Ark. Code Ann. § 6-17-1510(c) (Repl. 1993), provides as follows:
Subsequent to any hearing granted a teacher by this subchapter, the board, by majority vote, shall make specific written conclusions with regard to the truth of each reason given the teacher in support of the recommended termination or nonrenewal.
In the instant case, it is apparent that the two reasons stated in the notice were not separately voted on. Moreover, as noted above, there were several additional reasons for Jackson’s termination that were presented and considered at the hearing, which were also not separately voted on, and the only vote taken was when the board returned to open session. Once again, there was not strict compliance with the statute.
In Nettleton Sch. Dist. v. Owens, supra, the supreme court held that the school district did not strictly comply with Ark. Code Ann. § 6-17-1510(c), by “failing to obtain a majority vote with regard to the truth of each reason given to Owen in support of the recommended termination” and that this failure was “even more troublesome” in light of the District’s consideration of incidents not included in her notice of termination in violation of Ark. Code Ann. § 6-17-1507(c). As in Nettleton, we have both the failure to give Jackson written notice of all the incidents considered at his termination hearing and the failure to conduct a separate vote on the truth of the reasons for his termination. Significantly, two of the three specific reasons listed in the Board’s letter, possession of a defaced firearm and operation of a pawn shop without a license, were not included as grounds in the termination notice provided to Jackson. Accordingly, because the District failed to strictly comply with the ATFDA in both giving the required notice and in conducting a separate vote on each of the reasons for termination, we have no choice but to reverse the circuit court.
Reversed and remanded.
Pittman, Griffen, Vaught, and Crabtree, JJ., agree.
Bird, Robbins, Baker, and Hart, JJ., dissent. | [
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John F. STROUD, Jr., Chief Judge.
This is a workers’ compensation case. Appellee, Judy Leach, suffered a back injury in 1993 for which she underwent surgery. She had worked for appellant, Wal-Mart Stores, Inc., for almost twenty years at that time, but she did not claim that the injury was work-related and therefore she did not claim workers’ compensation benefits. She left her employment with appellant for approximately three years following the back surgery; however, she returned to work for appellant in 1996, working at different jobs and eventually returning to warehouse work.
On May 29, 1998, she visited her doctors with symptoms related to her back. She continued to submit her medical bills under her group health coverage. She did not make a workers’ compensation claim at that time. Her last visit to Dr. Tony Raben associated with those particular symptoms was July 11, 1998.
On March 29, 1999, she returned to Dr. Raben with similar complaints, and he took her off work until June 14, 1999. She reported that her work required bending, twisting, and lifting. An April 1, 1999, MRI scan revealed a reherniation at level L5-S1 as well as a disc herniation at the L4-5 level on the right. On April 5, 1999, appellee reported to her employer that she had suffered a low-back work injury based on a gradual-onset theory. Appellant contested the claim. The ALJ found that appellee sustained a gradual-onset type aggravation to a pre-existing condition, which exacerbated her previous low back problems; that the repetitive lifting, bending, twisting, pushing, pulling, and standing of her job caused appellee’s pre-existing back condition to become symptomatic, requiring medical treatment; that her medical-treatment program resolved her symptoms to the point of her previous status as of June 14, 1999; and that appellant should pay for medical treatment and temporary total disability from March 29, 1999, to June 14, 1999. The Commission affirmed and adopted the ALJ’s decision. Both parties have appealed from the decision. We affirm on the direct appeal and on the cross-appeal.
For its sole point of appeal, appellant contends that the Commission’s grant of benefits was not supported by substantial evidence. We disagree.
On appeal, this court views the evidence in the light most favorable to the Commission’s decision and affirms when that decision is supported by substantial evidence. Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000). Substantial evidence exists if reasonable minds could reach the same conclusion. Id. Moreover, we will not reverse the Commission’s decision unless fair-minded persons could not have reached the same conclusion when considering the same facts. Id. We defer to the Commission in determining the weight of the evidence and the credibility of the witnesses. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001).
When a claimant requests benefits for an injury characterized by gradual onset, Arkansas Code Annotated section 11-9-102(4)(A)(ii) (Supp. 1999) controls, defining “compensable injury” as follows:
(4) (A) (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:
(b) A back injury which is not caused by a specific incident or which is not identifiable by time and place of occurrence[.]
A claimant seeking benefits for a gradual-onset injury must prove by a preponderance of the evidence that: (1) the injury arose out of and in the course of his or her employment; (2) the injury caused internal or external physical harm to the body that required medical services or resulted in disability or death; and (3) the injury was a major cause of the disability or need for treatment. Freeman, supra. Furthermore, objective medical evidence is necessary to establish the existence and extent of an injury, but it is not essential to establish the causal relationship between the injury and the job. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999).
In support of its contention that the Commission’s grant of benefits was not supported by substantial evidence, appellant raises the following sub-points: 1) that appellee failed to establish a causal connection between her low-back injury and her work activities, arguing that “while it is undisputed that appellee suffered from a herniated disc revealed in an April 1999 MRI, no credible evidence has been presented connecting this disc injury with appellee’s work for appellant”; and 2) that appellee “failed to provide objective findings establishing that the major cause of her need for additional treatment was a March 1999 aggravation, as opposed to continued symptoms stemming from her 1993 treatment,” and in particular that the language employed by Dr. Raben in his clinic note of May 5, 1999, was too speculative to demonstrate the necessary objective medical findings to establish major cause. We do not agree.
Matters of credibility are for the Commission to determine. Wal-Mart Stores, Inc. v. Van Wagner, supra. Moreover, we conclude that there was substantial evidence presented to connect appellee’s disc injury to her job. Appellant described her job of watch scanner as a much more physical job than others that she had performed. She stated that the boxes on the conveyer were very large boxes; that she had to scoot the boxes to the back of the conveyor belt and flip them over to cut off the tops; that she would then take a watch from a box, scan it, and place the watch in another box that sat immediately to her right; that she then had to pick up the box and move it to another conveyor; and that her biggest complaint with these jobs was the twisting.
Furthermore, although appellee had continued to experience problems from her 1993 injury, the April 1999 MRI showed a herniated disc, and there was no indication that she had the herniated disc before returning to work with appellant. Clearly, the herniated disc was the injury causing the need for treatment, and its existence was established by the MRI of April 1, 1999, which was objective medical evidence.
Finally, the language employed by Dr. Raben that is challenged by appellant provides in pertinent part:
I think within a reasonable degree of medical certainty that she will be able to get back to a light and/or sedentary position. I am not sure that she will be able to do repetitive bend/lift/twist. In fact, this type of work could very well within a reasonable degree of medical certainty have been the cause of this extruded disc herniation that gave her right lower extremity pain.
(Emphasis added.) However, in making its argument that this language was too speculative, appellant relies in part upon our opinion in Freeman v. Con-Agra Frozen Foods, 70 Ark. App. 306, 27 S.W.3d 732 (2000), which was subsequently reversed by our supreme court in Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). The more recent supreme court opinion in Freeman does not support appellant’s position. Furthermore, we need not decide whether Dr. Raben’s use of the phrase, “could very well within a reasonable degree of medical certainty have been the cause of this extruded disc herniation ... ,” is speculative under Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000), or whether it satisfies the requirements established by Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001), because the opinion of the ALJ that was adopted by the Commission does not indícate that Dr. Raben’s surmise was critical to its determination of causation, and because there were sufficient other matters enumerated to support the Commission’s decision.
In short, reasonable minds could reach the same conclusion as the Commission. We therefore conclude that its decision was supported by substantial evidence.
For her sole point on cross-appeal, appellee contends that there is not substantial evidence to support the decision of the Commission that the aggravation was only temporary in nature. We disagree.
Appellee testified that she last saw Dr. Raben on July 1, 1999, and that she did not have a return appointment; that her lower back is much better; that she still has some pain, but “nothing like before.” She has been off work since July 1, 1999, but that is because of her shoulder, not her low-back injury. We conclude that reasonable minds could reach the same conclusion as that reached by the Commission that appellee’s aggravation was only temporary in nature.
Affirmed on direct appeal and on cross-appeal.
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Wendell L. Griffen, Judge.
Columbia Mutual Insurance Company (Columbia) appeals a decision by a Washington County chancellor that dismissed appellant’s complaint with prejudice after concluding as a matter of law that 1) the statutory definition of policy cancellation did not apply to unilateral terminations or cancellations by a policyholder, 2) Columbia was not entitled to contribution, indemnity, or subrogation against appellee Home Mutual Fire Insurance Company (Home) because Home’s policy was effectively terminated prior to a fire loss, and 3) Columbia lacked standing to complain. We affirm.
Factual and Procedural History
This matter was submitted to the chancellor on stipulated facts that were jointly agreed to by the parties and adopted by the chancellor as his findings of fact.
Home issued an insurance policy to Vernon or Lynn Scantling that became effective on July 8, 1997, and covered the period from August 12, 1997, to August 12, 1998. The policy named Farmers Bank of Greenwood (Farmers) as the mortgagee of the premises, and included coverage of $60,000 for the residence as well as $18,000 for the Scantlings’ personal property. On June 17, 1998, Vernon Scantling directed his insurance agent, Hughes Insurance Agency, to immediately cancel the Home policy. The agent did so, and Home prepared a notice of cancellation that was to take effect at 12:01 a.m. on June 17, 1998. Home mailed the notice to Farmers on June 18, 1998, and Farmers received it the next day. On the same date, Home mailed the Scantlings’ agent a full refund of the unearned premium. The agent issued the refund to the Scantlings on June 23, 1998.
Using Steve Standridge Insurance, Inc., the Scantlings completed an application on June 19, 1998, to insure the property with Columbia. Standridge issued a binder to the Scantlings that listed Farmers as the mortgagee on the Columbia policy. The binder covered the period from June 19, 1998, to June 18, 1999. It bound Columbia to cover $90,000 on the Scantlings’ dwelling with a $500 deductible and to cover the Scantlings’ personal property in the amount of $45,000. Farmers received notice of the issuance of the Columbia policy and did not object.
On June 28, 1998, the property, which was insured pursuant to the Columbia policy that listed Farmers as lienholder, was totally destroyed by fire. At the time of the fire, an outstanding mortgage in the amount of $85,426.09 was owed to Farmers. Columbia satisfied its obligation to Farmers as loss payee, but denied payment to the Scantlings, contending that the policy was void ah initio because of fraudulent and material misrepresentations in the Scant-lings’ application for insurance. Although Home was notified of the loss, neither Farmers nor Columbia submitted a proof of loss or other written verification of the loss to Home, which denied any liability to the Scantlings, Farmers, or Columbia. Both the policy issued by Columbia and the policy issued by Home included pro-rata clauses that provided for payment of only a pro-rata share of the loss in the event there was other valid insurance in force at the time of the loss.
After satisfying its obligation to Farmers, Columbia instituted this action against Home, claiming it was entitled to contribution, indemnity and subrogation against Home for the pro-rata share of the loss because the cancellation was not timely under the terms of appellee’s policy. Following an August 17, 2000, hearing, the chancellor dismissed appellant’s complaint with prejudice after concluding as a matter of law that 1) the statutory definition of policy cancellation was only applicable to unilateral cancellations and therefore did not apply to termination or cancellation by the policyholder, 2) that Columbia was not entitled to contribution, indemnity, or subrogation, equitable or contractual against Home because Home’s policy was effectively terminated prior to a fire loss, and 3) that Columbia lacked standing to complain regarding Home’s failure to meet cancellation requirements because Farmers had not sought to enforce any interest it might have had as a third-party beneficiary of the insurance contract. Columbia now appeals.
Standard of Review
Chancery decisions are reviewed de novo. While we do not set aside a chancellor’s findings of fact unless we determine that the findings are clearly erroneous, a chancellor’s conclusions of law are not afforded the same deference. See Duhac v. City of Hot Springs, 67 Ark. App. 98, 992 S.W.2d 174 (1999). This is so because a chancellor stands in no better position to apply the law than we do. See id. Thus, when we decide that a chancellor erroneously applied the law and that an appellant suffered prejudice as a result, we will reverse the erroneous ruling. See id.
Finality
Before beginning our analysis, we initially address the issue of finality. Rule 54(b) of our Rules of Civil Procedure requires that when multiple claims or multiple parties are involved, the court may direct the entry of a final judgment as to one or fewer claims or parties provided that the court makes an express determination, based on specific findings of fact, that there is no sound reason for the delay. In the present case, appellant sued appellee for contribution, indemnity, and subrogation. The Scantlings moved to intervene, and the motion was granted. Next, the Scantlings filed a complaint in intervention, claiming an interest in any proceeds, and stating that they had pending litigation against appellant that would entitle them to certain proceeds.
The parties submitted the case to the chancellor based on stipulated facts. Among the stipulated facts were the parties’ agreement that 1) although a dispute arose between Farmers and Columbia regarding Columbia’s entitlement to receive a full assignment and transfer of the mortgage and all securities held as collateral, the dispute was resolved by settlement, and 2) a settlement was reached between the Scantlings, Columbia, Steve Standridge Insurance Agency, Steve Standridge individually, and Utica Mutual Insurance Company (the liability insurance carrier for Steve Standridge Insurance Agency).
The chancellor’s order dismissing the complaint with prejudice makes no mention of the Scantlings’ complaint and the chancellor also failed to make an express determination as required by Rule 54(b). Although the better practice would have been for the judge to place an order in the record, the stipulation recites the settlement. Thus, no outstanding issue remains that would create piecemeal litigation.
Effectiveness of Policy Cancellation
Appellant initially argues that the Home policy was in effect at the time of the fire loss because 1) the terms of Home’s policy required a ten-day written notice to Farmers prior to the Scant-lings’ unilateral cancellation, and 2) Arkansas Code Annotated section 23-66-206(11)(B) (Supp. 1999) mandates that Home provide a twenty-day notice to Farmers prior to the cancellation becoming effective.
Policy Language
In reviewing an insurance policy, we submit to the principle that when the terms of the policy are clear, the language in the policy controls. See Vincent v. Prudential Ins. Brokerage, 333 Ark. 414, 970 S.W.2d 215 (1998). There is no need to apply rules of construction when a clause is not ambiguous. See id.
Generally, a standard mortgage clause serves as a separate contract between the mortgagee and the insurer, as if the mortgagee had independendy applied for insurance. See Fireman’s Fund Ins. Co. v. Rogers, 18 Ark. App. 142, 712 S.W.2d 311 (1986). Thus, the rights of a named mortgagee in an insurance policy are not affected by any act of the insured, including improper and negligent acts. See Hatley v. Payne, 25 Ark. App. 8, 751 S.W.2d 20 (1988).
Rule 52(a) of the Arkansas Rules of Civil Procedure allows a party to request findings of fact and mandates that a court issue specific findings of fact and state separately its conclusions of law when a party requests the court to do so. A party may also request that a court amend its findings of fact or make additional findings no later than ten days after the court enters its judgment.
Here, Home’s policy contained a mortgage clause, which reads as follows:
This insurance, as to the interest of the mortgagee only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property.
This Company reserves the right to cancel this policy at any time, as provided by its terms, but in such case this policy shall continue in force for the benefit only of the mortgagee for ten days after notice to the mortgagee of such cancellation and shall then cease.
Based on the above language, appellant advances the argument that because the mortgage clause precluded any act by the Scant-lings from impairing the rights of Farmers, Home effectively canceled the Scantlings’ policy as it pertained to Farmers’ interest. Appellant asserts that once Home canceled the policy, it was required to continue to provide coverage to Farmers for ten days after it notified Farmers. While appellant acknowledges on appeal that the chancellor did not decide whether Home’s policy was effectively canceled prior to the fire, a review of the chancellor’s order indicates that the chancellor actually made no determination as to whether Home’s policy required Flome to give five or ten days’ notice to Farmers and instead found that, based on the stipulation of facts, appellant lacked standing to complain because Farmers did not seek to enforce any interest it might have exercised as a third-party beneficiary. Thus, the chancellor made no ruling as to 1) when Home effectively canceled its policy, or 2) what notice, if any, Home was required to give Farmers. Because appellant failed to request that the chancellor amend his findings to address these issues, we decline to address them on appeal.
Applicability of Arkansas Code Annotated section 23-66-206(11)(B)
Chapter 66 of Title 23, titled the Trade Practices Act, governs the trade practices of individuals engaged in the business of insurance. See Ark. Code Ann. § 23-66-203 (Repl. 1994). The Act, which is designed to protect the public, prohibits unfair methods of competition and unfair trade acts or practices. See Ark. Code Ann. § 23-66-202(a) (Repl. 1994). However, the Act does not establish or extinguish a private right of action based on a violation of its provisions. See Ark. Code Ann. § 23-66-202(b) (Repl. 1994).
Under a subsection titled “Unfair methods of competition and unfair or deceptive acts or practices defined,” Arkansas Code Annotated section 23-66-206(11)(B) (Supp. 1999) provides as follows:
Cancellations of property and casualty policies shall only be effective when notice of cancellation is mailed or delivered by the insurer to the named insured and to any Hen-holder or loss payee named in the policy at least twenty (20) days prior to the effective date of cancellation.
Notice of a cancellation provides an insured the opportunity to seek insurance elsewhere prior to the insured having no protection. See Grubbs v. Credit General Ins. Co., 321 Ark. 479, 939 S.W.2d 290 (1997). Because notice serves to protect the public, many jurisdictions have held that when the insured requests that an insurer cancel the policy and shortly thereafter obtains replacement coverage, statutes regarding notice of cancellation are not applicable. See 2 Couch on Insurance, § 30:8 (3d ed. 2000). Whenever notice is an issue, the plain language of the governing statute or the insurance policy must be strictly adhered to.
In American States Ins. Co. v. Southern Guar. Ins. Co., 53 Ark. App. 84, 919 S.W.2d 221 (1996), the insured canceled his insurance with the first insurance carrier in order to obtain coverage with a second insurer, and the agent issued a binder for automobile coverage with the second insurance carrier. Following an accident, the second carrier paid the damages, but filed suit against the first carrier, alleging that the first carrier’s insurance was still in effect. The trial court disagreed and granted summary judgment after finding that the first policy had been canceled and was not in effect at the time of the accident. We affirmed the trial court, finding that although an insured seeking to cancel a policy must request the cancellation in an unequivocal and absolute manner, there was no uncertainty that the insured had exercised his right to cancel the policy and had canceled it. See American States, supra.
A straightforward reading of the Trade Practices Act leaves little doubt that the Act is designed to regulate the activities of those engaged in the business of insurance. As such, the Act is not applicable to cancellations by a policyholder. Thus, the instant case is not analogous to cases concerning an insurer who unilaterally canceled the insurance policy of an insured.
Similar to the facts present in American States, supra, the Scant-lings unilaterally and unequivocally canceled their policy with appellee, who in turn notified Farmers. Home then returned the unearned premium to the Scantlings. The Scantlings immediately obtained replacement insurance through Columbia, who accepted their application, took their premium, and issued a policy. These actions all occurred prior to the date of the fire.
Because the Scantlings requested that Home terminate their policy and simultaneously obtained greater replacement insurance coverage, we hold that the chancellor correctly concluded that the notice requirement of subsection 11(B) does not apply and that Home’s policy was effectively terminated prior to the fire loss.
Standing
Columbia asserts that the statutory provisions of Arkansas Code Annotated section 23-66-206(11)(B) (Supp. 1999) provide a basis for it to assert a claim against Home for failure to follow the statutory notice provisions in regards to Farmers. However, as previously discussed, the Trade Practices Act expressly states that it provides no private right of action, and the Act applies to cancellations by an insurer, not unilateral cancellations by an insured. As such, the chancellor correctly determined that Columbia lacked standing.
Entitlement to Equitable or Contractual Contribution or Subrogation
Next, appellant argues that because the residence was primarily covered by Home as well as appellant, Farmers could have sought to collect from either insurer. Appellee responds that because Farmers waived any complaint regarding Home’s cancellation of the Scantlings’ policy, Columbia has no rights as a subrogee. It also contends that Columbia had no subrogee rights as to Farmers because its payment to Farmers arose out of a discharge of its direct contractual obligation to Farmers. It argues that because Home’s policy was not in force at the time of the fire loss, Columbia is not entitled to contribution. We hold that because the chancellor correctly concluded that Home’s policy was not in effect at the time of the fire loss, and that Columbia lacked standing to challenge Home’s failure to provide statutory notice to Farmers, appellant’s arguments are moot.
Alternatively, the arguments are not persuasive. Subrogation allows an insurer to step in the shoes of an insured. See Shelter Ins. Co. v. Arnold, 57 Ark. App. 8, 940 S.W.2d 505 (1997) (quoting with approval Williams v. Globe Indemnity Co., 507 F.2d 837 (8th Cir. 1974)). In order for equitable subrogation to apply, a debt or obligation must exist for which someone other than the subrogee is primarily liable and whom the subrogee discharges to protect the subrogee’s rights. See Moon Realty Co. v. Arkansas Real Estate Co., 262 Ark. 703, 560 S.W.2d 800 (1978).
The parties in the matter at hand stipulated that “Farmers Bank of Greenwood was entitled under the terms of the Columbia Mutual Insurance Company policy to receive payment made to it by Columbia Mutual Insurance Company.” This being so, Colum bia could not have been subrogated to the rights of Farmers, because Columbia’s payment to Farmers arose out of a primary obligation that Columbia owed Farmers.
Contribution
Equitable contribution occurs when two or more valid insurance policies cover a particular risk of loss and a particular accident. See Fireman’s Fund Ins. Co. v. Maryland Cas. Co., 65 Cal. App. 4th 1279 (1998). As previously discussed, Home’s policy was not in effect at the time of the fire. Nothing in the record indicates that Columbia knew of the existence of the Home policy prior to its decision to issue a policy to the Scantlings, that the issuance of the policy or the premium rates were contingent on the existence of other insurance, or that Home gained a profit at the expense of Columbia. There is no indication that Columbia expected another insurance carrier to share its risk of loss. Because equitable contribution serves to guarantee that each insurer pay its equitable share of a loss and that one insurer not profit at the expense of another, the right of equitable contribution does not exist in this case.
Affirmed.
Vaught and Roaf, JJ., agree.
Daggett, Van Dover, Donovan & Perry, PLLC, by: Robert J. Donovan, for appellant.
Dover & Dixon, P.A., by: Thomas S. Stone and Patrick E. Hol-lingsworth, for appellee.
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
CA 00-1154
S.W3d_
Court of Appeals of Arkansas Divisions II and III
Opinion delivered August 29, 2001
Wendell L. GRIFFEN, Judge.
We delivered our opinion in this appeal from chancery court on June 13, 2001. Appellant has petitioned for rehearing, asserting that we erred in interpreting Rule 52(b) of the Arkansas Rules of Civil Procedure as requiring that an appellant move the trial court to amend or make additional findings for purposes of review. We deny the petition.
Appellant is correct that it was not required to request that the chancellor amend his findings to address the issues of when
Home Mutual effectively canceled its policy or what notice, if any, Home Mutual was required to give to the mortgagee, Farmers Bank, for the purposes of review. Given our holding that the statute relied upon by appellant for recovery is not applicable to unilateral cancellation by an insured, we should have simply held that the trial court’s decision was not clearly erroneous. Because an error in an opinion that does not affect the outcome of an appeal is not a ground for rehearing, we deny appellant’s petition. See Butler Manufacturing Co. v. Hughes, 292 Ark. 198, 731 S.W.2d 214 (1987).
Vaught, Roaf, Hart, Bird, and Neal, JJ., agree.
Although a dispute arose between Farmers and Columbia regarding Columbia’s entitlement to receive a full assignment and transfer of the mortgage and all securities held as collateral, the dispute was resolved by settlement. Also, a settlement was reached between the Scantlings, Columbia, Steve Standridge Insurance Agency, Steve Standridge individually, and Utica Mutual Insurance Company (the liability insurance carrier for Steve Standridge Insurance Agency).
The policy also stated in its standard provision section as follows:
Cancellation of Policy. This policy shall be canceled in whole or in part at any time at the request of the insured upon the return of this Policy to the Home Office of this Company, provided, that no unearned premium amounting to less than one quarterly monthly payment shall be refunded by this Company. This Policy may also be canceled by the Company by giving five days’ notice of such cancellation.
Mortgage Interest. If loss or damage is made payable, in whole or in part, to a mortgagee not named herein as the insured, this Policy may be canceled as to such interest by giving to such mortgagee a ten days’ written notice of cancellation. | [
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Larry D. Vaught, Judge.
This is an appeal from a decision of the Workers’ Compensation Commission finding that appellant, Vicky Carman, failed to prove by a preponderance of the evidence that she suffered a compensable injury while employed by appellee, Haworth, Inc. Appellant contends that the Commission erred in finding that she failed to prove by a preponderance of the evidence that she suffered a gradual shoulder injury caused by rapid repetitive motion arising out of and in the course of her employment, and that the injury produced physical bodily harm, supported by objective findings, which was the major cause of her need for treatment. We disagree and affirm the Commission’s decision.
Appellant began working for appellee in September 1998. Her position as an assembler required her to assemble fabric over panels for office cubicle walls. She would complete ten to fifteen panels per hour. This job required extensive hand and arm movements, use of a screw gun, and use of a heated knife to trim the fabric. Appellant’s job also required her to lift rails or frames weighing five to fifteen pounds. In April 1999, appellant began to experience pain in her wrists, arms, and shoulders, with numbness and tingling across both shoulders. She felt that her hands were “asleep all the time.” One Saturday in April, appellant was returning from lunch when her supervisor, Mike Hart, grabbed her purse strap as she passed him, jerking her arm back and causing excruciating pain in her left upper arm. Hart sent appellant to the company nurse, where appellant indicated that she was having symptoms of carpal tunnel syndrome. The nurse could not diagnose carpal tunnel and scheduled an appointment for her with the company doctor, who referred appellant to Dr. Michael Lack, a family practitioner. Appellant was also seen by Drs. Eric Hatley, Ron South, and Kip Owen.
Appellant was referred by Dr. Lack to Dr. South at the Internal Medicine Associates Neurology Clinic for EMG/NCV of both upper extremities for carpal tunnel syndrome. Dr. South’s May 12, 1999, office notes indicate that he diagnosed moderate to severe carpal tunnel syndrome of the right upper extremity with mild to moderate carpal tunnel syndrome of the left upper extremity.
Dr. Hatley’s office records indicate that he saw appellant on May 11, 1999. She complained of pain in both hands and upper arms. The records indicate that appellant was treated for carpal tunnel syndrome four to six years earlier. Dr. Hatley found a new problem of cervicalgia and carpal tunnel syndrome. Dr. Hatley prescribed Naproxin. Dr. Hatley’s September 23, 1999, report indicates that appellant complained of left upper extremity pain, including mild increased shoulder pain. His notes stated that she was being treated by Dr. Owen for carpal tunnel syndrome. Dr. Hatley found her left shoulder to be tender. He noted that there was no adduction problem and no evidence of rotator-cuff problem. Dr. Hatley made an assessment of bursitis and prescribed Vioxx. Appellant was to remain off work for one day and avoid repetitive work with the left shoulder, and to follow-up in two weeks.
Appellant was seen for follow-up on September 28 and complained of swelling in her hands and ankles while taking Vioxx. The swelling resolved after she ceased taking the medication. The report indicated that appellant continued to complain of upper left extremity pain, including pain in the upper biceps and left shoulder. Dr. Hatley assessed left shoulder pain with possible biceps tendonitis or possible rotator cuff tear. Appellant was seen again on October 12, 1999, for a follow-up of continuing shoulder pain. Dr. Hatley’s report states that x-rays were normal and that physical therapy benefitted appellant. Dr. Hatley released her to work with restrictions not to lift more than five pounds. Appellant returned to Dr. Hatley on October 22, 1999, again complaining of shoulder pain. Dr. Hatley’s assessment was left shoulder pain, and he prescribed trigger point injections of Decadron and Lidocaine. She was to return for follow-up in two weeks, but the records indicate that she returned on October 25, 1999, stating that the injections only helped for a few hours and that her left shoulder pain remained. Dr. Hatley’s notes indicate a referral to a neurologist for possible brachi-oplexis injury.
Appellant was also seen by Dr. Owen, an orthopedic surgeon. Dr. Owen’s treatment of appellant consisted of carpal tunnel release surgery on both the right and left hands. Dr. Owen’s August 18, 1999, office notes reflect that appellant was seen after the left carpal tunnel release surgery and that she expressed concern about returning to work too soon after the surgery and about the neck and shoulder pain. Dr. Owen’s notes stated that he explained to her that musculoskeletal pain and spasm, rotator cuff tendonitis or root nerve impingement could give those types of symptoms. He ordered an MR.I of appellant’s c-spine to look for nerve root impingement. An MRI report prepared by St. Bernard’s Regional Medical Center was unremarkable and indicated no herniation or stenosis.
St. Bernard’s Rehabilitation Services therapy evaluation of September 28, 1999, as abstracted, includes the following findings: The abstract of the therapist’s report also contains the following assessment: “[P]atient presents with a tight shoulder and upper thoracic musculature along with mild forward head and elevated shoulder posture and excessive bilateral shoulders, but significant on left. Pain in the upper left arm appears to be secondary to impingement....”
Muscle length on the shoulder is severely tight on the left and moderately tight on the right on the major and minor pectoralis with the trapezius on the left being extremely tight and on the right moderately tight. The sternocelidomastoid moderately tight on the left and minimally tight on the right.
Appellant filed a claim for benefits, alleging that she sustained a gradual onset injury caused by rapid repetitive motion. The administrative law judge found that appellant failed to meet her burden of proof based on the lack of medical evidence substantiating a shoulder injury and the absence of evidence causally relating the shoulder injury to any on-the-job injury. The administrative law judge specifically found:
The claimant has failed to prove by a preponderance of the credible evidence of record that she developed a gradual shoulder injury, caused by rapid repetitive motion arising out of and in the course of her employment which produced physical bodily harm, supported by objective findings, which was the major cause of disability or the need for medical treatment.
The Commission affirmed and adopted the decision of the administrative law judge.
The employee has the burden of proving a compensable injury. Ark. Code Ann. § 11-9-102(4)(E) (Supp. 1999). In reviewing decisions from the Workers’ Compensation Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the Commission’s findings and affirms if supported by substantial evidence. Superior Indus. v. Thomaston, 72 Ark. App. 7, 32 S.W.3d 52 (2000). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Byars Constr. Co. v. Byars, 72 Ark. App. 158, 34 S.W.3d 797 (2000). A decision by the Workers’ Compensation Commission will not be reversed unless it is determined that fair-minded persons could not have reached the same conclusions if presented with the same facts. Stiger v. State Line Tire Serv., 72 Ark. App. 250, 35 S.W.3d 335 (2000). Where the Commission denies a claim because of the claimant’s failure to meet her burden of proof, the substantial-evidence standard of review requires that we affirm if its decision displays a substantial basis for the denial of relief. Rice v. Georgia-Pacific Corp., 72 Ark. App. 148, 35 S.W.3d 328 (2000).
The main thrust of appellant’s argument is that the Commission erred in finding that she failed to offer sufficient medical evidence, supported by objective findings, to substantiate a shoulder injury. Arkansas Code Annotated section 11-9-102(4) (D) provides: “A compensable injury must be established by medical evidence supported by ‘objective findings’ as defined in subdivision (16) of this section.” “Objective findings” are “those findings which cannot come under the voluntary control of the patient.” Ark. Code Ann. § 11-9-102(16).
Appellant suggests that the Commission has overlooked objective medical findings contained in the rehabilitation report. A September 28, 1999, report prepared by a physical therapist states:
Muscle length on the shoulder is severely tight on the left and moderately tight on the right on the major and minor pectoralis with the trapezius on the left being extremely tight and on the right moderately tight. The sternocelidomastoid moderately tight on the left and minimally tight on the right.... The clinical assessment is that the patient presents with a tight shoulder and thoracic musculature with mild forward head and elevated shoulder posture and excessive bilateral shoulders, but significant on the left.
Appellant argues that the therapist’s findings of muscle tightness are evidence of muscle spasm.
This court has held that muscle spasms constitute objective findings. Kimbrell v. Arkansas Dep’t of Health, 66 Ark. App. 245, 989 S.W.2d 570 (1999). The definition of muscle spasm approved by this court in University of Ark. Med. Sciences v. Hart, 60 Ark. App. 13, 19, 958 S.W.2d 546, 549 (1997) is as follows: “1. An involuntary muscular contraction. ... 2. Increased muscular tension and shortness which cannot be released voluntarily and which prevent lengthening of the muscles involved; [spasm] is due to pain stimuli to the lower motor neuron.” See also Kimbrell, supra. Appellant, citing Continental Express v. Freeman, 339 Ark. 142, 4 S.W.3d 124 (1999), correctly asserts that a physical therapist can make objective findings. However, appellant has not presented us with convincing argument or authority that “muscle tightness” can be equated with “muscle spasms” in this situation. There is no evidence to suggest that the physical therapist’s findings of muscle tightness were actually muscle spasms or that the tightness was involuntary. Certainly, muscle tightness can come under the voluntary control of the patient. Without evidence of objective medical findings, the Commission had a substantial basis for denying appellant’s claim, and we affirm that denial.
Appellant also summarily contends that she established a gradual injury caused by rapid repetitive motion, that the injury arose out of and in the course of her employment, and that the injury was the major cause of her need for treatment. It is not necessary to address these arguments because we agree with the Commission that appellant failed to establish a compensable injury by medical evidence supported by objective findings.
Affirmed.
GRIFFEN and ROAF, JJ., agree. | [
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Terry CRAJBTREE, Judge.
A jury sitting in the Washington County Circuit Court convicted the appellant, Travis Hill, of two counts of rape and three counts of sexual abuse in the first degree. The trial court sentenced him to twenty-nine years’ imprisonment in the Arkansas Department of Correction. On appeal, appellant argues that the trial court erred by refusing to allow him to present testimony of the victim’s family regarding prior allegations of sexual conduct. We find no error and affirm.
On November 13, 2000, appellant was charged with three counts of rape and three counts of sexual abuse of his daughter, occurring between 1995 and 1999. During the trial, the circuit court refused to allow the victim’s mother and grandmother to testify about the victim’s prior inconsistent statements concerning events occurring within the four-year period. The defense argued that the prior inconsistent statements were offered to rebut the credibility of the victim. The victim’s mother and grandmother sought to testify that the victim had accused other men, rather than her father, of perpetrating sexual abuse upon her. The lower court would not allow the testimony because it characterized the testimony as hearsay. After the circuit court made its ruling, defense counsel proffered the victim’s mother’s testimony.
We believe that the proffered testimony would have violated Arkansas’s rape-shield statute contained in Ark. Code Ann. § 16-42-101 (Repl. 1999). The statute makes inadmissible:
evidence of a victim’s prior allegations of sexual conduct with the defendant or any other person, which allegations the victim asserts to be true, or evidence offered by the defendant concerning prior allegations of sexual conduct by the victim with the defendant or any other person if the victim denies making the allegation[.]
Ark. Code Ann. § 16-42-101 (b). The defendant is precluded from eliciting such testimony “through direct examination of any defense witnesses or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.” Id.
The rape-shield statute is not a total bar to evidence of a victim’s sexual conduct but instead makes its admissibility discretionary with the trial judge pursuant to the procedures set out at Ark. Code Ann. § 16-42-101(c)(l-3). Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993). Subsection (c) of the statute provides that evidence of a victim’s prior sexual conduct may be admitted if its relevancy is determined in accordance with the provisions found in the subsequent subsections. Subsection (c)(1) requires a written motion to be made by the defendant wishing to present such evidence, and subsection (c)(2) provides for a subsequent hearing on the motion to be held in camera. Upon motion of the defendant in Lindsey v. State, 54 Ark. App. 266, 925 S.W.2d 441 (1996), the trial court properly held a pretrial hearing to decide whether certain testimony was barred under the rape-shield statute. Here, however, appellant did not file any such written motion, so the trial court held no separate hearing, and thus the provisions of the statute were not invoked.
We are convinced' that the testimony proffered was properly excluded as appellant failed to make a written motion below pursuant to Ark. Code Ann. § 16-42-101(c). Even though the circuit court did not rely on the rape-shield statute when making its ruling, this court will affirm a trial court’s decision if it reached the right result but for a different reason. McKenzie v. State, 69 Ark. App. 186, 12 S.W.3d 250 (2000).
Affirmed.
Robbins and Vaught, JJ., agree. | [
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JOHN F. STROUD, Jr., Chief Judge.
In this appeal, we are J asked to review the chancellor’s findings regarding the division of property and the allocation of debts in a divorce case. Appellant makes three arguments: 1) that the chancellor erred in ruling that appellee’s corporation, Dalrymple Insurance Agency, Inc., was nonmarital property; 2) that the chancellor erred in ruling that the agency’s renewal commissions were nonmarital property; and 3) that the chancellor erred in ruling that two bank notes representing approximately $41,000 in debt were marital debts rather than corporate debts. We affirm on the first two points and reverse on the last.
Appellant and appellee were married in June 1987. Approximately thirty years prior to the marriage, appellee founded the Dalrymple Insurance Agency. He operated the business as a sole proprietorship until January 1989, eighteen months into the parties’ marriage. In that year, he transferred the assets of the sole proprietorship to Dalrymple Insurance Agency, Inc., in exchange for corporate stock. The stock was issued in his name only.
In the divorce proceeding, filed in 1998, appellant asked the court to declare that the stock of Dalrymple Insurance Agency, Inc., was marital property. Appellee opposed appellant’s request on the ground that the stock was acquired in exchange for nonmarital property, i.e., the assets of the sole proprietorship. The chancellor ruled in favor of appellee and declared that the corporation was his separate property. The first issue on appeal is whether the chancellor’s ruling was in error.
Our standard of review in chancery cases is well settled. Chancery cases are reviewed de novo on appeal. See Hunt v. Hunt, 341 Ark. 173, 15 S.W.3d 334 (2000). With respect to the division of property in a divorce case, we affirm the chancellor’s findings unless they are clearly erroneous. See Jablonski v. Jablonski, 71 Ark. App. 33, 25 S.W.3d 433 (2000). Due deference is given to the chancellor’s superior ability to determine the credibility of the witnesses and the weight to be accorded their testimony. Hunt v. Hunt, supra.
Marital property is all property acquired by either spouse subsequent to the marriage, with certain exceptions fisted in Ark. Code Ann. § 9-12-315(b) (Repl. 1998). The relevant exception in this case is contained in section 9-12-315(b)(2), which provides that property acquired in exchange for property acquired prior to the marriage is not marital property. Whether this exception applies depends upon whether appellee actually used nonmarital property to acquire the stock of Dalrymple Insurance Agency, Inc.
The facts relevant to the acquisition of the corporate stock are as follows. In 1989, appellee executed a document that assigned his business assets to Dalrymple Insurance Agency, Inc., in exchange for 100 shares of common stock. The corporation’s 1989 tax return reflected that, as a result of the exchange, assets valued at $14,568 were received by the corporation. A stock certificate was issued evidencing appellee’s ownership of 100 shares in Dalrymple Insurance Agency, Inc. According to appellee, he used no marital assets to purchase the shares of stock.
Appellant argues on appeal that appellee did not prove that he acquired the corporate stock with nonmarital property. She claims first that, in effecting the exchange of assets from the sole proprietorship to the corporation, appellee drew on an account in which marital and nonmarital funds were commingled. She bases her claim on the assertion that, just prior to the marriage in 1987, appellee had only one bank account. She deduces that, as a result, it is likely that business and personal funds were commingled in that one account between 1987 and 1989 and that those commingled funds were later used to acquire the corporate stock. However, appellant’s argument is belied by her own testimony that, almost immediately after getting married, she and appellee opened a separate household account. Given that separate business and household accounts existed between 1987 and 1989, it would be pure speculation to assume that business and personal funds were commingled in either.
Appellant claims further that appellee’s evidence was simply insufficient to sustain his burden of proving that the stock was acquired in exchange for nonmarital property. We disagree. First, appellee testified that he used strictly nonmarital funds to acquire the stock. This testimony was not disputed by appellant. When the issue is whether a source of funds is marital or nonmarital, we defer to the chancellor’s superior position to resolve credibility questions pertaining to the issue. See Wright v. Wright, 29 Ark. App. 20, 779 S.W.2d 183 (1989). Second, appellee had operated the business as his own for thirty years before he married the appellant. It is therefore unlikely that, by changing the business from a sole proprietorship to a closely held corporation for tax purposes, he intended to change its status from nonmarital to marital property. Third, the stock certificates were issued solely to appellee, a factor considered significant in Cate v. Cate, 35 Ark. App. 79, 812 S.W.2d 697 (1991). Fourth, as already discussed, there was no evidence that business and personal funds were commingled. Finally, the assignment and tax documents reflected appellee’s intention that the acquisition of stock be accomplished solely by the transfer of business assets. In fight of these factors, we affirm the chancellor’s decision that the corporation was nonmarital property.
The dissent would have us apply the holding of Layman v. Layman, 292 Ark. 539, 731 S.W.2d 771 (1987), and declare that any increase in the value of the corporation became marital property by virtue of appellee’s efforts. This point is not argued by appellant. It is well recognized that, if a party fails to make a particular argument on appeal, that argument is considered abandoned. Texarkana Housing Auth. v. Johnson Constr. Co., Inc., 264 Ark. 523, 573 S.W.2d 316 (1978). Any basis for reversing a case on appeal should originate in the arguments advanced by the appellant, not from arguments created by appellate judges.
Appellant argues next that the agency’s renewal commissions should have been declared marital property subject to division. At the time of the divorce, Dalrymple Insurance Agency, Inc., was authorized to sell fife and disability policies for approximately eight companies. Expert testimony was given at trial to the effect that insurance companies commonly pay renewal commissions to agencies from the second through the tenth years following issuance of the policy, so long as premiums are paid and the policy remains in force. Appellant’s expert determined that the net present value of renewals collectible by the agency through 2008 was $330,094. Appellee’s expert determined that the net present value of the renewals was $69,139. The chancellor, however, did not reach the issue of valuation because he found that “Dalrymple Insurance Agency, Inc., and its renewal commissions are non-marital property and [appellant] is not awarded any interest therein.”
Having affirmed the chancellor’s determination that the corporation was nonmarital property, it follows, under the facts of this case, that the corporation’s renewal commissions are -likewise nonmarital property. There is no showing that the corporation’s assets have any marital-property value, given the fact that the corporation itself is nonmarital property. Further, if the renewals are considered income rather than assets, they are income from property acquired in exchange for property acquired prior to marriage and thus are exempt from the definition of marital property. See Ark. Code Ann. § 9-12-315(b)(7) (Repl. 1998).
Appellant argues that such reasoning is faulty because appellee is the sole stockholder of Dalrymple Insurance Agency, Inc., and the corporation’s earnings should be deemed his earnings. Appellant is, in effect, asking us to disregard the corporate form and treat appellee and the corporation as one. This is contrary to our law. The fact that one person owns all the stock in a corporation does not make him and the corporation one and the same. Atkinson v. Reid, 185 Ark. 301, 47 S.W.2d 571 (1932). A corporation and its stockholders are separate and distinct entities, even though a stockholder may own the majority of the stock. Thomsen Family Trust v. Peterson Family Enters., Inc., 66 Ark. App. 294, 989 S.W.2d 934 (1999). A stockholder does not acquire any estate in the property of a corporation by virtue of his stock ownership; the full legal and equitable title thereto is in the corporation. Id.
In special circumstances, we will disregard the corporate facade when the corporate form has been illegally abused to the injury of a third party. Id. However, there is no evidence here that appellee abused the corporate form and therefore no basis for us to treat appellee and the corporation as one entity.
The dissent refers to testimony by appellee that “I,” meaning appellee himself, was entitled to commissions from insurance companies. The first-person testimony by the sole shareholder of a corporation is not cause to disregard the corporate form and declare the corporate assets to be his assets.
Based upon the foregoing, we affirm the chancellor’s ruling that the renewal commissions are not marital property. In doing so, we do not imply that an insurance agency’s renewal commissions may never be considered marital property. Other jurisdictions have recognized that renewal coinmissions on policies sold during marriage may be considered marital property. See Pangburn v. Pangburn, 152 Ariz. 227, 731 P.2d 122 (Ct. App. 1986); Niroo v. Niroo, 313 Md. 226, 545 A.2d 35 (1988); Bigbie v. Bigbie, 898 P.2d 1271 (Okla. 1995); Freeman v. Freeman, 318 S.C. 265, 457 S.E.2d 3 (Ct. App. 1995). We do not reach that issue today, however. Our affirmance of the chancellor’s ruling is based upon the particular facts of this case and the particular arguments made by appellant.
The remaining issue is whether the chancellor erred in declaring certain debts to be marital debts rather than corporate debts. In his decree, the chancellor found that the parties had $75,885 in marital debts, which included a $21,000 note to Metropolitan National Bank and a $19,999 note to Mercantile Bank. Appellant was ordered to pay $33,534.50 of the total debt. She argues that the Metropolitan and Mercantile debts should have been assigned to Dalrymple Insurance Agency, Inc., and that the chancellor erred in ordering her to pay any part of them. We agree.
A chancery court has the authority to consider allocation of debt in a divorce case. Anderson v. Anderson, 60 Ark. App. 221, 963 S.W.2d 604 (1998). Findings concerning the assignment of marital debts are not reversed unless they are clearly erroneous. See Grace v. Grace, 326 Ark. 312, 930 S.W.2d 362 (1996). A chancellor’s finding will be deemed clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Atkinson v. Atkinson, 72 Ark. App. 15, 32 S.W.3d 41 (2000).
The Metropolitan Bank note reflects that it was executed in 1997 for the purpose of “short-term working capital for business purposes.” The borrower was listed as “W Alwyn Dalrymple and Dalrymple Insurance Agency, Inc.” The note bore signature lines for appellee individually and as president of the corporation. It was renewed in 1998 and stated its purpose as “to renew and increase line of credit... for operating capital.” It was renewed again in 1999 after the parties separated and was changed to remove the corporation’s name. However, it still stated that the purpose of the loan was a “line of credit for operating capital.” The Mercantile Bank note was executed in 1998. It listed appellee as the borrower and carried the following notation: “[r]enewal/line of credit originally used to carry insurance receivables.” Despite the language clearly identifying the notes as pertaining to appellee’s business, the agency’s office manager, Laura Baldwin, testified that the loans were in fact used for the appellant’s and appellee’s personal living expenses.
Upon our de novo review, we disagree with the chancellor’s decision to decide this issue on the basis of testimony that was directly contrary to what was shown on the written instruments. Baldwin’s assertion that the bank documents were wrong is not sufficient in this case to contradict the plain language of those documents. We therefore reverse and remand on this point with directions that the Metropolitan and Mercantile notes be assigned to the Dalrymple Insurance Agency, Inc., rather than allocated between appellant and appellee.
Affirmed in part; reversed in part and remanded.
Vaught, Crabtree, and Roaf, JJ., agree.
HART and GRIFFEN, JJ., dissent in part.
While appellee was only issued one share of preferred stock in 1990, the assignment of assets reflects that he was issued 100 shares of common stock in 1989 in exchange for his business assets.
Appellant does not argue that the value of the stock appreciated during the marriage or that she is entided to a portion of such appreciation.
Although a spouse’s contribution to an increase in the value of nonmarital property may be considered in making a property division, see Smith v. Smith, 32 Ark. App. 175, 798 S.W.2d 442 (1990), the chancellor in this case expressly found that no such contribution was made by appellant, and that finding is not challenged on appeal. | [
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Terry Crabtree, Judge.
The appellant, Howard Randy Baldwin, appeals from an order of the Saline County Circuit Court granting the State’s motion to vacate. By granting the motion to vacate, the circuit court reinstated the municipal court’s conviction of appellant for driving while intoxicated and improper lane change. On appeal, appellant claims that the circuit court erred in granting the motion to vacate and finding that he failed to perfect his appeal from municipal court. We affirm.
On November 19, 1998, the Bryant Municipal Court convicted appellant of his offenses for driving while intoxicated and improper lane change. He purported to appeal those convictions by filing a notice of appeal and an appeal bond in circuit court. After a bench trial, the circuit court entered a judgment on December 15, 1999, finding appellant guilty of driving while intoxicated and improper lane change. He was sentenced to one day of jail time for the DWT, with credit for time served. On January 12, 2000, appellant filed a motion for new trial, claiming his counsel had been ineffective. On January 18, 2000, the State filed a response to the motion for new trial arguing that because appellant was not in custody, his ineffective-assistance claim could not be heard by circuit court.
On February 11, 2000, the circuit court entered a judgment stating that it had jurisdiction to consider appellant’s new-trial motion and set a hearing date of March 27, 2000. Prior to the hearing, on February 23, 2000, the State filed a motion to vacate the December 15, 1999 judgment of guilt because appellant’s municipal appeal was not perfected. On March 27, 2000, the circuit court held its previously scheduled hearing and found that appellant failed to perfect his municipal appeal. Accordingly, the circuit court granted the State’s motion to vacate, thereby reinstating the municipal-court conviction.
First, we recognize that the issue of jurisdiction is one that can be raised at any time, even for the first time on appeal. Ibsen v. Plegge, 341 Ark. 225, 15 S.W.3d 686 (2000). In this case, the State raised the issue of jurisdiction after the circuit court convicted appellant. In order for the circuit court to obtain jurisdiction, an appellant must comply with Arkansas Inferior Court Rule 9 (2000). Lineberry v. State, 322 Ark. 84, 907 S.W.2d 705 (1995). It governs appeals from municipal court to circuit court and requires that such appeals be filed within thirty days of the entry of the judgment by filing a record of the inferior court proceedings with the clerk of the circuit court. Under this rule, a filing of a notice of appeal is not required in an appeal from municipal court to circuit court. Ottens v. State, 316, Ark. 1, 871 S.W.2d 329 (1994). In fact, merely fifing such a notice of appeal within thirty days of the municipal court judgment does not suffice to perfect the appeal. Id.
Appellant has the burden of requesting the clerk to prepare and certify the record of the inferior court proceedings. Id. Appellant is also charged with the responsibility of filing said record in the office of the circuit clerk. Inferior Ct. R. 9(b). Otherwise, appellant must file an affidavit in the office of the circuit court clerk showing that he has requested the clerk of the inferior court to prepare and certify the record for purposes of appeal and that the clerk has neglected to prepare and certify such record for purposes of appeal. Id. Failure to do so precludes the circuit court from having jurisdiction over the appeal. Pace v. Castleberry, 68 Ark. App. 342, 7 S.W.3d 347 (1999).
We do not believe that the appeal bond signed by the municipal judge and filed by appellant is sufficient to perfect appellant’s municipal appeal. Appellant maintains that his appeal bond contained the same information as the transcript. Even if it did, the appeal bond cannot serve as a replacement of the record. Appellant simply failed to file either the transcript or the affidavit required by Rule 9.
Appellant argues that his efforts amount to substantial compliance. This argument was also made in Pace, and we rejected it. Arkansas Inferior Court Rule 9 is clear. It provides that appellant must either actually lodge the record in the circuit court, or file an affidavit with the circuit court clerk stating that he has requested the inferior court clerk to prepare the record and the clerk has neglected to prepare and certify that record for purposes of appeal.
As we stated in Pace, we are unable to dismiss the clear language of Rule 9. We hold that appellant failed to comply with the rule by only filing a notice of appeal and an appeal bond signed by the municipal judge.
Affirmed.
Stroud, C.J., and Hart, J., agree. | [
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John F. Stroud, Jr., Chief Judge.
Appellant, Timothy C. Lee, appeals from a decision of the Workers’ Compensation Commission that denied him benefits for a back injury. We affirm.
Appellant was hired by Dr. Pepper Bottling Company as a driver-delivery person for a bottled-water delivery route. He started work on May 4, 1998. According to appellant, on or about May 6, 1998, he was delivering water to a state building in downtown Little Rock, and he “heard something pop” as he was bending down to unload fifty-pound bottles of water. He stated that he slowed down when he heard the pop, that he did not grab his back or scream, that he did not really know what was wrong, and that he continued to work until quitting time that day and all subsequent days until he was terminated. He also stated that the pain “did not come on all at once”; that every time he lifted something it got worse; and that he told his immediate supervisor, Jeff Aerosmith, on the day of the incident that he had heard something pop, but did not know what it was. He said that Aerosmith told him he was just sore and that he would be all right. Appellant never told Aerosmith that he was not able to do his job, nor that he wanted to file a workers’ compensation claim. He said that he went to the VA Hospital clinic on approximately May 9 and told Aerosmith the next day that he had been to the doctor, was on medication, and was soaking his back. He acknowledged knowing that he was supposed to file a claim if he had a work-related injury, but he waited approximately a year before filing his workers’ compensation claim.
Medical records of May 9, 1998, memorialize appellant’s attribution of the injury to lifting heavy water bottles at work. The emergency care and treatment medical record provides in pertinent part: “37 year old black male who was lifting heavy water botdes two days ago and pulled something in lower back. Has had pain since then, not relieved by soaking back.” The emergency nurse’s progress notes of May 9 provide in part: “Chief Complaint — low back pain — lifted heavy object earlier in week, now complaining of lower back pain for the last three to four days.” The spine-lumbrosacral series of the same date provide in part: “Clinical history — lifting heavy water jugs and felt pull in his back. Complained of ongoing pain in lumbar area. Report — the vertebral heights, the disc spaces and the pedicles are intact. No definite acute radiographic abnormalities are noted. Diagnostic Code — no code given. Suboptimal film. Abnormal results.”
Aerosmith acknowledged that appellant told him during his first week of work that he was having problems with his back and that his back was sore. Aerosmith stated that he asked appellant if he wanted to report an injury, but that he did not ever supply him with a form or tell him where to get one. He did not recall appellant telling him that he was taking aspirin, using a heating pad, or going to the doctor. He stated that he worked closely with appellant while he was at Dr. Pepper; that other than the speed with which he worked, he was a good employee; and that the only thing that led to his discharge was that he was too slow. He said appellant worked every day that he was regularly scheduled to be there.
In denying benefits, the Commission affirmed and adopted the decision of the ALJ, including all findings and conclusions therein, which included:
3. The claimant has failed to prove by a preponderance of the evidence, that he sustained an injury arising out of and during the course of his employment with Dr. Pepper Bottling Company.
4. The claimant has failed to prove, by a preponderance of the evidence, that his alleged injury was caused by a specific incident identifiable by time and place of occurrence on May 6, 1998.
5. Claimant has failed to prove, by a preponderance of the evidence, that his need for medical services was directly and causally related to his employment with the respondent/employer.
6. Claimant has failed to prove, by a preponderance of the credible evidence, that his alleged injury resulted in disability .within the meaning of the Arkansas Workers’ Compensation Laws.
For his first point of appeal, appellant contends that there was no substantial evidence to support the Commission’s decision to deny him benefits. We disagree.
On appeal, we view the evidence in the fight most favorable to the Commission’s decision and affirm when that decision is supported by substantial evidence. Howell v. Scroll Technologies, 343 Ark. 297, 35 S.W.3d 800 (2001). Substantial evidence exists if reasonable minds could reach the same conclusion. Id. Moreover, we will not reverse the Commission’s decision unless fair-minded persons could not have reached the same conclusion when considering the same facts. Id. Where the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial-evidence standard of review requires us to affirm if the Commission’s decision displays a substantial basis for the denial of relief. Id.
Here, the ALJ’s decision, which was affirmed and adopted as the Commission’s decision, based the entire case upon appellant’s credibility, and found in pertinent part:
The record in this case is replete with inconsistencies and contradictions. The Claimant’s course of conduct is totally inconsistent with a work-related injury, as well as entitlement to disability benefits. The Claimant worked from May 4 to May 29 without reporting a specific injury identifiable in time and place of occurrence and without requesting medical treatment. The Claimant did not report any injury, even after he was terminated, and did draw-unemployment compensation from November 1998 through March 1999. The Claimant conceded that he was physically able to work at all times so long as he could avoid heavy lifting, which is totally inconsistent with his contentions. The Claimant is presently working at the VA Hospital through a vocational rehabilitation program.
The Claimant maintained that in addition to working under the supervision of Aerosmith, he also worked under the supervision of Humphrey. Aerosmith, the Claimant’s supervisor, stated his drivers never worked on the soft drink side of the business and that he worked with the Claimant every day. The health insurance claim forms filled out by the VA are contradictory, reciting both a workers’ compensation connection and that the accident was unrelated to his employment.
The record fails to reflect the Claimant was at any time disabled within the meaning of the compensation laws. Even if there was objective evidence of the injury and a period of disability, the record does not support the conclusion that it was the result of a specific event identifiable in. time and place of occurrence arising out of Claimant’s employment. The claimant’s testimony was self-contradictory and even after he heard his back pop, he did not feel any immediate pain at the time.
The determination of the credibility and weight to be given a witness’s testimony is within the sole province of the Commission. Thompson v. Washington Reg. Med. Ctr., 71 Ark. App. 126, 27 S.W.3d 459 (2000). There may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we had sat as the trier of fact or heard the case de novo. Patterson v. Ins. Dep’t, 343 Ark. 255, 33 S.W.3d 151 (2000). Here, we are not convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. .
For his second point of appeal, appellant contends that lack of notice was not a basis for denying his claim for benefits; and for his third point of appeal, he contends that his acceptance of unemployment benefits was not a bar to his receiving benefits nor an issue of his credibility. We dispose of these issues briefly by merely pointing out that the Commission’s decision did not rely upon either basis in denying appellant’s claim.
Affirmed.
Pittman, Píart, and Baker, JJ., agree.
Neal and Roaf, JJ., dissent. | [
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John E. JENNINGS, Judge.
Marcus Threadgill was charged with capital murder in the shooting death of Larry Roberson. After a jury trial, he was convicted of first-degree murder and sentenced to thirty-three years in prison. For reversal, Threadgill makes two arguments: (1) that the trial court erred in permitting the State to impeach the testimony of the witness, Tequila Hall, and (2) that the trial court erred in allowing the eyewitness testimony of Christopher Parker. We find no error and affirm.
On April 30, 1997, Larry Roberson was shot in the head as he sat in the driver’s side of his own car. His body was dumped on the side of the road. There was evidence at trial that the shot was fired from the back seat of the car.
Some eighteen months later appellant, Marcus Threadgill, and his cousin, Christopher Parker, were arrested in connection with the murder. Parker, who was ultimately charged with hindering apprehension, gave a statement to the police. He said that he was riding on the passenger side of Roberson’s vehicle when Threadgill shot Roberson from the back seat. At trial, appellant stipulated that he was in the car at the time of the shooting.
During the investigation, the police interviewed Tequila Hall. Hall told them that appellant and Parker came to her apartment, which was located near where Roberson’s car was found, on the night of the shooting and asked her to take them home. On the way they stopped at Parker’s sister’s apartment, where the two men changed clothes. Hall also told the police that appellant said to her, with other people present, that he had “shot the dude.” Threadgill does not argue on appeal that the evidence is insufficient to sustain his conviction.
Appellant’s first argument is that the trial court erred in permitting the State to introduce into evidence the prior statement given by Tequila Hall. The argument is based on a line of cases which have held that once a witness admits making a prior inconsistent statement and admits that it was false, then the statement itself is not admissible. Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988); Hinzman v State, 53 Ark. App. 256, 922 S.W.2d 725 (1996); Gross v. State, 8 Ark. App. 241, 650 S.W.2d 603 (1983). The theory is that “an admitted liar need not be proved one.” Appellant’s argument must fail for two reasons.
The most critical portion of Hall’s prior statement to the police was her statement that appellant had told her and others that he had “shot that dude.” On cross-examination Hall testified that she had not heard appellant talking about the night of the shooting, hadn’t overheard any conversation, and didn’t remember talking to a police officer about it. She said, “I don’t remember saying it, or if I did say it, it is not true.”
In Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407 (2001), the supreme court, faced with quite similar circumstances, held that it was not error to permit the State to impeach the witness by the introduction of the prior inconsistent statement. In Kennedy the witness admitted she had made a prior statement to the police, but professed a lack of memory about the particulars. The court said that, “where ... the witness is asked about the prior statement and either denies making it or fails to remember making it, extrinsic evidence of the prior statement is admissible”. Kennedy, 344 Ark. at 445 (citing 1 John W Strong, McCormick on Evidence § 34 at 126 (5th ed. 1999)).
After examining the witness’s statement as a whole, the court determined that “the only thing that she fully admitted was that she had given a statement or interview to the police.” The court said that her answers were “hardly full and unequivocal admissions of having made the prior inconsistent statements.” Kennedy, 344 Ark. at 448. See also, Roseby v. State, 329 Ark. 554, 953 S.W.2d 32 (1997); Chism v. State, 273 Ark. 1, 616 S.W.2d 728 (1981); Billings v. State, 52 Ark. 303, 12 S.W. 574 (1889). The court’s language fairly describes the answers given by the witness in the case at bar.
Furthermore, the issue now raised on appeal was not preserved at trial. When Ms. Hall’s prior inconsistent statement was offered the following cohoquy took place:
By Defense Counsel: We have an objection under Rule 613(b), where it states it is not permissible to impeach a witness by a statement.
By THE Court: About past recollection recorded or present recollection refreshed or impeachment.
By Prosecuting Attorney: For impeachment.
By Defense Counsel: He can take a look at the Rule. I’m only just looking at the black and white rules in the rule book.
By Prosecuting Attorney: It’s a contradictory statement, also, by the witness.
By Prosecuting Attorney: It’s a prior inconsistent statement given by the witness. It is clearly admissible.
By THE Court: Any response?
By Defense Counsel: Just note our objection, Judge.
By the Court: On what basis?
By Defense Counsel: The basis of the objection is Rule 613(b).
Rule 613 of the Arkansas Rules of Evidence states:
(a) Examining Witness Concerning Prior Statement. In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown nor its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel.
(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).
Here, Rule 613(b) was not violated — the witness was afforded an opportunity to explain or deny the prior inconsistent statement. The rule relied upon by appellant for reversal, that an admitted liar need not be proven one, is not contained in Rule 613 of the Rules of Evidence but rather is a matter of case law, as appellant recognizes in relying on Ford v. State and Hinzman v. State. Although the Rules of Evidence have been codified in this state, there still remain rules which are purely a matter of case law.
Error may not be predicated upon a ruling by the trial court which admits evidence unless a timely objection appears in the record, stating the specific ground for the objection. See Ark. R. Evid. 103(a)(1). This is not a technical hurdle to be overcome but is rather a practical rule designed to give the trial judge a fair opportunity to decide whether the evidence is or is not admissible. A party cannot change the grounds for his objection on appeal. Maxwell v. State, 73 Ark. App. 45, 41 S.W.2d 402 (2001). This is what appellant attempts to do in the case at bar.
Appellant’s second argument is that the trial court erred in not prohibiting Christopher Walker, an eyewitness to the crime, from testifying because of what appellant characterizes as a discovery violation. Two statements given by Parker to the police are at issue. On June 2, 1997, Parker gave a taped statement to Miller County Sheriffs deputies. The tape was subsequently lost and apparently never transcribed. On June 4, 1997, Parker gave a statement to Ocie Ratliff of the Arkansas State Police. This statement, in narrative form, was provided to the appellant and the State represented to the court that no other form of the statement was in existence.
In asking that the court bar Parker from testifying, defense counsel said:
Your Honor, I guess I can sympathize to the dilemma Mr. Jones faces. However, according to the interview that Troy Gentry and Hays McWhirter generated, it says that this statement was taped by Officer Gentry. For one, we know there was a tape in existence at one point. Again, I’m not alleging any wrong-doing personally on the part of the prosecutor’s office, but for the sheriffs office to just lose key pieces of co-defendant’s testimony, with no explanation other than “We don’t know,” is not permissible.
The court then ruled:
The defense will be allowed broad latitude to examine, and I’ll presume them hostile, Officer Gentry and Trooper RatlifF, Detective RadifF. The court finds no substantial evidence of a discovery violation, though there may well be a violation of the spirit of the discovery rule. You have every right to inquire of it, and the court believes that any impeachment that could be had from one of the series of verbal statements, can be had by a vigorous cross examination of Ratliff and Gentry and McWhirter as to the absent tape.
Rule 17.1 of the Rules of Criminal Procedure provides that the prosecuting attorney shall disclose certain information to defense counsel which is within his “possession, control, or knowledge...” This obligation extends to information within the possession of others who have participated in the investigation on behalf of the State. See Browning v. State, 274 Ark. 13, 621 S.W.2d 688 (1981); Commentary to Article V
For reversal on this point appellant relies on Williamson v. State, 263 Ark. 401, 565 S.W.2d 415 (1978), and Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988). Neither case requires reversal.
Williamson is a leading case in this state on discovery in general and stands for two propositions: (1) when a party is entitled to information through discovery, he is entitled to have it within sufficient time to permit his counsel to make beneficial use of the information, and (2) when a defendant is entitled to a witness statement, he is also entitled to the tape recording of the statement. Williamson did not deal with the State’s loss of evidence nor did it hold that the trial court should prohibit the five testimony of a witness.
In Hamm the supreme court held that when the State had erased the tape of the defendant’s confession, the State was prohibited from introducing into evidence transcript of the confession. But the court also said:
This does not mean, however, that upon retrial the trial court cannot allow oral testimony about the confession into evidence. It is the transcription itself which was admitted in violation of the Rules of Criminal Procedure.
See also Mays v. State, 57 Ark. App. 282, 944 S.W.2d 562 (1997).
The problem in the case at bar is not so much one of a discovery violation as it is one of the loss by the State of evidence potentially useful to the defendant. Here the defendant quite reasonably sought Parker’s earlier statements for the purpose of cross-examination. The problem is really one of fundamental fairness under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
In Arizona v. Youngblood, 488 U.S. 51 (1988), the Supreme Court held that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. See also, State v. Burk, 653 N.E.2d 242 (Ohio 1995); Wenzel v. State, 306 Ark. 527, 815 S.W.2d 938 (1991); Terrell v. State, 26 Ark. App. 8, 759 S.W.2d 46 (1988). In the case at bar, there was neither an allegation nor proof of bad faith.
We conclude that the trial court’s ruling in the case at bar was a reasonable one. Compare State v. Montijo, 727 A.2d 533 (N.J. Super. Ct. Law Div. 1998). For the reasons stated the decision of the circuit court is affirmed.
Affirmed.
Stroud, C.J., Robbins, Crabtree, and Baker, JJ., agree.
ROAF, Bird, and VAUGHT, JJ., concur in part, and dissent in part.
Griffen, J., dissents.
The due process issue was neither specifically raised in the trial court, nor made an issue on appeal. | [
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Olly NEAL, Judge.
This is a negligence and products-liability case. On May 6, 1992, appellant John Lee, who was age eighteen, attended a party hosted by appellee Ashley Martin, age seventeen. Upon leaving the party, Lee accidently backed'a borrowed car into a concrete bridge. When the car came to rest, one of its tires was suspended over a ditch. Lee sought the assistance of those at the party to extricate the vehicle from its precarious position. At Lee’s request and direction, Ashley Martin sat in the driver’s seat and accelerated the vehicle while Lee and others attempted to push it free. When Martin accelerated, the suspended tire began spinning at a high rate of speed and exploded, seriously injuring Lee. He filed suit against Martin for negligence and against Sears, the supplier of the tire, on the theories of strict liability, breach of warranty, and failure to warn. Martin and Sears filed motions for summary judgment, which were granted by the trial court. On appeal, Lee contends that summary judgment was improperly granted. We disagree and affirm.
In summary-judgment cases, we need only decide if the grant of summary judgment was appropriate, considering whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. See Regions Bank & Trust v. Stone County Skilled Nursing Facility, 73 Ark. App. 17, 38 S.W.3d 916 (2001). All proof submitted must be viewed in a fight most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Inge v. Walker, 70 Ark. App. 114, 15 S.W.3d 348 (2000). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Id. Once a moving party establishes a prima facie entitlement to summary judgment by affidavits, depositions, or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a genuine issue of material fact. Id. Summary judgment is no longer considered a drastic remedy but is regarded as simply one of the tools in the trial court’s efficiency arsenal. See Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998).
We address first the summary judgment entered in favor of Martin. Lee contended that Martin was negligent in over-accelerating the vehicle, which caused the free-spinning tire to explode. Lee’s expert, Loren Forney, explained in his deposition that, in his opinion, excessive centrifugal force caused the tire to come apart in this case. His opinion was bolstered by a page from a sample car owner’s manual and by the affidavit of a mechanic, each of which recognized that, when one drive wheel is stationary and the other is not, the free wheel spins twice as fast upon acceleration as it normally would. This rapid acceleration subjects the freely spinning tire to great centrifugal force, causing it to explode. This phenomenon is known as over-spinning or spin break. See Benoit v. Ryan Chevrolet, 428 So.2d 489 (La. Ct. App. 1982); Firestone Tire & Rubber Co. v. Battle, 745 S.W.2d 909 (Tex. Ct. App. 1988).
Martin moved for summary judgment arguing that she was unaware that a tire might explode under such circumstances, thus making the risk unforeseeable. To support her argument, she relied on Lee’s deposition in which he testified as follows:
Q.: [W]hat proof do you have that acceleration was the cause of this accident at all?
A.: I have no proof.
Q.: Given the allegations that Ashley Martin applied excessive acceleration ... did you know at that time or did you think at that time that excessive acceleration could cause a tire to explode?
A.: No, I had no idea.
Q.: Do you have any information that Ashley Martin should know any more than you about excessive acceleration in spinning a tire?
Q.: No.
Martin also relied on the testimony of Lee’s expert, Forney, who said that Martin had no way of knowing that the tire could explode under the circumstances and that the majority of the population would not be aware of such a possibility.
Foreseeability is a necessary ingredient of actionable negligence in this state. See Benson v. Shuler Drilling Co., 316 Ark. 101, 871 S.W.2d 552 (1994). There is no negligence in not guarding against a danger which there is no reason to anticipate. Id. Although a jury question is presented where there is a reasonable difference of opinion as to the foreseeability of a particular risk, see Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983), where no difference of opinion exists, the question is decided by the trial court or appellate court. See McDaniel v. Linder, 66 Ark. App. 362, 990 S.W.2d 593 (1999).
Martin established, through Lee’s and Forney’s deposition testimony, that she had no reason to anticipate that acceleration of the vehicle would create a risk of harm. It was therefore incumbent upon Lee to meet proof with proof and show that a genuine issue of fact remained as to whether the risk was foreseeable. Lee’s proof fell short in this regard. To establish the foreseeability of the risk, he relied primarily on the fact that the car owner’s manual warned drivers that, when one wheel is spinning, acceleration should not exceed thirty-five miles per hour. However, Martin did not own the car that was involved in the incident; it was owned by a third person not a party to this case. Further, Lee offered no proof that Martin had ever driven the car or seen the manual, nor did he offer proof that the manual was in the car at the time of the incident. Under these circumstances, we uphold the grant of summary judgment as to Martin.
Next, we consider Lee’s argument that factual issues remain to be decided on each of the three theories he pled against Sears: strict liability for an alleged defect in the tire, breach of the implied warranty of merchantability, and negligent failure to warn. To recover under a strict liability theory, a plaintiff must prove, inter alia, that the defendant supplied the product in a defective condition that rendered it unreasonably dangerous and that the defective condition was the proximate cause of the plaintiffs harm. See Ark. Code Ann. § 4-86-102(a) (Repl. 1996); E.I. Du Pont de Nemours & Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983). A “defective condition” is a condition that renders a product unsafe for reasonably foreseeable use and consumption. Ark. Code Ann. § 16 — 116— 102(4) (1987). A product is “unreasonably dangerous” if it is dangerous to an extent beyond that which would be contemplated by the ordinary and reasonable user, assuming the ordinary knowledge of the community or similar users as to its characteristics, propensities, risks, dangers, and proper and improper uses, as well as any special knowledge, training, or experience possessed by the user. See Ark. Code Ann. § 16-116-102(7) (1987).
Lee’s expert, Forney, testified unequivocally in his deposition that there was no manufacturing defect in the tire, no evidence of malfunction of the tire, nor any evidence that it was defectively designed. In fact, he stated that Sears had no responsibility at all for the tire explosion. Despite this testimony, Lee argues on appeal as follows:
Even though the tire has no design defect identified by John Forney and there was no negligence in the manufacturing process as such, still the tire in question did not meet the expectations of John Lee or any other average or ordinary consumer and consequently that makes the tire defective.
According to Lee, Arkansas has adopted a consumer expectations test with respect to defectively designed products. Under this test, a plaintiff must demonstrate that the defective product disappointed the expectations of either a reasonable consumer or the plaintiff at bar before the product will be considered unreasonably dangerous. See Robert Thompson The Arkansas Products Liability Statute: What Does “Unreasonably Dangerous” Mean In Arkansas? 50 ARK. L. Rev. 663 (1998).
Lee argues that, because he did not expect the tire to explode, the tire is defective under the consumer-expectation test. However, he misunderstands the purpose of the test. Even if we agree that Arkansas has adopted the consumer-expectation standard, and no state court case has expressly held that we have, the standard is relevant to only one prong of the proof needed in a strict-liability case, i.e., whether the product is unreasonably dangerous. See Thompson, 50 Ark. L. Rev. at 664-67. A plaintiff in a strict-liability case must prove that the product is unreasonably dangerous and defective. See O’Mara v. Dykema, 328 Ark. 310, 942 S.W.2d 854 (1997). Proof that the product was defective is an essential element of a strict-liability cause of action. See Lakeview Country Club, Inc. v. Superior Prods., 325 Ark. 218, 926 S.W.2d 428 (1996). Lee’s own expert offered his opinion that the tire was not defective, and Lee did not meet proof with proof to dispel that opinion. If a respondent cannot meet proof with proof on an essential element of his claim, the movant is entitled to judgment as a matter of law. See Caplener v. Bluebonnet Milling Co., 322 Ark. 751, 911 S.W.2d 586 (1995).
Next, we address Lee’s claim for breach of the implied warranty of merchantability. The gravamen of such a claim is that the product is not suited for its ordinary purpose. See Lakeview Country Club, Inc. v. Superior Prods., supra; Purina Mills, Inc. v. Askins, 317 Ark. 58, 875 S.W.2d 843 (1994). As we have already stated, Lee’s expert found that the tire was not defective and did not malfunction. He further found that any tire would have exploded under the conditions present in this case, based upon the laws of physics. Sears relied on these opinions in filing its motion for summary judgment on this issue and, again, Lee did not meet proof with proof to show that a genuine issue of fact existed. He offered no proof that the tire was unfit, that it malfunctioned, or that it was inadequate to serve its ordinary purpose. The expert’s opinion stood unrebutted on this point, making summary judgment proper.
Finally, we address Lee’s claim that Sears failed to warn users of the hazard of centrifugal-force explosions. As a general rule, there is a duty to warn the ultimate user of a product of the risk of the product. See West v. Searle & Co., 305 Ark. 33, 806 S.W.2d 608 (1991). This duty exists under either a negligence theory or a strict-liability theory. Id. The record reveals that, other than the warning contained in the sample car owner’s manual referred to earlier, which was provided by the car manufacturer, the only other warning provided as to the danger of over-spinning a tire was contained on the back of a Sears tire warranty card. It read as follows:
When in mud, sand, or ice conditions, do not indulge in excessive wheel spin. In such conditions, with automatic transmission vehicles, by accelerating the motor excessively, it is possible to spin one of the drive tires beyond its speed capability. This is also true when balancing a drive tire/wheel assembly using the engine of the vehicle to spin the wheel.
Lee argues that the warnings were not adequate and that a proper warning should have been placed on the wheel itself or on the dashboard of the car or that warnings should have been displayed in retail tire stores. Sears did not base its motion for summary judgment on the claim that the warnings provided were adequate as a matter of law. Rather, it contended that Lee could not prove that lack of a warning proximately caused his injuries. This contention was based on the theory that it would have been futile to provide further warnings because Lee would not have seen them.
In Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807 (1992), the supreme court held that, if a plaintiff meets his initial burden of proving that a warning is inadequate, a presumption arises that he would have read and heeded an adequate warning; however, the presumption may be rebutted by evidence that an adequate warning would have been futile under the circumstances. In Bushong, the court upheld the entry of summary judgment on a failure-to-warn claim because the plaintiff admittedly did not read a warning label on the chemical cleaning product that allegedly caused his injury. Likewise, in the case at bar, appellant, by his own admission, did not look at the tire or inspect it before going into the ditch to free the vehicle, nor was it likely that he ever would have. The hour was late when the incident occurred, and the vehicle did not belong to appellant. Further, appellant’s expert, Forney, testified that, in his opinion, a warning on the tire would have made no difference. Thus, as in Bushong, it would have been futile as a matter of law for Sears to provide further warnings. Summary judgment was therefore proper on this issue.
Affirmed.
Hart and Vaught, JJ., agree.
But see French v. Grove Mfg. Co., 656 F.2d 295 (8th Cir. 1981).
In his brief in opposition to Sears’s summary judgment motion, Lee stated that his failure-to-warn claim was for negligent failure-to-warn. However, the distinction makes no difference for purposes of this appeal. | [
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Robert J. Gladwin,
Judge. In this unbriefed employment-security case, Otis L. McDaniel appeals the Board of Review’s denial of his claim for unemployment benefits. The Board determined that appellant was not eligible for benefits because he was unable to perform suitable work. We hold that the Board’s decision is not supported by substantial evidence and reverse and remand for an award of benefits.
Appellant worked as a truck driver for approximately forty-one years. This job required him to lift up to forty-five pounds and to push and pull heavy objects. In July 2007, appellant sustained a work-related back injury. He was temporarily placed in a job that required lifting up to nineteen pounds. Subsequently, the employer had no more light-duty work available for appellant. He was instructed to make two job contacts per week. He applied for jobs with an auto center, a counseling service, a Western Auto store, and a Fred’s store.
The Department of Workforce Services denied benefits pursuant to Arkansas Code Annotated section 11-10-507(3) (A) (Repl. 2002), which requires that a person be unemployed, physically and mentally able to perform suitable work, available for such work, and doing things that a reasonably prudent individual would be expected to do to secure work. The appeals tribunal found that appellant was not available for suitable work because he primarily had been a truck driver and could no longer meet the requirement of lifting forty-five pounds because of his medical restrictions.
We affirm the decision of the Board of Review if it is supported by substantial evidence. Coker v. Director, 99 Ark. App. 455, 262 S.W.3d 175 (2007). Substantial evidence is such relevant evidence as reasonable minds might accept as adequate to support a conclusion. Id. We view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Id. Even if the evidence could support a different decision, our review is limited to whether the Board could have reasonably reached its decision based on the evidence presented. Id.
The issue here was addressed in our case Ross v. Daniels, 266 Ark. 1056, 599 S.W.2d 390 (Ark. App. 1979). In that case, Ms. Ross was injured and was returned to work with light-duty restrictions. Her employer acknowledged that she could not be rehired because of the restrictions imposed by her physician. We stated:
We are to decide whether the holding by the appeal tribunal which was adopted by the Board of Review, denying unemployment benefits to the claimant on the premise that claimant is not fully able and available for work, nor is she doing those things a reasonable prudent individual would do to secure work within the meaning of Section 4(c) of the Employment Security law is supported by substantial evidence.
