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George K. Cracraft, Chief Judge.
Holley Enterprises appeals from an order of the Arkansas Workers’ Compensation Commission holding that it was solely liable for permanent total disability benefits payable to Fred Nicholls and that the benefits were not apportionable to the Second Injury Fund under the provisions of Ark. Stat. Ann. §81-1313 (i) (Supp. 198 5). We find no error and affirm.
The facts are not in dispute. Fred Nicholls suffered from a congenital defect known as dyslexia. It is difficult if not impossible for one inflicted with dyslexia to learn to read or write. This congenital condition made it impossible for Nicholls to work in any employment other than as an unskilled manual laborer. He entered the work force in that capacity and never possessed the capacity to perform any other type of work. He had worked as a laborer to the full satisfaction of all of his employers and there was no evidence that at anytime he was incapable of earning wages appropriate for that type of employment. While working in that employment and without diminished earning capacity he sustained a compensable injury for which he was given an anatomical disability rating of five percent to the body as a whole.
On undisputed evidence the administrative law judge found that after the injury Nicholls was no longer able to perform manual labor and, due to his learning deficiency, it was not possible for him to acquire new skills. He found that the claimant’s anatomical disability, when coupled with his learning deficiency, had rendered him permanently and totally disabled. The administrative law judge further ruled that, under the provisions of § 81-1313(i), the liability for benefits should be apportioned between the employer and the Second Injury Fund in accordance with that statute. On appeal, the Full Commission adopted the administrative law judge’s findings of fact, affirmed his finding of total disability, but, following our decisions in Osage Oil Co. v. Rogers, 15 Ark. App. 319,692 S.W.2d 786 (1985), and Second Injury Fund v. Coleman, 16 Ark. App. 188, 699 S.W.2d 401 (1985), reversed the ruling of the administrative law judge and declared that there could be no liability imposed on the Second Inj ury Fund under § 81 -1313 (i) and directed that the full benefits be paid by the appellant/employer. We agree and affirm.
The appellant argues that the Commission erred in holding that the congenital dyslexia was not “a previous disability or impairment” which gives rise to a claim against the Second Injury Fund under our statute. This argument was previously rejected by this court in Masonite Corporation v. Mitchell, 16 Ark. App. 209, 699 S.W.2d 409 (1985), (decided six days after the opinion of the Commission was handed down in this case). The Masonite case cannot be distinguished from the one at bar in any material respect. There the claimant suffered from congenital mental retardation which limited his job opportunities to those involving unskilled manual labor. The claimant sustained a traumatic amputation of three fingers on his right hand in a job-related accident for which he was given an anatomical rating of seventy-five percent disability to his right arm. The Commission found that, as a result of the claimant’s anatomical disability, coupled with his earning disabilities, he was rendered totally disabled, but that the disability was not subject to apportionment pursuant to § 81-1313(i). Following the decision in Rooney v. Travelers Ins. Co., 262 Ark. 695, 560 S.W.2d 797 (1978), and our recent opinion in Osage Oil Co., supra, we affirmed the ruling of the Commission.
In Rooney our court recognized that our compensation act defines disability as “incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury,” Ark. Stat. Ann. § 81-1302(e) (Repl. 1976), and that mental retardation existing at the time a worker initially enters the job market cannot constitute disability in the sense our act uses that word because compensation entitlement is based on previous earning capacity and measured by loss of that capacity. In Masonite Corporation v. Mitchell, supra, it was argued that Rooney was no longer applicable because of the wording of our present Second Injury Fund statute which uses the phrase “previous disability or impairment." Applying our decision in Osage Oil Co., supra, we held that the inclusion of the word “impairment” was intended only to make it clear that the first impairment did not have to be one which would be compensable under the act, but included non-work-related ones. We further held that the test was and is whether the prior impairment was effectively producing disability, in the sense our act defines that word, before the accident. We concluded in Masonite that although it was proper to consider the congenital impairment as a work loss factor under the doctrine announced in Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961), it was an inappropriate consideration on the question of apportionment because the dyslexia was not independently producing disability before the accident.
Here, as in Rooney and Masonite, the worker entered the labor market as an unskilled manual laborer. He was pursuing that employment without diminished earning capacity at the time of his injury. There was no evidence that the claimant could not have continued in the same or similar employment at the same wage he had always earned had it not been for his injury. We find no error in the Commission’s conclusion that on these facts there was no Second Injury Fund liability and affirm its conclusion.
Affirmed.
Glaze and Cooper, JJ., agree. | [
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Lawson Cloninger, Judge.
Appellant raises four points for reversal in this appeal from his conviction on a charge of second degree murder under Ark. Stat. Ann. § 41-1503 (Repl. 1977). We find error in one of the points and accordingly reverse and remand this matter to the lower court for a new trial.
Testimony at trial indicated that appellant, Roger Dale Sims, was returning to his home in Conway on February 22,1985, after making a business trip to North Little Rock. He stopped at Kelly’s Bar on the Morgan Interchange to invite the owner, Edna Hicks, to a barbeque. On entering the bar, appellant was approached by Charlie Parker, who began verbally abusing him, calling him a “punk” and threatening to beat him up.
Appellant testified that he had feared Parker since 1972 or 1973, and that Parker had made threats against his life since 1978 or 1979. He stated that he knew that Parker habitually carried a knife and was said to have carried a gun. Moreover, appellant recounted several instances of Parker’s violent behavior of which he was aware, including stabbing a man in the throat, striking two men on the head with heavy objects and rendering them unconscious and, in the case of one, in need of hospitalization, and kicking a felled opponent in the mouth and rubbing his face on a concrete surface.
According to appellant, he left the bar, headed for his pickup truck, and then realized he had forgotten to invite Hicks to the cookout. Hicks testified that appellant had, in fact, invited her when he first came in to the bar. Appellant returned to the bar and ordered a beer. Parker, who had gone outside at the same time, also reappeared. He once again approached appellant and renewed his vituperative attack.
At this point, it becomes unclear exactly what was said and what ensued. In appellant’s version, Parker said to him, “It’s pistola time, Dale,” and then thrust his hand in his pocket and turned away. Appellant said that he drew his own gun, which he wore continually, because he feared Parker was preparing to attack him with a knife. He claimed that Edna Hicks grabbed him and his gun fired. Hicks, as well as another witness, denied that she touched appellant, although yet another witness supported appellant’s account. In any event, a bullet struck Parker in the head, and he fell, mortally wounded. After a few moments, appellant left the bar. Parker died the next day.
The case was submitted to a jury on first and second degree murder and manslaughter charges. Appellant was convicted of the offense of second degree murder and was sentenced to fifteen years imprisonment. From that judgment, this appeal arises.
The point on which we reverse is appellant’s second, in which he argues that the trial court erred in allowing the State to put on evidence in rebuttal that could have been submitted in the case in chief. The rebuttal witness, Alan Washam, was named on appellant’s list of witnesses. The list was not made available to the State until the morning of the day of the trial. At the noon recess in the trial, the prosecutors interviewed some of the witnesses on the list, including Washam. When the trial resumed in the afternoon, the State concluded its case, calling two scientific witnesses and resting, “subject to rebuttal,” without calling Washam.
When appellant testified, he was asked on cross-examination if, after Parker had fallen to the floor, he had advanced toward him pointing his gun and saying, “Crawl like a dog.” Appellant stated that he had not. Defense counsel objected that evidence of such a statement was part of the res gestae and should have been presented as part of the State’s case in chief but was purposely withheld to set up rebuttal evidence under the guise of testing appellant’s credibility. An unfair advantage was thereby gained for the State, the defense contended, through varying the prescribed order of proof.
The trial court agreed that the evidence was available to the State before it rested, that it was indeed res gestae evidence, and that the State could have presented it in its case in chief. Nonetheless, the court held that it had discretion to admit such evidence in rebuttal and would do so under the circumstances. Later, the court allowed Washam to testify in rebuttal over defense objections, noting that the State had been unaware of the witness until noon. On the witness stand, Washam testified that appellant, after shooting Parker, had said something to the effect of “Crawl, you dog.”
Ark. Stat. Ann. § 43-2114 (Repl. 1977) sets forth the limitations upon the offering of rebuttal evidence: “The parties may then [after the State’s and the defendant’s evidence have been offered as prescribed at Ark. Stat. Ann. §§ 43-2112, 2113 (Repl. 1977)] respectively offer rebutting evidence only, unless the court for good reason, in furtherance of justice, permit them to offer evidence upon their original case.” The Arkansas Supreme Court has held that it is generally in the sound discretion of the trial court to allow rebuttal testimony which might have been properly introduced in the State’s case in chief. Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986); see also Kellensworth v. State, 275 Ark. 252, 631 S.W.2d 1 (1982). Genuine rebuttal evidence, however, is not simply a reiteration of evidence in chief, but consists of evidence offered in reply to new matters. Birchett, supra.
In the Birchett case, the Arkansas Supreme Court ruled that a witness for the prosecution should not have been given rebuttal status by the trial court when she could have been presented during the State’s case in chief. Moreover, her testimony impeached responses drawn from the defendant during his cross-examination by questions which seemed to the court “clearly designed to manufacture a rebuttal situation for a presentation of . . . evidence that was not genuinely in response to anything presented by appellant in his defense.” Id.
As in the present case, the State contended in Birchett that it did not know about the rebuttal witness until the day of the trial. The Arkansas Supreme Court dismissed the matter as one of “no great importance,” noting that, perhaps a month before the trial, the police had taken a statement from the witness, the knowledge of which was imputed to the prosecutor’s office. While the same circumstances do not obtain in the instant case, the fact that the prosecutors actually interviewed Washam before they had finished calling their witnesses is of considerable significance.
Appellee argues that, within its “proper context,” the trial court’s action in admitting the rebuttal witness’s testimony was not an abuse of discretion. According to appellee’s brief, Washam was unknown until the day of the trial, the State did not know what his testimony would be “until most of their witnesses had testified,” and the prosecution “did not intentionally lay a trap for appellant.” Appellee concedes that the State had not rested until after it interviewed Washam and appears to acknowledge that a trap, albeit an unintentional trap, had been laid for appellant in his cross-examination. It requires little imagination to gauge the impact upon a jury of the State’s question on cross-examination and the subsequent introduction of the rebuttal witness’s testimony.
The Supreme Court noted, in dicta, in Birchett, supra, that if the State had found itself unexpectedly with a witness for its case in chief after it had rested, the trial court could have granted a motion to reopen the State’s case for the presentation of new evidence. Such circumstances were not present in either that case or this. Instead, in the instant case, the State had the opportunity, before it had completed its case in chief, to incorporate Washam’s testimony into its trial strategy. The result of the State’s tactics was to gain an unfair advantage over appellant and to prejudice his cause. The trial court in this instance abused its discretion in permitting the introduction of evidence that belonged properly in the State’s case in chief.
The other issues raised by appellant are rendered moot by our decision. We address them, however, in the event that they should arise again.
In his first point for reversal, appellant argues that the court below erred in not allowing testimony by a police officer that he had searched Charlie Parker’s vehicle in April, 1983, in connection with a DWI arrest and had found a revolver, which Parker later claimed at the sheriff’s office as his own. He relies on Britt v. State, 7 Ark. App. 156, 645 S.W.2d 699 (1983), and attempts to distinguish Halfacre v. State, 277 Ark. 168, 639 S.W.2d 734 (1982), cases which stand for the proposition that evidence of specific bad acts of a victim directed at the defendant or within his knowledge before the commission of the crime is admissible as probative of what the defendant reasonably believed.
Here, however, as the trial court ruled, appellant did not know about the discovery of the gun in Parker’s vehicle almost two years before the shooting. Evidence of bad acts not within a defendant’s knowledge cannot reasonably be construed as probative of the defendant’s belief. The trial court thus acted properly in refusing to admit the officer’s testimony.
Appellant contends in his third point that the trial judge erred in refusing to give his requested instruction on accident. The requested instruction, however, relates to the issue of whether appellant had the requisite culpable mental state for the crimes charged. That mental state was defined in each of the charges: purposefully or premeditated and deliberated for murder in the first degree, Ark. Stat. Ann. § 41-1502(1) (Repl. 1977); knowingly for murder in the second degree, Ark. Stat. Ann. § 41-1503(1) (Repl. 1977); and recklessly for manslaughter, Ark. Stat. Ann. § 41-1504(1) (Repl. 1977). The trial court also gave the jury an instruction on self-defense.
Appellant’s requested instruction embodied his theory of the case:
If the defendant was justified in pulling his weapon, and having done so, the gun discharged accidentally, then the jury should find him not guilty.
In other words, according to appellant’s premise, if a shooting is an accident then it is a defense to any charge. The concept of accident, however, in the sense of an unforeseen contingency (see the Oxford English Dictionary), naturally pertains to one’s mental state. Appellant’s argument that the shooting was accidental could have been, and was, addressed to each charge and its appropriately defined mental state. All requisite mental states were before the jury in proper instructions. Where the subject matter is fully covered by instructions already given, it is not error for the trial court to refuse a certain requested instruction. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979).
Finally, appellant urges that the trial court erred in refusing to give an instruction on negligent homicide. Ark. Stat. Ann. § 41-1505(1) (Repl. 1977) provides: “A person commits negligent homicide if he negligently causes the death of another person.” Appellant was found guilty of second degree murder. It is not error to refuse to give an instruction on one lesser included offense if other lesser offenses were covered by the instructions given and the jury returned a verdict for the greater offense. Sherron v. State, 285 Ark. 8, 684 S.W.2d 247 (1985).
Reversed and remanded.
Mayfield and Corbin, JJ., agree. | [
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Tom Glaze, Judge.