Ross, 266 Ark. at 1058, 599 S.W.2d at 391. Additionally, in Ross, we held that,
[W]here, as here, an unemployed person, partially disabled by an industrial injury and her physician has released her for light duty work, may still be able to compete in the labor market and may qualify for unemployment benefits as one available for work, although she may be receiving, under Workers’ Compensation Law, partial-permanent-disability benefits as distinguished from temporary-total benefits during the period of recuperation. See Edwards v. Metro Title Co., 133 S.W.2d 411 (Fla. 1961). Utica Mutual Insurance Co., et al v. Pioda, 90 Ga. App. 593, 83 S.E.2d 627 (1954).
Ross, 266 Ark. at 1059, 599 S.W.2d at 391-92. Like the claimant in Ross, appellant was able to do light-duty work within his physician’s restrictions. Therefore, he was available for suitable work and, by applying for other positions, he made himself available for work within his functional capacity. We reverse and remand for the award of benefits.
Reversed and remanded.
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John B. Robbins, Judge.
Appellees Arkansas Radiology Affiliates, P.A., and Richard E. Kremp, M.D., filed an action against appellants Hot Spring County Medical Center and its agents in circuit court, alleging among other things that the appellants breached a contract between the parties. Hot Spring County Medical Center subsequently filed a motion to stay pending arbitration, asking the trial court to submit the appellees’ claims to arbitration pursuant to a provision in the parties’ contract. The trial court entered an order denying appellants’ motion on the basis that the parties’ agreement to arbitrate was unenforceable due to a lack of mutuality of obligation. Hot Spring County Medical Center now appeals from that order, arguing that the trial court erred in concluding that mutuality of obligation was lacking. We agree, and we reverse and remand.
An order denying a motion to compel arbitration is an immediately appealable order. Ark. R. App. P.-Civ. 2(a)(12); IGF Ins. Co. v. Hat Crook P’ship, 349 Ark. 133, 76 S.W.3d 859 (2002). Our review of the trial court’s denial of a motion to compel arbitration is de novo. Id.
On September 17, 2003, Hot Spring County Medical Center entered into a Professional Services Agreement with Arkansas Radiology Affiliates for the provision of radiology services. Richard Kremp, M.D., is the sole owner of Arkansas Radiology. Under the agreement, Arkansas Radiology was responsible for arranging for radiology services as reasonably required in connection with all inpatient and outpatient services provided at the hospital.
On March 27, 2007, Arkansas Radiology filed its complaint against Hot Spring County Medical Center and its representatives. The complaint alleged that as a result of appellants’ actions and conduct, including a lack of cooperation in providing adequate services to patients, appellants had breached the parties’ contract. The complaint further alleged a breach of implied duty of good faith and fair dealing, and unfair trade practices. Finally, the complaint alleged defamation on the basis that the appellants had made public and malicious untrue assertions regarding Dr. Kremp’s competency and ability to perform radiology services. In their complaint, the appellees prayed for a jury trial.
On July 12, 2007, Hot Spring County Medical Center filed its motion to stay pending arbitration, wherein it asked the circuit court to compel arbitration and retain jurisdiction of the pending case only for the purpose of entering an order confirming the decision of the arbitrator. In bringing its motion, Hot Spring County Medical Center relied on the following provision of the Professional Services Agreement:
Arbitration. Any controversy or claim arising out of, or relating to, this Agreement, or the breach thereof, shall be settled by arbitration in the City of Malvern in accordance with the rules then existing of the American Health Lawyers Association and the judgment upon the award rendered may be entered in any court having jurisdiction thereof.
Arkansas Radiology responded to the motion to stay pending arbitration on July 25, 2007, wherein it resisted arbitration of its claims. It relied on the “Repayment obligation” of the parties’ contract, which provides:
In the event the Group [appellees] has at the end of the six (6) month period received any subsidy payments, Group will be obligated to repay such subsidy to Hospital [appellant] with interest at the then prime rate of interest as published in the Wall Street Journal plus one percent (1%) per annum on the unpaid principal balance, due and payable on or before the first anniversary of the date the Group’s Physician begins practice. Provided however, Hospital and Group agree that repayment of such excess subsidy may, in the alternative, be accomplished by Group requiring its physician employee to remain in and serve the community for a period of one (1) year beginning on the first anniversary date the Group’s Physician begins practice, with one-twelfth (12th) of such amount being satisfied per month. Nothing in this section shall be construed to entitle Group to receive subsidy payments from Hospital after the first six (6) months of this agreement. If Group’s Physician elects to not remain in the community in order to fulfill the repayment obligation, Group shall execute a Promissory Notefor the entire amount owed to the Hospital in the form attached as Exhibit C. (emphasis added).
The Promissory Note (Exhibit C) contains the following provisions:
Upon default, the Payee may employ an attorney to enforce the Payee’s rights and remedies pursuant to this Note, and the Maker agrees to pay to the Payee the actual costs incurred for reasonable expenses (including attorneys’ fees) incurred by the Payee in exercising any of the Payee’s rights and remedies upon default.
If any provision or portion of this Note shall, to any extent, be deemed invalid or unenforceable, the remainder of this Note shall not be affected thereby, and each provision of this Note shall be valid and enforceable to the fullest extent permitted by law.
The Maker hereby waives presentment for payment, demand, protest and notice of dishonor, and all defenses on the ground of extensions of time for the payment hereof which may be given by the Payee to the Maker or to anyone who has assumed the payment of this Note.
Arkansas Radiology contended that the above language in the Promissory Note reserved rights and remedies to Hot Spring County Medical Center that are normally associated with collection through litigation, and thus there was no mutuality of obligation to arbitrate. Arkansas Radiology further relied on certain language in a proposed, but unexecuted, “Severance and Release Agreement” that had been drafted by Hot Spring County Medical Center as evidence of the hospital’s intention not to pursue arbitration of the present dispute.
In the trial court’s order denying arbitration, the trial court ruled:
That the Motion to Stay Pending Arbitration is denied because the language in the Promissory Note attached as Exhibit “C” to the “Professional Services Agreement” between the parties which reads that the Note “shall be valid and enforceable to the fullest extent permitted by law” results in the agreement to arbitrate contained in the Professional Services Agreement being unenforceable due to a lack of mutuality of obligation.
On appeal, Hot Spring County Medical Center argues that when applying the principles related to arbitration, there was no lack of mutuality of obligation and thus the trial court erred by refusing to enforce the parties’ agreement to arbitrate. We agree.
The supreme court has held that arbitration is simply a matter of contract between the parties. Tyson Foods, Inc. v. Archer, 356 Ark. 136, 147 S.W.3d 64 (2004). Stated differently, the question of whether a dispute should be submitted to arbitration is a matter of contract construction. Id. The essential elements of a contract are (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, (5) mutual obligations. Foun dation Telecom., Inc. v. Moe Studio, Inc., 341 Ark. 231, 16 S.W.3d 531 (2000). The only issue in the present case is that of mutual obligations. The supreme court has recognized that mutuality of contract means that an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other; thus, neither party is bound unless both are bound. The Money Place, LLC v. Barnes, 349 Ark. 411, 78 S.W.3d 714 (2002). A contract, therefore, that leaves it entirely optional with one of the parties as to whether or not he will perform his promise would not be binding on the other. Id.
In Hart v. McChristian, 344 Ark. 656, 42 S.W.3d 552 (2001), our supreme court wrote:
This court has oft recognized that as a matter of public policy, arbitration is “strongly favored.” Arbitration is looked upon with approval by courts as a less expensive and more expeditious means of settling litigation and relieving docket congestion. Significantly, we have also held that arbitration is a matter of contract between parties.
Accordingly, this court will give effect to the parties’ intent as evidenced by the arbitration agreement itself. In light of the policy favoring arbitration, such agreements will not be construed strictly but will be read to include subjects within the spirit of the parties’ agreement. In other words, any doubts and ambiguities of coverage will be resolved in favor of arbitration.
344 Ark. at 662, 42 S.W.3d at 556-57 (citations omitted).
In the case at bar, Hot Spring County Medical Center correctly asserts that the arbitration clause contained in the parties’ contract unambiguously provides that both parties are bound by arbitration should a claim arise out of the agreement. We agree with appellants that this was the clear intention of the parties and that there were no additional provisions demonstrating a lack of mutuality of obligations. The trial court based its decision on the language in the attached Promissory Note stating that the note “shall be valid and enforceable to the fullest extent permitted by law.” However, this language should be read in proper context, and it appears in the note’s severability clause, a provision routinely seen as boilerplate in promissory notes and other contracts. Severability clauses are not aimed at the scope of remedies, but rather to preserve the enforceability of the balance of a contract when some of its provisions are held unenforceable. This sever-ability clause does not affect the parties’ contractual agreement to arbitrate, as that agreement would still be binding on Hot Spring County Medical Center in the event of a default. This case is unlike the situation in Tyson Foods, Inc. v. Archer, supra, where the supreme court held there was a lack of mutual obligation where the contract provided that one of the parties “may also pursue any other remedies at law or equity.” In the present case, neither the language relied on by the trial court nor any other language in the Promissory Note extended to the appellants the right to pursue any remedies other than arbitration.
Moreover, we decline the appellees’ invitation to affirm the trial court on the alternate basis that the Severance and Release Agreement afforded the appellants other remedies available at law or equity. That proposed agreement was prepared by the appellants in an attempt to cancel the Professional Services Agreement and settle the parties’ disputes before the appellees brought its action, but was never signed by either party. The appellees correctly assert that among the provisions in the Severance and Release Agreement is a provision affording remedies at law or equity to the appellants in the event the appellees breach a portion of that agreement. However, that agreement was never executed, and at any rate the proposed remedies at law and equity would have only pertained to a breach of the Severance and Release Agreement and not the Professional Services Agreement at issue in this case. Because there were no agreements between the parties that altered their mutual obligation to settle any claim by arbitration as provided in the Professional Services Agreement, we hold that the trial court erred as a matter of law in denying the appellant’s motion to submit the case to arbitration.
Finally, the appellants concede that any tort claims advanced in the appellees’ complaint are not subject to arbitration pursuant to Ark. Code Ann. § 16-108-201(b)(2) (Repl. 2006). However, appellants correctly acknowledge that Arkansas Code Annotated section 16-108-202(d) (Repl. 2006) provides, “Any action or proceeding involving an issue subject to arbitration shall be stayed if any order for arbitration or any application therefor has been made under this section, or, if the issue is severable, the stay may be with respect thereto only.” Pursuant to this subsection, our reversal only pertains to the appellee’s breach of contract claims, which shall be stayed and ordered to arbitration.
Reversed and remanded.
Marshall and Vaught, JJ., agree. | [
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Neal, Judge.
Appellant, Jimmy Rogers, was arrested on April 19, 1996, and charged with residential burglary, theft of property, and possession of a scheduled IV controlled substance. He was tried by a jury on September 23, 1997, found guilty of counts I and II, and sentenced to fifteen years at the Arkansas Department of Correction on count I and one year at the Montgomery County Jail on count II, to be served concurrently. At trial, appellant moved to dismiss all charges against him for the State’s failure to comply with his right to a speedy trial. The trial court heard arguments from both parties and denied the motion. Appellant appeals the denial of his motion to this court. We affirm.
Appellant brings this appeal under the authority of Ark. R. Crim. P. 28.1, which provides that an accused will be provided the right to a speedy trial. Rule 28 also requires that an accused must be brought to trial within twelve months from the date of his arrest if the accused has been continuously held in custody or on bail since the time of his arrest for the offense charged. See Ark. R. Crim. P. 28.1(c) and 28.2(a). Once it has been determined that the trial took place outside the speedy-trial period, the State bears the burden of proving that the delay was legally justified. Kelch v. Erwin, 333 Ark. 567, 970 S.W.2d 255 (1998).
In this case, appellant has presented a prime facie case for a speedy-trial violation in that he was arrested on April 19, 1996, and was tried 521 days later on September 23, 1997. During trial, he moved for a dismissal of all charges due to the State’s failure to bring him to trial within one year of the date of his arrest. The State responded by arguing that the speedy-trial rule should be excused because the trial was delayed from continuances made on behalf of appellant’s co-defendant, Robert Klinch, whose case was consolidated with appellant’s case before Klinch was brought to trial. Thus, according to the State, the delays caused by Klinch were excusable in regard to the applicable periods of the speedy-trial rule and were imputed to appellant as co-defendant.
On appeal, appellant argues that the only time he failed to appear for trial was during his incarceration in the Garland County jail. However, in criminal cases, issues raised must be presented to the trial court to preserve them for appeal. Strickland v. State, 331 Ark. 402, 962 S.W.2d 769 (1998). This issue was not presented before the trial court in deciding appellant’s motion to dismiss and, therefore, does not warrant our discussion.
Appellant also argues that the trial court erred in denying his motion to dismiss for lack of a speedy trial by relying on the State’s assertion that the speedy-trial rule was not relevant due to the consolidation of his case with that of his accomplice in State v. Robert Klinch, No. 96-32, and that, pursuant to Rule 28.3, an excluded time for purposes of computing time for speedy trial was caused by motions for continuances filed by Klinch and a delay chargeable to him.
Here, however, the record shows that appellant was untimely in preserving his argument. The record establishes that on the day of trial, appellant, through his counsel, announced to the trial court that he was ready to proceed with trial. It further reflects that before appellant moved for a dismissal of the charges against him, he participated in the selection of the jury during voir dire. In Taylor v. State, 284 Ark. 103, 679 S.W.2d 797 (1984), the Court stated that voir dire is an essential step in a trial. In Wilkerson v. State, 53 Ark. App. 52, 920 S.W.2d 15 (1996) (quoting Summers v. State, 292 Ark. 237, 729 S.W.2d 147 (1987)), we stated that “the State has a right to be notified prior to the hearing that a defendant will raise a speedy-hearing objection, and appellant waived his objection by failing to move for dismissal prior to the hearing.” Further, in Summers, supra, the Arkansas Supreme Court applied to a revocation proceeding Ark. R. Crim. P. 28.1(f), which states that a defendant’s failure to move for dismissal of a charge for lack of a speedy trial prior to trial results in a waiver. Therefore, we hold that appellant waived his right to a speedy trial when he failed to move for a dismissal prior to trial. Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991).
Affirmed.
Bird and Crabtree, JJ., agree. | [
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Sam Bird, Judge.
Louise Maxey appeals a decision of the Workers’ Compensation Commission holding that she was not permanently and totally disabled, but that she was entitled to benefits for a 35% wage-loss disability. The Second Injury Fund argues on cross-appeal that the Commission erred in awarding appellant wage-loss benefits on a scheduled injury. Appellee Tyson Foods takes the position that the Commission did not err in finding that appellant failed to prove permanent and total disability, but it does not address the Second Injury Fund’s argument.
At the time of the hearing in 1997, appellant was sixty-eight years old, had a tenth-grade education, no vocational training, and her past work experience consisted of working on a farm, in a flower shop, as a sales clerk in a clothing store, and for appellee Tyson Foods. Appellant testified that she began working for Tyson in 1984 and performed various jobs. She had been on the “debone line pulling chicken tenders,” a floor person cleaning up, assisting on the production fine, and keeping load records. On January 27, 1989, appellant sustained a compensable injury to her lumbar spine, underwent two surgeries, and was left with a 12% physical impairment to the body as a whole.
When appellant was released to return to work after her back injury she was restricted from bending and lifting, and she was placed on the “shell line.” She said a maintenance man made a stool especially for her so she could sit or stand as she needed. She also wore a back brace and took pain medication as needed. She said, in general, she did quite well that way.
In 1995, appellant developed bilateral carpal tunnel syndrome, and she has had two surgeries on each wrist. After the surgery on her right wrist, appellant developed an infection that has never completely healed. When appellant was released to return to work on May 14, 1997, with a 15% impairment to her hands, appellant was told by the plant manager that there was no job available within her restrictions, and she was terminated as of May 30, 1997.
Appellant testified that she then attempted to work as a Wal-Mart “greeter,” but being on her feet all day and having to pull baskets for customers caused her severe pain and she had to quit. She said she can no longer squeeze anything, open a jar, peel a potato, push a vacuum, lift any cookware, or clean her house. Her hands stay sore and hurt constantly. The administrative law judge found that appellant was permanendy and totally disabled.
The Commission reversed, and reduced appellant’s disability from total to 35%. It found that appellant had skills transferable to the “service sector” of employment where she had experience, and that there were numerous jobs where appellant’s restrictions of sitting or standing as needed could be accommodated. The Commission dismissed appellant’s unsuccessful attempt to work at Wal-Mart as insufficient to prove a total inability to earn meaningful wages.
On appeal, appellant argues that the Commission’s analysis was flawed and that reasonable minds could not reach the decision that the Commission reached. She contends that the Commission failed to acknowledge that she attempted to return to her job at Tyson Foods but was told that her restrictions barred her from performing “even the most sedentary work available” at Tyson. The appellant challenges the Commission’s implication that she was not motivated to return to work. She points out that she testified that she needed to continue working to meet her daily expenses; that she suggested to Tyson’s manager a couple of jobs she thought she could perform but was rebuffed; that she attempted to work at Wal-Mart but was physically unable to do so; and that after her back surgery she returned to her work at Tyson and worked until she became unable to function because of bilateral carpal tunnel syndrome.
Appellant also submits that the medical evidence supports a finding that she is permanently and totally disabled. In support of this argument, she points to the records of Dr. E.F. Still. Dr. Still’s report of April 4, 1997, stated that appellant “has as much swelling as I have ever seen in a carpal tunnel area. . . . The swelling is- so much this morning that I have taken pictures to document this[.]” When appellant had reached maximum healing and Dr. Still released her to return to work, he wrote:
Obviously, she is not going to be able to do anything as far as repetitive work is concerned and I doubt seriously if she is going to be able to do anything that has anything of substance such as heavy lifting, etc.
Appellant urges us to reverse the Commission’s conclusion. Appellant contends that expecting a sixty-eight-year-old woman with a tenth-grade education and serious medical problems to find a job in the service sector in a small town like Waldron, Arkansas, is unrealistic.
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. Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. College Club Dairy v. Carr, 25 Ark. App. 215, 756 S.W.2d 128 (1988). 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. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). Where a claim is denied because the claimant has failed to show entitlement to compensation by a preponderance of the evidence, the substantial evidence standard of review requires us to affirm the Commission if its opinion displays a substantial basis for the denial of the relief sought. Jeter v. B.R. McGinty Mechanical, 62 Ark. App. 53, 968 S.W.2d 645 (1998); Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987).
Permanent and total disability is awarded when an employee is unable, because of compensable injury or occupational disease, to earn any meaningful wages in the same or other employment. Ark. Code Ann. § 11-9-519(e)(l) (Repl. 1996). Appellant has experience as a clerk in a clothing store and working for a florist making and delivering flower arrangements. Considering appellant’s medical restrictions for her back and hand injuries (no repetitive bending, stooping, lifting, and no lifting greater than thirty pounds) it seems that both her previous jobs would fit into these restrictions. Appellant described her typical day:
I get up of a morning and I go down at my cousin’s cafe and I eat breakfast and I am usually down there until the mail runs, and I go to the post office, and I come back home, and by that time, well, “Matlock” is on; I watch him. And then I watch “The Price is Right,” and then [I] . . . get in the car and I go drive around town and sometimes I go to Wal-Mart, go in there and look around, and by that time it’s lunchtime, and I eat lunch, and I go back down and do the same thing over in town, and then I come home and if there’s a good program on, I watch it, and then I have to get up and have to go back down town.
If appellant can tolerate driving various places in town, she could deliver flowers. Working in a dress shop would also appear to be within appellant’s restrictions. Furthermore, appellant testified that when told that Tyson had no job for her within her restrictions, she mentioned at least one job she thought she could do, but it was already filled. Thus, there is a substantial basis in the record to support the Commission’s finding that appellant was not permanently and totally disabled. We affirm on direct appeal.
The Second Injury Fund argues on cross-appeal that the Commission erred as a matter of law when it awarded appellant permanent partial disability benefits on a scheduled injury. Although on first reading, the Commission’s reasoning sounds quite logical, after analysis under the well-settled guidelines of statutory construction, we find we cannot agree. The Commission said:
We certainly agree that Section 521(g) [Ark. Code Ann. § 11-9— 521 (Supp. 1997)] and the Risper [Fed. Compress & Warehouse Co. v. Risper, 55 Ark. App. 300, 935 S.W.2d 279 (1996)] decision stand for the proposition that a respondent-employer and a respondent-carrier (Respondent No. 1 in this case) cannot be liable for an award of wage loss for a scheduled injury absent a finding of permanent and total disability. However, Risper was not a Second Injury Fund case, and we interpret Second Injury Fund liability to be controlled by Ark. Code Ann. § 11-9-525, and not by Ark. Code Ann. § 11-9-521.
Likewise, we see no rationale for limiting Second Injury Fund liability, in cases involving scheduled injuries, only to those cases resulting in permanent and total disability. In this regard, the underlying rationale for a schedule of benefits, such as Ark. Code Ann. § 11-9-521, is to compensate the injured worker for the permanent degree of loss or disuse provided for by statute. Included in that schedule of benefits is a conclusively presumed award of wage loss statutorily assigned to that particular scheduled injury. However, Second Injury Fund cases under Ark. Code Ann. § 11-9-525(b)(3), by definition, involve two or more injuries which combine to cause a greater degree of disability than the degree of disability attributable to each particular injury considered separately. Therefore, we believe that the General Assembly intended for the Second Injury Fund to have potential liability under Section 525(b)(3) in cases involving scheduled injuries causing less than permanent and total disability, even though an employer’s liability for permanent disability benefits for scheduled injuries is limited under Section 521(g) to the schedule in Section 521, unless the injury causes permanent and total disability. In our opinion, Section 521 and Section 525 were enacted to address distinctly different situations, and we do not agree with the Second Injury Fund’s assertion that Section 521(g) is a bar to Second Injury Fund liability in this case.
(Emphasis in the original; some citations omitted.)
Arkansas Code Annotated section 11-9-521 (Supp. 1997) provides in pertinent sections:
(a) An employee who sustains a permanent compensable injury scheduled in this section shall receive, in addition to compensation for temporary total and temporary partial benefits during the healing period or until the employee returns to work, whichever occurs first, weekly benefits in the amount of the permanent partial disability rate attributable to the injury, for that period of time set out in the following schedule:
(g) Any employee suffering a scheduled injury shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment set forth above except as otherwise provided in § 11 — 9—519(b).
Arkansas Code Annotated section ll-9-519(b) states, “In the absence of clear and convincing proof to the contrary, the loss of both hands, both arms, both legs, both eyes, or of any two (2) thereof shall constitute permanent total disability.”
In Lawhon Farm Serv. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998), the Arkansas Supreme Court explained:
We construe a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Vanderpool v. Fidelity & Casualty Ins. Co., 327 Ark. 407, 415, 939 S.W.2d 280 (1997); Bill Fitts Auto Sales, Inc. v. Daniels, 325 Ark. 51, 55, 922 S.W.2d 718, 720 (1996). ... In construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. Hercules, Inc. v. Pledger, 319 Ark. 702, 706, 894 S.W.2d 576, 578 (1995).
Strict construction means narrow construction. Arkansas Conf. Seventh Day Adventists v. Benton Cty. Bd. of Equalization, 304 Ark. 95, 800 S.W.2d 426 (1990). In Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993), we wrote that strict construction requires that nothing be taken as intended that is not clearly expressed. The doctrine of strict construction is to use the plain meaning of the language employed. Holaday v. Fraker, 323 Ark. 522, 915 S.W.2d 280 (1996). Even when statutes are to be strictly construed, however, they must be construed in their entirety, harmonizing each subsection where possible. Min-Ark Pallet Co. v. Lindsey, 58 Ark. App. 309, 950 S.W.2d 468 (1997).
335 Ark. at 278-79, 984 S.W.2d at 4. Statutes relating to the same subject should be read in a harmonious manner, if possible. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999); Mecco Seed Co. v. London, 47 Ark. App. 121, 886 S.W.2d 882 (1994).
Arkansas Code Annotated section 11-9-521 is not ambiguous. The title of section 521 is “Compensation for disability — Scheduled permanent injuries,” and subsections (a) and (g) state: “An employee who sustains a permanent compensable injury. . .” and, “Any employee suffering a scheduled injury shall not he entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment set forth above except as otherwise provided in § ll-9-519(b).” Nowhere in the section is there any reference to the party who is to be responsible for paying the disability compensation to the claimant. The entire section is directed toward claimants and the amount of compensation to which a claimant is entitled.
Further, while section 525 does mandate when Second Injury Fund liability may arise, it is not the only portion of the Workers’ Compensation Law that applies to the Second Injury Fund. The purpose of the Second Injury Fund is to pay a portion of the obligation of the employer in accordance with the Workers’ Compensation Act, and benefits both the employer and its insurance carrier. Ward v. Fayetteville City Hospital, 28 Ark. App. 73, 770 S.W.2d 668 (1989). See also Second Injury Fund v. Mid-State Const. Co., 16 Ark. App. 169, 698 S.W.2d 804 (1985). Since Ark. Code Ann. § 521(g) exempts the employer from paying any wage-loss disability for a scheduled injury in the absence of permanent total disability, as the Commission admits, it also exempts the Second Injury Fund. A claimant who is not entitled to wage-loss disability benefits from his employer or its insurance carrier cannot be entitled to benefits from the Second Injury Fund.
When we consider the workers’ compensation statute as a whole, and read Ark. Code Ann. §§ 11-9-521 and 525 harmoniously with each other and with the entire workers’ compensation law, it is clear that the Legislature meant for the claimant’s recovery to be restricted to the appropriate scheduled amount, regardless of whether the respondent is an employer, insurance carrier, or the Second Injury Fund.
Case law addressing scheduled injuries supports our finding that a claimant who has sustained a scheduled injury but is less than permanently, totally disabled is not entitled to wage-loss disability benefits. Fed. Compress & Wholesale v. Risper, 55 Ark. App. 300, 935 S.W.2d 279 (1996), involved an eye injury. It was not clear from the Commission’s opinion that it had not considered the claimant’s eye injury when determining the amount of wage-loss benefits to which he was entitled. We pointed out that an eye injury was a scheduled injury, which should not have been considered when determining claimant’s wage-loss benefits. We reversed and remanded for the Commission to determine the extent of the claimant’s wage-loss benefits without giving any consideration whatsoever to his scheduled eye injury or his non-compensable lumbar injury, which may also have been considered to some extent by the Commission.
In Ward, supra, we held that a claimant who has settled his claim with the employer cannot then proceed against the Second Injury Fund. In other words, we held that the statute controlled the claimant’s entitlement to compensation, rather than the source of the compensation.
For these reasons we reverse the Commission’s order that the Second Injury Fund is Hable for wage-loss benefits to the claimant and hold that the claimant is not entitled to wage-loss benefits in addition to the compensation she received for her scheduled injury.
Affirmed on direct appeal; reversed on cross-appeal.
Neal and Crabtree, JJ., agree. | [
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Karen R. Baker, Judge.
Appellee University of Central Arkansas discharged appellant Mike P. Cusack from his position as a shuttle bus driver after it received notice that Mr. Cusack tested positive for marijuana on a drug screening test performed pursuant to the Department of Transportation’s regulation of individuals maintaining a commercial driver’s license. The Board of Review found that the employee’s failing the drug test for the Department of Transportation qualification demonstrated deliberate disregard of the employer’s interest. Whether Mr. Cusack’s actions constituted misconduct in connection with his work was a fact question for the Board to answer. Terravista Landscape v. Williams, 88 Ark. App. 57, 64, 194 S.W.3d 800, 804 (2004). The question for this court is whether substantial evidence supports the Board’s decision. Id. We affirm.
Appellant was denied unemployment benefits upon the finding that he was discharged for misconduct. The dissent posits that although appellant had signed the University’s Drug Free Policy, UCA had no written policy separately addressing the drug testing and that off-duty drug use cannot be the basis for misconduct because it impermissibly extends an employer’s control of an employee’s actions outside the workplace.
The misconduct in this case was not the off-duty use of marijuana. The misconduct was Mr. Cusack arriving at the workplace with marijuana in his system to drive the shuttle bus and transport the residents of the retirement center. Unemployment benefits are intended to benefit employees who lose their jobs through no fault or voluntary decision of their own. They are not intended to penalize employers or reward employees, but to promote the general welfare of the State. Wacaster v. Daniels, 270 Ark. 190, 194, 603 S.W.2d 907, 910 (Ark. App.1980). Mr. Cusack voluntarily arrived at the workplace with marijuana in his system to drive the bus and transport the residents. However, even applying the misconduct test purported to be applicable by the dissent in this case, we must affirm:
[I]n Feagin v. Everett, 9 Ark. App. 59, 652 S.W.2d 839 (1983)... we recognized that misconduct in connection with the work can occur while an employee is off duty. There, a teacher was fired after criminal charges had been filed against her for the possession of a controlled substance, which had been found in her home. In affirming the Board’s finding of misconduct, we adopted a three-part test for determining whether an employee’s offiduty conduct will be considered misconduct in connection with the work. First, there must exist a nexus between the employee’s work and his or her off-duty activities. Second, it must be shown that the off-duty activities resulted in harm to the employer’s interests. And third, the off-duty conduct must be violative of some code of behavior contracted between the employer and employee, and the employee’s conduct must be done with the intent or knowledge that the employer’s interests would suffer.
Rucker v. Price, 52 Ark. App. 126, 130, 915 S.W.2d 315, 317 (1996).
The discussions by the majority and dissent in the Rucker case provide a general policy summary behind the prohibition of off-duty drug use and the relationship to our unemployment determinations. In the case before us, appellant was required by UCA to submit to a drug test prior to his employment and signed a Drug Free Policy for the workplace. In addition, a specific contractual requirement for him to maintain his job as a shuttle bus driver was that he continue to be licensed as a commercial driver. A driver with a commercial driver’s license is subject to the Department of Transportation’s rules and regulations that specifically require that he be subject to random drug testing with the results being reported directly to his employer. See generally 49 C.F.R. pts. 350-399 (2008). Appellant knew that his employer’s interests would suffer from his reporting to work with marijuana in his system when his job was to transport residents of the retirement center by driving a bus. We hold on these facts that substantial evidence supports the Board’s decision.
Affirmed.
Pittman, C.J., Bird, and Vaught, JJ., agree.
Hart and Robbins, JJ., dissent. | [
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Josephine Linker Hart, Judge.
Jim Defir appeals an order of the Drew County Circuit Court voiding a deed that purported to convey property to Defir from W. G. Langdon. The order also contained express findings that the appellee, Verna Reed, was the natural daughter of Langdon and that the signature on the deed was not that of Langdon. On appeal, Defir argues that the trial court erred in finding that Reed is Langdon’s heir and in quieting title in her name. We reverse and remand.
Several facts are not in dispute. Langdon died intestate on May 24, 2001. No estate was opened. Reed’s parents never married. However, Reed’s mother, Ida Pearl Calhoun, had Lang-don’s name placed on a delayed birth certificate when Reed was six years old. Later, by warranty deed dated September 14, 1998, Langdon conveyed twenty acres of land to Reed. The deed recited as the consideration, “the love and affection I have for my daughter, Verna Langdon Reed.” Also undisputed is the fact that on March 1, 2001, Defir recorded a quit-claim deed conveying another twenty acres of land from Langdon to Langdon and Defir as joint tenants with right of survivorship. On April 11, 2005, Reed filed a petition to quiet title in the land purportedly conveyed by that deed. She asserted that she was Langdon’s “sole heir” and that the deed was a forgery. In his answer, Defir specifically denied that Reed was Langdon’s daughter. At a hearing on Reed’s petition, Defir asserted for the first time that Reed’s failure to follow the requirements of Arkansas Code Annotated section 28-9-209 (Repl. 2004), rendered her without standing to assert title to the disputed property. It was not disputed that Reed did not commence an action or assert a claim against Langdon’s estate within 180 days of Langdon’s death. Nonetheless, the trial court found in favor of Reed.
On appeal, Defir argues, as he did to the trial court, that Reed’s failure to follow the requirements of section 28-9-209 denies her the right to inherit property. Citing Raspberry v. Ivory, 67 Ark. App. 227, 998 S.W.2d 431 (1999), he asserts that the “statute creates a right unknown at common law, and the right is created for only 180 days, i.e., the 180-day period is a condition qualifying the right of action, and not a mere limitation on the remedy.” Accordingly, Reed failed to meet her burden of establishing her ownership of the land in question. We agree that the trial court erred in finding that Reed was an heir.
We conduct a de novo review actions that have traditionally been tried in chancery court. City of Cabot v. Brians, 93 Ark. App. 77, 216 S.W.3d 627 (2005). However, we will not reverse the circuit court’s findings in such actions unless the findings are clearly erroneous. See id. A finding of fact is clearly erroneous when, although there is evidence to support it, we are left with the definite and firm conviction that a mistake has been committed. Id. However, we also review issues of statutory interpretation de novo, as it is for this court to decide what a statute means. Maddox v. City of Fort Smith, 369 Ark. 143, 251 S.W.3d 281 (2007). In this respect, 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.
We believe that the trial court clearly erred in finding that Reed was Langdon’s heir. That legal status depended on her satisfying the requirements of Arkansas Code Annotated section 28-9-209, which she clearly did not do. The 1998 deed whereby Langdon conveyed twenty acres ofland to Reed for “the love and affection I have for my daughter, Verna Langdon Reed,” may have, at best, arguably satisfied the requirement under the statute that Langdon make “a written acknowledgment that he is the father of the child.” However, there is no dispute that Reed failed to commence an action or assert a claim against Langdon’s estate within 180 days of his death. Accordingly, she cannot inherit property from Langdon through intestate succession, and consequently, her claim to the disputed real estate is unsubstantiated.
Reversed and remanded.
Gladwin and Heffley, JJ., agree.
Although styled as an action to quiet title, broadly construing the pleadings as we are required to under the Arkansas Rules of Civil Procedure, we believe that this complaint was actually a petition to cancel an instrument and remove cloud of title. See generally Rowe v. Allison, 87 Ark. 207, 112 S.W. 395 (1908). | [
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Eugene Hunt, Judge.
This appeal involves a dispute over the distribution of property in a trust created by Eva Scroggin’s six sons for her support. Appellants Richard Doyle Scrog-gin, Carroll Scroggin, and Benny Scroggin are Eva’s three surviving sons. Appellees Wilhelmina Scroggin, Michael Scroggin, Ann Pol-ston, Robert Scroggin, Beatrice Scroggin, and Alice Scroggin Chi-cóme are the surviving spouses and children of Eva’s three deceased sons. The Conway County Circuit Court ruled that appellees’ claims seeking to establish that they were Eva’s heirs and thus entitled to a portion of the trust property were not barred by the statute of limitations. The court also ruled that the appointment of Benny as successor trustee and his lease of the trust property were void. Appellants challenge these rulings, as well as the propriety of the circuit court’s consideration of appellees’ motion for summary judgment and the court’s award of a one-sixth interest in the trust property to Wilhelmina. We affirm.
The facts are undisputed. Joseph H. Scroggin died intestate on February 12, 1956, survived by his widow Eva Scroggin and their six sons. At the time of his death, Joseph Scroggin owned substantial property in Conway County. On May 6, 1959, the six sons executed a document entitled “Trust Agreement” that provided that they would convey the property in trust to Afton so that the property could be sold or mortgaged and the proceeds be used for the benefit of their mother, Eva Scroggin. Upon her death, the proceeds from the sale of the property were to be divided equally between the sons or their heirs. Also on May 6, 1959, Eva, her sons, and the wives of the married sons executed a deed conveying the property to Afton as trustee.
On December 10, 1971, Afton, as trustee, conveyed the property, reserving all right, title and interest in 50% of all oil, gas, and minerals produced from the land. The conveyance was also executed by Afton’s wife, Beatrice, who released her dower interest.
On August 16, 1985, Afton, as trustee, executed a document entitled “Amendment to Trust Agreement dated May 6, 1959.” The document stated that upon Afton’s death, Benny was to be the successor trustee, with all of the rights and duties of the original trustee.
Eva Scroggin died intestate on January 12, 1999, at the age of 102. She was preceded in death by her son James, who died in September 1997. Edwin Ray Scroggin died on November 3, 2000. Afton died on January 19, 2001.
In September 2005, Wilhelmina executed an oil-and-gas lease for the property with Griffith Land Services, Inc. The lease recited a consideration of $10. Wilhelmina stated in an answer to an interrogatory that she received $2,400 from Griffith.
In October 2005, Benny, acting as successor trustee, executed a lease of the mineral interests with Griffith. The lease recited a consideration of $10.
On March 29, 2006, appellees filed a complaint to determine heirship. The complaint, as amended, asserted that no trust was created by the May 6, 1959, agreement; that the May 6, 1959, conveyance to Afton as trustee should be set aside; and that the court should determine the interests of the heirs of Eva Scroggin. In the alternative, the complaint asserted that, should the deed not be set aside, the court should determine that the sole purpose of the conveyance to Afton as trustee was for the benefit of all of the heirs. Appellants answered the complaint, asserting the affirmative defenses of the statute of limitations, waiver, estoppel, and that Beatrice Scroggin had no standing because she had previously waived her dower interest in the property.
On July 2, 2007, after first obtaining leave of court, appellants filed a motion for summary judgment, contending that appellees’ claims were barred by either the seven-year statute of limitations found in Arkansas Code Annotated section 18-61-101 (Repl. 2003) or the five-year statute of limitations found in Arkansas Code Annotated section 16-56-115 (Repl. 2005).
On July 11, 2007, appellees, without obtaining leave of court, filed their own motion for summary judgment. The motion asserted that there was a continuing duty to terminate the trust and that a trustee should be appointed to terminate the trust and distribute the proceeds. Appellants filed a motion to strike appel-lees’ motion for summary judgment, arguing that appellees violated Arkansas Rule of Civil Procedure 56(a) in that it was filed less than forty-five days prior to the scheduled trial date.
On July 30, 2007, the circuit court issued a letter opinion stating that it had reviewed the motions for summary judgment and responses filed by the parties. The court found that there was no basis for setting aside the May 6, 1959, warranty deed conveying the property in trust to Afton. The court also found that the primary purpose of the trust was to use the property to provide for Eva Scroggin during her lifetime and that the trust terminated upon the death of Eva Scroggin. The court determined that the agreement was clear that, if a beneficiary were deceased when the trust terminated, his interest would go to his heirs. The court also found that the “Amendment to Trust” executed by Afton naming Benny as trustee and any conveyances executed by Benny as trustee were invalid. The court issued another letter opinion on August 27, 2007, finding that Wilhelmina was entitled to all of Edwin’s one-sixth interest in the property. An order memorializing these findings was entered on August 31, 2007. This appeal followed.
On appeal, appellants argue four points for reversal: (1) that the circuit court erred in failing to dismiss all of appellees’ claims because they were barred by statutes of limitations; (2) that the circuit court erred in considering appellees’ motion for summary judgment because it failed to comply with the time limits in Arkansas Rule of Civil Procedure 56(a); (3) that the circuit court erred in ruling that the amendment to trust was invalid and that any conveyances executed in reliance on that amendment were likewise invalid; (4) the circuit court erred in ruling that Wilhelmina was entitled to a one-sixth interest in the property.
Questions of law are reviewed on appeal using a de novo standard. Cooper Realty Inv. v. Ark. Contractors Licensing Bd., 355 Ark. 156, 134 S.W.3d 1 (2003); Wal-Mart Stores, Inc. v. P.O. Market, Inc., 347 Ark. 651, 66 S.W.3d 620 (2002).
For their first point, appellants argue that appellees’ claims should have been dismissed as barred by the statutes of limitations. Appellants assert that appellees’ claims are barred either by the seven-year statute of limitations found in section 18-61-101 or the five-year statute oflimitations found in section 16-56-115. Appellants contend that the applicable statute commenced to run upon the death of Eva Scroggin.
Appellants correctly rely on Bryant v. Lemmons, 269 Ark. 5, 598 S.W.2d 79 (1980), McBroom v. Clark, 252 Ark. 372, 380 S.W.2d 947 (1972), and James v. Helmich, 186 Ark. 1053, 57 S.W.2d 829 (1933), for the proposition that the statute of limitations can bar claims for the recovery of a share of an estate. However, appellants ignore the critical part of the holding of Bryant and the other cases — that the statute of limitations does not commence to run until an issue of pecuniary consequence arises. Moreover, those cases did not involve trustees holding property under express trusts for the benefit of certain heirs. In McDermott v. McAdams, 268 Ark. 1031, 598 S.W.2d 427 (Ark. App. 1980), this court assumed that the action was governed by section 16-56 — 115 and held that, where a trust terminated of its own terms, the statute of limitations did not begin to run in favor of the trustee where the beneficiary allowed the trust property to remain in the possession of the trustee and there were no actions by the trustee to indicate that the trustee was claiming adversely to the beneficiary of the trust. Medical Park Hospital v. Bancorp South, 357 Ark. 316, 166 S.W.3d 19 (2004), and Aycock Pontiac, Inc. v. Aycock, 335 Ark. 456, 983 S.W.2d 915 (1998), which were relied upon by appellants, did not involve questions of when the statutes of limitations began to run against the trustee.
Here, there is no evidence that any of the appellees made a demand for a distribution of the trust property that would trigger the statute of limitations. The only other possible event that would start the statute of limitations would be the execution by Wilhelmina and Benny of the mineral leases in September and October of 2005. Appellees filed suit on March 29, 2006, well within either statute of limitations when measured from the event of pecuniary consequence. We affirm on this point.
In their second point, appellants argue that the circuit court erred in considering appellees’ motion for summary judgment because it was filed less than forty-five days before the scheduled trial date. Arkansas Rule of Civil Procedure 56(a) requires that motions for summary judgment be filed “no later than 45 days before any scheduled trial date.” Appellants filed their own motion for summary judgment within that same forty-five day period after they first obtained leave of court. In response, appellees filed their motion for summary judgment without seeking leave of court. We believe that appellants’ obtaining leave and filing their own motion for summary judgment was sufficient reason for appellees to file their counter motion within the same forty-five day period. The point of the rule’s timetable is to give the parties adequate time to brief and argue a potentially disposi- tive motion. Craft v. Ark. La. Gas Co., 8 Ark. App. 169, 649 S.W.2d 409 (1983). The timetable is not a jurisdictional bar to the consideration of the motion. Id. at 173, 649 S.W.2d at 411. Appellants have not alleged that they have suffered any prejudice, either in their motion to strike the motion for summary judgment or in their brief to this court, only that appellees did not comply with the timing requirements of Rule 56(a). Our supreme court has held that, where the motion for summary judgment was not timely filed, the case would not be reversed without a showing of prejudice. Keenan v. Am. River Transp. Co., 304 Ark. 42, 799 S.W.2d 801 (1990); see also Craft, supra. The circuit court did not err in considering appellees’ motion for summary judgment.
Appellants next argue as their third point that the circuit court erred in finding that the document entitled “Amendment to Trust Agreement dated May 6,1959” was invalid and that the lease of the mineral interests executed by the successor trustee was likewise invalid. Appellants do not address whether the appointment of Benny as successor trustee was valid. The circuit court correctly found that Benny’s appointment was invalid.
The trust agreement provided that Afton would hold title in the property for the benefit of Eva Scroggin and, after her death, the other sons or their heirs. In 1985, Afton attempted to modify the trust agreement to name Benny as successor trustee. In the absence of authority conferred by the trust instrument, a trustee has no power to appoint his successor. Jordan v. Landis, 175 So. 241 (Fla. 1937); Adams v. Highland Cemetery Co., 192 S.W. 944 (Mo. 1917); Bonney v. Granger, 356 S.E.2d 138 (S.C. Ct. App. 1987); War Mem’l Library v. Franklin Spec. Sch. Dist., 514 S.W.2d 874 (Tenn. Ct. App. 1974). Being without the power to name a successor trustee, Afton’s designation of Benny as successor trustee was without authority and void. Griley v. Marion Mortgage Co., 182 So. 297 (Fla. 1937). Likewise, Benny’s leasing of the mineral interests was void. Norris v. Scroggin, 175 Ark. 50, 297 S.W. 1022 (1927).
The circuit court’s finding that Wilhelmina Scroggin was entitled to a one-sixth interest in the mineral interest is the focus of appellants’ fourth and final point on appeal. They argue that she waived any interest she might have in the property by executing the 1959 deed conveying the property in trust to Afton. We disagree. Under Arkansas Code Annotated section 28-9- 214(2) (Repl. 2004), Edwin’s death without any children meant that his estate passed by intestate succession to Wilhelmina as the surviving spouse because they were married for more than three years. Thus, the fact that Wilhelmina had waived her right to dower in the 1959 conveyance in trust to Afton is irrelevant because she was not awarded dower in the one-sixth interest; rather, she received Edwin’s interest as an heir of Joseph Scroggin.
Affirmed.
Hart and Griffen, JJ., agree.
The other appellants are Betty Scroggin, Carroll’s wife, and Gaylon Scroggin, Benny’s wife.
Wilhelmina is the surviving spouse of Edwin Ray Scroggin; Beatrice and Alice are, respectively, the surviving spouse and child of Afton Scroggin; and Michael, Ann, and Robert are the children of James Scroggin.
The deed lists Benny Scroggin as single. The record does not disclose when he married. | [
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Sam Bird, Judge.
Michael Justin Drake appeals the Drew County Circuit Court’s denial of his motion to withdraw his plea of guilty to three felonies. He contends that the circuit court erred as a matter of law and abused its discretion by refusing to allow him to withdraw the guilty plea. Drake argues that he had an absolute right to withdraw the plea because it had not been accepted by the trial court. He claims alternatively that, even if the court did accept the plea, he was entitled to withdraw it to prevent a manifest injustice. We disagree with both arguments, and we affirm the order of the circuit court.
Drake and codefendant Justin Smith were jointly charged with residential burglary, kidnapping, attempted capital murder, aggravated assault, and felon in possession of a firearm. The State offered Drake a plea bargain, contingent upon truthful testimony by Drake and a second witness, in which the State would nolle pros the assault and firearm charges against him, reduce the attempted capital murder to attempted first-degree murder, and recommend concurrent sentences for the charges as well as ten years’ suspended imposition of sentence. The prosecutor proposed taking Drake’s guilty plea in open court but withholding sentencing until Smith was tried or entered a plea.
Drake’s plea hearing took place on March 19, 2007. He pled guilty to residential burglary, kidnapping, and attempted first-degree murder, and the State recommended concurrent prison terms of fourteen years in exchange for testimony against Smith. On April 4 Drake filed a motion to withdraw his previous guilty plea. On April 5 he invoked his right against self-incrimination, and he declined to testify at Smith’s trial; the jury acquitted Smith on all charges. The circuit court denied Drake’s motion to withdraw his guilty plea at a hearing later in April, and in June he was sentenced as a habitual offender to consecutive sentences totaling forty years’ imprisonment. His appeal arises from the judgment and commitment order entered on June 18, 2007.
Rule 26.1(a) of the Arkansas Rules of Criminal Procedure reads as follows:
A defendant may withdraw his or her plea of guilty or nolo contendere as a matter of right before it has been accepted by the court. A defendant may not withdraw his or her plea of guilty or nolo contendere as a matter of right after it has been accepted by the court; however, before entry of judgment, the court in its discretion may allow the defendant to withdraw his or her plea to correct a manifest injustice if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of his or her motion and any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant’s plea. A plea of guilty or nolo contendere may not be withdrawn under this rule after entry of judgment.
Drake points to the provision of Rule 26.1(a) that a defendant may withdraw a guilty plea as a matter of right before it has been “accepted by the court.” He argues that the phrase requires the circuit court to state on the record in unequivocal terms the court’s acceptance of the plea. Noting the absence of “express words” by which the court accepted his plea or found him guilty, he asserts “silent acquiescence” was not enough to show acceptance. He submits, as an issue of first impression, that the rule requires a trial court to indicate acceptance of the plea by affirmative action.
Drake concedes that he found no authority other than rules of construction to support his proposition. The first rule in considering the meaning and effect of a statute or rule is to construe it just as it reads, giving words their ordinary and usually accepted meaning in common language. Aikens v. State, 368 Ark. 641, 249 S.W.3d 788 (2007). Court rules are construed by the same means and canons of construction used in statutory interpretation. Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002).
In Folk v. State, 96 Ark. App. 73, 238 S.W.3d 640 (2006), a case involving check-kiting charges, the appellant contended that he had the absolute right to withdraw his no-contest plea under Rule 26.1(a) because it was unclear whether the trial court had accepted the plea. The public defender and the prosecutor announced in open court a negotiated plea bargain under which Folk would quickly make restitution to the bank and would serve a five-year term of imprisonment. Despite discussion about waiting a week to accept the plea so that restitution could be paid first, the trial judge said that he would “like to consummate it today.” 96 Ark. App. at 74, 238 S.W.3d at 641. The prosecutor asked the court to “let [Folk] plead guilty and sentence him when we get the money,” and the public defender said “we can withdraw our guilty plea” should the court not accept the State’s recommendation. Id. Folk signed a no-contest plea statement acknowledging that the court was not required to accept the plea or the recommended sentence, and the case was set for sentencing. He at tempted to withdraw his plea at a review hearing a month later, and his attorney informed the court that Folk’s sister had been unable to garner enough funds for full restitution. The judge reminded Folk that the case was set for sentencing because he had entered a plea of no contest upon which the court “made a finding that you were guilty.” 96 Ark. App. at 75, 238 S.W.3d at 641.
This court held on appeal that Folk had no absolute right to withdraw his plea because it was in fact accepted at the first hearing. Reviewing the parties’ colloquy at that hearing and Folk’s subsequent attempt to withdraw his plea, we found that the trial judge “indicated acceptance of the no-contest plea, commenting that he wanted appellant to promptly pay the restitution, which was the compelling interest argued by the State.” Id. We rejected Folk’s alternate argument that the trial court abused its discretion in failing to permit withdrawal of his plea because he did not receive the benefit of his bargain. Citing the inherent unfairness that would result if only one party were bound to a bargain, we held that no “manifest injustice” occurred when Folk received a sentence harsher than the negotiated one because of his failure to pay restitution within the time restrictions. 96 Ark. App. at 77, 238 S.W.3d at 642.
Absolute Right to Withdraw a Guilty Plea
The record of the plea hearing shows that Drake responded affirmatively when the court inquired if the signature on the guilty-plea agreement was his, if he understood his plea, and if he had reviewed it with his attorney. He answered yes when the court asked if he understood the State’s agreement for deferred sentencing until after his testimony in the companion case, the State’s recommendation for fourteen years’ actual imprisonment and additional suspended imposition of sentence subject to Drake’s truthful testimony in the upcoming trial of his alleged accomplice, and the court’s being “in no way” bound by the recommended sentence despite the court’s recognition of the State’s recommendation. Drake affirmed his understanding that the State made its recommendation in order to secure what it believed to be truthful and favorable testimony in its case against his accomplice. He also affirmed his understanding that he was giving up his rights to remain silent, to have a jury trial, to be presumed innocent until proven guilty beyond a reasonable doubt, to have his lawyer cross-examine witnesses against him, to present his own witnesses, and to testify in his own defense if desired. Under further ques tioning by the court, he said that he had not been threatened or pressured to plead guilty, that no promises had been made about receiving the prosecutor’s recommended sentence, that he knew the court was not bound by the recommendation, and that he had not relied upon any statement or promise about release dates from prison, probation, or parole eligibility. Then he answered more questions and pled “guilty” to the charges of attempted first-degree murder, residential burglary, and kidnapping. After Drake related to the court his participation in the events that had led to the charges, the court announced that the record was closed.
Drake’s subsequent motion to withdraw his guilty plea was taken up by the circuit court at his sentencing hearing. His attorney argued that the record was unclear as to whether or not the court had in fact accepted the negotiated plea and the guilty plea. The State responded that “the court assented to the guilty plea, accepted the guilty plea. There’s no magic words needed [that] the court has to incant in order to accept a plea.”
In denying Drake’s motion to withdraw the guilty plea, the court stated:
The Court’s words stand for themselves. I allowed this defendant to plead guilty in exchange for a recommendation that the State was going to make, provided that the defendant testify reasonably consistently with what he told the Court happened. I made it clear to the defendant and defense counsel that I would accept the plea and let him plead guilty but would not be bound by . . . the State’s recommendation, and so that’s what the Court did and that was clear to everybody, including his very good, seasoned defense attorney.... You can call it a negotiated plea, you can not call it a negotiated plea. It was a plea of guilty... with the clear admonition that the Court would not be bound by the State’s recommendation. Now, that’s the Court’s ruling.
(Emphasis added.)
While the circuit court did not explicitly state at Drake’s plea hearing that it accepted the guilty plea, it is implicit in the colloquy between the court and appellant that the court did so. The court did not allow Drake to enter his plea until questioning him extensively on the record about his understanding of the plea, the circumstances under which it was given, the rights he was relinquishing, and the fact that the court was not bound by the State’s recommendation as to sentencing. The record remained open while Drake recited the factual bases underlying the plea he had entered. The court’s above-quoted remarks at the subsequent sentencing hearing, although not necessary to our determination of this issue, further clarify that the court had previously accepted appellant’s guilty plea.
While we think that an oral pronouncement by the circuit court of its acceptance of appellant’s guilty plea would have been more in keeping with its obligation to hear the evidence supporting a guilty plea and to make a judicial determination of whether the plea should be accepted or rejected, Ark. R. Crim. P. 26.1(a) includes no requirement that the court accept a guilty or nolo contendere plea by express words, and we will not read language into a statute or a rule that is not included in it. See Potter v. City of Tontitown, 371 Ark. 200, 264 S.W.3d 473, (2007). We hold that Drake had no absolute right to withdraw his plea under Ark. R. Crim. P. 26.1 (a) (2007) because the circuit court had in fact accepted it.
Withdrawal of Guilty Plea to Correct a Manifest Injustice
Drake argues that he should have been allowed to withdraw the plea for two reasons: he did not receive the sentence concessions promised him, and his codefendant’s verdict of not guilty means that Drake would serve time in prison for a crime that was not committed. Drake’s argument that he did not receive the promised sentencing concession turns on the court’s concurrence to the parties’ agreement, which did not occur. See Ark. R. Crim. P. 26.1(b)(v) (stating that “[withdrawal of a plea of guilty or nolo contendere shall be deemed to be necessary to correct a manifest injustice if a defendant proves that... he or she did not receive the . . . sentence concessions contemplated by a plea agreement in which the trial court had indicated its concurrence”); Ark. R. Crim. P. 25.3(b) (addressing situations where the judge decides that disposition should not include the charge or sentence concessions contemplated by a plea agreement after “the judge has indicated his concurrence with a plea agreement and the defendant has entered a plea of guilty or nolo contendere”). As for Drake’s second argument, our supreme court has clearly stated that a co-defendant’s sentence is not relevant to the appellant’s guilt, innocence, or punishment. Baxter v. State, 324 Ark. 440, 922 S.W.2d 682 (1996). Thus, Drake has presented no convincing argument that he was entitled to withdraw his guilty plea to prevent manifest injustice in this case.
Affirmed.
Glover and Marshall, JJ., agree.
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING NOVEMBER 19,2008
The Reporter’s Notes to Rule 26.1 explain changes made to paragraph (a) in 1998 to clarify, in part, when a plea could be withdrawn under the rule:
It now provides that prior to acceptance of the plea by the court, the defendant may withdraw his or her plea as a matter of right. After acceptance and before entry of judgment, the court in its discretion may allow a plea withdrawal upon proof that it is necessary to correct a manifest injustice. After entry of the written judgment, the plea may not be withdrawn under this rule....
Drake presents a one-sentence argument that the plea agreement placed upon him the impossible burden of insuring a third party’s truthful testimony. We do not address this argument because assignments of error, unsupported by convincing argument or pertinent authority, will not be considered on appeal unless it is apparent without further research that they are well taken. Wilson v. State, 25 Ark. App. 45, 752 S.W.2d 46 (1988). | [
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John Mauzy Pittman, Chief Judge.
Appellee sustained an admittedly compensable neck injury while employed by appellant in March 2004. After some benefits were paid, appellee filed a claim seeking permanent partial disability benefits, wage-loss disability benefits, and additional medical benefits. The Commission found that appellee had proven that he sustained an anatomical impairment of twelve percent, wage-loss disability of fifteen percent, and entitlement to additional medical treatment, including pain management. The Commission also found that the Second Injury Fund had no liability for payment of the benefits awarded to appellee. On appeal, appellant argues that there is no substantial evidence to support the findings of a twelve percent anatomical impairment, entitlement to wage-loss benefits, or entitlement to additional medical treatment. We affirm the anatomical-impairment and medical-benefits awards. However, we find merit in the challenge to the wage-loss benefits and reverse that part of the award.
When the sufficiency of the evidence is contested on appeal in a workers’ compensation case, we view the evidence in a light most favorable to the Commission’s findings and affirm if the findings are supported by substantial evidence. Patterson v. Arkansas Insurance Department, 343 Ark. 255, 33 S.W.3d 151 (2000). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. There may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we had sat as the trier of fact or heard the case de novo; in other words, we will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusion of the Commission. Id.
Appellant first argues that the evidence was insufficient to support a finding of twelve-percent anatomical impairment. This argument goes to the weight and credibility of the evidence rather than to its sufficiency. Dr. Safman opined that appellee sustained anatomical impairment of twelve percent as a result of his compensable injury. Dr. Cavanaugh stated that he believed any anatomical impairment was chiefly the result of appellee’s preexisting disease of the cervical spine. Here, the Commission simply chose to believe the testimony of one physician rather than the other. In such circumstances, we are powerless to reverse the Commission. Henson v. Club Products, 22 Ark. App. 136, 736 S.W.2d 290 (1987).
Appellant next argues that the evidence was insufficient to sustain the Commission’s award of additional medical treatment for pain management. This argument is premised on appellant’s assertion that appellee’s impairment was the result of his preexisting condition; consequently, this, too, goes to the weight and credibility of the evidence regarding the cause of appellee’s impairment. However, questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Arkansas Department of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993). 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. Id. As we held with respect to the previous point, despite appellant’s contention that the opinion of Dr. Cavanaugh was entitled to more weight, Dr. Safman’s opinion that the compensable injury was the major cause of appellee’s anatomical impairment is substantial evidence to support the Commission’s finding to that effect.
Finally, appellant argues that appellee waived his right to any wage-loss benefits because he refused to participate in “an offered program of rehabilitation.” See Ark. Code Ann. § 11-9-505 (b)(3) (Repl. 2002). There was evidence that appellee refused to talk to Heather Naylor, a vocational rehabilitation specialist employed by appellant, explaining that he declined to speak to her until “after January,” i.e., after the hearing before the administrative law judge. At the hearing, appellee was asked by appellant’s counsel whether he understood that he was “waiving rehabilitation” by “coming here today and asking for permanent disability,” to which appellee answered, “That’s fine by me.” The Commission nevertheless found that no waiver occurred because the above- quoted question was an incorrect statement of the law and because no specific program of rehabilitation was ever offered to appellee.
In Burris v. L & B Moving Storage, 83 Ark. App. 290, 123 S.W.3d 123 (2003), we upheld the Commission’s construction of the statutory-waiver provision. There, the Commission’s opinion stated that:
Despite counsel’s stipulation that the respondents had “offered vocational rehabilitation,” there was no testimony indicating what sort of rehabilitation was offered the claimant. Nor was there any record of consultation with a vocational counselor or any other offer of vocational rehabilitation. In order to rely upon Ark. Code Ann. § 11 — 9-505(b)(3) in foreclosing the claimant’s entitlement to permanent partial disability, the respondents must show that the claimant refused to participate in a program of vocational rehabilitation or job placement assistance, or, through some other affirmative action, indicated an unwillingness to cooperate in those endeavors.
Burris, 83 Ark. App. at 296, 123 S.W.3d at 127.
Arkansas Code Annotated section ll-9-505(b)(3) provides that:
The employee shall not be required to enter any program of vocational rehabilitation against his or her consent; however, no employee who waives rehabilitation or refuses to participate in or cooperate for reasonable cause with either an offered program of rehabilitation or job placement assistance shall be entided to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by objective physical findings.
We have held that the statute does not require that every claimant must formally file for rehabilitation with the Commission or waive entitlement to disability benefits where there is no evidence that a “plan of rehabilitation” was offered. Second Injury Fund v. Furman, 60 Ark. App. 237, 961 S.W.2d 787 (1998). Here, however, given the undisputed evidence that appellee was contacted by appellant’s vocational rehabilitation specialist but refused to speak to her until after the hearing was concluded, we think that the only reasonable conclusion to be drawn was that a rehabilitation plan existed and that appellee manifested an unwillingness to cooperate. Therefore, we reverse the Commission’s award of wage-loss benefits in excess of appellee’s anatomical impairment.
Affirmed in part; reversed in part; and remanded.
Marshall and Heffley, JJ., agree. | [
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John B. Robbins, Judge.
This case involves appellants’ attempt to recover approximately twenty-five years’ worth of property taxes paid on three parcels of land in Pope County. We reverse and dismiss for lack of subject-matter jurisdiction.
In the 1970s, Pope County certified three tracts of land as tax-delinquent and forfeited the property to the State. Appellants purchased the land from the State Land Commissioner in approximately 1977. They obtained tax deeds and paid taxes on the property through 2002. In 2003, the county notified appellants that it had erroneously certified the land. Appellants’ tax deeds were canceled, and the county offered to reimburse appellants for taxes paid between 1999 and 2002. Appellants rejected the offer and brought this action in circuit court to recover all taxes paid since 1977. The circuit court limited appellants’ recovery to $82.53 paid in the three years before suit was filed. Appellants bring this appeal.
Arkansas Constitution article 7, section 28 provides that county courts have exclusive original jurisdiction in all matters relating to county taxes. See also Ark. Code Ann. § 14-14-1105(b)(1) (Repl. 1998). A circuit court may hear a suit challenging the legality of county taxes, such as an illegal-exaction suit, but a claim alleging a flaw in assessment or erroneous collection belongs in county court. See Villines v. Pulaski County Bd. of Educ., 341 Ark. 125, 127-28, 14 S.W.3d 510, 512 (2000); Pockrus v. Bella Vista Village Prop. Owners Ass’n, 316 Ark. 468, 471-72, 872 S.W.2d 416, 417-18 (1994); McIntosh v. Sw. Truck Sales, 304 Ark. 224, 226, 800 S.W.2d 431, 432-33 (1990).
Appellants do not assert that the taxes they paid were illegal. Rather, they allege that an erroneous assessment occurred, for which they seek a refund. Therefore, under the above authorities, the circuit court was without jurisdiction and appellants’ claim should have been filed in county court. See also Ark. Code Ann. § 26-35-901 (Repl. 1997 & Supp. 2007) (providing that, upon proof of an erroneous assessment, the county court shall make the refund order). Even though this jurisdictional issue was not raised below, subject-matter jurisdiction is always open and may be challenged for the first time on appeal. See Cincinnati Ins. Co. v. Johnson, 367 Ark. 468, 472, 241 S.W.3d 264, 267 (2006).
Because the circuit court lacked jurisdiction, this court also lacks jurisdiction. See Koonce v. Mitchell, 341 Ark. 716, 719, 19 S.W.3d 603, 605 (2000). Accordingly, we must reverse and dismiss the appeal. Id.
Reversed and dismissed.
Griffen and Vaught, JJ., agree. | [
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Per Curiam.
The State of Arkansas, through the attorney general, has filed a motion to dismiss the appeal in this criminal case. For reasons which follow, the motion must be granted.
After a jury trial, appellant was convicted of DWI in Sebastian County Circuit Court on December 9, 1992. The circuit court entered a judgment of conviction on December 23, 1992. On January 20,1993, appellant filed a motion for new trial. On January 22, 1993, appellant filed a notice of appeal. On January 25,1993, the circuit court entered an order denying the motion for new trial.
Rule 4(c) of the Rules of Appellate Procedure provides:
(c) Disposition of Posttrial Motion. If a timely motion listed in section (b) of this rule is filed in the trial court by any party, the time for appeal for all parties shall run from the entry of the order granting or denying a new trial or granting or denying any other such motion. Provided, that if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion will be deemed denied as of the 30th day. A notice of appeal filed before the disposition of any such motion or, if no order is entered, prior to the expiration of the 30-day period shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion or from the expiration of the 30-day period. No additional fees shall be required for such filing.
It is quite clear that Rule 4(c) applies in criminal cases. Enos v. State, 313 Ark. 683, 858 S.W.2d 72 (1993); Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992); Mangiapane v. State, 43 Ark. App. 19, 858 S.W.2d 128 (1993). It is also clear that a motion for new trial in a criminal case is analogous to a motion made pursuant to Ark. R. Civ. P. 59. Enos, supra. In a criminal case a motion for new trial must be filed within thirty days from the entry of the judgment. Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990); Chisum v. State, 274 Ark. 332, 625 S.W.2d 448 (1981).
In the case at bar the notice of appeal was filed before the disposition of appellant’s posttrial motion and under the express language of Rule 4(c) it had “no effect.” It follows that we lack jurisdiction to hear the appeal. See Phillips Construction Co. v. Cook, 34 Ark. App. 224, 808 S.W.2d 792 (1991).
We have no choice but to dismiss this appeal without prejudice to appellant’s right to petition the Arkansas Supreme Court for a belated appeal.
Motion granted.
Mayfield, J., dissents. | [
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Per Curiam.
The appellee in this workers’ compensation case has moved for attorney’s fees pursuant to Ark. Code Ann. § 1 l-9-715(b) (1987), based on our opinion of June 23,1993, in which we affirmed the award of workers’ compensation benefits in favor of the appellee. We grant the motion and award attorney s fees in the sum of $500.00 to the appellee.
This case began as a claim for benefits, based on a work-related hernia, which was granted by the Commission. The employer appealed that decision to this Court and, in Cagle I, we affirmed the Commission’s award of benefits to the appellee. Cagle Fabricating and Steel, Inc. v. Patterson, 36 Ark. App. 49, 819 S.W.2d 14 (1991). The appellee, having prevailed in Cagle I, moved for an award of attorney’s fees which we granted by a per curiam issued February 12, 1992. Cagle Fabricating and Steel, Inc. v. Patterson, 37 Ark. App. 85, 827 S.W.2d 660 (1992). No appeal was taken from our decision granting the appellee’s motion for attorney’s fees. Subsequently, the Arkansas Supreme Court granted review of our decision in Cagle I, concluded that we had erred in finding that the Commission made a satisfactory finding of fact with respect to the fifth requirement of the hernia statute, and reversed and remanded to the Commission for a new decision based upon a specific finding regarding compliance with the fifth statutory requirement. Cagle Fabricating and Steel, Inc. v. Patterson, 309 Ark. 365, 830 S.W.2d 857 (1992). On remand, the Commission found that the appellee had satisfied that requirement and again awarded benefits to the appellee. The employer appealed to this Court, which again affirmed the Commission’s award of benefits to the appellee in Cagle II. Cagle Fabricating and Steel, Inc. v. Patterson, 42 Ark. App. 168, 856 S.W.2d 30 (1993). In the course of that appeal, the employer presented arguments concerning our prior award of attorney’s fees to the appellee for prevailing in Cagle I. We did not address these arguments because the appellant conceded that the appel-lee would be entitled to the award of attorney’s fees should the appellee prevail on appeal.
The present motion presents a separate issue, i.e., whether the appellee is entitled to an additional fee for prevailing in Cagle II. Arkansas Code Annotated § 11-9-715(b)(1) provides for additional attorney’s fees if the claimant prevails on appeal. The statute neither expressly provides for nor expressly prohibits an additional award of attorney’s fees in cases such as the case at bar, where the claimant has been required to defend his award of workers’ compensation benefits through two separate appeals brought by the employer to this Court. Construing the attorney’s fee provision liberally and in accordance with the remedial purposes of the Act, see Ark. Code Ann. § 11-9-704(c)(3) (Supp. 1991), we hold that an additional award of attorney’s fees is authorized by the statute under the circumstances of this case. Therefore, we grant the appellee’s motion and award attorney’s fees in the amount of $500.00. | [
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Per Curiam.
Appellant Robert Wagner has appealed a decision of the Arkansas Board of Review dated May 20, 1993, which denied his claim for unemployment compensation. Wagner represented himself pro se before the Appeal Tribunal and Board of Review. Following an adverse decision by the Board of Review he retained an attorney and appealed to this court.
On June 28,1993, Wagner filed a Motion for Remand so that he can introduce additional evidence. The crux of Wagner’s motion is that the matter should be remanded for the taking of additional evidence because he was not represented by an attorney when he presented his proof before the Appeal Tribunal. However, a remand is not warranted unless the Board of Review failed to make a finding on a crucial issue, Hayes v. Batesville Mfg. Co., 251 Ark. 659, 473 S.W.2d 929 (1971), or unless the hearing was not conducted in a manner conducive to a determination of the substantial rights of the parties. Helena-West Helena School Dist. v. Stiles, 15 Ark. App. 30, 688 S.W.2d 326 (1985).W agner does not allege the presence of either of these bases. Our administrative appeal process would suffer if a pro se claimant for unemployment benefits could obtain a remand solely because he chose to proceed without an attorney the first time through, and then, upon receiving an adverse decision, retravel the appeal procedure with an attorney.
Appellant’s motion to remand is denied.
Cooper and Mayfield, JJ., dissent. | [
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John B. Robbins, Judge.
The appellant, Quay Beeson, suffered an acute myocardial infarction while working at his job for appellee, Landcoast. The Administrative Law Judge found that his heart attack was compensable. Landcoast appealed to the full Commission, which reversed the Administrative Law Judge. It held that Beeson failed to prove that his heart attack was causally related to his employment. Beeson appeals, contending that the Commission’s decision is not supported by substantial evidence. We disagree and affirm.
At the time of his heart attack, Beeson was 65 years old and had a family history of heart disease. He had worked for Landcoast for approximately seven years as an insulator. On the morning of his heart attack, Beeson began his work day at 7:00 a.m. For the first couple of hours that morning, he carried boxes of insulation from a warehouse to the job site, a distance of about a quarter of a mile. An electric hoist lifted the boxes to the third floor of the building where Beeson unloaded them. After unloading for about thirty minutes, Beeson began to experience symptoms of a heart attack and was taken to a hospital. He was diagnosed with coronary artery disease caused by arteriosclerosis, which resulted in the myocardial infarction.
The issue presented on this appeal is whether there is any substantial evidence to support the Commission’s holding that Beeson’s heart attack was not causally related to his employment with Landcoast.
In reaching its decision, the Commission considered the opinions of four physicians, Dr. Abdul Waheed, Dr. James Hurley, Dr. Thomas Pullig and Dr. James Doherty. Three of these doctors opined that Beeson’s heart attack was precipitated by his work, while the fourth doctor was of the opinion that it was not.
Dr. Waheed, a cardiologist, premised his opinion that Beeson’s employment precipitated his heart attack, at least in part, on his misunderstanding that the heart attack occurred while Beeson was climbing stairs at work. Dr. Hurley, a cardiologist, admitted that he did not know where Beeson was when his pain began, but was of the opinion that if his pain began when he was at work then his job caused it.
Dr. Pullig did not state the activities which he understood Beeson was performing on his job at the time of the heart attack, but opined that his employment precipitated the attack. He based this conclusion on his general statement that “it is established that physical exertion can precipitate a heart attack.”
Dr. Doherty, a professor of medicine and pharmacology at the University of Arkansas for Medical Science and Director of Cardiovascular Research at the V. A. Medical Center, reviewed Beeson’s medical records and a transcript of his deposition. His report notes that Beeson’s arteriosclerosis took many years to develop and that Beeson had a family history of heart disease. It was his opinion that there was no relationship between Beeson’s heart disease and his work, except in a temporal sense, in that he was on his job when he experienced his first symptoms.
A heart attack is compensable only if there is a causal connection between the heart attack and one’s employment; and when it is established that the employee was putting forth unusual exertion at the time of the heart attack it is ordinarily held that the requirement of causal connection has been met. Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). Absent “unusual exertion” the applicable test is whether the required exertion producing the injury is too great for the employee undertaking the work, whatever the degree of exertion or the condition of his health, provided the exertion is either the sole or contributing cause of the injury. Fowler, supra.
When reviewing a decision of the Workers’ Compensation Commission on appeal, we must view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm if those findings are supported by substantial evidence. Shaw v. Commercial Refrigeration, 36 Ark. App. 76, 818 S.W.2d 589 (1991). In making our review we recognize that the Commission has the duty of weighing medical evidence as it does any other evidence, and if the evidence is conflicting, the resolution of the conflict is a question of fact for the Commission. Mack v. Tyson Foods, Inc., 28 Ark. App. 229, 771 S.W.2d 794 (1989). On appeal to this court, the issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Bearden Lumber Co. v. Boyd, 7 Ark. App. 65, 644 S.W.2d 321 (1983).
We may well have decided this case differently if our standard of review was to weigh the evidence and determine where the preponderance of the evidence lay. However, this is not our function. Although three medical experts were of the opinion that Beeson’s employment precipitated his heart attack, it is obvious that the Commission found Dr. Doherty’s opinion to be more credible. We hold that Dr. Doherty’s report constitutes substantial evidence in support of the Commission’s decision. Consequently, we must affirm the Commission’s holding that Beeson’s myocardial infarction was not casually related to his employment.
Affirmed.
Mayfield and Rogers, JJ., dissent. | [
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John Mauzy Pittman, Judge.
Ronald Porter appeals from his conviction at a jury trial of first-degree criminal mischief and burglary, for which he was sentenced to three years in the Arkansas Department of Correction and fined $5,000, respectively. Appellant argues four points for reversal in this appeal. We find no error and affirm.
Appellant was sixteen years old in October 1991 when he allegedly burglarized Westside School and caused in excess of $35,000.00 damage to school property. Appellant was charged as an adult in Bradley County Circuit Court with the felonies of burglary and first-degree criminal mischief.
At the time of these crimes, appellant was on probation after having been adjudicated a delinquent by the Bradley County Juvenile Court as a result of a May 1991 theft of property valued at more than $200.00. A petition to revoke appellant’s prior probation, alleging as grounds for revocation appellant’s activities at Westside School, was filed in juvenile court. After a hearing on January 24, 1992, the juvenile court revoked appellant’s probation and ordered him placed into the custody of the Division of Children and Family Services.
On January 27,1992, appellant filed a motion in the circuit court for an order dismissing the criminal prosecution on double jeopardy grounds or, in the alternative, transferring the case to juvenile court and enjoining further prosecution in the criminal proceeding. On January 28, appellant filed a petition for a writ of prohibition in the supreme court, also seeking to halt the prosecution on double jeopardy grounds. On January 29, the supreme court denied appellant’s petition for a writ of prohibition without prejudice to his raising the issue of double jeopardy on appeal. Also on January 29, after a hearing, the circuit court denied appellant’s motion to dismiss or transfer. The case proceeded to trial, and appellant was found guilty of both charges.
Appellant first contends that the evidence was insufficient to sustain his convictions. We do not address the issue because it was not preserved for appeal. Where there has been a trial by jury, a defendant’s failure to move for a directed verdict at the conclusion of the State’s evidence and again at the close of the case constitutes a waiver of any question pertaining to the sufficiency of the evidence. Ark. R. Crim. P. 36.21(b). Here, appellant did not move for a directed verdict at either time, and we cannot consider his argument. Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992); DeWitt v. State, 306 Ark. 559, 815 S.W.2d 942 (1991).
Appellant next contends that the trial court erred in denying his motion to dismiss under both the Fifth Amendment to the United States Constitution and Art. 2, § 8 of the Arkansas Constitution. He argues that it violated the prohibition against being “twice put in jeopardy” for the same offense to be prosecuted on charges of burglary and criminal mischief when proof of that same criminal conduct had served as the basis for the revocation of his probation. We find no error.
We agree with appellant that a juvenile “who has been subjected to an adjudication proceeding pursuant to a petition alleging him to be a delinquent” cannot then be tried on “criminal charges based upon facts alleged in the petition to find him delinquent.” Ark. Code Ann. § 9-27-319(a) (Repl. 1991) (emphasis added); see Breed v. Jones, 421 U.S. 519 (1975). However, that is not what happened in this case. Rather, the criminal conduct for which this appellant was tried and convicted in circuit court had merely been used as a basis for revoking his probation, which had been ordered as a result of the prior, unrelated adjudication of delinquency for the May 1991 theft of property. The detention imposed upon revocation of that probation was imposed for the prior, unrelated theft of property. As we recently held in Lawrence v. State, 39 Ark. App. 39, 839 S.W.2d 10 (1992), the prohibition against double jeopardy does not bar a criminal prosecution simply because the same criminal conduct has previously served as the basis for the revocation of the defendant’s probation.
Appellant’s third argument for reversal is that the court erred in denying his alternative motion to transfer the matter to juvenile court. We cannot agree.
Since appellant was sixteen years old at the time of the acts in question, and since those acts would constitute felonies if committed by an adult, the prosecuting attorney had the discretion either to file a delinquency petition in juvenile court or to file criminal charges in circuit court and prosecute appellant as an adult. Ark. Code Ann. § 9-27-318(c) (Supp. 1991). Because appellant moved to transfer the case to juvenile court, the circuit judge held a hearing to determine whether to retain jurisdiction or to grant the motion to transfer. Ark. Code Ann. § 9-27-318(d). At the conclusion of the hearing, the court found by clear and convincing evidence that appellant should be tried as an adult and retained jurisdiction. Ark. Code Ann. § 9-27-318(f).
In making a determination whether to retain jurisdiction or to transfer the case, the court is to consider the following factors:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
Ark. Code Ann. § 9-27-318(e). The court is not required to give equal weight to the statutory factors, nor is the prosecutor required to introduce proof against the juvenile with regard to each factor. Hogan v. State, 311 Ark. 265, 843 S.W.2d 825 (1992); Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991). On appeal, the trial court’s findings will not be reversed unless clearly erroneous. Hogan v. State, supra; Walker v. State, 304 Ark. 393, 803 S.W.2d 502, reh’g denied, 304 Ark. 402-A, 805 S.W.2d 80 (1991).
Here, the trial court considered the evidence in light of all of the statutory factors and found by clear and convincing evidence that appellant should be tried as an adult. Although appellant did not employ violence against another person, the court specifically found that the charged offenses were very serious and that appellant was beyond rehabilitation under existing rehabilitati'on programs. The court noted the extent of the damage done to school property and appellant’s prior juvenile court history. From our review of the record, including proof that over $35,000.00 damage was intentionally done, that appellant had twice before been adjudicated delinquent, and that he had failed to complete the prior probation successfully, we cannot conclude that the trial court’s decision was clearly erroneous.