Appellant appeals from a conviction for driving while intoxicated. He was fined $2500 and sentenced to three years in the Department of Correction. For reversal, he contends that the trial court erred by (1) overruling his motion for a directed verdict based on the State’s failure to prove certification of the arresting officer, (2) admitting into evidence a breathalyzer log, and (3) admitting into evidence a docket entry of a prior DWI conviction. We affirm.
Appellant was arrested on February 12,1985, after Officer McFadden of the Springdale Police Department observed appellant’s car straddling the eastbound lanes of Highway 68. Appellant drove his car into a parking lot, and McFadden followed. As appellant got out of his car, he staggered and fell against it. McFadden detected a strong odor of alcohol, and appellant held onto the car to maintain his balance. Appellant’s eyes were “bloodshot” and his speech was slurred. McFadden arrested appellant and took him to the Springdale Police Department. Appellant was given a breathalyzer test which showed his blood alcohol content was .22.
Appellant first argues the State failed to prove McFadden was a certified police officer. Appellant contends that, because the State failed to introduce McFadden’s certificate reflecting McFadden had completed statutorily-required police training, the State’s evidence based on his testimony should be disallowed. We disagree. Appellant failed to object to McFad den’s testimony or question his status upon cross-examination. Instead, appellant first raised the issue in his motion for directed verdict at the close of the State’s case. This case is distinguishable from Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1985), wherein the appellant, prior to trial, moved to dismiss the charges because the arrest was made by an unauthorized auxiliary officer. Because appellant failed to raise the issue in a timely and proper manner before the trial court, we cannot consider it on appeal. Holt v. State, 15 Ark. App. 269, 692 S.W.2d 265 (1985).
Appellant next argues that the trial court erred by admitting into evidence a breathalyzer log showing all tests performed on the machine from February 8-12, 1985. The log reflects test results of other people and appellant’s result is located at the bottom. Immediately above appellant’s entry is the daily check on the machine. Under Rule 403 of the Uniform Rules of Evidence, appellant argues that the introduction of the entire log was unfair, prejudicial, confusing, and misleading to the jury because appellant’s blood alcohol content was the highest one recorded on it.
The trial judge, in overruling appellant’s objection, stated that he believed the log was admissible to show that the machine had been calibrated and to show appellant’s test result. He offered, however, to instruct the jury to disregard the other results, or to admit the log with the other results excluded. Appellant stated that he objected to the admission of the log in any form, and that the judge’s instruction would not correct the problems with the document.
Determining whether the probative value of the evidence is outweighed by its prejudicial impact is within the sound discretion of the trial judge, and we will not reverse his decision absent a showing of an abuse of that discretion. Harper v. State, 17 Ark. App. 237, 707 S.W.2d 332 (1986). Here, the log was clearly admissible for the purpose of showing calibration of the machine and appellant’s test result. The judge, properly we believe, offered to admonish the jury to disregard the other test results or delete them, but appellant rejected this offer. It is well settled that a proper admonition by the trial judge to the jury cures prejudice. Tiggs v. State, 16 Ark. App. 241, 700 S.W.2d 65 (1985). On these facts, we cannot say the judge abused his discretion by admitting the log in its entirety.
Finally, appellant argues that the trial court erred by considering a prior DWI conviction in setting sentence. On August 25, 1983, appellant was issued a ticket for DWI. On the back of the ticket, a note reflects the appellant was found guilty, ordered to pay a fine and costs, and had his driver’s license suspended. Under a section labeled “Court’s Orders or Notes,” the municipal judge wrote “Rights Explained & waived, Sept. 29, 1983/O.G.L.” Appellant contends that this conviction should not have been used to enhance his sentence because the municipal judge did not specifically state that the right to counsel had been knowingly and intelligently waived. We believe the waiver has been sufficiently demonstrated.
It is well established that if the record is silent as to representation or waiver, the conviction cannot be used as evidence that the offense charged is the fourth DWI offense, and thus a felony under the statute. Burgett v. Texas, 389 U.S. 109 (1967); Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985). Here, however, the record is not silent. The municipal judge, in his own handwriting, noted that appellant’s rights had been explained and waived. We cannot accept appellant’s argument that such a notation was afoul of the rule in Burgett merely because the judge inadvertently failed to include the words “right to counsel” when indicating the appellant’s rights had been explained and waived. We therefore hold that the trial court properly considered the prior conviction in setting sentence.
Affirmed.
Cracraft, C.J., and Cooper, J., agree. | [
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Per Curiam.
In an opinion delivered on October 16, 1985, this court affirmed the decision of the Workers’ Compensation Commission in the case of Rose v. Arkansas State Police, 16 Ark. App. 96, 697 S.W.2d 927 (1985). Subsequently, appellant petitioned for writ of certiorari to the United States Supreme Court. Thereupon, the United States Supreme Court reversed the judgment of the Arkansas Court of Appeals and remanded the case to this court for proceedings not inconsistent with the Court’s holdings. Rose v. Arkansas State Police, _ U.S _, 107 S. Ct. 334 (1986).
The cause of Rose v. Arkansas State Police is hereby remanded to the Arkansas Workers’ Compensation Commission for further proceedings not inconsistent with the decision of the United States Supreme Court.
Remanded. | [
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George K. Cracraft, Chief Judge.
Leona Baker, as administratrix of the estate of Edgar Baker, deceased, appeals from a decree of the Independence County Chancery Court quieting title to three tracts of land in the Arkansas Game and Fish Commission. We conclude that the chancellor erred in confirming title to two of the tracts and reverse that portion of the decree.
The facts pertinent to this appeal were stipulated. The lands in issue were described in the complaint as follows:
Tract No. 1: Southeast Quarter, Northeast Quarter of Section 29, Township 12 North, Range 7 West, 40 acres.
Tract No. 2: North One Half of the Northeast Quarter of Section 22, Township 12 North, Range 7 West, 88 acres.
Tract No. 3: Southeast Quarter of the Northeast Quarter of Section 27, Township 12 North, Range 7 West, 40 acres.
All three tracts were sold and certified to the state for nonpayment of taxes in the late 1930s and, on January 16, 1943, were transferred by the state to the Arkansas Game and Fish Commission pursuant to the provisions of § 17 of Act 378 of the General Assembly of 1939. That section authorized the state land commissioner to transfer lands to the Game and Fish Commission for use as game and fish refuge areas, hunting and fishing areas, or other related purposes, on finding that the lands were not suitable for agricultural or industrial uses. It provided that such a transfer would be a bar to any grant by the state of the lands so transferred, “[provided that any lands so acquired cannot be sold by the Game and Fish Commission, but same shall revert to the State if such lands are not developed within two years after acquisition, or at any time such lands are no longer desired by the Commission.”