Appellant finally argues that the trial court erred in denying his motion, made after the denial of his motion to transfer, to enjoin any further proceedings by the prosecutor. Again, appellant argues in his brief that the State was barred from prosecuting appellant on the criminal charges because it had elected to seek revocation of his probation in juvenile court. We first note that the circuit court did not hold any proceedings until after the supreme court had denied appellant’s petition for a writ of prohibition. In any event, since appellant’s contention is essentially based upon the same double jeopardy argument made above, we conclude that our decision of that former argument adversely to appellant disposes of this contention as well.
Affirmed.
Jennings, C.J., and Rogers, J., agree. | [
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Melvin Mayfield, Judge.
Pamela Ramsey (Tubbs) appeals from an order of the Chancery Court of White County. She contends that the court erred in failing to order appellee, Don Ramsey, to pay past-due child support. We find no error and affirm.
The parties to this action were divorced in December 1985 but continued to live together with their two daughters until January 1992. In the divorce decree, appellee was ordered to pay $300.00 a month in child support until June 1986, when the monthly amount would increase to $400.00. In February 1992, appellant filed a contempt motion and sought to recover $25,800.00 in past-due support plus attorney’s fees. In response, appellee pleaded the affirmative defense of estoppel, asserting that he had been the children’s primary supporter subsequent to the divorce and until the parties separated in 1992. Appellee also sought a modification in child support due to the termination of his disability benefits.
The court held appellant was estopped from claiming the child support arrearage that accrued between December 1985 and January 1992. However, the court found appellee in contempt for failure to pay child support from January 1992 to the time of trial and ordered him to pay the amount which had accrued during that period. The court also modified the child support order to require appellee to pay $25.00 each week for the support of the one child who was still a minor, but the court stated that support might be adjusted by the court if appellee became employed or was awarded social security benefits. The court also ordered appellee to pay an attorney’s fee of $ 1,000.00. Appellant appeals only from that part of the order denying past due child support for the period of December 1985 through January 1992.
Although we review chancery cases de novo, we do not disturb the chancellor’s findings unless they are clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a). Because the question of the preponderance of the evidence turns largely on the credibility of the witnesses, we defer to the chancellor’s superior opportunity to assess credibility. Roark v. Roark, 34 Ark. App. 250, 252, 809 S.W.2d 822, 823 (1991); Callaway v. Callaway, 8 Ark. App. 129, 131, 648 S.W.2d 520, 522 (1983).
At trial, both parties testified that they lived together subsequent to the divorce and paid bills from a joint checking account. Appellee stated that he, appellant, and their two children continued to operate as a family unit. He said that the substantial sums of money he received during that period from disability income and lump-sum disability settlements were used to enlarge the home received by appellant in the divorce settlement, to buy furniture, to pay a debt owed to appellant’s father, and to pay family expenses such as taxes, insurance, medical treatment, food, and clothing.
Appellant, however, disputed that the parties and their children lived as a family unit because appellee was absent from the home for long periods of time and she and appellee did not live together as husband and wife. She also said she did not consent to appellee living in the home but was unable to force him to leave. She stated that appellee had contributed his labor to the enlargement of the house but had not paid the debts he claimed to have paid. And she denied that he contributed to the family expenses.
Jody Ramsey, one of the parties’ daughters, testified that her parents had been living together “off and on” since 1985, but that appellee had been there for the most part. She agreed that appellee had helped support the family and that the family had to “pull together” to meet their needs.
Rosie Bradley, the parties’ neighbor for fifteen years, testi-. fied that appellee was in the home the majority of time after the divorce. She said that appellee was receiving disability payments part of that time and appellant stated that “she had to keep tabs on the money or [appellee] would blow it.” Ms. Bradley said that it was her understanding that after the appellee received one of the disability settlements, he paid off a debt to appellant’s father, paid off the furniture bill, and paid to finish the shop building. Ms. Bradley also said that appellant stated she “couldn’t make it with these girls without him.”
At the conclusion of the hearing, the chancellor stated:
The Court has listened very closely to the testimony concerning whether or not these parties resided together after the divorce. I listened very closely to what the parties had to say and as to who and what was contributed. Not only did I listen to the parties, but I also listened to Jody testify as to what she had to say and how the parties, how these people functioned as a family unit after the divorce, and also the testimony of Rosie Bradley, a long time next-door neighbor, who testified in very strong terms that the parties, in fact, were living together, and it appears from the testimony of Jody Ramsey, she was a child, but indicated to the Court as well that the parties were living together as a family unit and there was a contribution being made.
I think credibility lies with the defendant on that issue. I think that for the Court to do anything other than to apply the doctrine of equitable estoppel would be improper and would not be a good result.
The appellant first argues that the chancellor erred in finding that the parties and their children had lived as a family unit and that appellee provided support for the family from the divorce in 1985 until the parties’ separation in January 1992. Based on the record before us, and in view of the chancellor’s superior opportunity to assess the credibility of the witnesses, we cannot say the chancellor’s findings in this regard are clearly against a preponderance of the evidence.
Appellant also argues that the chancellor erred in applying the doctrine of equitable estoppel and refusing to enforce payment of the child support arrearages accrued from the time of the divorce in 1985 to the parties’ separation in January 1992. She contends that statutes enacted by the Arkansas Legislature prohibited the chancellor from remitting the unpaid and accrued support payments.
This court discussed the vesting of child support payments in Roark v. Roark, 34 Ark. App. at 252-53, 809 S.W.2d at 824, as follows:
Once a child support payment falls due, it becomes vested and a debt due the payee. Holley v. Holley, 264 Ark. 35, 568 S.W.2d 487 (1987). Arkansas has enacted statutes in order to comply with federal regulations and to insure that the State will be eligible for federal funding. Sullivan v. Eden, 304 Ark. 133, 801 S.W.2d 32 (1990); sec Ark. Code Ann. §§ 9-12-314 and 9-14-234 (Repl. 1991). These statutes provide that any decree, judgment, or order which contains a provision for payment of child support shall be a final judgment as to any installment or payment of money which has accrued. Ark. Code Ann. § 9-14-234(a) (Repl. 1991); Ark. Code Ann. § 9-12-314(b) (Repl. 1991); see Sullivan v. Eden, supra. Furthermore the court may not set aside, alter, or modify any decree, judgment or order which has accrued unpaid support prior to the filing of the motion. Ark. Code Ann. § 9-14-234(b) (Repl. 1991); Ark. Code Ann. § 9-12-314(c) (Repl. 1991); see Sullivan, supra. While it appears that there is no exception to the prohibition against the remittance of unpaid child support, the commentary to the federal regulations which mandated our resulting State statutes, makes it clear that there are circumstances under which a court might decline to permit the enforcement of the child support judgment. The commentary states:
[enforcement of child support judgments should be treated the same as enforcement of other judgments in the State, and a child support judgment would also be subject to the equitable defenses that apply to all other judgments. Thus, if the obligor presents to the court or administrative authority a basis for laches or an equitable estoppel defense, there may be circumstances under which the court or administrative authority will decline to permit enforcement of the child support judgment.
54 Fed. Reg. 15,761 (April 19, 1989).
In Arkansas Department of Human Services v. Cameron, 36 Ark. App. 105, 109, 818 S.W.2d 591, 593 (1991), we went on to explain: “That commentary refers to the defense of equitable estoppel as an example of a circumstance under which enforcement of a child support judgment may not be permitted. . . .”
The Arkansas Supreme Court has held that a party who by his acts, declarations, or admissions, or by his failure to act or speak under circumstances where he should do so, either with design or willful disregard of others, induces or misleads another to conduct or dealings which he would not have entered upon, but for such misleading influence, will not be allowed, because of estoppel, afterward to assert his right to the detriment of the person so misled. See Bethell v. Bethell, 268 Ark. 409, 424, 597 S.W.2d 576, 583 (1980). And in Arkansas Department of Human Services v. Cameron, cited above, the Arkansas Court of Appeals affirmed the chancellor’s finding that the appellant was estopped from collecting child support arrearages because of her actions leading the appellant into thinking there was going to be an adoption. 36 Ark. App. at 109, 818 S.W.2d at 593.
A party claiming estoppel must prove he has relied in good faith on wrongful conduct and has changed his position to his detriment. Christmas v. Raley, 260 Ark. 150, 158, 539 S.W.2d 405, 410 (1976). Here, the appellee testified that he did not pay child support into the court registry because he was providing, and appellant was accepting, financial support for appellant and the children while he was living in the home. We also note that appellant did not file the contempt motion until February 1992, after the parties had separated. In addition, the chancellor weighed the contributions the parties were making to the support of the family. The chancellor held that the circumstances were sufficient to establish the elements of estoppel, and we cannot say that the chancellor’s finding is clearly against a preponderance of the evidence.
Appellant also contends that under this court’s holding in Buckner v. Buckner, 15 Ark. App. 88, 689 S.W.2d 584 (1985), the chancellor was precluded from remitting the arrearages. In that case, the chancellor found that the parties did not live together and that what monies appellant did give appellee were voluntary expenditures and not child support. Here, the chancellor found that the parties functioned as a family with appellee providing support for appellant and the children, and we are not persuaded appellee’s expenditures can be classified as “voluntary expenditures.”
Finally, we note two cases not cited by either party. State v. Robinson, 311 Ark. 133, 842 S.W.2d 42 (1992), involved a suit filed in California by the Family Support Division of a District Attorney’s Office seeking to obtain child support for the benefit of an unwed mother and her child. Under the provisions of the Revised Uniform Reciprocal Enforcement of Support Act, Ark. Code Ann. §§ 9-14-301 through 9-14-344 (Repl. 1991), the initiating court in California certified the complaint to a court in Arkansas where the father of the child lived. The court here made a finding of paternity, ordered the father to pay child support, and placed the custody of the child in the mother subject to the father’s right of visitation. Subsequently, the father filed a petition alleging he had been denied visitation and asking that support payments be suspended until he was allowed to visit the child. This petition was granted and the mother appealed. The Arkansas Supreme Court held that the Act under which the suit was filed did not give the Arkansas chancery court jurisdiction to address the visitation issue, and the court could not make child support dependent upon visitation. The court stated that the cases of Roark v. Roark and Arkansas Department of Human Services v. Cameron, cited above, could be read to conflict with its decision in State v. Robinson, and concluded: “To prevent any possible confusion, we note that the federal regulation quoted in those cases, 54 Fed. Reg. 15,761 (April 19, 1989), is not related to visitation or custody defenses, and to the limited extent that there may be some conflict, they are overruled.” 311 Ark. at 136, 842 S.W.2d at 48.
In Burnett v. Burnett, 313 Ark. 599, 855 S.W.2d 952 (1993), a case decided after the briefs in the instant case were filed, the trial court had granted a retroactive reduction in child support because of “material changes” in circumstances and because the father had made a “good faith” effort to pay according to the Arkansas Child Support Chart. Our supreme court reversed “[b]ecause the actions of Mrs. Burnett do not justify the application of estoppel to prevent the collection of past due child support payments.” 313 Ark. at 605, 855 S.W.2d at 955.
The instant case does not involve a visitation or custody defense, and neither State v. Robinson nor Burnett v. Burnett holds that a court cannot decline to permit the enforcement of a child support judgment on the basis of equitable estoppel. To the contrary, both cases refer to Fed. Reg. 15,761 (April 19, 1989) and acknowledge that it provides that “a child support judgment would also be subject to the equitable defenses that apply to all other judgments.” The decision in the instant case is based on equitable estoppel, and we affirm that decision.
Affirmed.
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Melvin Mayfield, Judge.
In this workers compensation appeal, appellants argue there is no substantial evidence to support the finding that appellee suffered a compensable injury.
Appellee, Juanita Williams, is employed by the Arkansas Department of Health as a personal care assistant whose duties involve going from house to house performing personal care and light-duty housework. At the hearing on her claim for compensation, Ms. Williams testified that she hurt her back on December 21,1990, as she was helping Mr. Frank Ethridge to his chair after his shower. According to the appellee, Mrs. Ethridge was at home that day, but did not assist the appellee with Mr. Ethridge. She said he tried to turn around and sit down in the chair before he was close enough, that she tried to catch him, and that he put all his weight on her. She said she heard her lower middle back pop, and felt a dull, sharp, ripping pain like she never felt before. Ms. Williams said she completed her duties without telling Mrs. Ethridge she had hurt herself because she thought the pain would go away. Ms. Williams said she attended another patient that afternoon, where she did about the same duties as at the Ethridge’s but was physically unable to sweep the floor.
Ms. Williams also testified that when she arrived home that day her back was sore. The next morning, Saturday, December 22, she “almost” couldn’t move. On December 26, her next scheduled work day, she telephoned her supervisor and said she was not able to come to work because she hurt her back lifting Mr. Ethridge.
On December 27 Ms. Williams was seen by Dr. Nur Badshah who initially treated her with drug therapy and subsequently referred her to Dr. Clinton McAlister, an orthopedic surgeon. Ms. Williams testified her condition has gotten worse; it hurts her to stand and to sit for a long period of time; she cannot drive; she is unable to work; and she cannot do any heavy-duty housework. She said that since January 1991 there are never any days when she feels good enough to bend forward with no problems, and since that time she has not had a single pain-free day. She also testified she was aware her testimony was contradicted by Mrs. Ethridge but thought Mrs. Ethridge may have forgotten.
Mrs. Ethridge, who is 85 years of age, testified by deposition that her husband did not fall and that she was there and helped him. She said Ms. Williams did no more than she did; that Ms. Williams did not have to catch him that day when he sat down on the bed; and that the only time she caught him was “when he was doing the chair.” She said Ms. Williams did not say a word about being hurt. Mrs. Ethridge also testified that the following Monday Ms. Williams called and said she did not feel good, and on Wednesday her employer called and said Ms. Williams had to go to the doctor because she hurt her back lifting Mr. Ethridge. Mrs. Ethridge said she was not saying Ms. Williams did not injure her back, but if she did, she did not tell her, did not act like she hurt her back, and did not cry out.
The medical records introduced into evidence start with a note written by Dr. Badshah after his first examination of the appellee. The note states that the appellee is “unable to do lifting and straining for 3 weeks.”
The next record is a “History Sheet” dictated by Dr. McAlister and dated January 8,1991. Dr. McAlister states that the appellee had been seen by Dr. Badshah but “he is out-of-town.” Dr. McAlister goes on to state that the appellee complained of soreness in her arm area from her elbows to her wrist and that her back pain was in the mid-back area with no radiation. The doctor states that his “impression” is “lumbo-sacral sprain” and “muscle pull in both forearms,” and he prescribed Parafon Forte and Darvocet.
On February 8, 1991, Dr. McAlister wrote he had examined the appellee again and could find no objective findings. He said the appellee had a great deal more complaints than he could answer from her examination, and he requested permission to do “MRIs and EMGs as these will help to shed more light on her complaints.” In a letter written that same day, Dr. McAlister stated the appellee has had difficulty since December 21, 1990, when she injured her back and arms and that “the pain that has evolved has not allowed her to devote the proper amount of time to her schooling, and I have suggested that she not attend school and take care of her health first and to return next semester.”
On June 18, 1991, Dr. Badshah wrote that the appellee “continues to have low back pain for the last 6 months,” and “she needs MRI scan of lumbosacral spine.” The doctor also wrote a note stating that appellee “is totally disabled from 12-21-90 to present because of back injury.”
On the evidence outlined above, the administrative law judge made the following findings of fact:
1. The employee-employer relationship existed on December 21,1990, on which date the claimant sustained an accidental injury arising out of and in the course of her employment.
2. At the time of her injury, the claimant was earning an average weekly wage of $187.28 which computes to a compensation rate of $124.85.
3. The claimant has remained temporarily, totally disabled since her accidental injury.
4. The claim has been controverted in its entirety.
And on appeal to the full Commission, the Commission issued an opinion in which it stated:
After our de novo review of the entire record herein, we find that claimant has sustained her burden of proof and accordingly, affirm the opinion of the Administrative Law Judge.
On appeal to this court the appellants argue there is no substantial evidence to support “the findings and opinion of the Arkansas Workers’ Compensation Commission that appellee suffered a compensable injury.”
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Bearden Lumber Company v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983).
In their brief, appellants review the evidence and question appellee’s credibility. They contend appellee’s testimony is diametrically opposed to that of Mrs. Ethridge and that this shows appellee’s lack of veracity. They also contend that the medical evidence demonstrates appellee’s claim is without merit and that there are no objective findings to support her complaints.
Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Robinson v. Ed Williams Construction Company, 38 Ark. App. 90, 828 S.W.2d 860 (1992). Although the appellants argue that the basis by which the Commission found appellee to be credible is specious at best, the Commission found appellee to be credible and that is a matter for the Commission to determine. College Club Dairy v. Carr, 25 Ark. App. 215, 756 S.W.2d 128 (1988). We agree that there are contradictions in the evidence but it is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Jackson Cookie Company v. Fausett, 17 Ark. App. 76, 703 S.W.2d 468 (1986).
It is true, as appellants argue, that a claimant’s testimony is not considered to be uncontroverted, but this does not mean that the fact finder may not find such testimony to be credible and believable or that it must reject the testimony if it finds the testimony worthy of belief. Ringier America v. Combs, 41 Ark. App. 47, 849 S.W.2d 1 (1993).
In a claim for benefits, a claimant has the burden of proof by a preponderance of the evidence. Voss v. Ward’s Pulpwood Yard, 248 Ark. 465, 452 S.W.2d 629 (1970). In its opinion, the Commission discussed the evidence and stated “based on claimant’s credible testimony, we find that claimant has proven by a preponderance of the evidence that she sustained an injury arising out of and in the course of her employment.”
Although the appellants do not raise the point, the dissenting opinion by the judges of this court takes the position that the Commission’s opinion does not make “findings of fact on the essential issues of the existence, extent, and cause of appellee’s disability, if any,” and would remand for such findings to be made. In Wright v. American Transportation, 18 Ark. App. 18, 709 S.W.2d 107 (1986), we held in reliance upon Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979), that the Commission must make sufficient factual findings that would enable the appellate court to conduct a meaningful review of the Commission’s decision. We quoted from Clark the statement: “We do not deem a full recitation of the evidence to be required, as long as the Commission’s findings include a statement of those facts the Commission finds to be established by the evidence in sufficient detail so that the truth or falsity of each material allegation may be demonstrated from the findings ....” See Clark, 265 Ark. at 507, 579 S.W.2d at 369. In the instant case the appellants’ only argument is that the evidence was not sufficient to show that the claimant suffered a compensable injury, and the dissenting opinion concedes that the Commission’s finding in that regard is sufficient. But the appellants, as a part of their argument on the sufficiency of the evidence, have also argued that there are no objective physical findings to support the appellee’s complaints, and the dissent takes the position that in order to be “compensable” an injury must cause a disability in earning capacity and contends that “the existence of a physical impairment is a necessary component of disability.” Therefore, because Ark. Code Ann. § 11-9-704(c)(1) (1987) requires that any determination of the existence or extent of physical impairment must be supported by objective and measurable physical or mental findings, the dissent concludes that the Commission’s opinion failed to make sufficient findings of fact in that regard.
In Keller v. L.A. Darling Fixtures, 40 Ark. App. 94, 845 S.W.2d 15 (1992), we discussed the requirement of “objective” physical findings as required by Ark. Code Ann. § 11-9-704(c)(1) (1987), and we pointed out that the requirement was added to our “Workers’ Compensation Law” by Section 10 of Act 10 of the Second Extraordinary Session of 1986, which amended Section “c” of Ark. Stat. Ann. § 81-1323 (now Ark. Code Ann. § 11 -9-704). The statute now provides that any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings. However, the issues for the Commission to decide in the instant case were whether the appellee suffered an accidental injury arising out of and in the course of her employment and whether she had been temporarily, totally disabled since that time. In Arkansas State Highway Commission v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981), which was decided before the “objective and measurable” requirement became part of our workers’ compensation law, the court discussed provisions found in Ark. Stat. Ann. § 81-1302 (now Ark. Code Ann. § 11-9-102) and Ark. Stat. Ann. § 81-1313 (now Ark. Code Ann. § 11-9-519 to § 11-9-526) and held that “temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages” and that “temporary partial disability is that period within the healing period in which the employee suffers only a decrease in his capacity to earn the wages he was receiving at the time of the injury.”
However, the dissenting opinion in the instant case argues that Breshears and Sanyo Manufacturing Corp. v. Leisure, 12 Ark. App. 274, 675 S.W.2d 841 (1984), which was also decided before the “objective and measurable” requirement became law, hold that a physical impairment must exist before benefits for temporary total disability may be awarded. Sanyo involved an occupational disease and it was argued that even if the claimant was entitled to benefits for such disease, there was no substantial evidence to support a finding that the claimant was temporarily and totally disabled after a certain date. In that context — and without any “objective and measurable” requirement for the determination of impairment — the court in Sanyo quoted a statement from Breshears that said the Commission was in a better position than the appellate court to evaluate the claimant’s ability to earn wages and that, once the Commission has before it “firm medical evidence of physical impairment and functional limitations, it has the advantage of its own superior knowledge of industrial demands, limitations and requirements” and thus “can apply its own knowledge and experience in weighing the medical evidence of functional limitations” together with the other evidence to determine the claimant’s ability to work.
It is obvious that Breshears and Sanyo could not be dealing with the not-yet-enacted statutory “objective and measurable” requirement discussed by the dissenting opinion in this case. It is true that physical impairment does have some practical relationship to earning capacity. However, incapacity to earn wages can exist without physical or mental impairment. This is discussed in 1C A. Larson, The Law of Workmen’s Compensation, § 57.11 at 10-16 (1993), as follows:
The key to the understanding of this problem is the recognition, at the outset, that the disability concept is a blend of two ingredients, whose recurrence in different proportions gives rise to most controversial disability questions: The first ingredient is disability in the medical or physical sense, as evidenced by obvious loss of members or by medical testimony that the claimant simply cannot make the necessary muscular movements and exertions; the second ingredient is de facto inability to earn wages, as evidenced by proof that claimant has not in fact earned anything.
The two ingredients usually occur together; but each may be found without the other: A claimant may be, in a medical sense, utterly shattered and ruined, but may by sheer determination and ingenuity contrive to make a living for himself; conversely, a claimant may be able to work, in both his and the doctor’s opinion, but awareness of his injury may lead employers to refuse him employment. These two illustrations will expose at once the error that results from an uncompromising preoccupation with either the medical or the actual wage-loss aspect of disability.
Specifically, with regard to temporary total disability Larson says:
Temporary total (although the majority of claims are in this group) and temporary partial occasion relatively little controversy, since they are ordinarily established by direct evidence of actual wage loss. In the usual industrial injury situation, there is a period of healing and complete wage loss, during which, subject to any applicable waiting period, temporary total is payable. This is followed by a recovery, or stabilization of the condition, and probably resumption of work, and no complex questions ordinarily arise.
1C A. Larson, The Law of Workmen’s Compensation, § 57.12(b) at 10-19 and 10-20 (1993).
But the dissenting opinion in the present case is concerned with impairment as related to the statutory requirement in Ark. Code Ann. § 11-9-704(c)(1) that “any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings.” The Commission, however, was not making a “determination of physical impairment.” The issue before the Commission involved the question of capacity to earn during the healing period and that is not the same thing as the determination of “physical impairment” referred to in Ark. Code Ann. § 11-9-704(c)(1). As far as this court is concerned this issue appears to have been settled by our decision in Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993), where wesaid that objective and measurable physical or mental findings “are necessary” to support a determination of physical impairment but “they are not necessary to support a determination of wage loss disability,” 43 Ark. App. at 3, 858 S.W.2d at 127.
Another case cited by the dissent is Legacy Lodge Nursing Home v. McKellar, 26 Ark. App. 260, 763 S.W.2d 101 (1989), where we responded to the appellant’s argument but did not hold that a finding of physical impairment was necessary to allow benefits for temporary disability. We did say that such a finding would be a “fact finding function for the Commission,” and we also said that the Commission’s award of benefits in that case was supported by evidence that the physicians who had seen the claimant anticipated that she would receive continued treatment, had recommended surgery, and had said she would have increasing symptoms until surgery was performed. And in Reeder v. Rheem Manufacturing Co., 38 Ark. App. 248, 832 S.W.2d 505 (1992), we said that the “determination” of physical impairment as used in Ark. Stat. Ann. § 11-9-704(c) refers to the Commission’s determination; and we rejected the idea that unless a doctor’s opinion as to impairment was “expressly” based on objective and measurable findings it was “unworthy of consideration.” In that case we held that tests which a doctor said were “subjective” were “sufficiently objective to satisfy the statute,” and we held that “it is the function of the Commission and the courts to decide what is an objective finding within the meaning of the law.”
Thus, without implying that such a case could never exist, we hold that the determination of temporary disability in this case is not governed by the requirement in Ark. Code Ann. § 11-9-704 (c)(1) that a determination of physical impairment must be supported by objective and measurable physical or mental findings.
We also hold that the decision of the Commission is supported by substantial evidence and that its opinion sufficiently states the factual findings on which the decision is based. We agree that the dissenting opinion is correct when it states that the Commission must make findings of fact in sufficient detail so that an appellate court — as well as the parties — can know the factual basis upon which the case was decided. But this case is not like the Wright v. American Transportation case, supra, where the Commission simply held that the claimant had failed “to prove her claim by a preponderance of the evidence” without revealing whether she failed to prove an injury, or that she was working while injured, or some other factual element of her claim. Neither is this case like the case of Cagle Fabricating and Steel, Inc. v. Patterson, 309 Ark. 365, 830 S.W.2d 857 (1992), cited by the dissent. In that case, the Arkansas Supreme Court held that the prevailing opinion of the Court of Appeals was wrong in holding that the Commission’s finding that the claimant had “met his burden of proof’ under Ark. Code Ann. § 11-9-523 (a) (1987) was sufficient when there was no finding that the necessary element of physical distress following the occurrence of the hernia was such as to require the attendance of a physician within 72 hours. In other words, the supreme court said we held that a finding by the Commission was sufficient, but we were wrong because that finding did not apply to a necessary element in the case.
But unlike the cases where the necessary elements on which a claim was based were not specifically found by the Commission, here the only question presented to the Commission by the appellant, and the only question presented by the appellant to this court, is whether there is substantial evidence to support the finding that the appellee suffered a compensable injury. The issue of objective physical findings was only a part of the appellants’ argument that the Commission’s decision was not supported by substantial evidence. However, regardless of how the issue was raised, if there is no requirement that the award of temporary total disability in this case must be supported by objective and measurable findings of physical impairment, then the absence of factual findings by the Commission on that point does not prevent us from affirming the Commission without a remand.
As to the merits of the claim for temporary disability, the administrative law judge’s opinion discusses the evidence in that regard and points out that Dr. Badshah “took [claimant] off from work on account of her back condition.” The law judge’s opinion also states that “according to the reports of Dr. Badshah, the claimant has remained temporarily, totally disabled since her injury.” And the law judge’s opinion states that Dr. McAlister, - the other doctor seen by the claimant, “diagnosed a lumbosacral sprain and muscle pull in both forearms.” Based on the evidence discussed by the law judge, he made the specific finding that “the claimant has remained temporarily, totally disabled since her accidental injury.” The Commission affirmed the law judge’s decision and directed the appellants to comply with that award. In City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984), we pointed out that the Commission had affirmed the decision of the law judge, and we said, “This action by the Commission had the effect of adopting the findings and conclusions of the Administrative Law Judge as its own.” 10 Ark. App. at 316, 663 S.W.2d at 948. The same thing happened in the instant case.
The dissenting opinion draws a distinction between the Commission “expressly” adopting the law judge’s opinion and simply “affirming” the law judge’s opinion, and Hardin v. Southern Compress Co., 34 Ark. App. 208, 810 S.W.2d 501 (1991), is cited in support of that distinction. However, Hardin held that the “law judge failed to make the findings necessary for us to review ... the decision of the Commission.” ITT/Higbie Manufacturing v. Gilliam, 34 Ark. App. 154, 807 S.W.2d 44 (1991), is also cited by the dissent as drawing a distinction between “expressly” adopting and “affirming” the law judge’s decision. Higbie, however, did not expressly overrule City of Fayetteville v. Guess, and Higbie involved a case where the Commission had adopted the law judge’s decision. Thus, there was no discussion, and no need to discuss, whether that case was in conflict with City of Fayetteville. The real thrust of the discussion of “adopting” in Higbie was whether this would allow the Commission to “rubber stamp” the law judge’s decision. This was also the concern of the concurring opinion in City of Fayetteville. That opinion pointed out that “it is the duty of the Commission to make a finding according to a preponderance of the evidence” and not to simply determine if there was substantial evidence to support the law judge’s opinion. But the issue of the Commission “in effect” adopting the opinion of the law judge was specifically decided in City of Fayetteville and that case has not been overruled.
The claimant in the present case sustained a compensable injury on December 21, 1990. At the time of the hearing before the law judge on September 24, 1991, she had not worked or been paid workers’ compensation since her injury, nor had she been released to return to work. Today, almost three years after the injury, we think the issue of temporary total disability should be resolved without further delay.
Affirmed.
Jennings, C.J., concurs,
Pittman and Rogers, JJ., dissent. | [
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John E. Jennings, Chief Judge.
James Cole and Patricia Cole Pearson appeal from an order of the Columbia County Chancery Court granting summary judgment to the appellees, Barbara Riggins Rivers, Bonnie Riggins Peace, and Quinton O. Riggins Jr.
Juanita Cole Riggins and Quinton O. Riggins Sr. were married in 1974. Juanita had two children, the appellants, by a prior marriage. Quinton O. Riggins Sr. had three children, the appellees, by a prior marriage. In October 1981, Juanita and Quinton executed mutual wills in which each left his property to the survivor. Each will provided that, at the survivor’s death, all property would pass in five equal shares to the appellants and the appellees.
Juanita died in May 1985, and Quinton received all of her estate pursuant to her 1981 will. In 1986, Quinton executed a will which revoked his prior wills and provided that his residence would pass to appellees, leaving the residue of his estate to be divided equally among appellants and appellees. In July 1988, Quinton married Merry Owens Hutchinson. In September 1988, Quinton executed another will which revoked all prior wills and left his residence to Merry for her life, provided she occupied it as her principal residence. The will gave the residue of his estate to appellees and made no provision for appellants. In 1989, Quinton and Merry were divorced. In November 1991, Quinton executed another will which revoked all prior wills and left his estate to appellees. This will also failed to provide for appellants.
Quinton O. Riggins Sr. died on December 27,1991, and his last will was admitted to probate. Appellants then brought suit in chancery seeking the imposition of a constructive trust against 40 % of the estate of Quinton O. Riggins Sr. The suit was based on allegations that Riggins Sr. and his wife, Juanita, had agreed that the survivor of them would leave their property to all five children in equal shares.
The appellees then filed a motion for summary judgment and attached the affidavit of Ronny Bell, the lawyer who prepared the 1981 mutual wills. Mr. Bell’s affidavit states that neither Juanita nor Quinton mentioned any agreement not to revoke their 1981 wills. Mr. Bell also stated in the affidavit that he explained to both that their wills could be revoked at any time. In response, the appellants filed the affidavit of James H. Cole which recited that he and his sister were assured by Quinton O. Riggins Sr., shortly after Juanita’s death in 1985, that Quinton would leave the property to all five children in equal shares. Mr. Cole said that he and his sister signed waivers in connection with the probate of his mother’s estate in reliance upon this assurance. The chancellor granted the appellees’ motion for summary judgment based on Ark. Code Ann. § 28-24-101 (1987). That code section provides:
(a) A valid agreement made by a testator to convey property devised in a will previously made shall not revoke the previous devise, but the property shall pass by the will subject to the same remedies on the agreement against the devisee as might have been enforced against the decedent if he had survived.
(b)(1) However, a contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after June 17, 1981, can be established only by:
(A) Provisions of a will stating material provisions of the contract; or
(B) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or
(C) A writing signed by the decedent evidencing the contract.
(2) The execution of a reciprocal or mutual will does not create a presumption of a contract not to revoke the will.
There is no contention by the appellants that the alleged agreement between Quinton O. Riggins Sr. and Juanita Riggins, that the survivor would leave his or her property in equal shares to all five children, could be established by any of the means set out in the statute. Appellants argue, nevertheless, that equity may impose a constructive trust in these circumstances.
The appellants’ complaint is clearly based on an allegation that Quinton and Juanita had a contract to make a will or not revoke a will, and the affidavit filed by James Cole contains an additional allegation of a promise on behalf of Quinton O. Riggins Sr. to make a will.
A constructive trust is simply an equitable remedy. It is true, as appellants contend, that constructive trusts are fre quently imposed to remedy the breach of a fiduciary duty, to remedy fraud or overreaching and to prevent “unjust enrichment.” J.W. Reynolds Lumber Co. v. Smackover State Bank, 310 Ark. 342, 836 S.W.2d 853 (1992); Mitchell v. Mitchell, 28 Ark. App. 295, 773 S.W.2d 853 (1989). But here the appellants’ claim is based on an alleged promise on the part of Quinton Riggins Sr. to make, or not to revoke, a will. We see no reason why the legislature cannot establish rules governing the manner of proving such a contract. The maxim that “equity follows the law” is strictly applicable whenever the rights of the party are clearly defined and established by law. Beebe Sch. Dist. v. Nat’l Supply Co., 280 Ark. 340, 658 S.W.2d 372 (1983); 30A C.J.S. Equity § 118 (1992). Even prior to the enactment of Ark. Code Ann. § 28-24-101, the law imposed a relatively high burden of proof on one seeking to establish a binding contract to make a will. See Mabry v. McAfee, 301 Ark. 268, 783 S.W.2d 356 (1990).
Appellants argue that since “the law of constructive trusts overrides the statute of frauds,” it should also override Ark. Code Ann. § 28-24-101, citing Beeson v. Beeson, 11 Ark. App. 79, 667 S.W.2d 368 (1984). The primary reason, however, that a constructive trust may be imposed despite the statute of frauds is that implied trusts, such as constructive trusts or resulting trusts, are specifically exempted from its application by the statute. Ark. Code Ann. § 4-59-103 (Repl. 1991). See also Ark. Stat. Ann. § 38-107 (Repl. 1962); Grissom v. Bunch, 227 Ark. 696, 301 S.W.2d 462 (1957); Walker v. Biddle, 225 Ark. 654, 284 S.W.2d 840 (1955); Phillips v. Tramble, 224 Ark. 359, 273 S.W.2d 400 (1954); Edlin v. Moser, 176 Ark. 1107, 5 S.W.2d 923 (1928). Section 28-24-101 of our code contains no similar exception.
Our conclusion is that the chancellor did not err in granting summary judgment.
Affirmed.
Pittman and Rogers, JJ., agree. | [
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James R. Cooper, Judge.
This appeal concerns the process to be used in the election of the Board of Directors of the Bella Vista Property Owners Association (POA). The chancellor ruled that all members of the Bella Vista Property Owners Association are entitled to only one vote for each lot owned in the election for the Board of Directors. For reversal, the appellants assert that the chancellor erred in interpreting the Declaration and Protective Covenants, Articles of Incorporation, and Bylaws of the POA, and contend that each member of the POA should have one vote in the election for the Board of Directors.
The appellants are owners of a lot in Bella Vista Village in Benton County. As lot owners, they are members of the POA. The appellees are the former President and General Manager, and Board of Directors of the POA. The intervenor appellees are husband and wife who own separate lots in their individual capacities.
Bella Vista Village, originally incorporated as the Bella Vista Country Club, is a nonprofit corporation organized under the laws of the State of Arkansas. It is a recreational retirement community developed by Cooper Communities, Inc., formerly known as Cherokee Village Development Company, Inc., consisting of approximately 37,000 lots or living units, approximately 4,000 of which are improved. The POA owns and operates recreational facilities consisting of golf courses, swimming pools, tennis courts, clubs and restaurants, among other facilities and common properties. The POA also provides water and sewer facilities, fire protection, emergency services, and police protection through the Benton County Sheriffs Office.
Each lot or living unit in Bella Vista is assessed $168.00 per year or $14.00 per month, irrespective of the number of owners listed on the deed. The POA derives its revenue from these property owner assessments as well as user fees for the use of the facilities.
Membership in the POA requires ownership of a lot or living unit. Evidence of ownership must be registered with the POA to acquire membership privileges. Only two persons are permitted full membership privileges per lot; however, membership cards are issued in the name of the first person on the deed of ownership. If they meet certain criteria, dependents of persons with full membership privileges may obtain a dependent membership.
The record reveals that historically the POA sent a ballot to the first name appearing on the deed for each lot or living unit. The elections were conducted on a one lot, one vote basis, even if members owned multiple lots. Since 1982, however, multiple lot owners were sent only one ballot regardless of the number of lots owned.
Bella Vista Village is subject to the Declaration and Protective Covenants originally filed in 1965 and governed by its Articles of Incorporation. Membership in the POA and voting rights of the members are provided for in the Declaration, Articles of Incorporation, and Bylaws of the POA. The provisions are virtually identical. Article III of the Declaration provides:
Section 1. Membership. The Developer, its successors and assigns, shall be a member of the Club so long as it shall be the record owner of a fee, or an undivided fee, interest in any Lot or Living Unit which is subject by covenants of record to assessment by the Club, and the Developer shall also be a member until it is paid in full for every such Lot or Living Unit which it shall sell. Also, every person or entity who is a record owner of a fee, or undivided fee, interest in any Lot or Living Unit which is subject to covenants of record to assessment by the Club and who shall have paid the Developer in full for the purchase price of the Lot or Living Unit, shall be a member of the Club, provided that any such person or entity (except the Developer) who holds such interest merely as security for the performance of an obligation shall not be a member.
Section 2. Voting Rights. Every member of the Club shall be entitled to one vote in the election of directors of the Club, but for all other purposes there shall be two classes of voting memberships:
Class A. Class A members shall be all those persons or entities as defined in Section 1 with the exception of the Developer, who have paid the Developer in full for the purchase price of the Lot or Living Unit. Class A members shall be entitled to one vote for each Lot or Living Unit in which they hold the interests required for membership by Section 1. When more than one person holds such interest or interests in any Lot or Living Unit all such persons shall be members, and the vote for such Lot or Living Unit shall be exercised as they among themselves determine, but in no event shall more than one vote be cast with respect to any such Lot or Living Unit.
Class B. Class B member shall be the Developer. The Class B member shall be entitled to ten votes for each Lot or Living Unit of which it is the record owner and which is subject by covenants of record to assessment by the Club until it shall have conveyed the Lot or Living Unit by deed to a purchaser and shall have been paid in full for such Lot or Living Unit. The Developer shall continue to the right to cast votes as aforesaid (ten votes for each Lot or Living Unit) even though it may have contracted to sell the Lot or Living Unit or may have same under a mortgage or deed of trust.
For purposes of determining the votes allowed under this Section, when Living Units are counted, the Lot or Lots upon which such Living Units are situated shall not be counted.
The appellants argue that this issue was previously litigated in Buck v. Medin, No. E-88-441-2 (Benton County Chancery, May 25, 1988) and that, pursuant to that decision, each member of the POA should have a vote in the election of the Board of Directors. The chancellor in Buck found that Ark. Code Ann. § 4-28-212 (1987), the Declaration, and Articles of Incorporation adopted the principle of “one man, one vote” and that every member of the POA was entitled to one vote in the election of the directors.
However, the chancellor in the case at bar found that Act 672 of 1989, which amended § 4-28-212(a) by adding the second sentence, modified the decision in Buck so that only one ballot should be distributed for each lot. Section 4-28-212(a) (1991) provides:
(a) Each member shall be entitled to one (1) vote in the election of the board of directors. Where more than one (1) membership is held by a single entity, the member shall be entitled to one (1) vote for each such membership. (Emphasis added.)
The chancellor held that the statute read in conjunction with the Declaration and Articles of Incorporation mandated that no more than one vote per lot could be exercised in the election of the Board of Directors.
We agree with the chancellor. The decision in Buck is consistent with a fair reading of § 4-28-212(a) prior to the 1989 amendment. However, the “one man, one vote” rule enunciated therein was modified by the amendment, which clearly allows multiple votes to be cast where more than one “membership” is held. Insomuch as the Declaration defines membership in terms of interest in any “Lot or Living Unit,” we think it clear that the effect of the 1989 amendment was to permit voting to be conducted on the basis of one vote per lot, as had been done historically. We find no error, and we affirm.
Affirmed.
Jennings, C.J., concurs.
Robbins, J., dissents.
The dissenting opinion concerns itself largely with a fact situation not presented in the case at bar, i.e., one in which three hypothetical brothers take title to a lot as tenants in common after paying a pro rata share for it. Although it is a fundamental principle of appellate review to refrain from deciding issues not before the Court, I feel constrained to point out that the dissent’s solution which would allow each of the hypothetical brothers full voting rights would permit any organized group to cheaply and effectively dominant the Property Owners Association by the simple expedient of arranging for the purchase of one lot by hundreds (or thousands) of members taken in common. It is to avoid such absurdities that we adhere to deciding issues on a case-by-case basis. See generally, 5 Am. Jur. 2d Appeal and Error § 725 (1962). | [
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Sam Bird, Judge.
By decree of the Crawford County Circuit Court on October 21, 2001, Patrick James Dorothy was granted a divorce from Tiana Marie Dorothy and was awarded custody of their two children. In this one-brief case, Ms. Dorothy appeals only the award of custody. She contends (1) that the trial court erred in taking jurisdiction because jurisdiction was not established pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, codified at Ark. Code Ann. § 9-19-101 et seq., and the decree did not contain language conferring jurisdiction pursuant to the UCCJEA; (2) that the trial court abused its discretion when denying her motion to continue the case; (3) that the trial court clearly erred in awarding custody to appellee where the court made no finding about the children’s welfare and best interests pursuant to section 9-13-101(a)(l)(A), and it was not in their best interests and welfare; and (4) that the trial court erred in sustaining Mr. Dorothy’s objection to testimony that he failed to provide support for the minor children during the parties’ separation. We affirm on all points.
Jurisdiction
As her first point on appeal, Ms. Dorothy contends that the trial court erred in taking jurisdiction because jurisdiction was not established pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, codified at Ark. Code Ann. § 9-19-101 et seq., and the decree did not contain language conferring jurisdiction pursuant to the UCCJEA. She asserts that Arkansas was not the home state of the children, and that Arkansas courts did not have subject-matter jurisdiction over the child-custody action.
Our supreme court has stated that under the UCCJA, the predecessor of the UCCJEA, child-custody jurisdiction is a matter of subject-matter jurisdiction. Moore v. Richardson, 332 Ark. 255, 964 S.W.2d 377 (1998). It has subsequently stated that the UC-CJEA is the exclusive method for determining the proper forum in child-custody proceedings involving other jurisdictions. Greenhough v. Goforth, 354 Ark. 502, 126 S.W.3d 345 (2003).
Courts from other jurisdictions have recognized that the threshold requirements under the UCCJA concern subject-matter jurisdiction, and that such jurisdiction can be raised at any time by the parties or sua sponte by a court of review and cannot be conferred by the parties. Biscoe v. Biscoe, 443 N.W.2d 221 (Minn Ct. App. 1989) (citing Campbell v. Campbell, 180 Ind. App. 351, 352, 388 N.E.2d 607, 608 (1979); Smith v. Superior Court of San Mateo County, 68 Cal. App. 3d 457, 461, 464 n.3, 137 Cal. Rptr. 348, 351, 353 n.3 (1977)). Subject-matter jurisdiction relates to the competence of a court to hear a matter, and custody determinations are status adjudications not dependent upon personal jurisdiction over the parents. Consford v. Consford, 271 A.D.2d 106, 711 N.Y.S.2d 199 (2000). A state may have jurisdiction to enter a dissolution decree, but such does not necessarily confer jurisdiction to make a child-custody determination. Stevens v. Stevens, 682 N.E.2d 1309 (Ind. Ct. App. 1997). Rather, jurisdiction over custody matters having an interstate dimension must be independently determined by application of that state’s version of the Uniform Act: when a state has adopted a version of the Uniform Child Custody Jurisdictional Act, jurisdiction over the issue of custody is determined by application of the Uniform Act, even if jurisdiction over the dissolution action is undisputed. Id. The Act governs all custody cases, and it is not necessary to file a separate action under the Act to invoke its rules. In the Marriage of Schoeffel, 268 Ill. App.3d 839, 644 N.E.2d 827 (1994), (stating that a party’s request for custody in New York action for divorce was sufficient to trigger application of the Act although the party did not mention the Act).
Our supreme court set forth this overview of the UCCJEA in Arkansas Department of Human Services v. Cox, 349 Ark. 205, 211-12, 82 S.W.3d 806, 811 (2002):
The UCCJEA as codified in Arkansas is comprised of three subchapters. Subchapter one provides general provisions, including definitions. Subchapter two sets out jurisdiction and the method whereby the courts of this state issue a child-custody determination order. Section 9-19-201 provides the criteria used to determine whether a state has jurisdiction to make an “initial child-custody determination.” “Initial determination” means the first child-custody determination. Ark. Code Ann. § 9-19-102(8) (Repl.2002). Under § 9-19-201(a) as applied to the facts of this case, a court of this state has jurisdiction to make an initial child-custody determination if it is the home state of the child.
At issue in the point of appeal we now consider is jurisdiction of the trial court and the criteria used to determine whether Arkansas had jurisdiction to make the determination of child custody. Section 9-19-201(a) (Repl. 2002) guides our decision:
(a) Except as otherwise provided in § 9-19-204 [temporary emergency jurisdiction], a court of this State has jurisdiction to make an initial child-custody determination only if:
(1) this State is the home State of the child on the date of the commencement of the proceeding, or was the home State of the child within six (6) months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;
(2) a court of another State does not have jurisdiction under subdivision (a)(1) of this section, or a court of the home State of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under § 9-19-207 or § 9-19-208, and:
(A) the child and the child’s parents, or the child and at least one (1) parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and
(B) substantial evidence is available in this State concerning the child’s care, protection, training, and personal relationships;
(3) all courts having jurisdiction under subdivision (a)(1) or (2) of this section have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under § 9-19-207 or §9-19-208; or
(4) no court of any other State would have jurisdiction under the criteria specified in subdivision (a)(1), (2), or (3) of this section.
(b) Subsection (a) of this section is the exclusive jurisdictional basis for making a child-custody determination by a court of this State.
(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody determination.
Additionally, section 9-19-102 sets forth definitions that are pertinent to the issues we now consider:
(3) “Child-custody determination” means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual.
(4) “Child-custody proceeding” means a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. The term does not include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under subchapter 3 of this chapter.
(7) “Home state” means the State in which a child lived with a parent or a person acting as a parent for at least six (6) consecutive months immediately before the commencement of a child-custody proceeding. In the case of a childless than six (6) months of age, the term means the State in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.
(8) “Initial determination” means the first child-custody determination concerning a particular child.
We now consider whether the trial court in the present case erred in taking jurisdiction over the matter of child custody. Ms. Dorothy states in her brief that the children were picked up in Iowa by appellee or his mother in May or June of 2003 for what was supposed to be summer visitation. The record reveals that at the trial of this matter on October 14, 2003, the trial court solicited further information about where Ms. Dorothy and the children had lived:
The Court: Who else fives with you in this house you have now?
Defendant, Ms. Dorothy: My boyfriend.
The Court: Is it your house or his house?
Defendant, Ms. Dorothy: It’s both of ours.
The Court: What, are you renting it?
Defendant, Ms. Dorothy: Yes.
The Court: And it’s in Iowa?
Defendant, Ms. Dorothy: Yes.
The Court: How long have you lived in Iowa?
Defendant, Ms. Dorothy: I’ve lived there since the beginning of February.
The Court: Six or seven months maybe?
Defendant, Ms. Dorothy: Correct.
The Court: Where did you live before that?
Defendant, Ms. Dorothy: In Arizona.
The Court: How long did you live in Arizona?
Defendant, Ms. Dorothy: Two and a half years.
The Court: Where did you live before that?
Defendant, Ms. Dorothy: Arkansas.
The Court: How long did you live in Arkansas?
Defendant, Ms. Dorothy: Six months, I believe.
The Court: When were you in Colorado then?
Defendant, Ms. Dorothy: There was a period for a month that I went to stay with my dad because he wanted to see the children and I thought it would be better, however it wasn’t.
Clearly, the trial court’s questions of Ms. Dorothy elicited the evidence that was necessary to a determination of the court’s jurisdiction over the matter of child custody. Ms. Dorothy’s answers revealed that the children had lived in Iowa only from some time in February 2003 until the end of the school year in May or June, and thus had not lived in any state for six consecutive months immediately before appellee filed his complaint for divorce and custody on July 18, 2003, at which time the child-custody proceeding commenced. Thus, the children had no home state under the UCCJEA when the proceeding was commenced, and Arkansas had jurisdiction over child custody by the default provision of Arkansas Code Annotated section 9-19-201(a)(4) (Repl. 2002).
The decree of divorce issued by the trial court sets forth the court’s finding that it had “jurisdiction of the parties and subject matter of this cause.” Ms. Dorothy argues, however, that the trial court was required to make a specific finding of subject-matter jurisdiction, but she cites no authority for this proposition and does not make a convincing argument. An issue will not be addressed on appeal where there is no citation to authority or convincing argument. Norman v. Norman, 347 Ark. 682, 66 S.W.3d 635 (2002). We hold that the trial court properly assumed jurisdiction to determine child-custody in this case.
Continuance
As her second point on appeal, Ms. Dorothy contends that the trial court abused its discretion when denying her motion to continue the case. On September 11, 2003, after she had answered appellee’s complaint for divorce and request for a hearing, the trial court set trial for October 14, 2003. On October 7, 2003, Ms. Dorothy requested a month’s continuance in order to obtain funds for a retainer and to find an attorney. The trial court denied her request, pointing out that the case was filed in July, that she was served in August, and that she filed her pro se answer on September 8, 2003. Ruling that was ample time to have obtained an attorney, the court denied Ms. Dorothy’s request but stated that it would consider a continuance in the event that she should obtain counsel and should counsel request time to prepare.
The court may, upon motion and for good cause shown, continue any case previously set for trial. Ark. R. Civ. P. 40(b). The granting or denial of the motion for continuance is a matter within the discretion of the trial court. City of Dover v. City of Russellville, 346 Ark. 279, 57 S.W.3d 171 (2001). Here, we hold that the trial court did not abuse its discretion in denying appellant’s motion for continuance.
Welfare and Best Interest of the Children
Ms. Dorothy contends that the trial court clearly erred in awarding custody to appellee where the court failed to make a finding of what the welfare and best interests of the children were pursuant to section 9-13-101(a)(l)(A), and it was not in the best interests and welfare of the children. Arkansas Code Annotated section 9-13-101(a)(l)(A) (Repl. 2002) states that in an action for divorce, the award of custody of a child of the marriage shall be made . . . solely in accordance with the welfare and best interest of the child.
Ms. Dorothy argues that Mr. Dorothy had an unstable past, and that she did not; that she was the children’s primary caretaker; that she had no drug or alcohol problems; and that she moved in order to secure a better home and job. Mr. Dorothy testified, however, that when the children were living with their mother, they were in several schools during the year, living with several different men, one of whom appellant met on the internet before moving to Arizona. He said that the children were currently enrolled in school in Crawford County where his parents resided, and that the children attended church. He stated that the parties had been separated since January 2000; that they had no understanding or visitation agreement; and that the children were with him for various time periods over the last three and a half years, beginning with a six-month period and including when she asked him to take the children at summertime and when she was getting ready to move in with another man. Mr. Dorothy said that he contacted the children every time he got the chance, when Ms. Dorothy called and he knew where she was. He said that he had driven all the way to Arizona, Colorado, and Iowa, to pick up the children, and that Ms. Dorothy did not meet him halfway. He said that he would marry his girlfriend with whom he and the children were living if it were to be in the best interest of the children.
Ms. Dorothy testified that she played sports and did homework with the children, and had been their primary care giver since birth. She said that she tried to have Mr. Dorothy served with divorce papers from Arizona, but that he falsified his address and the papers were not delivered correctly. She said that she had lived in Arizona for a total of two and a half years, leaving there once for a month; then she stayed in Colorado for a little while; and currently was in Iowa. She said that the children had been in two schools in Arizona because they moved into a new house, and they went to one school in Iowa and one in Colorado. She said that she currently lived with her boyfriend in a four-bedroom home across from a school.
In our de novo review, all issues of law or fact raised in a custody proceeding are before this court for our determination. Pierce v. Pierce, 73 Ark. App. 339, 43 S.W.3d 192 (2001). Here, the trial court stated from the bench that the children needed to be kept in a wholesome environment, and that the court was not impressed with either of the parties living with people they were not married to. The court gave appellee a week to either marry his girlfriend or have her move out. It is clear to us that the trial court determined that the best interests and welfare of the children would be served by a wholesome environment, and that such an environment would exist with Mr. Dorothy. We hold that the trial court did not clearly err in awarding custody to him.
Excluded Testimony
Ms. Dorothy contends that the trial court erred in sustaining Mr. Dorothy’s objection to testimony that he failed to provide support for the minor children during the parties’ separation. The ruling was made at trial when Ms. Dorothy, who appeared pro se, asked Mr. Dorothy to testify as to how much support he had given her in the last three-and-a-half years. His counsel objected, “The parties were married. The testimony had been that she led a transient lifestyle moving from place to place, and she’s asking questions that were not covered on direct.” The court sustained the objection, ruling that the issue of support was not relevant to the time that the parties were separated because Ms. Dorothy had not requested support from Mr. Dorothy, nor had an order for support been entered.
Ms. Dorothy challenges the trial court’s ruling that the excluded testimony was not relevant. She cites Wilson v. Wilson, 67 Ark. App. 48, 991 S.W.2d 647 (1999), where the trial court considered it relevant to consider whether the father had failed to voluntarily support the children during the parents’ separation in determining that the mother was the caretaker of the children and that the father had separated himself from their lives. Appellant cites no authority, however, nor presents any convincing argument that the trial court is required to consider such evidence as relevant in every case. Additionally, we note Mr. Dorothy’s testimony that the children were in his physical custody for a significant portion of the time that the parties were separated. Under the evidence presented to the trial court, we hold that it did not err in excluding testimony regarding any lack of support by Mr. Dorothy during the times that the children were with Ms. Dorothy.
Affirmed.
Robbins and Roaf, JJ., agree.
The UCCJEA was enacted to replace the former chapter entitled the Uniform Child Custody Jurisdiction Act (UCCJA), which dated back to 1979. Seamans v. Seamans, 73 Ark. App. 27, 37 S.W.3d 693 (2001). The preamble of the latter states in pertinent part, “The general purposes of the subchapter are to ... avoid jurisdictional competition and conflicts with courts of other states in the matter of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being.” id.; Ark. Code Ann. § 9-13-201 (repealed 1999). This court has said that the UCCJA and the federal Parental Kidnaping Prevention Act (PKPA), found at 28 U.S.C. § 1738A (1981), govern state conflicts over child custody jurisdiction. Seamans, supra. The UCCJEA has revised the UCCJA in part to incorporate the home state preference of the PKPA and also to clarify the rules for original, modification, and enforcement jurisdiction. Id.
This section provides mandatory jurisdictional rules for the original child custody proceeding. It generally continues the provisions of the UCCJA § 3. However, there have been a number of changes to the jurisdictional bases.
1. Home State Jurisdiction. The jurisdiction of the home State has been prioritized over other jurisdictional bases.
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Josephine Linker Hart, Judge.
Appellant sued appellees for intentional interference with contractual relations, violation of the Deceptive Trade Practices Act, and conversion. The jury found for appellant on all counts and awarded $350,000 in punitive damages but no compensatory damages. Thereafter, appellant asked the trial court to correct the verdict based on a juror’s statement that the jury intended to award appellant both compensatory and punitive dam ages. The trial court refused to correct the verdict and denied appellant’s alternative motion for a new trial or nominal damages. In a later order, the court denied appellant’s request for attorney fees pursuant to Ark. Code Arm. § 4-88-113(f) (Repl. 2001), which is part of the Deceptive Trade Practices Act. Appellant now appeals from those rulings and argues that the trial court erred in: 1) refusing to correct the verdict; 2) refusing to grant a new trial; 3) failing to award nominal damages; 4) denying appellant’s request for attorney fees. We conclude that the trial court was correct in refusing to amend the verdict but that the trial court erred in denying appellant a new trial. We therefore reverse and remand on that ground without reaching appellant’s last two arguments.
Since 1998, appellant has provided trash-hauling and disposal services in northwest Arkansas. It has the exclusive franchise for refuse disposal in the cities of Rogers, Lowell, and Elkins, and has private trash removal contracts with various commercial enterprises both inside and outside those cities. The written contracts entered into by appellant and its customers are for specified durations, usually thirty-six to sixty months, and most contain a liquidated-damages clause, effective in the event of early cancellation.
In 2000, appellee Roll Off Service, whose owner is appellee Tom Smith, began providing trash-hauling services in the same areas of northwest Arkansas served by appellant. Appellees immediately began pursuing customers who had contracts with appellant, including customers within the cities of Rogers, Lowell, and Elkins. When some of those customers informed appellees that they had contracts with appellant, appellees provided the customers with a cancellation letter to send to appellant. If appellant billed the customer for liquidated damages, appellees provided the customer with free service for a number of months to offset the damages.
After losing a significant number of customers to appellees, appellant filed suit in Washington County Circuit Court, seeking compensatory and punitive damages for: 1) intentional interference with contractual relations based on allegations that appellees purposely induced appellant’s customers both inside and outside the exclusive franchise areas to breach their contracts with appel lant; 2) violation of the Deceptive Trade Practices Act (DTPA) based on allegations of false and misleading representations made to customers about the validity of the city franchises and the nature of the services that were covered by the franchises; 3) conversion based on allegations that appellees emptied appellant’s containers. A trial was held on these allegations from July 15-18, 2003, wherein the jury heard the testimony of over thirty witnesses and viewed hundreds of exhibits. Among the witnesses was appellant’s economic expert, Dr. Charles Venus, who testified that, as the result of contracts that were prematurely terminated by over thirty of appellant’s customers and as the result of appellees’ servicing of more than 130 of appellant’s customers in Rogers and Lowell, appellant suffered lost profits of $536,901.
After closing arguments, the jury retired for deliberations. They had been provided with twenty-four verdict forms asking them to make findings on each of appellant’s claims against each appellee and to make findings regarding compensatory and punitive damages. At 1:33 a.m., the jury returned with its verdict. The verdict forms revealed that the jury had found in appellant’s favor on all counts — intentional interference with contractual relations, violation of the DTPA, and conversion. However, the verdict forms pertaining to damages reflected a compensatory award of “-0-” and punitive damage awards of $150,000 against Roll Off Service and $200,000 against Tom Smith. After the jury verdict was read, the trial judge asked if either side wished to poll the jury; both sides declined.
A few days after the verdict was announced, appellees filed a motion for a judgment notwithstanding the verdict (JNOV) on the ground that the punitive-damage award could not stand in the absence of a compensatory award. Thereafter, the jury foreman, having read in the newspaper that no compensatory damages had been awarded in the case, filed an affidavit. In his affidavit, he averred that, given the extensive number of forms and the late hour that the jury had returned the verdict, there may have been confusion in completing the forms, but that the jury’s intention was to award appellant $150,000 in compensatory damages against Roll Off Service and $200,000 in punitive damages against Tom Smith. Upon the filing of that affidavit, appellant moved to correct the judgment in accordance with the jury’s intention or, in the alternative, for a new trial or an award of nominal damages. The trial court struck the juror’s affidavit, ruling that consideration of it was prohibited by Ark. R. Evid. 606(b), and further ruled that appellant had waived its right to correct the verdict by not doing so before the jury was discharged. Additionally, the court denied appellant’s motion for a new trial or nominal damages, choosing instead to grant appellees’ motion for a JNOV.
Following entry of the JNOV, appellant asked the court for $108,543 in attorney fees based on the jury’s finding that appellees violated the DTPA. The trial court denied the motion, ruling that appellant was not the “prevailing party” at trial. Appellant appeals from that order and from the order denying its post-trial motions.
We first address appellant’s argument that the trial court erred in striking the juror’s affidavit and in failing to correct the verdict. The primary basis of the court’s ruling was that Rule 606(b) of the Arkansas Rules of Evidence prohibited consideration of the juror’s affidavit. Rule 606(b) provides:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought upon any juror.
The rule embodies the public interest in preserving the confidentiality of jury deliberations, see National Bank of Commerce v. HCA Health Services of Midwest, Inc., 304 Ark. 55, 800 S.W.2d 694 (1990), and ensures that jury deliberations remain secret, unless it becomes clear that the jury’s verdict was tainted by a showing of extraneous prejudicial information or some improper outside influence. Watkins v. Taylor Seed Farms, Inc., 295 Ark. 291, 748 S.W.2d 143 (1988).
Appellant admits that the affidavit in this case falls under neither of the rule’s stated exceptions, i.e., it does not aver that the jury was subject to extraneous prejudicial information or improper outside influence. Nevertheless, appellant argues that the affidavit was admissible because it was not contrary to the overall purpose of Rule 606(b), which is to restrict inquiry into the “validity” of a verdict. According to appellant, the juror’s affidavit in this case did not address the validity of the verdict but the “veracity” of the verdict, i.e., whether the jury’s verdict as recorded on the verdict forms reflected the jury’s decision. Appellant contends that Rule 606(b) does not prohibit a juror from testifying that the verdict inscribed on the verdict form and read in open court does not mirror what was truly agreed upon by the jury.
Appellant cites no Arkansas case in support of this proposition, and indeed there appears to be no case directly on point. However, appellant cites several cases that interpret the virtually identical Fed. R. Evid. 606(b) to say that juror testimony is permitted to show that, through inadvertence, oversight, or mistake, the verdict announced was not the verdict on which the jury agreed. See, e.g., Karl v. Burlington N. R.R. Co., 880 F.2d 68 (8th Cir. 1989); Robles v. Exxon Corp., 862 F.2d 1201 (5th Cir.), cert. denied, 490 U.S. 1051 (1989); Attridge v. Cencorp Div. of Dover Tech. Int’l Inc., 836 F.2d 113 (2d Cir. 1987); see also Joseph McLaughlin, Weinstein’s Federal Evidence § 606.04[4][b] (2ded. 2004). Additionally, many state courts have interpreted their evidentiary rules in a like fashion. See, e.g., Prendergast v. Smith Labs., Inc., 440 N.W.2d 880 (Iowa 1989); Martin v. State, 732 So. 2d 847 (Miss. 1998). These cases reason that Rule 606(b) is designed to prevent inquiry into the jurors’ mental processes, not to prevent the correction of a clerical error in the transmission or recordation of the verdict. Their holdings appear to be the majority rule. See Annot., Competency of Juror’s Statement or Affidavit to Show That Verdict in Civil Case Was Not Correctly Recorded, 18 A.L.R. 3d 1132 (1968).
Appellant’s argument and the cases upon which it relies are sound, if not compelling. Nevertheless, we are constrained to reject appellant’s argument for several reasons. First, our courts have been very strict in interpreting Rule 606(b) to allow inquiry into a juror’s thought processes only where the juror’s testimony concerns extraneous information or outside influence. See Watkins v. Taylor Seed Farms, Inc., supra; Machost v. Simkins, 86 Ark. App. 47, 158 S.W.3d 726 (2004); see also David Newbern and John Watkins, Arkansas Civil Practice and Procedure § 25-6 (3d ed. 2002), stating:
Although the precise location of the line drawn by Rule 606(b) may sometimes be difficult to ascertain, the prohibition has been held applicable to a juror’s thought processes in reaching a verdict and the factors that may have influenced that decision. It also covers jurors’ misunderstanding of the facts or law. . . .
In light of this strict interpretation, we are reluctant to craft an exception to Rule 606(b) that goes beyond those stated in the rule itself.
Secondly, one of the purposes of Rule 606(b) is to prevent juror tampering or to prevent a single juror from destroying a verdict. In State v. Osborn, 337 Ark. 172, 988 S.W.2d 485 (1999), our supreme court stated:
Further, if after being discharged and mingling with the public, jurors are permitted to impeach verdicts which they have rendered, it would open the door for tampering with jurors and would place it in the power of a dissatisfied or corrupt juror to destroy a verdict to which he had deliberately given his assent under sanction of an oath.
Id. at 175, 988 S.W.2d at 486-87 (quoting 75B Am. Jur. 2d, Trial § 1900 (1992)). In the case before us, a single juror filed an affidavit one week after the jury was discharged and attempted to explain that the jury’s verdict was mistakenly recorded. Although there is no evidence that appellant procured the affidavit in this case, the possibility of improper influence or motives is certainly increased where the affidavit is filed by only one juror, one week after the verdict was rendered. We also note that, in many of the cases from other jurisdictions cited by appellant, either the entire jury panel or more than one juror filed an affidavit attesting to the mistake.
Third, our recent holding in Machost v. Simkins, supra, while not directly on point, is similar enough that it may be cited for the proposition that Rule 606(b) bars juror testimony that attempts to explain a mistake in the verdict. In Machost, the plaintiff sought damages for injuries she suffered in an automobile accident. Liability was admitted by the defendant, and the plaintiff unquestionably incurred $10,000 in reasonable and necessary medical expenses. The jury returned a verdict for $2,000. The next day, the plaintiff filed a motion for a new trial accompanied by a juror affidavit. The affidavit asserted that the jury had assumed that the defendant’s liability for the $10,000 in medical bills had been resolved, and they therefore mistakenly awarded plaintiff only $2,000 for pain and suffering. We held that consideration of the juror affidavit would be improper because such affidavits should be considered only to show that the jury was subject to extraneous prejudicial information or an improper outside influence.
Finally, we believe that Arkansas law required appellant to poll the jury or otherwise attempt to correct the verdict before the jury was discharged. Our courts have adhered to an inviolate rule that corrections to a jury verdict must be made before the jury is dismissed. Arkansas Code Annotated section 16-64-119 (1987), provides:
(a) When the jury has agreed upon its verdict, they must be conducted into court, their names called by the clerk and the verdict rendered by their foreman.
(b) When the verdict is announced either party may require the jury to be polled, which is done by the clerk or court asking each juror if it is his verdict. If any one answers in the negative, the jury must again be sent out for further deliberation.
(c) The verdict shall be written, signed by the foreman, and read by the court or clerk to the jury, and the inquiry made whether it is their verdict.
(d)(1) If any juror disagrees, the jury must be sent out again.
(2) If no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case.
(Emphasis added.) This statute has been cited for the proposition that a trial court should not make substantive corrections to a jury verdict after the jury has been discharged. See Coran v. Keller, 295 Ark. 308, 748 S.W.2d 349 (1988).
Additionally, several Arkansas cases have held that the time to correct an irregularity or inconsistency in a jury verdict is prior to the discharge of the jury. See Spears v. Mills, 347 Ark. 932, 69 S.W.3d 407 (2002); Fisher v. Valco Farms, 328 Ark. 741, 945 S.W.2d 369 (1997); Wal-Mart Stores v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991); Center v. Johnson, 295 Ark. 522, 750 S.W.2d 396 (1988); see also Barnum v. State, 268 Ark. 141, 144, 594 S.W.2d 229, 231 (1980) (holding that a jury “may amend its verdict to conform to its finding” at any time “before they have separated and before the verdict has been entered of record and the jury discharged”). Spears v. Mills, supra, in particular contains several strong statements to the effect that corrections to a verdict must be made before the jury is discharged. In Spears, the jury was asked to determine what amount of damages the plaintiff sustained as the result of defendant’s repairs; the jury answered “0.” The attorneys declined to poll the jury, and the jury was discharged. Several minutes later, while the jurors were still in the courthouse, the foreman informed the bailiff that the jury may have misunderstood the damage interrogatory. The entire jury came back to the courtroom, was polled by the court, and ten members explained that the verdict read in court was not their verdict. The trial court then sent the jury out for further deliberations, and they returned with a $5,900 verdict. On appeal, our supreme court stated that “a review of this court’s cases on the subject demonstrates that it has only permitted the jury to correct or amend its verdict prior to the time it is discharged.” Id. at 939, 69 S.W.3d at 412. The court also acknowledged that there were
conflicting interests at stake when a verdict does not reflect the trae intention of the jury. On the one hand, there is the interest of the parties, as well as society in general, in having a verdict that is a trae reflection of the jury’s intention. On the other hand, there is the need for finality and for measures that ensure the sanctity of the jury and its deliberations. By requiring that any corrections or amendments be completed prior to the jury’s discharge, this court made it clear that the paramount consideration is that the jury be free from even the appearance of taint or outside influences.
Id. at 939-40, 69 S.W.3d at 412-13 (emphasis added). Finally, the court noted that it had never strayed from its holdings disallowing correction of a verdict after the jury’s discharge. The court stated:
The reason for this strict or absolute rule is to avoid even the appearance of any possible taint to the jury’s verdict. Thus, even though the trial court here found that the individual jurors had not discussed the matter with anyone other than fellow jurors, the fact that the jurors had been discharged and had left the presence and control of the court gives at least the appearance that they may have been influenced by outside pressures. Indeed, the trial court acknowledged this appearance of impropriety when it refused to impose the jury’s second verdict.
In sum, neither section 16-64-119 nor this court’s long-standing precedent permit the trial court to recall the jury after discharge and poll the individual jurors based on a claim that the jury misunderstood the instructions. Nor does Arkansas law allow the jury to correct or amend its verdict once it has been discharged from the case and left the presence and control of the court.
Id. at 941, 69 S.W.3d at 413-14.
Our supreme court has clearly expressed its adherence to a “strict and absolute” rule that a jury’s verdict may not be corrected after the jury has been discharged. Further, the court has unequivocally stated that the prevention of possible taint or undue influence on jurors supersedes a possible need to correct a verdict after the jury has been discharged.
In light of the foregoing, we conclude that Rule 606(b) prohibited consideration of the juror affidavit in this case and that the trial court was correct in refusing to amend the verdict.
We turn now to appellant’s alternative argument that a new trial should have been granted. Appellant cites two cases from our supreme court in which a new trial was ordered when the jury awarded punitive damages but no compensatory damages. In Takeya v. Didion, 294 Ark. 611, 745 S.W.2d 614 (1988), the appellant sued the appellee for battery, and the jury awarded her $75,000 in punitive damages but no compensatory damages. The supreme court held that a new trial should have been granted because the jury “obviously” decided that the appellee was guilty of battery and that the jury “did not know that if it awarded punitive damages without awarding compensatory damages the judgment would be set aside.” Id. at 614, 745 S.W.2d at 616. In Hale v. Ladd, 308 Ark. 567, 826 S.W.2d 244 (1992), the jury returned a verdict in favor of appellant on her outrage claim against appellee and awarded her $7,500 in punitive damages but no compensatory damages. The supreme court held that a new trial should have been granted and stated:
The jury expressly found for the plaintiff on the tort of outrage and reenforced that finding by an award of punitive damages. Thus we readily conclude, as did the jury, that the evidence supporting the claim of outrage clearly preponderates in favor of the plaintiff, Suzanne Hale. Her testimony that she sustained pecuniary as well as emotional injury attributable to the harassment was not refuted or even challenged.
Id. at 570, 826 S.W.2d at 246.
The case at bar contains strong similarities to Takeya and Hale. As in Hale, the jury expressly found in appellant’s favor on each count and “reenforced” those findings by an award of punitive damages. Further, like the jury in Takeya, this jury obviously found appellees guilty of the charged conduct and did not know that, if it awarded punitive damages without awarding compensatory damages, the judgment could be set aside. Appellees, however, argue that this issue should be governed by Olmstead v. Moody, 311 Ark. 163, 842 S.W.2d 26 (1992). There, the supreme court upheld the denial of a new trial even though the jury awarded the plaintiff $27,000 in punitive damages unaccompanied by a compensatory award. However, in that case, unlike the case at bar and unlike Hale and Takeya, the jury did not find the defendant totally at fault; it found that the plaintiff and the defendant were each fifty percent negligent. Thus, Olmstead is readily distinguishable because the jury in that case found the parties equally at fault and, under those circumstances, the plaintiff would not have been entitled to compensatory damages.
Appellees argue further that no new trial was warranted because the evidence justified a zero compensatory verdict. The trial court was persuaded by this argument and denied the new trial on the basis that the evidence “could have supported” a finding of zero compensatory damages. In cases where a new trial is requested due to an error in the amount of recovery, the trial court must determine whether a fair-minded juror could have reasonably fixed the award at the challenged amount. Machost v. Simkins, supra. When the issue appealed is primarily one of damages, the denial of a motion for a new trial will be reversed only if the trial judge’s ruling was a clear and manifest abuse of discretion. Pearson v. Henrickson, 336 Ark. 12, 983 S.W.2d 419 (1999).
In making their argument that the evidence supported a finding of zero compensatory damages, appellees point to the following: 1) some customers who breached their contracts paid appellant liquidated damages; 2) some customers who breached their contracts did so because of appellant’s poor service; 3) the calculations of appellant’s economic expert, Dr. Charles Venus, were called into question by appellees’ expert, Phillip Taylor. None of these points is well taken. Although some of appellant’s customers paid liquidated damages, those payments amounted to considerably less than the damages testified to by Dr. Venus. Further, Dr. Venus testified that he deducted the amount of liquidated damages received by appellant when he calculated appellant’s losses. In any event, on a tort claim such as intentional interference with contractual relations, a plaintiff may recover damages over and above what the breached contract contemplated. See generally Restatement (Second) of Torts § 774A, comment d (1979).
As for allegations of appellant’s poor service, ten customers testified to various service problems with appellant. However, the jury found that appellees intentionally interfered with appellant’s contracts and therefore obviously did not believe that all of appellant’s customers terminated their contracts solely because of poor service. Further, the testimony of ten customers regarding bad service does not necessarily support a finding of zero damages; appellant’s contracts were prematurely terminated by thirty-three companies, and appellant sustained further damage from appellees’ infringement on its franchises.
Finally, while Dr. Venus’s calculations were questioned by appellees’ expert Phillip Taylor, Taylor did not testify that appellant sustained zero damages; he testified that he disagreed with Venus’s manner of calculation and that Venus’s figures were “overstated.” Moreover, Taylor acknowledged that appellant’s volume of business had been reduced by $100,000 to $200,000 since appellees entered the market.
In light of the above, we reject the notion that a fair-minded juror could have awarded no compensatory damages after having found in favor of appellant on all counts. We therefore hold that the trial court abused its discretion in denying a new trial, and we reverse and remand on that basis.
Appellant asks us to award a new trial on damages only. This we cannot do. Even though the errors in this case pertain only to damages, a new trial must include both liability and damages issues. See Smith v. Walt Bennett Ford, 314 Ark. 591, 864 S.W.2d 817 (1993). Appellant acknowledges this authority but asks us to overrule it. However, the court of appeals may not overrule decisions made by the supreme court. See Superior Fed. Bank v. Mackey, 84 Ark. App. 1, 129 S.W.3d 324 (2003). Therefore, a new trial is awarded as to both liability and damages.
In light of our remand for a new trial, we do not find it necessary to address appellant’s remaining issues regarding nominal damages and attorney fees. The complexion of these issues will very likely change depending upon the findings máde and the damages awarded, if any, following a new trial. Therefore, any opinion we offer on these issues now would be purely advisory, and our appellate courts do not issue advisory opinions. See Allison v. Lee County Election Comm’n, 359 Ark. 388, 198 S.W.3d 113 (2004).
Reversed and remanded.
Pittman and Vaught, JJ., agree.
Appellant attempted to certify this case to the supreme court, but the supreme court denied appellant’s motion.
The City of Rogers joined appellant as a plaintiff in the lawsuit and sought an injunction prohibiting appellees from violating the city’s exclusive franchise ordinance. That injunction was eventually granted by the trial court but is not at issue in this appeal.
Appellees filed a notice of cross-appeal, but no cross-appeal was pursued.
But cf. Chalmers v. City of Chicago, 92 Ill.App. 3d 54, 415 N.E.2d 508 (1980), and the cases cited therein, holding that juror affidavits -will not be considered to explain errors in a verdict form.
Appellant contends that the jury’s verdict in this case was not “irregular” or “inconsistent.” We do not believe that those terms should be given too fine a definition. Certainly it is irregular or inconsistent for a jury to award punitive damages unaccompanied by a compensatory award; further, such an irregularity or inconsistency would be obvious from the face of the verdict and capable of correction before the jury was discharged. | [
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Andree Layton Roaf, Judge.
Appellant Paul Slaton appeals the order of the Pope County Circuit Court finding a joint venture and dividing the business inventory between appellant and appellee Karen Jones, and imposing a constructive trust on the real property from which the businesses were conducted. Slaton argues that the trial court erred in finding a partnership between the parties and in imposing a constructive trust on the real property. We find no error and affirm.
Appellant and appellee cohabited for approximately twenty-six years but never married. During that time, the parties operated separate businesses out of the same location, known as the Emporium. The relationship ended when appellant changed the locks and asked appellee to leave. Appellee filed suit alleging conversion and seeking damages, dissolution of a partnership, replevin of her personal property, and the imposition of a constructive trust on the real property, titled in appellant’s name, from which the businesses were conducted. Appellant failed to answer the complaint.
Appellee testified that she and appellant met and went into business in the mid-1970s. She stated that appellant started his business, Paul’s Rare Coins and Books, as a small coin shop in the corner of another retail store. She stated that, after appellant moved to another location and changed the business name to Emporium, she started buying and selling jewelry through appellant’s business, before she technically started her own business, Plantation Antiques & Jewelry (Plantation), in 1987. She stated that she received the money from the jewelry sales while appellant received the money from his items. She stated that the parties were not partners in business and that she always wanted everything to be separate. Appellee denied that money from Emporium was used to start her business. She stated that the 1987 inventory of $33,000 came from her previous sales, which were then applied back into the business. Appellee stated that she had her own money and occasionally received some from her father but that appellant never gave her any money.
Appellee testified that, for the first two or three years the parties were together, money for bills came from the sale of books and then she began depositing money into Emporium’s purchase account to cover the bills. She stated that she paid the bills, although appellant may have paid a few bills. She described the account as a joint account. She stated that, if there was not enough money in the account, she deposited money from jewelry she sold. She also testified that she made jewelry purchases from that account in order to build appellant’s standing in the jewelry trade. Appellee also admitted that appellant may have deposited funds from items he sold into this account but that this was not usually done because appellant had a separate account. She said that, after book sales declined, approximately ten years ago, there were not enough book sales to cover expenses and that she had to contribute funds to cover the cost of the books.
Appellee testified that, some years prior to trial, she discovered that, although she had believed the parties were purchasing the building together, appellant had actually purchased it and had it titled solely in his name. She stated further that, at that time, both parties were making the payments on the building.
Concerning the inventory in the building, appellee opined that she owned 95% of the jewelry and 70% of the antique furniture. She admitted that, although she owned a few sets of coins, approximately 95% to 98% of them belonged to appellant.
Mike Summers, a certified public accountant, testified that he had prepared appellee’s tax returns for several years and that her returns included a schedule showing that Plantation Antiques & Jewelry was operated as a sole proprietorship. Summers stated that, if more than one person had owned the business, appellee would have filed partnership tax returns.
Patty Austin testified that she worked for the parties for approximately twenty years before she became employed as a clerk at another store. She testified that, although the general public assumed that the parties’ businesses were owned together, they were actually operated as separate entities. Austin opined that appellee owned 70% of the merchandise that included the furniture and jewelry and that appellant owned 30%, and that this apportionment was maintained over the entire time of her employment. Austin stated that 85% of the jewelry belonged to appellee but that appellant limited his sales to coins, firearms, Civil War relics, and war relics in general. She stated that, while appellant had some jewelry and nice antique pieces, the coins were his mainstays. She also stated that appellee’s jewelry business brought in the most money.
Austin testified that the parties placed different-colored tags on the merchandise to denote which item belonged to whom and that each party kept the money from the sales of his or her inventory. She testified that the parties maintained separate accounts. She stated that there was one cash register but that, if a specific item belonging to one party or the other was sold, the money was not placed in the register but was set aside and disbursed to the proper party. She stated that the money from the sales of books and magazines was placed into the cash register.
Austin testified that appellee wrote checks from and handled the books for an account that contained only appellant’s money. She also testified that appellee paid the utility bills mostly out of her separate account. She stated that appellant made arrangements for the purchase of the building several years prior to trial but that appellee usually made the monthly mortgage payment from the Emporium account.
Appellant stated that he owned a business known as the Emporium that soldjewelry, rare coins, and small antiques. He said that he started the business under the name of Paul’s Rare Coins and Books, which changed locations as it grew. He described the jewelry as antique jewelry, coin rings, and diamond rings that he bought at gun or coin shows and at flea markets. Appellant stated that appellee oyvned only a few items of jewelry that she brought with her from California. He denied knowing that appellee had been selling jewelry for which she claimed ownership, stating that he had purchased all of the jewelry inventory. Appellant stated that, although appellee did have some minimal expertise in jewelry, hers was not as great as his own.
According to appellant, the parties started Plantation together using the money from Emporium. He testified that the assets were shifted from Emporium to Plantation but that he was the owner of 85% to 90% of the assets because the purchase money came from items he owned prior to the relationship between the parties. He later stated that 95% of the inventory was his and that he had provided all of the funds to purchase the antiques and furniture, the jewelry, and the coins. He denied that appellee used money from her personal account to pay bills on behalf of the store and stated that some of the profits from Emporium were used to pay bills. He denied that appellee had her separate business and asserted that he totally owned Plantation. He stated that, on the advice of a tax attorney, he and appellee had verbally agreed that she would claim Plantation for tax purposes.
Concerning the purchase of the real estate, appellant testified that he never told appellee that he would be the sole purchaser. He said that he told her that “we were purchasing it . . . and we were not going to be paying rent any more.” He admitted that appellee was a party to the negotiations for the purchase of the real estate. He stated that he made all of the payments from his funds and that appellee did not make any payments from her funds. He stated that the money for the improvements to the real estate came from Emporium’s profits, his inheritances, and from the proceeds of the sale of a jointly-owned home in Atkins. Appellant also stated that Emporium and the business property were solely in his name because of the parties’ receiving legal notices from the City of Atkins regarding acts of vandalism on another piece of property.
The trial court found that the parties were engaged in a joint venture by operating separate businesses from a common location and ordered the inventory located at the business sold and the proceeds divided unequally, 70% to appellee and 30% to appellant. The court also ordered the imposition of a constructive trust on the business real property, with the real property to be sold and the proceeds divided equally. The trial court also awarded each party his or her separate business and certain specified personal property. This appeal followed.
Appellant raises two points on appeal: that the trial court erred in the distribution of the partnership property and that the trial court erred in imposing a constructive trust on the real property.
In reviewing a circuit court’s exercise of its equity jurisdiction, we consider the evidence de novo, but we will not reverse a trial judge’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Ward v. Davis, 298 Ark. 48, 765 S.W.2d 4 (1989). We give due deference to the superior position of the trial judge to view and judge the credibility of the witnesses. Arkansas Presbytery v. Hudson, 344 Ark. 332, 40 S.W.3d 301 (2001). A finding is clearly erroneous when, even though there is evidence to support it, the appellate court is left with the definite and firm conviction that a mistake has been made. Bendinger v. Marshalltown Trowell Co., 338 Ark. 410, 994 S.W.2d 468 (1999).
For his first point, appellant argues that the trial court erred in the division of the partnership property. Appellant’s argument is that appellee failed to prove the elements of a partnership set out in the Uniform Partnership Act, codified at Ark. Code Ann. §§ 4-42-201, -202 (Repl. 2001), and, therefore, she cannot claim the real property as a partnership asset. However, the trial court did not find that a partnership existed between the parties; rather, the trial court found that the parties operated separate businesses in a single location in a joint venture. We first note that the supreme court has held that what is now Ark. Code Ann. § 4-42-202 is not controlling in determining whether there is a joint venture. See Gammill v. Gammill, 256 Ark. 671, 510 S.W.2d 66 (1974). To find that a joint enterprise existed, Arkansas law requires only a showing of (1) a common object and purpose of the undertaking and (2) an equal right to direct and govern the movements and conduct of each other in respect to the common object and purpose of the undertaking. Lovell v. Brock, 330 Ark. 206, 952 S.W.2d 161 (1997); RLI Ins. Co. v. Coe, 306 Ark. 337, 813 S.W.2d 783 (1991). The existence of a joint enterprise is ordinarily a question for the fact-finder. RLI Ins. Co. v. Coe, supra.
Appellant’s main complaint appears to be that the finding of a joint venture allowed appellee to be awarded an interest in the real property. It does not appear that he is otherwise challenging the division of the personal property or the fact that it was an unequal division in favor of appellee. Appellant’s brief discusses the requirements for a partnership but does not discuss the distinctions between a partnership and a joint venture. A partnership is defined as “an association of two (2) or more persons to carry on as co-owners a business for profit.” Ark. Code. Ann. § 4-42-201(1) (Repl. 2001) (emphasis added). The primary test to determine whether there was a partnership between the parties is their actual intent to form and operate a partnership. Boeckmann v. Mitchell, 322 Ark. 198, 909 S.W.2d 308 (1995). Here, appellee testified that she did not intend to become business partners with appellant.
A joint venture exists when there is a special combination of two or more persons jointly seeking a profit in some specific venture without actual partnership or corporate designation. Fulton v. Fulton, 528 S.W.2d 146 (Mo. Ct. App. 1975). It has also been defined as “an association of persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skill, and knowledge.” Id. at 155 (citation omitted). A joint venture is a relationship founded entirely upon contract, and, when a contract exists, that document will be controlling as to what was the parties’ intention. McDermott v. Strauss, 283 Ark. 444, 678 S.W.2d 334 (1984). Joint ventures and partnerships are governed by the same basic legal principles, Denny v. Guyton, 327 Mo. 1030, 40 S.W.2d 562 (1931); Boles v. Akers, 116 Okla. 266, 244 P. 182 (1925), but there are important differences, including the ad hoc nature of joint ventures, or their concern with a single transaction or isolated enterprise, plus the fact that loss-sharing is not as essential to joint ventures as it may be for partnerships. See Hults v. Tillman, 480 So. 2d 1134 (Miss. 1985). In National Bank of Commerce v. HCA Health Services of Midwest, Inc., 304 Ark. 55, 800 S.W.2d 694 (1990), the supreme court, citing State ex rel. Attorney General v. Gus Blass Co., 193 Ark. 1159, 105 S.W.2d 853 (1937), stated that a joint venture must have the elements of a partnership. Earlier, the supreme court had clarified its holding in Gus Blass by stating:
We did not say in the Gus Blass Co. case that a joint venture must contain every element of a partnership, for then there would be no difference between the two. What we said was that a joint adventure is “in the nature of a partnership ofalimited character,” and we then examined the agreement in question to determine whether it was sufficiently similar to a partnership to constitute a joint adventure.
Johnson v. Lion Oil Co., 216 Ark. 736, 739, 227 S.W.2d 162, 164 (1950); see also Texas Oil & Gas Corp. v. Hawkins Oil & Gas, Inc., 282 Ark. 268, 668 S.W.2d 16 (1984).
In Tackett v. Gilmer, 254 Ark. 689, 496 S.W.2d 368 (1973), the supreme court added a third element for the determination of whether a business enterprise constituted a joint venture, an expressed or implied understanding that the participants are to share in the profits or losses of the venture. See also First Nat’l Bank v. Adair, 42 Ark. App. 84, 854 S.W.2d 358 (1993) (citing Tackett, supra). However, the parties’ sharing of the net profits of an undertaking is also prima facie evidence that they were partners, unless the money received was paid as wages. Ark. Code Ann. § 4-42-202(4)(b) (Repl. 2001). The buying of chattels on joint account for sale at a profit is a common form of joint venture. Wiseman v. Graham, 178 Ark. 458, 10 S.W.2d 892 (1928); Lobsitz v. E. Lissberger Co., 168 App. Div. 840, 154 N.Y.S. 556 (1915); C.C. Roddy, Inc. v. Carlisle, 391 S.W.2d 765, 768 (Tex. Ct. Civ. App. 1965).
In the present case, there was testimony that both parties bought and sold merchandise for the businesses and that both parties contributed funds for the payment of their common business expenses. Appellant relies on testimony by appellee, given at the hearing for temporary injunctive relief, prior to the trial on the merits, in which she stated that she does not know if she had an interest in appellant’s business. He takes appellee’s statement out of context by not indicating that it refers to the time period of 1975 or 1976 instead of when appellee started her own business in the late 1980s. This point is essentially a challenge to the trial court’s credibility determinations, and we cannot say that the trial court’s finding of a joint venture was clearly erroneous. We affirm on this point.
In appellant’s second point, he argues that the trial court erred in imposing a constructive trust on the real property from which the parties operated their businesses. The argument is essentially that the trial court erred in finding that appellee had presented sufficient facts to justify the imposition of a constructive trust.
It is well established that a constructive trust arises contrary to intention and in invitum (against an unwilling party) against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy. See Scollard v. Scollard, 329 Ark. 83, 947 S.W.2d 345 (1997). In Bramlett v. Selman, 268 Ark. 457, 597 S.W.2d 80 (1980), our supreme court held that persons engaging in non-marital involvements may be determined to occupy a confidential relationship sufficient to support a constructive trust where the other elements are present.
In Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996), the supreme court set forth the requirements necessary to impose a constructive trust:
To impose a constructive trust, there must be full, clear, and convincing evidence leaving no doubt with respect to the necessary facts, and the burden is especially great when a tide to real estate is sought to be overturned by parol evidence. The test on review is not whether the court is convinced that there is clear and convincing evidence to support the chancellor’s finding but whether it can say the chancellor’s finding is clearly erroneous, and we defer to the superior position of the chancellor to evaluate the evidence. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.
Id. at 333, 925 S.W.2d at 789 (citations omitted). The trial court in this case based its imposition of the constructive tmst on its findings that the parties were in a confidential relationship; that appellee believed that the parties were purchasing the property together; that appellee paid the mortgage payments and appellant did not deny this fact; and that the proceeds from the sale of joint property were used to purchase the property. Appellant does not dispute the fact that the parties had a confidential relationship. He does point to evidence that he believes justifies not imposing a constructive trust. He also points to what he sees as inconsistencies in appellee’s testimony. However, the trial judge specifically stated that its findings on the constructive trust issue were based upon the credibility of the witnesses, and we are bound by those determinations unless we find them to be clearly erroneous. Id. We cannot say that they are clearly erroneous based upon the record before us.
Affirmed.
Griffen and Neal, JJ., agree.
Appellant did deny that appellee made the mortgage payments on the business property, stating that he made all of the payments from his monies and that appellee did not make any payments from her funds. | [
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James R. Cooper, Judge.
The appellant in this criminal case was a Louisiana resident who was appointed executor of his deceased father’s Arkansas estate on January 27, 1988. Follow ing his appointment as personal representative, the appellant moved the estate’s tangible personal property to Louisiana and transferred the liquid assets to Louisiana financial institutions. On May 15, 1989, the appellant filed an accounting with the Arkansas Probate Court. On May 24, 1989, the appellant was removed as executor, was ordered to make a more complete accounting to the court or to his brother acting as substitute executor, and he was ordered to deliver the tangible personal property to his brother, the substitute executor. He did not comply with these orders and was thereafter charged with two counts of theft of property pursuant to Ark. Code Ann. § 5-36-103 (1987). A jury convicted him on both counts, fining him a total of $30,000.00 and sentencing him to twenty years in the Arkansas Department of Correction. From that conviction, comes this appeal.
The appellant advances two arguments on appeal. First, he argues that the trial court erred in failing to grant his motion to dismiss because the appellee failed to prove that the State of Arkansas had jurisdiction over the alleged crimes. Second, he argues that the trial court erred in failing to grant his motion for a mistrial. We do not address the appellant’s second argument because our consideration of his first argument leads us to conclude that the case must be reversed and dismissed.
As to the appellant’s argument that the State of Arkansas did not have jurisdiction over the alleged crimes, we recognize that the State is presumed to have jurisdiction over the cases it entertains, Holt v. State, 281 Ark. 210, 662 S.W.2d 882 (1984); Glisson v. State, 286 Ark. 329, 334, 692 S.W.2d 227 (1985); (supp. op. on reh’g denied, 286 Ark. 329, 695 S.W.2d 121 (1985)), and that pursuant to Ark. Code Ann. § 5-1-111(b) (1987), the State is not required to prove jurisdiction unless evidence is admitted which affirmatively shows that the court lacks jurisdiction. In this case we find that the evidence shows that the appellant, acting as executor, transferred liquid assets and personal property from Arkansas to Louisiana. He subsequently removed the money from the Louisiana banks and has apparently retained those funds as well as the personal property. The location of these assets remains unknown. The appellant’s retention of the property occurred after he was removed as executor and was done in direct opposition to the Arkansas court order removing him as executor; however, these acts occurred in Louisiana. This evidence is sufficient to affirmatively show that Arkansas courts did not have jurisdiction over the crimes charged and for this reason, the State was required to prove jurisdiction. See Ark. Code Ann. § 5-1-111 (a)(2) (1987); see also Gardner v. State, 263 Ark. 739, 599 S.W.2d 74 (1978), cert. denied, 440 U.S. 911 (1979). It is not essential to a prosecution in Arkansas that all elements of the crime charged take place in Arkansas; jurisdiction can lie in this State if at least one element of the charged offense occurred in Arkansas. See Gardner, supra. In this case, the appellant was charged with two violations of Ark. Code Ann. § 5-36-103(a)(1) (1987), which provides:
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.
The State argued that Arkansas had jurisdiction over the crime maintaining that the appellant exercised unauthorized control over the property in Arkansas. When reviewing the evidence on a jurisdictional question, we need only determine whether there is substantial evidence to support the finding of jurisdiction. Gardner, supra. Substantial evidence is evidence which induces the mind to go beyond mere suspicion or conjecture, and is of sufficient force and character to compel a conclusion one way or the other with reasonable certainty. Dillard v. State, 20 Ark. App. 35, 723 S.W.2d 373 (1973).
In support of its contention that the appellant exercised unauthorized control over the property in Arkansas, the State cites Ark. Code Ann. § 28-49-116 (1987), which provides:
A personal representative may, and when ordered by the court shall, deposit, as a fiduciary, the funds of the estate in a bank or banks of this state, as a general deposit, either in a checking account or a savings account. . . .
This statute neither specifically authorizes nor prohibits an executor from depositing the funds of an estate in an out-of-State bank. The evidence the State offers as proof of unauthorized control shows only that the appellant deposited the liquid assets of the estate in two Louisiana financial institutions on February 2, 1988, in the name of the estate after the initial transfer from Arkansas. Under these circumstances, however, we recognize that an executor derives his powers from the will, Bacharach v. Spriggs, 173 Ark. 250, 292 S.W. 150 (1927); see also Ludlow v. Flournoy, 34 Ark. 451 (1879), and in this case without benefit of the will, we find that, under the statute alone, the proof does not induce the mind to go beyond mere suspicion or conjecture in order to conclude that the appellant made an unauthorized transfer of the estate’s funds to Louisiana.
As to the argument that the trial court had jurisdiction over the theft charge with regard to the personal property, we note that the State does not specifically address this issue; however, we find applicable authority in Ark. Code Ann. § 28-49-101(a) (1987), which provides:
A personal representative shall have the right to, and shall, take possession of all of the personal property of the estate of the decedent, subject to the rights of dower and statutory allowances of the widow or minor children, if any.
In this case, the evidence regarding the appellant’s control over the personal property consisted of the testimony of the complaining witness, who is also the appellant’s brother and the newly appointed substitute executor. He testified that most of the items of personal property listed on the estate inventory were no longer in Arkansas as of the date of the trial; that he could not recall any conversations concerning the distribution of the items while the appellant was acting as the executor; and that since his appointment as substitute executor the appellant has failed to comply with a court order to turn over the property. Another of the appellant’s brothers testified that he, like the appellant, was a Louisiana resident and that the appellant had asked him to help move the personal property to Louisiana but that he was unable to help. As we have previously noted, the record does not contain a copy of the will which might have restricted the appellant’s authority and, in light of the statute specifically granting a personal representative the right to take possession of all of the personal property, we find no substantial evidence to support a. finding of jurisdiction for the theft of the personal property as we see no element of the crime having been committed in Arkansas. We therefore reverse and dismiss.
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John E. Jennings, Judge.
At about 1:30 a.m. on January 29, 1989, Johnny Bush was arrested for public intoxication and placed in the “drunk tank” at the Little Rock jail. At approximately 2:15 a.m. Bush tied one of his coat sleeves around his neck and attempted to tie the other to a door bar and said he was going to kill himself. The shift supervisor, Sergeant Barnard, took away Bush’s coat and long-sleeved shirt and directed jailers to keep a close eye on Bush. When Sergeant Steve Young, the appellee here, relieved Sergeant Barnard at approximately 7:00 a.m., Young was told of Bush’s conduct.
At 10:00 a.m. Bush was released from jail but returned in approximately fifteen minutes and told Young that he wanted to go to the state hospital because he was thinking of suicide. Young arranged transportation and Bush was taken to the state hospital. Less than four hours later Bush had been released from the state hospital, gotten drunk again, and was again arrested for public intoxication. Sergeant Young placed Bush in the “drunk tank” alone and did not order that he be kept under a “close watch.” Sergeant Herbert relieved Young as shift supervisor at 3:00 p.m. and was not told of Bush’s earlier suicidal statements. One hour later Bush was found dead in his cell, hanged with his shirt sleeve.
The chief of police suspended Young for ten days for “neglect of duty” in failing to inform the incoming supervisor of Bush’s possible suicidal tendencies. The suspension was affirmed by the Little Rock Civil Service Commission. On appeal to circuit court, the circuit judge took additional testimony and found that, while Young’s conduct did constitute a neglect of duty, an oral reprimand should be the punishment imposed. Now, on appeal to this court, appellant contends that the trial court abused its discretion in reducing the punishment to a mere oral reprimand. We find no reversible error and affirm.
In support of its argument, the city relies on several cases from other jurisdictions. For instance, in City of Newark v. Massey, 93 N.J. Super. 317, 225 A.2d 723 (1967), the Superior Court of New Jersey held that the civil service commission ought not to disturb the penalty imposed by the chief of police absent a clear abuse of discretion. In Ramirez v. Civil Service Commission, 42 Colo. App. 383, 594 P.2d 1067 (1979), the Colorado Court of Appeals held that the district court ought not to disturb the penalty imposed by the civil service commission, absent a gross abuse of discretion. The underlying rationale for such holdings, as appellant contends, was set forth in City of Richmond v. Howell, 448 S.W.2d 662 (Ky. 1969):
In the conduct and management of a police department, the city, like any other business, by necessity must have rules and regulations and must have a means of enforcing them. The city officials are in better position to perform this function than are the courts. Certainly the courts would not relish the notion of acting as disciplinarian of the numerous police officers throughout the Commonwealth. Sound public policy requires that the matter of punishment and discipline of the police officer be left to his employer — the legislative body in the present instance.
While reasons of policy may support appellant’s argument, the argument is foreclosed by the supreme court’s decision in City of Little Rock v. Hall, 249 Ark. 337, 459 S.W.2d 119 (1970). There, a police officer had been discharged by the chief of police for striking a suspect. The civil service commission upheld the discharge. On appeal to circuit court, the trial judge agreed that the officer had violated regulations, but reduced the punishment to thirty days suspension. The supreme court said, “We have no hesitancy in concluding that the circuit court had jurisdiction to modify the punishment fixed by the civil service commission, notwithstanding the circuit court agreed with the commission that the officer violated the regulations.” The court held that the appeal statute (now Ark. Code Ann. § 14-51-308 (1987)) did not specifically restrict the power of the circuit court relative to determining guilt or punishment. The court held that proceedings in circuit court in such cases are de novo and that the supreme court’s standard of review is whether the circuit court’s verdict or finding of fact is supported by substantial evidence. Hall, 249 Ark. 338. Today, however, our standard of review in such cases is whether the circuit court’s findings were clearly against the preponderance of the evidence or whether its decision was clearly erroneous. See Dalton v. City of Russellville, 290 Ark. 603, 720 S.W.2d 918 (1986); Ark. R. Civ. P. 52.
In Hall the supreme court noted that the circuit judge found that the officer had an exemplary record of service in his more than eight years with the Little Rock Police Department and that this was an adequate basis upon which the circuit court might reduce the punishment.
In the case at bar the circuit judge made the following specific findings: (1) that the portion of the police department’s policy manual relating to the treatment of prisoners with mental or emotional problems was vague and confusing; (2) that the city failed to prove that there were any relevant unwritten policies which were applicable to the situation; (3) that Young was justified to some degree in relying on the findings of the Arkansas State Hospital; and (4) that Young’s record throughout his seventeen years with the department was exemplary. We cannot say that any of these findings is clearly against the preponderance of the evidence, nor can we say the circuit court’s decision to reduce the ten days suspension to a reprimand was clearly erroneous.
Affirmed.
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Melvin Mayfield, Judge.
Donna’s Bail Bonds, Inc. appeals from a bail bond forfeiture and judgment in the amount of $50,000.00 entered against appellant as surety on the bond. It is argued the bond was taken without authority and is therefore void and unenforceable. We agree.
The record shows that a hearing was held on September 21, 1989, in the Seventh Judicial Circuit Court on the request of Chris Zulpo for release on bond. Zulpo’s attorney told the court that Zulpo had been tried and convicted of kidnapping, that his conviction was affirmed by the Arkansas Supreme Court, and he was confined in the Arkansas Department of Correction. Zulpo’s attorney also told the court that Zulpo, on the order of another judge, had been released to the sheriff of Saline County for a hearing on a Rule 37 petition, and appellant was requesting that he be released on bond pending the hearing. The court admitted Zulpo to bail in the amount of $50,000.00, over the objection of the deputy prosecuting attorney who was present at the hearing.
On October 4, 1989, the state filed a motion asking that the trial court “immediately revoke the bond” which had been made by Zulpo because “the Court did not have the authority to place the defendant on bail,” citing Deason v. State, 263 Ark. 56, 62, 562 S.W.2d 79, 82 (1978). Zulpo’s attorney filed a response, but on October 9, 1989, the trial court entered an order granting the state’s motion for the reason that “the Court did not have the authority to place the defendant on bail.” The Deason case was cited as authority.
On October 19,1989, the trial court entered an order stating the bond was forfeited because “on the 17th day of October, 1989 . . . the Defendant, CHRIS ZULPO, being called at the bar of this Court as required by law, came not but made default.” On October 27, appellant filed an answer asking for a hearing and alleging that the bond forfeiture should be set aside on the basis that the bond had been adjudicated to be illegal and there could not be a forfeiture of an illegal bond.
At a hearing held on February 13, 1990, appellant argued that a bond executed without authority was void and that there was a question as to whether the petition for Rule 37 was properly before the court as “no one ever got permission from the Supreme Court under Rule 37.2.” After hearing arguments of counsel, the trial judge stated:
Mr. Zulpo was properly before this court and the jurisdiction of the court to act on his petition is one question. The authority of the court to set a bail bond is before the court is another question and that bond was set, the amount of the bond was set, bond was entered into by the bondsman and the court rejects the argument that the bond is unenforceable and that the bail cannot be held liable for it as well as the surety.
On February 15,1990, the trial court entered an order forfeiting the bond and granting judgment against the appellant as surety in the sum of $50,000.00.
In support of its contention on appeal, appellant cites Deason v. State, supra, which held that Ark. Stat. Ann. § 43-2714 [now Ark. Code Ann. § 16-91-109 (1987)] provided for the defendant’s right to bail on appeal but not on collateral attack. The opinion in Deason also relied upon Ark. R. Crim. P. 36.13. That case, like the present case, involved a question of whether a defendant who has been convicted and committed to prison is permitted bail while his Rule 37 petition is pending. Therefore, the Deason case is relied upon by the appellant in this case for the proposition that a defendant is not entitled to bail while making a collateral attack on his conviction. Moreover, the appellant points to Ark. R. Crim. P. 37.1 (which is conceded to have been in effect when Zulpo was convicted and sentenced) and argues that only a defendant who has not appealed his conviction to the Arkansas Supreme Court or Court of Appeals may file in the trial court a Rule 37 attack on his conviction of sentence. Otherwise, it is argued, Rule 37.2 requires that a defendant must secure prior permission from the supreme court before such an attack can be filed in the trial court. Thus, for this reason also, the appellant contends the trial court did not have authority to grant bail to Zulpo while he was out of prison for the purpose of his Rule 37 hearing.
The second prong of appellant’s argument is that a bail bond taken without authority is void and unenforceable against the surety on the bond. Appellant cites the case of United States v. Hudson, 65 F. 68 (W.D. Ark. 1894), where Judge Parker held that a bail bond to be effective and binding on the principal and sureties must be valid. The opinion then states that for a bond to be valid it must (1) be taken by competent legal authority, (2) be in correct legal form, and (3) have sureties that are sufficient. Mr. Justice White, Associate Justice of the United States Supreme Court, had issued an order admitting the defendant to bail upon furnishing bond in the amount of $5,000.00 approved by the district judge; however, District Judge Parker held that Justice White was “without authority of law” to make the order for bail. On the point of the liability of sureties on bail bonds, Judge Parker quoted with approval the following language from another case:
They are liable in any case only upon the ground that they enter into a recognizance ordered by a tribunal having authority to act in the premises.
65 F. at 73. Among the many cases that Judge Parker cited in support of the above statement are Cooper v. State, 23 Ark. 278 (1861), and Blevins v. State, 31 Ark. 53 (1876). In Cooper, the court said that “where a recognizance or bail bond is taken without authority it is void,” and in Blevins, the court held that a bond taken by the sheriff of Pope County who arrested a man in Conway County was a nullity because the Pope County sheriff had no authority in Conway County. The Cooper case was cited with approval in Thomm v. State, 35 Ark. 327 (1880), and the Blevins case was cited with approval in Littleton v. State, 46 Ark. 413 (1885).
The Hudson, Cooper, Blevins and Thomm cases are cited in an Annotation, Liability of Surety on Bail Bond Taken Without Authority, 27 A.L.R. 4th 246 (1984). The annotation makes the following summary pertinent to the issues under consideration in the present case.
A defense to the forfeiture of a bail bond occasionally raised by a surety seeking to avoid liability on that bond is that the person taking or requiring the bond was without authority to do so, and therefore that the bond is void and unenforceable. Generally, the courts have held that under such circumstances, the surety is not liable on the bond as a statutory obligation.
Id. at 248. The cases cited in appellant’s brief that are cited in the above A.L.R. annotation are cited in support of the statement from the annotation quoted above. Five federal cases and cases from thirty-one states are also cited in support of the statement. The case preceding the annotation is People v. Wood, 101 Ill. App. 3d 648, 428 N.E.2d 691 (1981). In that case the trial court entered an order forfeiting a defendant’s bail bond and entered a judgment against the defendant’s father who had signed as surety on the bond. On appeal, it was held that the trial court had attempted to release the defendant on his own recognizance while at the same time requiring the defendant’s father to sign a bail bond as surety. The appellate court held that there was no authority for taking or requiring a surety where the defendant is released on his own recognizance. The court said: “A bail bond taken without authority is a nullity and hence is void, and the surety on such a bond is not bound by the subsequent forfeiture of the bond.” An Arizona case cited in support of the above statement from the A.L.R. annotation states:
The overwhelming weight of authority throughout the country is to the effect that a bail bond in a criminal case which is void as a statutory obligation, because taken without authority, is void for all purposes.
State v. Swinburne, 121 Ariz. 404, 590 P.2d 943 (Ariz. App. 1979). See also 8 Am. Jur. 2d Bail and Recognizance § 102 (1980).
It seems clear to us that the trial court in the present case was not authorized to admit Chris Zulpo to bail during his release by the Department of Correction to the Saline County Sheriff for a hearing on a Rule 37 petition. Moreover, the record shows that the defendant had appealed his conviction to the Arkansas Supreme Court and does not show that the supreme court had granted permission for the Saline Circuit Court to hear Zulpo’s Rule 37 petition; therefore, it appears that the hearing was not authorized under Ark. R. Crim. P. 37.2. If for either reason the Saline Circuit Court was not authorized to admit Zulpo to bail, the weight of authority in the United States, as well as in Arkansas, holds that a bail bond taken without authority is void and the surety on such a bond is not liable.
The state argues that there is no order in the record stating that Zulpo was released for a Rule 37 hearing, and suggests that Zulpo might have filed a petition for writ of error coram nobis or a petition to correct an illegal sentence and could have been released for a hearing on either of them, and such hearing could be held without prior approval by the supreme court. This argument ignores two points. One, the state does not cite authority which holds that the circuit court had authority to admit Zulpo to bail even if a hearing was to be held on either of the collateral attacks suggested by the state. Two, the defense attorney, the prosecuting attorney, and the trial judge all stated orally and in writing that the reason for Zulpo’s release from prison was to attend a Rule 37 hearing in Saline County. We think the record is so clear on this point that it is simply not open to question.
The state also makes the argument that the circuit court had jurisdiction to hear evidence to determine whether it had jurisdiction to grant Zulpo relief of any kind, and therefore it had personal jurisdiction over Zulpo and authority to set bail pending the hearing. This appears to be the position taken by the trial court as indicated by its statement which we quoted above. The problem with this view is that we are cited no authority that allows the trial court to admit Zulpo to bail even if we accept the premise on which the view is based. The hearing is still a collateral attack on Zulpo’s conviction, and we are cited no authority that allows a trial court to bring a convicted felon out of prison and admit him to bail while he makes a collateral attack on his conviction.
A third argument, briefly mentioned by the state, is that viewed from a purely contractual vantage point, the appellant got what it bargained for and collected a fee from Zulpo for becoming surety on his bond and should be held to the contract it made. This argument, aside from jurisdictional and public policy considerations, has been rejected by most courts. In the A.L.R. annotation referred to above, it is stated:
Efforts to hold the surety liable on a bail bond taken without authority as a common-law obligation have also, as a general rule, failed. Courts considering this proposition have generally reasoned that the consideration for the bond in the form of the release of the principal, which might be sufficient to find a similar obligation valid in a civil matter, is not a basis for enforcement of the surety’s obligation on an invalid bond. . . . This is not the universal view, however, as in at least two jurisdictions, the courts have found sufficient consideration to support the bond and therefore have held that the bond is valid as a common-law or voluntary obligation on the part of the surety.
27 A.L.R.2d at 248-49. Fourteen states and a federal case are cited as supporting the above statement. Only Georgia and Iowa are listed as jurisdictions which have held that bail bonds approved by courts without authority are nevertheless valid as a contractual or voluntary obligation. We think the majority view is the better one.
Finally, in addition to what we have said, the overriding problem with holding the appellant liable as surety on the bail bond in this case is the state’s motion asking the trial court to revoke the bond because it “did not have the authority to place the defendant on bail,” and the trial court’s finding that it “did not have the authority to place the defendant on bail” and its order revoking the defendant’s bond. Faced with this adjudication, we feel compelled to hold that the surety on Zulpo’s unauthorized — or illegal — bond is not liable.
The judgment appealed from is reversed and the proceedings against the appellant are dismissed.
Rogers and Danielson, JJ., agree. | [
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Melvin Mayfield, Judge.
Appellant Washington County Farmers Mutual Fire Insurance Company appeals from a jury verdict finding appellees entitled to recover $7,227.00 under an insurance policy.
On August 6,1987, the appellant issued a policy insuring the appellees’ dwelling and their household and personal effects against fire and other named perils. The policy defined “household and personal effects” as follows:
(2) HOUSEHOLD AND PERSONAL EFFECTS usual and incidental to the occupancy of the premises as a dwelling (but excluding accounts, bills, currency, deeds, abstracts, evidence of debt, money, securities, diamonds, antiques, motor vehicles, aircraft, radio and television antenna and masts, windchargers, citizen band radios, scanners, lawn mowers, animals and pets, outdoor equipment, fences, trees, shrubs, plants and lawns) belonging to the insured, or at the option of the insured, belonging to the members of his household, all while on the premises herein described.
On November 26, 1988, a fire occurred at appellees’ residence causing damages to the porch and wall of the residence and a total loss to seventeen stamp vending machines stored on the porch. Farmers Mutual denied coverage for damage to the vending machines, and on March 10, 1989, appellees filed a complaint seeking to recover fire damages to their residence totaling $282.23 and damages to the vending machines totaling $7,227.00, plus an additional 12% penalty and attorneys fees. Subsequent to the filing of the complaint, Farmers Mutual paid the full amount of loss to the residence, and that portion of the complaint was dismissed with prejudice.
On August 16, 1989, appellant filed a motion for summary judgment on the basis that, as a matter of law, the stamp vending machines which were to be put to business use in the future were not covered under the policy’s definition of “household and personal effects usual and incidental to the occupancy of the premises as a dwelling.” The trial court denied appellant’s motion, on the holding that the question as to whether or not the policy covered the stamp machines was a question of fact to be determined at trial.
On April 9,1990, immediately prior to trial, appellant asked the court for a ruling on whether or not the applicable contract language was ambiguous. The trial court stated:
Well, in reading the contract terms, I think that is a matter for the jury to determine. Now if it’s clear and there is no doubt then I think the Court can rule one way or the other. But in reading the terms at this time, I am going to decline to instruct them as to whether it is ambiguous or not ambiguous and allow them to make that determination by means of an instruction that I give them.
At the close of the appellees’ case, appellant moved for a directed verdict asserting there was no evidence of any ambiguity and appellees had admitted the vending machines were going to be put to a business use. The trial court overruled appellant’s motion stating that it had previously ruled that it was a fact question as to whether or not the machines were covered under the insurance policy, and there was no policy language excluding business property. At the close of all the evidence, the motion was renewed and again denied. The case was then submitted to the jury which returned a verdict for the appellees in the amount of $7,227.00.
On appeal, appellant argues that the jury’s, verdict is not supported by substantial evidence. Appellant also argues the trial court erred (1) in denying appellant’s motions for summary judgment and directed verdict, (2) in refusing to rule whether or not the policy language was ambiguous and leaving it to the jury to decide, and (3) in giving jury instructions number 7 and 8. These instructions stated:
JURY INSTRUCTION NUMBER 7
Contracts of insurance, like other contracts, must be construed according to the terms which the parties have used, and be taken and understood, in the absence of ambiguity, in their plain, ordinary and popular sense. However, where the terms or words of policy are of doubtful meaning or have more than one meaning, that construction most favorable to the insured will be adopted.
JURY INSTRUCTION NUMBER 8
You are instructed that if you find that the term “household and personal effects usual and incidental to the occupancy of the premises as a dwelling” is of doubtful meaning or has more than one meaning, then you must construe the phrase in favor of the plaintiffs, Darrel Phillips and Alma Lane Phillips, and against the defendant, Washington County Farmers Mutual Fire Insurance Company.
In the first place, our supreme court has held that the denial of a summary judgment is not reviewable where the denial is followed by a trial on the merits. The American Physicians Insurance Co. v. Hruska, 244 Ark. 1176, 428 S.W.2d 622 (1968). As to appellant’s contention that it was entitled to a directed verdict, this contention is based on its argument that the policy was not ambiguous and therefore there was no question for the jury to decide. Appellant does not argue that the stamp vending machines were not “personal effects. . . belonging to the insured ... on the premises.” The contention is that they were not personal effects “usual and incidental to the occupancy of the premises as a dwelling.” These terms, however, are not defined by appellant’s policy.
In reviewing the denial of a motion for directed verdict, we give the proof its strongest probative force. Such proof, with all reasonable inferences, is examined in the light most favorable to the party against whom the motion is sought and if there is any substantial evidence to support the verdict we will affirm the trial court. Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987). Here, the appellee Alma Phillips testified that she purchased the vending machines in April 1988 because her husband wasn’t able to work, and she wanted some way for him to have extra income. She testified that when the machines arrived they were put on the porch of appellees’ house by UPS; that at the time of the fire in November of 1988, the machines were not being used in a business; that they were still in boxes and Mrs. Phillips was waiting for information on how to load, unload and maintain the machines. She testified she hadn’t set any of the machines up but had talked to several merchants who indicated they might like to have a machine located at their places of business. Mrs. Phillips testified further that she thought the stamp machines were “an incidental happening” to her living in the residence, that it was not something that happened every day, and in fact at the time of the trial, she had some furniture in her house that she had bought for someone else. She said she did “store” things at her house and had things at her house “besides the things she used everyday.”
Although Joyce Cunningham, secretary-manager of the appellant, testified it denied appellees’ claim for the vending machines because it did not feel they were usual and incidental to the occupancy of the premises as a dwelling and that this terminology means “what you live with, what it takes to occupy a house, cooking, sleeping, what you wear,” the jury did not have to accept appellant’s view. A summary judgment was reversed in Camp v. Elmore, 271 Ark. 407, 609 S.W.2d 86 (Ark. App. 1980), where Judge Newbern, writing for the Arkansas Court of Appeals, said the trial court must have determined, as a matter of law, that “a wide variety of personalty, including such items as fishing equipment, a cement mixer, wrenches and motors” was not property that “was usual or incidental to the premises as a dwelling.” Judge Newbern’s opinion stated, “we consider the words highly ambiguous.” It is also clear that ambiguous provisions are to be construed most strongly against the insurer which drafts the policy. Home Indemnity Co. v. City of Marianna, 291 Ark. 610, 616, 727 S.W.2d 375 (1987); Drummond Citizens Insurance Co. v. Sergeant, 266 Ark. 611, 619, 588 S.W.2d 419 (1979).
The appellees argue that the answer to the question of whether the presence of stamp vending machines is “usual and incidental to the occupancy of the premises as a dwelling” is probably not but maybe so. We agree. The storing of personal effects on the dwelling premises is undoubtedly usual to the occupancy of the dwelling; however, stamp vending machines may not be the usual type of personal effects so stored. But under the circumstances in this case, we think the jury could find that it was perfectly normal, natural, and in the ordinary course of events to store these machines on the appellees’ dwelling premises until they could be put in use at some place of business. Obviously, the storage of the machines was incidental to the occupancy of the premises as a dwelling. So the answer as to whether the presence of the machines was usual was, as the appellees put it, “probably not but maybe so,” and the answer by the jury after hearing the evidence was “yes it was usual.” We think that answer is supported by substantial evidence.
Appellant has placed emphasis in its brief on the fact that appellees admittedly acquired the machines for use in business. However, although the policy language contains a long list of exclusions, there is no exclusion for property acquired for use in a prospective business and the issue to be decided was whether the vending machines were “usual and incidental to the occupancy of the premises as a dwelling” at the time of the fire.
As to appellant’s argument that the trial court erred in refusing to rule on whether the policy language was ambiguous, we think, although the trial court did not make an explicit ruling on that issue, by virtue of its ruling that there was a question for the jury to decide, the trial court found, at least by implication, that the language of the policy was ambiguous. Counsel for appellant told the trial court that he did not contend the law as stated in instructions 7 and 8 was wrong, he objected just to the giving of the instructions to the jury. It is clear that where a contract is ambiguous, its meaning becomes a question of fact. Floyd v. Otter Creek Homeowners Association, 23 Ark. App. 31, 742 S.W.2d 120 (1988). The rule applies to insurance policies. State Farm Insurance Companies v. Gilbert, 3 Ark. App. 52, 621 S.W.2d 880 (1981). See also Shelter Mutual Ins. Co. v. Smith, 300 Ark. 348, 779 S.W.2d 149 (1989) (insurance coverage depended upon whether the appellees’ horse racing activity was a hobby or a business; court held this was a question of fact under the evidence presented).
Appellant also argues the trial court erred in refusing to give its proffered instructions 1 and 2 which it says were taken from the opinion in Barnett v. Maryland Casualty Co., 253 Ark. 1103, 490 S.W.2d 784 (1973). These instructions were as follows:
INSTRUCTION NO. 1
You are instructed that property which is not acquired, used or even contemplated for use in a residence does not constitute household or personal effects usual and incidental to the occupancy of the premises as a dwelling.
INSTRUCTION NO. 2
You are instructed that property which is acquired in connection with or anticipation of a business does not constitute household or personal effects usual and incidental to the occupancy of the premises as a dwelling.
We do not think Barnett is controlling here. In that case, the supreme court simply held that the trial court’s interpretation of the language of a provision of a policy of insurance was not unreasonable and was supported by substantial evidence. In the instant case, the appellant’s proffered instructions would, in effect, have directed a verdict on the factual issue the jury was to consider, and the trial court was correct in refusing to give the proffered instructions. See Miller v. Ballentine, 242 Ark. 34, 411 S.W.2d 655 (1967), and Love v. H.F. Construction Company, 261 Ark. 831, 552 S.W.2d 15 (1977), which hold that the giving of binding instructions is erroneous.
Affirmed.
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Terry Crabtree, Judge.
Appellant, Jim Green, is a developer whose final plat for a subdivision was accepted by the Jacksonville City Council on the condition that appellant comply with an ordinance requiring the installation of sidewalks. This is an appeal from an order granting appellee’s motion for summary judgment and dismissing appellant’s complaint, based on the conclusion that the trial court lacked jurisdiction to entertain appellant’s cause of action challenging the council's decision. For reversal, appellant contends that the action of the city council was ultra vires, and thus the trial court had jurisdiction to enjoin the enforcement of the ultra vires act. We reverse and remand.
In 1999, appellant began the development of Phase II of the Collenwood Subdivision in Jacksonville, Arkansas. On November 8, 1999, the city’s planning commission approved the preliminary plat that appellant submitted, which did not include sidewalks. Subsequently, on January 20, 2000, the city council passed Ordinance 1130, titled the “Master Sidewalk Plan,” which required the construction of sidewalks. On December 11, 2000, the planning commission approved appellant’s final plat. The minutes of the planning commission meeting reflect that the sidewalk ordinance was discussed but that it was agreed that appellant would not be required to comply with the ordinance since the process of developing the subdivision predated its enactment.
On February 1, 2001, the final plat was presented to the city council in accordance with Ordinance 17.12.100, which provides:
Before the final plat is recorded in the Office of the Circuit Court and ex officio recorder, the subdivider shall submit the plat to the City Council . . . for [its] acceptance of public dedications. Until the public dedications and improvements have been accepted by the . . . City Council, any plat shall not be eligible to be recorded.
The city council voted to accept the subdivision’s public dedications, but it conditioned its acceptance upon appellant’s compliance with the sidewalk ordinance. ■
Appellant did not take an appeal to circuit court pursuant to Ark. Code Ann. § 14-56-425 (Repl. 1998). Instead, on May 22, 2001, he filed this action for declaratory and injunctive relief, contending that the city council’s action was ultra vires because it had no authority to condition the acceptance of dedications by requiring compliance with the ordinance. In response, appellee denied that the city council exceeded its authority and took the position that the trial court lacked subject matter jurisdiction because appellant had not pursued a timely appeal of the city council’s decision. Both parties moved for summary judgment, and the trial court granted appellee’s motion and denied appellant’s motion. In so ruling, the court did not determine whether the city council’s action was ultra vires because it concluded that it lacked jurisdiction to make that determination since appellant had not appealed the council's decision. The trial court’s ruling was in error.
Appellant’s complaint was based on the theory that the city council’s action was ultra vires, or in excess of its authority, and that an independent action does lie to collaterally attack such acts. This theory is well-grounded in our caselaw. In Jensen v. Radio Broadcasting Co., Inc., 208 Ark. 517, 186 S.W.2d 931 (1945), our supreme court stated:
The general rule of equity jurisdiction in suits to restrain acts of public officers is stated in 28 Am. Jur. 356, as follows: ‘There is no doubt but that equity will exercise jurisdiction to restrain acts or threatened acts of public corporations or public officers, boards, or commissions which are ultra vires and beyond the scope of their authority, outside their jurisdiction, unlawful or without authority, or which constitute a violation of their official duty, whenever the execution of such acts would cause irreparable injury to, or destroy rights and privileges of, the complainant, which are cognizable in equity, and for the protection of which he would have no adequate remedy at law. An injunction to prevent an officer from doing that which he has no legal right to do is not an interference with his discretion.’
Id. at 520, 186 S.W.2d at 932. See also Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997); Harkey, Comm’n v. Matthews, 243 Ark. 775, 422 S.W.2d 410 (1967); Shellnut v. Ark. State Game & Fish Comm., 222 Ark. 25, 258 S.W.2d 570 (1953). Under these authorities, the trial court would have jurisdiction to grant appellant injunctive relief if the city council’s action were found to be ultra vires. Thus, the question of whether the city council’s action was or was not ultra vires is the pivotal jurisdictional issue in this case, yet the trial court declined to decide that issue on the belief that it had no jurisdiction to even make that determination. However, a court always has the power and a duty to examine the evidence and to determine whether, in fact, it does have jurisdiction over the matter. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989); Arkansas Savings & Loan Ass’n v. Corning Savings & Loan Ass’n, 252 Ark. 264, 478 S.W.2d 431 (1972). Consequently, we reverse and remand for the trial court to make that determination.
Reversed and Remanded.
Stroud, C.J., and Robbins, J., agree. | [
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John Mauzy Pittman, Judge.
The appellant in this workers’ compensation case filed a claim for benefits asserting that she contracted an occupational disease while employed by appellee Primex Technologies. The Commission denied her claim on the basis of its finding that she failed to give the statutorily-required written notice to her employer within ninety days of the time she first knew or should have known that she had contracted an occupational disease. For reversal, appellant contends that the Commission erred in finding that her failure to give notice of an occupational disease was not excused. We affirm.
Arkansas Code Annotated § 11-9-603(a) (2) (A) (Repl. 2002) provides that written notice of an occupational disease shall be given to the employer by the employee, or someone on his behalf, within ninety days after the first distinct manifestation thereof. We have held that the ninety-day statutory period does not begin to run until the employee knows or should reasonably be expected to know that he is suffering from an occupational disease. See Quality Service Railcar v. Williams, 36 Ark. App. 29, 820 S.W.2d 278 (1991). Furthermore, failure to give notice shall not bar any claim if the employer had knowledge of the injury; if the employee had no knowledge that the condition or disease arose out of and in the course of his employment; or if the Commission excuses the failure on the grounds that, for some satisfactory reason, the notice could not be given. Ark. Code Ann. §11-9-701 (b)(1) (Repl. 2002).
In the present case, appellant became ill at work after exposure to aluminum powder in October 1998, but never provided her employer with anything that could be considered written notice until March 2000. The Commission found that appellant knew or should have known in October 1998 that she was suffering from an occupational disease. This is borne out by the October 14, 1998, report of appellant’s physician, Dr. Sarnicki, to the effect that appellant was apparently exposed to aluminum dust and that her condition resolved after she was removed from exposure to it. In addition, the Commission relied on testimony by the appellant indicating that she knew that her claim was cognizable under workers’ compensation in October 1998. The Commission also found credible and relied on the testimony of Sharon Lemons of Primex’s personnel department, who stated that appellant asked her to file a disability claim for appellant following the incident, but never informed Lemons that appellant’s condition was related to exposure to aluminum dust or asked her to file a worker’s compensation claim relating to the aluminum dust incident. The issue is therefore one of credibility, and we have frequently recognized that it is the function of the Commission, and not of this court, to determine credibility of witnesses and the weight to be given their testimony. Horticare Landscape Management v. McDonald, 80 Ark. App. 45, 89 S.W.3d 375 (2002). Questions of weight and credibility are, instead, within the sole province of the Workers’ Compensation Commission, which is not required to believe the testimony of the claimant or of any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Wal-Mart Stores, Inc. v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002); Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002).
Once the Commission has made its decision on issues of credibility, the appellate court is bound by that decision. Emerson Electric v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001). Viewing the evidence, as we must, in the light most favorable to the Commission’s findings and giving the testimony its strongest probative force in favor of the action of the Commission, id., we think that reasonable minds could conclude that appellant knew in October 1998 that she suffered from an occupational disease, but that appellee did not know that appellant suffered from an occupational disease, and we therefore must affirm.
Affirmed.
Stroud, C.J., and Robbins and Neal, JJ., agree.
Gladwin and Baker, JJ., dissent.
As the dissent notes, Ms. Lemons did subsequently assist appellant in filing a claim for compensation, but this claim related to a separate incident that took place on October 27, 1999, over one year after appellant learned that she suffered from a compensable occupational disease. | [
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Wendell L. Griffen, Judge.
Appellant appeals the application of the seventy-percent parole-eligibility rule to his sentence for manufacture of a controlled substance, methamphetamine. Appellant argues that application of the rule to his sentence violated both the federal and state constitutional prohibition against ex post facto laws because his crime was committed before methamphetamine offenses became subject to the seventy-percent rule. We affirm because appellant failed to preserve his argument for appellate review.
In 1998, appellant was arrested and charged with a number of offenses committed on May 8, 1998. On April 30, 1999, a jury convicted appellant of manufacture of a controlled substance, possession of drug paraphernalia, and possession with intent to manufacture. During the sentencing phase, the trial court instructed the jury as follows:
For manufacture of a controlled substance methamphetamine, it is punishable by a term of years up to life. Persons under the sentence for life are not eligible for parole, but if you sentence him to a terms of years, he’ll be eligible for parole after he served seventy percent of the term you impose and this percentage of imprisonment will not be reduced by earning a meritorious good time. In your deliberations on the sentence to be imposed for the other charges . . . [t]he term of imprisonment may be reduced further to one-sixth of any period you may impose if he earns the maximum amount of meritorious good time during his imprisonment.
Appellant did not raise an objection to this instruction. After deliberating, the jury recommended a sentence of fifteen years for the crime of manufacture of a controlled substance and three years each for the crimes of possession of drug paraphernalia and possession with intent to manufacture. The trial court sentenced appellant as recommended by the jury and ordered the sentences to run concurrent, again commenting that appellant would have to serve seventy percent of his sentence for manufacture of methamphetamine.
On May 25, 1999, appellant filed a notice of appeal; however, the record was not tendered until October 4, 1999, at which time the Supreme Court Clerk refused to file it because it was late. On April 11, 2002, appellant retained new counsel and filed a motion for “belated appeal” or motion for “rule on clerk” and tendered a record for his appeal for a second time. The supreme court granted appellant’s motion. McGhee v. State, 348 Ark. 573, 74 S.W.3d 627 (2002); McGhee v. State, 350 Ark. 49, 84 S.W.3d 423 (2002). This appeal followed.
Appellant argues that the application of the seventy-percent parole-eligibility rule under Ark. Code Ann. § 16-93-611 (Supp. 2001) to his sentence for manufacture of a controlled substance, methamphetamine, violates federal and state constitutional prohibitions on ex post facto legislation. Both the United States and Arkansas Constitutions prohibit the enactment of any law which imposes punishment on a person for an act done that was not punishable at the time it was committed or which increases or imposes additional punishment than what was prescribed for that act when it was committed. U.S. Const. Art. I, §§ 9 and 10; Ark. Const. Art. 2, § 17. To fall within the ex post facto prohibition, the law must be retroactive, that is, it must apply to events occurring before its enactment and it must disadvantage the offender affected by it. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995). Furthermore, the change in the law must have altered substantial personal rights, not merely modes of procedure that do not affect matters of substance. Id. The Arkansas Supreme Court has applied the ex post facto prohibition to parole-eligibility cases and has held that it is unconstitutional to apply the current parole-eligibility act retrospectively to a defendant’s conviction, instead of considering him for parole under the parole-eligibility statute that was in effect at the time of the commission of the crime. Bosnick v. Lockhart, 283 Ark. 206, 672 S.W.2d 52 (1984).
Appellant’s felony information recited that the offenses for which appellant was convicted occurred on May 8, 1998. At that time, Ark. Code Ann. § 16-93-611 (Supp. 2001) provided that a person convicted of certain serious crimes would not be eligible for parole until he served seventy percent of his sentence, but the statute did not include the offense of manufacture of methamphetamine. This statute was amended in 1999 by Act 1268 to add methamphetamine offenses, thus, making the manufacture of methamphetamine subject to the seventy-percent parole-eligibility rule. This new amendment became effective on April 9, 1999. However, when appellant was sentenced, the seventy-percent parole-eligibility rule was applied to his sentence for manufacture of a controlled substance, methamphetamine. Therefore, appellant correctly asserts that the application of the seventy-percent parole-eligibility rule to his sentence for manufacture of methamphetamine would be an ex post facto law in violation of the federal and state constitutions. Nonetheless, the record reflects, as appellant has admitted, that his counsel never raised an objection to the jury instruction or the application of the seventy-percent parole-eligibility rule to his sentence at trial; thus, this error was not brought to the attention of the trial court. It is well settled that the appellate courts will not hear arguments or errors, even constitutional ones, which were not raised at the trial court level by means of a timely, specific objection. Nooner v. State, 339 Ark. 253, 4 S.W.3d 497 (1999); Ussery v. State, 308 Ark. 67, 822 S.W.2d 848 (1992).
Appellant argues that he did not need to object to the application of the seventy-percent parole-eligibility rule to his sentence at trial, citing Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980) in support of his position. In Wicks v. State, the supreme court enumerated four exceptions to the contemporaneous-objection rifle: (1) death-penalty cases; (2) cases where an error is made by the trial judge and defense counsel has no knowledge of the error and hence no opportunity to object; (3) cases in which an error is so egregious that the trial court had a duty to correct, absent an objection; and (4) cases which might fall under Ark. R. Evid. 103(d) providing, “[njothing in this rule precludes taking notice of errors affecting substantial rights although they were not brought to the attention of the court.” 270 Ark. at 785-87, 606 S.W.2d at 369-70. The supreme court further held that the application of Ark. R. Evid. 103(d) was limited to a ruling which admits or excludes evidence. Id. at 787. Appellant makes the argument that an ex post facto violation is one that would fall under Ark. R. Evid. 103(d) or that the exceptions should be expanded to include such errors when they undisputedly appear on the face of the record. We are not persuaded by appellant’s argument.
First, it is quite obvious that appellant’s case does not come within the scope of any of the recognized exceptions to the contemporaneous-objection rule listed in Wicks v. State, and we decline to extend the exceptions. Second, Arkansas does not adhere to the “plain error” rule under which plain errors affecting substantial rights may be noticed although they were not brought to the attention of the trial court. Lovelady v. State, 326 Ark. 196, 931 S.W.2d 430 (1996); Smith v. State, 268 Ark. 282, 595 S.W.2d 671 (1980); Wicks v. State, supra. To the contrary, our law is well settled that issues raised for the first time on appeal, even constitutional ones, will not be considered because the trial court never had an opportunity to rule on them. J.C.S. v. State, 336 Ark. 364, 985 S.W.2d 312 (1999); Ussery v. State, supra. As such, appellant’s argument is not preserved for our review.
Alternatively, appellant argues that in the interest of judicial economy we should address the merits of the case because he would be entitled to relief under Rule 37 or state habeas corpus grounds. In response to this assertion, we quote from Wicks v. State in which the supreme court stated:
In closing, we mention a position sometimes taken in appellate briefs in criminal cases, that a possible error should be argued by counsel even in the absence of an objection below, because the matter might be raised in a petition for postconviction relief. The short answer to that suggestion is that if the supposed error calls for postconviction relief, the defect is not cured by the presentation of an argument that is certain to be rejected by this court for want of an objection at the trial.
270 Ark. at 787, 606 S.W.2d at 370. Moreover, the determination of parole eligibility is the province of the Arkansas Department of Correction. Morris v. State, 333 Ark. 466, 970 S.W.2d 210 (1998). We point out that appellant has failed to show in the record that, in addition to the trial court’s error, the Department has miscalculated his parole-eligibility date in a manner inconsistent with the law in effect at the time he committed his crimes.
Affirmed.
Hart and Baker, Jj., agree. | [
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John Mauzy Pittman, Judge.
This appeal is brought from two orders of summary judgment entered in favor of appellee First Federal Bank. As a result of the first order, appellant Holt Bonding Company was held liable for $24,000 as an endorser on a check; as the result of the second order, Holt’s counterclaim against First Federal for conversion and negligence was dismissed.
On appeal, Holt argues that summary judgment was inappropriate because genuine issues of material fact remain on its liability as an endorser and on First Federal’s liability for conversion and negligence. We affirm.
Holt writes appearance bonds in connection with judicial proceedings. It has agency relationships with a number of professional bail bondsmen in Baxter, Boone, Stone, and Washington counties. On December 9, 1998, Holt entered into an agency agreement with John Van Curen, a bail bondsman in Washington County. The agreement provided that Van Curen would write bonds for Holt, collect premiums, and send Holt weekly reports accompanied by fifty percent of the premiums collected. Under the terms of the agreement, all premiums were considered fiduciary funds held by Van Curen on behalf of Holt. It is undisputed that Van Curen had the authority to endorse Holt’s name on checks made payable to Holt.
On October 6, 2000, Van Curen opened a checking account at First Federal Bank in the name of Van Curen’s Rapid Recovery LLC. On October 13, 2000, he issued an appearance bond to Roberto Bravo, for which Zoila Ruano remitted a $24,000 check made payable to Holt Bonding. Van Curen endorsed the check “Holt Bonding” and underneath that “John Van Curen.” He then deposited the check into his LLC account at the Bank.
Between October 14 and 17, 2000, Van Curen made four cash withdrawals from the account at various First Federal branches until he had withdrawn the entire $24,000. On October 23, 2000, Ruano’s check was returned to First Federal marked insufficient funds.
On October 31, 2000, the Bank sued Holt, Van Curen, and Rapid Recovery LLC, claiming that they were liable for the $24,000 by virtue of the endorsements on the check. Holt answered that, while Van Curen was its agent and was generally authorized to issue appearance bonds, endorse checks, and deposit checks into his account, he was not acting in the course and scope of his agency when he endorsed and deposited the Ruano check.
Following discovery, First Federal filed a motion for summary judgment, arguing that, as a matter of law, Van Curen was Holt’s agent for the purpose of endorsing the $24,000 check and, when he endorsed Holt’s name, Holt became liable as an endorser under the provision of the Uniform Commercial Code contained at Ark. Code Ann. § 4-3-415 (Repl. 2001), which reads:
Subject to subsections (b), (c), and (d) and to 4-3-419(d) [not applicable here], if an instrument is dishonored, an indorser is obliged to pay the amount due on the instrument (i) according to the terms of the instrument at the time it was indorsed, or (ii) if the indorser indorsed an incomplete instrument, according to its terms when completed, to the extent stated in 4-3-115 and 4-3-407. The obligation of the indorser is owed to a person entitled to enforce the instrument or to a subsequent indorser who paid the instrument under this section.
Holt responded that a fact question remained as to whether Van Curen was acting in the course and scope of his agency when he endorsed and deposited the check. Holt also argued that First Federal should not have allowed Van Curen to deposit the check into the LLC account and then withdraw the entire proceeds, and that Van Curen had already repaid the $24,000 to First Federal. After a hearing, the trial court ruled that Van Curen was author ized to endorse premium checks and deposit them in his account and that, by reason of the endorsement of Holt’s name, the Bank was entitled to judgment against Holt for $24,000 as a matter of law. Following this grant of summary judgment, the trial court granted summary judgment against Holt on a counterclaim that had been filed by Holt in which Holt alleged that First Federal was liable for conversion for allowing Van Curen to endorse and deposit the check into the LLC account without first contacting Holt to determine if he had the authority to do so. Holt now appeals from those two orders.
Before we address the propriety of the summary judgments, we direct our attention to two evidentiary arguments made by Holt. The first concerns requests for admission that First Federal propounded to Van Curen, which were not answered within the required thirty-day period. First Federal attached the requests to its motion for summary judgment, claiming that, by virtue of Van Curen’s failure to answer, certain matters were deemed admitted, including that Van Curen endorsed the premium check for Holt, that he was authorized to deposit bond premiums in his checking account, and that he withdrew $24,000 for the benefit of Holt. Holt argues that the trial court erred when it treated Van Curen’s unanswered requests as admissions by Holt.
In its brief, Holt admits that the trial court made no specific finding regarding the admissions when granting summary judgment. Our review of the court’s order and comments from the bench likewise reveals no reliance by the trial court on Van Curen’s unanswered requests. Therefore, even if consideration of the admissions would have been error, we decline to reverse on this point because it is clear that the trial court based its ruling on evidentiary attachments other than the requests for admissions. See Barnett v. Arkansas Transp. Co., 303 Ark. 491, 798 S.W.2d 79 (1990) (holding that the trial court’s mention of the collateral source rule in excluding evidence was not applicable to issues on appeal where it was clear that the court based its exclusion on ground of irrelevancy); Freeman v. Freeman, 20 Ark. App. 12, 722 S.W.2d 877 (1987) (holding that any possible error by trial court in taking judicial notice was harmless where is was clear that the court’s ruling was based on other grounds).
The other evidentiary matter concerns certain attachments associated with Holt’s claim that Van Curen had repaid the $24,000 to First Federal. Holt asserted this defense by way of an affidavit by its president, John Holt, stating that “Van Curen represented to me that all of the monies he had withdrawn from the bank had been repaid to the bank on December 21, 2000, and he provided me by facsimile with a copy of a receipt for $24,000 in cash on March 21, 2001.” The faxed copy that purported to be a receipt indicated a deposit of $24,000 to the LLC account on December 21, 2000, and it bore a small round postmark-type stamp with the name “First Federal of Harrison.”
At the hearing on the motion for summary judgment, the Bank objected that Holt’s statement and the receipt were hearsay and that the receipt was forged and should not be considered by the court. Holt agreed that hearsay was not generally admissible for the purpose of a summary-judgment motion but argued that the evidence was either an admission of a party opponent or, in the case of the receipt, a record of a regularly conducted business activity. The trial judge ruled that no foundation had been laid to establish that the receipt fell within the business records exception and that the statement in the affidavit was not an admission but rather a denial of liability. Holt argues on appeal that the trial court erred when it so ruled.
Affidavits in support of or opposition to a motion for summary judgment must be made on personal knowledge and shall set forth such facts as would be admissible in evidence. Ark. R. Civ. P. 56(e). The supreme court has excluded hearsay statements from the summary-judgment analysis since such statements would be inadmissible at trial. See, e.g., Swindle v. Lumbermens Mut. Cas. Co., 315 Ark. 415, 869 S.W.2d 681 (1993); Brewington v. St. Paul Fire & Marine Ins. Co., 285 Ark. 389, 687 S.W.2d 838 (1985). However, this court has considered hearsay evidence in an affidavit where we determined that it could be subject to a hearsay exception. See Baxley v. Colonial Ins. Co., 31 Ark. App. 235, 792 S.W.2d 355 (1990).
If Holt is to take advantage of the Baxley holding, it needs to convince us that the evidence could fall within a hearsay exception. However, it has failed to do so. Holt offers no authority or convincing argument that the evidence constitutes either an admission of a party opponent, in which case it would not be hearsay under Ark. R. Evid. 801(d)(2) (2002), or a regularly kept business record, in which case it would be excepted from the hearsay rules under Ark. R. Evid. 803(6) (2002). We do not address points on appeal that are not supported by convincing argument or authority. Parker v. Parker, 75 Ark. App. 90, 55 S.W.3d 773 (2001).
Having narrowed the issues by disposing of the above evidentiary questions, we turn now to whether the trial court erred in granting summary judgment on First Federal’s claim against Holt. Our standard of review in summary judgment cases is well established. Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the party is entitled to judgment as a matter of law. Spears v. City of Fordyce, 351 Ark. 305, 92 S.W.3d 38 (2002). Once the 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. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material question of fact unanswered. Id. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.
Holt argues that summary judgment was inappropriate because the issue of whether Van Curen was acting within the scope of his authority when he endorsed and deposited the check is a question of fact for the jury to determine. See generally Henry v. Gaines-Derden Enters., Inc., 314 Ark. 542, 863 S.W.2d 828 (1993); Rowland v. Gastroenterology Assocs., 280 Ark. 278, 657 S.W.2d 536 (1983) (holding that whether an agent acts within the scope of his authority is a question of fact for the jury to determine). Holt relies on the generally established agency principles that 1) whether an employee is acting within the scope of employment depends on whether he is carrying out the object and purpose of the enterprise, as opposed to acting exclusively in his own interest; 2) if the servant steps aside from the master’s business to do an independent act of his own and not connected with his master’s business, then the relation of master and servant is for such time, however short, suspended; and 3) a master is ordinarily not liable for his servant’s criminal acts.
While Holt correctly quotes the law as it relates to respondeat superior liability, the rules with regard to that type of liability do not completely answer the questions presented by this appeal. This is not a situation in which the Bank seeks to hold Holt vicariously Hable for the tort of its employee; it seeks to hold Holt Hable on its own endorsement contract, which arises by virtue of its signature being affixed to the check by its agent.
The Uniform Commercial Code provides that, if a person acting, or purporting to act, as a representative signs an instrument by signing the name of the represented person, the represented person is bound by the signature to the same extent he would be bound if the signature were on a simple contract. Ark. Code Ann. § 4-3-402(a) (Repl. 2001). If the represented person is bound, the signature of the representative is the “authorized signature of the represented person” and the represented person is Hable on the instrument. Id. There is no question in this case that Van Curen had the actual authority to endorse Holt’s name on checks. Therefore, when Van Curen endorsed Holt’s name, Holt’s authorized signature was contained thereon, and Holt incurred the obligation of an endorser under the UCC provisions mentioned earlier in this opinion.
Because Van Curen was authorized to endorse Holt’s name, Holt is liable as an endorser, regardless of any action that Van Curen took in misappropriating the funds after the endorsement was made. See Citizen’s Bank of Maryland v. Maryland Indus. Finishing Co., 338 Md. 448, 659 A.2d 313 (1995); Rohrbacher v. Bancohio Nat’l Bank, 171 A.D.2d 533, 567 N.Y.S.2d 431 (1991); Jones v. Van Norman, 513 Pa. 572, 522 A.2d 503 (1987) (recognizing that misappropriation by an agent after an authorized endorsement does not affect the validity of the endorsement, and the endorsement is either valid or invalid at the time it is made); see also 6 Ronald A. Anderson, Unform Commercial Code § 3-403:57 at 346 (1998); 4 William Hawkland and Larry Lawrence, Uniform Commercial Code Series § 3-403:1 at 3-566 (West 1999).
Whether Van Curen, in making the endorsement, had a plan in mind to convert the funds is not relevant to Holt’s liability on its signature. The fact is, Holt authorized Van Curen to endorse its name on the check and, having done so, became liable as an endorser under the UCC.
As for the summary judgment entered on Holt’s counterclaim against First Federal, Holt argues that, even if it were liable to First Federal under the UCC, “it does not necessarily follow that the bank was not negligent or that it did not convert [Holt’s] property.” Holt cites no case nor makes any convincing argument to support its contention that a bank that pays on an authorized endorsement may nevertheless be liable for conversion or negligence. The question is not a simple one, requiring exploration and application of provisions of the UCC regarding conversion, the laws of banking, and possibly the commercial reasonableness of First Federal’s conduct. It is not apparent without further research that Holt’s point is well-taken. We therefore decline to address a legal issue that is not sufficiently developed on appeal. See In re Adoption of D.L.J., 341 Ark. 327, 16 S.W.3d 263 (2000).
Affirmed.
Neal and Roaf, JJ., agree.
In any event, Holt has not shown that a qualified person or custodian would offer the receipt into evidence, as required for application of the business-records exception, nor has it shown that the receipt or the statements in the affidavit constitute admissions by First Federal, being that they are the statements of another person (Van Curen) who is not an agent of First Federal and is in fact in a position adverse to First Federal’s interest. See Higgins v. General Motors Corp., 250 Ark. 551, 465 S.W.2d 898 (1971); Cochran v. Arkansas Dep’t of Human Servs., 43 Ark. App. 116, 860 S.W.2d 748 (1993). | [
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Per Curiam.
This case involves prosecution for child pornography and rape. Given the nature of this case, the fact that Volume 7 of the record displays identifiable child victims engaged in explicit sexual conduct, and that possession of such images is in violation of Ark. Code Ann § 5-27-304 (1991), Volume 7 of the record is hereby closed and put under seal by the clerk of this court. If such images have been retained by the Ashley County Circuit Clerk, they are likewise closed and placed under seal in the Ashley County records. See Juvenile H. v. Crabtree, 310 Ark. 212, 833 S.W.2d 766 (1992). | [
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Andree Layton Roaf, Judge.
Emerald Development Company (Emerald) appeals from a circuit court order enjoining it from operating an airport at its current location in Cleburne County. Emerald argues that the trial court’s jurisdiction was preempted by the Federal Aviation Act and that there was no proof of a nuisance or irreparable harm that would justify the issuance of an injunction. We affirm.
Emerald owns a real estate development on the eastern side of a portion of Greers Ferry Lake known as The Narrows. In April of 2001, it began construction of a small private airport for the use of its residents. The airport was slated for construction in an east-to-west manner, with east being away from The Narrows and west heading toward The Narrows. Construction of the airport ceased when, on June 4, 2001, appellees James McNeill and Theodore Beitel sued Emerald, seeking an injunction to prohibit operation of the airport. McNeill and Beitel (collectively “McNeill”) own property in the Bondair lakefront development, direcdy across the lake on the western side of The Narrows. Bondair has a small airport for the use of its residents and guests, which has been in existence for approximately thirty years. It is laid out in an approximate north-to-south direction, parallel with The Narrows’ shoreline. McNeill alleged that the proximity of the Emerald airport to the Bondair airport created an overlap in air traffic patterns, presenting a safety hazard.
The case went to trial on the theory that Emerald’s airport constituted a nuisance. The evidence established that the two airports are four-tenths of a mile apart at their closest point and eight-tenths of a mile apart from center to center and that neither airport has a tower or ground control of any kind. As a result of the airports’ proximity, their traffic patterns would overlap significantly, a fact that caused the Federal Aviation Administration (FAA) to object to Emerald’s proposed construction (although the objection was advisory only and had no force of law). McNeill’s two expert witnesses, R.V. Stewart and Jim Burnett, the former Chairman of the National Transportation Safety Board, testified that the closeness of the two airports and the ensuing traffic pattern overlap created an unreasonably dangerous situation that would ultimately result in a midair collision. Stewart testified that the situation was a “disaster waiting to happen,” and Burnett stated that the “stacking” of risk factors, i.e., usage of the airports by non-business pilots, the fact that most midair collisions happen in the traffic pattern or on landing or takeoff, the proximity of these two airports, and the conflicting traffic patterns, created a situation in which “there’s no way to make these two airports operate safely together aligned as they are.”
Emerald’s expert, Dr. Jerry Robinson, testified that, with some modification of the traffic patterns, the two airports could operate safely. He recommended that Bondair’s traffic pattern be oriented strictly to the west of the airport, which would require pilots in the pattern to use right-hand turns. The evidence showed that, typically, a traffic pattern is laid out so that, once the plane enters the pattern, it makes only left-hand turns.
After the hearing, the trial judge ruled that Emerald’s airport created a dangerous situation and could be operated safely only if Bondair airport users employed onerous procedures to avoid the danger. He then issued the requested injunction, and this appeal followed.
Emerald’s first argument is that the trial court’s authority to enjoin the operation of the airport was preempted by the Federal Aviation Act. In any preemption analysis, the overriding principle that must guide our review is whether Congress intended to preempt state law. 25 Residents of Sevier County v. Arkansas Highway & Transp. Comm’n, 330 Ark. 396, 954 S.W.2d 242 (1997). However, the historic police powers of the states are not to be superseded by a federal act unless that is the clear and manifest purpose of Congress. NEF v. Ag Servs., 79 Ark. App. 100, 86 S.W.3d 4 (2002). The burden is on the moving party to prove that Congress intended to preempt state law. Id.
The doctrine of federal preemption is based upon the United States Constitution’s Supremacy Clause. U.S. Const. art. 6, cl. 2. There are three types of preemption: 1) express preemption, where Congress defines explicitly the extent to which its enactments preempt state law; 2) field preemption, where Congress’s regulation of a field is so pervasive or the federal interest so dominant that an intent to occupy the entire field can be inferred; and 3) conflict preemption, where state law stands as an obstacle to the accomplishment of the full purposes and objectives of a federal statute or where compliance with both laws is impossible. Hale v. State, 336 Ark. 345, 985 S.W.2d 303 (1999). Emerald concentrates its argument on appeal on the field preemption aspect, arguing that the trial court’s injunction was an attempt to regulate airspace, a field that belongs to the federal government. This argument is based on the Federal Aviation Act’s grant to the federal government of exclusive sovereignty of United States airspace. See 49 U.S.C.S. § 40103(a) (1998).
Field preemption occurs when 1) the scope of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the state to act, or 2) when federal law touches a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. See English v. General Elec. Co., 496 U.S. 72 (1990). Although the Federal Aviation Act gives the federal government exclusive sovereignty over U.S. airspace, the area of land-use regulation is still within the purview of state government. See Gustafson v. City of Lake Angelus, 76 F.3d 778 (6th Cir. 1996), cert. denied, 519 U.S. 823 (1996) (holding that a city’s prohibition of the operation of seaplanes on a lake was not preempted and stating that the federal government’s regulation of aircraft in flight is distinguishable from the regulation of the designation of plane landing sites, which involves local control of land use); Condor Corp. v. City of St. Paul, 912 F.2d 215 (8th Cir. 1990) (holding that a city’s denial of permit to construct a heliport was not preempted and stating that there was no conflict between a city’s regulatory power over land use and the federal regulation of airspace); see also 49 U.S.C.S. § 40120(c) (1998), which provides that a remedy under the Act “is in addition to any other remedies provided by law,” and 14 C.F.R. § 157.7(a) (2003), which recognizes local authorities’ jurisdiction over land use.
The circuit court in this case was not engaged in the regulation of airspace but in the regulation of land use. The court prohibited the operation of Emerald’s airport because its location on nearby land interfered with Bondair’s use of its airport. Although it is obvious that any regulation of an airport’s location will in some manner touch on. the field of aviation, for state regulation to fall within the zone of preemption, it must have some direct and substantial effect on the decisions made by those who regulate airspace. See English v. General Elec. Co., supra. Not every state law that in some remote way may affect a federally regulated area is preempted. See id; see also American Aviation, Inc. v. Aviation Ins. Mgrs., Inc., 244 Ark. 829, 427 S.W.2d 544 (1968) (holding that, although federal law governed the recording of title instruments to airplanes, it had not preempted the entire field related to conveyances of aircraft). The circuit court in this case did not define or restrict what portions of the airspace could be used by either party. Instead, it issued a ruling that Emerald could not construct the airport at its present location. We therefore conclude that the trial court’s action was not preempted by federal law.
Emerald argues next that its airport.did not constitute a nuisance. Its primary contention is that the finding of a nuisance in this case is based on nothing more than speculation that a midair collision may occur in the future. A nuisance is defined as conduct by one landowner that unreasonably or unlawfully interferes with the use and enjoyment of the lands of another and includes conduct on property that disturbs the peaceful, quiet, and undisturbed use and enjoyment of nearby property. Miller v. Jasinski, 17 Ark. App. 131, 705 S.W.2d 442 (1986). Equity will enjoin conduct that culminates in a private or public nuisance where the resulting injury to the nearby property and residents, or to the public, is certain, substantial, and beyond speculation and conjecture. Id. The general rule is that, in order to constitute a nuisance, the intrusion must result in physical harm , as distinguished from unfounded fear of harm, which must be proven to be certain, substantial, and beyond speculation and conjecture. Goforth v. Smith, 338 Ark. 65, 991 S.W.2d 579 (1999). The findings of a trial judge as to the existence of a nuisance will not be overturned unless they are found to be clearly against a preponderance of the evidence. See Miller v. Jasinski, supra.
Emerald relies on Milligan v. General Oil Co., 293 Ark. 401, 738 S.W.2d 404 (1987), for its holding that a mere fear or apprehension of danger, without more, is not sufficient to warrant injunctive relief for abatement of a nuisance. However, Milligan recognized that an activity could constitute a nuisance if it created a substantial likelihood of danger in the future or if it could be shown to a reasonable certainty that danger was actually threatened rather than merely anticipated. Both of McNeill’s experts in this case testified that the location of the Emerald airport presented a disaster waiting to happen. We can hardly disagree that, if two uncontrolled airports are aligned in a perpendicular manner such that the ends of each runway are less than a half-mile apart, danger is substantially likely and actually threatened to a reasonable certainty. Further, we note that the trial court’s finding of a nuisance was based not only on the dangerous aspect of the airport configurations but on the fact that, if the Emerald airport were constructed, the Bondair airport could be safely operated only by employing atypical right-hand turns in the traffic patterns. The evidence showed that the use of a left-hand pattern was more common and that, while regular users of Bondair could be informed about the change, the airport was some times used by non-regular users who, if they failed to be diligent in seeking out the information, could be unaware of the change.
Emerald relies on a survey of aviation activity compiled by the Aircraft Owners and Pilots Association, which recites the small number of midair collisions that occurred during the thirty million flight hours flown in the United States in the year 2000. Those statistics mean very little here. They cannot take into account the increased risk of a midair collision engendered by the layout of these two airports. Additionally, the report itself notes that forty-nine percent of the midair collisions occurred in traffic patterns and that midair collisions occur mainly on good VFR (visual flight rule) days, at low altitude, close to airports.
Emerald’s final argument is that McNeill had an adequate remedy at law, making issuance of an injunction improper. Emerald contends that the trial court’s injunction was based on the possibility that personal injury and property damage could occur if a midair collision took place and that these types of injuries can be redressed in a court of law.