Although there was evidence that after 1960 the Game and Fish Commission stocked the area with game and utilized it as a game refuge and later as a public hunting ground under its control and supervision, it was stipulated that the land was wild and unimproved and that “nothing had been done with the land within two years from the date the Game and Fish Commission took title.” It was also stipulated that, for unexplained reasons, taxes were levied and assessed against Tract 1 in 1960, and that the appellant’s decedent thereafter paid all taxes due on the lands for twenty-three years in unbroken sequence. It was stipulated that taxes were also levied and assessed against Tract 2 in the year 1965 and that the appellant’s decedent paid all taxes subsequently assessed against it for eighteen years in unbroken sequence. Taxes were levied against Tract 3 in 1976. It was stipulated that the appellant’s decedent paid taxes on that tract for eight years thereafter in unbroken sequence.
The record also shows that in 1976 the appellant’s title to all three tracts was confirmed by a decree of the Independence County Chancery Court, but it was not shown that the Game and Fish Commission was made a party to that action or served with process as required by the confirmation statutes.
The chancellor found that the activities conducted on the land by the Commission were sufficient to prevent a reversion to the state under the proviso to Ark. Stat. Ann. § 47-128 (Repl. 1977); that the lands were not subject to taxation; and that the appellant’s decedent therefore acquired no title by virtue of the tax payments. He further found that the 1976 confirmation decree was not binding on the Game and Fish Commission because it was the record title holder and not a party to that action. A decree was entered dismissing the appellant’s complaint and quieting title in the appellee. We conclude that the chancellor erred in not quieting appellant’s title to Tracts 1 and 2.
The Game and Fish Commission cross-complained and sought affirmative relief. The immunity of the state and its arms is therefore not in issue. Parker v. Moore, 222 Ark. 811, 262 S.W.2d 891 (1953). As it was stipulated that the appellants paid taxes levied and assessed against Tracts 1 and 2 in unbroken sequence for periods of twenty-three and eighteen years, respectively, the principles announced in Deniston v. Langsford, 211 Ark. 780, 202 S.W.2d 760 (1947); Koonce v. Woods, 211 Ark. 440, 201 S.W.2d 748 (1947); and Townsend v. Bonner, 205 Ark. 172, 169 S.W.2d 125 (1943), are controlling, and it was error to deny the appellant’s petition for relief.
Our courts have long recognized the so-called “doctrine of the lost grant.” In Carter v. Stewart, 149 Ark. 189, 231 S.W. 887 (1921), that doctrine was stated as follows:
Under its sovereign power, a State imposes the burden upon all its citizens to pay taxes on the property owned by them for the purpose of supporting the government. It is the duty of the officers of the State to place the land in the State on the tax books for that purpose as soon as the State has parted with its title to them. Hence where the State has for a long time demanded and collected taxes on property and the property owner has acquiesced therein by paying the taxes, there arises a presumption that there was a legal liability to pay the taxes, and this furnishes a strong circumstance from which a court may infer a grant from the State. Of course, from the very nature of the thing the person or persons paying the taxes must be in the uninterrupted and continued possession of the land in order to warrant the court in finding a grant from the State. In such cases the possession of the adverse claimants could have had a legal inception, and the doctrine of presumption of a grant from the State under such circumstances is recognized in many cases.
Id. at 195, 231 S.W. at 889. The doctrine was stated in United States v. Chaves, 159 U.S. 452 (1895), as follows:
[B]y the weight of authority, as well as preponderance of opinion, it is the general rule of American law that a grant will be presumed upon proof of an adverse, exclusive, and uninterrupted possession of twenty years, and that such rule will be applied as a presumptio juris et de jure, whenever, by possibility, a right may be acquired in any manner known to the law.
Id. at 464.
Ark. Stat. Ann. § 37-102 (Repl. 1962) provides that one who pays taxes on unenclosed and unimproved lands for more than seven years under color of title is presumed to have been in possession of the property from the date of the first payment. Ark. Stat. Ann. § 37-103 (Repl. 1962) provides that one who pays taxes on unenclosed and unimproved lands for more than fifteen years is presumed to have had color of title at the time the first payment was made.
In Townsend v. Bonner, supra, it was held that the presumption of a grant or redemption from a tax forfeiture arises in favor of one paying taxes for many years on wild and unoccupied lands. It was there held that our tax payment statutes referred to above supply the requirement of possession emphasized in Carter v. Stewart, supra.
In Koonce v. Woods, supra, the court again held that redemption in favor of one who had paid taxes for over seventeen years in unbroken sequence on unoccupied lands previously forfeited to the state would be presumed not as a matter of fact but as one of law. In so holding, the court pointed out that it was not disregarding the difference between the periods involved in earlier cases of sixty-six years, thirty-four years, and the seventeen years involved in Koonce, but that “[t]he period of time goes to the matter of good faith of a two-fold character: faithful conduct by the State’s officers on the one hand, and good faith on the part of the taxpayer.” Id. at 447, 201 S.W.2d at 752. It concluded that the difference in time could have no effect on the legal principle. The court noted in Koonce that there is no statute establishing a period directly applicable to this principle, but considered by analogy Ark. Stat. Ann. § 37-103 (Repl. 1962), which provides that one who pays taxes on wild and unimproved lands for fifteen years has color of title as a presumption of law and, when read in conjunction with Ark. Stat. Ann. § 37-102 (Repl. 1962), gives rise to a presumption of actual possession during that period as a matter of law.
In Deniston v. Langsford, supra, the court discussed the decision in Koonce and concluded as follows:
The opinion as a whole, we think, clearly reflects what the Court had in mind — that the presumption under discussion would never attach unless tax payments of the character in question had been made for a full fifteen-year period.
Deniston, 211 Ark. at 782, 220 S.W.2d at 761. In Miller v. Kansas City Southern Railway Co., 216 Ark. 304, 225 S.W.2d 18 (1949), the court again stated:
But, where the State is concerned, or where the sovereign undertakes to profit because of the negative nature of the records, there is another rule. It is that after payment of taxes in good faith for not less than fifteen years the presumption of a grant may be one of law, as distinguished from one of fact.
Id. at 306, 225 S.W.2d at 19 (emphasis added).
Here, it was stipulated that the lands were wild and unoccupied and that the appellant had paid taxes on Tracts 1 and 2 for more than fifteen years in unbroken sequence. Under the doctrine announced in Townsend, Koonce, and Langsford, there arose a presumption of law that prior to the first payment of taxes some person with a redeemable interest had redeemed the property and it had become subject to taxation, free from claims of the state.
Under the rule we would apply, the presumption can only arise if it was possible for the state to grant or permit a redemption from the forfeiture. The statute provided that the Game and Fish Commission could not sell the land, but did provide for a reversion to the state if the lands were not developed during the first two years after the commission received its title. It was therefore possible for the title to revert to the state and it must be presumed that it did. A person with a redeemable interest in the land could have then redeemed it and it will also be presumed that this occurred. We conclude, therefore, that the chancellor erred in denying appellant’s petition for confirmation of her title to Tracts 1 and 2.
Since payment of taxes on Tract 3 was only for a period of eight years, these presumptions would not arise as to it. Deniston v. Langsford, supra. Since the Game and Fish Commission was not made a party to, or served with process in, the 1976 confirmation action, that decree adds no strength to appellant’s title.