The grant of an injunction is reviewed de novo on appeal and rests within the sound discretion of the trial judge. See Brown v. SEECO, Inc., 316 Ark. 336, 871 S.W.2d 580 (1994). The prospect of irreparable harm or lack of an otherwise adequate remedy at law is at the foundation of the power to issue injunctive relief. Compute-A-Call, Inc. v. Tolleson, 285 Ark. 355, 687 S.W.2d 129 (1985).
In issuing the injunction, the trial court’s purpose was not to prevent McNeill from suffering personal injury or property damage as the result a midair crash; its purpose was to allow McNeill to continue reasonable usage of the Bondair airport. Thus, Emerald’s argument is not well-taken. In any event, if a trial court perceives that a dangerous incident is substantially likely to occur as the result of a certain activity, we are loath to say that the court may not enjoin that activity simply because the people injured or killed might be monetarily compensated.
We likewise reject Emerald’s argument that the trial court failed to consider the fact that Emerald had already spent $100,000 in construction costs. There is no evidence that the trial court failed to consider this fact and weigh it in the balance against the danger presented by the completion and use of the Emerald airport.
Affirmed.
Pittman and Neal, JJ., agree.
Physical harm does not necessarily mean direct physical damage to the premises. Osborne v. Power, 318 Ark. 858, 890 S.W.2d 570 (1994), cert. denied, 515 U.S. 1143 (1995). | [
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Karen R. Baker, Judge.
A Sebastian County jury convicted appellant, Jason E. Winbush, of murder in the first degree and sentenced him to a term of forty-five years in the Arkansas Department of Correction. Appellant asserts six points on appeal: (1) The trial court erred when it did not instruct the jury they could find the appellant guilty of negligent homicide; (2) the trial court erred when it did not declare a mistrial during voir dire; (3) the trial court erred when it allowed the prosecutor to introduce evidence of appellant’s seven prior felonies; (4) the trial court erred in allowing the introduction of three photographs of the victim lying in the grass; (5) the trial court erred when it allowed the hearsay testimony of Detective Mikeal Bates; (6) there was insufficient evidence to find appellant guilty of murder in the first degree. We affirm.
There was insufficient evidence to find appellant guilty of murder in the first degree.
Although appellant raises a challenge to the sufficiency of the evidence in his sixth point of appeal, double jeopardy considerations require us to consider it first. See Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001). In evaluating a sufficiency-of-the-evidence argument, the court will only consider evidence supporting the verdict and “the testimony of one eyewitness alone is sufficient to sustain a conviction.” Lenoir v. State, 77 Ark. App. 250, 257, 72 S.W.3d 899, 903 (2002). Decisions regarding the credibility of witnesses are for the jury, and the jury is not required to believe any witness’s testimony, especially the testimony of the accused, because he is the person most interested in the outcome of the trial. Hickson v. State, 50 Ark. App. 185, 901 S.W.2d 868 (1995).
Appellant was convicted of first-degree murder. A person commits murder in the first degree if, “[w]ith a purpose of causing the death of another person, he causes the death of another person.” Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1997). “A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.”. Ark. Code Ann. § 5-2-202 (Repl. 1997). A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Leaks v. State, 345 Ark. 182, 184, 45 S.W.3d 363, 365 (2001). Furthermore, a jury may infer the intent necessary for first-degree murder from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Id.
At appellant’s trial, the State introduced the testimony of four eyewitnesses who saw the appellant shoot Mr. Walls. Levi Whit-son, a ten-year-old boy who lived across the street from where the shooting occurred, testified that he saw appellant and the deceased arguing. He described how Mr. Walls turned his back and started to walk away. After Mr. Walls turned away, appellant retrieved something from under the seat of his car, said something to Mr. Walls, and when Mr. Walls turned around, appellant shot him.
Levi’s mother, Charla Whitson, also witnessed the shooting. She testified that she was standing at her kitchen window watching her son ride his skateboard when she saw him standing frozen at the end of the driveway, looking across the street. She saw a white Cadillac parked in front of the house across the street, and she saw appellant walking from the driver’s side of the car into the driveway. Ms. Whitson did not hear any conversation, but she saw Mr. Walls turn around, apparently with his hands raised and opened out. As Mr. Walls turned around, appellant raised his gun and fired two shots.
The other two eyewitnesses to the shooting were Leo Cole and Jeffrey Mainer, who also lived in the neighborhood. Mr. Cole testified that he went to look out his window after hearing a pop that sounded like a firecracker. He then heard a second gunshot and saw Mr. Walls fall to the ground. He further testified that the only gun he saw was the one held by appellant. Similarly, Mr. Mainer looked out of this window after hearing a gunshot. He saw appellant with his arms extended over the roof of a white Cadillac, and he heard a second shot. In addition to the testimony of these witnesses, the appellant testified that he was upset with Mr. Walls for spreading the rumor that he was a homosexual.
From this evidence the jury could reasonably infer that appellant acted with a conscious desire to kill Mr. Walls. Although appellant’s version of the events differed from that of the eyewitnesses, the jury was not required to believe to him. Hickson, 50 Ark. App. at 187, 901 S.W.2d at 869. Therefore, substantial evidence supports his conviction for first-degree murder.
The trial court erred when it did not instruct the jury they could find the appellant guilty of negligent homicide.
Appellant argues that the trial court erred by refusing to instruct the jury to consider negligent homicide as a lesser-included offense of manslaughter. The court instructed the jury to consider appellant’s guilt according to instructions for first-degree murder, second-degree murder, and both “extreme emotional disturbance” manslaughter, and reckless manslaughter. However, the jury convicted appellant of first-degree murder. When the jury convicts of a greater offense and “skips” a lesser-included offense, there can be no error in failing to instruct on other even lesser-included offenses. Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992). Therefore, it was not error for the court to refuse the instruction on negligent homicide.
The trial court erred when it did not declare a mistrial during voir dire.
Appellant also argues that the court should have declared a mistrial during voir dire. A circuit court has wide discretion in declaring a mistrial, and we will not disturb the trial court’s decision absent an abuse of discretion or manifest prejudice to the movant. Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001). During voir dire, a prospective juror, Mr. Mike Brooks, stated he was retired from the Fort Smith Police Department and knew the defense attorney from working with him in the past when the attorney was a deputy prosecutor. He stated that he also knew appellant from the past. Appellant asserts that these statements connected appellant in the minds of the jury to a criminal past and prejudiced the jury panel against him, thus denying him a fair trial. In the alternative, he argues that the trial court should have admonished the prospective jurors to disregard the comments of Mr. Brooks.
The prospective juror’s comment may have suggested that appellant had a criminal record. However, even if the panel drew that inference from Mr. Brooks’s remark, it was not solicited by the prosecutor and, like cases involving more explicit references to arrests or convictions, any prejudice could have been cured by an admonition to the jury. Jones v. State, 349 Ark. 331, 338, 78 S.W.3d 104, 109 (2002) (suggesting that admonition could have cured prejudice resulting from witness’s reference to defendant’s being on parole). Nevertheless, appellant did not request an admonition. His failure to request an admonition cannot benefit him now. Barnes v. State, 346 Ark. 91, 104, 55 S.W. 3d 271, 280 (2001), cert. denied, 535 U.S. 1022 (2002). Furthermore, the failure to give an admonition or cautionary instruction is not error where none is requested. Id.
The trial court erred when it allowed the prosecutor to introduce evidence of appellant’s seven prior felonies.
Appellant also argues that he was prejudiced when the trial court allowed the State to introduce seven prior felony convictions. He argues that the State only had to prove appellant committed four felonies to prosecute him as an habitual offender under Ark. Code Ann. § 5-4-501 (Repl. 1997) and that the additional convictions unnecessarily prejudiced appellant in the minds of the jury when they deliberated his sentence. Appellant cites no authority for this proposition, and we do not consider an argument when the appellant presents no authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. Hollis v. State, 346 Ark. 175, 179, 55 S.W.3d 756, 759-60 (2001); Dougan v. State, 330 Ark. 827, 957 S.W.2d 182 (1997); Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996). Therefore, we affirm on this point as well.
The trial court erred in allowing the introduction of photographs of the victim lying in the grass.
We also find no error with the trial court’s admission of photographs of the victim at the scene of the shooting. Appellant argues that the State had already introduced photographs of the deceased from the autopsy that showed the location of the bullet wounds and other photographs of the scene of the shooting which showed the location of the body before it was moved. He dismisses the prosecutor’s claim that in the autopsy photographs, the blood had been cleaned off of the victim, and asserts that the State’s desire to show that the victim had been bleeding from the nose and mouth did not make the photographs admissible. He claims that the photographs were cumulative, served no valid purpose, and were only used to inflame the jury’s passions.
As in all evidentiary matters, the admission of photographs rests within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Gates v. State, 338 Ark. 530, 541, 2 S.W.3d 40, 46-47 (1999). Even the most gruesome photographs may be admissible if they tend to shed light on any issue, to corroborate testimony, or if they are essential in proving a necessary element of a case, are useful to enable a witness to testify more effectively, or enable the jury to better understand testimony. Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994).
The photographs here helped the jury understand the testimony of the witnesses who arrived shortly after the shooting and observed Mr. Walls’s condition at the scene. Ray Whitson, an off-duty police officer and father of Levi Whitson, who lived across the street, testified that Mr. Walls had blood coming from his nose and mouth and that he had difficulty breathing. Scott Barr, the first responder who treated Mr. Walls at the scene, testified that he had gunshot wounds to his chest and back and that he had blood coming from his mouth. Because these photographs corroborate Mr. Whitson’s and Mr. Barr’s testimony about Mr. Walls’s condition at the scene and help the jury understand their testimony, the trial court did not err in admitting them. See Mosby v. State, 350 Ark. 90, 97, 85 S.W.3d 500, 503-04 (2002) (finding photographs more probative than prejudicial where they corroborated testimony of police officer who observed victim’s wounds prior to autopsy). We find no danger of unfair prejudice in the admission of the photographs.
The trial court erred when it allowed the hearsay testimony of Detective Mikeal Bates.
Appellant’s final point for discussion asserts that Detective Mikeal Bates’s testimony that appellant and the victim had an altercation the night before the shooting was inadmissible hearsay. We agree that it was hearsay, but hold that the error was harmless given the overwhelming evidence supporting appellant’s conviction.
A trial court has wide discretion in evidentiary rulings, and its ruling on a hearsay question will not be reversed unless the appellant can demonstrate an abuse of discretion. E.g., Peterson v. State, 349 Ark. 195, 200, 76 S.W.3d 845, 847 (2002). An out-of-court statement offered to explain a police officer’s actions during an investigation is not hearsay. See Martin v. State, 316 Ark. 715, 875 S.W.2d 81 (1994).
At trial, Detective Bates testified that as a part of the murder investigation, he also investigated an alleged altercation which occurred between appellant and the victim the night before the shooting. No witnesses to the alleged altercation testified. The trial court allowed the testimony as an exception to the hearsay rule, admitting the testimony to show why the detective investigated the incident rather than for the truth of the matter asserted.
Although the State argues that the statement was offered to explain the officer’s actions, this argument does not address why an explanation for the officer’s action was required. Nor does a review of the abstract demonstrate that the evidence was offered in the context of explaining a course of conduct. We must, therefore, conclude that the statement was offered for the truth of the matter asserted and should have been excluded as hearsay. However, the witness merely testified to the existence of an altercation. Where the evidence of guilt is overwhelming and the error allowing the admission of hearsay evidence is slight, we can declare the error harmless and affirm. E.g., Proctor v. State, 349 Ark. 648, 79 S.W.3d 383 (2002). Four eyewitnesses testified that they saw appellant shoot the victim, and the appellant himself testified that he drove to the location of the shooting to confront the victim about the defamatory statements. With such overwhelming evidence of appellant’s guilt, the error was harmless. Therefore, no reversible error occurred.
Accordingly, we affirm.
Hart, J., agrees.
Griffen, J., concurs. | [
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Karen R. Baker, Judge.
This appeal is from an order of the Sevier County Circuit Court finding that two logging-related businesses owned by appellant Michael Morris and three similar businesses owned by appellant Jim Morris owe appel-lee, the Arkansas Department of Finance and Administration, withholding taxes for their employees for the time period beginning in January 1989 and ending in December 1994. Appellants Michael Morris, d/b/a M & M and 3-M Transportation, Inc., and Jim Morris, d/b/a Morris Logging, Jim Morris Trucking, and Jim Morris Logging, Inc., assert error in the admission of evidence against them, the computation of the amounts owed appellee, and the dismissal of their claims for subrogation against their employees. We affirm the trial judge’s decision in all respects.
Appellants employed over 100 people in Lockesburg, Arkansas, between 1989 and 1994. Although appellants withheld federal income taxes from their employees’ wages and prepared W-2 forms, they did not withhold or remit state income taxes.- After conducting five audits, appellee assessed appellants for unpaid withholding taxes, interest, and penalties. Although appellants did not establish a reasonable cause for their failure to withhold the taxes, appellee conducted reaudits to give them credit for the income taxes that the employees had paid on those wages. According to appellee, if an employee had reported gross income in an amount at least equal to the amount of wages reported in the W-2 records, it gave appellants credit for the state income taxes that should have been withheld on those wages. Appellants challenged the reaudits and requested an administrative hearing] adopting the position that the state income taxes were the employees’ responsibility. Appellee upheld the assessments. Appellants filed this action for judicial relief from appellee’s determination under Ark. Code Ann. § 26-18-406 (Supp. 2001). In their complaint, appellants also sought subrogation from the employees, naming them as defendants.
Appellee’s auditor, Donald Gunter, testified at trial that he had reviewed appellants’ W-2 and W-4 payroll records between 1989 and 1994 and had prepared audit summaries from those records. Mr. Gunter testified that he had calculated the amounts of income taxes that should have been withheld by taking each employee’s W-2 income for each year, finding the correct amount of taxes due according to the state standard deduction tax table, and subtracting any allowable personal tax credits. He said that he did not compute withholding tax for any employee with $3,000 or less yearly income. He testified that each employee who had reported gross income in an amount at least equal to the amount of wages reported in the W-2 records was not included in the audits; therefore, appellants were given credit for the taxes that should have been withheld for those wages. Neither appellant Jim Morris nor Michael Morris testified, nor did any other officer of their companies.
In his order, the trial judge found that appellant Jim Morris was “well aware” of his obligation to withhold state income taxes from his employees’ wages but refused to do so. The judge noted that, since 1965, Arkansas employers have been required to withhold state income taxes from the wages paid to their employees and that any employer who fails to do so is personally and individually liable to the state for those taxes. Further, the judge refused to grant appellants subrogation against the employees, stating that appellants had cited no Arkansas statutory or case law to support their claim. The judge found that appellants were liable for such taxes, the statutorily permitted interest, and penalties as follows:
Michael Morris d/b/a M & M— $5,502 taxes; $1,925.70 penalty; interest at 10% from the due dates of the delinquent withholding taxes until paid;
3-M Transportation, Inc. ■— $4,690 taxes; $1,641.50 penalty; and interest at 10%;
Jim Morris d/b/a Morris Logging — $1,838 taxes; $643.30 penalty; and interest at 10%;
Jim Morris d/b/a/ Jim Morris Trucking — $6,871 taxes; $2,404.85 penalty; and interest at 10%; and
Jim Morris Logging, Inc. — $22,157 taxes; $7,754.95 penalty; and interest at 10%.
Arguments
Appellants make the following arguments: (1) the trial judge erred in admitting the audit summaries into evidence; (2) the judge erred in fading to deduct withholding for the employees who had paid their state income taxes; (3) the judge erred in denying appellants subrogation against the employees.
Admission of Evidence
Appellants assert that the judge committed reversible error by admitting appellee’s audit summaries into evidence without requiring appellee to first give notice of its intention to use such summaries and to produce at trial the documents from which they were compiled. In his order, the judge stated that, given the large number of employees, the amount of time, and the fact that five employers were involved, the audit summaries introduced by appellee were acceptable to establish appellants’ tax liability in lieu of all of the source documents. He stated: “Mr. Gunter’s testimony regarding audit procedures, techniques and calculations provided an adequate foundation for the admission of the Audit Summaries.” The judge also found that there was no evidence to suggest that appellants were denied access to any of appellee’s evidence and supporting documents prior to trial or that appellants had made proper discovery requests pursuant to the Arkansas Rules of Civil Procedure. He added: “The supporting W-2 and W-4 records were obtained from the [appellants or the appel lants’] accountant and therefore should have been readily available to [appellants] throughout the pendency of this case.” The judge also found that appellants had failed to prove that the reaudits were flawed in any respect.
The admission of evidence is at the discretion of the trial judge, and we will not reverse absent an abuse of that discretion and a showing of prejudice. Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001). Rule 1006 of the Arkansas Rules of Evidence controls the admissibility of summaries. It states:
The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.
This rule gives the trial judge discretion whether to accept or reject a summary or whether to order that the source documents be produced in court. See Dodson v. Allstate Ins., supra. Rule 1006 does not require that a party notify an opposing party that he intends to introduce a summary. Ward v. Gerald E. Prince Constr., Inc., 293 Ark. 59, 732 S.W.2d 163 (1987).
The five audit summaries introduced at trial as State’s Exhibits 1 through 5 set forth many details about the process by which they were prepared. Each sets forth the audit period, the company, the date completed, the identity of the auditor, the credits given during the reaudit, the auditor’s report, samples of the W-2 forms from which the audits were prepared, and computations of the taxes, penalties, and interest due. Mr. Gunter, the lead auditor who prepared these summaries, testified that he used appellants’ W-2 and W-4 records to prepare the summaries and explained the process in great detail. He also thoroughly described the care with which he had conducted the reaudits to ensure that appellants were given credit for the taxes that had been paid by the employees. Mr. Gunter stated that the W-2 forms were the “key documents” that he used to determine the employees’ wages. Appellants do not deny that these documents were obtained from them or their accountant. Given appellants’ possession of the source documents, and their failure to demonstrate prejudice, we cannot say that the judge abused his discretion in admitting these summaries.
Credit for Taxes Paid
Appellants argue that the judge erred in failing to give them credit for taxes paid by two employees who testified at trial that they had paid their taxes and by others who had indicated that they had done so in answers to interrogatories and requests for production of documents. Whether appellee gave appellants credit for all of the taxes actually paid by employees is a question of fact that is not reversible unless it is clearly against the preponderance of the evidence. The standard that we apply when reviewing a judgment entered by a circuit judge after a bench trial is well established. We do not reverse unless we determine that the circuit judge erred as a matter of law or we decide that his findings are clearly against the preponderance of the evidence. Riffle v. United Gen. Title Ins. Co., 64 Ark. App. 185, 984 S.W.2d 47 (1998). We view the evidence in the light most favorable to the appellee, resolving all inferences in the appellee’s favor. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998). The determination of the credibility of witnesses is within the province of the circuit judge, sitting as the trier of fact. Id.
In his decision, the judge stated that, although an employer who fails to withhold and remit such taxes due to “reasonable cause” is entitled to credit against its withholding liability to the extent that the employees have reported the wages paid by the employer and have paid state income tax on those wages, appellants had failed to do so “without reasonable cause.” He found that appellee had given appellants credit for any taxes reported and paid by the employees, even though appellants had failed to establish a reasonable cause for their failure to withhold and remit such taxes.
Arkansas Code Annotated section 26-51-905 (Repl. 1997), which is part of the Arkansas Income Tax Withholding Act of 1965, provides that employers paying wages to employees “shall deduct and withhold” income taxes from their wages and that such amounts shall be credited against the employees’ tax liabilities for that year. Arkansas Code Annotated section 26-51-908(a) (Supp. 2001) requires these employers to pay appellee the full amount that must be deducted and withheld. Section 26-51-908(e) states: “Every employer who fails to withhold or pay to the director any sums required by this subchapter to be withheld and paid shall be personally and individually liable therefor except as provided in § 26-51-916.” The exception set forth in § 26-51-916 (Repl. 1997) provides:
Every employer shall be liable for amounts required to be deducted and withheld by this subchapter regardless of whether or not the amounts were in fact deducted and withheld. However, if the employer fails to deduct and withhold the required amounts and if the tax against which the required amounts would have been credited is paid, the employer shall not be Hable for those amounts not deducted and withheld if the failure was due to reasonable cause.
Appellants introduced the testimony of a former employee, James McIntyre, who stated that he had paid his state income taxes for 1991-94. Janet Denson testified that she and her husband, Gerald, had paid state income taxes for 1991-94. Appellants also introduced into evidence documents pertaining to Paul and Sonia Yancey and William Jegstrup that purportedly showed that they had paid state income taxes, even though appellee had not given credit for these payments.
On the other hand, appellee’s records indicated that Mr. McIntyre and Mrs. Denson had not paid such taxes. Mr. Gunter testified that appellee had given appellants credit for all taxes paid by employees who had reported income at least equal to the amounts shown on the W-2 records maintained by appellants. The judge’s finding that appellee had done so is not clearly against the preponderance of the evidence.
In any event, appellee was under no obligation to give appellants credit for any of these taxes, because appellants failed to establish any reasonable cause for their failure to do so. We note that appellants have not appealed the judge’s finding that they did not establish reasonable cause for their failure to withhold and remit these taxes. Additionally, the evidence introduced at trial clearly demonstrated that appellant Jim Morris knowingly and willfully failed to withhold and remit the taxes. Mr. McIntyre testified that, when he had asked Morris why he was not withholding state income taxes, he said that “too much paperwork” and “too much hassle” were involved.
Accordingly, we affirm on this point.
Subrogation
Relying on general principles of subrogation, appellants contend that the judge erred in denying their claim for subrogation against the employees. They assert that the employee is the primary obligor for the state income tax withheld by an employer and, therefore, the employer that is required to pay that tax should be entitled to subrogation. To support their argument, appellants rely on St. Paul Fire & Marine Insurance Co. v. Murray Guard, Inc., 343 Ark. 351, 37 S.W.3d 180 (2001), which sets forth the general rules of subrogation. Subrogation is an equitable remedy that rests upon principles of unjust enrichment and attempts to accomplish complete and perfect justice among the parties. Id. The elements of subrogation are: (1) a party pays in full a debt or an obligation of another or removes an encumbrance of another; (2) for which the other is primarily liable; (3) although the party is not technically bound to do so; (4) in order to protect his own secondary rights, to fulfill a contractual obligation, or to comply with the request of the original debtor; (5) without acting as a volunteer or an intermeddler. Id. Subrogation is a doctrine of equity governed by equitable principles. Id.
Appellants misunderstand the nature of the obligation imposed upon employers by Arkansas’s withholding tax statutes: the only entities obligated by these statutes are employers. Arkansas Code Annotated section 26-51-908(e) expressly makes employers who fail to withhold and remit these taxes “personally and individually liable” for them. The basic rule of statutory construction is to give effect to the intent of the legislature. Central & S. Cos. v. Weiss, 339 Ark. 76, 3 S.W.3d 294 (1999). In considering the meaning of a statute, we consider it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000). If the language of a statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. Id. All statutes on the same subject are in pari materia and must be construed together. Boothe v. Boothe, 341 Ark. 381, 17 S.W.3d 464 (2000).
Arkansas’s withholding statutes unambiguously impose liability only on employers, not employees. Thus, it is the employer’s debt and not the debt of the employee pursuant to the statutes, and the elements of subrogation cannot be established. We note that appellants do not challenge the statutes or present any argument that the statutes wrongly place this liability on them.
Affirmed.
Hart and Griffen, JJ., agree. | [
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Olly Neal, Judge.
This is an appeal from an order of the Benton County Circuit Court, granting appellee’s motion for summary judgment. Appellants challenge the trial court’s finding that the protective covenants for Bella Vista Village permitted the implementation of a two-tiered assessment scheme based on whether a lot is improved or unimproved. They also argue that the trial court erred when it ignored the precedential treatment of Kell v. Bella Vista Village Property Owners’ Ass’n, 258 Ark. 757, 528 S.W.2d 651 (1975), on the issue of equal application of assessments to all lots in a subdivision. We affirm.
Bella Vista Village is a planned residential and commercial community that was formed in 1965. In accordance with the terms of the Bella Vista Declaration, the appellee, Bella Vista Village Property Owners’ Association (POA), was established to manage the affairs of Bella Vista Village. Every Bella Vista property owner is a member of the POA, and their property is subject to the declaration.
At issue in this appeal is article X of the declaration, which provides the framework whereby general annual assessments are levied against the property in Bella Vista. Article X provides, in part, as follows:
ARTICLE X
Covenant for Maintenance Assessments
Section 1. Creation of Lien. The Developer of each Lot and Living Unit owned by it within The Properties hereby covenants and each Owner of any Lot or Living Unit by acceptance of a deed therefor, or by entering into a contract of purchase with the Developer, whether or not it shall be so expressed in any such deed, contract of purchase, or other conveyance, shall be deemed to covenant and agree to pay to the Club: (1) annual assessments of charges; (2). special assessments for capital improvements, such assessments to be fixed, established and collected from time to time as hereinafter provided. The annual and special assessments, together with such interest thereon and costs of collection thereof as hereinafter provided, shall be a charge on the land and shall be a continuing hen upon the property against which each such assessment is made.
Section 2. Purpose of Assessments. The assessments levied hereunder by the Club shall be used exclusively for the purpose of promoting the recreation, health, safety, and welfare of the residents in The Properties and in particular for the improvement and maintenance of properties, services and facilities devoted to this purpose and related to the use and enjoyment of the Common Properties and the improvements situated on The Properties, including, but not limited to, the payment of taxes and insurance thereon, and repair, replacement, and additions thereto, and for the cost of labor, equipment, materials, management and supervision thereof. The limitation aforesaid shall not preclude the use of assessments levied hereunder for maintenance of roads and streets within The Properties, even though same have been dedicated to the public.
Section 3. Basis and Maximum of Annual Assessments. Until the year beginning January, 1970, the annual assessment shall be $60.00 per Lot or Living Unit. From and after January 1, 1970, the annual assessment may be increased by vote of the members, as hereinafter provided, for the next succeeding three years and at the end of each such period of three years for each succeeding period of three years. Unless the annual assessment shall be increased as aforesaid, it shall remain at $60.00 per Lot or Living Unit.
The Board of Directors of the Club may, after consideration of current maintenance costs and future needs of the Club, fix the actual assessment for any year at a lesser amount. Likewise, the Board of Directors of the Club may, after consideration of the lack of improvements as to lots in certain areas, fix the actual assessment for any year as to these particular lots at a lesser amount.
Section 4. Special Assessments for Capital Improvements. In addition to the annual assessments authorized by Section 3 hereof, the Club may levy in any assessment year a special assessment, applicable to that year only, for the purpose of defraying, in whole or in part, the cost of any construction or reconstruction, unexpected repair or replacement of the roads and streets within The Properties, even though same may have been dedicated to the public, and also a described capital improvement upon the Common Properties, including the necessary fixtures and personal property related thereto, provided that any such assessment shall have the assent of 51% of the votes of each class of members who are voting in person or by proxy at a meeting duly called for this purpose, written notice of which shall be sent to all Members at least 30 days in advance and shall set forth the purpose of the meeting. The Board of Directors of the Club may, after consideration of lack of improvements as to lots in a certain area, fix the actual assessment for any year as to these particular lots at a lesser amount.
Section 5. Change in Basis of Maximum of Annual Assessments. Subject to the limitations of Section 3 hereof, and for the purpose therein specified, the Club may change the maximum and basis of the assessments fixed by Section 3 hereof prospectively for any such period provided that any such change shall have the assent of 51% of the votes of each Class of Members who are voting in person or by proxy, at a meeting duly called for this purpose, written notice of which shall.be sent to all Members at least 30 days in advance and shall set forth the purpose of the meeting.
Section 6. Quorum for Any Action Authorized Under Sections 4 and 5. The Quorum of any actions authorized by Section 4 and 5 hereof shall be as follows:
At the first meeting called as provided in Sections 4 and 5 hereof, the presence at the meeting of Members, or of proxies, entitled to cast 50% of all votes of each class of membership shall constitute a quorum. If the required quorum is not forthcoming at any meeting, another meeting may be called, subject to the notice requirement set forth in Sections 4 and 5, and the required quorum at any such subsequent meeting shall be one-half of the required quorum at the preceding meeting, provided that no such subsequent meeting shall be held more than 90 days following the preceding meeting.
* * *
The declaration initially set the general annual assessment at sixty dollars per lot or living unit. However, in May of 2001, the POA board of directors submitted a ballot issue to the membership that would, if approved, have the effect of raising the assessment as to improved lots by ten dollars per month and the assessment as to unimproved lots by two dollars per month, effectively creating a two-tier assessment scheme based solely on the determination of whether a particular lot is improved or unimproved. Valid proxies were submitted by 52.4% of the membership. Of those received, 11,530 members voted in favor of the two-tiered assessment and 7,643 members voted against it.
On August 23, 2001, appellants filed their complaint for declaratory judgment, seeking a determination from the circuit court that the declaration provides no authority to the membership to establish a two-tiered assessment scheme. Thereafter, the parties each filed motions for summary judgment and a hearing was had on these motions on May 9, 2001. Following the hearing, the trial court granted appellee’s motion for summary judgment and denied appellants’ motion. From that decision comes this appeal.
Ordinarily, an order denying a motion for summary judgment is not an appealable order. Karnes v. Trumbo, 28 Ark. App. 34, 770 S.W.2d 199 (1989). However, when the order denying the motion is combined with a dismissal on the merits that effectively terminates the proceedings below, it is appealable. Shelter Mut. Ins. Co. v. Williams, 69 Ark. App. 35, 9 S.W.3d 545 (2001). The standard of review when an order denying a motion for summary judgment is appealed is whether the trial court abused its discretion in denying the motion. Karnes v. Trumbo, supra. Further, where the parties agree on the facts, we simply determine whether the appellee was entitled to judgment as a matter of law. Tunnel v. Progressive Northern Ins. Co., 80 Ark. App. 215, 95 S.W.3d 1 (2003).
Appellants argue first that the trial court erred when it found that the protective covenants for Bella Vista Village permitted the implementation of a two-tiered assessment scheme where the amount of a lot’s assessment is determined by whether the lot is improved or unimproved. Specifically, appellants state that:
The sole issue in this case is whether the restrictive covenants provide any authority for the POA’s creation of a general two-tiered scheme of assessments by less than a two-thirds affirmative vote of the members. . . . Appellants contend that there is no authority under the Declaration as written for such a general two-tiered assessment, and that the circuit court erred when it found otherwise.
A restrictive covenant is defined as a “private agreement, usually in a deed or lease, that restricts the use or occupancy of real property, especially by specifying lot sizes, building lines, architectural styles, and the uses to which the property may be put.” Black’s Law Dictionary 371 (7th ed. 1999). Restrictive covenants are not favored, and if there is any restriction on land, it must be clearly apparent. See Holaday v. Fraker, 323 Ark. 522, 915 S.W.2d 280 (1996). Restrictive covenants are to be strictly construed against limitations on the free use of property, and all doubts are resolved in favor of the unfettered use of land. Forrest Constr. v. Milam, 345 Ark. 1, 43 S.W.3d 140 (2001). The general rule governing the interpretation, application, and enforcement of restrictive covenants is that the intention of the parties as shown by the covenant governs. Id.
We hold that the covenant for maintenance assessment contained in Article X of the Bella Vista Village Declaration does not fall within the definition of a restrictive covenant; thus, strict construction is not required.
We have not previously addressed the review of actions of a property owners’ association which adversely affect some its members. Courts in other jurisdictions have concluded that there are limits upon the majority’s authority in these circumstances. In Buckingham v. Weston Village Homeowners Ass’n, 571 N.W.2d 842, 844 (N.D. 1997) (citing Thanasoulis v. Winston Towers 200 Ass’n, 110 N.J. 650, 542 A.2d 900, 903 (1988)), the supreme court of North Dakota held that condominium associations have a fiduciary duty to their unit owners. “Courts have accordingly adopted a ‘reasonableness’ rule, holding that, although the condominium’s governing body has broad authority to regulate .the internal affairs of the development, this power is not unlimited, and any rule, regulation, or amendment to the declaration or bylaws must be reasonable.” Id. at 844 (citing O’Buck v. Cottonwood Village Condominium Ass’n, 750 P.2d 813, 817 (Alaska 1988); Johnson v. Hobson, 505 A.2d 1313, 1317 (D.C. 1986); Scudder v. Greenbrier C. Condominium Ass’n, 663 So.2d 1362, 1369 (Fla. Dist. Ct. App. 1995); Ridgely Condominium Ass’n v. Smyrnioudis, 343 Md. 357, 681 A.2d 494, 498 (1996); Bluffs of Wildwood Homeowners’ Ass’n v. Dinkel, 96 Ohio App. 3d 278, 644 N.E.2d 1100, 1102 (1994)). Under the reasonableness test, a rule which is unreasonable, arbitrary, or capricious is invalid. Id. at 844-45 (citing Worthinglen Condominium Unit Owners’ Ass’n v. Brown, 57 Ohio App. 3d 73, 566 N.E.2d 1275, 1277 (1989)). In applying the reasonableness test, the reviewing court must determine:
(1) whether the decision or rule is arbitrary,
(2) whether the decision or rule is applied in an evenhanded or discriminatory manner; and
(3) whether the decision or rule was made in good faith for the common welfare of the owners and occupants of the condominium.
Bluffs of Wildwood, 644 N.E.2d at 1102. Courts will especially consider whether the majority’s action has an unfair or disproportionate impact on only certain unit owners. See Johnson, 505 A.2d at 1318. The reasonableness test[:]
protects against the imposition by a majority of a rule or decision reasonable on its face, in a way that is unreasonable and unfair to the minority because of its effect is to isolate and discriminate against the majority. It provides a safeguard against a tyranny by the majority.
Worthinglen, 566 N.E.2d at 1275.
Id. at 845.
As in Buckingham, supra, the facts in this case demonstrate the need for limitations on the majority’s authority to change the method of assessments. We hereby adopt the “reasonableness” test and conclude that the power of the governing body of a property owners’ association, homeowner’s association, or condominium’s association to make rules, regulations, or amendments to its declaration or bylaws is limited by a determination of whether the action is unreasonable, arbitrary, capricious, or discriminatory.
As appellee points out, the declaration does not state that the maximum and minimum must be the same for all lots. The only requirement contained in the declaration is that the assessment be approved by at least 51% of the voting members, which in this case, was done. Further, appellee points us to other jurisdictions where the two-tiered system has been upheld. In Longanecker v. Diamondhead Country Club, 760 So.2d 764 (Miss. 2000), the property owners’ association was faced with an increase in the amount charged by the security company that provided security service to the residents. To help cover the additional cost, the board voted to charge five dollars per month in additional fees to owners of single-family dwellings, three dollars per month in additional fees to owners of condominiums, and no additional charge to owners of unimproved lots. Certain owners of single-family dwellings brought suit alleging that the two-tiered system of assessments was invalid under both a Mississippi statute, which provided that all members shall have the same rights and obligations, and the covenants governing the association. The Mississippi Supreme Court found the system permissible, citing Ackerman v. Sudden Valley Community Ass’n, 89 Wash. App. 156, 944 P.2d 1045 (1997), stating:
•Similarly in this case, the different assessments did not create different classes of members. The distinction was rationally based on the purpose of the fees, i.e. owners of improved lots are more likely to use and need the benefits of security than owners of unimproved parcels of land. The distinction did not affect the other rights or obligations of the members in any way.
Longanecker v. Diamondhead Country Club, 760 So.2d at 771.
Likewise in the instant matter, members are charged varying “usage” fees for use of various POA amenities, but even more significant is the fact that the declaration does not specifically require equal assessment. Therefore, we hold that the creation of a two-tiered assessment scheme by the Bella Vista Village POA’s members was not unreasonable, arbitrary, capricious or discriminatory. Accordingly, we affirm.
Appellants also argue that the trial court erred when it ignored the precedential treatment of Kell v. Bella Vista Village Property Owners Ass’n, 258 Ark. 757, 528 S.W.2d 651 (1975), on the issue of equal application of assessments to all lots in a subdivision. In Kell, the court indicated that “[t]he provisions of Sections 3 and 4 of Article X, supra, providing that appellee may, after consideration of the lack of improvements as to lots in a certain area, fix the actual assessment for any year as to these particular lots at a lesser amount appears to be invalid since the owners thereof have the same privilege of using the common facilities as do any of the residents of improved lots.” There is no merit in appellants’ argument.
The issues in Kell were whether (1) appellants’ property constituted their homestead subject to the lien of the assessment; (2) appellants were bound to pay the annual assessments because the covenants did not run with the land; (3) appellants are bound by the lien created; (4) the covenant constitutes a perpetuity; (5) the developer was entitled to ten votes for each lot or living unit of which it was record owner; (6) the assessments arose out of contract and constitute a benefit to the property owner; and (7) the assessments were restraints on alienation. We have stated that dicta consists of statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to the determination of the case in hand, and they lack the force of an adjudication. See Clemmons v. Office of Child Support Enforcement, 345 Ark. 330, 47 S.W.3d 227 (2001). The issue in this case was not before the court in Kell, supra. Thus, what was said in dicta in Kell has no bearing on what we have decided here.
Affirmed.
Pittman and Roaf, JJ., agree. | [
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John Mauzy Pittman, Judge.
The appellant in this criminal case was charged with intentional adult abuse, a violation of Ark. Code Ann. § 5-28-103(b)(2) (Repl. 1997). After a bench trial, the trial judge announced that he found the evidence insufficient to prove intentional abuse, but found that appellant was guilty of committing negligent adult abuse in violation of Ark. Code Ann. § 5-28-103(c)(2). For reversal, appellant contends that the evidence is insufficient to support her conviction of negligent adult abuse. We cannot address this argument because it is raised for the first time on appeal, and, therefore, we affirm.
In order to contest the sufficiency of the evidence to support a conviction resulting from a bench trial, the defendant must have moved for dismissal at the close of all the evidence. Ark. R. Crim. P. 33.1(b). A general motion will not suffice; the defendant must specify the manner in which the evidence is insufficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. Ark. R. Crim. P. 33.1(c); Crisp v. State, 341 Ark. 893, 20 S.W.3d 394 (2000). In making his motion, a defendant must anticipate an instruction on lesser-included offenses and specifically address the elements of any lesser-included offense he wishes to challenge in the motion. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). This rule applies to bench trials as well as to jury trials. Green v. State, 79 Ark. App. 297, 87 S.W.3d 814 (2002).
In her brief, appellant recounts the events at trial, noting that she raised two arguments in her directed-verdict motion:
At the close of the State’s evidence, defense counsel argued, first, that the State had not presented evidence that there was serious physical injury or a substantial risk of death to either of the patients, as required by A.C.A. 5-28-103. Second, he argued that there was an intent portion which required purposeful action, and purposely is a culpable mental state. Thus, the proof would have to be that it was Appellant’s conscious object to inflict adult abuse on each of the residents by causing substantial physical injury. There was no such proof, he argued ....
Appellant then makes her argument on appeal, which is set out fully below:
The court’s finding that the procedure used by appellant was the problem is inconsistent with his finding that she provided negligent care and was guilty under A.C.A. 5-28-103(c)(2), as applied under A.C.A. 5-28-101(8)(A). The appellant did not negligently fail to provide necessary treatment, rehabilitation, care, food, clothing, shelter, supervision, or medical services; she did not fail to report health problems of the patients; and she did not fail to carry out a prescribed treatment plan. At most, appellant’s procedure in doing her job was inappropriate.
Just as the due process clause of the 14th amendment to the U.S. Constitution requires the prosecution to prove beyond a reasonable doubt all the elements included in the definition of the crime the defendant is charged with, so too must a trial judge find all the elements of a crime he or she decides an accused has committed.
Because no rational trier of fact could find guilt beyond a reasonable doubt under the statutes the court relied upon, the Appellant’s conviction should be reversed and dismissed.
As can be seen, appellant’s arguments at trial were directed at the elements of serious physical injury and purposeful intent, whereas her argument on appeal is directed at the trial court’s finding that she acted negligently. In essence, her argument on appeal is that there is no evidence to satisfy the element of negligent care and that, in the absence of proof of this element, her con viction must be reversed. Because the present argument is raised for the first time on appeal, we cannot address it, and we affirm.
Affirmed.
Gladwin, Robbins and Neal, JJ., agree.
Stroud, C.J., concurs.
Baker, J., dissents.
The dissent argues that this rule is inapplicable in the present case because negligent adult abuse is not, in fact, a lesser-included offense of intentional adult abuse. We express no opinion on this question because it was not argued either at trial or on appeal, and is thus not properly before us. See note 2, infra. We note, however, that appellant had abundant opportunity to raise this question below had she desired to do so. When appellant made her directed-verdict motion, the prosecuting attorney agreed that the element of serious physical injury was absent, and requested that the case should proceed on the “lesser-included offense,” a Class B misdemeanor. Appellant did not object. After the defense rested, the trial judge announced that the State had failed to meet its burden with respect to the Class D felony charge, but found that appellant was guilty of the “lesser-included” charge, a Class B misdemeanor violation of Ark. Code Ann. § 5-28-103(b) (2). Appellant did not object. Nor does she even complain on appeal about the trial court’s treatment of the offense for which she was convicted as a lesser-mcluded one of the charged offense.
The dissent correctly asserts that appellant properly raised the absence of proof as to the element of physical injury below, but wrongly asserts that this issue is therefore before us on appeal. Although this issue was in fact argued at trial in appellant’s directed verdict motion, appellant’s argument on appeal contains not one word in reference to the element of physical injury.
It is a familiar rule of practice that an appellate court does not reverse on a ground not argued by the appellant. See Cummings v. Boyles, 242 Ark. 923, 415 S.W.2d 571 (1967); McGuire v. Smith, 58 Ark. App. 68, 946 S.W.2d 717 (1997). This is so even where there was an appropriate objection at trial that would have entitled the appellant to make such an argument on appeal. See King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996); Dillard v. State, 313 Ark. 439, 855 S.W.2d 909 (1993); Mecca Seed Co. v. London, 47 Ark. App. 121, 886 S.W.2d 882 (1994). This rule is applicable even in cases that are heard de novo on appeal, see Cummings v. Boyles, supra, and has even been applied, in the context of Rule 37.5 appeals following cases where the death penalty has been pronounced. See, e.g., Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001).
Although it may be difficult to allow an apparent error to go uncorrected, we must sometimes do so because we may not reach out and find an unargued issue on which to reverse a trial court. White v. Winston, 302 Ark. 345, 789 S.W.2d 459 (1990). Any basis for reversing a case on appeal should originate in the arguments advanced by the appellant, not from arguments created by appellate judges. Dalrymple v. Dalrymple, 74 Ark. App. 372, 47 S.W.3d 920 (2001). | [
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Olly Neal, Judge.
Appellant, Sammy Denton, brings this appeal from the trial court’s order granting summary judgment in favor of the appellees, Clifton and Linda Pennington d/b/a Pennington Companies. On appeal, he asserts that the trial court erred when it found there were no genuine issues of material fact. We reverse and remand.
The appellees own Wingate Plaza, a commercial property located in Faulkner County, Arkansas. Wingate Plaza is composed of five buildings, buildings A, B, C, D, and E. Building A was unique from the other buildings in that along the back of the building a continuous wooden deck, that was built by the appellees, ran the length of the building. The appellees employed someone who routinely patrolled and visually inspected the common areas of the property. The employee would occasionally hammer nails that were sticking up in the deck back into place.
Appellant leased office space in Wingate Plaza. His office was located in suite 3 of building A. On January 16, 1999, while walking along the deck from suite 2 to suite 3, appellant injured his back when his foot went through a board in the deck. The injury left appellant unable to work. On March 27, 2000, appellant sued the appellees for breach of contract and negligence. Following discovery, the appellees filed a motion for summary judgment, asserting that they did not have a duty to repair the deck. Appellant filed a response in which he asserted that the appellees had created and undertaken a duty to repair the deck. The trial court found that the appellees had no duty to maintain or repair the deck and granted their motion for summary judgment. Appellant now appeals.
Summary judgment is a remedy that should be granted only when there are no genuine issues of fact to litigate and when the case can be decided as a matter of law. Carver v. Allstate Ins. Co., 77 Ark. App. 296, 76 S.W.3d 901 (2002). The moving party bears the burden of showing that there is no issue of material fact. See Wheeler v. Phillips Dev. Corp., 329 Ark. 354, 947 S.W.2d 380 (1997). Once the moving party has established a. prima fade entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Spears v. City of Fordyce, 351 Ark. 305, 92 S.W.3d 38 (2002). On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.
On appeal, appellant contends that the appellees agreed in the lease contract to maintain and repair the deck. Arkansas follows the common-law rule that a landlord owes no duty to his tenant to repair the premises. Stewart v. McDonald, 330 Ark. 837, 958 S.W.2d 297 (1997); Majewski v. Cantrell, 293 Ark. 360, 737 S.W.2d 649 (1987); Hurst v. Feild, 281 Ark. 106, 661 S.W.2d 393 (1983). However, we have recognized that a duty can arise in certain circumstances under the terms of the lease. See Stewart v. McDonald, supra. The pertinent parts of appellant’s lease provide:
7. Repairs
A. Lessor’s Repairs
Lessor shall maintain the exterior walls, doors, and roof, exterior, interior, plumbing, wiring, heating, ventilation and air conditioning systems of the structure upon the leased premises in reasonable state of repair as may be required to keep and maintain the same in good and tenable condition, to include changing furnace filters periodically so as to maintain heating and air conditioning units.
17. Common Areas
Any parking area or other areas which lessor may provide shall be for the joint use of lessor, lessee, other tenants or lessor and the customers, invitees, and employees of lessor, lessee, and other tenants of lessor; and lessor hereby grants to lessee the right, during the term of this lease, to use any-parking area and other common areas which may be provided in common with others entitled to the use thereof. The use thereof shall be subject to such reasonable regulations or limitations as lessor shall make or require from time to time.
The question of duty owed by one person to another is ordinarily one of law. Elkins v. ARKLA, Inc., 312 Ark. 280, 849 S.W.2d 489 (1993). However, when the matter of legal duty is the subject of a contract which is ambiguous as to the parties’ intent, a question of fact is presented. Id.; Easterling v. Weedman, 54 Ark. App. 22, 922 S.W.2d 357 (1996). Language in a contract is ambiguous when there is doubt or uncertainty as to its meaning or it is fairly susceptible of two interpretations. American Investors Life Ins. Co. v. Butler, 76 Ark. App. 355, 65 S.W.3d 472 (2002). On motion for summary judgment, the court viewing the evidence in the light most favorable to the nonmoving party, ascertains the plain and ordinary meaning of the language in the written instrument, and if there is any doubt about the meaning, there is an issue of fact to be litigated. Carver v. Allstate Ins. Co., supra.
Here, the lease agreement provides that the appellees would maintain the exterior in a reasonable state of repair. The word “exterior” makes paragraph 7 in the lease ambiguous. “Exterior” is susceptible to more than one interpretation in that it may or may not encompass the deck. A material question of fact remained; therefore, the trial court erred when it granted the appellees’ motion for summary judgment.
Appellant also contends that the appellees assumed the duty to maintain and repair the deck. An assumption of duty by conduct can remove the landlord from the protection of the general rule of nonliability. Eoff v. Warden, 330 Ark. 244, 953 S.W.2d 880 (1997).
The evidence established that the appellees had an employee patrol and visually inspect the common areas of the property, including the deck. The employee’s duties included picking up the trash, trimming the hedges, mowing the lawn around the deck, and making sure the premises were clean. In addition, the employee would often drive in nails that she found protruding from the deck. Therefore, the question becomes whether the appellees removed themselves from the general rule and assumed a duty to repair the deck.
In Wheeler v. Phillips Development Corp., supra, the appellant injured herself when she stepped on a rock that was on the sidewalk at her apartment complex. At the time of her accident, the apartment manager was operating a weedeater in the vicinity. Appellant filed suit alleging that her landlord breached its duty of care by failing to keep the sidewalk clear. In response to the landlord’s motion for summary judgment, the appellant argued that the apartment manager’s duties, which included mowing, weedeating, and cleaning off the sidewalk, created a genuine issue of material fact as to whether the landlord had assumed a duty to keep the area safe. In affirming the trial court’s grant of summary judgment, our supreme court held that maintaining the grounds of an apartment complex did not create an assumption of a duty to keep the common areas safe. Id.
The case at bar is distinguishable from Wheeler. Here, the appellees’ maintenance person drove nails back into the surface of the deck, swept the deck, and cut the grass in and around the deck. Viewing the evidence in a light most favorable to appellant, we conclude that there was a question as to whether the maintenance person’s conduct created an assumption of maintenance by the appellees.
Based on the foregoing, we hold that the trial court erred when it granted the appellees’ motion for summary judgment. There were material questions of fact as to whether the appellees agreed to maintain and repair the deck in the lease and as to whether the appellees’ conduct created an assumption of a duty to maintain and repair the deck. Therefore, we reverse and remand.
Reversed and remanded
Pittman and Roaf, JJ., agree. | [
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Olly Neal, Judge.
On March 1, 1995, Eugene Branum was killed while in the course and scope of his employment with his employer, Service America Corporation. A hearing was held on February 25, 1997, to determine the appropriate beneficiaries of death benefits and their benefit amounts. The adminis trative. law judge determined that Beverly Branum, Eugene Branum’s widow, her two children, Kevin Bunn and Shawn Bunn, and the deceased’s children from a previous marriage, Jeffrey Allen Branum, Jeannie Marie Branum, and Terry Lynn Branum (now McClain), were wholly and actually dependent upon the deceased at the time of his death. Although she was married and no longer a full-time student under the age of twenty-five, Terri Lynn McClain was determined to be wholly and actually dependent upon the deceased due to mental incapacity.
It is undisputed that appellant, Death & Permanent Total Disability Fund (Fund), was not in attendance at this hearing. It argues that it received no notice of any proceedings until it was served with a copy of the ALJ’s opinion that ordered benefits to be paid to all named beneficiaries. Upon receipt of the opinion, the Fund advised the attorney who represented the insurance carrier, Wausau Insurance Company, that it did not agree with the finding of dependency made on behalf of Terri Lynn Branum McClain, Jeffrey Branum, Kevin Bunn, or Sean Bunn. The Fund’s letter, dated October 17, 1997, stated as follows:
The Death and Permanent Total Disability Trust Fund has examined the information on this case and from that have taken the position that Terry Lynn (Branum) McClain was not an eligible dependent at the time of Mr. Branum’s death. We have also determined that both Kevin and Sean Bunn were not wholly and actually dependent upon decedent.
However, the Fund took no further action. The Fund acknowledged receipt of a copy of the ALJ’s opinion in a letter dated October 23, 2000, in which it stated:
The Trust Fund received a courtesy copy of the March [7], 1997 opinion on this case prior to the official AR-D notification received on June 25, 1997 from Wausau. The deceased[,] by prior marriage, had either adopted children or natural children. In an “Agreed Order” dated August 30, 1991, for child custody, the deceased was given custody of two children and the ex-wife [’s] two children. The order also relieved the deceased of obligation of child support as previously ordered. It is the Trust Fund’s opinion that this Order eliminated the expectations of support for Terri Lynn Branum and Jeffrey Branum.
* * #
The Trust Fund has taken a position that the step-children were not wholly and actually dependent on the deceased. Several factors from our investigation support this. The claimant only earned 40% of the household income as [ ] Beverly Branum earned the majority of the income. Ms. Branum also carried claimant and her two children on her medical coverage.
* * *
A subsequent hearing was held on June 12, 2001, wherein all parties were represented by counsel. In a pre-hearing order entered on March 22, 2001, the parties stipulated that the issues to be determined were (1) whether the Fund was bound by the March 7, 1997 opinion; (2) whether Terri Lynn Branum McClain was entitled to any dependent’s benefits; and (3) whether Kevin Bunn and Sean Bunn were entitled to full benefits as children of the deceased. At the hearing, the following colloquy took place:
Fund’s Counsel: Your Honor, our position on that is that at the — as we were not a party, we treat this as if the first hearing had never taken place, Your Honor, and under the Code, as well as the established case law, those seeking compensation benefits have the burden of proving they’re entitled to them.
ALJ: Well, you forget one aspect of the hearing and, that is, whether or not you all are bound by this. That’s one aspect. And I suppose the moving party on that is the respondent/employer/carrier is the moving party in regard to whether or not the Death & Permanent Total Disability Bank Fund is bound by these things and is obligated to commence the payment of benefits. You know, I am not sure that this is just another case where we just hold the prior hearing as a nullity and that the burden is on the claimants to reprove their case. That’s only true if your contention holds up that you’re not bound by the prior order or opinion.
Fund’s Counsel: And that is our position, Your Honor.
ALJ: I understand that, but, I mean, that’s not — that hasn’t been' decided. I mean, if that had been decided, then maybe we wouldn’t be here again retrying this case[.] . . .
Fund’s Counsel: Your Honor, this case does not involve a change of status. It involves the fact that one party is being asked to pay benefits that was not mentioned at all in the previous hearing. It was not mentioned in the style of the case nor the opinion. It was not given notice.
ALJ: All right. It appears, then, that you all have already decided. What you want to do is you want to go on your other deal. You want to go on the issue first. You want the issue tried and decided first, whether this prior opinion is binding against the Death & Permanent Total Disability Bank Fund?
Claimants’ counsel: Yes.
ALJ: That’s what everybody wants?
Wausau’s counsel: Yes, Your Honor. . . .
ALJ: Well, that’s well and good, I mean, if that’s what everyone wants, is an opinion first ' on whether or not this prior decision or whether or not this prior opinion is binding on the Fund, so be it. That’s the way we’ll proceed. All right. How about the Fund? What evidence do they want to put on in regard to that issue?
Fund’s Counsel: Well, Your Honor, again I don’t think the Fund has the burden of proving it’s binding on the Fund when it was not a party in any way.- I think the burden would be on those seeking —
ALJ: I’m not saying it’s your burden of proof. I’m just asking you if there’s any proof you want to put on. Whether you’ve got the burden of proof or not, you’ve got a right to put on proof. That’s one of the reasons we’re here —
Fund’s Counsel: I understand. If you’re asking about the issue —•
— is your argument that you weren’t afforded an opportunity to put on proof. Now, do you want to put on any proof to support your argument that it isn’t binding on you because you were deprived of putting on proof? ALJ:
Our position, of course, Your Honor, is it’s an issue of law and, obviously, we could cite some law to you in the form of briefs or memorandums or such as that. We did submit direct request for admissions and interrogatories to all the parties regarding that issue, whether we were put on notice. We can introduce those. But I think both claimants —• at least would anticipate — would be willing to admit that they did not put the Fund on notice, and I have their sworn answers here that I can introduce. Fund’s Counsel:
ALJ: Introduce them. Let’s get it all in that you want in on this particular issue.
Fund’s Counsel: Specifically, Your Honor, we will be admitting answers to request for admissions submitted to both claimants and the respondents, basically asking them to admit or deny that they had given us notice and their responses accordingly.
ALJ: . . . Anything else you all want to present in the way of evidence on this limited issue?
Not in the form of documentary evidence, Judge. We would ask to give some citations of law. Fund’s Counsel:
All right. ... I would request that that be done in the way of trial briefs. ALJ:
All right. Fund’s Counsel:
I’ll allow anyone that wants to file a trial brief to file one within 15 days. Due to the nature of this proceeding and the fact that it is almost an absolute certainty, however I rule, that it will not stop with me, and the fact that these payments are coming to an end, I’ll try to expedite this case as much as possible to get you a decision as soon as possible, so have your briefs in within 10 days. ALJ:
There is no evidence in the record that any party submitted a brief on this matter. Thereafter, the ALJ determined that the Fund was bound by the previous ALJ opinion and entered an order on August 14, 2001, finding that the Fund was collaterally estopped from challenging the previous opinion and barred from relitigating the issue under the doctrine of laches. The Full Commission adopted the decision of the ALJ in an opinion filed August 22, 2002, and this appeal followed.
On appeal, the Fund argues that the Commission erred in (1) holding that it is bound by the March 7, 1997 administrative-law-judge opinion, (2) applying the doctrine of collateral estoppel against it, and (3) applying the doctrine of laches against it. We affirm.
When reviewing a decision from the Workers’ Compensation Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirms that decision if it is supported by substantial evidence. Death & Permanent Total Disability Trust Fund v. Brewer, 76 Ark. App. 348, 65 S.W.3d 463 (2002). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. See id. The issue is not whether the appellate court might have reached a different result from the Commission; if reasonable minds could reach the result found by the Commission, the appellate court must affirm the decision. Id.
In the case at bar, the Commission issued a brief opinion which set out the specific findings of the administrative law judge, and affirmed and adopted the administrative law judge’s opinion as the decision of the Commission. Under Arkansas law, the Commission is permitted to adopt the administrative law judge’s decision. See Odom v. Tosco Corp., 12 Ark. App. 196, 672 S.W.2d 915 (1984). Moreover, in so doing, the Commission makes the administrative law judge’s findings and conclusions the findings and conclusions of the Commission. See ITT/Higbie Mfg. v. Gilliam, 34 Ark. App. 154, 807 S.W.2d 44 (1991). Therefore, for purposes of our review, we consider both the administrative law judge’s order and the Commission’s majority order.
Appropriated funds for the Death and Permanent Total Disability Trust Fund are administered for the use and benefit or at the direction of the Workers’ Compensation Commission. See Ark. Code Ann. § 11-9-301 (Repl. 2002). Additionally, Arkansas Code Annotated section 11-9-205 (Repl. 2002) provides the Workers’ Compensation Commission with the authority to make any such rules and regulations as it may find necessary. As established under the Commission, the Fund is subject to these rules and regulations. Neither party has provided the applicable rule in the record, but it is agreed upon that Rule 28 of the Workers’ Compensation Rules provides:
a) A party desiring to raise the issue of liability to the Death and Permanent Total Disability Trust Fund shall name the Trust Fund as a party by notifying the Special Funds Administrator of the Workers’ Compensation Commission and all other parties no later than ninety days prior to the completion of payment of the first Fifty Thousand or Seventy-Five Thousand (depending on the applicable limit) and weekly benefits pursuant to ll-9-502(b) of the Act in writing by a form of mail requiring a signed receipt. The notice shall include a current Form A-30 to be filed with the Workers’ Compensation Commission.
b) Failure to give notice as set out above shall constitute a waiver of a claim of Death and Permanent Total Disability Fund liability until such time as the notice requirements in (a) above are met. In no event shall the employer or his carrier cease payments for death or permanent total disability prior to compliance with the notice requirement above.
c) This rule shall not apply in claims where a certificate of acceptance has been received from the Death and Permanent Total Disability Trust Fund and there have been no changes since the date of the certification of acceptance.
There is no requirement under the established rules that the Fund receive any notice prior to ninety days before the completion of payment of the first $75,000 and weekly benefits paid pursuant to ll-9-502(b) (Repl. 2002). Nor did any of the parties have reason to believe that any other notice was required. Under Rule 28, the only requirement is that the Fund receive notice ninety days prior to when it was calculated that the carrier would have reached its maximum liability, which was determined to be on July 7, 2001. Therefore, as substantial evidence supports the decision of the Commission, we affirm.
Affirmed.
Gladwin and Robbins, JJ., agree. | [
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Andree Layton Roaf, Judge.
This is an appeal from the Workers’ Compensation Commission’s order affirming and adopting the Administrative Law Judge’s decision, which found that appellee Cleaster Bryant was entitled to a 15% whole body physical impairment rating for his compensable shoulder injury. On appeal, appellant Avaya (Lucent Technologies) challenges the manner in which Bryant’s physician used the AMA Guides in calculating his impairment rating and argues that the Commission’s decision in respect to these calculations is not supported by substantial evidence. We affirm.
On June 29, 1999, while employed by Avaya as a repairman, Bryant injured his shoulder when loading a control box onto a truck. In his deposition, Bryant stated that the control box started to fall, and as he was trying to catch it, he felt something pop in his right shoulder. Bryant was diagnosed with a rotator cuff tear and underwent arthroscopic surgery by Dr. Jimmy Tucker on July 26, 1999, to repair the tear. Bryant was released to full duty approximately six months later. After he continued to experience pain in his shoulder, Bryant was referred to Dr. David Collins in August 2000. In his office note of August 28, 2000, Dr. Colhns stated that Bryant had a failed rotator cuff repair and that he was also symptomatic with acromioclavicular arthrosis. Bryant underwent a second surgery on his right shoulder in October 2000 to repair the failed rotator cuff. In addition, Dr. Collins performed an arthrotomy of the acromioclavicular joint (“AC joint”) and a distal clavicle excision. Avaya accepted Bryant’s injury as compen-sable and paid for all of his medical treatment related to the injury, as well as temporary total disability benefits. On February 28, 2001, Dr. Collins stated in an office note:
There is no change in the physical appearance of the shoulder. There is very mild crepitation, although his range of motion with assist is nearly full. He has 4+}/5 external rotation power, 5/5 deltoid and subscapularis.
Mr. Bryant has reached maximum medical improvement following a work-related injury to the right shoulder. He has sustained permanent partial impairment on the basis of injury to the rota-tor cuff, acromioclavicular joint, and surgical treatment of the shoulder environment. This would include alteration of the del-toid process, acromion process, coracoacromial ligament, rotator cuff, greater tuberosity, and acromioclavicular joint. Impairment is equal to 25% to the upper extremity, equal to 15% to the body as a whole.
Mr. Bryant is released to activities without restriction. He will be seen as needed.
Bryant made a claim for permanent partial disability benefits in the amount of 15% to the body as a whole, and Avaya controverted the rating, contending that it was excessive. The matter was submitted to the ALJ without a hearing on stipulated facts, briefs, medical exhibits, and Bryant’s deposition. The parties stipulated that Bryant sustained a compensable shoulder injury on June 29, 1999, and that he earned an average weekly wage sufficient to entitle him to $303 for temporary total disability benefits and $227 for permanent partial disability benefits. In his deposition, Bryant stated that he had returned to work after being released without restrictions on February 28, 2001, and that he was performing the same type of job. Bryant further stated that he had not had any subsequent problems with his shoulder, that he was not currently talcing any medications, and that he could perform his job without any problems.
In its brief, Avaya argued that the 15% impairment rating was invalid and excessive because Dr. Collins failed to properly calculate the extent of Bryant’s disability in accordance with the AMA’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993) (“AMA Guides”). Avaya contended that a 15% impairment rating to the body as a whole is only appropriate for a 100% loss of function of the AC joint of the shoulder, according to the AMA Guides, and that the evidence showed that Bryant has had no residual problems with his shoulder since his release by Dr. Collins. Using the AMA Guides, Avaya calculated its own impairment rating based on the objective medical findings and alleged that Bryant was entitled to a maximum impairment rating of 6.6% for his shoulder injury.
In its decision of December 19, 2002, the ALJ disagreed with Avaya’s argument and found that the 15% impairment rating assessed by Dr. Collins was not excessive. The ALJ noted that Bryant had to undergo two different surgeries to repair his shoulder injuries and that Dr. Collins was an orthopedist, whose specialty is the treatment of shoulder injuries and who has an excellent reputation in the orthopedic community. Avaya then appealed to the Commission, who affirmed and adopted the ALJ’s findings of fact. The Commission also discussed Avaya’s calculation of its impairment rating pursuant to the AMA Guides and disagreed with its method. The Commission calculated its own impairment rating and concluded that the objective medical findings warranted an impairment rating of 19%, according the AMA Guides. Because this rating was in excess of that assessed by Dr. Collins and requested by Bryant, the Commission found that the 15% impairment rating awarded by the ALJ was not excessive. Avaya now appeals from this ruling.
On appeal, Avaya argues that the decision of the Commission that Bryant was entitled to a 15% impairment rating to the body as a whole is not supported by substantial evidence. When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission. Rice v. Georgia Pacific Corp., 72 Ark. App. 148, 35 S.W.3d 328 (2000). 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. Id. 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 & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).
Any determination of the existence or extent of physical impairment must be supported by objective and measurable physical findings. Ark. Code Ann. § 11 — 9—704(c) (1) (B) (Repl. 2002). Pursuant to Ark. Code Ann. § ll-9-522(g)(l) (Repl. 2002), the Commission must adopt an impairment rating guide to be used in the assessment of anatomical impairment, and the Commission has adopted the AMA Guides to be used in this assessment. Arkansas Workers’ Compensation Commission Rule 34. The Commission is authorized to decide which portions of the medical evidence to credit and to translate this medical evidence into a finding of permanent impairment using the AMA Guides. Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001). Thus, the Commission may assess its own impairment rating rather than rely solely on its determination of the validity of ratings assigned by physicians. Id.
Avaya argues on appeal, as it did before the Commission, that the 15% impairment rating assigned by Dr. Collins is excessive based on the objective medical evidence, and it has again calculated its own rating by applying the AMA Guides to the medical findings. A discussion of Avaya’s method of calculating its impairment rating is necessary for a resolution of its argument on appeal.
The AMA Guides provide the following summary of steps for evaluating impairment to the shoulder: “Determine upper extremity impairments due to loss of motion (Section 3.lj, p. 41) and other disorders (Section 3.1m, p. 58) and combine the values to determine the upper extremity impairment involving the shoulder region.” AMA Guides, p. 66. Finding that there is no basis for an assessment of permanent impairment due to loss of motion, Avaya calculates all of Bryant’s impairment to his shoulder under Section 3.1m of the AMA Guides, which discusses other disorders involving the upper extremity. The impairments under Section 3.1m are evaluated separately, and “appropriate impairment percents from Tables 19 through 30 are multiplied by percents from Table 18” representing the impaired parts. Id. at 58. “Appropriate impairment percents are combined with other impairment percents using the Combined Values Chart (p. 322).” Id. Table 18 provides a 25% upper extremity impairment and a 15% whole person impairment for 100% loss of function of the AC joint of the shoulder.
Using Table 27 of Section 3.1m, which provides for impairment of the upper extremity after arthroplasty of specific bones and joints, Avaya asserts that Bryant is entitled to an impairment rating of 24% to the joint for a total shoulder resection arthroplasty and 10% for a distal clavicle resection arthroplasty. Avaya then refers to the Combined Values Chart and finds that these ratings combine to produce a 32% impairment rating to the joint. Avaya then multi plies this 32% rating by the 15% whole person rating provided in Table 18 for total loss of function of the AC joint and concludes that Bryant should be assessed a permanent impairment rating of 4.8% to the body as whole as a result of the arthroscopy and distal clavicle excision. Due to Dr. Collins’s finding that Bryant also suffers from “very mild crepitation,” Avaya also refers to Table 19, which provides for impairment from joint crepitation. However, because the lowest rating in Table 19, which is 10% impairment, only applies to “mild crepitation,” Avaya contends that Bryant is not entitled to any degree of permanent impairment for this condition. In the alternative, if Bryant is entitled to permanent impairment for his very mild crepitation, Avaya argues that this 10% impairment combined with the other impairments results in a 39% impairment rating to the joint. When multiplied by the 15% rating in Table 18, this 39% impairment to the joint results in a rating of 5.9% to the body as a whole. Therefore, Avaya contends that Bryant is not entitled to an impairment rating of more than 5.9% to the body as a whole, based on the objective medical findings.
In its opinion, the Commission analyzed Avaya’s calculation of Bryant’s impairment rating and stated that it disagreed with Avaya’s method. The Commission did not disagree with Avaya’s finding that, using Table 27, Bryant was entitled to a 24% impairment rating for a total shoulder arthroplasty and a 10% impairment rating for a distal clavicle arthroplasty, or that these ratings combined to produce an impairment rating of 32%. However, the Commission acknowledged that there was confusion as to what part of the body the 32% rating relates. The Commission asserted that Avaya had misinterpreted Table 27 as assigning impairment values only to the shoulder joint, when Table 27 instead assigns impairment values from arthroplasty of specific bones and joints to the entire upper extremity. Thus, the Commission found that Avaya had incorrectly lowered the rating by too great a factor when it multiplied the 32% impairment rating by using the 15% whole-person factor from Table 18. Although it recognized that the AMA Guides, on page 58, state that the impairment percents from Tables 19 through 30 are to be multiplied by percents from Table 18 representing the impaired part, the Commission noted that the text on page 61 also states that “simple resection arthroplasty is given 40% impairment of the joint value,” which is more than the combined rating that results from all of the procedures performed on Bryant, and that the ratings in Table 27 clearly are already calculated for the upper extremity, instead of just the shoulder joint. The Commission also noted that the example calculations' provided in Section 3.1m were consistent with its interpretation.
The Commission instead used Table 3 on page 20, which provides a conversion from upper extremity impairment to whole body impairment, to find that the 32% upper extremity impairment rating converts to a 19% impairment rating to the body as a whole, exclusive of any additional impairment rating for Bryant’s crepitation. Thus, the Commission found that a 19% impairment rating was appropriate based on the objective medical evidence and because this rating exceeded the rating that Dr. Collins had assigned, the Commission found that a preponderance of the evidence supported the ALJ’s decision to award Bryant a 15% impairment rating.
We find that the Commission’s decision is supported by substantial evidence. The Commission was correct in finding that Avaya’s calculation of a 32% impairment rating applies to the entire upper extremity and that this rating should then be converted to an impairment rating to the body as a whole using Table 3. Avaya’s method of multiplying the 32% rating by the 15% whole person factor in Table 18 is not appropriate, as Table 27 has already directly converted ratings resulting from particular procedures to an impairment of the upper extremity as a whole. Indeed, Table 27 is captioned “Impairment of the Upper Extremity After Arthroplasty of Specific Bones or Joints.” As the Commission found, Table 3, rather than Table 18, should thus be used to convert the 32% impairment rating of the upper extremity to an impairment of the whole person, which in this case is 19%. AMA Guides, p. 20.
Although Avaya argues that the text of Section 3.1m states that the impairment percentages from Tables 19 through 30 should all be multiplied by percents from Table 18 representing the impaired parts, the Commission found that the textual language notwithstanding, this directive could not apply to Table 27. The majority of the tables in Section 3.1m list the percentage of impairment to the joint itself, and not to the entire upper extremity as in Table 27. However, the tables that list percentage impairment to the joint also note within the tables themselves that these impairment values should be multiplied by the relative value of the joint found in Table 18. No such instruction appears in Table 27 or in Table 26, which is the only other table in this section to list impairment values to the upper extremity instead of to the joint. Also, in Section 3.1o, there is a summary of steps for evaluating impairments of the upper extremity, including the shoulder region. AMA Guides, p. 66. Step X provides that once the percentage of upper extremity impairment is calculated, this percentage should he converted to a whole-person impairment using Table 3. Id. Accordingly, we find that the Commission correctly found that the objective medical evidence warranted a 19% impairment rating pursuant to the AMA Guides, and that there is therefore substantial evidence to support its decision affirming the ALJ and finding that the award of a 15% permanent impairment rating to Bryant for his shoulder injury was not excessive.
Affirmed.
Hart and Bird, JJ., agree. | [
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John B. Robbins, Judge.
The appellants in this case are Lisa J Michelle Alford and Carl Andrew Alford, who are the only two children of Carl E. Alford, now deceased. The appellees are Eula Hale, Janice Richards, Connie Alford, Geneva Healey, and Alicia Meriweather. The appellees are CarlE. Alford’s sisters. CarlE. Alford died on January 5, 1989, and was buried at Pinecrest Memorial Park in Alexander, Arkansas.
On October 1, 2002, the appellants filed a “petition for authority to disinter.” In their petition, appellants asserted that their mother, June Alford, had died and could not be buried at the site where Carl E. Alford was currently buried. As a result, June Alford was buried at Chapel Hill Memorial Park in Jacksonville, Arkansas. The appellants petitioned the trial court to allow them to disinter their father’s remains so that he could be buried beside their mother at Chapel Hill Memorial Park. The appellants alleged that they were carrying out their parents’ wishes in trying to assure that their parents’ final resting places were side by side.
On October 21, 2002, the trial court entered an order authorizing the appellants to have the remains of their father disinterred and moved to rest alongside their mother. The order recited, “All parties, entities, and companies, including, but not limited to, the Pinecrest Cemetery, shall allow said disinterment without inference.” However, at the time the order for authority to disinter was entered, the-trial court informed the appellants that they needed to serve all parties and wait thirty days before taking action on the order.
The appellees were thereafter notified of the proceedings, and on October 29, 2002, filed a motion to set aside the order authorizing disinterment. On the same day, the trial court entered an order stating that no action shall take place in the matter until a full hearing is held and pending motions can be heard by the court.
A hearing was held on February 21, 2003, and by order entered March 6, 2003, the trial court granted the appellees’ motion to set aside the previous order for disinterment, and ordered that there shall not be any disinterment of Carl E. Alford. The order recites:
The Court makes its findings specifically upon the fact that the decision of the placement of Carl Eugene Alford was made prior to his death and he participated in the decision of his burial; that the son of the decedent, Carl Andrew Alford participated in the decision of this burial, as well as the wife of the decedent, June Alford, participating and writing checks for his burial. There was no evidence that there was any discussions or decisions for Carl Eugene Alford to be buried anywhere other than Pinecrest until after the death of June Alford.
The Court makes this finding contingent upon two other requirements. First, June Alford may be buried by Carl if the children desire. Second, the children shall decide upon the headstone for June Alford in the event they decide to move her to Pinecrest.
Lisa Michelle Alford and Carl Andrew Alford now appeal, arguing that the trial court erred in refusing to permit them to disinter their father. We agree, and we reverse.
Connie Alford testified on behalf of the appellees at the hearing. She stated that prior to Carl E. Alford’s death, their father, Carl Lee Alford, had purchased four adjacent plots at Pinecrest Memorial Park. When Carl E. Alford died, he was buried in one of the plots. Connie testified that appellant Carl Andrew Alford purchased an extra plot for her below the other four spaces, because Carl E. Alford was buried in the plot intended for her. Since that time, both of Carl E. Alford’s parents have died. His father is buried to the left of his plot, and his mother is buried to the left of his father’s plot. The plot to the right of Carl E. Alford’s plot remains vacant.
Connie testified that when Carl E. Alford was dying of cancer she and her father offered her burial place at Pinecrest. Connie further asserted that Carl Andrew Alford and June Alford were involved in the decision to bury him at Pinecrest. Carl Andrew Alford signed the interment order authorizing his father to be buried at Pinecrest, and June Alford paid for opening the grave and a headstone.
Connie testified that her relationship with the appellants was very close up until their mother’s death. She further stated that at no time prior to their mother’s death did either appellant talk about moving their father. They did, however, discuss burying their mother at Pinecrest, and it was not until after her death that Connie discovered she was to be buried elsewhere.
Connie acknowledged that, at the time her brother died, she agreed with her mother, father, and older sister not to put a double marker on his grave because June was young and might have remarried. However, June did not remarry, and Connie testified that she does not object to June being buried in the plot to the right of her brother. Connie maintained that Carl E. Alford took part in the decision to be buried at Pinecrest. She further stated that it is very important to her that he remain there. She stated that since his death she has consistently visited and placed flowers on his grave.
Alicia Meriweather also testified for the appellees. She stated that she visits Carl E. Alford’s grave often, and that the appellants never contacted her about having June Alford buried at Pinecrest. Alicia testified that she would welcome appellants’ moving their mother from Jacksonville to rest beside Carl. E. Alford at Pi-necrest. Alicia further stated, “I don’t ever agree with disinterring a body, ever.” Another of the appellees, Geneva Healey, stated, “Carl being buried where he is had special meaning to me for just family closeness, you don’t want to bother him.”
Betty Finley, the owner of Pinecrest Memorial Park, testified that Pinecrest has certain rules and regulations regarding interment and ownership. She stated that Pinecrest’s policy is that the property owners have to give their approval for disinterment. Ms. Finley explained that this policy did not originate from any statute or regulation, but is simply designed to prevent her business from being sued. The plot where Carl E. Alford is buried was owned by his father, Carl Lee Alford, but because Carl Lee is deceased his heirs, the appellees, own the plot. Pursuant to Pinecrest’s policy, no disinterment would be permitted without the appellees’ approval.
Carl Andrew Alford testified for the appellants. He stated that he checked into burying his mother at Pinecrest in September 2002, about a week before she died. According to Carl Andrew, he had a telephone conversation with a Pinecrest employee, who found a note from 1989 in the file. She read the note over the telephone, and the note says:
There are five sisters and one brother to Carl E. Alford. They are children of Carl L., who is the property owner. Siblings have spoken with father and according to Bea Hale, sister, they are in agreement that only a single marker may be purchased for Carl E. They do not wish for June to be interred in space 13. Do not sell or set a companion marker without authority of Carl L.
After hearing about the note, Carl Andrew thought the appellees did not want his mother buried at Pinecrest with their family. Therefore, he and his sister purchased plots at the cemetery in Jacksonville. Carl Andrew testified that “I want to disinter my dad so that he can be buried by my mother and us, my sister and I.”
Sharon M. Leinbach, the State Registrar and Director of the Division of Vital Records for the Arkansas Department of Health, was unavailable to testify. However, she signed an affidavit that was admitted into evidence, and the affidavit states:
I, the undersigned, do state the following under oath. That I am the State Registrar and Director of the Division of Vital Records of the Arkansas Department of Health.
Under Arkansas Code Annotated 20-18-604(e), I, as the State Registrar, am required to issue an authorization for disinterment to a licensed funeral director, upon proper application.
According to Regulation 7.4 of the Rules and Regulations pertaining to Vital Records promulgated under the authority of Act 1254 of 1995, I, as the State Registrar, am given the exclusive authority to issue disinterment permits.
The attached Request to Disinter is the form that my office provides and requires when a disinterment is sought. The form includes all of the requirements of our office and the instructions for proceeding with the disinterment process. No other information, notices or consents are required, other than those listed on this form. Although I will honor any court order, to my knowledge, court involvement is NOT required for disinterment. I require only that a licensed funeral director submit the completed request to disinter which bears the signature of the next of kin.
The “Request to Disinter” form referred to in the above affidavit contains the following “next of kin authorization,”
I Certify That I Am The Deceased’s Authorized Family Member To Request This Disinterment.
I Understand That Vital Records Law Recognizes A Deceased Person’s Spouse, Children, Parents, Grandparents, and Grandchildren as Authorized to Receive Death Certificate Information. In The Spirit of This Law, I Have Notified These Family Members of This Disinterment.
On appeal, the appellants argue that the trial court’s refusal to allow them to disinter their father was contrary to the controlling statutes and regulations of this state. The appellants cite Ark. Code Ann. § 20-18-604(e) (Repl. 2000), which provides:
Authorization for disinterment and reinterment shall be required prior to disinterment of a dead body or fetus. The authorization shall be issued by the state registrar to a licensed funeral director, or person acting as such, upon proper application.