The decree is affirmed as to Tract 3, but reversed as to Tracts 1 and 2. The cause is remanded for entry of a decree not inconsistent with this opinion.
Corbin and Mayfield, JJ., agree.
This section, with minor changes not material to our issue, now appears as Ark. Stat. Ann. § 47-128 (Repl. 1977). | [
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Donald L. Corbin, Judge.
Appellant, Bi-State Energy, Inc., appeals from an order of the Washington County Circuit Court registering appellee’s foreign judgment. We find merit to appellant’s argument that the trial court erred in determining appellant was afforded due process by service of process upon the Texas Secretary of State and reverse.
The record reflects that appellee, Tidewater Compression, Inc., a Texas corporation, obtained a default judgment against appellant on February 9, 1984, in the District Court of Harris County, Texas, in the amount of $10,525.28 plus interest, attorney’s fees in the sum of $2,630 and court costs of $117. Appellee filed an Application for Registration of Judgment in Arkansas pursuant to Ark. Stat. Ann. § 29-801 et seq. (Repl. 1979). Appellant, an Arkansas corporation, defended on the basis that service of notice of the Texas complaint was defective.
Appellee had filed suit against appellant in Texas on a lease agreement and sent the summons to a West Fork, Arkansas, address, which appeared on the lease and which appellee contended was the address where it had sent its invoices. The summons was returned stamped “moved, left no forwarding address.” Appellee then served the summons upon the Texas Secretary of State pursuant to the Texas “Long-Arm Statute,” Tex. Rev. Civ. Stat. Ann. art. 2031b (Vernon 1964). The Texas Secretary of State mailed the summons to the West Fork, Arkansas, address and the summons was again returned marked “moved, left no address.” Without any further notice to appellant, appellee obtained a default judgment. Appellant subsequently received notice of the default judgment from the Harris County Circuit Clerk’s office. The clerk’s office sent the notice to appellant in care of its agent for service of process at its Prairie Grove, Arkansas, address, which was listed in appellant’s articles of incorporation.
It is well settled that statutes providing for service of process upon nonresidents must be strictly construed, reasonable notice to the defendant in a lawsuit being essential to due process of law. Brace v. Concours Auto Market, 261 Ark. 556, 549 S.W.2d 802 (1977), citing Kerr v. Greenstein, 213 Ark. 447, 212 S.W.2d 1 (1948). In Texas, there must be strict compliance with statutes dealing with service on foreign corporations. Texaco, Inc. v. McEwen, 356 S.W.2d 809 (Tex. Civ. App. 1962). A record showing of jurisdiction upon substituted service must meet two major requirements: (1) The pleadings must allege facts which, if true, would make the defendant responsible to answer, or contain allegations making the defendant amenable to process by the use of the long-arm statute; and (2) there must be proof in the record that the defendant was, in fact, served in the manner required by statute. Whitney v. L & L Realty Corp., 500 S.W.2d 94 (Tex. 1973). The defendant’s actual knowledge of the suit, absent proper service, does not put him in court. Scucchi v. Woodruff, 503 S.W.2d 356 (Tex. Civ. App. 1973).
Service of process upon foreign corporations is governed in Texas by Tex. Rev. Civ. Stat. Ann. art. 2031 b and sections 3 and 5 provide as follows:
Sec. 3. Any foreign corporation, association, joint stock company, partnership, or non-resident natural person that engages in business in this State, irrespective of any Statute or law respecting designation or maintenance of resident agents, and does not maintain a place of regular business in this State or a designated agent upon whom service may be made upon causes of action arising out of such business done in this State, the act or acts of engaging in such business within this State shall be deemed equivalent to an appointment by such foreign corporation, joint stock company, association, partnership, or nonresident natural person of the Secretary of State of Texas as agent upon whom service of process may be made in any action, suit or proceedings arising out of such business done in this State, wherein such corporation, joint stock company, association, partnership, or non-resident natural person is a party or is to be made a party.
Sec. 5. Whenever process against a foreign corporation, joint stock company, association, partnership, or nonresident natural person is made by delivering to the Secretary of State duplicate copies of such process, the Secretary of State shall require a statement of the name and address of the home or home office of the non-resident. Upon receipt of such process, the Secretary of State shall forthwith forward to the defendant a copy of the process by registered mail, return receipt requested.
In the case at bar appellee furnished the following name and address to the Texas Secretary of State: Bi-State Energy, Inc., P. O. Box 369, West Fork, Arkansas, 72774. As previously noted, the summons was returned to the Secretary of State marked “moved, left no address.” When the Texas court entered the default judgment against appellant there was no indication whatever that appellant had received the registered mail or had any reason at all to know that it had been sued in the Texas court. Therefore, it cannot be seriously argued that the record affirmatively showed, as required by Texas law, that the court had personal jurisdiction over appellant. The Texas long-arm statute was not strictly complied with and appellant was not subject to the personal jurisdiction of the Harris County District Court. Accordingly, the trial court erred in permitting the registration of appellee’s foreign judgment and this cause is reversed.
Reversed.
Cracraft, C.J., and Mayfield, J., agree. | [
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Lawson Cloninger, Judge.
Appellant, Cleveland Chemical Company of Arkansas, Inc., brought suit against the appellee, M. G. Keller, for $235,597.76, based on a guaranty signed by appellee to secure a corporate line of credit. The lower court dismissed the appellant’s complaint, finding that the appellee signed the guaranty in a corporate capacity and not individually. From that ruling appellant brings this appeal, arguing that the lower court erred in failing to find appellee individually liable on the guaranty. We agree and reverse.
Appellee, M. G. Keller, is the primary shareholder and president of Keller Chemical Company; the only other shareholder and officer of the corporation is appellee’s wife. Appellee purchased various chemical products from the appellant for resale, and on July 30,1974, appellee signed a guaranty in order for appellee’s corporation to receive a line of credit from appellant. The guaranty was executed as follows: “KELLER CHEM. CO., BY: s M. G. Keller”. It appears that the lower court incorrectly applied the law, and the order dismissing appellant’s claim should be reversed.
Arkansas Statutes Annotated Section 85-3-403 (2) (b) (Add. 1961) provides:
An authorized representative who signs his own name to an instrument, except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity. . . .
The Arkansas Supreme Court in Fanning v. Hembree Oil Co., 245 Ark. 825, 434 S.W.2d 822 (1968) held that a corporate secretary’s typing the name of the corporation above his signature on a note without anything to indicate his office or the capacity in which he signed was insufficient to avoid personal liability on the part of such officer. A similar holding was reached in United Fasteners, Inc. v. First State Bank of Crossett, 286 Ark. 202, 691 S.W.2d 126 (1985), where the Supreme Court held that a signature is only in a representative capacity if the name of the organization is preceded or followed by the name and office of an authorized individual. Here, as in United Fasteners, there is no evidence, other than the guarantor’s own statement, that he intended to sign in a representative capacity and that his failure to indicate “President” after his name “was probably an oversight.”