Arkansas Code Annotated section 20-18-202 (Repl. 2000) governs the regulatory powers of the State Board of Health and contains the provision that, “The board is authorized to adopt, amend, and repeal rules and regulations for the purpose of carrying out the provisions of this chapter.” Pursuant to the above authority the “Rules of Regulations pertaining to Vital Records” were promulgated. Regulation 7.4 provides, in pertinent part:
No dead human body shall be removed from its place of original interment except under the following conditions:
(1) Unless a permit from the State Registrar or his designated representative marked “Disinterment Permit” be secured by a licensed funeral director in charge of the disinterment. The qualified person making the application shall present to the State Registrar, the correct name, age, date of death of the body to be disinterred, place of disinterment, together with written consent of the next of kin or their authorized representatively the local law enforcement officer, or by court order. The State Registrar may require legal proof of such kinship or legal authority.
The appellants correctly assert that Regulation 7.4 requires consent of the next of kin, but does not require that notice be given to other family members or the owner of the cemetery plot. The registrar requires that the form be completed by a licensed funeral director and signed by next of kin. However, the appellants submit that no Arkansas law requires a court order for disinterment of a body when there has been written consent by the next of kin. The appellants further assert that there is no requirement that the next of kin provide any reasons for their desire to disinter. Therefore, the appellants argue that the trial court was without any legal basis to interfere with their desire to have their father’s remains disinterred.
We agree with the appellants’ argument as applied to the facts of this case. In interpreting a statute the appellate court will give the words in the statute their ordinary and common usage, and if the language is plain and unambiguous, the analysis need go no further. Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997). The relevant statutory authority for this case gives the board of health the authority to adopt rules and regulations, and gives the state registrar the power to authorize the disinterment of a dead body. The regulations permit disinterment upon the satisfaction of certain conditions that include consent of the next of kin, but there is no requirement that the next of kin offer a compelling reason for disinterment with the application. Nor is there any statutory or regulatory provision suggesting that the next of kin’s power to consent to disinterment is in any way compromised if the next of kin participated in the initial burial decision. By the plain wording of the Arkansas statutes and regulations pertaining to disinterment, the appellants, as next of kin, should not have been prevented from proceeding with disinterring their father and having him buried next to appellants’ mother.
The appellees cite numerous cases that purport to justify the trial court’s action in this case. In Tully v. Tully, 177 S.E.2d 49 (Ga. 1970), the Georgia Supreme Court announced that while the right to have a dead body remain undisturbed is not absolute, a court will not ordinarily order or permit it to be disinterred unless there is a strong showing that it is necessary and that the interests of justice require it. In Fidelity Union Trust Co. v. Heller, 84 A.2d 485 (N J. Super. 1951), it was held that “after interment a body is in the custody of the law and removal is subject to the jurisdiction of a court of equity, but the power should not be exercised unless it be clearly shown that good cause and urgent necessity for such action exists.” In Mestjian v. Town of Cerro Gordo, 475 N.E.2d 287 (Ill. App. 4th 1985), it was stated that in light of the sanctity of a grave, permission to remove buried remains will not be lightly granted.
While appellees have identified caselaw from foreign jurisdictions in attempt to support their position, these cases are unavailing. This is because none of them address the same, or similar, statutory or regulatory provisions that we are bound to follow in deciding this case.
However, there are cases from other states that support the arguments of the appellants. In Dueitt v. Dueitt, 802 S.W.2d 859 (Tex. App. 1991), it was held that because the applicable disinterment statute provides that a surviving spouse may agree with the cemetery association to remove a decedent’s remains without obtaining a court order, there is no need to prove a necessity or compelling reason for disinterment. In that case, the appellate court stated that when the legislature enacts a statute that provides a clear and distinct right, it must be presumed the legislative enactment established the public policy of the state with respect thereto. Similarly, in In re Elman, 578 N.Y.S.2d 95 (1991), it was held that there is no need for application to a court for disinterment if all of the required statutory consents of the relatives are obtained, and that application is necessary only if the required consents cannot be obtained.
There is one case cited by the appellees where the appeals court upheld the denial of the surviving spouse’s petition to disinter the remains of his ex-wife, notwithstanding a statute that provided him the right to do so. See Spanich v. Reichelderfer, 628 N.E.2d 102 (Ohio App. 1993). However, in that case the petitioner had been separated from his wife and had a tenuous relationship with her prior to her death. The facts were so strong that the trial court found he was not even a “surviving spouse” under the meaning of the statute, and the appeals court used its equitable powers to prevent abuse of the statute. That case is clearly distinguishable from the case at bar, in that there is no evidence in the instant case to suggest anything but a normal relationship between the appellants and their father. Under the facts presented, we cannot say there has been any abuse of the regulation governing disinterment.
We hold that the trial court erred in ruling that there shall be no disinterment of the remains of Carl E. Alford. We, therefore, reverse the trial court’s order entered March 6, 2003.
Reversed.
Baker and Roaf, JJ., agree.
We note, however, that there is no evidence that Carl E. Alford executed a will with any provision regarding his place of burial. Nor did he execute a declaration governing the final disposition of his bodily remains as is authorized under Ark. Code Ann. § 20-17-102 (Supp. 2003). | [
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John Mauzy Pittman, Judge.
On January 15, 2002, the appellee, Naomi Burns, filed a petition to quiet title asserting that she had obtained title by adverse possession to certain land in Faulkner County, Arkansas, and praying that an order be entered confirming her title to the described land. A large number of persons were specifically named as parties, together with all of the surviving and unknown heirs at law of those parties. Appellee filed her warning order the same day, and the warning order was published in a local newspaper on January 20 and January 27, 2002. Although appellant was not served, she moved to intervene on March 20, 2002, asserting that she had purchased the land in question from the Arkansas State Land Commissioner because of delinquent taxes in August 2001. After the trial court granted appellant’s motion to intervene, appellee moved for summary judgment and for an injunction against appellant, asserting that appellant’s deed was void because the land description contained therein was indefinite. The trial court agreed, and entered an order granting appellee’s motion for summary judgment and injunction against appellant, enjoining appellant from maintaining any property or possessory rights in or to the land claimed by appellee, and ordering appellant to remove her person and property from the premises within thirty days. From that decision, comes this appeal.
For reversal, appellant contends that the trial court lacked subject-matter jurisdiction because the warning order did not comply with Ark. Code Ann. § 18-60-503. We agree, and we reverse.
We first address the question of whether the order appealed from is an appealable order. As appellee notes, the order in the present case did not conclude the rights of all the parties, and Ark. R. Civ. P. 54(b) requires that a final judgment may be entered as to fewer than all the claims or parties in a case only upon an express finding and certification that there is no just reason for delay. There was no such Rule 54(b) certification by the trial court in the present case. Nevertheless, the trial court’s order is appealable. Appellee specifically requested, and obtained, injunctive relief against appellant in her “Amended Motion for Summary Judgment and Injunction,” including an order directing appellant to remove her person and property from the land in question. The Arkansas Rules of Appellate Procedure specifically permit an appeal from an interlocutory order by which an injunction is granted, Ark. R. App. P. — Civ. 2(a)(6), and a mandatory injunction is an appealable order under that Rule. Tate v. Sharpe, 300 Ark. 126, 777 S.W.2d 215 (1989). Because the specific provision authorizing an appeal under Ark. R. App. P. — Civ. 2(a)(6) controls over the general provisions in Ark. R. App. P.—Civ. 2(a)(1) and Ark. R. Civ. P. 54(b) without regard to the provisions of Rule 54(b), East Poinsett County School District No. 14 v. Massey, 317 Ark. 219, 876 S.W.2d 573 (1994), the present appeal is properly before us.
With regard to the merits, appellant contends that the trial court lacked subject-matter jurisdiction because the warning order did not comply with Ark. Code Ann. § 18-60-503 (1987). We agree. Section 18-60-503(a) (1987) establishes the procedure by which notification must be given to all persons who claim an interest in the disputed land, providing that:
(a) Upon the filing of the petition [to quiet title], the clerk of the court shall publish a notice of the filing of the petition on the same day of each week, for four (4) weeks in some newspaper published in the county. . . . The petition shall describe the land and call upon all persons who claim any interest in the land or lien thereon to appear in the court and show cause why the title of the petitioner should not be confirmed.
Appellee concedes that the warning order in the present case, which was published only for two weeks instead of the four weeks required by § 18-60-503(a), did not comply with that statute. In the absence of compliance with the notice requirements of § 18-60-503(a), appellee cannot make a prima facie case to quiet tide, Eason v. Flannigan, 349 Ark. 1, 75 S.W.3d 702 (2002), and the trial court lacked subject-matter jurisdiction to adjudicate the rights to the land. Koonce v. Mitchell, 341 Ark. 716, 19 S.W.3d 603 (2000).
Where the trial court lacks subject-matter jurisdiction, the appellate court also lacks subject-matter jurisdiction; accordingly, we reverse and dismiss. Id.
Reversed and dismissed.
Neal and Roaf, JJ., agree. | [
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Terry Crabtree, Judge.
Pursuant to Ark. R. Crim. P. 24.3, the appellant, Marvin L. Thornton, entered a conditional guilty plea to possessing marijuana with intent to deliver. The Jefferson County Circuit Court sentenced him to three years’ probation and fined him $750. On appeal, appellant maintains that the trial court erred in denying his motion to suppress. We affirm.
Appellant argues that he was seized during a traffic stop and that he did not voluntarily consent to a search of his shoes, which yielded marijuana. Specifically, appellant contends that the officer’s request that he remove his shoes was a custodial interrogation, which triggered his rights under Miranda v. Arizona, 384 U.S. 436 (1966). In reviewing suppression issues, appellate courts “conduct a de novo review based on the totality of the circumstances, reviewing findings of historical fact for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court.” Davis v. State, 351 Ark. 406, 413, 94 S.W.3d 892, 896 (2003).
The trial court held a suppression hearing, and four witnesses testified, including appellant. The testimony demonstrated that appellant’s brother, Jeff Smith, drove a silver Cadillac with appellant and his cousin riding as passengers to a convenience store in Pine Bluff, Arkansas, where they stopped for gas. Two of them separately entered the store, walked around, and left without buying anything. These actions aroused the suspicions of Jefferson County Sheriffs Deputy Mike Powers, who was in the store visiting with the clerk. Powers decided to check the tags on the Cadillac. However, as he stepped outside, the car backed up across the parking lot in an apparent effort to obscure the license plate. Powers maneuvered his car to make the occupants of the Cadillac think he was leaving. When the Cadillac pulled out, he radioed in the license plate number. The license plate was registered to a blue GMC truck. Recognizing that the Cadillac displayed fictitious tags, Powers called for a backup patrol unit and followed the vehicle into traffic.
As the Cadillac reached the outskirts of town, it made a sudden left turn into the parking lot of another convenience store. Powers characterized this move as evasive, and he doubled back and waited nearby. The Cadillac began to pull out of the parking lot, then backed up suddenly as though its occupants had seen Deputy Powers’ car. Powers pulled into the parking lot, notified his dispatcher that he had no choice but to proceed without backup, and approached the occupants of the car. Immediately prior to his approach, Smith attempted to exit the Cadillac, and appellant’s cousin exited the car and walked around the back corner of the store. Powers ordered both men back into the car. Powers asked Smith for driver identification. Smith handed him a fictitious high-school identification card. While Powers was speaking with the car’s occupants, Sergeant Calvin Terry, a canine officer, arrived with his dog.
In the meantime, a customer of the store approached Powers and reported that, when Powers had driven by the store, one of the passengers in the Cadillac exited the car and hid a plastic bag in the receptacle that contained window-washing fluid. The customer stated that, when it appeared that Powers had left, the same occupant retrieved the bag and returned to the car. Based upon this information and the previous actions of the Cadillac’s occupants, Powers suspected that the occupants were engaged in narcotics activity.
After Terry arrived, Powers ordered the occupants out of the car. Powers conducted a safety frisk of them. Appellant informed Powers that he had a pocket knife. Powers discovered no other weapons. Because it was raining, the officers eventually moved the occupants to the front of the store, in front of the vehicle, underneath an overhang. Captain Greg Bolin also responded to the incident, but he did not get out of his vehicle. Terry’s car was parked behind Powers’ car, and Bolin’s car was parked briefly behind Terry’s car. An off-duty officer, Jody O’Mary, heard the dispatcher’s report and stopped at the scene. O’Mary was in his personal vehicle, and he parked it away from the other police vehicles. O’Mary stood near the occupants when the car was searched.
Sergeant Terry retrieved his dog from the patrol car and ran it around the Cadillac. The dog positively indicated on the car, and a physical search revealed pieces of marijuana and residue on the carpet and throughout the interior of the car. Powers testified that in his experience, narcotics offenders often hide drugs in their shoes. Terry testified that he asked whether any of the passengers had any drugs on them, and all of them, including appellant, said that they did not. Terry also stated that he noticed that only appellant’s shoes were untied. Terry further stated that he asked if the occupants minded removing their shoes, and all agreed to do so. According to Terry, appellant kicked off his shoes, and the officers recovered a plastic bag from inside one of the shoes that held individually wrapped bags of marijuana.
Upon discovery of the contraband, the officers arrested appellant for possession of marijuana with intent to deliver. Later that day, appellant admitted to the police that the marijuana found in his shoe did not belong to his brother or cousin. In his pretrial motion to suppress, appellant argued that his statement and the seized marijuana should be excluded as evidence. The trial court denied the motion. On appeal, appellant maintains that when Sergeant Terry asked him to remove his shoes, appellant was subjected to a custodial environment such that Miranda warnings were required. We disagree.
In his oral findings, the trial judge stated:
First of all I think that the officers had more than — they had good reason to stop this vehicle. Once they stopped this vehicle, events transpired that, that caused them to develop probable cause to go further than, than what they probably, initially thought they were going to do. I do not believe that the, the circumstances out there, the surroundings out there amounted to an in-custody interrogation[.]
The State contends that the trial court found that appellant consented to the search. We need not decide that issue because we hold that the police had probable cause to arrest appellant for possession of marijuana and that the search of his shoes was incident to his arrest.
When Deputy Powers ran the tags on the Cadillac, he learned that it was registered to a blue GMC truck. At that point, Powers had probable cause to stop the car because he had reason to believe that he had witnessed a violation of the law in his presence. See Medlock v. State, 79 Ark. App. 447, 89 S.W.3d 357 (2002) (holding that officer had probable cause to arrest driver of car for having a fictitious license plate in violation of Ark. Code Ann. § 27-14-306(a) (Repl. 1994)). Our state supreme court has explained:
Having made a valid traffic stop, the police officer may detain the offending motorist while the officer completes a number of routine but somewhat time-consuming tasks related to the traffic violation, such as computerized checks of the vehicle’s registration and the driver’s license and criminal history, and the writing up of a citation or warning. During this process the officer may ask the motorist routine questions such as his destination, the purpose of the trip, or whether the officer may search the vehicle, and he may act on whateyer information is volunteered.
Laime v. State, 347 Ark. 142, 157-58, 60 S.W.3d 464, 474-75 (2001), cert. denied 535 U.S. 1055 (2002).
Following a valid traffic stop, the officers engaged in the sort of routine tasks permitted by Laime, supra. Sergeant Terry testified that he was present at the convenience store with his drug dog and that the dog sniffed the car. The dog’s positive indication gave the officers additional cause to search the Cadillac, see Willoughby v. State, 76 Ark. App. 329, 332, 65 S.W.3d 453, 456 (2002), and, once evidence of narcotics activity was found inside the car, the officers were justified to investigate further.
An officer may arrest a person without a warrant if he has reasonable cause to believe that the person has committed a felony or any violation of law in the officer’s presence. Ark. R. Crim. P. 4.1. Reasonable cause exists where facts and circumstances, within the arresting officer’s knowledge and of which he has reasonably trustworthy information, are sufficient within themselves to warrant a man of reasonable caution to believe that an offense has been committed by the person to be arrested. Gass v. State, 17 Ark. App. 176, 706 S.W.2d 397 (1986). Most courts agree there is no substantive distinction between the terms “reasonable cause” and “probable cause.” Johnson v. State, 21 Ark. App. 211, 730 S.W.2d 517 (1987). Where an officer has the probable cause to arrest pursuant to Rule 4.1, he may validly conduct a search incident to arrest of either the person or the area within his immediate control. Earl v. State, 333 Ark. 489, 970 S.W.2d 789 (1998).
Here, Officer Powers made several observations that amounted to probable cause to arrest appellant: (1) the passengers’ suspicious actions upon entering the convenience store; (2) the Cadillac’s evasive maneuvering after coming into contact with Officer Powers; (3) the vehicle’s display of fictitious tags; (4) Smith’s production of a fictitious identification card; (5) the customer’s report that an occupant of the Cadillac hid a plastic bag in the cleaning receptacle; (6) the canine’s positive alert on the exterior of the Cadillac; (7) the officer’s discovery of pieces of marijuana and residue throughout the interior of the vehicle upon a physical search; and (8) the appellant’s untied shoes. Because Powers had probable cause to arrest appellant after the canine discovered narcotic residue inside the car, Powers could lawfully conduct a search incident to an arrest, and he did. See Earl, supra.
A search is valid as incident to a lawful arrest even if conducted before the actual arrest provided the arrest and search are substantially contemporaneous and there was probable cause to arrest prior to the search. Rawlings v. Kentucky, 448 U.S. 98 (1980); Brunson v. State, 327 Ark. 576-A, 940 S.W.2d 440 (1997). Based upon his observations, Officer Powers clearly had probable cause to place appellant under arrest prior to the search. Furthermore, appellant’s formal arrest followed quickly on the heels of the challenged search of appellant’s person, see Rawlings, 448 U.S. at 111, and as soon as the officer found the contraband in appellant’s shoe.
Judged by these standards and based on the evidence of record, we conclude that probable cause to arrest the appellant existed prior to the challenged search, that the search and subsequent arrest were “substantially contemporaneous,” and that the trial court did not err in refusing to suppress the evidence.
In reaching our holding, we reject the dissent’s mischarac-terization of this case as falling within the purview of the Fifth Amendment. The dissent cites no authority for the proposition that a person in appellant’s position must be issued Miranda warnings during a search incident to a lawful arrest. In fact, the dissent avoids addressing this issue altogether. This case fits squarely within the parameters of the Fourth Amendment’s analysis regarding unreasonable searches and seizures. Here, the search was not unreasonable because an exception to the rule applies, namely, a search incident to a lawful arrest.
Stroud, C.J., Gladwin, and Neal, JJ., agree.
Baiter, J., concurs.
Griffen, J., dissents. | [
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Andree Layton Roaf, Judge.
Appellant Allen Wayne Hudson was convicted of first-degree murder and aggravated robbery, for which he was sentenced as an habitual offender to respective terms of imprisonment of forty-two years and twenty years, to be served consecutively. On appeal, Hudson argues that the trial court erred in: (1) erroneously admitting into evidence a prior consistent statement of a witness pursuant to Ark. R. Evid. 801(d)(1)(h); (2) admitting evidence of other crimes and bad acts pursuant to Ark. R. Evid. 404(b); (3) sentencing him for both first-degree murder and aggravated robbery when both offenses were committed by the same act and one was an element of the other, which was double jeopardy under the state and federal Constitutions; (4) failing to perform its gate-keeping function in allowing expert testimony on blood-spatter pattern analysis because such evidence is not rehable or relevant scientific evidence pursuant to Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). We affirm on all points.
Hudson was charged as an accomplice to capital murder and aggravated robbery in connection with the death of Grace Vowell, a ninety-three-year-old resident of Green Forest, Arkansas. Vow-ell was bludgeoned to death while in her bed with what was later determined to be a claw hammer. Three other defendants, Ronald Garner, Damon Fuson, and Sony Weathereal, were also charged as accomplices to the aggravated robbery and murder. Hudson does not challenge the sufficiency of the evidence to support the convictions; thus, a detailed recitation of the facts is unnecessary.
Hudson, the three other defendants, and Donna Clark went to the victim’s home on the night of December 10, 1999, with the purpose of getting money to buy drugs. While Clark remained in their vehicle to act as a lookout, Hudson and the other three entered the house where the robbery and murder were, committed. Weathereal and Clark testified about Hudson’s involvement in the crimes, and Weathereal further testified that he saw Hudson wash his hands and burn his shirt under a bridge afterwards. Several of the State’s witnesses, including Rachel Popeet and Delsey Web-ber, testified about statements Hudson made to them after the murder in which he acknowledged his involvement.
After all of the evidence was presented, the trial court instructed the jury that Clark and Weathereal were accomplices to the robbery and murder by their own testimony and that their testimony must be corroborated by other evidence. After deliberation, the jury convicted Hudson of the lesser-included offense of first-degree murder, as well as aggravated robbery. Hudson was sentenced to twenty years’ imprisonment for the aggravated robbery conviction and forty-two years’ imprisonment for the first-degree murder conviction. The trial court ordered that the sentences be served consecutively.
Hudson first argues that, because the defense’s cross-examination of Delsey Webber did not imply that she had changed her initial statement to the police, the trial court erroneously admitted into evidence her two prior statements pursuant to Ark. R. Evid. 801 (d)(1)(h). This issue arose during the defense’s cross- examination of Webber, when she was questioned extensively about a prior videotaped conversation with Officer Brad Handley of the Green Forest Police Department on March 26, 2001, the same day that she was interviewed by the prosecutor and received a subpoena to testify in the case. The conversation came about because Webber, who was nervous about testifying, called Hand-ley after receiving the subpoena and asked that he meet her.
After Webber confirmed during direct examination that no one had told her what to say in her testimony, defense counsel showed her the transcript of the March 26 conversation and questioned her as to whether Handley had advised her to testify that Hudson had “wanted to buy some dope,” in response to anticipated questioning. Webber was also confronted with the March 26 statement to impeach her testimony that she had not tried to commit suicide or had not told anyone that she was the star witness in the case in order to be the center of attention. She was also questioned about a portion of her recorded conversation with Handley where she stated that the prosecutor had told her to look at him before answering any questions at trial and that he would signal her whether to answer or not. In addition, Webber was questioned as to where she was currently living and as to who was paying the bill. Webber replied that she was staying in a motel and that Carroll County was paying for it, although probably just through that night.
On re-direct, the prosecutor sought to introduce Webber’s March 7 written statement to police, in which she first discussed her conversation with Hudson and what he had told her regarding Vowell’s murder. Defense counsel objected, and the prosecutor replied that it was for the purpose of rebutting an express accusation that her testimony at trial was recently fabricated. The trial court overruled the objection, agreeing that the defense had made express or implied charges of recent fabrication or improper influence or motive in connection with Webber’s trial testimony, especially considering the inquiry into Webber’s current living conditions. The March 7 statement was then admitted by the trial court, with a limiting instruction to the jury that the statement was not to be considered for the truth of the matter asserted, but only to show that it was consistent with Webber’s testimony at the trial.
After further re-direct examination on the March 26 conversation between Webber and Handley, where she attempted to explain what she had meant when she had stated that the prosecutor had told her to look at him before answering any questions at trial, the prosecutor sought to introduce the tape recording of this conversation. The prosecutor argued that the improper motive the defense had tried to establish was from this conversation and that the jury needed to hear the entire tape to understand the context in which she made that statement. Although he initially suggested that the entire tape be played, defense counsel objected when the prosecutor sought to introduce it. The trial court allowed its introduction, stating that the defense had placed into issue what Webber had told Handley in relation to her anticipated testimony.
Hudson now argues on appeal that the trial court erred in allowing both the March 7 and 26 prior statements of Webber into evidence under Ark. R. Evid. 801(d)(1)(h). The general rule is that a prior consistent statement of a witness is not admissible to corroborate or sustain his testimony given in court, as to allow such statements would be self-serving and cumulative. Harris v. State, 339 Ark. 35, 2 S.W.3d 768 (1999). However, according to Ark. R. Evid. 801(d)(1)(h), a prior statement by a witness is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is “consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.” See also Frazier v. State, 323 Ark. 350, 915 S.W.2d 691 (1996). “The word ‘recent,’ describing the fabrication, is merely a relative term, meaning that the challenged testimony was supposedly fabricated to meet the exigencies of the case.” Jones v. State, 318 Ark. 704, 724, 889 S.W.2d 706, 716 (1994). Thus, this principle has no application when a witness had the same motive for fabrication when the statement was made as he had when he testified in the case. Id.
Hudson argues that he did not assert in his cross-examination that Webber had changed her testimony from her earlier statements to police, but was merely impeaching her credibility in general. Hudson asserts that he only referred briefly to the prior statements in question and that the trial court’s admission of these statements were only used to bolster Webber’s testimony at trial, which is not permitted under Rule 801 (d) (1) (ii). As the State argues, contrary to Hudson’s assertions, an examination of the record demonstrates that the cross-examination of Webber was primarily centered on the March 26 statement. Not only did the defense impeach Webber’s testimony at trial in several instances by referring to the transcript of this March 26 conversa tion, but also expressly and impliedly suggested several different motives and influences on Webber’s trial testimony, such as that Officer Handley told her what to say at trial during the March 26 conversation, that she was the “star witness” and would make things up and lie to be the center of attention, and that she was being provided room and board in exchange for her testimony.
These attempts to portray that Webber had recently fabricated her testimony and that there were improper influences and motives on her trial testimony allowed the prosecution to properly admit her prior consistent statements under Rule 801 (d) (1) (ii). These suggestions of improper influence and fabrication occurred subsequent to Webber’s March 7 statement to police, which was given before she learned that she would be subpoenaed to testify in Hudson’s case. Thus, this statement was properly admitted into evidence.
The tape recording of the March 26 statement was also properly admitted pursuant to this rule. In Frazier v. State, supra, the trial court allowed a prior consistent statement by a witness to be admitted into evidence after the witness was extensively cross-examined and impeached on his prior statements to point out inconsistencies in his trial testimony. The supreme court held that the prior statement was properly admitted under Rule 801 (d)(1) (ii). Id. The court stated that defense counsel had made every attempt to show that the witness’s trial testimony was inconsistent with his earlier statements and that “fairness dictated that the prosecutor be allowed to explore this area of inquiry to clarify any confusion or misapprehension that may have lingered in the jury’s mind from defense counsel’s examination.” Id. at 354, 915 S.W.2d at 693; see also Harris v. State, supra (holding that trial court properly admitted witness’s entire prior statement where defense counsel had sought to discredit her trial testimony on cross-examination by referring to the prior statement because the jury was thus afforded the opportunity to view the statement and to determine whether the implied charge of recent fabrication was valid); Cooper v. State, 317 Ark. 485, 879 S.W.2d 405 (1994) (allowing witness to testify on re-direct about prior consistent statement by victim where defense counsel during cross-examination had cast doubt on the veracity of the victim’s allegations against defendant and where the victim was subject to cross-examination concerning the statement).
Although Hudson argues that he was only referring to Webber’s prior statements to impeach her trial testimony and that he had not made an allegation of recent fabrication in relation to these prior statements, this same argument was rejected in Jones v. State, supra, where, as in this case, defense counsel had thoroughly cross-examined and impeached the witness on the prior statements. The court in Jones stated that the defense’s argument that it had not made a charge of recent fabrication but had merely “asked” the witness about the prior statements was “simply untenable in light of the course pursued during cross-examination” and that the distinction was “too subtle to withstand scrutiny.” Id. at 724-25, 889 S.W.2d at 716. In affirming the trial court’s decision to allow the entire prior statement to be read into evidence, the court also noted that the jury had already heard parts of the statement during cross-examination. Id. at 725, 889 S.W.2d at 716.
Here, as in Jones, supra, and Harris, supra, the admission of the March 26 tape-recorded statement was proper given the defense’s extensive cross-examination and impeachment of Webber concerning this statement, along with the charges of recent fabrication and improper influence and motive attributed to Webber’s trial testimony, at least in part due to this prior statement. As the prosecution argued at trial, the jury was entitled to hear the entire statement to determine the context in which this charge of recent fabrication arose. Harris, supra. Thus, because the March 7 and 26 prior statements were properly admitted pursuant to Ark. R. Evid. 801 (d) (1)(ii), the trial court did not abuse its discretion in allowing this evidence.
Hudson next argues that the trial court’s admission of evidence of other crimes and bad acts pursuant to Ark. R. Evid. 404(b) warranted a mistrial and constituted reversible error. Prior to trial, Hudson filed a motion for the State to produce any Ark. R. Evid. 404(b) evidence that it intended to introduce at trial. At a pre-trial hearing, the State notified Hudson that it intended to introduce evidence showing that he engaged in drug use, which the State argued was relevant to show that his intent in entering Vowell’s home was to obtain money to support his “hedonistic lifestyle.” Hudson objected to the introduction of this evidence on the grounds that it was not relevant to this case and because it was more prejudicial than probative. The trial court denied Hudson’s objection, stating that it would allow evidence of his drug use during the time period surrounding the crimes in question, as it was relevant to show Hudson’s intent or motive in committing the aggravated robbery and murder. Hudson then moved for a mis trial, arguing that the jury had already been selected and that he would have voir dired the jury panel differently had he been aware of this evidence. The trial court denied the motion, noting that Hudson had ample opportunity to investigate the facts of the case and to acquaint himself with the State’s file and that he should have anticipated the introduction of evidence relating to his drug use.
In addition to the evidence of Hudson’s drug use introduced through the testimony of his accomplices, Sony Weathereal and Donna Clark, the State presented the testimony of Hudson’s wife, Erin Hudson, who testified that both of them were addicted to methamphetamine during the time period in question. Kimberly Hayes, who hosted a party that Weathereal, Hudson, Garner, Fuson, and Clark attended the night of the murder, testified that she had spoken to Hudson about his methamphetamine use and had warned him about using dirty needles. Renee Yarberry, another friend of Hudson and the other co-defendants, testified that there was a lifestyle in Green Forest and Berryville that included the use of methamphetamine. Lisa McAllister also testified that she knew Hudson and the other co-defendants and that she had used methamphetamine with Hudson. Finally, Delsey Webber testified about her methamphetamine addiction and that, on the night that Hudson told her about his involvement in Vowell’s murder, he had cut a hole in McAllister’s sock to steal methamphetamine she had hidden there.
Hudson continually objected to the introduction of the evidence concerning his drug use and again moved for a mistrial during McAllister’s testimony, arguing that the State’s continued use of this evidence violated his First Amendment rights and that it was a denial of due process. At the close of the State’s case and at the close of all of the evidence, Hudson renewed his motion for a mistrial. The trial court denied Hudson’s motion each time. Hudson again argues on appeal that the trial court erred in allowing this evidence under Ark. R. Evid. 404(b), and contends that he was denied “fundamental fairness” by its admission, as he was tried “not only for what he did or did not do, but also for how he lived his life, i.e., his lifestyle.”
According to Ark. R. Evid. 404(b), 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; however, this evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. For evidence of other crimes to be admissible under Rule 404(b), such evidence must be independently relevant, and the probative value of the evidence must outweigh any danger of unfair prejudice. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000). The admission or rejection of evidence of other crimes is left to the sound discretion of the trial court and will not be reversed on appeal absent a manifest abuse of discretion. Id.
The State argues that the evidence of Hudson’s drug use was relevant to demonstrate his intent or motive in committing the aggravated robbery and murder. According to Weathereal’s testimony, he and the other co-defendants intended to break into Vowell’s home in order to get money to buy drugs. Much of the other testimony relating to Hudson’s drug use merely corroborated Weathereal’s testimony that Hudson and his friends used drugs frequently during the time period surrounding the murder and that this habit was costly. As other cases have held, where the purpose of evidence is to disclose a motive for a murder, anything and everything that might have influenced the commission of the act may be shown. Gaines, supra; Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997). Thus, the State is entitled to introduce evidence of circumstances that explain the act, show a motive, or illustrate the accused’s state of mind. Lee, supra.
In Lee, supra, the supreme court held that evidence that the defendant was on his way to obtain drugs shortly after the murder was relevant to explain his motive in killing the victim, as the State’s theory at trial was that the victim was murdered for pecuniary gain. In Donovan v. State, 71 Ark. App. 226, 32 S.W.3d 1 (2000), this court held that evidence of the defendant’s use of crack cocaine was properly admitted under Rule 404(b) in a prosecution for theft by deception, where it was independently relevant of the defendant’s motive in using the victim’s checks and where it was evidence that the defendant’s use of the checks was unauthorized. In addition, in Gaines, supra, where the defendant was charged with capital murder and battery in connection with an arson, evidence that the defendant had smoked marijuana and sold crack cocaine on the night of the fire was admissible under the res gestae exception to Rule 404(b), where the evidence of the drug use and drug dealing were intermingled with and contemporaneous with the arson.
In this case, evidence of Hudson’s drug use was probative of his motive in committing the offenses at issue, given Weathereal’s testimony that he and the other co-defendants’ purpose in breaking into Vowell’s home was to get money to finance their drug habits. As the trial court noted, although this evidence was prejudicial, it was relevant to motive and intent, and given the proximity of this evidence of drug use to the crimes at issue, it was not more prejudicial than probative.
Because this evidence was properly admissible under Rule 404(b), the trial court also did not err in denying Hudson’s motions for a mistrial. A mistrial is an extreme remedy that should only be granted when the error is beyond repair and cannot be corrected by curative relief. Donovan v. State, supra. An admonition to the jury usually cures a prejudicial statement, unless it is so patently inflammatory that justice cannot be served by continuing the trial. Id. The trial court has wide discretion in granting or denying a motion for a mistrial, and this court will not disturb the trial court’s decision in the absence of an abuse of discretion or manifest prejudice to the movant. Id.
The trial court in this case gave an admonition to the jury when evidence as to Hudson’s drug use was first introduced by the State. Thereafter, when Hudson again moved for a mistrial during Lisa McAllister’s testimony, he declined the court’s offer of another cautionary instruction to the jury. There was no abuse of discretion in the trial court’s denial of Hudson’s motions for a mistrial given that the challenged evidence was properly admissible to show motive under Rule 404(b). See Bowen v. State, 342 Ark. 581, 30 S.W.3d 86 (2000) (holding that the trial court did not err in denying defendant’s motion for a mistrial where evidence as to his drug dealing was relevant to show his motive in murdering the victim). Furthermore, the cautionary instruction given to the jury helped to cure any prejudice resulting from the admission of this evidence, Bowen, supra and Donovan, supra, and the fact that Hudson declined the trial court’s offer of additional cautionary instructions cannot now inure to his benefit.
In his third point on appeal, Hudson contends that the trial court erred in sentencing him for both first-degree murder and aggravated robbery. Prior to sentencing, Hudson filed a motion arguing that the imposition of sentences for both offenses was violative of the double jeopardy provisions of the state and federal constitutions, as both offenses were committed by the same act and one offense is included in the other. As the State asserts, Hudson’s argument misapprehends and misapplies the principle of double jeopardy in this case.
The Double Jeopardy Clauses of the federal and state constitutions protect criminal defendants from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Hughes v. State, 347 Ark. 696, 66 S.W.3d 645 (2002). Hudson was sentenced under Ark. Code Ann. § 5-1-110(d)(1) (Repl. 1997), which provides that, “[n]otwithstanding any provision of law to the contrary, separate convictions and sentences are authorized for . . . [mjurder in the first degree, § 5-10-102, and any felonies utilized as underlying felonies for the murder[.]”
As is explained in Flowers v. Norris, 347 Ark. 760, 68 S.W.3d 289 (2002), the legislature amended section 5-1-110 in 1995 to allow for separate convictions and sentences for certain specified offenses. The court in Flowers held that the State could not impose punishment for the underlying felony used to support an attempted capital-murder charge, because the legislature had not specifically declared its intent that the crime of attempt be included within its legislation. Id. The court also cited the legislature’s intent, stated in Act 657 of 1995, as support for its holding:
It is the intent of the legislature, pursuant to Missouri v. Hunter, 459 U.S. 359 (1983), to explicitly authorize separate convictions, sentences, and cumulative punishments for the offenses specified in Section 2 of the act. Cases such as McClendon v. State, 295 Ark. 303, 748 S.W.2d 641 (1988), which prohibit separate convictions, sentences, and cumulative punishments for such offenses are hereby overruled.
Id. at 766, 68 S.W.3d at 292-93.
In Missouri v. Hunter, 459 U.S. 359 (1983), the Supreme Court reversed the Missouri Court of Appeals and held that the defendant’s double jeopardy rights had not been violated by his convictions and sentencing for both armed criminal action and first-degree robbery. The Missouri court had held that armed criminal action and first-degree robbery constituted the same offense under Blockburger v. United States, 284 U.S. 299 (1932). Id. In reversing the Missouri court’s holding, the Court stated, “With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Id. at 366. The Court also addressed its prior holdings in Albernaz v. United States, 450 U.S. 333 (1981), and Whalen v. United States, 445 U.S. 684 (1980), and stated the following:
Our analysis and reasoning in Whalen and Albemaz lead inescapably to the conclusion that simply because two criminal statutes may be constmed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes. The rule of statutory construction noted in Whalen is not a constitutional rale requiring courts to negate clearly expressed legislative intent. Thus far, we have utilized that rule only to limit a federal court’s power to impose convictions and punishments when the will of Congress is not clear. Here, the Missouri Legislature has made its intent crystal clear. Legislatures, not courts, prescribe the scope of punishments.
Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the “same” conduct under Blockburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.
Missouri v. Hunter, 459 U.S. at 368-69.
In Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000), a case cited by Hudson, the court quoted with approval the language set out above from Hunter, supra, and, relying on the Court’s holding in Hunter, held that the defendant’s convictions and sentencing for both simultaneous possession of drugs and a firearm and possession of drugs with intent to deliver did not violate double jeopardy principles. The court stated that even though convictions for both of these offenses appeared to violate the defendant’s double-jeopardy rights because possession of a controlled substance with intent to sell is an included offense within simultaneous possession of a controlled substance and a firearm, the real issue, based on the holding in Hunter, was whether the legislature intended for the two offenses to be separate offenses where the same conduct violates two statutory provisions. Id. The court found that the legislature had made it clear that it intended for these two offenses to be separate offenses and that it intended to assess an additional penalty for simultaneously possessing controlled substances and a firearm; thus, no double-jeopardy violation occurred. Id.
Here, by amending section 5-1-110 in 1995, the legislature explicitly indicated its intent that first-degree murder and its underlying felony be considered separate offenses and that separate convictions and sentences are authorized for each offense. Thus, according to 'the Court’s holding in Hunter, which has been cited with approval by our state supreme court in both Flowers and Rowbottom, Hudson’s separate convictions and sentences for first-degree murder and aggravated robbery do not violate the double-jeopardy provisions contained in the state and federal constitutions. Hudson argues that his situation is different than in Hunter, because aggravated robbery is the underlying offense for first-degree murder and because the same force was used to commit both offenses. However, in Rowbottom, supra, the court found that possession of a controlled substance with intent to sell was an included offense within simultaneous possession of a controlled substance and a firearm, yet concluded that the conviction and sentence for both offenses did not violate the defendant’s double-jeopardy rights because the legislature intended to authorize separate punishments for each offense. Id. In fact, the court stated that the situation in Rowbottom was analogous to a defendant being convicted of both felony murder with aggravated robbery as the underlying felony, and aggravated robbery separately, which violated section 5-l-110(a)(l) prior to the 1995 amendment. Thus, Hudson’s argument in this regard is without merit, and the trial court did not err in denying his motion to prohibit the imposition of sentence for both first-degree murder and aggravated robbery.
In his final point, Hudson argues that the trial court failed to perform its gate-keeping function in allowing Officer Charles Rexford to testify as an expert in blood-spatter analysis. Prior to trial, Hudson moved to subject any expert testimony offered by the State to a pretrial hearing pursuant to Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The parties subsequently agreed that the only expert testimony subject to such a hearing was the State’s blood-spatter expert, Officer Charles Rexford. At the Daubert hearing, Rexford testified that he was a detective with the Washington County Sheriffs Department and that he had been involved in criminal investigation for more than twenty-five years. He stated that he had taken basic and advanced courses in basic blood-pattern analysis in 1995, as well as another advanced course on computerized blood-stain pattern analysis in 1999. In addition, Rexford testified that he had taken other courses on processing physical evidence. According to Rexford, he had worked more than 100 cases involving blood stains. He also stated that he had previously been certified as an expert in blood-spatter analysis by an Arkansas court and had testified as such. Rexford testified that blood-stain analysis is a known and accepted scientific discipline that has been used for many years, and he stated that the rate of error was between five and ten percent. He further testified that there are publications, such as the Forensic Journal and the International Association of Blood Pattern Analysis, which discuss studies done using blood-spatter analysis.
Rexford explained that his examination of the crime scene in this case focused on locating individual blood spatters, from which he could determine the direction of the blows struck to Vowell. He testified that he uses a small microscope and that he measures different blood stains to determine where they converge to an impact angle. He also described the characteristics of blood and what conclusions could be drawn from such observations based on the known physical properties of blood. He stated that the conclusions to which he would testify from his blood-spatter analysis in this case were the location of the attacker, the direction and type of force used in the attack, and the estimated number of blows that Vowell sustained based on the blood-stain patterns.
Hudson argued that blood-stain analysis was a novel science and that this expert testimony was not reliable or relevant under the standards set out in the Daubert case. The trial court disagreed and ruled that Rexford was qualified as an expert in blood-spatter analysis and that it was not a novel science. The court found that Rexford’s testimony would be relevant and helpful to the jury and that the testimony was not likely to confuse or mislead the jury. The court stated that the defense’s objections went to the weight of the evidence and not to its admissibility.
On appeal, Hudson again contends that this testimony was not admissible under Daubert because it did not assist the trier of fact in understanding or determining a fact in issue in this case. Hudson argues that Rexford’s testimony established nothing that the medical examiner did not state in his testimony and that Rexford’s conclusions could have been supplied by any police officer present at the crime scene. Hudson also asserts that Rexford had “precious little training and background in this specialty.”
Arkansas Rule of Evidence 702, which governs expert testimony, states that if “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” In Farm Bureau Mutual Insurance Co. of Ark. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000), the supreme court adopted the United States Supreme Court’s interpretation of Federal Rule of Evidence 702 in Daubert, supra. Under Foote and Daubert, the trial court must make a preliminary assessment of whether the reasoning or methodology underlying expert testimony is valid and whether the reasoning and methodology used by the expert has been properly applied to the facts in the case. Our supreme court has also adopted the subsequent Supreme Court decision in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), which determined that Rule 702 applies equally to all types of expert testimony and not simply to scientific expert testimony and that they must be shown to be both reliable and relevant. See Coca-Cola Bottling Co. v. Gill, 352 Ark. 240, 100 S.W.3d 715 (2003).
Rexford’s testimony established that he had received extensive training and education in blood-spatter analysis, as well as experience in conducting this analysis at crime scenes. It was also established that blood-spatter analysis was a well-recognized science, which has been in existence for many years. Also, as the State argued at the Daubert hearing, there have been a number of Arkansas cases where blood-spatter testimony has been elicited from a witness qualified as an expert in the field, although introduction of this evidence was not an issue raised on appeal in those cases. See, e.g., State v. Goff, 349 Ark. 532, 79 S.W.3d 320 (2002); Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000); Jones v. State, 11 Ark. App. 129, 668 S.W.2d 30 (1984). In fact, Rexford testified that he had previously been certified by a trial court in this state as an expert and had testified regarding blood-pattern analysis. Thus, we hold that the reliability of this expert testimony was established.
Hudson’s argument that Rexford’s testimony was not relevant or admissible under Rule 702 because it did not assist the trier of fact in understanding an issue in the case, is likewise without merit. Not only did Rexford’s testimony corroborate the medical examiner’s findings, it was also consistent with the other testimony and evidence of the attack. Moreover, his testimony helped to establish the directionality and type of force used in the attack, the location of the attackers, and the estimated number of blows that Vowell sustained. Thus, Rexford’s testimony of what he observed not only corroborated other evidence regarding the murder, but also assisted the jury in understanding the manner of the attack and what was found at the crime scene. Consequently, the blood-spatter expert testimony was both reliable and relevant, and the trial court did not err in admitting this testimony under Rule 702.
Affirmed.
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Karen R. Baker, Judge.
Appellant, Richard Earl Von Holt, Jr., was convicted of possession of methamphetamine with intent to deliver, possession of drug paraphernalia, and possession of marijuana by a jury in Sebastian County Circuit Court. He was sentenced to a total of forty years’ imprisonment in the Arkansas Department of Correction. He has three arguments on appeal. First, he argues that there was insufficient evidence to find him guilty of possession of methamphetamine with intent to deliver. Second, he argues that the trial judge erred in issuing a nighttime, no-knock search warrant. Third, he argues that the trial court erred in allowing the testimony of two Oklahoma police officers. We agree with appellant’s third point on appeal and reverse and remand for a new trial.
On June 13, 2000, a search warrant was executed on appellant’s residence. The warrant was based on information provided by a confidential informant who obtained methamphetamine from appellant’s residence. Officer Smith witnessed the informant go into appellant’s residence and purchase methamphetamine. While the informant was inside, he saw additional items of drug paraphernalia. The informant also spoke with Brenda Edwards, appellant’s girlfriend, who lived in the apartment. She informed the informant that more methamphetamine would be available during the nighttime hours for sale. The informant also learned that appellant and Ms. Edwards could see any approaching visitors through a window that gave them a view of the stairs. The informant stated that both appellant and Ms. Edwards had explained that if law enforcement were ever seen outside, they would attempt to destroy any evidence of methamphetamine. There were actually two staircases leading up to the apartment, both of which were in view from the window inside the apartment.
Both appellant and Ms. Edwards were inside the apartment at the time the warrant was executed. Officer Donnie Wear of the Fort Smith Police Department testified that he was the custodian of the evidence on that occasion and he kept track of the items seized. He stated that the officers found a black zipper bag containing numerous items during the search of the bedroom. The black zipper bag contained a plastic bag containing an off-white powder substance, another smaller plastic bag containing an off-white powder substance, and a clear plastic bag containing a yellowish powder substance. Also in the black zipper bag was a plastic bag with residue, a piece of the bag having been cut and sealed off; a plastic bag containing coffee filters with a yellowish tint stain to them; and a plastic bag containing a “green vegetable substance, like a couple pieces, rolling papers inside.” Officer Wear also testified that the black zipper bag contained four metal spoons, all of which had a white colored, burned residue on them, a loose one-cc syringe, and a bag of one-cc syringes. A crock-pot lid containing a white and an off-white powder residue on the surface were found on a shelf in the bedroom. Another one-cc syringe was found in the bedroom along with some white pills that were found on the nightstand. Special Agent Keeter also found four spoons with a white powdery residue on the surface and burn markings on the bottom in the closet in the bedroom. In the kitchen, the officers found a glass tube that had been converted into a smoking device, and a rent receipt with appellant’s name on it for $370 cash. Moreover, there was a bag beside the bed with $1,073, and a purse in the kitchen with ninety dollars in cash inside.
Following the discovery of the items, appellant was arrested, taken into custody, and interviewed. Officer Wear conducted the interview of appellant, and Special Agent Keeter was present as well. Appellant was advised of his Miranda rights before he was questioned. He completed the form and signed it. During the appellant’s interview, he revealed that the items in the apartment belonged to him, including the methamphetamine, marijuana, and paraphernalia, and claimed responsibility for everything that was found during the search. He denied, however, that he was involved in the manufacture of methamphetamine and stated that the methamphetamine was for his own personal use. He stated that he was unemployed and that the money from the apartment was from his gambling earnings.
Brenda Edwards, who pled guilty after the items were found in the apartment she shared with appellant, testified at trial that she had witnessed appellant selling methamphetamine to others. She also testified that while she and appellant lived together she saw appellant cooking methamphetamine. Also at trial, Detective Paul Smith, a narcotics detective with the Fort Smith Police Department, testified that multiple plastic bags containing varying amounts of a controlled substance is indicative of trafficking or distributing in that it indicated the different street values being placed on a particular drug. The plastic bags found in appellant’s apartment were different sizes. The larger bags were used for larger amounts of methamphetamine, and the smaller bags were used for smaller quantities such as eight-ball quantities, which is an eighth of an ounce. Moreover, the purity level of the methamphetamine found was also indicative of distribution. Once methamphetamine has been converted from the raw materials into the methamphetamine, it is generally anywhere from seventy to ninety-nine percent pure, and the typical methamphetamine purchased on the ■ street has a purity of anywhere between thirteen to twenty-three percent. Typically, when the crime lab report comes back with a substance that tested over seventy percent pure, that indicates that it has come from a clandestine lab. Once it is cooked, it is then cut by either B-12 or Nicotinamide, turning it into three, four, or six ounces of methamphetamine and thereby increasing profits. The bag found that had been heat-sealed on the corner is also indicative of distributing. This is done when one bag contains more than one sale of methamphetamine. When the dealer wants to distribute the contents of the bag, they will put the proper amount in the corner of the bag, cut the corner, and reseal it with heat.
At the close of the State’s case, defense counsel moved for a directed verdict stating that there was no direct evidence introduced that appellant possessed methamphetamine with the intent to deliver. The trial court denied the motion, which was renewed at the close of all the evidence. At the conclusion of the hearing, the jury convicted appellant of possession of methamphetamine with intent to deliver, possession of drug paraphernalia, and possession of marijuana. This appeal followed.
I. Sufficiency of the Evidence
Appellant first argues that there was insufficient, evidence to find him guilty of possession of methamphetamine with intent to deliver. It is well settled that a motion for a directed verdict is a challenge to the sufficiency of the evidence.. Howard v. State, 348 Ark. 471, 74 S.W.3d 600 (2002). Our supreme court has stated that when we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998) (citing Freeman v. State, 331 Ark. 130, 131-32, 959 S.W.2d 400 (1998)). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Id. Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Howard, supra. Such a determination is a question of fact for the fact-finder to determine. Howard, supra. Additionally, the longstanding rule in the use of circumstantial evidence is that the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused to be substantial, and whether it does is a question for the jury. Howard, supra (citing Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000)).
Arkansas Code Annotated section 5-64-401 (a) (Supp. 2003) states that “it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance.” Rabb v. State, 72 Ark. App. 396, 39 S.W.3d 11 (2001). Appellant specifically urges that no evidence was presented by the State to indicate that appellant intended to sell the methamphetamine found in his possession. However, possession of more than two hundred milligrams of methamphetamine gives rise to a presumption of intent to deliver. See Ark. Code Ann. § 5-64-401 (d); Rabb, supra.
In this case, numerous items found during the execution of the warrant indicated that appellant was indeed involved in the distribution of methamphetamine. There were several plastic bags, varying in type and size, and the substances found in the different plastic bags varied in quantity and purity. One of the plastic bags had been cut and resealed using heat, which is also indicative of distribution. Nicotinamide, a means by which methamphetamine is cut prior to sale, was also found. Moreover, a total of 1.272 grams of methamphetamine was discovered in appellant’s apartment. Appellant admitted that the items found in the apartment belonged to him. Ms. Edwards testified that she was with appellant when he actually sold methamphetamine to someone. She saw him leave drugs with someone. Moreover, approximately $1,073 in cash was found in the apartment. Ms. Edwards testified that the cash was obtained through gambling. Although appellant also gave a statement that he won the money gambling, the credibility of witnesses is an issue for the jury and not the court. Howard, supra (citing Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001)). When viewed in the light most favorable to the State, we hold that the trial court had substantial evidence to support the possession-with-intent-to-deliver conviction.
II. Denial of Motion to Suppress Items Seized Through a No-knock, Nighttime Search Warrant
Second, appellant argues that the trial judge erred in issuing a nighttime, no-knock search warrant. In Saulsberry v. State, 81 Ark. App. 419, 102 S.W.3d 907 (2003), this court stated that:
The supreme court in Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003), recendy clarified the standard of review of a suppression challenge. The standard is that we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court.
Appellant argues that the facts of this case do not justify a no-knock, nighttime search warrant. Arkansas Rules of Criminal Procedure 13.2(c) (2003) states that:
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 speedy 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.
The search warrant in this case stated in part that, “reasonable cause exists to believe that the place to be searched is difficult of speedy access, the objects to be seized are in danger of imminent removal and the warrant can only be safely or successfully executed at nighttime or under circumstances of occurrence of which is difficult to predict with accuracy.”
At the suppression hearing, Officer Paul Smith testified that certain exigent circumstances existed which justified the nighttime, no-knock search warrant. Specifically, Officer Smith testified that in the days just prior to the application for the warrant on appellant’s home his unit had been collecting information concerning appellant and some of his associates. Officer Smith witnessed a confidential informant go into appellant’s apartment. The informant obtained methamphetamine from the residence. While the informant was inside, he saw additional items of drug paraphernalia. Moreover, there were two staircases leading to the apartment. The informant was told by Ms. Edwards that she could see both staircases through the window. Without being seen, she could see who was outside prior to unlocking the door. Also, both appellant and Ms. Edwards told the informant that if they were to see law enforcement through the window that they would attempt to flush the methamphetamine and destroy the evidence. Officer Smith also stated that he had information that several apartments in appellant’s complex were associated with appellant’s activities, and the officers were concerned that information of their arrival would spread throughout the suspicious apartments. The reasonableness of the officers’ decision to enter without knocking and announcing their presence must be evaluated as of the time they entered the premises. Ilo v. State, 350 Ark. 138, 85 S.W.3d 542 (2002). It is the duty of the courts to determine whether the facts and circumstances of the particular entry justified dispensing with the knock- and-announce requirement. Id. We find that these facts are sufficient to justify a no-knock search.
With respect to the nighttime-search provision, the search warrant authorized that a search could be conducted at any time during the day or night. However, the search was executed during normal hours, specifically, 6:20 in the morning. Under such circumstances, the trial court did not err in denying appellant’s motion to suppress.
III, Denial of Appellant’s Motion in Limine
Appellant’s third argument on appeal is that the trial court erred in allowing the testimony of two Oklahoma Police Officers. Arkansas Rule of Evidence 404(b) (2003) provides as follows:
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.
The admission or rejection of evidence under Rule 404(b) is left to the sound discretion of the trial court, and this court will not reverse absent a showing of manifest abuse. Donovan v. State, 71 Ark. App. 226, 32 S.W.3d 1 (2000). Evidence that is offered pursuant to Rule 404(b) must be independently relevant. Id. (citing McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999)). Evidence is independently relevant if it tends to prove a material point and is not introduced solely to prove that the defendant is a bad person. Id. (citing Hernandez v. State, 331 Ark. 301, 962 S.W.2d 756 (1998)). However, even if independendy relevant, evidence of other crimes may still be excluded if the probative value of that evidence is substantially outweighed by the danger of unfair prejudice to the defendant. Ark. R. Evid. 403 (2003); Johnson v. State, 337 Ark. 477, 989 S.W.2d 525 (1999).
Appellant sought to exclude the testimony of two Oklahoma police officers regarding appellant’s arrest in Oklahoma in April 1999, where the officers discovered syringes in appellant’s vehicle, one of which tested positive for methamphetamine. At a hearing on appellant’s motion in limine, the trial court ruled that the testimony of the two officers was relevant. It was, however, limited to testimony of items found that were related to drug paraphernalia. At trial, Chief Thomas Lowe of the Moffett, Oklahoma Police Department testified that on April 17, 1999, he was present when appellant was arrested. He identified items in State’s Exhibit twenty-one as the items that were found in appellant’s vehicle during an inventory search. The photograph of the items had appellant’s name in bold yellow print across the bottom. He stated that he turned the items over to Investigator Loyd of Oklahoma’s Twenty-Seventh Prosecutorial District Drug Task Force. At this point, the photograph of the items was introduced into evidence and published to the jury. Investigator Loyd testified that one of the syringes found in appellant’s vehicle tested positive for methamphetamine.
We hold that the admission of the Oklahoma police officers’ testimony regarding appellant’s previous arrest for possession of items of drug paraphernalia was improper under Rule 404(b). In Sweatt v. State, 251 Ark. 650, 473 S.W.2d 913 (1971), our supreme court found that in prosecuting appellant for LSD, the trial court erred in permitting the prosecution to introduce testimony showing that the defendant previously had marijuana in his apartment and had sold it. In Sweatt, the court stated that:
Proof that Sweatt had sold marijuana on other occasions had no relevancy except to show that Sweatt had dealt in drags before and hence was likely to have done so again. That is precisely the type of proof that must be excluded. If Sweatt was guilty of other crimes, then, as we said in Alford, “each may be examined separately in a court of law, and punishment may be imposed for those established with the required certainty. ...”
Id. at 652, 473 S.W.2d at 914. See also Rios v. State, 262 Ark. 407, 557 S.W.2d 198 (1977) (reversed and remanded for a new trial where it was clearly error for the trial court to admit the evidence of other sales or delivery of drugs to simply prove Rios made a delivery on May the 4); Evans v. State, 287 Ark. 136, 697 S.W.2d 879 (1985) (reversed and remanded where it cannot be said that, merely because two burglaries occurred on the same night and involved items of similar nature, that the State should be allowed to reference the other burglary to implicate appellant) (superceded by statute on the separate issue of juvenile transfer).
We have held that when error is slight and the evidence of guilt is overwhelming that we can declare that the error was harmless. See Barr v. State, 336 Ark. 220, 984 S.W.2d 792 (1999) (citing Kidd v. State, 330 Ark. 479, 955 S.W.2d 505 (1997)). However, although we agree that the evidence of appellant’s guilt in this case might be considered overwhelming, we cannot agree that the error was slight. Our supreme court has held that an admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial. See Hamilton v. State, 348 Ark. 532, 74 S.W.3d 615 (2002). Our supreme court has also recognized that there are circumstances where statements or actions in the jury’s presence are so highly prejudicial that they violate the accused’s right to a fair trial, and no admonition to the jury can cure them. See Dean v. State, 272 Ark. 448, 615 S.W.2d 354 (1981) (holding that testimony by a court official was a flagrant violation of appellant’s right to a fair and impartial trial as guaranteed by the Arkansas and United States Constitutions and was so clearly prejudicial that the error could not be removed by the trial court’s admonishing statement).
While a cautionary instruction was given in this case, given the facts presented here the error was not cured by the cautionary instruction. The State’s first two witnesses testified as to evidence found in appellant’s vehicle during an inventory search in Oklahoma in April 1999 that occurred over three years prior to the trial on the current charges. The incident in April 1999 was no more than an arrest; there is no evidence of any charges being filed or of any conviction. This served as the first testimony that the jury heard in this trial as well as the first piece of evidence shown to the jury. The evidence was highly prejudicial and had no independent relevance; therefore, we cannot say that the error was slight or that it was cured by the cautionary instruction. Because we hold that the introduction of the Oklahoma officers’ testimony was error, we reverse and remand for a new trial.
Pittman and Gladwin, JJ., agree.
Methamphetamine is not specifically listed in § 5-64-401(d) (Supp. 2003). However, there is a general provision for a controlled substance falling into the category of a “stimulant drug.” The presumption of intent to deliver will attach to a “stimulant drug” if the quantity possessed is in excess of200 milligrams. See Rabb v. State, 72 Ark. App. at 400, 396 S.W.3d at 14, n.1. | [
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John F. Stroud, Jr., Chief Judge.
Appellants, James and Mary K. Billingsley, initially filed a complaint against the estate of Samuel Thomas Carlson, Jr., to recover on various promissory notes issued to them by Carlson, Jr.; they later filed an amended complaint to include a cause of action against appellee, Samuel Thomas Carlson, III. Appellee filed a motion for summary judgment on his behalf, and the trial court granted that motion. Appellants now appeal, arguing that the trial court erred in granting appellee’s motion for summary judgment. We affirm the trial court’s grant of summary judgment to appellee.
This court set forth the standard of review utilized in determining whether a motion for summary judgment is properly granted in Little Rock Electrical Contractors, Inc. v. Entergy Corp., 79 Ark. App. 337, 341-42, 87 S.W.3d 842, 845 (2002):
We no longer refer to summary judgment as a drastic remedy and now regard it as one of the tools in a trial court’s efficiency arsenal. We will only approve the granting of summary judgment when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the nonmoving party is not entitled to its day in court because there are not any genuine issues of material facts remaining. All proof submitted must be viewed in the light most favorable to the nonmoving party, and any doubts must be resolved against the moving party. However, it is well settled that once the moving party has established a prima facie entitlement to summary judgment, the burden shifts to the nonmoving party to meet proof with proof and demonstrate the existence of material fact. If there is evidence from which an inconsistent hypothesis might be drawn and reasonable minds might differ, then summary judgment is not proper.
(Citations omitted.)
The instrument forming the basis of appellants’ complaint against appellee is one that appellants contend is a promissory note in the form of a $50,000 check, datedjanuary 12, 1998, and signed by appellee, written on a Thomas Oil Company account at Union Bank. In his affidavit, appellee stipulated that he signed the instrument, but that he did so at the request of his father and in the capacity of accountant for Thomas Oil Company, of which his father was sole proprietor. He further averred that he had never borrowed money from the appellants or signed any promissory notes to appellants guaranteeing payment of $50,000 to them.
In the order granting appellee’s motion for summary judgment, the trial judge found that, based upon the pleadings and affidavits of appellants, that as to Thomas, Jr., the checkin question was a promissory note, but as to appellee, it was clearly a check; and that it was Thomas, Jr., who asked that the check be held, not appellee. The trial judge further found that there was no question that appellee was acting in a representative capacity when he signed the check, and that appellants accepted the January 12,1998 check on the same basis as all previous notes/checks.
On appeal, appellants contend that the instrument signed by appellee was not a check but was a promissory note that was not executed in a representative capacity because they were asked to hold the instrument, therefore making it a promise to pay instead of an instrument payable on demand. Appellee contends that the instrument in question was a check, not a note, and therefore he is not liable under Arkansas Code Annotated section 4-3-402(c) (Supp. 2001).
Arkansas Code Annotated section 4 — 3—104(f)(i) (Supp. 2001) defines a “check” as “a draft, other than a documentary draft, payable on demand and drawn on a bank.” Subsection (c) of Arkansas Code Annotated section 4-3-402 provides:
If a representative signs the name of the representative as drawer of a check without indication of the representative status and the check is payable from an account of the represented person who is identified on the check, the signer is not liable on the check if the signature is an authorized signature of the represented person.
In the present case, the instrument in question was dated January 12, 1998, and made payable to the order ofjames Billings-ley in the amount of $50,000. See Ark. Code Ann. § 4-3-109(b)(i) (Supp. 2001). It was drawn on a Thomas Oil Company account at the Union Bank, see Ark. Code Ann. § 4-3-104(f) (i), and it was signed by appellee.
Appellants argue that the instrument is not a check because they were asked to delay presenting the instrument to the bank until funds were available for payment, thus not making the instrument “payable on demand” as required by the definition of a check. See Ark. Code Ann. § 4-3-104(f) (i). However, even if appellants were asked to delay presentment of the instrument, as they allege in their “Amended Complaint on Promissory Notes,” appellants state in that complaint that it was Thomas, Jr., not appellee, who requested that they delay presenting the instrument for payment at the bank until such time that there were funds available to pay it.
We hold that the instrument signed by appellee on January 12, 1998, met the statutory definition of a check with regard to appellee. Therefore, Arkansas Code Annotated section 4-3-402(c) is applicable, and appellee is not liable to appellants for the amount of the check.
Appellants also cite cases under prior law in support of their position that appellee is liable for the obligation. See United Fasteners, Inc. v. First State Bank, 286 Ark. 202, 691 S.W.2d 126 (1985); Fanning v. Hembree Oil Co., 245 Ark. 825, 434 S.W.2d 822 (1968); Mollenhour v. State First Nat’l Bank, 27 Ark. App. 176, 769 S.W.2d 28 (1989). Not only were these cases decided under prior law, they are concerned with notes, not a check as in the present case.
We affirm the trial court’s grant of appellee’s motion for summary judgment.
Affirmed.
Bird and Vaught, JJ., agree. | [
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John B. Robbins, Judge.
A Pulaski County jury found ap-pellant Cincinnati Life Insurance Company liable for bad faith and outrage and appellant Aon Risk Services, Inc., liable for deceit and outrage. Appellee Linda Mickles, the plaintiff below, was awarded $120,000 in compensatory damages, for which each appellant was deemed equally responsible, and $1,000,000 in punitive damages against each appellant individually. On appeal, both appellants challenge the sufficiency of the evidence to support the verdicts against them. Appellant Aon also argues that the trial court erred in instructing the jury on deceit and that the trial court erred in admitting a pretrial deposition into evidence. We affirm the verdicts as to Cincinnati Life but reverse and remand the verdicts against Aon on the basis of the erroneous jury instruction.
Appellant Cincinnati Life Insurance Company (CLIC) sells life insurance policies to persons at their places of employment. Appellant Aon Risk Services, Inc., was CLIC’s agent and sent enrollers to various locations around the country for the purpose of soliciting applications. After an enroller completed a set of applications, he would send them to Aon’s home office in Georgia. There, Aon employees would look at the applications to make sure they were properly completed and, if so, send them to CLIC. CLIC’s underwriting department would then decide whether to issue a policy.
On July 23, 1996, CLIC policies were marketed to employees of Chenal Rehabilitation Clinic in Little Rock. Appellee was a minimum-wage worker in the laundry department at the clinic. That day, she completed nine applications for life insurance policies — six on her children and three on her grandchildren. In completing the applications, she verbally communicated information to the enroller, who filled in the blanks, and marked the appropriate boxes on the application.
The application for appellee’s son Antonio is the one at issue in this case. It reflects that Antonio was just under twenty-one years old at the time of the application, that he was married, and that he was a full-time student. At the top of the application, the words “Spouse Dependent Grandchild” appear; the word “dependent” is circled. The face amount of the policy applied for originally read $38,942, but that was marked through and the amount of $28,942 was written in its place. The weekly premium amount shown is $3. The application was signed by appellee and by James Foster of Aon as the “Agent Witness.”
In the process of executing the applications, appellee questioned the enroller about whether Antonio would qualify for a policy because he was married and did not live with her. She explained that Antonio had a learning disability and could not read or write and qualified for SSI benefits, which she received and distributed to him as needed to pay bills. The enroller assured appellee that Antonio qualified for a policy. According to appellee, the enroller also told her that the policy would pay double indemnity should Antonio’s death be accidental.
The application on Antonio was accepted by CLIC, and the policy was delivered in November 1996. On December 17, 1996, Antonio was murdered in Little Rock. Appellee notified CLIC of his death, and CLIC asked her to send a proof-of-death statement and a death certificate, which she did on or about January 9, 1997. The paperwork was received at CLIC by Larry Arlen, the manager of life and health claims. Because Antonio’s death had occurred within the two-year contestibility period, Arlen reviewed the claim. He discovered that Antonio’s death certificate listed his occupation as a laborer, which did not correspond to the representation on the application that Antonio was a dependent and a full-time student. Arlen decided to send an Equifax investigator to "obtain a statement from appellee.
The investigator interviewed appellee and thereafter wrote out a statement, which appellee signed. The statement reflected that appellee said that Antonio had been married since April 23, 1996; that he had last attended school in 1993; that he had not lived with her since early 1995; and that he “was not my dependent”and “was not a dependent residing with me.” Appellee also said, just as she had to the enroller, that Antonio’s SSI benefits came to her and that she distributed money to him as he needed it. Further, she said that she had not told the enroller that Antonio was a full-time student.
At about the same time that the Equifax investigation was taking place, Arlen sent a questionnaire to James Foster of Aon, whose name had appeared on the application as the witnessing agent. In his answers dated February 4, 1997, Foster represented that he had taken the application from appellee, that appellee had answered the questions on the application, and that the answers were accurately recorded. At one point, the questionnaire asked: “Did [appellee] tell you Antonio Robinson was a full time student?” Foster did not respond to that question.
On April 3, 1997, CLIC sent a letter to appellee rescinding the policy and refunding $36 in premiums. The letter stated that the application showed that Antonio was a dependent and a full-time student but that CLIC’s investigation showed otherwise and, had CLIC known the truth, it would not have issued the policy. On April 10, 1997, appellee wrote a letter to the Arkansas Insurance Department. She stated that somehow CLIC was under the impression that she had told them that Antonio was a full-time student but that she had not; she further said that her son was a dependent, with his SSI check coming to her. CLIC responded to the Insurance Department’s inquiry on April 22, 1997. Its letter explained that CLIC policies could be issued only to non-employees under age twenty-three who were full-time students and dependent on the employee; that, at the time of the application, Antonio was not a dependent or a full-time student; and that the policy was issued “due to the misrepresentation of [appellee] on the application.”
Thereafter, appellee obtained legal counsel and hired a forensic expert to examine the writing on the application that referred to Antonio as a full-time student. The expert concluded that the handwriting on the words “full time student” was not consistent with the writing on the remainder of the application. Further, the expert could not match appellee’s handwriting to the writing on the application. The expert also said that none of the writing on the other eight applications that appellee filled out that day (which merely used the term “student”) matched the writing on “full time student” in Antonio’s application. In short, her examination revealed that the words “full time student” were placed on the application by someone other than appellee or the enroller, who had been identified as James Foster.
On July 31, 1998, appellee sued CLIC, James Foster, and Larry Arlen for breach of contract, bad faith, outrage, fraud, and other torts. During the process of discovery, the deposition of James Foster was taken on February 24, 2000. In his deposition, Foster said that, although his signature appeared as witnessing agent on appellee’s application, he had never been to Little Rock and had not taken appellee’s application. He testified that Aon often hired persons to enroll applicants at various workplace locations; however, he did not know who had been to Little Rock on July 23, 1996. He denied ever having seen the questionnaire from CLIC. Appellee confirmed upon viewing Foster’s videotaped deposition that Foster was not the one who had taken her application.
Thereafter, appellee amended her complaint to delete Foster and Arlen as defendants and add Aon. In the final amended complaint, CLIC was sued for bad faith and outrage and Aon was sued for deceit and outrage. Further, appellee alleged that, because Aon was CLIC’s general agent, CLIC was liable for Aon’s acts. The case went to trial on September 23, 2002, on the issues of bad faith, outrage, and deceit.
We first address the argument presented by both appellants that the trial court should have granted their motions for a directed verdict on the tort of outrage. When reviewing a denial of a motion for a directed verdict, we determine whether the jury’s verdict is supported by substantial evidence. Columbia Nat’l Ins. Co. v. Freeman, 347 Ark. 423, 64 S.W.3d 720 (2002). Substantial evidence is defined as evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond mere suspicion or conjecture. Id. In determining whether substantial evidence exists, the supreme court stated that we should rely upon two crucial principles to avoid invading the province of the jury. First, we consider only the evidence favorable to the successful party below, and second, we defer to the jury’s resolution of the issue unless we can say that there is no reasonable probability to support the version of the successful party below. Id. Additionally, in reviewing the evidence, the weight and value to be given the testimony of the witnesses is a matter within the exclusive province of the jury. Id.
Four factors are necessary to establish the tort of outrage. They are: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was extreme and outrageous, was beyond all possible bounds of decency, and was utterly intolerable in a civilized community; (3) the actions of the defendant were the cause of the plaintiffs distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Faulkner v. Arkansas Children’s Hosp., 347 Ark. 941, 69 S.W.3d 393 (2002). The type of conduct that meets the standard for outrage must be determined on a case-by-case basis. Crockett v. Essex Home, Inc., 341 Ark. 558, 19 S.W.3d 585 (2000). We require clear-cut proof to establish the elements in outrage cases. Id. Merely describing the conduct as outrageous does not make it so. Id. Clear-cut proof, however, does not mean proof greater than a preponderance of the evidence. Id.
The proof at trial, viewed in the light most favorable to appellee, reveals the following. Appellee was lied to about the identity of the enrolling agent. She testified that he identified himself as James Foster with Cincinnati Life Insurance. In fact, Foster was not in Little Rock when the application was taken. The parties stipulated that the application was probably taken by either Douglas Buehland or Jay Miller, whose last known whereabouts were in Arizona. Neither of these men were licensed in Arkansas as insurance agents. Aon sometimes used independent enrollers to take applications, after which James Foster would sign the application as the witnessing agent. James Foster testified that CLIC was aware of the practice of using outside enrollers other than the one who signed the application because two enrollers were the wife and sister-in-law of a CLIC director.
The CLIC manual, which was provided to enrollers, read in part:
Can I insure my spouse and children with a basic cash value life insurance policy? Yes! Your spouse and/or children who arfe under age 23, unmarried, not in military service and dependent upon you for their support are eligible for a separate policy.
Neither the application, the manual, or the policy defined the term “dependent.” According to Larry Arlen, CLIC authorized, and in fact relied on, Aon’s agents to define the term to the applicant. Arlen himself offered a very broad definition of the term, testifying that, to him, a dependent is someone who requires the help, assistance, and guidance of the person he is depending on in order to survive. Further, the manual said nothing about a requirement that an insured be a full-time student.
When appellee signed the application, nothing was filled in the occupation box. According to the handwriting expert, neither the enroller who filled out the application nor appellee wrote anything in that box. Therefore, the untruthful term “full time student” must have been placed in the box after appellee completed the application process, and the evidence showed that it was either CLIC or Aon who had access to applications at that point. The standard procedure was that, after an enroller completed a set of applications, he would send them to Aon’s home office in Georgia. There, an Aon employee would look at the applications to make sure they were properly completed and, if so, send them to the carrier (CLIC). If a block on an application was left blank, Aon would send it back to the employee’s workplace for completion, accompanied by a cover letter. Fax and letter reminders would be sent to the employer and, if no response was forthcoming, a letter and phone call would go to the employee. There was no evidence at trial that any such communications had been directed to appellee. In light of these factors, the jury would have been justified in concluding that the application was altered by either CLIC or its agent'Aon.
Now we turn to the events that took place after Antonio’s death. Upon being informed of his death, CLIC requested a proof of death statement and a death certificate from appellee. When the death certificate showed that Antonio was a laborer, CLIC began an investigation to determine if he was eligible for coverage. In the statement given by appellee to the investigator, she said that Antonio had been married since April 23, 1996; that he had last attended school in 1993; that he had not lived with her since early 1995; and that he “was not my dependent”and “was not a dependent residing with me.” Appellee also said, consistent with what she had told the enroller, that Antonio’s SSI benefits came to her and that she distributed money to him as he needed it. Further, she said that she had not told the agent who took her application that Antonio was a full-time student. It is apparent that appellee was truthful in the application process and in the statement to the investigator.
Larry Arlen of CLIC sent a questionnaire to the man who purported to be the enrolling agent, James Foster. Foster lied in the statement, saying that he had completed the application at appel-lee’s workplace and describing who was present. On the crucial question of whether appellee had told him that Antonio was a full-time student, no answer was given.
When these investigative matters were made known to Arlen, he simply grasped onto appellee’s statement in the Equifax report that Antonio was not her dependent. Fie ignored the fact that she said later in the statement that he was not a dependent “residing with me” and ignored Foster’s failure to answer the crucial question. Further, Arlen testified that he noticed that the words “full time student” on the application were in different writing from the rest of the application but that this “didn’t concern” him. Later, in a letter to the State Insurance Department, Arlen persisted in referring to the application’s designation of Antonio as a full-time student and dependent as misrepresentations, despite the fact that the student designation was in different writing and that field agents were given the authority to define who was or was not dependent. Finally, Arlen conducted no further investigation, even after he discovered that Foster had lied about being the enroller in this case.
Both CLIC and Aon argue that none of their actions were atrocious enough to merit a verdict for outrage. It is true that, despite judicial recognition of this tort, the courts have addressed it in a cautious manner and have stated that recognition of it is not intended to open the doors of the courts to every slight insult or indignity one must endure in life. Dillard Dep’t Stores, Inc. v. Adams, 315 Ark. 303, 867 S.W.2d 442 (1993). Rude, aggressive, hateful, rumor-mongering, profane, and name-calling behavior has been held insufficient to support a cause of action for outrage. See, e.g., Faulkner v. Arkansas Children’s Hosp., supra; Stockton v. Sentry Ins., 337 Ark. 507, 989 S.W.2d 914 (1999); City of Green Forest v. Morse, 316 Ark. 540, 873 S.W.2d 154 (1994); Webb v. HCA Health Servs., 300 Ark. 613, 780 S.W.2d 571 (1989).
We conclude that there was substantial evidence of outrage on the part of both appellants going beyond the rudeness, name-calling, and gossiping described in the other outrage cases cited above. Aon engaged in egregious dishonesty in a manner that it should have known would cause emotional distress to appellee. One of the unlicensed enrollers misidentified himself as James Foster and misled appellee about the amount of her insurance coverage. Further, the evidence would support a finding that an Aon employee altered the application. Moreover, while an investigation of appellee’s claim was underway, James Foster lied and concealed pertinent information, thus causing appellee to be cast in a bad light, and wrongfully denied the coverage she sought during an. extremely difficult time in her life.
Aon claims that appellee testified that she could not point to any act by Aon that intended to cause her harm. Her exact testimony on cross-examination is as follows:
Question: Ms. Mickles, there has been a lot said today about outrageous conduct of Aon. Other than what you’ve testified to here in front of the jury, is there any instance of conduct from Aon, not Cincinnati Life, that supports your claim that they intended to cause you harm?
Answer: I, I only knew I was dealing with Cincinnati.
This testimony does not absolve Aon. First, appellee testified that misrepresentations had been made to her by the person who represented himself to be James Foster. Second, even though appellee did not know the particular company with which her enroller was affiliated, there was sufficient proof presented at trial that the enrollers were sent by Aon.
Aon also argues that appellee failed to prove the level of emotional distress required for an outrage verdict. However, our review of Aon’s directed-verdict motion made at trial does not reveal this as a basis for Aon’s argument below. Although Aon did raise this argument in its posttrial motion, our supreme court has held that appellate courts should not consider an argument made for the first time in a posttrial motion. See Lee v. Daniel, 350 Ark. 466, 91 S.W.3d 464 (2002) (new trial motion); Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002) (JNOV motion).
As for CLIC’s conduct, it persisted in claiming, even to the Insurance Department, that there were two misrepresentations on the application. Yet, the very document upon which denial of coverage was based — appellee’s application — was altered by either CLIC or its agent Aon in a manner that was material to the risk. Further, the likelihood of illicit alteration was not remote but should have been apparent to CLI'C. The handwriting on the application was different, and even though this was noticed by Larry Arlen, he failed to accord it any importance. He also failed to consider that the witnessing agent left his answer blank on the question of what appellee had told him and failed to consider appellee’s insistence that she had not told the enroller that Antonio was a student. It has been the law in Arkansas for many years that an insurer cannot void a policy for misrepresentations when the misstatement in the application is the result of the fraud, negligence, or mistake of the agent. See Neill v. Nationwide Mut. Fire Ins. Co., 355 Ark. 474, 139 S.W.3d 484 (2003), and cases cited therein. Further, CLIC continued to insist that appellee had misrepresented Antonio’s dependent status, knowing that it relied on its field agents to define who is or is not a dependent.
These factors provide substantial evidence for the jury’s finding that CLIC’s conduct was outrageous. The evidence shows a willful ignorance of the facts coupled with a grim determination to deny coverage on two grounds that were in fact created by CLIC or its agent.
We turn now to CLIC’s argument that the trial court should have directed a verdict in its favor on the bad-faith count. Bad faith requires the establishment of affirmative misconduct by an insurer, without a good-faith defense, which is dishonest, malicious, or oppressive in an attempt to avoid liability under a policy. Richison v. Boatmen’s Ark., Inc., 64 Ark. App. 271, 981 S.W.2d 112 (1998). A claim for bad faith cannot be based upon good-faith denial, offers to compromise a claim, or for other honest errors ofjudgment by the insurer. Id. Neither can the claim be based upon negligence or bad judgment so long as the insurer is acting in good faith. Actual malice means that state of mind under which a person’s conduct is characterized by hatred, ill will, or a spirit of revenge; it may be inferred from conduct and surrounding circumstances. Id.
We conclude that the jury’s bad-faith verdict was supported by much of the same evidence that supported the outrage claim. Therefore, we will not reiterate that evidence here but simply address the specific arguments made by CLIC.
CLIC argues first that there was no evidence that its alleged misconduct was undertaken “for the purpose of avoiding liability under the policy.” CLIC is relying on language in numerous cases that define bad faith as an insurer’s affirmative misconduct “in an attempt to avoid liability under a policy.” CLIC claims that, in this case, most of the alleged misconduct took place at the application stage, before the policy was ever issued, and further that no evidence shows that any alterations were made on the policy after Antonio died. Thus, it contends, it engaged in no misconduct to avoid liability under the policy.
We note at the outset that, in more recent cases, the supreme court has modified the phrase “in an attempt to avoid liability under the policy” to read “in order to avoid a just obligation to its insured.” See Columbia Nat’l Ins. Co. v. Freeman, supra. In any event, even if bad faith cannot take place until a claim is asserted, CLIC committed acts of bad faith after the claim was asserted by turning a blind eye to clear evidence that appellee had made no misrepresentations and that, in fact, all the evidence pointed to the conclusion that either it or its agent had altered an insured’s application. Further, even if the term “full time student” was added to the application before Antonio died, either CLIC or its agent, Aon, made this crucial alteration in a haphazard way, either knowingly or in reckless disregard of the fact that it could later be used to void coverage.
CLIC also argues that any evidence that it altered the application is speculative. We disagree. The evidence supports the conclusion that it was either Aon or CLIC that wrote in the term “full time student” on appellee’s application. Further, once it was determined that neither appellee nor the enrolling agent wrote the term on the application, CLIC could only have concluded that the term was filled in either by its agent Aon or by its own employees. CLIC points to testimony that it was a “stickler” about having no blanks on an application, with the implication being that an application with a blank on it would have been sent back to Aon. The actual testimony is that it was a stickler about the weekly premium amount and that “some carriers” were sticklers about blanks. In. any event, CLIC was obviously not perfect in its procedures — it issued this policy even though the application clearly stated that Antonio was married, a fact that should have immediately disqualified him.
Thirdly, CLIC argues that appellee, in her own testimony, acknowledged that the placement of the term “full time student” on the application could have been an honest mistake. CLIC makes too much of this testimony. Appellee said, in response to a question on cross-examination that it was “a possibility” that the person who filled out the application just wrongly assumed that Antonio was a full-time student. She also said as much in her statement to the investigator. However, her statement to the investigator was made before she ever saw the handwriting on the application. In any event, despite appellee’s willingness to consider the universe of possibilities, the handwriting expert testified that she could not match the term with either appellee’s or the enroller’s handwriting, which only left the possibility that the writing was placed there after the application process.
Finally, CLIC argues that bad faith may not be predicated on a failure to investigate. In Richison, supra, at 277, we said:
We conclude that the allegations that Consumer’s failed to fully investigate the cause of Richison’s death beyond a cursory review of the death certificate and medical records will not support a claim of bad faith. In Findley v. Time Ins. Co., 264 Ark. 647, 573 S.W.2d 908 (1978), the insured alleged, among other things, that the insurer failed to contact her physician or to investigate fully the diagnosis by her treating physician before denying a claim for medical insurance benefits based on false statements on the application for the policy. The supreme court stated that “had [Findley] claimed that after the investigation by [the insurer] it was determined that claim was valid and [the insurer] nevertheless refused to pay or ... refused to make any investigation at all, and that [the] refusals were in badfaith with an intent to cause further damage to [Findley] a different question would be presented.” The court stated that Findley had not asserted any affirmative action on the part of the insurer that would constitute bad faith or fraud.
(Emphasis added.)
What we have in this case is not a mere failure to investigate. CLIC made a decision to ignore evidence obtained in an investigation that pointed to the applicant’s truthfulness and cast doubt on the idea that she had made any misrepresentations. Further, CLIC made a decision to deny coverage when it knew or should have known that it or its agent had inserted the offending information on the application.
Based on the foregoing, we affirm the jury’s bad-faith verdict against CLIC.
Our next issue concerns Aon’s claim that the trial judge should have granted its motion for a directed verdict on the deceit count. The essential elements of an action for deceit are as follows: (1) a false representation of a material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in reliance upon the representation; (4) justifiable reliance on the representation; (5) damage suffered as a result of the reliance. Goforth v. Smith, 338 Ark. 65, 991 S.W.2d 579 (1999). Despite Aon’s claim that the burden of proof below was clear and convincing evidence, the burden of proof for fraud in a case at law is by the preponderance of the evidence. Tyson Foods v. Davis, 347 Ark. 566, 66 S.W.3d 568 (2002); Lancaster v. Schilling Motors, 299 Ark. 365, 772 S.W.2d 349 (1989).
We will not unduly burden this opinion with restating the facts that support the deceit count. Suffice it to say that the evidence supports a finding that an employee of Aon made false statements to appellee about his identity, the amount of the policy, and Antonio’s status as a dependent, all for the purpose of inducing her to buy a policy; that she was justified in relying on those representations; and that, as a result, she purchased a policy under circumstances that were so fraught with confusion and deception that the coverage she bargained for was later denied. There was therefore substantial evidence to support the jury’s verdict for deceit.
The next issue concerns a jury instruction given by the court upon appellee’s reqüest on the deceit count .against Aon. The instruction was based on AMI 903 and the identical 601, which basically state that violation of a statute may be considered evidence of negligence. Appellee proposed to instruct the jury that a violation of the state insurance licensing statute was evidence of deceit. The statute that was in effect at the time of the allegedly tortious acts in this case, Ark. Code Ann. § 23-64-201 (Repl. 2001), prohibited a person from soliciting insurance business, taking insurance applications, or placing insurance business without a license. The instruction was given to the jury over Aon’s objection. We agree with Aon that the instruction was given in error.
AMI Civ. 4th 903 is designed to instruct a jury that violation of a statute, while not necessarily an act of negligence, may be considered along with other facts and circumstances as evidence of negligence. Barnes v. Everett, 351 Ark., 479, 95 S.W.3d 740 (2003). We have found no case, either in Arkansas or any other jurisdiction, in which this type of instruction was approved to instruct a jury that violation of a statute was evidence of deceit. But see Aetna Cas. & Sure. Co. v. Broadway Arms, 281 Ark. 128, 135, 664 S.W.2d 463 (1983), stating that violation of the Trade Practices Act is not necessarily evidence of bad faith. Appellee cites Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983), to support the giving of the instruction. There, in a case involving allegations of both fraud and negligence, the trial court instructed the jury that violation of certain UCC provisions regarding deception in the sale of goods, could be considered evidence of negligence. The language in the case is somewhat confusing, seeming to indicate that an AMI 903 instruction would be proper in a fraud case, but the case ultimately affirms only that violation of a statute is evidence of negligence:
Assuming at a second trial that fraud is established so as to constitute a submissible issue, we find no error in the instruction to the jury framed in terms of AMI 601 and 903. We have often said that violation of a statute is evidence a jury may consider in determining whether a defendant is guilty of negligence.
Id. at 397. Therefore, the case is not helpful to appellee.
We conclude that the instruction was in error because it permitted the jury to make a finding of deceit based solely upon the fact that Aon’s enrollers were unlicensed. Deceit or fraud requires scienter, an intent to misrepresent. See Fidelity Mortgage Co. v. Cook, 307 Ark. 496, 821 S.W.2d 39 (1991). Violation of this statute is not necessarily the equivalent of an intention to misrepresent. Further, deceit requires the element of justifiable reliance, which the statute does not address. Thus, despite our holding that there was substantial evidence to justify the jury’s deceit verdict, we must reverse on this issue because the giving of an erroneous instruction is presumptively prejudicial. Frisky v. Agerton Logging, Inc., 323 Ark. 508, 915 S.W.2d 718 (1996).
Based on the foregoing, we affirm the jury’s verdict as to CLIC and hold that error occurred in the case against Aon. Because the jury’s interrogatories rendered only one damage verdict of $120,000, apportioned fifty percent to each defendant, we have no way of ascertaining what portion of that amount is attributable to outrage and what portion is attributable to deceit. Therefore, because we have found error as to one of these counts, we must reverse the entire case against Aon for a new trial. See Welter v. Curry, 260 Ark. 287, 539 S.W.2d 264 (1976).
Aon’s final argument concerns appellee’s use of James Foster’s deposition at trial. Aon argues that, because Foster’s deposition was taken on February 24, 2000, before Aon was made a party to the lawsuit, it should not have been admitted into evidence against Aon. See Ark. R. Civ. P. 32. The trial court agreed with Aon’s argument but solved the problem by giving the jury a limiting instruction, directing them to consider the deposition as evidence only in the case against CLIC. Our affirmance of the jury’s verdict as to CLIC and reversal as to Aon makes it unnecessary to address Aon’s argument on this point. Foster may be available to testify upon retrial. Further, with the retrial having only Aon as a defendant, this issue should not arise.
The jury’s verdict is affirmed in all respects as to appellant CLIC. The verdict on both the outrage and deceit counts against Aon are reversed and remanded.
Griffen and Neal, JJ., agree.
Although CLIC contends that Aon was its soliciting agent rather than its general agent, both Aon manager James Foster and CLIC manager Larry Arlen described Aon as a general agent.
At some point, just before a trial was scheduled, CLIC tendered $28,942 in policy proceeds, plus interest.
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Andree Layton Roaf, Judge.
Carmen Moore appeals the circuit court’s denial of her divorce complaint. For her sole point on appeal, Moore argues that the circuit court erred when it found that there was insufficient evidence to corroborate her grounds of general indignities. We reverse and remand.
Carmen Moore filed a petition for divorce from her husband, Fred J. Davidson. In her complaint, Moore alleged that she suffered general indignities. Davidson answered her complaint, denying all material allegations and requesting that the court deny the petition for divorce. The following testimony was elicited at the final hearing. Moore testified that she filed for a divorce based on personal indignities. She stated that Davidson accused her of lying, stealing, and of infidelity. These accusations, according to Moore, were continuous and ongoing throughout the marriage. For example, Moore testified that if she needed to go away on business, to a meeting for work, or to lunch, her husband accused her of meeting another man. She stated that she had to ask permission to have lunch with other people, and upon returning from lunch she had to notify Davidson of that and report what she ate for lunch. Davidson also accused her of stealing Wal-Mart stock certificates, when he had removed them from the safety deposit box himself one month prior to the accusation. Davidson constantly insisted that Moore did not contribute to the household.
Moore testified about several specific incidents of verbal and physical abuse. First, Moore described an incident where she and Davidson were visiting with friends at their home. She commented that if the Wal-Mart stock split again she would retire. Davidson commented angrily, “I don’t think you have got a dime in that stock. If anybody is going to retire, it’s going to be me.” Moore testified that her husband had been physically abusive on two separate occasions. In September 1997, Davidson slammed her against the cabinet and threw her to the floor. In March 1998, Davidson threw her to the floor and began choking her. Moore stated that after the incident she had bruises on her neck.
Moore also testified that when her car once broke down thirty miles from home, she phoned Davidson for help, and he refused to come. Moore was upset by Davidson’s response, and left the marital home for several days, but eventually moved back. On cross-examination, Moore admitted that she resumed a sexual relationship with her husband after all of these incidents. Finally, Moore testified that one morning after she filed for divorce, Davidson entered the kitchen and asked if Moore would like to live to see her grandchildren grow up. Moore asked if he was threatening her, and he responded, “Would I do that?” Moore considered the comment a threat to her life.
Moore presented the following evidence as corroboration of her grounds. Kevin Gandy, one of Moore’s co-workers, testified that he “got the impression that her marriage was oppressive.” He observed bruises on her neck on two occasions and offered to lend Moore his neck brace. He testified that the bruises were on both sides of her neck and it looked like someone tried to choke her. Although Gandy saw the bruises on two occasions, he did not see Davidson put them there. He also testified that when he and Moore went to lunch, she would call Davidson for permission and again when she returned. Derrell Scharbor testified that he was one of the friends present during the discussion about retiring off the Wal-Mart stock. He stated that Davidson was angry, and that he also observed Davidson get angry when Moore broke a lawnmower. According to Scharbor, Davidson kept yelling at Moore until she left crying. However, Scharbor admitted that he had not observed any physical abuse. Danielle White, Moore’s daughter, testified that she also observed bruises on her mother’s neck. She said that Moore told her Davidson put the bruises on her neck. White also testified that she had observed Moore call Davidson for permission to go to lunch, and then call again when she returned and report what she ate. At the end of this testimony, Davidson moved for a directed verdict. The court denied the motion, stating that Moore had made a prima facie case.
Davidson then put on his case. Perry Tombs, an auto mechanic, testified that on the day Moore was stranded, Davidson called several times to insure Moore had been helped. But, he admitted that it was Moore who contacted him for help, not Davidson. Caleb Mason testified that Moore told him she wanted a divorce because she was unhappy. Davidson testified and in essence denied all of Moore’s allegations. He stated that he never humiliated Moore in front of a group of people, accused her of cheating, or told her she did not contribute to the household. He asserted that the incident about the Wal-Mart stock was not “a big deal” because it was just a conversation, and that Moore did not complain or cry; that he has never been physically violent toward Moore; that prior to the divorce he had never accused Moore of being unfaithful; and that “all of the grounds that [Moore] asserts are false.” He did admit that he did not think the parties could reconcile their marriage.
At the close of all evidence, the trial court took the case under advisement. The court later issued an order denying Moore’s petition for divorce, finding that she had failed to corroborate her grounds for divorce. The order further provided that “the issue of condonation raised by [Davidson] — is not reached. The conclusion is that [Moore] has not sustained her burden of proof.”
Divorce cases are reviewed de novo on appeal, and will not be reversed unless the trial court’s decision is clearly erroneous. This court gives due regard to the trial court’s superior position in judging the credibility of witnesses. Russell v. Russell, 19 Ark. App. 119, 717 S.W.2d 820 (1986).
It is well settled that a petition for divorce will not be granted on the testimony of the complainant alone, even if the defendant admits the allegations, but it must be corroborated by other evidence to establish the truth of the assertion. Goodlett v. Goodlett, 206 Ark. 1048, 178 S.W.2d 666 (1944).
Corroboration, in the sense of our divorce laws, is testimony of some substantial fact or circumstance independent of the statement of a witness which leads an impartial and reasonable mind to believe that material testimony of that witness is true. Where a particular fact or circumstance is vital to a complainant’s case, some evidence thereof, in addition to the complainant’s testimony, is necessary to constitute corroboration.
Welch v. Welch, 254 Ark. 84, 87, 491 S.W.2d 598, 601 (1973).
In Goodlett, supra, the supreme court affirmed the lower court’s grant ofMrs. Goodlett’s divorce complaint. Mrs. Goodlett filed for divorce alleging general indignities and cruel and barbarous treatment. “She testified that on numerous occasions appellant cruelly abused her calling her vile names, and frequently struck her and beat her, so that on numerous occasions there were black and blue bruised places on her body.” Id. at 1049-50, 178 S.W.2d at 666. “Numerous witnesses saw the bruised places on [Mrs. Goodlett] shortly after [she] said [Mr. Goodlett] had beaten her.” Id. at 1050, 178 S.W.2d at 666. While the witnesses did not see Mr. Goodlett beat his wife, the court opined that the existence of the bruises on Mrs. Goodlett’s body constituted corroboration of her testimony that Mr. Goodlett beat her, in the absence of any showing to the contrary. The court also pointed to an incident whereby the neighbors heard Mrs. Goodlett screaming and ran to their porches. The police were called, and Mr. Goodlett admitted striking his wife. The court stated that this incident also corroborated Mrs. Goodlett’s testimony that her husband beat her during the marriage. The court stated: “The purpose of the rule requiring corroboration is to prevent procuring divorces through collusion, and that where it is plain there is no collusion, the corroboration may be comparatively slight.” Id. at 1051, 178 S.W.2d at 667.
In Franks v. Franks, 211 Ark. 919, 204 S.W.2d 90 (1947), the supreme court affirmed the grant of a divorce to Agnes Franks on the grounds of general indignities and cruel treatment. Mr. Franks appealed, arguing that the allegations had not been sufficiently corroborated. The court held that the testimony was sufficiently corroborated and there was no suggestion of collusion, reiterating that where it is plain that there is no collusion, “corroboration may be comparatively slight.” Id. at 922, 204 S.W.2d at 91. Moreover, our supreme court has stated that in a hotly contested divorce action, evidence on corroboration need be only slight. See Anderson v. Anderson, 234 Ark. 379, 352 S.W.2d 369 (1962).
In the case before us, there is no suggestion of collusion. The divorce action was contested, with each party presenting witnesses to support their version of events. Therefore, corroboration of Moore’s testimony need be only slight. It is also not necessary for the witnesses to corroborate every detail of Moore’s testimony. In his letter opinion, the trial judge noted that Moore’s testimony was corroborated in some respects; however, he found that she did not corroborate the incidents involving the alleged death threat or the incident where her vehicle broke down.
Moore presented a number of witnesses to corroborate her grounds for divorce. Moore alleged that Davidson had been physically abusive, and although no one witnessed this alleged assault, both Danielle White and Kevin Gandy testified that they observed bruises on Moore’s neck after the alleged assault. This is corroborative evidence in that the witnesses observed the bruises shortly after the alleged assault. See Goodlett, supra. Derrell Scharbor testified that he observed Davidson get angry with Moore on two separate occasions, once while discussing the Wal-Mart stock and another when Moore broke the lawnmower. While these are just two instances, our supreme court has stated that where more than one instance of the alleged maltreatment is established, it is sufficient corroboration of the plaintiffs testimony as a whole. Goodlett, supra; Coffey v. Coffey, 223 Ark. 607, 267 S.W.2d 499 (1954). In this case, Scharbor’s observations ofDavidson’s temper on two occasions are corroborative of Moore’s testimony that Davidson was verbally abusive. Moore also testified that Davidson constantly and throughout the entire marriage accused her of being unfaithful. She had to report on her activities, including requesting permission to have lunch, even with her own daughter, and was required to report back to Davidson when she returned. Both Gandy and White testified that they were present when Moore requested permission to have lunch and when she called Davidson to report back. White also testified that she once observed Davidson standing outside of the restaurant where she and Moore were dining for lunch. Thus, their testimony is corroborative of Moore’s testimony that Davidson constantly and unreasonably monitored her activities.
It was not necessary for Moore to corroborate every minute detail of her testimony. Coffey, supra. While some of the above incidents when viewed separately may seem relatively minor, the supreme court has held that such incidents together can produce cumulative results sufficient to support grounds of general indignities. Anderson, supra. Accordingly, we hold that the trial court erred in denying Moore a divorce based on insufficient evidence of corroboration.
Davidson also argues that even if this court finds that Moore’s testimony is sufficiently corroborated, she is not entitled to a divorce because she repeatedly condoned Davidson’s actions. However, the lower court did not rule on this issue, and Davidson did not further request a ruling, or file a contingent cross-appeal. Consequently, we do not address it. Wilson v. Rodgers, 250 Ark. 335, 356, 468 S.W.2d 739, 751-52 (1971) (quoting Fordyce v. Vickers, 99 Ark. 500, 507, 138 S.W. 1010, 1012 (1911) (holding “where the chancellor has decided a case upon an issue . . . of law, in which we find that he was in error, and leaves undecided other issues. . . , which he is probably better able to pass upon by reasons of his greater familiarity with the circumstances and conditions surrounding said issues, this court in its discretion may remand the case for his decision”)).
Accordingly, we reverse and remand for proceedings consistent with this opinion.
Robbins and Baker, JJ., agree. | [
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Wendell L. Griffen, Judge.
Gloria Kincannon appeals from her conviction for delivery of a controlled substance, methamphetamine. She asserts that the trial court erred in admitting the testimony of a confidential informant as a rebuttal witness and that the trial court erred in admitting into evidence a bag of methamphetamine because the State failed to establish the chain of custody of the evidence. We agree that the trial court erred in admitting the testimony of the confidential informant; therefore, we reverse and remand.
Appellant’s trial was conducted on October 7, 2002. The charges were the result of an undercover drug operation conducted on April 5, 2001, involving Officer Scott Bradshaw of the Arkansas State Police, and Billy Jack Wallace, a confidential informant. The operation was an ongoing investigation of Charlotte Nutt, a suspected drug manufacturer and supplier, who is not a party to this appeal. In the instant case, appellant was charged as an accomplice to Nutt.
Bradshaw and Wallace had made arrangements with Nutt to exchange red phosphorus for methamphetamine. In the early morning hours of April 5, 2001, appellant accompanied Nutt to the Cornerstone Family Worship Center near Amity, Arkansas. They arrived at the worship center shortly before 2:00 a.m. When Bradshaw and Wallace walked over to Nutt’s vehicle and Bradshaw asked Nutt if she had “it,” referring to the methamphe’t-amine, she replied that she had “both,” indicating that she would buy the red phosphorus or would trade methamphetamine for the phosphorus. Wallace got into the backseat on the driver’s side and Bradshaw got into the backseat on the passenger side. After a discussion, Bradshaw left Nutt’s vehicle to retrieve the phosphorus, which was in his vehicle, while Wallace remained in Nutt’s vehicle.
During Bradshaw’s absence, appellant asked Nutt if she had checked Wallace for a wire. Wallace testified that appellant began checking him for a wire, but stopped when Nutt began doing the same thing. Bradshaw then returned and traded Nutt the red phosphorus in exchange for the methamphetamine. He stated that “they” told him it was 2.7 grams of methamphetamine and offered him a scale to weigh it, but he did not use the scale because it was dark and he could not see.
After the trade occurred, appellant asked for a pocketknife because the phosphorus did not smell strong enough. Wallace gave appellant a pocketknife and she dipped it in the red phosphorus. Appellant then told Bradshaw to light the phosphorus (to test its strength) and he did so. When Bradshaw was asked on direct examination, as part of the State’s case-in-chief, whether he was present when appellant asked whether Wallace was wearing a wire, he stated that he was not present at that time and that he was informed about appellant’s question later (by Wallace).
Bradshaw also testified concerning the chain-of-custody of the drugs seized in this case. Except for removing the drugs to process the paperwork, Bradshaw kept the drugs in his trunk until May 3, 2001, when he turned them over to Joseph Beavers, of the Narcotics Section of the CID. Beavers transported the drugs to the Arkansas State Crime Laboratory for analysis on the same day.
At trial, the State sought to admit State’s Exhibit 1 as the methamphetamine that Bradshaw received in the April 5, 2001 transaction. However, the date marked on the evidence admission form submitted to the crime lab was March 22, 2001, not April 5, 2001. Bradshaw explained that the mistake was a typographical error and that he “just tabbed past the date instead of punching in the correct date.” He indicated that March 22, 2001, was the date of another drug buy. However, he stated that he was sure that Exhibit 1 contained the drugs that he received on April 5, 2001, because that was the only buy he made from Nutt in Pike County. He also stated that the April 5 transaction was the only transaction in which he was involved in which appellant was also involved.
Appellant objected to the admission of State’s Exhibit 1 based on the discrepancy in the dates. The trial court found that the typographical error went to the credibility of the evidence, not its admissibility. The court then admitted State’s Exhibit 2, the crime-lab report, over appellant’s objection. This report indicated “amphetamine, methamphetamine, pseudoephedrine (2.477 Gram(s)).”
Before the State rested, it attempted to call Wallace as a witness as part if its case-in-chief. Appellant objected on the ground that the State never provided her with Wallace’s name. The trial court allowed appellant to interview Wallace, but ultimately sustained appellant’s objection. Wallace did not testify as part of the State’s case-in-chief.
In appellant’s defense, she testified that Nutt asked appellant to accompany Nutt to meet with Wallace to purchase a satellite receiver for Nutt’s daughter. In response to the State’s cross-examination, appellant denied that she participated in the drug transaction and that she said anything about the red phosphorus or asked anyone for a knife to light the phosphorus. She testified that when she realized that a drug transaction was taking place, she told Nutt that was “too much information” for her and that she “didn’t want to be in this.” However, she admitted that she asked Nutt, “[H]ave you even checked him [Wallace] for a wire?”
After appellant testified, the State called Wallace as a rebuttal witness. Appellant again objected on the ground that she had not been notified that Wallace would be a witness. The State countered that it was not required to turn over the names of its rebuttal witnesses. The trial overruled appellant’s objection.
Wallace testified that both Nutt and appellant asked whether he was wearing a wire and that appellant began to pat him down before Nutt took over and patted him down. He also corroborated Bradshaw’s testimony that appellant asked for a knife to test the phosphorus, and asked Bradshaw to light it.
After Wallace testified, appellant renewed her motions, which the trial court denied. Appellant was found guilty and was sentenced to serve twenty-four months in the Arkansas Department of Correction. This appeal followed.
I Rebuttal Testimony
Appellant first argues that the trial court erred in allowing Wallace to testify as a rebuttal witness because the State never disclosed his identity to her before trial and because Wallace’s testimony was not true rebuttal testimony. The State is not required to disclose rebuttal witnesses during discovery. Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996). The rationale is that, until the defense’s case has been presented, the State cannot know of any witnesses needed for rebuttal. Id. It is within the trial court’s discretion whether to admit rebuttal testimony, and the appellate court will not reverse this determination absent an abuse of that discretion. Id. Rebuttal evidence is evidence that is offered in reply to new matters, even if it overlaps with the evidence presented in the State’s case-in-chief, as long as the testimony is responsive to evidence presented by the defense. Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993). The scope of a rebuttal witness’s testimony is accorded wide latitude and will not be restricted merely because it could have been presented on direct examination. Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986). However, the State is not allowed to elicit evidence from a defendant for the purpose of presenting a rebuttal witness. Birchett, supra.
We hold that the trial court erred in admitting Wallace’s testimony because the State, not appellant, elicited the testimony that the State sought to rebut and because Wallace’s testimony was not in response to any new matters presented by appellant. While Wallace did contradict appellant’s testimony that she did not check him for a wire and that she did not ask for a knife to test the phosphorus, those issues were first raised during Bradshaw’s testimony as part of the State’s case-in-chief and were not raised again until the State’s cross-examination of appellant. Bradshaw testified that appellant asked for a knife, that Wallace gave her a knife, and that she stuck the knife in the phosphorus and asked Bradshaw to light the phosphorus. Although Bradshaw did not testify regarding appellant’s statement concerning a wire, the State asked Bradshaw, on direct examination as part of its case-in-chief, if he was present when appellant asked about a wire, and he indicated that he was not. On cross-examination, in response to the State’s questions, appellant denied her involvement with the transaction. While she admitted that she asked Nutt if she had checked Wallace for a wire, she denied that she checked anyone for a wire and denied any involvement with the phosphorus.
Thus, the State improperly elicited from appellant the information that it already knew it would rebut with Wallace’s testimony. While the State is certainly allowed to question its witnesses and cross-examine the defendant’s witnesses regarding the scope of a defendant’s involvement in a crime, it is not allowed to elicit the testimony which necessitates rebuttal testimony. Isbell, supra; Birchett, supra. Where the State elicits such testimony from a defendant, that evidence is not in response to the evidence presented by the defense, and as such, is not true rebuttal testimony because it is not offered in reply to new matters raised by the defense. Isbell, supra; Birchett, supra. Simply put, the rationale for not requiring the State to disclose rebuttal witnesses does not allow the State to withhold the identity of a witness and to then orchestrate the need for the rebuttal testimony of that witness. Birchett, supra. Finally, we note that the prosecutor conceded when he argued that an audiotape of the transaction should be admitted that Wallace’s testimony was part of the res gestae in this case. Therefore, the State is hard-pressed to argue that the same evidence that it fought to present as proof of the resgestae in its case-in-chief would merely be responsive to new matters asserted by the defense. Thus, we hold that, under the circumstances of the instant case, the trial court erred in admitting Wallace’s testimony as rebuttal testimony.
II. Chain of Custody
Appellant’s second argument is that the trial court erred in admitting into evidence State’s Exhibit 1, which the State asserted was the bag of methamphetamine seized from Nutt during the April 5, 2001 transaction. Because this issue is likely to arise during retrial, we next address this argument. Pyles v. State, 329 Ark. 73, 947 S.W.2d 754 (1997).
Appellant maintains that due to discrepancies in the date of the offense and the date on the form submitted to the crime lab, the chain of custody was not adequate to prove that the drugs tested were the same drugs obtained from Nutt on April 5, 2001. The purpose of establishing the chain-of-custody is to prevent the introduction of evidence that has been tampered with or is not authentic. Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997). The trial court must be satisfied within a reasonable probability that the evidence has not been tampered with, but it is not necessary for the State to eliminate every possibility of tampering. Id. Minor uncertainties in the proof of chain-of-custody are matters to be argued by counsel and weighed by the jury, but they do not render the evidence inadmissible as a matter of law. Id. Our courts have required that the chain-of-custody for interchangeable items like drugs or blood needs to be more conclusive than for other evidence. Id. We do not reverse a trial court’s ruling on the admissibility of evidence under the chain-of-custody rule absent a showing that the court clearly abused its discretion. Jones v. State, 82 Ark. App. 229, 105 S.W.3d 835 (2003). We hold that the trial court did not abuse its discretion in admitting State’s Exhibit 1 because the State, within a reasonable probability, established the chain of custody.
According to Bradshaw’s testimony, on April 5, 2001, he received a ziplock bag containing what Nutt told him was 2.7 grams of methamphetamine. Pursuant to his normal routine, he labeled the bag with Nutt’s'name and placed the drugs in his trunk. The drugs remained in his trunk until he took them out to complete his paperwork. Approximately two weeks later, he completed the paperwork on the drugs, including the report-of-investigation form, the CID case form, and the receipt for evidence/property form. Thereafter, the drugs remained in his trunk until he turned them over to Beavers, who took the drugs to the crime lab.
On the report of investigation form, Bradshaw listed the date of the incident as April 5, 2001, indicated Nutt as the suspect, and indicated that he received 2.7 grams of methamphetamine. On the CID case form, Bradshaw provided a narrative of the incident and named both Nutt and appellant as participants. He also stated on the case form that he kept the drugs secure until they were turned over to the crime lab.
On the receipt for evidence/property form, the date of confiscation is listed as April 5, 2001, although there is no date of receipt on the form. The form indicates that the evidence was received from Nutt at the Cornerstone Family Workshop Center in Amity, Arkansas (Pike County). The evidence was described as: “One clear plastic corner bag containing approximately 2.7 grams of an off-white powder substance believed to be meth.” The evidence submission form that Bradshaw (through Beavers) submitted to the crime lab, indicates May 3, 2001, as the date the drugs were received at the lab. This form also lists Nutt as the suspect, and lists the date of offense as March 22, 2001. The description of the evidence is identical to the description of the evidence in the receipt-for-evidence/property form.
Appellant maintains that the discrepancies in the chain-of-custody are not minor discrepancies. First, she notes that the date on State’s Exhibit 1 is different from the date of the offense and is the same date as another buy that Bradshaw made. Appellant relies on the fact that Bradshaw made two additional arrests of Nutt subsequent to the April 5 incident but prior to the submission of the drugs to the crime lab. It took Bradshaw approximately two weeks after April 5, 2001, to complete the paperwork, and he admitted that by that time, he had made one or two additional buys from Nutt. Bradshaw could not remember whether the drugs from the subsequent arrests were also stored in his trunk with the drugs from the April 5 arrest. Fie further testified that at the time he was completing the paperwork, he “was new to this” and did not know whether there was enough evidence to prosecute appellant.
However, the evidence was sufficient to establish within a reasonable probability that the drugs had not been tampered with. Bradshaw also testified that he wrote the April 5 date on the ziplock bag. He further testified that the drugs remained secure in his trunk, except for the time that he took them out to process the paperwork. In addition, he testified that he was sure that Exhibit 1 contained the drugs that he received on April 5, 2001, because that was the only buy he made from Nutt in Pike County. He also stated that the April 5 transaction was the only transaction in which he was involved in which appellant was also involved. It is significant that the incorrect date was not written on Exhibit 1, the ziplock bag that contained the drugs. Rather, the incorrect date was only on the evidence submission form that was given to the crime lab when the bag of drugs was submitted. Bradshaw explained that he simply tabbed over the date of the offense instead of typing in the April 5, 2001 date. As the finder of fact in evidentiary matters, it was within the court’s discretion to accept Bradshaw’s explanation of the error. Henderson v. State, 349 Ark. 701, 80 S.W.3d 374 (2002).
Finally, although appellant did not challenge below the chain of evidence based on the discrepancy in the description of the weight of the drugs, she does so now. We simply note that the discrepancy of less than one-quarter of an ounce was minor, especially considering that Bradshaw did not weigh the drugs but relied on Nutt’s assertion that he was receiving 2.7 grams of methamphetamine. The Arkansas Supreme Court has found a similarly minor discrepancy in the weight of the drugs to be insufficient to raise a reasonable probability that a break in the chain-of-custody occurred. See Guydon v. State, 344 Ark. 251, 39 S.W.3d 767 (2001)(affirming where the difference between the description of the drugs and the actual weight was .1172 grams and .0817 grams, respectively). Further, there was no discrepancy in the description of the drugs seized and the drugs submitted to the Crime Lab, as was the case in Crisco, supra, because the forms used in this case consistently described the substance as an off-white powder believed to be methamphetamine.
Reversed and remanded.
Robbins and Neal, JJ., agree.
Red phosphorus is an ingredient used to manufacture methamphetamine.
This transaction was to be the first of three buys that Bradshaw arranged involving Nutt, using Wallace as a confidential informant. As a result of the two subsequent investigations, Nutt was arrested on April 19,2001, and April 29,2001.
We note that the Arkansas Supreme Court has stated, in a case involving the State’s failure to disclose an informant’s identity pursuant to the discovery rules, that if an informant is present or participated in the crime, it would be prejudicial error for the State not to reveal his identity. McDaniel v. State, 294 Ark. 416, 743 S.W.2d 795 (1988). | [
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Larry D. Vaught, Judge.
Appellant/cross-appellee Ron Waterall (Ron) appeals the circuit court’s findings that he failed to prove a legal entitlement to property owned by his father, appellee/cross-appellant Rex Waterall (Rex), through promissory estoppel and/or constructive trust. On cross-appeal, Rex requests an additional award of liquidated damages, as mandated by Ark. Code Ann. § 18-60-309(b)(l) (Repl. 2003), that was not a part of the circuit court’s order. We affirm on direct appeal and reverse and remand on cross-appeal.
In June 1977, Rex purchased an eighty-acre unimproved tract of land in Garland County, Arkansas. In July 1977, he purchased a 24' x 24' building from a house-mover and had it relocated to the eighty-acre tract. Ron repaid Rex the purchase price of the building and moved into it shortly after it was moved to the property. Allegedly, Ron was given permission to live in the building in consideration for him keeping: (1) a right-of-way on the property open; (2) the property clean and presentable; (3) dumpers, timber thieves, etc. off of the property. Ron was not required to pay rent but was required to pay taxes on the property. There is a dispute as to whether there was ever an agreement between the parties for Rex to either give the property to Ron or sell it to him.
Ron lived on the property and made various additions and improvements to it until 1992, when he and his wife Tara entered into a divorce action. As part of their property settlement, Ron and Tara acknowledged that their residence was located on real property owned by Rex. They further agreed that Tara could have the exclusive use and possession of the residence until such time as she remarried or no longer wanted to reside there. At such time as either event occurred, the house (but not the realty) was to be sold and the proceeds split equally between Ron and Tara. On April 7, 1992, this understanding was further evidenced by a written agreement containing the same terms that was executed by Ron, Tara, and Rex. The agreement further stated that Rex would sell neither the realty on which the house was situated nor the one acre surrounding it without first obtaining written permission of both Tara and Ron.
Shortly after the agreement was executed, Tara remarried. Rex brought an unlawful detainer action, in which Ron intervened, against Tara and her new husband to force them from the property. The parties entered into a consent decree on September 19, 1994, which provided that Tara and her new husband would vacate the property by November 1, 1994, and that the clerk of the court would sell the house. The consent decree further provided that the sale would not include any realty, and that unless the house was sold to either Rex or his agent, the house would be immediately removed from the eighty-acre tract by the buyer.
On October 12, 1994, the circuit clerk held a public sale of the house, which was not attended by either Tara or her attorney. The property was sold to Rex for $100 cash. Ron reimbursed Rex at the time of the sale. A bill of sale was executed by the circuit clerk to Rex. Ron then immediately moved back into the house on the property. Rex testified that again, there was no agreement to give or sell the property to Ron, but that Ron was required to keep it neat and clean. Rex further testified that Ron did not keep the property up, and he asked Ron to move off the property. Rex then filed an unlawful-detainer action on August 20, 2001, after Ron refused to clean up the property. Rex testified that the remaining seventy-nine acres were sold in 2002, and that there was $25,000 placed in escrow by the buyer for the one acre that Ron continued to occupy.
Ron testified that he had made substantial improvements to the house, including the addition ofbathrooms, bedrooms, garage, and shed. He estimated the current value of the house at $40,000 to $50,000. Ron testified that he had paid the real estate taxes for the previous three years, and that he would not have spent the money he did improving the property if he had not intended to live there forever. Ron filed a counterclaim seeking the right to occupy the house located on Rex’s property “to the extent of one (1) acre surrounding it,” for as long as he lived, under theories of promissory estoppel and constructive trust.
Following a trial and the submission of trial briefs, the circuit judge held that Ron had failed to sustain his burden of proof as to the allegations set forth in the counterclaim, and found in favor of Rex, ordering Ron to surrender possession of the property to Rex. This appeal followed.
Direct Appeal
In bench trials, the standard of review on appeal is whether the trial court’s findings were clearly erroneous. Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997). Ron acknowledges that Rex is the legal title holder to the one acre tract in question. He contends, however, that he is entitled to reside on the one acre for the remainder of his life under the theories of promissory estoppel and constructive trust, and that the circuit court erred in finding that he failed to prove those allegations.
A. Promissory Estoppel
The black-letter law on promissory estoppel is found in the Restatement (Second) of Contracts, § 90:
A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.
See also Superior Federal Bank v. Mackey, 84 Ark. App. 1, 27, 129 S.W.3d 324, 341 (2003). Whether there has been actual reliance and whether it was reasonable is a question for the trier of fact. Id. The party claiming estoppel must prove he relied in good faith on the wrongful conduct and has changed his position to his detriment. Taylor v. Eagle Ridge Developers, LLC, 71 Ark. App. 309, 29 S.W.3d 767 (2000). The doctrine of promissory estoppel may be asserted to prevent the application of the statute of frauds. See Ralston Purina Co. v. McCollum, 271 Ark. 840, 611 S.W.2d 201 (Ark. App. 1981). Where one has acted to his detriment solely in rebanee on an oral agreement, estoppel may be raised to defeat the defense of the statute of frauds. Country Corner Food & Drug, Inc. v. Reiss, 22 Ark. App. 222, 737 S.W.2d 672 (1987).
Ron testified that it was his understanding that he was going to be able to live on the property forever; accordingly, he occupied the property from 1979 until the time of trial (except for a brief period during his divorce proceeding), made valuable improvements totaling at least $40,000, and paid taxes on the property except for the most recent two or three years. However, it is undisputed that the agreement included that Ron could live rent-free on the property if he maintained the right-of-way, kept the property neat and clean, and protected it from dumpers and timber thieves. Although he claims reliance on this agreement to his detriment, there was substantial evidence presented that he did not abide by it. Promissory estoppel may be invoked to enforce an oral contract, but cannot, as argued by Ron, be used to bolster the rights of the one who breached the contract. Therefore, promissory estoppel is not applicable in this case.
J3. Constructive Trust
A constructive trust is an implied trust that arises by operation of law when equity demands. Tripp v. C. L. Miller, 82 Ark. App. 236, 105 S.W.3d 804 (2003). It is imposed where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it. Id. The duty to convey the property may arise because it was conveyed through fraud, duress, undue influence or mistake, breach of fiduciary duty, or wrongful disposition of another’s property. Id. The basis of a constructive trust is the unjust enrichment that would result if the person having the property were permitted to retain it. Id. To impose a constructive trust, there must be full, clear, and convincing evidence leaving no doubt with respect to the necessary facts. Id. The burden is especially great when title to real estate is sought to be overturned by parol evidence. Id.
Ron argues that the doctrine of constructive trust applies, “if it is shown by clear, cogent and convincing evidence that the grantee’s promise was intentionally fraudulent or that the parties were in a confidential relationship.” See Bramlett v. Selman, 268 Ark. 457, 462, 597 S.W.2d 80, 84 (1980). He contends that there is no doubt of a confidential relationship between his father (Rex) and himself. Ron worked for Rex in his garage as an employee since the age of seventeen, and later purchased the garage from him. After the structure in question was purchased, Ron moved in and remained there for the vast majority of twenty-two years. During Ron’s divorce from Tara, Ron asserts that he had the advice and counsel of his father, and that Rex sued Tara to regain possession of the property, with Ron subsequently moving back into the house. There was testimony that Rex purchased the property at the commissioner’s sale in order to protect Ron from any further claims by any woman Ron might marry at a later date. He relies on language from our supreme court stating, “equity, however, will impose a constructive trust when a grantee standing in a confidential relation to the grantor orally promises to hold land for the grantor and later refuses to perform his promise.” Bramlett, supra at 465, 597 S.W.2d at 85.
Ron also points to the agreement executed between Rex, Tara, and himself on April 7, 1992. He points to the language in the agreement whereby Rex agreed not to sell the land upon which the house was located or the surrounding one acre “without first obtaining the written permission of both Tara Lynn Waterall (now Smoot) and Ronald Lee Waterall.” However, the very wording of the agreement contradicts Ron’s argument. All references to the term of the agreement refer to “until such time as she remarries.” The only written agreement expired when Tara remarried.
There is no evidence of a deed from Rex to Ron, nor any type of written agreement promising to either give or sell the land to him. Ron presented no convincing evidence that Rex had any obligation, legal, moral, or otherwise, to convey the property to him. Further, Ron never paid Rex rent while occupying the property. His ability to live in the structure on the property in question was conditioned upon him keeping the property clean and well-kept, which he failed to accomplish. The circuit judge found this insufficient for the imposition of a constructive trust, and we cannot say that this finding is clearly erroneous. Accordingly, we affirm on direct appeal.
Cross Appeal
Rex’s original complaint was for the unlawful detainer of his property. He asked not only for possession, but also for rent in the amount of $300 per month or $9.68 per day from August 14, 2001, and for liquidated damages in the amount of $300 per month or $9.68 per day from August 14, 2001, until such time as possession was restored to him. Arkansas Code Annotated section 18-60-309 governs unlawful detainer actions and states in pertinent part:
(a) If upon the trial of any action brought under this subchapter the finding or verdict is for the plaintiff, the court or jury trying it shall assess the amount to be recovered by the plaintiff for the rent due and agreed upon at the time of the commencement of the action and up to the time of rendering judgment or, in the absence of an agreement, the fair rental value.
(b) In addition thereto in all cases the court shall assess the following as liquidated damages:
(1) Where the property sought to be recovered is used for residential purposes only, the plaintiff shall receive an amount equal to the rental value for each month, or portion thereof, that the defendant has forcibly entered and detained or unlawfully detained the property; and
(2) Where the property sought to be recovered is used for commercial or mixed residential and commercial purposes, the plaintiff shall receive liquidated damages at the rate of three (3) times the rental value per month for the time that the defendant has unlawfully detained the property.
(c) Thereupon the court shall render judgment in favor of the plaintiff for the recovery of the property and for any amount of recovery that may be so assessed with costs. If possession of the premises has not already been delivered to the plaintiff, the court shall cause a writ of possession to be issued commanding the sheriff to remove the defendant from possession of the premises and to place the plaintiff in possession thereof.
(Emphasis added.)
The circuit court found that Ron unlawfully detained Rex’s property, but only awarded damages in the amount of the fair-market-rental value from August 17, 2001, until possession of said lands was delivered. In contravention of Ark. Code Ann. § 18-60-309(b)(l), the circuit court failed to award the mandated liquidated damages in the amount of $300 per month for the same time period. Perryman v. Hackler, 323 Ark. 500, 916 S.W.2d 105 (1996). We reverse and remand on cross appeal for the circuit court to award the mandated liquidated damages as set forth in the statute.
Affirmed on direct appeal; reversed and remanded on cross appeal.
Stroud, C.J., and Bird, J., agree. | [
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Olly Neal, Judge.
This is a medical malpractice case. Appellant Dr. John Hill appeals from a jury verdict awarding appellee Anita Billups $250,000. On appeal, appellant alleges that the following errors occurred during the trial: (1) the trial court erred in excluding the deposition of appellant’s expert witness; (2) the appellee’s expert witness should have been excluded due to a failure to disclose changed opinion testimony; (3) during voir dire, the jury was improperly influenced by references to medical malpractice insurance. We agree that the trial court erred in excluding the deposition of appellant’s expert witness; therefore, we affirm in part and remand in part.
On November 11, 1995, appellee gave birth one month prematurely to twins Stephon and Steven Billups. On December 3, 1995, appellee brought Stephon to the emergency room at Baptist Memorial Hospital in Forrest City. She explained that she had found Stephon foaming at the mouth, that he had been resisting his bottle, and that she suspected he was running a fever. Stephon was examined by appellant and discharged. Appellee was also given a thermometer, Tylenol, and Pedialyte; however, she was not instructed on their proper use.
Appellee returned to the emergency room with Stephon on December 4, 1995, after Stephon had stopped breathing. Stephon was transferred to Arkansas Children’s Hospital. On December 6, 1995, Stephon died due to a bacterial infection.
Appellee filed suit individually and as next friend of Ste-phon, alleging medical malpractice. A jury trial was held February 19-24, 2003, in the St. Francis County Circuit Court. The jury returned with a verdict for appellee in the amount of $250,000. Judgment on the verdict was entered on March 19, 2003. From that judgment comes this appeal.
Appellant first alleges that the trial court erred in excluding the deposition testimony of his expert witness. A trial court’s decision on the admissibility of expert testimony will not be reversed absent an abuse of discretion. Nationsbanc Mortgage Co. v. Hopkins, 82 Ark. App. 91, 114 S.W.3d 757 (2003).
The record reveals that, during a pretrial conference, appellant’s attorney moved for a continuance due to the unavailability of his expert witness, Dr. Rani Lewis. Counsel informed the court that Dr. Lewis had agreed to a video deposition that afternoon. He explained that Dr. Lewis would testify via videotape from Nashville and that each attorney would be present in Memphis. The trial court denied appellant’s motion for continuance. However, the deposition proceeded that afternoon. The following morning, during a conference prior to commencement of the second day of trial, appellee moved to disqualify Dr. Lewis as an expert witness because Dr. Lewis could not articulate a standard of care. The trial court ruled that Dr. Lewis’s testimony would be excluded. In reaching its decision, the trial court stated the following:
This is the scheduling order. It required the deposition to be completed by a certain period of time. The scheduling order was filed September 16, 2002. According to that scheduling order all discovery, including evidentiary depositions, shall be completed no later than thirty days prior to trial. All depositions were to be completed by January 19, 2003. By agreement, the parties may conduct additional discovery beyond this deadline. I told you yesterday I was going to go by this order. Apparently you all tried to agree to do something. But the order reads that if you do additional discovery 'beyond the deadline, the court will not be available to resolve discovery disputes. You are making an issue to me today. It’s 10:00 a.m. and the jury is waiting. And now you bring me a discovery issue. It’s in violation of my scheduling order. And then you want me to take an hour-an&a-half to look at a transcript. I’m not going to do it. I’m going to enforce the orders. The lawyers need to prepare their cases. It’s not fair to bring these issues to the Court on the morning of trial and it’s not fair to the jury. So, I’m not going to watch any video and rule on discovery issues at this late date.
If there [are] some disputes that [have] to be taken up with the lawyer, I’m not going to rule on them. If you all can agree on whatever the issues are with the deposition that’s fine. If you cannot agree on whatever those motions you all made about whether or not she’s qualified or whether or not she sets forth the proper standard of care or whatever you are arguing about, then there is not agreement. Then the deposition will not be received. It’s just not fair to me.
During trial, appellant renewed his motion to allow Dr. Lewis’s deposition testimony. The trial court denied appellant’s motion, but allowed appellant to proffer Dr. Lewis’s February 19, 2003, deposition testimony (February 2003). Along with the February 2003 deposition, appellant proposed to proffer Dr. Lewis’s July 1999 deposition as a means of establishing Dr. Lewis’s qualifications in emergency medicine. The trial court ruled that, because the parties understood that the July 1999 deposition was merely for discovery purposes, it could not be used as an evidentiary deposition.
Appellant now argues that the trial court’s decision to exclude the July 1999 and February 2003 depositions was contrary to the rules of civil procedure. Rule 32 of the Arkansas Rules of Civil Procedure provides in part:
(a) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
(B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of this state, unless it appears that the absence of a witness was procured by the party offering the deposition; or
It is not disputed that Dr. Lewis was more than one hundred miles away. There is also no allegation that appellant procured Dr. Lewis’s absence.
However, appellee counters by alleging that the trial court did not err in excluding the July 1999 deposition because it was merely a discovery deposition, and, as such, it was inadmissible. Rule 32 does not distinguish between discovery and evidentiary depositions. Kristie’s Katering, Inc. v. Ameri, 72 Ark. App. 102, 35 S.W.3d 807 (2000). Rule 32 has been construed to provide that any party, not only the party who took the deposition, may use the deposition of a witness, whether or not a party, for any purpose at the trial or hearing, if the party demonstrates to the court the existence of one of the conditions specified in Rule 32(a)(3) . National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996). However, a party can waive Rule 32 if the parties and the court agree before trial that a discovery deposition cannot be used as an evidentiary deposition. See Whitney v. Holland Retirement Ctr., Inc., 323 Ark. 16, 912 S.W.2d 427 (1996).
The record indicates that appellant initially indicated that the July 1999 deposition was only a discovery deposition. This suggests that the parties agreed that the July 1999 deposition could only be used for discovery purposes, thus waiving Rule 32. Therefore, the trial court did not err when it excluded the July 1999 deposition.
However, as to the February 2003 deposition, there is no indication that the parties agreed to waive Rule 32. Appellee objected to the February 2003 deposition on the basis that Dr. Lewis was not qualified as an expert because she did not articulate a standard of care. This is clearly an evidentiary objection. During a colloquy with the trial court, appellee indicated that, although she had agreed to the deposition, she had not waived her objections to the testimony contained within the deposition. The trial court misconstrued appellee’s objection as being a discovery objection and thus found that this violated the trial court’s scheduling order. Rule 32 further provides that:
(b) Objections to Admissibility. Subject to the provisions of Rule 28(b) and subdivision (d)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
The parties were seeking an evidentiary ruling from the trial court. We hold that questions of admissibility are not controlled by the trial court’s scheduling order. The trial court’s refusal to rule on the admissibility of the February 2003 deposition was contrary to our rules of civil procedure and was an abuse of discretion; therefore, we remand this point.
Appellant next argues that the testimony of appellee’s expert, Dr. Pearson-Shaver, should have been excluded due to appellee’s failure to disclose a change in the doctor’s opinion testimony. As stated earlier, we will not reverse a trial court’s ruling on the admissibility of expert testimony absent an abuse of discretion. See Nationsbanc Mortgage Co. v. Hopkins, supra. On April 18, 2002, Dr. Pearson-Shaver gave opinion testimony in a deposition without having reviewed the deposition testimony of appellant, appellee, and Dr. Lewis. Upon reading the aforementioned depositions, Dr. Pearson-Shaver revised his opinion. Rule 26 of the Arkansas Rules of Civil Procedure provides in pertinent part:
(e) Supplementation of Responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity and location of each person expected to be called as a witness at trial, and in the case' of expert witnesses, the subject matter on which he is expected to testify, and the substance of his testimony.
When a party complains about failure to update discovery, the matter lies within the discretion of the trial court. Arkansas State Highway Comm’n v. Frisby, 329 Ark. 506, 951 S.W.2d 305 (1997). Appellant fails to demonstrate any abuse of discretion. Therefore, we affirm on this point.
In his last argument, appellant asserts that during voir dire the jury was improperly influenced by references to medical malpractice insurance. During voir dire, appellant objected when appellee asked the jury “Is there anybody that believes that large verdicts in malpractice cases are the reason that insurance is going up?” The trial court overruled appellant’s objection. It is improper to unnecessarily call to the jury’s attention the fact that there is insurance in a case. Watkins Motor Lines v. Hedrick, 316 Ark. 683, 873 S.W.2d 814 (1994). The general rule is that if a party’s counsel acts in good faith, he may, in one form or another, question prospective jurors during the voir dire with respect to their interest in, or connection with, liability insurance companies. Id. Finally, we will not reverse a ruling of the trial judge in permitting inquiries intended to elicit any possible bias or prejudice that might influence a venire men’s verdict in the absence of a manifest abuse of that discretion. Id. Appellant fails to demonstrate an abuse of discretion; accordingly, we affirm as to this point.
We are remanding so that the trial court can determine if the February 2003 deposition is admissible. If he trial court should find that the deposition is admissible, appellant is entitled to a new trial.
Affirmed in part; remanded in part.
Pittman and Vaught, JJ., agree.
Rule 32(a) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead; or (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of this state, unless it appears that the absence of a witness was procured by the party offering the deposition; or (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (D) the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest ofjustice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used. A deposition taken without leave of court pursuant to a notice under Rule 30(b)(2) shall not be used against a party who demonstrates that, when served with the notice, it was unable through the exercise of diligence to obtain counsel to represent it at the taking of the deposition; nor shall a deposition be used against a party who, having received less than 11 days notice of a deposition, has promptly upon receiving such notice filed a motion for a protective order under Rule 26(c)(2) requesting that the deposition not be held or be held at a different time or place and such motion is pending at the time the deposition is held. | [
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Robert J. Gladwin, Judge.
Appellants brought suit under the direct-action statute, Ark. Code Ann. § 23-79-210 (Repl. 1999), against appellee, who is their employer’s commercial automobile insurer. They sought benefits under their employer’s uninsured motorist coverage for injuries they sustained when the boom-and-bucket device that they were using failed and crashed to the ground. The trial court granted summary judgment against appellants, finding that they were precluded under the workers’ compensation exclusive-remedy doctrine from pursuing a negligence claim against their employer’s insurance carrier in a direct action and that, in any event, the insurance policy in question did not provide uninsured motorist coverage under the circumstances presented. We affirm.
Appellants Randle Jacobs and Kenneth Williams were employed by the Fort Smith School District. While performing their job duties as painters, they were required to enter buckets on a boom that extended approximately sixty feet into the air. The boom and bucket device, or cherry picker, was attached to a motor vehicle owned by the Fort Smith School District. This vehicle was insured by appellee, Gulf Insurance Company.
On May 19, 1999, the cherry-picker device failed and crashed to the ground, causing severe injuries to appellants. As a result of these injuries, they each collected workers’ compensation benefits. Appellants subsequently filed a direct action against appellee, alleging that its insured, Fort Smith Public Schools, was negligent in failing to provide safe equipment, failing to repair defective equipment, failing to provide a safe place of employment, and failing to comply with various safety regulations. Appellants’ complaint was filed pursuant to the direct-action statute, Ark. Code Ann. § 23-79-210, and alleged that because Fort Smith School District had immunity as a public school district, its actions were imputed to its insurer under the provisions of the statute.
Appellee filed a motion for summary judgment, contending, inter alia, that its insured’s liability coverage did not apply to appellants due to a specific exclusion barring coverage for bodily injury to employees of the insured that arose out of and in the course of the employment. Appellants then filed an amended complaint, seeking coverage under the uninsured motorist provisions of the policy. Their contention was that because appellee denied coverage pursuant to certain exclusions in the policy, the motor vehicle in question became an uninsured vehicle. Appellee filed a supplemental motion for summary judgment, arguing that an uninsured motorist claim arises only from an accident involving an uninsured motor vehicle, and that an exclusion of coverage from the liability portion of the policy does not convert a vehicle, otherwise insured under the policy, into an uninsured motor vehicle. The trial court granted summary judgment, from which appellants bring this appeal.
Our standard of review in summary judgment cases is well established. Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the party is entitled to judgment as a matter of law. Holt Bonding Co. v. First Fed. Bank of Ark., 82 Ark. App. 8, 110 S.W.3d 298 (2003). Once the 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. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material question of fact unanswered. Id. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.
To support their claim under the UM coverage provided by appellee, appellants contend that the boom truck became an uninsured vehicle because appellee denied coverage under certain exclusions in the policy. We disagree. The purpose of uninsured motorist coverage is to protect the insured from financially irresponsible motorists. Pardon v. Southern Farm Bureau Casualty Ins. Co., 315 Ark. 537, 868 S.W.2d 468 (1994). This purpose would not be advanced by declaring insured vehicles to be uninsured simply because an exclusion of the policy applied.
In Davis v. Bean, 804 F.2d 1018 (8th Cir. 1986), Conrad Bean and his step-son, Ty Davis, were in an accident in Bean’s truck. The liability policy on the truck included uninsured motorist coverage. Davis was excluded from coverage under the policy because he was a member of Bean’s household. Consequently, Davis sought coverage under the uninsured motorist provisions of the policy. The Eighth Circuit Court of Appeals rejected Davis’s argument, stating that the uninsured motorist coverage should apply only where the injury was the result of a collision involving the insured’s car and a car owned by an uninsured motorist, and that uninsured motorist coverage should not apply where the accident involved only the insured’s car. The court noted that this precise issue had not at that time been addressed by an Arkansas court, but that the statutory language regarding protection from uninsured motorists was “indicative of the Arkansas legislature’s intent that uninsured motorist coverage should apply only where injury is the result of a collision involving the insured’s car and a car owned by an uninsured motorist, and that uninsured motorist coverage should not apply where the accident involves the insured’s car only.” 804 F.2d at 1019.
In Pardon v. Southern Farm Bureau, supra, David Pardon, Christopher Thomas, and David Smith were riding in Pardon’s truck when it overturned, killing Pardon and Thomas. The truck was insured by Southern Farm Bureau for both liability and uninsured motorist coverages. Thomas was driving the vehicle at the time of the accident, and was uninsured. Pardon was excluded from liability coverage because he was the owner of the truck. Pardon’s estate brought suit against Southern Farm Bureau, alleging that because Thomas was uninsured and Pardon was excluded by the terms of his liability policy, Pardon was entitled to recover under the UM provision of his policy. Southern Farm Bureau answered and filed a motion for summary judgment, asserting that Pardon’s truck was an insured auto because it was covered under the liability portion of Pardon’s policy and therefore the UM coverage provision was inapplicable.
The trial court granted summary judgment in favor of the insurance company. On appeal, our supreme court affirmed, citing Davis v. Bean, supra, and stated that it found that case persuasive for several reasons:
First, [Arkansas Code Annotated §] 23-89-404, which provides for uninsured motorist property damage coverage, specifically indicates that such coverage applies when the collision in question involves an operator of another vehicle. See 23-89-404(a)(2). This being statutorily contemplated, we cannot say that a policy requiring another vehicle to trigger the policy’s uninsured motorist coverage violates this state’s public policy. Second, in construing Arkansas’s uninsured motorist provisions, this court has also held that the burden of showing the “other vehicle” is uninsured is on the plaintiff. Home Ins. Co. v. Harwell, 263 Ark. 884, 568 S.W.2d 17 (1978). Clearly, this court has presumed a vehicle other than the plaintiff-insured’s must be involved when the insured is entitled to collect under uninsured motorist coverage. Third, it is also settled Arkansas law that an insurer may contract with its insured upon whatever terms the parties may agree upon which are not contrary to statute or public policy. Aetna Ins. Co. v. Smith, 263 Ark. 849, 568 S.W.2d 11 (1978). Here, under Pardon’s policy, an uninsured auto is “an auto not insured by a liability policy at the time of the accident.” Thus, because Pardon’s truck was insured by a liability policy, his uninsured motorist coverage by its very terms was inapplicable. Finally, we reiterate that the purpose of uninsured motorist coverage is to protect the insured from financially irresponsible motorists. Payne v. Farm Bureau Mutual Ins. Co. of Arkansas, Inc., 298 Ark. 540, 768 S.W.2d 543 (1989).
315 Ark. at 539, 868 S.W.2d at 469.
Appellants argue that because the policy in question defined an uninsured motor vehicle as, among other things, one “for which an insuring or bonding company denies coverage or is or becomes insolvent,” the boom truck qualified as an uninsured motor vehicle once the insurance company denied liability coverage under the policy exclusions. In light of the purpose of the uninsured-motorist statute and our supreme court’s holding in Pardon, we disagree. Unless the parties contract differently, an insured motor vehicle is not transformed into an uninsured motor vehicle simply because certain policy exclusions bar a claimant’s recovery.
Throughout its order granting summary judgment, the trial court discussed appellants’ claim under the uninsured motorist provisions of the policy, and found that “[t]he language in the policy is not ambiguous. The Plaintiff would have the court determine that the School District is both insured and uninsured at the same time. Such a construction is not justified by the language in the contract.” We agree with this finding, and hold that it alone supports the order granting summary judgment. Appellants could not, as a matter of law, proceed on an uninsured motorist claim where there was no uninsured motorist or uninsured vehicle involved.
In its order, the trial court also held that the workers’ compensation exclusive-remedy doctrine precluded any recovery in this case. However, in light of our conclusion above on the trial court’s alternative basis for granting summary judgment, we need not address its decision regarding the exclusive-remedy doctrine. See South Beach Beverage Co., Inc. v. Harris Brands, 355 Ark. 347, 138 S.W.3d 102 (2003).
Affirmed.
Pittman, J., agrees.
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John F. Stroud, Jr.,
Chief Judge. Appellant, Jeffrey Swin-ford, was tried by a jury and found guilty of the offenses of aggravated assault, theft by receiving, and fleeing. On appeal, he raises two points: 1) that the trial court erred in refusing to allow cross- examination of two of the State’s witnesses to show possible bias, and 2) that the trial court erred in refusing to instruct the jury regarding either the accomplice status or the accomplice-in-dispute status of the two witnesses. We agree with both of his points of appeal and therefore reverse and remand for a new trial.
On September 20, 2001, Officer David Moss observed a Ford Explorer that had a missing screw on the license plate, causing the plate to hang at an angle. He ran the plates and learned that the vehicle had been stolen approximately one month earlier. As he approached the vehicle in his patrol car, the vehicle sped away. A high-speed chase followed, involving speeds up to 110 miles per hour. Eventually, several police cars were involved, and the Ford Explorer was diverted into a soybean field. The driver and two occupants of the car, Peggy McBride and Christopher Hanson, exited the vehicle. The driver of the car ran. McBride started to run but was persuaded not to do so by Hanson. Officer Erica Shelby pursued the driver and was able to see the fleeing suspect’s face, but she was not able to apprehend him. Officer Moss remained with the two occupants of the car, McBride and Hanson. At first, both occupants refused to tell Moss who the driver was. After about forty-five minutes, Hanson said that it was Jeffrey Swinford, the appellant. McBride did not divulge that name for another two weeks during which she was incarcerated. Based upon the name given by Hanson, the officers retrieved a driver’s license photo of Swinford, which was identified by Officer Shelby as the man she chased. Shelby also identified appellant at trial.
The two points raised in this appeal involve McBride and Hanson. Appellant proffered police-report forms, which indicated that McBride and Hanson were charged with several offenses as a result of the encounter with police on September 20, 2001: Class B felony theft by receiving, Class C felony theft by receiving, felony possession of prescription pills, felony possession of drug paraphernalia, carrying a weapon, felony fleeing, obstructing governmental operations. In addition, the reports showed that McBride was also charged with drinking in public and not wearing a seat belt. Appellant sought to cross-examine them with respect to why, except for the obstruction-of-governmental-operations charges, the other charges were not pursued. The purpose of the cross-examination was to show possible bias. The trial court refused to allow cross-examination with respect to any charges other than the obstruction-of-governmental-operations charges. This set of circumstances forms the basis for appellant’s first point of appeal.
The second point of appeal involves appellant’s attempt to have the jury instructed on the status of McBride and Hanson as either accomplices as a matter of law or accomplices in dispute. The trial court refused both proffered instructions.
1) Cross-Examination to Show Bias
A trial court is accorded wide discretion in evidentiary rulings, and will not be reversed on such rulings absent a manifest abuse of discretion. Pryor v. State, 71 Ark. App. 87, 27 S.W.3d 440 (2000). A witness’s credibility is always an issue, subject to attack by any party. Id. The scope of cross-examination extends to matters of credibility. Id.; Ark. R. Evid. 611. A matter is not collateral if the evidence is relevant to show bias, knowledge, intent, or interest. Pryor v. State, 71 Ark. App. 87, 27 S.W.3d 440 (2000). Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence that might bear on the accuracy and truth of a witness’s testimony. Id. In other words, matters affecting the credibility of a witness are always relevant. Id. Moreover, our appellate courts have traditionally taken the view that the cross-examiner should be given wide latitude because cross-examination is the means by which to test the truth of the witness’s testimony and the witness’s credibility. Id. Full cross-examination should be allowed in order to show bias, and this is especially true in the case of an accomplice since his testimony is the direct evidentiary link between the defendant and the crime. Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). This rule applies to testimony given under expectation or hope of immunity or leniency or under the coercive effect of his detention by authorities. Id. The test is the expectation of the witness and not the actuality of a promise. Id. Denial of cross-examination to show the possible bias or prejudice of a witness may constitute constitutional error of the first magnitude as violating the Sixth Amendment right of confrontation. Id.
Normally, our appellate courts will not consider a point involving the exclusion of evidence when there was no proffer of excluded evidence because we have no way of knowing the substance of the evidence. Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). However, there is no need for a proffer in either of two situations. Id. First, there is no need for a proffer where the substance of the offer was apparent from the context within which the questions were asked. Id. Second, in situations involving accomplices, it is normally only the prosecutor and the accomplice who know what expectation, if any, the State is holding out for the accomplice. Id. The defendant and his attorney do not usually have this information. Id. Arkansas Rule of Evidence 103(a)(2) does not contemplate a proffer of evidence when the information is unavailable to the cross-examiner. Id.
Here, the police reports proffered by appellant establish that the two witnesses were at least initially charged with several offenses. Yet the only offense that was pursued was that of obstruction of governmental operations, a misdemeanor. Appellant contends that he was entitled to pursue cross-examination concerning these other charges and any possible leniency afforded by the State in exchange for testimony against appellant.
The State’s only rebuttal to appellant’s argument on this issue is a procedural one. The State argues that the issue was not preserved because appellant did not proffer the excluded testimony or the existence of a plea agreement in exchange for the testimony. The State’s position is not convincing under the circumstances of this case. The instant case is similar to that of Henderson, supra, and the two bases given in Henderson to support the position that the issue was properly preserved would apply here as well. Moreover, here, the police reports showing the initial charges against Hanson and McBride were proffered, including Class B felony theft by. receiving, Class C felony theft by receiving, felony possession of prescription pills, felony possession of drug paraphernalia, carrying a weapon, felony fleeing, and obstructing governmental operations. In addition, the reports showed that McBride was also charged with drinking in public and not wearing a seat belt.
Our supreme court has held that the erroneous denial of a defendant’s opportunity to impeach a witness is subject to a harmless-error review under Chapman v. California, 386 U.S. 18 (1967). Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). To conclude that a constitutional error is harmless and does not mandate a reversal, our appellate courts must conclude beyond a reasonable doubt that the error did not contribute to the verdict. Id.
Here, the only evidence tying appellant to these offenses was the testimony of McBride and Hanson, both of whom appellant was prohibited from fully cross-examining regarding possible bias, and the identification testimony of Officer Erica Shelby, who admittedly only saw appellant for approximately two seconds during a foot chase. Eliminating the testimony of McBride and Hanson leaves only a two-second opportunity for identification to support the conviction. Thus, we have concluded that this trial error was not harmless beyond a reasonable doubt.
2) Refusal to Instruct Jury on Accomplice or Accomplice-in-Dispute Status
We address appellant’s second argument concerning the trial court’s refusal to instruct the jury on accomplice status because it is likely to recur on retrial. A person is criminally liable for the conduct of another person when he is the accomplice of another person in the commission of an offense. Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002). A criminal defendant is an accomplice where the defendant renders the requisite aid or encouragement to the principal with regard to the offense at issue. Id. Mere knowledge that a crime is being committed, concealment of that knowledge, or failure to inform officers that an offense has been committed, are not sufficient to establish accomplice liability. Cook v. State, 350 Ark. 398, 86 S.W.3d 916 (2002). The appellant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. Id. Mere presence at the crime scene or failure to inform law enforcement officers of a crime does not make one an accomplice as a matter of law. Id. The determination of the status as an accomplice is ordinarily a mixed question of law and fact. Davis v. State, supra. The testimony of an accomplice must be corroborated before a defendant may be convicted of a felony. Id. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof; it must consist of other evidence tending to connect the defendant with the commission of the offense. Id. In order to preserve an accomplice issue for appellate review, a defendant must either have the trial court declare a witness to be an accomplice as a matter of law or submit the issue to the jury for determination. Brown v. State, 82 Ark. App. 61, 110 S.W.3d 293 (2003).
In King v. State, 323 Ark. 671, 677-78, 916 S.W.2d 732, 735 (1996), our supreme court explained:
Our law is well-settled that a witness’s status as an accomplice is a mixed question of law and fact, and that when the status of a witness presents issues of fact, the defense is entitled to have the question submitted to the jury. The question must be submitted to the jury where there is any evidence to support a jury’s finding that the witness was an accomplice.
(Citations omitted.)
Here, McBride and Hanson were with appellant in the stolen vehicle, with him when he was trying to elude police, and McBride started to run when appellant did but was persuaded not to do so by Hanson. Both McBride and Hanson were initially charged with theft by receiving and several other offenses previously listed. While it is clear that McBride and Hanson were not accomplices as a matter of law, we find that there was sufficient evidence to submit the issue of their status as accomplices to the jury and that the trial court erred in refusing to do so.
Reversed and remanded.
Pittman, Hart, Neal, and Baker, JJ., agree.
Bird, J., dissents.
The dissenting opinion attempts to distinguish Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983), and relies instead upon Halford v. State, 342 Ark. 80, 27 S.W.3d 346 (2000). We reach the opposite conclusion, finding that Halford, supra, is distinguishable and that Henderson is more applicable to the instant case. In Halford, unlike the instant case, the trial court would have permitted defense counsel “to delve into whether any promises or assurances had been made by the State in exchange for her testimony”; however, counsel never pursued this line of inquiry. In the instant case, it is precisely this line of inquiry that was denied to the appellant. Even if we were to assume that these witnesses would have denied any promises of leniency, the prejudice in the trial court’s ruling lies in the defense not being allowed to ask the questions. The jury gets to decide whether it believes the witnesses, and in making that assessment, it also gets to hear the reasons why a witness might be biased and it gets to observe the witnesses’ demeanor in responding to such questions. Moreover, as noted in Henderson, supra, information regarding possible promises of leniency is usually not available to the defense, which is the second exception to the proffer requirement. The Halford case does not even cite Henderson, much less overrule it, for the likely reason that it was simply not applicable to the Halford facts. | [
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John Robbins, Judge.
Appellant Bobby Curley appeals the entry of summary judgment against him on his claim on a casualty insurance policy covering appellant’s home in El Dorado, Arkansas, issued by appellee Old Reliable Casualty Company. It is undisputed that on January 29, 2000, appellant’s home was covered by the policy, and there was a significant snow storm in El Dorado. On the night of January 29, the walls of appellant’s house buckled outward, and the roof slowly collapsed. Appellant filed a claim on the policy asserting that appellee owed the $30,000 limits of the coverage for his damaged house and contents. Appellee denied the claim; appellant filed suit; appellee filed for summary judgment; and the trial court granted judgment as a matter of law to appellee. The trial judge concluded that the relevant policy provision covering damage due to explosion was not ambiguous, and that the damage to appellant’s house following the snow storm did not fit the definition of “explosion” under the policy. This appeal resulted. The sole issue on appeal is whether summary judgment was appropriate. We hold that it was and affirm the trial court’s ruling.
We have ceased referring to summary judgment as a drastic remedy. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000). We now regard it simply as one of the tools in a trial court’s efficiency arsenal. Id. The moving party always bears the burden of sustaining a motion for summary judgment. Renfro v. Adkins, 323 Ark. 288, 295, 914 S.W.2d 306, 309-10 (1996). All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. Id. Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Mount Olive Water Ass’n v. City of Fayetteville, 313 Ark. 606, 856 S.W.2d 864 (1993). The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56 (2003); Robert D. Holloway, Inc. v. Pine Ridge Add’n Resid. Prop. Owners, 332 Ark. 450, 453, 966 S.W.2d 241, 243 (1998) (citing McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997)).
In reviewing an insurance policy, when the terms of the policy are clear, the language in the policy controls. Columbia Mut. Ins. Co. v. Home Mut. Fire Ins. Co., 74 Ark. App. 166, 47 S.W.3d 909 (2001). If a policy provision is unambiguous, and only one reasonable interpretation is possible, the court will give effect to the plain language of the policy without resorting to rules of construction; it is the duty of the courts to give effect to the plain wording of the policy. Smith v. Southern Farm Bureau Cas. Ins. Co., 353 Ark. 188, 114 S.W.3d 205 (2003). A policy will not be interpreted to bind the insurer to a risk that it plainly excluded and for which it was not paid. First Financial Ins. Co. v. National Indem. Co., 49 Ark. App. 115, 898 S.W.2d 63 (1995). If, however, the policy language is ambiguous, and thus susceptible to more than one reasonable interpretation, the policy will be construed liberally in favor of the insured and strictly against the insurer. See Smith v. Southern Farm Bureau, supra. The language of an insurance policy is to be construed in its plain, ordinary, and popular sense. Id. The fact that a term is not defined in a policy does not automatically render it ambiguous. Id. As a guideline of contract interpretation, the different clauses of a contract must be read together and the contract should be construed so that all parts harmonize. Id.
The issue presented to the trial judge was whether the policy provision was ambiguous. Language is ambiguous if there is doubt or uncertainty as to its meaning, and it is fairly susceptible to more than one reasonable interpretation. Gawrieh v. Scottsdale Ins. Co., 83 Ark. App. 59, 117 S.W.3d 634 (2003); Continental Cas. Co. v. Davidson, 250 Ark. 35, 463 S.W.2d 652 (1971). Ordinarily, the question of whether the language of an insurance policy is ambiguous is one of law to be resolved by the court. Elam v. First Unum Life Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001). Where there is a dispute as to the meaning of a contract term or provision, the trial court must initially perform the role of gatekeeper, determining first whether the dispute may be resolved by looking solely to the contract or whether the parties rely on disputed extrinsic evidence to support their proposed interpretation. Nichols v. Farmers Ins. Co., 83 Ark. App. 324, 128 S.W.3d 1 (2003). The construction and legal effect of written contracts are matters to be determined by the court, not by the jury, except when the meaning of the language depends upon disputed extrinsic evidence. Id.
With, these rules of law and the standard of review in mind, we examine the undisputed facts. In late January 2000, Arkansas experienced an unusually heavy snow and ice storm. The storm affected El Dorado, depositing approximately eighteen inches of snow on the area. Appellant and his wife were at home in El Dorado on the night of January 29, 2000, and appellant claimed that he could hear loud thumping noises at around 10:00 p.m. Thereafter, appellant observed the walls buckling outward. Appellant and his wife left the residence for the night. Appellant said that slowly, over time, the roof caved inward. A claim was filed.
The claims adjuster denied the claim because he determined that the policy did not cover damage due to accumulation of snow. Appellant filed a complaint in Union County Circuit Court for the policy limits, the statutory penalty, interest, and attorney fees. Appellant and his wife were deposed, and in their testimonies, they claimed that the weight of the snow and ice was more than the roof could bear. Appellant believed that the damages to the house qualified as a covered “explosion.” Appellant alternatively claimed that his damages were caused by a covered “windstorm” or “hail” as described in the policy, but those alternative bases to claim coverage were eventually abandoned.
The listed perils covered under the policy were (1) fire, lightning, or power surges caused by lightning, (2) explosion, (3) windstorm, hurricane, and hail, (4) riot or civil commotion, (5) aircraft, (6) vehicles, (7) smoke, and (8) burglary and theft. Some of these listed perils had further qualifications and exclusions not relevant to the proceedings on appeal. At issue here was the coverage for direct physical loss caused by explosion. The policy read in relevant part:
Explosion. This does not include loss by explosion of steam boilers, or steam pipes, if owned or leased by you or operated under your control.
Explosion does not mean:
a. electrical arcing;
b. breakage of water pipes; or
c. breakage or operation of pressure relief devices.
Appellee filed a motion for summary judgment asserting that this provision was not ambiguous and stating that the term “explosion” was commonly understood to mean a rapid, sudden, and violent expansion or relinquishment of energy, causing rupture and a loud noise. Appellee cited to cases from Indiana, New York, the Fifth Circuit Court of Appeals, and to Couch on Insurance. Appellant resisted the motion, attaching photographs of his residence showing the concave roof and outwardly bowed external walls and filing an affidavit calling the incident an outward explosion.
The trial judge filed an order concluding that the word “explosion” was not ambiguous and that:
Explosion is normally understood to involve combustion, gas, energy, and noise — the rapid combustion of material, the sudden expansion of resulting gases, the release of substantial force or energy, and a blast-like noise. A partial collapse of a building from the gradual accumulation of ice or snow on the roof does not fall within the common understanding of “explosion.”
There were no issues of fact to be resolved, and the trial judge declared that the policy excluded coverage for the loss sustained by appellant. We agree with this assessment.
Appellant asserts on appeal that there are no Arkansas cases or statutes defining “explosion.” Appellant candidly points out that Webster’s Dictionary defines “explosion” in general as a sudden and spectacular expansion, generally accompanied by a loud sound. Appellant also cites to Am. JuR..2d on the topic of regulation and control of explosives, noting that “explosion” in that context is difficult to set a precise definition. Appellant then states that because the insurance contract does not define the term “explosion,” and because there is more than one definition of the term, then there is ambiguity.
Appellee sets forth the same out-of-state cases and federal citations that were presented to the trial judge on this issue. Appellee further notes that appellant’s house did not explode; the roof collapsed. Webster’s New Collegiate Dictionary defines “collapse” in part as to “fall into a jumbled or flattened mass through the force of external pressure.. ..to cave or fall in or give way.”