Additionally, the definition of a guaranty would indicate appellee signed in an individual capacity. A guaranty is a collateral undertaking by one person to answer for payment of a debt of another and the undertaking of the principal debtor is independent of the promise of the guarantor. First American National Bank v. Coffey-Clifton, Inc., 276 Ark. 250, 633 S.W.2d 704 (1982). If the appellee had signed in a corporate capacity, appellant would have had the guaranty of the corporation to pay its own debt for which it was already obligated; if such were the case, there would have been no need for the guaranty, nor would it have met the standard definition of a guaranty.
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Cooper and Corbin, JJ., agree. | [
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Lawson Cloninger, Judge.
This is an appeal of a decision by the Workers’ Compensation Commission. A hearing was held on September 16, 1985, to determine the compensability of the injuries of appellee, James E. Kaelin. Appellants, Whirlpool Corporation and Cigna Companies, failed to appear at the hearing and the only testimony was that given by appellee. Whirlpool is self-insured and has a service contract with Cigna Companies to adjust its claims. The administrative law judge found that appellee’s injuries were compensable. Appellants appealed to the full Commission alleging that appellant, Whirlpool, did not have adequate notice of the hearing and it requested the Commission to remand the case for additional evidence. The Commission, denying appellant’s request, found that Cigna was an agent of Whirlpool and that Cigna had received adequate notice. For their appeal, appellants argue that Whirlpool was entitled to receive notice and that the Commission erred in denying the request that the case be remanded for the taking of additional evidence. We agree with appellants’ arguments and reverse and remand.
Appellee filed a workers’ compensation claim on June 6, 1985, alleging that he had been injured in the course of his employment on September 14, 1983. The injury occurred at Whirlpool’s factory in Fort Smith, Arkansas. Subsequently, appellee moved to Little Rock, Arkansas, and requested that the hearing be held in Little Rock. The Commission did not direct that the hearing be held in Little Rock, but by administrative error the case was assigned to an administrative law judge in Little Rock.
On August 19,198 5, the notice of the hearing place and time was sent to appellee and Cigna. However, Cigna had closed its Little Rock Workers’ Compensation division and transferred all of the files to Dallas, Texas. The return receipt had been signed by an employee of Cigna, but it is not known what happened to the notice after that. A copy of the notice was not sent to Whirlpool.
At the September 16,1985, hearing, appellee’s injuries were found to be compensable. In October, 1985, Whirlpool filed a motion requesting that the Commission reopen the case and allow Whirlpool to present evidence that appellee had actually been injured when he fell from the roof of his home and not while on the job. The Commission denied the motion.
Appellant first argues that Ark. Stat. Ann. § 81-1323(b) (Repl. 1976), requires a finding that the employer is an interested party and that notice should have been served on the employer Whirlpool. That statute provides in pertinent part:
If a hearing on such a claim is ordered, the Commission shall give the claimant and other interested parties ten (10) days’ notice of such hearing served personally upon the claimant and other interested parties, or by registered mail. The hearing shall be held in the county where the accident occurred, if the same occurred in this state, unless otherwise agreed to between the parties, or otherwise directed by the Commission.
We do not agree with Whirlpool’s assertion that the statute requires notice to be served on the employer in all cases. However, in this case, we do find that notice was insufficient because the evidence will not support a finding that Cigna was an agent designated to receive notice and because the venue of the hearing was changed by error, not agreement.
The appellate court views the evidence in the light most favorable to the Commission’s decision and affirms if it is supported by substantial evidence. Franklin v. Arkansas Kraft, Inc., 12 Ark. App. 66, 670 S.W.2d 815 (1984). In order to reverse a finding by the Commission, the appellate court must be convinced that fair minded persons, with the same facts before them, could not have arrived at the conclusion reached by the Commission. Franklin, supra.
In this case, the only evidence of an agency relationship is found in the Commission’s order. The Commission makes a statement that in oral arguments Cigna admitted to being an agent; however, that argument is not part of the record. Although there are some allusions to Cigna being a service company for Whirlpool, there is no evidence as to what Cigna’s duties were, whether they were in fact under contract to service claims on the date notice was served to Cigna and whether, as part of Cigna’s duties to Whirlpool, it was authorized to receive notice of hearings. When we consider this lack of evidence with the facts that the venue was changed by accident and that Cigna had moved its Workers’ Compensation division to Dallas, we do not think that fair minded persons could reach the Commission’s conclusion that Cigna was Whirlpool’s agent. See Dura Craft Boats, Inc. v. Daugherty, 247 Ark. 125, 444 S.W.2d 562 (1969).
Appellants argue next that the Commission erred when it refused to remand the case for the hearing of additional evidence. We agree that the Commission abused its discretion.
On appeal an exercise of the Commission’s discretion in determining whether and under what circumstances a decision appealed to them should be remanded for taking additional evidence will not be lightly disturbed. Hay good v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982). Where the new evidence is relevant, is not cumulative, would justify a different result, and the movant was diligent, the Commission’s discretion should be exercised and the motion to present new evidence should be granted. Mason v. Lauck, 232 Ark. 891, 340 S.W.2d 575 (1960); Hill v. White-Rodgers, 10 Ark. App. 402, 665 S.W.2d 292 (1984).
Applying these standards to the case before us, we find that appellants should be permitted to present their evidence that appellee’s injuries were caused when he fell from the roof of his home. The additional evidence is relevant to the cause of appellee’s injuries; there is very little evidence of this fall in the record and therefore it is not cumulative; it could possibly change the determination of compensability, and the appellants were diligent in presenting their motion to add the new evidence.
In light of all the errors made in this case, we are persuaded that the interests of justice will be best served when all relevant evidence is presented to the finder of fact. See Ark. Stat. Ann. § 81-1327(a) (Supp. 1985).
This case is reversed and remanded with directions to grant appellants’ motion.
Cooper, J., agrees.
Glaze, J., concurs. | [
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Melvin Mayfield, Judge.
Appellants, Diana Jean Vanderkamp and Jan Tina Marie Vanderkamp, were found guilty by a jury of possession of marijuana with intent to deliver. The jury fixed Diana’s sentence at one year in the county jail and a $1000.00 fine. Jan Tina’s sentence was fixed at 30 days in the county jail and a $500.00 fine. The offenses were alleged to have occurred on January 8,1985, and were violations of Acts 306 and 417 of 1983. Although, the penalty provided for the violation of these acts would have required imprisonment in the Department of Correction, apparently, the trial judge thought the failure of the acts to expressly state that the offense of possession with intent to deliver was a felony meant that the offense had to be treated as a misdemeanor for punishment purposes. This case was tried on August 15,1985, and the trial court did not have the benefit of the decision of September 30, 1985, in Dollar v. State, 287 Ark. 61, 697 S.W.2d 868, holding that the offense involved was a felony even though not expressly so designated. Even so, the appellants bring this appeal from the judgments assessing the punishment fixed by the jury verdicts.