We review questions of law de novo, as the trial court is in no better position than we are to answer a question of law. See Britton v. Gault, 80 Ark. App. 311, 94 S.W.3d 926 (2003); Jones v. Abraham, 67 Ark. App. 304, 999 S.W.2d 698 (1999). In our de novo review, we conclude that the trial judge was correct when he found that there was no ambiguity in the policy. We need not resort to sister states’ case law on this subject. There were no disputed facts. The question was simply whether these facts fit the policy’s coverage, giving the contract terms their plain, ordinary and common usage. The harm visited upon appellant’s house did not fit within the common understanding of an explosion. Appel-lee was entitled to judgment as a matter of law. See also Alberson v. Automobile Club Interinsurance Exch., 71 Ark. App. 162, 27 S.W.3d 447 (2000).
Affirmed.
Pittman and Bird, JJ., agree. | [
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Sam Bird, Judge.
Kimberly Adametz and James Adametz were divorced by a decree entered March 31, 2003. Kimberly appeals the portion of the decree pertaining to the distribution of the parties’ marital assets and the amount of child support. She contends that the court erred: (1) by failing to award her half of appellee’s 8.99% interest in Arkansas Surgical Hospital (ASH); (2) by deducting overhead expenses and 43% income taxes from her share of the accounts receivable of Neurological Surgery Associates, P.A. (NSA); and (3) in finding that she and James had not reached an agreement as to the amount of child support appellee was to pay. We do not agree with her first and third arguments, and we affirm as to those points. However, because we hold that the court erred in deducting the overhead expenses in valuing Kimberly’s interest in the accounts receivable of NSA, we reverse and remand on the second point.
Discussion of the Evidence
The parties, both medical doctors, married in 1990 when Kimberly was in her internship and residency, and two children were born to them. James was a practicing neurosurgeon with NSA when the parties married. The parties separated in, September 2001, and Kimberly filed for divorce.
At the hearing, Kimberly testified that the parties had agreed that James would pay 21% of his “net income” as child support. Kimberly also testified that James had invested $10,000 in ASH without telling her. She stated that ASH had borrowed $2 million to finance the construction of a specialty hospital. She stated that James’s interest in the ASH venture was marital property, and she requested that it be divided equally between them.
James testified that, at a conference in December 2002, the parties and their attorneys had discussed settlement of the child-support issue by agreeing that he pay 21% of his net income but that they had not agreed on sums to be deducted from James’s gross income in order to determine the amount of his “net income.” He recalled that both attorneys told him that he should pay 21% of his net income as child support and that his attorney had indicated at the conference that James agreed. James also said that, because the parties had agreed to joint custody of the children, and because the children would spend equal time with each parent, he should not have to pay the full amount called for by the child-support chart. James’s testimony was that the parties never agreed on the amount of his net income or a dollar amount that he was to pay in child support. He stated that his gross pay in 2002 was $379,191 and that he had deductions for federal, state, social security, and Medicare taxes of $161,776. He stated that his monthly take-home income was $18,117.
James also testified concerning his interest in ASH. He stated that he and several other doctors invested in a limited-liability company in order to purchase land to build a hospital in North Little Rock. He testified that he discussed his investment of $10,000 with his wife prior to making it. He said that ASH borrowed $2 million to purchase the land for between $1.2 million and $1.5 million and to pay for architects’ fees and feasibility studies. He also said that he had made no payments on the loan, principal, or interest. James valued his interest in ASH as one-seventh of the value of the land, less the debt owed against it, which he said resulted in a net value of negative $50,000. He also stated that there had been an enormous amount of pressure from other hospitals “in town” to prevent the project from going forward and that several of the original investors and other potential investors had been “scared off’ of the project for fear it would lose money and because of the pressure from other hospitals.
Mike Schaufele, a certified public accountant, testified that at the end of 2002 NSA had accounts receivable of $205,709.50 that resulted from James’s efforts. He testified that, historically, the percentage of the practice’s revenue that goes to pay overhead for NSA averaged 42.15% and that NSA had a historical collection rate of 44.46%. Schaufele said that after, deducting those percentages, the remainder would be paid to James as a bonus upon which he would have to pay income taxes.
Tracy Fox, a certified public accountant and Kimberly’s expert, testified that he valued James’s interest in NSA at $101,000. He valued James’s interest in the “hard assets,” such as plant and equipment, at $8,000. Fox testified that James had accounts receivable of $208,067 as of January 15, 2003, and that NSA had a historic collection percentage of 44.46%. Fox testified that overhead was not a component of accounts receivable because no further expenditures would be necessary and that the receivables had already been discounted by the 44.46 collection percentage. Fox testified that James would have to pay taxes on the receivables when they were collected. Fox also stated that, although James had taxes withheld at the rate of 43%, he actually paid taxes in 2001 at the effective rate of 28%.
Rufus Wolff, an attorney for ASH, testified that James was one of seven original investors in ASH and that each original investor had contributed $13,000. Wolff said that James owned eight “units”in ASH, that each unit costs $5,000, and that he and the other original investors would have to contribute an additional $27,000 so that their investment would equal the amount contributed by investors who had come in since the original investors created ASH. Wolff testified that ASH had paid $1.5 million to purchase twenty-eight acres of land on which it intended to build a speciality hospital, that ASH had borrowed $2 million to finance the land purchase and have plans developed, and that James and the other six original investors had each signed a personal guaranty for 125% of their pro rata share of ASH. Wolff testified that James owned an 8.99% in ASH, that James would have to obtain the permission of the company before he could transfer any of his units, and that James’s interest has no marketable value at the present time. Wolff said that Kimberly Adametz had not signed the ASH operating agreement and had not agreed to abide by the terms and conditions of the operating agreement.
Wolff said that construction of the hospital would not commence unless and until financing was obtained in the amount of approximately $18 million, and that each investor would have to be approved by the bank as a personal guarantor for their pro rata part of the loan. He stated that plans and copies of the proforma statements submitted to the bank, which he admitted may not be accurate, included projected net annual income of $1.2 or $1.3 million and that any distributions would be made according to the percentage of ownership. Wolff stated that the bank was interested in making the $18 million loan for permanent financing for the project, the biggest hurdle facing the project. He also stated that ASH was worth what the land would sell for after repayment of the debt.
‘ The Trial Court’s Decision
The trial court issued a letter opinion that awarded Kimberly $6,500, representing one-half of the $13,000 invested by James in ASH, but refused to assign any value to ASH itself, referring to the value of such a venture as “speculative.”
The trial court found that James’s share of NSA’s accounts receivable was $205,000, which, by applying the 44.6% historical rate of collection, it reduced to $113,570. The court then further reduced the accounts by 42.15%, representing the historical rate of NSA’s overhead expenses, arriving at $65,700 as the pre-tax value of the accounts. The court then reduced the $65,700 by 43%, which it found to be James’s income tax bracket, arriving at an after-tax value for the accounts of $37,449, one-half of which ($18,724) it awarded to Kimberly for her share ofjames’s accounts receivable at NSA.
The court found that the parties had not reached an agreement that James would pay 21% of his net income as child support, but had agreed only that the provisions of the child support chart in Administrative Order No. 10 should apply. The trial court based James’s child-support obligation on a monthly net income of $19,615, which was computed by deducting taxes and insurance premiums from his 2002 gross income of $451,390 and dividing by twelve. The trial court then deviated from the child-support chart amount, finding that the parties would have equal time with the children, and set James’s monthly support obligation at $3,400.
Points on Appeal
For Kimberly’s first point on appeal, she contends that the trial court erred with respect to its valuation ofjames’s interest in ASH. On appeal, equity cases, such as divorces, are reviewed de novo. Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001). With respect to the property issues 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.
The trial court awarded Kimberly $6,500 for her interest in the funds James invested in ASH, but the court did not award her any interest in the ASH venture. The trial court ruled that assigning any value to ASH would be speculative due to the fact that ASH was not in business and, at the time of the hearing, no certainty existed that the venture would proceed.
There is a presumption that all property acquired during a marriage is marital property. McDermott v. McDermott, 336 Ark. 557, 986 S.W.2d 843 (1999). Kimberly relies on McDermott, where the court determined that attorney’s fees earned pursuant to a contingency fee contract made during the marriage were marital property even though the fees were not collected until some time in the future. In McDermott, the husband’s contingency contracts were created during the marriage and some of the cases covered by those contracts were tried during the marriage. Therefore, the husband expended time and effort during the marriage in an effort to create more marital assets.
We find McDermott distinguishable from the case at bar. The court’s findings on this point are not clearly erroneous. The trial court found that ASH has only a speculative value as a going concern because it had no operational history and had no goodwill to be valued. Arkansas Code Annotated section 9-12-315 (Repl. 2002) requires the use of the “fair market value” standard for valuing businesses in a marital-property context. See Cole v. Cole, 82 Ark. App. 47, 110 S.W.3d 310 (2003). However, ASH does have value because it owns a significant asset — the real estate. James Adametz and Rufus Wolff both recognized this when they valued James’s interest in ASH as one-seventh of the value of the land less the debt owed against it. Kimberly failed to provide evidence as to the current value of the land, and it was her burden to do so. See Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987).
For Kimberly’s second point on appeal, she challenges the trial court’s valuation of James’s interest in NSA. The trial court accepted the testimony ofjames’s expert that the gross value of the receivables were $205,000, but then the court applied deductions for overhead and for James’s income tax rate in arriving at the net value of the accounts receivable of $37,449. Kimberly argues that this method of calculation was in error. The parties have not cited, nor has our own research found, any Arkansas cases that specifically address whether accounts receivable should be reduced by an allowance for overhead in arriving at the net value of the receivables. The supreme court alluded to the problem but expressly declined to address it in Meeks v. Meeks, 290 Ark. 563, 721 S.W.2d 653 (1986). However, the Arizona Supreme Court has specifically addressed the issue of whether future overhead expenses should be considered in the valuation of a business in a divorce case. In re Marriage of Goldstein, 120 Ariz. 23, 583 P.2d 1343 (1978). In Goldstein, the husband’s interest in his medical practice was at issue. The Arizona Supreme Court held that the trial court correctly did not deduct an overhead allowance for either the corporation’s checking account or the accounts receivable. The court reasoned that:
Since the trial court must establish a present value for each asset in order to make an equitable distribution, it properly is not concerned with possible future debts which may or may not come into existence.... The overhead incurred in generating the balance currently in the checking account and accounts receivable has either been paid, thereby reducing the checking account, or is present in the form of an incurred debt. In either case, the past overhead which generated these assets would be reflected in the present value of the corporation. To then subtract future overhead expenses would amount, in essence, to a double deduction from the same assets.
Goldstein, 583 P.2d at 1344-45 (citation omitted) (emphasis in original); see also Peterson v. Peterson, 367 N.W.2d 90 (Minn. Ct. App. 1985) (following Goldstein); Lewis v. Lewis, 106 N.M. 105, 739 P.2d 974 (Ct. App. 1987). We adopt the reasoning of these cases and conclude that the trial court erred in deducting the overhead expenses in valuing the accounts receivable.
Kimberly also argues that the trial court erred in reducing the value of the receivables by James’s tax rate. A trial judge may consider “the federal income tax consequences of the court’s division of property” when he finds it would be inequitable to divide the property in half. Ark. Code Ann. § 9-12-315(a)(1)(A)(ix) (Repl. 2002). In this case, James will be required to pay income taxes on the receivables when he actually receives them. Therefore, we find the court’s ruling was correct when it required that Kimberly’s share of the receivables be reduced by the percentage of James’s income taxes. However, we note that Kimberly’s expert, Tracy Fox, testified that, although James had taxes withheld from his income at the rate of 43%, he actually paid income taxes at the rate of only 28%, resulting in Kimberly’s share of the receivables bearing a greater portion of the income tax burden than James’s share. Because we find that income taxes should be deducted from Kimberly’s share of the accounts receivable at the rate actually paid by James, rather than the 43% rate used by the trial court, we reverse and remand for further proceedings on this point.
For her third point on appeal, Kimberly contends that the trial court erred in refusing to enforce the alleged December 19, 2002, agreement on child support as part of the divorce decree. 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, fohnson v. Arkansas Dep’t of Human Servs., 78 Ark. App. 112, 82 S.W.3d 183 (2002).
Kimberly argues that the trial court erred in finding that the parties did not make an agreement that James would pay as child support 21% of his net income. The trial court found that the parties had not agreed on all of the terms and therefore did not reach an agreement as to child support. In her testimony, Kimberly admits that the parties had agreed on the 21% figure but had not agreed on the proper deductions in order to arrive at James’s “net income.” As this court recently stated:
Before an agreement becomes binding there must be a meeting of the minds of both parties as to all terms. A meeting of the minds is defined as an agreement reached by the parties to the contract and expressed therein, or as the equivalent of mutual assent and mutual obligation.
Development & Constr. Mgmt., Inc. v. City of North Little Rock, 83 Ark. App. 165, 173, 119 S.W.3d 77, 83 (2003) (emphasis added) (citations omitted). Here, we find that the court’s ruling that there was no agreement to be correct. No meeting of the minds existed on the deductions necessary to arrive at James’s “net income,” a necessary component because that is the amount to which the 21% figure will be applied to arrive at the amount of child support James pays.
Furthermore, it is also irrelevant whether the parties reached an agreement because, as we recently noted in Harris v. Harris, 82 Ark. App. 321, 107 S.W.3d 897 (2003), such independent contracts are not binding on the trial court, and the trial court always retains jurisdiction over child-support issues as a matter of public policy. No matter what the parties’ independent contract provides, either party had a right to request a modification of a child-support award. See also Alfano, supra. Accordingly, we affirm the trial court on this point.
Affirmed in part; reversed and remanded in part.
Stroud, C.J., and Vaught, J., agree. | [
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John F. Stroud, Jr., Chief Judge.
Pearline Williams appeals from the denial of her claim for medical benefits and temporary total disability. She suffered a compensable injury to her knee while employed by her husband’s janitorial company. Appellees paid for her first knee surgery, but refused to pay for a recommended second surgery to replace her right knee. For her sole point of appeal, appellant contends that the Commission “erred as a matter of law when [it] denied [her] medical benefits for a knee replacement and temporary disability following her severe twisting knee injury, which aggravated her preexisting arthritis.” We reverse and remand for an award of benefits.
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 denial of the relief sought by the worker. Stiger v. State Line Tire Serv., 72 Ark. App. 250, 35 S.W.3d 335 (2000)., 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. Id. We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Searcy Indus. Laundry, Inc. v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003). 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. Stiger, supra. In making our review, we recognize that it is the Commission’s function to determine the credibility of witnesses and the weight to be given their testimony. Searcy Indus. Laundry, supra. Moreover, the Commission has the duty of weighing medical evidence and, if the evidence is conflicting, its resolution is a question of fact for the Commission. Id.
Appellant testified that she is fifty-five years old and that she has worked for L & W Janitorial Service for about thirty years. She said that she wants to return to her job, but that in her present condition she is not able to continue that type of work. She explained that on November 15, 2000, she slipped on some stairs while she was working and hit her knee on the steps. She said that she saw Dr. Kenneth Martin and continued working until she had surgery on January 31, 2001. She testified that she has not returned to work because she is still having problems with pain and swelling in the knee. She said that in May, Dr. Martin recommended a total-knee replacement, but that she did not have the second surgery to replace the knee because workers’ compensation denied coverage for it. She explained that after her injury in November and her surgery in January, her pain problems were much worse than they were before. She stated that she has never had any problems with her left knee.
Appellant explained that she first injured her right knee on July 9, 1996, when she slipped and fell on it at work. She said that she did not have any problems with it prior to that date. She stated that the July 1996 injury was the first injury she had to her right knee. She said that a 1988 injury was to the “upper part of her knee, up above the knee.” She said it just “swelled up and then cleared up.” She testified that before the November 2000 injury she would take Tylenol whenever she had severe pain in her knee and that she would still be working had it not been for that injury.
Dr. Kenneth Martin testified by deposition. He stated that his specialty is orthopedic surgery. He said that the first time he saw appellant was in December 2000, and that he did some X-rays, which showed “a lot of arthritis primarily over the lateral compartment and I described osteophytes, which are bone spurs, laterally and around the kneecap.” He said that there was still a little bit of space between the bones. He said that he did a scope and found out that “it was pretty much bone on bone.” He said the arthritis that he saw in December 2000 would not have occurred between November 15, 2000 and the date of his examination. He explained that this type of arthritis is progressive and that the type of symptom you expect to see is primarily pain associated with some swelling and some grinding in the knee. He said that when the pain starts to interfere with daily activities, a surgical procedure is indicated.
Martin stated that appellant returned to him on January 9, 2001, and reported that the injections he had given her did not help a great deal. He said that he scheduled an MR.I and that it indicated there was osteoarthritis involving the lateral compartment with subchondral bony necrosis, which means a loss of blood supply caused by arthritis, resulting in bone and knee joints starting to degenerate. He explained that there was also a tear involving the lateral meniscus and that he could not tell for sure whether the torn meniscus was caused by appellant’s injury or was degenerative in nature. He recommended arthroscopy, hoping that “if we could debride the knee, remove the torn meniscus and smooth up the surfaces,” she could have good enough function to avoid or at least delay a knee replacement. He said that when he got into her knee, he found “that the inside part of the medial compartment was in good condition. She had some mild degenerative changes around the kneecap but most of the findings were in the lateral compartment where she had the arthritis.” He stated that he resected the tear in the lateral meniscus and that she also had what he would describe as grade-four changes, down to the bone, so that there was exposed bone on the tibia. He explained that there was no cartilage cushion there at all. He stated, “That’s due to the degenerative arthritis and not coming from her injury on November 15.”
Martin explained that in the following weeks, appellant experienced continued pain and that when he saw her on May 8, 2001, he thought she was a candidate for unicompartmental relief, a knee replacement or a partial-knee replacement. He said that unicompartmental relief replaces or resurfaces the joint, resurfacing the end of the femur with metal and the top of the tibia with plastic. He stated that he repeated the X-rays and that they showed there were significant degenerative changes laterally.
Martin testified that he agreed with Dr. James Mulhollan, whose medical evaluation he had read, that the grade-four osteoarthritis was not caused by the November 15, 2000 injury; that the “major reason” for doing that type of surgery would be her preexisting arthritis; and that “most of the cause” for the knee replacement preexisted her job injury. He stated that in his opinion, within a reasonable degree of medical certainty, the surgery that he was recommending for appellant was related to the arthritis. He said that the torn meniscus was most likely related to the injury.
Martin reviewed appellant’s 1996 X-rays and stated that he agreed that they were negative on the right knee, “not even any problems at all.” He said that he agreed with Mulhollan’s assessment that only the right knee had symptoms of arthritis and that therefore the right-knee arthritis was definitely related to an injury of some sort.
He said that “the injury had some effect on her knee” and that an injury can cause the symptoms to get worse. He said that if appellant was honest in saying that she was able to continue working up until the day she fell in November 2000, “that would be consistent with the fact that even though there were arthritic symptoms following the 1996 injury that it didn’t affect her ability to work in that type job.” He explained that the complicating factor in the discussion was appellant’s arthritis and that her ability to work was materially affected by the November 2000 injury on the assumption that she was able to work and now she is not. He said that “the fall was a contributing factor to her occupational disability. The hard part is to say it’s 50 percent because she had so much arthritis in the knee. There was a significant prior problem in the knee to begin with.” He explained further:
If she had just minor arthritis in a fall like this it wouldn’t have been a big problem but because the arthritis was so severe, any little thing can just tip her over the edge.... I would like to help Ms. Williams as much as I can but there was such a significant amount of arthritis I can’t say in all certainty that the fall is more than 50% because of the significant amount of arthritis already there.
Whether the fall was major contributing factor to her inability to work is where we split hairs. Like you said, was the fall the straw that broke the camel’s back, yeah. You had this severe arthritis to begin with and if it weren’t for the arthritis the fall would have been insignificant.
If we assume that there was severe arthritis and that she had this severe fall and now she is unable to work, the fall contributed, but I can’t say for sure it was more than 50%.
In response to your question whether it was a heavy contributing factor, I state it was a factor. I’m not sure what you mean by heavy, but it ivas a factor, but I don’t know if it was more than 50% because her arthritis was so bad that it would have taken anything minor just to tip her over the edge.
(Emphasis added.)
Dr. Martin stated that the meniscal tear probably occurred with her injury, but that the arthritis did not. He said that “it was to some extent aggravated by the injury.” He testified that there was “such a degenerative process that’s been going on for some time I can’t say the injury is responsible for all this problem now.” He explained that injury can aggravate arthritis. He said that in his opinion, her arthritis preexisted the November 2000 injury; that her pain was aggravated by the fall; and that it was hard to say if a fall could cause the arthritis to get worse or to develop faster. He said that the symptoms get worse but that he could not say how much more degeneration there is just from the fall.
Dr. James Mulhollan testified by deposition. He stated that his orthopedic practice was limited to arthroscopic knee surgery. He said that he saw appellant for an evaluation on June 12, 2001; that the X-rays “showed basically arthritis,” not in the rheumatoid sense, but a mechanical arthritis, the “wear and tear type thing” that takes years to develop. He said that if arthritis develops only in one knee, you have got to pretty well blame an injury or a mishap. He said that it would not be attributable to something that happened in the last five or six months because it takes longer than that.
Dr. Mulhollan further explained:
I don’t think the grade 4 osteoarthritis was caused by her November 15, 2000 injury. I think she had to be arthritic at the moment of that injury. That opinion is strengthened if your history is correct as far as her last 3 or 4 years that she’s had these problems. If she had to have a total knee replacement the major cause of that would not be her November 15,2000 injury, it’s the underlying degenerative arthritic process.
My answer is predicated on the knowledge of Arkansas’ 50% law as it applies to Workers’ Comp. That opinion is also strengthened by what you told me today.
(Emphasis added.) He went on to state:
We just deal with the complaint the patient gives, if a patient has degenerative arthritic condition and they receive a severe injury to the knee, and it manifested itsef in severe pain and swelling over an extended period of time, that accelerates the process.
In order to explain that to the patients, we say that’s pouring kerosene on afire. It just makes it you know burn quicker.
It is possible that if she had not had the injury that she had in 2000, that she would not have reached the condition where she needed surgery at that point.
It could certainly be a contributing factor if a person was able to work before the injury in the year 2000 and continued functioning and was working daily the same type ofwork she’s been doing for years... and fell and injured her knee significantly and the condition she is in now, needing surgery. It could be a major contributing factor also.
I think it would be giving a mishap like that more credit than it’s due as to whether if she hadn’t fallen and had that severe injury that she would still be working today.
While I agree with Dr. Martin as far as the need for surgery, it is my opinion that it’s due to the arthritic condition that’s been going on for years. I said a total knee replacement is 40% and what I felt like she had from this injury was around 7%, 2% is for the torn meniscus that was removed by Dr. Martin.
(Emphasis added.)
The Commission affirmed and adopted the ALJ’s opinion, in which the denial of benefits was based upon the following rationale:
Based on the expert medical opinions of Drs. Martin and Mulhollan I find the claimant has not met her burden of proof. The recommended knee replacement surgery is not causally related to the compensable injury and therefore additional medical treatment at the respondents’ expense is unreasonable and unnecessary.
The evidence shows that the claimant suffered from severe preexisting degenerative arthritis in her knee prior to the compens able injury. She was symptomatic prior to the incident at work and would have required knee replacement surgery regardless of the work-related injury due to the progressive nature of the disease.
The respondents have fulfilled their obligation under Ark. Code Ann. § 11-9-508 by providing the claimant with adequate medical care immediately after her injury, access to diagnostic testing, and consultation with two specialists. Both Dr. Martin and Dr. Mulhollan agree that the knee replacement surgery has been recommended to treat the preexisting arthritis, not the work-related injury.
There is no evidence that the degenerative disease was worsened by the work-related injury. At the time of her injury, the claimant’s condition was bone on bone — there was no cartilage left in her knee. There was nothing for the injury to aggravate, accelerate, combine with or worsen.
(Emphasis added.)
In workers’ compensation law, an employer takes the employee as he finds him, and employment circumstances that aggravate preexisting conditions are compensable. Heritage Baptist Temple v. Robison, 82 Ark. App. 460, 120 S.W.3d 150 (2003). An aggravation of a preexisting noncompensable condition by a compensable injury is, itself, compensable. Id. An aggravation is a new injury resulting from an independent incident. Id. An aggravation, being a new injury with an independent cause, must meet the definition of a compensable injury in order to establish compensability for the aggravation. Id.
Here, there is no dispute that appellant’s knee injury was compensable and that objective medical evidence established her current need for knee-replacement surgery. Rather, as noted by the dissenting Commissioner, “What is disputed is whether claimant’s knee replacement surgery is reasonable and necessary in relation to her compensable injury given the fact that she also suffers from preexisting arthritis.” The Commission determined that appellant failed to establish a causal connection between her compensable injury and her need for total-knee-replacement surgery. We are convinced that fair-minded persons with the same facts before them could not reach the same conclusion.
It seems clear that both Dr. Martin and Dr. Mulhollan were testifying under the mistaken belief that the knee injury had to be the major cause of the need for the knee-replacement surgery-in order for it to be covered by workers’ compensation. The Commission recognized that any argument about whether the compensable injury was the major cause of the need for the knee-replacement surgery was misplaced:
Although the parties questioned the doctors about “major cause,” that analysis is used in gradual injury cases and in awards of permanent disability benefits.That argument is not applicable in the case at bar involving a specific injury and request for additional medical treatment.
See also Farmland Ins. Co. v. DuBois, 54 Ark. App. 141, 145, 923 S.W.2d 883, 885 (1996), in which we explained:
Ark. Code Ann. §§ 11-9-102(5) (F) (i) & (ii) provide that when an employee is determined to have a compensable injury, the employee is entitled to medical and temporary disability as provided by this chapter. It goes on to specifically provide that if any compensable injury combines with a preexisting condition, permanent benefits shall be payable only if the compensable injury is the major cause of the permanent disability or need for treatment. Therefore, when a claimant who has sustained a compensable injury is seeking permanent disability benefits there is a requirement to prove that the compensable injury is the major cause of the permanent disability. In this case, appellee was only seeking medical benefits and temporary total disability. Therefore, appellant’s argument is misplaced.
(Emphasis added.) Here, as in Farmland, supra, appellant thus far is only seeking medical benefits and temporary total disability. Thus, the major-cause analysis is not applicable. It is clear, however, that the doctors’ mistaken notion about the need to establish the injury as the major cause for the knee-replacement surgery affected their testimony.
The medical testimony has been recounted at length earlier in this opinion. Both doctors can be fairly said to have testified that appellant’s fall at work was not the major cause, but that it was, at least, a factor in her resulting inability to work and need for knee-replacement surgery. Consequently, this case does not involve conflicting medical evidence on those issues. Even so, however, “based on the expert medical opinions of Drs. Martin and Mulhollan,” the Commission found that appellant had failed to prove a causal connection between her compensable injury and her need for total-knee-replacement surgery. Moreover, the Commission concluded that “[t]here is no evidence that the degenerative disease was worsened by the work-related injury.” Even reviewing the evidence in the light most favorable to the Commission’s findings, we conclude that they are not supported by substantial evidence. Appellees had to take appellant as they found her, and the compensable injury that she suffered was a factor in her need for the additional surgery.
Reversed and remanded for an award of benefits.
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John Mauzy Pittman, Judge.
Following a bench trial, appellant Don Adamson was held liable for conversion of an airplane hangar that the Jimmy B. Sims Farm, Inc., Pension Trust claimed to own. The Trust was awarded $10,000 in compensatory damages. On appeal, appellant argues that the trial court erred in finding him liable for conversion. We agree and reverse and remand.
The hangar in question was located on the Cottonwood Plantation in Lonoke County. It was constructed approximately thirty years ago by John McRae for the purpose of housing his personal airplane. In June 2001, McRae decided to sell his airplane. He contacted appellant and orally conveyed the hangar to him in exchange for appellant’s repairing and selling the plane. Appellant’s plan was to disassemble the hangar, move it to his own airstrip, and erect it there. He expected it to cost him $3,000.
On August 31, 2001, appellee purchased the Cottonwood Plantation from the Mary S. Pemberton Trust for approximately two million dollars. The purchase price included all attached fixtures and equipment. Trustee Jimmy Sims would later testify that he understood the price to include the hangar; he apparently had no knowledge that McRae had sold the hangar to appellant.
In late December 2001, appellant and several other workmen arrived at the Plantation with lifting equipment, a trailer, and other tools and began dismantling the hangar. However, after the structure had been partially disassembled, Jimmy Sims protested, claiming that the hangar was owned by appellee. Appellant eventually left the hangar partially torn down.
On March 27, 2002, appellee sued appellant for trespass and for conversion of the hangar, and appellant counterclaimed for conversion of the hangar. The trial court ruled in appellee’s favor on the conversion count and awarded it $10,000 in damages. Appellant appeals from that verdict.
When a case is tried by a circuit court sitting without a jury, our inquiry on appeal is whether the trial court’s findings are clearly erroneous, or clearly against the preponderance of the evidence. Buck v. Gillham, 80 Ark. App. 375, 96 S.W.3d 750 (2003). Recognition must be given to the trial judge’s superior opportunity to determine the credibility of the witnesses and the weight to be given to their testimony. Gosnell v. Independent Serv. Fin., Inc., 28 Ark. App. 334, 774 S.W.2d 430 (1989).
The key issue on appeal is whether the hangar is a fixture. If it is a fixture, it is owned by appellee by virtue of its purchase of the Cottonwood Plantation; if it is not a fixture, it is owned by appellant as his personal chattel. The trial court determined that the hangar was a fixture based on the following findings: 1) John McRae was a beneficiary of the Pemberton Trust and constructed the hangar for the Trust’s benefit; 2) the hangar was affixed and annexed to the Plantation realty; 3) there was no agreement between McRae and the Pemberton Trust as to ownership of the hangar.
Appellant first challenges the trial court’s finding that McRae constructed the hangar for the benefit of the Pemberton Trust. This finding was made by the court sua sponte, relying on the case of Corning Bank v. Bank of Rector, 265 Ark. 68, 576 S.W.2d 949 (1979). Appellant argues that the trial court’s finding is erroneous on this point, and we agree.
The court’s finding was based on testimony by Joe Pennington, the farm manager for the Pemberton Trust, that McRae was a “minority” benefickry of the Trust and had managed the Plantation sometime before 1998. However, no further evidence was adduced regarding McRae’s relationship to the Pemberton Trust or any benefit that the Trust enjoyed in the hangar. By contrast, there was considerable evidence that the hangar had not been constructed for the Trust’s benefit. McRae, who did not testify at trial, signed a written memo on March 1, 2002, in which he stated that he had personally paid for the hangar and had built it “over twenty years ago for $9,000.” Pennington testified that McRae had constructed the hangar thirty years earlier for storage of McRae’s airplane; that it was Pennington’s understanding that the hangar was not the Pemberton Trust’s property; that McRae had insured and maintained the hangar; that Pennington never expended any Trust money to maintain the hangar and did not insure it, although the Trust insured other buildings on the Plantation; that the Pemberton trustee, Marilyn Houston (McRae’s sister) was aware that the Trust was not insuring the hangar; and that the trustee never instructed Pennington to exercise any dominion or control over the hangar. Onjanuary 4, 2002, after the controversy in this case began, Pennington wrote a letter to appellee stating that the hangar had been paid for thirty years ago by McRae, was used to shelter McRae’s airplane, and that insurance coverage for the hangar was paid for by McRae and “not included under the farm’s other insurance coverage.”
The evidence points inescapably to the conclusion that McRae, Pennington, and the trustee were all of the opinion that the hangar belonged to McRae and was of no interest to the Trust. The trial court therefore erred in finding that the hangar was built for the Trust’s benefit.
As for the trial court’s reliance on the Bank of Corning case, we believe it is not well founded in this instance. Coming involved the question of whether certain grain bins were fixtures on real property. In holding that they were, the supreme court stated that the inference that a structure is a fixture is strong “where the party attaching the ‘fixture’ is the owner of the soil.” Id. at 74, 576 S.W.2d at 953. The court in the case at bar must have considered McRae an “owner of the soil” by virtue of his being a beneficiary of the Trust. Although a trust beneficiary may have an equitable interest in trust property, see generally 76 Am. Jur. 2d Trusts § 281 (2d ed. 1992), in this case, we do not know the terms of the trust nor the extent of McRae’s interest; we know only of Pennington’s understanding that McRae was a “minority” beneficiary. Given the lack of evidence on this matter, the language in Corning was not applicable.
We turn now to appellant’s argument that the trial judge erred in characterizing the hangar as a fixture. The question of whether particular property constitutes a fixture is sometimes one of fact only but usually is a mixed question of law and fact. Corning Bank v. Bank of Rector, supra. A fixture has been defined by our supreme court as property, originally a personal chattel, that has been affixed to the soil or to a structure legally a part of the soil and, being affixed or attached to the realty, has become a part of the realty. See Continental Gin Co. v. Clement, 176 Ark. 864, 4 S.W.2d 901 (1928). It is annexed to the freehold for use in connection therewith and so arranged that it cannot be removed without injury to the freehold. See id. The courts have devised a three-part test to determine whether an article is a fixture: (1) whether it is annexed to the realty; (2) whether it is appropriate and adapted to the use or purpose of that part of the realty to which it is connected; (3) whether the party making the annexation intended to make it permanent. See Pledger v. Halvorson, 324 Ark. 302, 921 S.W.2d 576 (1996). The third factor — ■ the intention of the party who made the annexation — is considered of primary importance. Id.; Kearbey v. Douglas, 215 Ark. 523, 221 S.W.2d 426 (1949). The courts use an objective test to arrive at the annexer’s intention. See Pledger v. Halvorson, supra.
On the first factor, there is proof on both sides as to whether the hangar was annexed to the realty. The evidence shows that the hangar was a large building constructed of metal trusses with two-by-four girds and purlins and metal siding attached to the wood with nails. The structure was bolted to a concrete slab, although the slab covered only a part of the surface of the hangar. Jimmy Sims testified that it would be difficult to move the structure without completely damaging it. On the other hand, appellant said that he had no doubt about being able to move the hangar, and he said that he could move it without damaging the real property. He testified that the metal trusses were bolted into concrete footers and that, after removing the outside sheeting, he could remove the trusses by holding them with a cherry picker and unbolting them. At the time he was ordered off the property, he and his crew had worked about nine hours dismantling the building. At that point, he had removed about three-fourths of the sheeting from the roof and half from the walls.
Our courts have decided several cases on the issue of whether large structures are fixtures or personalty, and the outcome of those cases has depended upon their particular facts. A structure was held to be a fixture in Corning Bank v. Bank of Rector, supra, where an expert opined that it would be impractical to remove 22-foot-by-21-foot grain bins with 7,000-bushel capacities attached to the ground by 12-foot deep footings. A structure was also ruled a fixture in Dobbins v. Lacefield, 35 Ark. App. 24, 811 S.W.2d 334 (1991), where a canopy was set in concrete with underground cables and gasoline tanks were placed in 20-foot-by-30-foot holes that were 10 feet deep and could be removed only by a backhoe, and in Barron v. Barron, 1 Ark. App. 323, 615 S.W.2d 394 (1981), where grain-storage bins and a shop building were set in deep concrete and the cost of moving and reassembling a new bin would cost as much as buying a new one. In contrast, mobile homes were held not to be fixtures in Pledger v. Halvorson, supra, even though they had been placed on concrete foundations with extensive modifications and had no tongues, axles, or wheels. In addition, see Garmon v. Mitchell, 53 Ark. App. 10, 918 S.W.2d 201 (1996), holding that grain bins were not fixtures, and Farmers Mutual Insurance Co. v. Denniston, 237 Ark. 768, 376 S.W.2d 252 (1964), holding that a house trailer was not a fixture. See also In re Hot Shot Burgers & Fries, Inc., 147 B.R. 484 (E.D. Ark. 1992), ruling that a fast-food building constructed from prefabricated modules was not a fixture.
We distinguish this case from those cited above in which large structures were held to be fixtures. In each of those cases, strong evidence of the annexing party’s intention to treat the structure as chattel was lacking. In the case at bar, there was considerable evidence, as set out earlier in this opinion, that McRae, the annexing party, intended to treat the structure as personalty. Further, there was equally strong evidence that the owner of the realty, the Pemberton Trust, shared that intention. Thus, the third factor in the test, which is the factor of primary importance, operates in favor of appellant. As in Pledger v. Halvorson, supra, the intention of the parties, being the crucial consideration, should govern.
The second factor in the fixture test also works in favor of appellant. Although the hangar was contiguous to an airstrip that was owned by the Pemberton Trust, there is no evidence that the hangar or airstrip was used in connection with Trust business or that the Trust derived any significant benefit from them. In fact, the airstrip was leased by McRae for the minimal amount of $600 per year.
In light of the foregoing, we reverse the trial court’s decision and hold that the hangar was not a fixture. Our decision makes it unnecessary to reach appellant’s third argument, that the trial court used an incorrect measure of damages.
Reversed and remanded with directions to enter a finding that the hangar is not a fixture and that it is the property of appellant.
Gladwin and Baker, JJ., agree.
Appellee contends that appellant’s argument on this point is barred because appellant failed to make a specific directed verdict motion at the close of the plaintiff s case and at the close of all evidence. However, our rules of civil procedure do not require such motions to challenge the sufficiency of the evidence when there has been a bench trial. See Ark. R. Civ. P. 50(e) (2003); FirstBank of Arkansas v. Keeling, 312 Ark. 441, 850 S.W.2d 310 (1993). | [
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Terry Crabtree, Judge.
The Workers’ Compensation Commission affirmed the decision of an administrative law judge finding that the appellant, Lyle Swearengin, failed to prove that he suffered a compensable injury because his injury did not occur while performing employment services. On appeal, appellant claims that substantial evidence does not support the Commission’s decision. We affirm.
In reviewing decisions from the Workers’ Compensation Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. Carman v. Haworth, Inc., 74 Ark. App. 55, 45 S.W.3d 408 (2001). Substantial evidence exists if reasonable minds could reach the same conclusion. Daniels v. Arkansas Dep’t Human Servs., 11 Ark. App. 99, 72 S.W.3d 128 (2002); Lee v. Dr. Pepper Bottling Co., 74 Ark. App. 43, 47 S.W.3d 263 (2001). When a claim is denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Clardy v. Medi-Homes LTC Serv. LLC, 75 Ark. App. 156, 55 S.W.3d 791 (2001).
At the time of the accident the appellee, Evergreen Lawns, Inc., employed appellant as a supervisor in its landscaping business. Appellant testified that on July 20, 2001, he and other individuals had been working on a landscaping job at McDonald’s on Thompson Street in Springdale, Arkansas. Appellant stated that he left McDonald’s and took Santos, a laborer, to appellee’s shop in north Springdale to clock out and then took him home. After taking Santos home, appellant drove to Fayetteville to purchase materials for the next day. According to appellant, he then drove to the home of Bob Bowen, appellee’s owner. Appellant picked up Mario, another laborer, at the Bowen residence and then delivered the materials to McDonald’s. Next, appellant and Mario drove to appellee’s shop for Mario to clock out. Appellant then volunteered to give Mario a ride home. After appellant left Mario at his residence, appellant traveled toward his home. While in the process of driving home, appellant’s vehicle was struck from behind by another vehicle at a traffic signal. As a result, appellant suffered injuries.
Arkansas Code Annotated section 11-9-102(4)(A) (Supp. 2001) defines “compensable injury” as “[a]n accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment.” Section 11 — 9— 102(4) (B)(iii) provides that the term “compensable injury” does not include an injury that was inflicted upon the employee at a time when employment services were not being performed. The statute does not define the phrase “in the course of employment” or the term “employment services.” The supreme court has held, however, that we are to use the same test to determine whether an employee was performing “employment services” as is used when determining whether an employee was acting within “the course of employment.” Collins v. Excel Specialty Prods., 347 Ark. 811, 69 S.W.3d 14 (2002). 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 purpose or advancing the employer’s interest, directly or indirectly. Id. See also Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002).
An employee is generally said not to be acting within the course of employment when he or she is traveling to and from the workplace. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997); Daniels, supra. Thus, the going-and-coming rule ordinarily precludes recovery for an injury sustained while the employee is going to or returning from work. Woodard v. White Spot Café, 30 Ark. App. 221, 785 S.W.2d 54 (1990).
We agree with the Commission that, pursuant to the going- and-coming rule, appellant was not within the course and scope of his employment at the time of his accident. Appellant agreed that when the accident occurred he was “finished for the day” and “done with all [his] work.” He testified that he drove Mario to his home as a favor and not because it was part of his job.
In any event, appellant’s accident did not occur while he was taking Mario home. Instead, the accident occurred at 6:11 p.m. after appellant left Mario at his home and while appellant was traveling to his own residence. At the time of the accident, appellant was within blocks of his home and was like any other employee who was traveling home from a job. Therefore, the going-and-coming rule precludes appellant’s recovery as his accident occurred while he was simply trayeling home.
However, we'recognize that there are exceptions to the going-and-coming rule. These exceptions are outlined in Jane Traylor, Inc. v. Cooksey, 31 Ark. App. 245, 247, 792 S.W.2d 351, 352 (1990):
(1) where an employee is injured while in close proximity to the employer’s premises; (2) where the employer furnishes the transportation and to and from work; (3) where the employee is a traveling salesman; (4) where the employee is injured on a special mission or errand; and (5) when the employer compensates the employee for his time from the moment he leaves home until he returns home.
Appellant claims that the second exception applies in this instance. He maintains that this exception is applicable because it was undisputed that appellant’s employer provided him transportation to and from work by furnishing him a truck for this purpose. However, the “furnishing transportation” exception to the going-and-coming rule does not apply when the transportation is furnished solely as a gratuity. Lepard v. West Memphis Mach. & Welding, 51 Ark. App. 53, 908 S.W.2d 666 (1995); but see Hightower v. Newark Pub. Sch. Sys., 57 Ark. App. 159 (1997). However, transportation provided by an employer is likely not gratuitous if the employer gains the benefit. See Lepard, supra.
Here, Bob Bowen testified that he regularly allowed appellant to drive a company vehicle home at night “to allow him ease to get back and forth to work” because appellant and his wife had only one vehicle. At the hearing, appellant offered no testimony regarding how appellee would benefit from appellant driving a company vehicle to and from work. Yet, appellant argues in his brief that appellee benefitted from appellant driving the truck. On appeal, he asserts that in the mornings he could drive appellee’s truck directly to the work site rather than wasting time driving in his own vehicle to appellee’s shop to pick up appellee’s truck. We will not speculate regarding any benefit that appellee might have gained by appellant driving a company vehicle.
The Commission chose to believe the testimony offered by Bowen and found that the vehicle was furnished to appellant purely as a gratuity. The determination of the credibility and weight to be given a witness’s testimony is within the sole province of the Commission. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002). The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Id. We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Wal-Mart Stores, Inc. v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002).
We find this case similar to Lepard, supra. In Lepard, we stated:
[T]he company truck was supplied by the employer as a pure gratuity, with no benefit accruing to the employer. The use of the truck was not part of Mr. Lepard’s compensation and he was never “on call” during the two months that he was driving the truck. He was simply able to use the truck to get back and forth to work because he and his wife had only one vehicle and his employer chose to help him with his problem, without the expectation of anything in return.
Id. at 56, 105 S.W.3d at 669. In this instance, Bowen testified that he provided the vehicle merely as a gratuity to appellant as he and his wife owned only one car. Bowen expected nothing in return for allowing appellant to drive the truck. In fact, Bowen allowed appellant to use a credit card for gasoline expenses. Based upon Bowen’s testimony, the Commission concluded that appellee provided appellant with transportation as a gratuity to appellant rather than for a benefit to appellee. As such, we believe that the Commission’s decision displays a substantial basis for the denial of relief, and we affirm.
Bird and Griffen, JJ., agree. | [
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Sam Bird, Judge.
Mary Rector brings this appeal from the Chancery Court of Benton County, which granted permanent custody of her son, Kevin, to Kevin’s father, Joseph Michael “Mike” Rector. On November 16, 1995, Mr. Rector, appellee, filed a complaint in chancery court, alleging he was entitled to a divorce and requesting custody of Kevin. Ms. Rector answered and also petitioned the court for full custody of Kevin.
A temporary hearing was held November 27 to determine who should be awarded temporary custody of Kevin while the divorce was pending. The chanceEor noted that, as with many cases, the parents in this case were not perfect. The chanceEor was disturbed that Ms. Rector had aEegedly threatened to burn down the house, that Ms. Rector was not able to control her anger in front of Kevin, and that she did not communicate weE with Kevin or her other chEdren. In addition, the court noted that Ms. Rector has taken a lot of anti-depressants for her inabEity to control her stress.
The chanceEor was concerned about Mr. Rector’s admitted use of marijuana, that he had taken Kevin out of school during the time Kevin was in the middle of a chess tournament, that Mr. Rector does not seem to think that education is important, that Mr. Rector did not yet have a stable location he could call home, and that Mr. Rector’s work takes him out of town often.
Ms. Rector was awarded temporary custody because the chancellor found that she could meet the needs of the child and because her work schedule would allow Kevin to have a more stable environment.
A hearing was held on February 5, 1996, to determine whether a divorce should be granted, and if so, who should be awarded full custody of Kevin. Again, Mr. Rector admitted to using illegal drugs and Ms. Rector admitted to using a large amount of prescription drugs. Joseph Michael Rector, the parties’ eldest son, testified that Ms. Rector had a number of mood swings. Both parents admitted to disciplining Kevin with a belt, and testimony was presented that Ms. Rector also used a wire fly swatter. Kevin testified that he wanted to live with his father because his dad “takes me out camping and everything, and Mom just watches TV and tells me to go to school and stuff.”
Nicki McDonald, Ms. Rector’s adult daughter from another marriage, also testified. Ms. McDonald stated that Mr. Rector had sexually abused her when she was a child. Appellee objected, stating that the evidence was irrelevant. After questioning Ms. McDonald, the court sustained the objection, stating that a complete investigation into these allegations had not been made and that a link between the incident that happened ten years ago and what was being decided in the hearing was missing.
The chancellor granted Mr. Rector a divorce and permanent custody of Kevin, subject to visitation rights of Ms. Rector. In his oral findings, the chancellor stated that he was concerned about the use and storage of illegal drugs and prescription drugs. However, the chancellor felt that an illegal drug problem could be handled by ordering Mr. Rector to take drug tests, ordering examinations of the home and ordering that the child be removed from an environment where illegal drugs are used. However, these options were not available in monitoring Ms. Rector’s use of prescription drugs. He found that Ms. Rector was taking a large amount of anxiety drugs because of her mood swings, and found that Kevin needed a stable environment and needed to be able to know what to expect from each parent. The chancellor also noted that Mr. Rector tended to spend more time in activities with Kevin.
This court reviews chancery decisions de novo and reverses only if it finds that the chancellor’s findings are clearly against the preponderance of the evidence. Fitzpatrick v. Fitzpatrick, 29 Ark. App. 38, 776 S.W.2d 836 (1989). In a custody hearing, the court considers what is in the best interest of the child. Ark. Code Ann. § 9-13-101 (Repl. 1993). Factors a court may consider in determining what is in the best interest of the child include the psychological relationship between the parents and the child, the need for stability and continuity in the child’s relationship with parents and siblings, the past conduct of the parents toward the child, and the reasonable preference of a child. Anderson v. Anderson, 43 Ark. App. 194, 863 S.W.2d 325 (1993). In child custody cases, the chancellor has a heavy burden of evaluating the witnesses, their testimony, and determining what is in the child’s best interest. Fitzpatrick, 29 Ark. App. at 40, 776 S.W.2d at 837. In Fitzpatrick, this court held, “We have often stated that we know of no cases in which the superior position, ability, and opportunity of the chancellor to observe the parties carry as great a weight as those involving child custody.” Id. (citing Calhoun v. Calhoun, 3 Ark. App. 270, 625 S.W.2d 545 (1981)).
Appellant argues on appeal that the chancellor abused his discretion in determining that it was in the best interest of the minor child to be placed in the permanent custody of appellee because the chancellor’s decision was clearly against the preponderance of the evidence. For this claim, the appellant relies on three arguments. We affirm.
First, appellant argues the court erred when it ruled that the testimony by Nicki McDonald that Mr. Rector had sexually abused her was irrelevant. She argues that the testimony is a reflection on Mr. Rector’s morality and that morality must be considered in determining what is in the best interest of the child. We agree that morality is a factor to be considered in determining a child-custody case; however, we also agree with the chancellor that neither a proper fink had been made to connect the allegation to the case at hand nor had a proper investigation been made into the allegation.
Nicki McDonald testified that Mr. Rector sexually abused her when she was in the ninth or tenth grade. She testified that he would come into her bedroom and “he touched me and that was it.” However, she never talked to anyone about the incident. She stated that she confronted Mr. Rector and he did not touch her again. Appellee objected to the testimony based on relevance. The court then questioned Ms. McDonald and ruled,
I think this is an issue that needs to be resolved. It’s not totally collateral to this, but I think there needs to be some tie-in to something that happened over ten years ago and what is happening today. If he has exhibited these propensities of abuse toward other children or something, the male children, I need to know about that. We are dealing with a male child here. I am not putting down the allegations Mrs. McDonald is making here today, but I just don’t think that this is the platform for doing it.
The court obviously gave little weight to the testimony of Ms. McDonald about her sexual-abuse allegations against Mr. Rector because no investigation had been made into the allegation, because the alleged incidents had gone unreported to anyone by Ms. McDonald for ten years, and because the custody hearing concerned a twelve-year-old boy and not a high-school girl. No evidence was presented that Mr. Rector had ever sexually abused his son and he steadfastly denied that he had ever touched Ms. McDonald inappropriately. Where testimony conflicts, the issue of credibility is a matter in which this court defers to the chancellor. Fitzpatrick, supra.
Ark. R. Evid. 401 defines relevant evidence as evidence that has a tendency to make the existence of any fact more probable or less probable than it would be without the evidence. This court will not reverse a chancellor’s ruling on relevancy unless it finds an abuse of the trial court’s discretion. James v. James, 29 Ark. App. 226, 780 S.W.2d 346 (1989). In child-custody cases, the chancellor’s personal observation of the mother and father and their respective personalities is vital and of inestimable value. Fitzpatrick, supra.
For her second argument, appellant contends that the chancellor’s findings that the appellant’s use of prescription drugs was abusive is arbitrary and groundless. The appellant cites no authority for this argument but argues that this finding was not supported by substantial evidence.
The chancellor did not specifically find that appellant was abusing drugs, but he did express that he was “concerned about the number of prescription drugs that are passing through the hands of the defendant.” Evidence was introduced that showed appellant was getting prescriptions filled about every month. She testified that she was taking, or has taken in about a year, Valium, which she characterized as an antianxiety drug taken to help her sleep; Phentermine and Pondimine to help her lose weight; Darvocet, for chronic headaches; Polyhistine-D for sinus; Cephalexin, which is an antibiotic; and Paxil, as an antidepressant. She also testified that she had taken Fiorinal during the past year for pneumonia. Further, she stated that although she gets refills of Valium of about 100 every other month, she does not take all of them. Also, she testified that she receives refills of Darvocet in quantities of about forty every other month but does not take all of them either.
The chancellor found that she was taking some of these drugs for mood swings, and the chancellor held that Kevin needed stability. The chancellor stated, “I believe the child needs to know what to expect from his parents and I believe it needs to be stable and needs to be consistent in that response.” Based on the number of drugs appellant takes or has taken recently and the number or refills she receives, the chancellor did not abuse his discretion in considering appellant’s prescription drug use as a factor in determining what was in the best interest for Kevin.
For her third argument, the appellant contends that the chancellor should not have considered drug-test results of the appellee because the tests were not admitted into evidence. The appellant states that the chancellor further erred by discounting appellee’s illegal drug use.
During the hearing, Mr. Rector testified that he had submitted to drug tests monthly since the temporary hearing so that he “could convince the judge that I am serious when I say I am not going to be using it.” However, when appellee’s counsel sought to have the documents containing the results of the drug tests marked as exhibits, appellant’s counsel objected to their introduction on grounds that they were “inadmissible.” The court did not rule on the objection but the documents containing the results of the drug tests were not introduced into evidence. The judge later commented that he was impressed by the drug tests.
The dissenting opinion suggests that the drug-test results were not introduced because of failure on the part of appellee to produce them, and that such failure gives rise to a presumption that the evidence, if produced, would be unfavorable to appellant. Exactly the opposite is true. Appellee had the test results present in court and was preparing to have them marked as exhibits as a prerequisite to their introduction when appellant objected because the person who conducted the tests was not present to authenticate them. Appellant obviously knew what the test results would show and did not want the court to consider them. It would be unreasonable to infer that the drug-test results were unfavorable to appellee where it was appellee who revealed that he had taken the tests, where he took the tests to try to persuade the judge that he was no longer using marijuana, and where appellee was attempting to offer the test results into evidence until they were objected to by the appellant.
The judge did not comment that he was impressed with the results of the drug tests. Instead, he said that he was impressed with the tests, obviously meaning that he was impressed that appellee had gone to the trouble and expense of having the tests performed. It was not impermissible for the court to consider such evidence. Clearly it bears upon the credibility of appellee’s testimony that he had stopped using marijuana.
The court did not rely on the drug tests in determining custody and what would be in the best interest of the child. In the court’s order, the chancellor stated that he might take Mr. Rector “up on these drug tests. If, in fact, it comes to . . . my attention that there is a — I guess if I’m convinced that there may be a violation of this trust that I have in you on the consumption of drugs, I reserve the right to order you to take a drug test.”
Further, the trial court did not discount appellee’s illegal drug usage. To the contrary, the judge found that he could monitor and had options to deal with any allegations of illegal drug use by Mr. Rector, but it would be more difficult to monitor or take action on the allegation of abuse of prescription drugs. The court held,
I certainly do not encourage the use of illegal drugs. I don’t encourage the abuse of prescription drugs. I am concerned about the number of prescription drugs that are passing through the hands of the Defendant. I am concerned about the security of those drugs just as much as I am concerned about the security of illegal drugs. There is a way the illegal drugs can be modified [sic] by this Court, because I can order drug tests, I can order protective services, I can order examination of the home, and with illegal drugs, I can remove the child from that environment. Where it is [an] abuse of legal drugs, I don’t have those options.
We do not find that the chancellor’s decision to place Kevin in the custody of his father was clearly against the preponderance of the evidence, and we affirm.
Affirmed.
Jennings, Stroud, Neal, and Crabtree, JJ., agree.
Rogers, J., dissents. | [
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Wendell L. Griffen, Judge.
An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one’s home, workplace, and leisure activities. Many people spend more time each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. . . . IP]eople are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks. Nor are they shorn of those interests when they step from the sidewalks into their automobiles.
—-Justice Byron R. White, writing for the Supreme Court of the United States in Delaware v. Prouse; 440 U.S. 648, 662 (1979).
Mark Travis has appealed a trial judge’s decision denying his motion to suppress a .22 caliber rifle upon which appellant's conditional guilty plea to the charge of being a felon in possession of a firearm was based. We hold that the decision by the trial judge must be reversed because the police officer who stopped appellant’s vehicle lacked a reasonable basis for doing so pursuant to the Fourth Amendment to the Constitution of the United States, court decisions pertaining to unreasonable seizures, and Rules 2.1, 3.1, and 4.1 of the Arkansas Rules of Criminal Procedure.
Appellant was charged by information with being a felon in possession of a firearm in violation of Ark. Code Ann. § 5-73-103 (Repl. 1993) after Deputy Glen Smith of the Lawrence County Sheriffs Department stopped the pickup truck in which he was a passenger and noticed a .22 caliber rifle barrel sticking out from behind the seat of the pickup. Deputy Smith testified at the hearing on appellant’s motion to suppress that he noticed the pickup truck traveling northbound on U.S. Highway 67 at Minturn (Lawrence County), Arkansas, and observed that the Texas license plate on the truck did not have an expiration decal. The truck was driven by appellant’s nephew, James E. Travis, whose driver’s license had been suspended, but the truck belonged to appellant. Under Texas motor-vehicle laws, the registration and inspection sticker is displayed on the windshield of the vehicle, not the license plate. Appellant’s vehicle did have the required sticker on the windshield. Alleging that Deputy Smith lacked reasonable suspicion to stop the vehicle, appellant moved to suppress the rifle. After the trial court denied the motion, appellant entered a conditional plea of guilty pursuant to Ark. R. Crim. P. 24.3(b), and this appeal followed.
The Fourth Amendment to the Constitution of the United States was ratified in 1791 by a new nation with a vivid memory about the evils of unbridled and random governmental intrusion into the private affairs of its people. That concern included sensitivity about the interference into individual freedom and the intrusion into privacy posed when law enforcement officers stop a vehicle and detain its occupants. Although the Supreme Court of the United States held in Terry v. Ohio, 392 U.S. 1 (1968), that police may stop persons without probable cause under limited circumstances, it has also held that stopping a vehicle and detaining its occupants constitutes a seizure within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648 (1979). In Prouse, the Court considered whether police officers acting under a police regulation permitting officers to stop vehicles at random to check driver’s licenses and registrations in Delaware violated the Fourth Amendment’s guarantee against unreasonable seizures. The Court concluded as follows:
[W]e hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment. This holding does not preclude the State of Delaware or other states from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers.
Prouse, 440 U.S. at 663 (emphasis added). Although the Court recognized the legitimate interest of government in promoting highway safety, it determined that the intrusion on Fourth Amendment rights to travel and be left alone posed by the unbridled discretion of the police officer during a random stop in the field outweighed that governmental interest. Id. The Court also reasoned that there are methods of promoting the governmental interest in highway safety that are less intrusive to the rights protected by the Fourth Amendment. Id.
In Brown v. Texas, 443 U.S. 47 (1979), the Supreme Court again discussed the seizures caused when police officers stop motorists and reached the following conclusion:
Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. [Citations omitted.]
A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely by the unfettered discretion of officers in the field. [Citations omitted.] To this end the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.
Id. at 50-51 (emphasis added). Furthermore, the Supreme Court has recently reiterated that an automobile stop is subject to the constitutional imperative that it not be unreasonable under the circumstances, but that the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. Whren v. United States, 135 L.Ed.2d 89, 116 S.Ct. 1769 (1996).
In Hill v. State, 275 Ark. 71, 628 S.W.2d 285, cert. denied, 459 U.S. 882 (1982), the Arkansas Supreme Court upheld the constitutionality of an investigatory stop of the appellant’s vehicle that exhibited an Oklahoma license plate because the late model maroon Ford Thunderbird matched the description of a car driven by an armed man who had robbed a Montgomery County service station and a Game and Fish Commission officer, kidnapped the proprietor of the station along with the officer, shot and killed the station proprietor, and wounded the officer before driving away. The wounded officer gave the police a description of his assailant and the car he was driving before being rushed to a hospital. Law enforcement offices in the surrounding area began receiving radio dispatches from the National Crime Information Center (NCIC) regarding the crimes, and the Hot Springs Police Department had broadcast a description of the assailant and the late model Ford Thunderbird, maroon in color, with blue or black lettering on a white license plate. A Hot Springs police officer observed and stopped a vehicle matching that description traveling in Hot Springs, ultimately resulting in the arrest of the appellant who was convicted and sentenced for capital felony murder (death), kidnapping (50 years), and aggravated robbery (50 years) in connection with the offenses against the store proprietor, and for attempted capital murder (life), kidnapping (50 years), and aggravated robbery (50 years) in connection with the offenses against the Game and Fish Commission officer. The supreme court reasoned that the police had reasonable suspicion to make an investigatory stop of appellant’s car because it matched the description of the police broadcast, because it was unlikely that another vehicle with that description was in the Montgomery-Garland County area at that time, and because the crimes had only recently been committed in the small community of Pencil Bluff in neighboring Montgomery County. Id. at 80, 628 S.W.2d at 288.
In Cooper v. State, 297 Ark. 478, 763 S.W.2d 645 (1989), the Arkansas Supreme Court cited the Hill case in holding that the initial stop of appellant’s vehicle was valid based upon testimony at a hearing on the appellant’s motion to suppress evidence seized from his vehicle in connection with prosecutions for attempted capital murder, possession of methamphetamine with intent to deliver, possession of marijuana with intent to deliver, possession of drug paraphernalia, and felon in possession of a firearm. The appellant had been stopped by a Fort Smith police detective who noticed a 1969 Oldsmobile traveling in Fort Smith with what appeared to be out-of-state handwritten paper car tags. However, the officer could not determine the expiration date of the tags nor the state where they had been issued, and considered the presence of temporary tags suspicious given the age of the vehicle. When the officer pulled alongside the vehicle, its driver looked directly at him and soon made a sudden left-hand turn without giving a signal. The supreme court reasoned that the stop was valid under the Fourth Amendment because the paper tags, impossibility of verifying the state of their issuance or expiration date, age of the vehicle, and the “obviously evasive actions of the driver” gave the officer sufficient cause to stop the vehicle. Id. at 481, 763 S.W.2d at 646.
Arkansas Rule of Criminal Procedure 3.1 states:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.
(Emphasis added.) Ark. R. Crim. P. 2.1 defines “reasonable suspicion” 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. Reasonable suspicion entails a consideration of the total circumstances and the existence of particularized specific reasons for a belief that the person may be engaged in criminal activity. Stout v. State, 304 Ark. 610, 804 S.W.2d 686 (1991).
The facts in Hill and Cooper and the reasonable-suspicion standard prescribed by Rules 3.1 and 2.1 are dramatically different from the facts in this case. This case does not involve evidence that a crime had been committed, was about to be committed, or had been observed being committed involving the vehicle that Deputy Smith stopped. Deputy Smith admitted that his sole reason for stopping appellant’s vehicle was because he did not see an expiration tag on the Texas license plate. Under Texas motor-vehicle laws, the registration and inspection sticker is displayed on the windshield of the vehicle, not the license plate. Thus, the fact that Deputy Smith did not observe an expiration sticker did not constitute and could not have constituted a reasonable basis for suspecting that the vehicle or its occupants may have been engaged in criminal activity, not to mention crimes within the scope of Rule 3.1. Put differently, the totality of the circumstances does not support the conclusion that Deputy Smith had a reasonable suspicion justifying the stop.
The dissenting opinion tacitly concedes that appellant’s seizure cannot be sustained against Fourth Amendment challenge based upon the “reasonable suspicion” assertion advanced by the State. Both parties briefed the case based upon the reasonable-suspicion ground in Ark. R. Crim. P. 3.1. However, our dissenting colleagues argue that Deputy Smith’s stop was valid because he supposedly had reasonable cause to arrest appellant without a warrant. We respectfully disagree because Arkansas law clearly does not countenance that conclusion.
Arkansas Rule of Criminal Procedure 4.1(a) provides that a law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed a felony; a traffic offense involving (A) death or physical injury to a person, or (B) damage to property, or (C) driving a vehicle while under the influence of any intoxicating liquor or drug; or any violation of law in the officer’s presence. Aside from the fact that no one has ever claimed that Rule 4.1(a) applies to this case, there is no evidence demonstrating that Deputy Smith had “reasonable cause” to believe that any of the rule’s provisions applied to appellant when he stopped the pickup. Deputy Smith testified that he did not observe any unsafe or improper movement of appellant’s vehicle. There is neither proof nor allegation that the pickup was being operated in violation of Arkansas law. There is no proof that Deputy Smith had facts indicating how long appellant’s vehicle had been in Arkansas, not to mention information that the truck had displayed the Texas tags for longer than Arkansas permits an out-of-state licensed vehicle to be operated on our highways. Because the only proof is that Deputy Smith saw appellant’s vehicle being lawfully operated on a U.S. highway displaying permanent Texas license plates, the Arkansas statutes making the failure to display a Acense plate, operating an out-of-state licensed vehicle in Arkansas for more than ninety days, or displaying a fictitious license (the grounds suggested in the dissenting opinion) are patently inapposite.
It is certainly true that probable cause does not require the degree of proof sufficient to sustain a conviction; however, there must be more than a strong suspicion that an offense has been committed. Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993). Our supreme court has long held that probable cause to arrest without a warrant exists when the facts and circumstances within the collective knowledge of the officers, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested. Id. Reasonable cause for effecting a warrantless arrest under Rule 4.1(a) requires facts that suggest to the police that the law has been broken, and that the person to be arrested has broken it. Yet, the dissenting opinion would condone the warrantless arrest by Deputy Smith based upon undisputed proof that he had no information that justified even the vaguest suspicion that any law was being broken, let alone that appellant should have been arrested because he was riding in a pickup truck with Texas license plates on a U.S. highway in northeast Arkansas. If Deputy Smith lacked enough information to constitute grounds for reasonable suspicion for an investigatory stop, he manifestly lacked reasonable cause for a warrantless arrest. Idle curiosity or baseless speculation by law enforcement officials is antithetical to reasonable suspicion and reasonable cause under any analysis.
The relevant inquiry concerning probable cause is not whether appellant was eventually charged with violating Ark. Code Ann. § 27-14-704(a) (Repl. 1994) for operating a motor vehicle registered in another state more than ninety days. Instead, the proper question is whether Deputy Smith had specific and objective facts that justified a belief that appellant had engaged in conduct deserving arrest before he stopped the pickup. Deputy Smith was not acting under the authority of an arrest warrant, so the Fourth Amendment’s probable-cause requirement demanded that he possess specific and articulable information based upon objective factors which reasonably justified the belief that appellant was committing, had committed, or was attempting to commit a crime. To say that Deputy Smith lacked probable cause to arrest appellant is not to resort to hindsight. Rather, it is to acknowledge what Smith admitted; namely, that he lacked any information that justified arresting appellant when he stopped the pickup. It makes no difference that appellant was not charged for violating Ark. Code Ann. § 27-14-704(a). What is important and controlling is that Deputy Smith had no factual basis for arresting appellant on any charge when he stopped the pickup.
Unlike the facts in Hill v. California, 401 U.S. 797 (1971), this case does not involve a good-faith error by the police involving the arrest of the wrong person for what is plainly criminal conduct. The Supreme Court upheld the arrest in Hill because there were facts showing that the police had probable cause to arrest a person for possession of narcotics despite having misidentified the appellant as the suspect. At least the officers in that case had a reasonable basis for believing that somebody had committed a crime. Deputy Smith had no reason to believe that any crime had occurred, let alone that appellant or anybody else associated with the pickup truck had violated the law.
The Arkansas cases cited in the dissenting opinion do not support a finding of reasonable suspicion to stop, let alone reasonable cause to arrest, because they all obviously involved the failure of Arkansas drivers to display a proper license plate, and the arresting officers in every instance knew this before the stops. See State v. Storey, 272 Ark. 191, 613 S.W.2d 382 (1981) (motion to suppress erroneously granted; appellee’s truck lacked license plate); Williams v. State, 23 Ark. App. 121, 743 S.W.2d 402 (1988) (appellant’s car lacked a license plate); Wilburn v. State, 317 Ark. 73, 876 S.W.2d 555 (1994) (arresting officer determined by police radio check, before stopping appellant, that license was issued to another vehicle); Hazelwood v. State, 328 Ark. 602, 945 S.W.2d 364 (1997) (arresting officer determined that license plate was registered to a different vehicle before stopping appellant.)
Had this been a case where the evidence supporting either reasonable suspicion to make an investigatory stop or reasonable cause for a warrandess arrest had been conflicting on the issue of whether Deputy Smith possessed information suggesting that the law had somehow been violated, then the trial court’s decision could be affirmed based on the standard of review that requires that we review the record pertaining to appellant’s motion to suppress and affirm the trial court if the totality of the circumstances support a finding that the result reached was not clearly against the preponderance of the evidence. However, the “clearly erroneous” standard of review cannot be the reason for affirming the trial court where there is no evidence showing that the totality of the circumstances surrounding the stop or arrest supports a finding of either reasonable suspicion or reasonable cause. If anything, the “clearly erroneous” standard of review mandates reversal.
The dissenting opinion also cites a California Court of Appeals case, People v. Glick, 250 Cal. Rptr. 315 (Cal. App. 1988), involving a New Jersey vehicle that was stopped because the license plate displayed no current registration decals. New Jersey, like Texas, utilized reinspection stickers to be placed on the front windshield. The court in Glick held that the officer’s “mistaken” interpretation of a foreign law was not unreasonable. Id. at 319. The Glick opinion cited Delaware v. Prouse, supra, in which the United States Supreme Court upheld the granting of a motion to suppress evidence obtained after Prouse’s vehicle was stopped only to check his driver’s license and registration. Although the Prouse opinion stated that states have a vital safety interest in ensuring that vehicle licensing, registration, and inspection requirements are being observed, the Supreme Court held that the discretionary stopping of vehicles to ascertain compliance with registration requirements violated the Fourth Amendment, stating:
When there is not probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations — or other articulable basis amounting to reasonable suspicion that the driver is unlicensed or his vehicle unregistered — we cannot conceive of any legitimate basis upon which a patrolman could decide that stopping a particular driver for a spot check would be more productive than stopping any other driver. This kind of standardless and unconstrained discretion is the evil the court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent. (Citations omitted.)
Id. at 661 (emphasis added). In view of the Supreme Court’s plain statement, we are unable to reconcile the Glick holding and result with the Supreme Court’s holding and result in Prouse.
At most, the fact that Deputy Smith did not see an expiration sticker on the license plate justified some other and less intrusive method of investigation than seizing the vehicle and its occupants and interfering with their Fourth Amendment freedom to be left alone. And it is self-evident that less intrusive means of ascertaining whether the vehicle was properly registered were available to Deputy Smith. Automobile vehicle-registration information is available to police agencies through a national motor-vehicle-registration information system that can be accessed by computer. Deputy Smith could have radioed for that information without interfering with appellant’s Fourth Amendment rights. He could have radioed his headquarters and learned that Texas does not require display of the registration-expiration certificate on the license plate of pickup trucks registered in that state. Deputy Smith did not observe the vehicle being operated unsafely or in violation of any laws, and he testified that he noticed nothing suspicious about its occupants before he stopped it. Nobody has ever deemed that to be suggestive of conduct outside the Fourth Amendment guarantee against unreasonable seizure, not to mention a basis for being arrested for committing a crime.
Arkansas Res in the heardand of the United States, a land of forty-eight contiguous sovereign state governments joined together by a fascinating complex of highways. Hence, the result advanced by the State would mean that vacationers from Canada and Mexico, business travelers from Louisiana, college students on school break from Idaho, and people relocating their households and families from one state to another would be at the constant mercy of the ignorance or whim of every law enforcement officer who does not know what the registration requirements are for automobiles from their respective states. Of course, even children riding the Arkansas roadways know that automobile license plates vary from state to state. If we were to adopt the State’s position, every police officer could stop any vehicle at any time and anywhere the officer sees the vehicle along the roads, streets, and highways of Arkansas even if there is no rational basis for suspecting that the law is being broken. The Fourth Amendment guarantee against unreasonable seizures protects all persons, including motorists, from such baseless interference with their right to be left alone.
These and similar concerns underlie the reason for the Fourth Amendment and the analysis that the United States Supreme Court articulated in Brown v. Texas, supra, of weighing the gravity of the public concern in highway safety served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. The record contains no evidence that this balancing analysis was performed by the trial court. Instead, the State urges us to uphold a vehicular stop prompted by ignorance on the part of a law enforcement officer regarding the proper location for a vehicle-registration decal. The record does not show how this result is consistent with the Fourth Amendment’s guarantee that motorists traveling the open highways will be free from unreasonable seizure. It also fails to show how the unbridled and random discretion of a police officer in the field in this context outweighs the protection from unreasonable seizure that the Fourth Amendment guarantees every motorist. Furthermore, the State does not explain why it is necessary for us to uphold this unbridled discretion by police officers to make random stops of motorists who travel the highways of Arkansas in similar situations when less intrusive methods of ascertaining whether a vehicle is properly registered exist that are equally effective in addressing the officers’ concern for highway safety, pose no unreasonable threat to the legitimate privacy interests of motorists, and expose the officers to no risk of danger.
Deputy Smith’s candid admission that appellant’s vehicle was not operating unsafely and that he observed nothing suspicious about its occupants proves that the Brown balancing process should have been resolved in appellant’s favor had the trial court employed it. Moreover, that explanation clearly shows the unsoundness of justifying the stop as an arrest under Ark. R. Crim. P. 4.1(a)(iii). Whatever else probable cause for a warrantless arrest has been understood to mean, no one has ever persuaded an Arkansas court that probable cause to make an arrest is established without proof that the law has been broken.
Law enforcement officials can fulfill their legitimate highway-safety responsibilities without abusing the freedom that we cherish in being left alone. The result below is not consistent with the Fourth Amendment, does not comport with case law dealing with the subject, violates Rules 2.1 and 3.1 of the Arkansas Rules of Criminal Procedure, and would render the reasonable-cause standard contained in Rule 4.1 for upholding warrantless arrests meaningless.
Reversed and remanded.
Robbins, C.J., Arty and Roaf, JJ., agree.
Pittman and Meads, JJ., dissent. | [
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John B. Robbins, Chief Judge.
This appeal arises out of the divorce of appellant Rickey Strong and his former wife, appel-lee Karen Morgan. As part of the divorce proceedings, Strong and Morgan agreed that the Stone County Chancery Court would conduct a judicial sale of a four-acre parcel of real estate they owned. Strong submitted the winning bid for this land at the judicial sale, and the chancery court entered an order of confirmation of the court commissioner’s report of the sale. Subsequently, Morgan filed a motion with the chancery court in which she requested that it set aside the judicial sale of the four-acre parcel to Strong. The chancery court granted Morgan’s request and set the sale aside. On appeal, Strong asserts that the chancery court erred in granting Morgan’s request to set aside the judicial sale of the four-acre parcel. We agree. Because the chancery court did not set aside its order of confirmation of the commissioner’s report of the judicial sale within ninety days of the date of its entry, the court lacked jurisdiction to act.
In January of 1994 the parties’ marriage ended in divorce. They agreed to sell a four-acre parcel of real property upon which they had lived while they were married and listed the four-acre parcel with a local realtor. However, they also agreed that if the property were not sold by the realtor within ninety days, it would be sold by the Stone County Chancery Court, with the proceeds to be divided equally between them.
On March 10, 1995, Strong submitted the winning bid for the land at a judicial sale held by the chancery court’s commissioner, who was the chancery court clerk. Previously, pursuant to Ark. Code Ann. § 16-66-408(a) (1987), the chancery court’s commissioner advertised the judicial sale of the land in a local newspaper on February 22 and March 1, 1995. Both of the newspaper advertisements and the commissioner’s notice of sale incorrectly noted that the four-acre parcel was located in Stone County. Actually, the parcel was located in Searcy County. The record does not show that anyone brought this clerical error to the attention of the commissioner prior to the sale.
On March 14, 1995, four days after Strong purchased the four-acre parcel at issue, the Stone County Chancery Court entered an order confirming the commissioner’s sale of the land to him. Subsequently, beginning on April 14, 1995, Morgan filed several motions requesting that the chancery court set aside the judicial sale of the land to Strong. In these motions Morgan asserted that the judicial sale was invalid for two reasons: (1) on the morning of the judicial sale she was told, incorrectly as it turned out, by the Searcy County Sheriff that the judicial sale had been canceled; and (2) the commissioner’s notice of sale and the news paper advertisements thereof incorrectly listed the four-acre parcel as being located in Stone County.
The Stone County Chancery Court initially dismissed Morgan’s motion to set aside the judicial sale of the four-acre parcel to Strong. However, it reversed this decision and entered an order setting the judicial sale aside on July 29, 1996. It is this July 29, 1996, order, setting aside the March 14, 1995, order of confirmation of the judicial sale, that is the object of Strong’s appeal to this Court. We conclude that the chancery court erred in setting aside its March 14, 1995, order of confirmation of the judicial sale of the four-acre parcel to appellant Strong because the court lacked jurisdiction to do so more than ninety days after it had been entered.
Pursuant to Arkansas Rule of Civil Procedure 60(b), a trial court may set aside an order to correct any error or mistake or to prevent the miscarriage of justice. However, pursuant to Rule 60(b), if a trial court decides to set a previous order aside, it must do so within ninety days of the order’s having been filed with the clerk. See Steward v. Wurtz, 327 Ark. 292, 296, 938 S.W.2d 837 (1997). It is pursuant to Rule 60(b) that a trial court may set aside an order to correct clerical mistakes and errors arising from oversight or omission. See United S. Assurance Co. v. Beard, 320 Ark. 115, 118, 894 S.W.2d 948, 950 (1995). However, a trial court loses authority to modify an order pursuant to Rule 60(b) after the expiration of ninety days from the date of entry of the order. See Griggs v. Cook, 315 Ark. 74, 77-78, 864 S.W.2d 832, 834 (1993); Lamb v. JFM, Inc., 311 Ark. 89, 92, 842 S.W.2d 10, 11 (1992); City of Little Rock v. Ragan, 297 Ark. 525, 763 S.W.2d 87 (1989); and Cigna Ins. Co. v. Brisson, 294 Ark. 504, 744 S.W.2d 716, supp. op. on reh’g, 294 Ark. 506-A, 506-C, 746 S.W.2d 558 (1988). Because the chancery court did not set aside the order of confirmation of the judicial sale at issue until more than ninety days after entry of this order, the chancery court lacked jurisdiction to do so. See Griggs, 315 Ark. at 77-78, 864 S.W.2d at 834; see also State Nat’l Bank v. Neel, 53 Ark. 110, 113-14, 13 S.W. 700, 701 (1890) (order of confirmation of a judicial sale is a final order and cannot be set aside in a subsequent term of court).
Therefore, for the reasons set forth above, we reverse the Stone County Chancery Court’s order setting aside the judicial sale to appellant Strong of the four-acre parcel of land at issue. We remand for further proceedings consistent with this opinion.
Reversed and remanded.
Bird and Stroud, JJ., agree.
An order granting a motion to set aside a chancery court order is a final order, and therefore appealable, if the order granting the motion to set aside is entered more than ninety days after entry of the order that was set aside. See Lamb v. JFM, Inc., 311 Ark. 89, 92, 842 S.W.2d 10, 11 (1992). Here, the order setting the judicial sale aside was entered on July 29, 1996, which is more than ninety days after entry of the order of confirmation of the judicial sale, which was on March 14, 1995.
Pursuant to Ark. R. Civ. P. 60(c)(3), a trial court may modify or vacate a judgment at any time “for misprisions of the clerk.” Rule 60(c)(3) could not authorize the setting aside at any time of an order on the basis of the sort of “Stone/Searcy” County clerical error that occurred in this case because such errors fall within the ambit of Rule 60(b) and its ninety-day limitation. See Beard, 320 Ark. at 118. | [
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