On appeal, it is contended that the trial court erred (1) in admitting into evidence certain items found as the result of a vehicle search made by the authority of a search warrant issued upon an insufficient affidavit, (2) in overruling the motion for directed verdict made by each appellant, and (3) in refusing to either grant the motion for severance made by each appellant or to exclude certain evidence that did not involve each of them. We find no error and affirm both convictions.
At a hearing on the motions to suppress, it was shown that the warrant to search the vehicle was issued upon the affidavit of Clarence A. Glenn, Jr., who was working with the county sheriffs office as an informant in a drug investigation. The affidavit states Glenn was present at a certain residence in Mena, Arkansas, on January 1 and January 7, 1985; that on the first date, he accompanied Steve Clemmons, a state policeman, to the residence at which Clemmons made a purchase of marijuana from the appellant Diana Vanderkamp; that between midnight of January 7 and 12:30 a.m. of January 8, he was present at the same residence when occupants of the house were intoxicated, apparently on marijuana, and at which time two trash bags filled with some substance were carried from a bedroom of the house to the garage of the house.
The second paragraph of the affidavit states that on January 8, Glenn received information from a confidential informant that the occupants of the house had two large bags of marijuana and were going to remove them before dark. The affidavit states that this “informant has regularly furnished information to the sheriffs office which has proved in other instances to be reliable.” It is also stated that late in the day of January 8, Glenn and Tim Shaw, a deputy sheriff, put the house “under surveillance” and later observed an automobile, registered to appellant Diana Vanderkamp, back into the garage and saw the garage door close. About 45 minutes later, the garage door opened and the same car, driven by Diana Vanderkamp, pulled out of the garage. It was stopped after being driven a short distance down the street, and permission to search the vehicle was denied. The affidavit concludes with the statement that, because of the facts stated, the affiant has ample reason to believe that the vehicle contains controlled substances.
Evidence was introduced to show that the above affidavit was sworn to.before a municipal judge who issued the search warrant. The judge also heard testimony which was recorded but the recording had been misplaced or lost and the judge testified he had been unable to find it.
Other evidence heard on the motion to suppress, disclosed that, when the car left the house, Deputy Sheriff Tim Shaw called another deputy sheriff, Jimmy Jacobs; that after Jacobs arrived at the place where Shaw and Glenn had stopped the car, Jacobs arrested the driver; and after she drove it to the police station, the car was impounded and Jacobs drove it to the prosecuting attorney’s residence where it was searched the following day after the search warrant had been obtained. The search revealed a large plastic bag containing marijuana in the luggage area of the hatchback vehicle.
It was also stipulated, for purposes of the suppression hearing, that appellant Diana Vanderkamp was the registered owner of the automobile and that appellant Jan Tina Vanderkamp was an occupant of the vehicle at the time it was stopped and Diana was arrested.
Appellants’ first point is based upon the contention that the search warrant was issued upon an insufficient affidavit. They cite A.R.Cr.P. Rule 13.1(b), which contains a provision that “If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained.” The appellants say that the affidavit here is defective because it failed to state when or how the “confidential informant” learned that the occupants of the house had marijuana they were going to move to another location and because it failed to state any basis, other than mere conclusions, from which the credibility of the informant could be evaluated.
Although we recognize that the affidavit referred to an unnamed informant whose reliability may have been supported by a conclusory statement, it also contained information obtained by personal observation of the affiant. In Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983), the Arkansas Supreme Court adopted the “totality of circumstances” test set out by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983). As explained by our decision in Wolf v. State, 10 Ark. App. 379, 381, 664 S.W.2d 882 (1984), under this test the magistrate issuing the warrant must make a practical, commonsense decision based on all the circumstances set forth in the affidavit. It is then the duty of the reviewing court to simply ensure that the magistrate had a substantial basis for concluding that probable cause existed to issue the warrant. However, conclusory statements in affidavits, which give no substantial basis for determining the existence of probable cause, will not be accepted.
In the instant case, the affiant stated that he had been at a house in Mena on January 1, 1985, with a state policeman, at which time Diana Vanderkamp sold the policeman some marijuana. The affidavit also stated that six days later the affiant was again in this same house and the occupants were intoxicated, apparently on marijuana, and that two trash bags of some substance were carried from a bedroom of the house to the garage.
The second paragraph of the affidavit states that the next day, January 8, 1985, the affiant received information from a confidential informant that the occupants of the house were going to remove two large bags of marijuana from the house before dark; that he therefore placed the house under surveillance; that late in the same day, he observed a car registered to and driven by Diana Vanderkamp, back into the garage of the house and about 45 minutes later drive away; and when officers stopped the car, permission to search it was refused.
Probable cause for a search warrant does not require an affiant to assert facts that establish conclusively or beyond a reasonable doubt that a violation of the law exists at the place to be searched. Flaherty & Whipple v. State, 255 Ark. 187, 500 S.W.2d 87 (1973), cert. denied, 415 U.S. 995 (1974).
Probable cause exists where knowledge of facts or circumstances is imparted to the examining court sufficient to persuade an ordinarily prudent person to actually believe in good faith, as opposed to mere suspicion, that the facts asserted in the affidavit are true. . . . The judicial determination by the examining court that probable cause exists for the issuance of a search warrant is entitled to considerable deference and weight by a reviewing court.
255 Ark. at 196.
Although the affidavit does allege that a confidential informant tipped the affiant that the marijuana was going to be removed from the house, and even assuming that the affiant’s statement about the informant’s reliability was conclusory, nevertheless, we think the affidavit met the “totality of circumstances” test set out in Illinois v. Gates, supra, and adopted by the Arkansas appellate courts. There is present in this case, as in Gates, strong corroboration of the future actions of third parties as predicted by the informant. Also present in this case, we think, was the “objective good faith reliance,” by the law enforcement officers, on the magistrate’s acceptance of the affidavit referred to in Herrington v. State, 287 Ark. 228, 230, 697 S.W.2d 899 (1985), in its discussion of the good faith exception to the exclusionary rule enunciated in United States v. Leon, 468 U.S. 897 (1984). See also Toland v. State, 285 Ark. 415, 688 S.W.2d 718 (1985) (applying the good faith exception of Leon). We find no error in the trial court’s denial of the motions to suppress.
At the conclusion of the evidence presented by the State in the trial of the charges against the appellants, they did not introduce any evidence but moved for directed verdicts. They contend in this appeal that the court erred in refusing to grant their motions. A motion for directed verdict is a challenge to the sufficiency of the evidence, Glick v. State, 275 Ark. 34, 627 S. W.2d 14(1982), and, on appeal, we view the motion in the light most favorable to the party the motion is directed against and affirm the jury’s conclusion if it is supported by substantial evidence, Shieldsv. State,2%\Ark. 420,664S.W.2d866 (1984). Substantial evidence is evidence of sufficient force and character that it will with reasonable and material certainty and precision compel a conclusion one way or another; it must force or induce the mind to pass beyond suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).
The first question on this point is whether there is substantial evidence to support the jury’s verdict finding each appellant guilty of possession of the marijuana in the vehicle with intent to deliver. The evidence shows that there was one large plastic bag found in the luggage area of the hatchback vehicle. In the large plastic bag were two paper sacks with several small “ziploc” plastic bags in each paper sack. One sack contained 16 “ziploc” bags, and the other one contained 14 of them. In addition, there were 16 “ziploc” bags loose in the large plastic bag. According to a drug chemist, employed by the Arkansas State Crime Laboratory, the 46 small bags contained a total of almost 36 ounces of marijuana. Under Ark. Stat. Ann. § 82-2617(d) (Supp. 1985), the possession of more than an ounce of marijuana creates a presumption of intent to deliver. The jury was instructed that the amount of marijuana possessed could be considered along with all the other facts and circumstances in determining the purpose or intent for which marijuana is possessed. This has been held to be a proper instruction. See Brenneman & King v. State, 264 Ark. 460, 471, 573 S.W.2d 47 (1978), cert. denied, 442 U.S. 931, (1979).
Appellants argue, however, that there is no substantial evidence to link them with possession of the marijuana. We think the argument with respect to Diana Vanderkamp is clearly without merit. We realize that she was charged and convicted of possessing marijuana on January 8, 1985, with intent to deliver, although her arrest on that day was apparently for activity occurring a few days prior to January 8. But, regardless, there is testimony from two witnesses, Steve Clemmons and Jody Spur-ling, who made an in-court identification of Diana as the person from whom they purchased marijuana in a house in Mena, Arkansas, within a week prior to January 8, 1985. Clarence Glenn testified that he was in this same house one night between the 4th and 8th of January, 1985, and that Diana and one or two other ladies, and one man, were in the house. He also said that while he was there, the man carried two bags from a bedroom of the house to the garage which was enclosed in the house. Glenn said he did not look into the bags but they had the same appearance of the large plastic bag found in the back of the car Diana later drove away from the house. And in that connection, both Glenn and Deputy Sheriff Tim Shaw testified that on January 8, 1985, they were watching this house when someone backed a car into the garage and when Diana drove the car out of the garage. Also, there was testimony at the trial that the car was stopped by Glenn and Shaw and later searched by Deputy Sheriff Jimmy Jacobs who found the plastic bag, containing the smaller bags of marijuana, in the luggage area of the car.
We think this testimony is clearly sufficient for the jury to find that Diana was in possession of the marijuana found in the car driven by her. A closer question exists with regard to Tina Vanderkamp. In Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976), the court laid down the following general rules:
Constructive possession of a controlled substance means knowledge of its presence and control over it. . . .Neither actual physical possession at the time of arrest nor physical presence when the offending substance is found is required. . . .
. . .The evidence is sufficient if it is shown, either by direct or circumstantial evidence, that the accused had the right to exercise control over the contraband substance. . . . When the evidence of possession is purely circumstantial, there must be some factor, in addition to joint occupancy of the place where narcotics are found, linking the accused with the narcotic in order to establish joint possession. (Citations of authority omitted.)
259 Ark. at 517-18.
In the above case, three people were living in the same apartment. Heroin was found on a shelf in a bedroom closet, and the appellant’s glove was found in the closet. In affirming the appellant’s conviction for possession with intent to deliver, the court said it was not necessary that he have exclusive possession of either the apartment or the bedroom closet where the heroin was found; however, when the evidence of possession is purely circumstantial, there must be some factor, in addition to joint occupancy of the place where narcotics are found, linking the accused with the narcotic in order to establish joint possession of the narcotic. The court added:
The finding of appellant’s glove in the closet might not have been sufficient to furnish this link, but when this factor is coupled with evidence that appellant used heroin from the stock kept on the premises and that sales were made there, and the remarks of appellant. . . after the search, there were sufficient circumstances . . .for the jury to draw the inference that appellant had joint possession of the substance ....
259 Ark. at 518.
As to Tina’s conviction, we think the instant case sufficiently meets the law and evidence criteria set out in the Cary case. On January 8,1985, she was a passenger in the car in which the marijuana was found. The marijuana was in the luggage area of a hatchback vehicle. There is testimony that this is an area of the car that is enclosed and that it is not locked unless the car doors are locked. From this evidence, the jury could reasonably find that this area was accessible from within the passenger compartment of the vehicle. Found in the large plastic bag in the luggage area, in addition to the 46 smaller bags of marijuana, was a gift-wrapped little box with a tag on it that read “Happy Holidays to Mike from Tina.” The automobile had just left the garage of a house where witnesses had purchased marijuana within a week prior to the day the vehicle was stopped by the law enforcement officers. A witness, Clarence Glenn, testified that while he was present in the house on a night within three days of the day the vehicle was stopped, he saw a man carry two plastic bags, similar in appearance to the one found in the vehicle, from a bedroom of the house into the garage. And a witness, Jody Spurling, testified that this was the house in which he and Steve Clemmons purchased marijuana a few days prior to January 8, 1985, and that it was Diana’s or Tina’s house, although he was not really too sure which one it belonged to. Even if the evidence of possession of the contraband substance is not as strong here as it was in the Cary case, we believe it is strong enough, when considered in the light most favorable to the State, for the jury to find that appellant Tina Vanderkamp had joint possession of the marijuana found in the car in which she was riding on January 8, 1985, and therefore to constitute substantial evidence to support the verdict against her.
The last point raised by the appellants is that the court erred in refusing to sever their trials. The argument made on this point is really on Tina’s behalf. Included in the argument is the contention that the court erred in allowing, in Tina’s trial, the introduction of the evidence concerning the sale of marijuana made by Diana.
The record clearly establishes that both the appellants were tried on the charge that they possessed marijuana on January 8,1985, with intent to deliver. The evidence concerning the sale of marijuana in the house in Mena, sometime within a week prior to January 8,1985, was admissible in the trial of each appellant on the charges of the offense alleged to have been committed on January 8, 1985. The questions of who possessed the marijuana found in the vehicle on January 8, and the purpose or intent with which it was possessed, were issues for the jury to decide. Rule 404(b) of the Arkansas Rules of Evidence, provides that evidence of other crimes may be admissible for purposes such as proof of motive, intent, preparation, plan or knowledge. See Harper v. State, 7 Ark. App. 28, 643 S.W.2d 585 (1982); see, e.g., Lincoln v. State, 12 Ark. App. 46, 670 S.W.2d 819 (1984). We find no error in allowing the introduction of evidence of the sale of marijuana in the house in Mena during the week preceding January 8, 1985.
Also, we find no error in the trial court’s refusal to grant the motion to sever the trials of the appellants. This is a matter within the sound discretion of the trial court. McDaniel & Gookin v. State, 278 Ark. 631, 648 S.W.2d 57 (1983). Not only do we find no abuse of discretion in failing to sever the trial, but since the same evidence about the activities in the house during the preceding week would have been admissible in the trial of each appellant, the court should have consolidated the trials. See Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983), cert. denied, 464 U.S.. 835 (1983).
Affirmed.
Cloninger and Corbin, JJ., agree. | [
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James R. Cooper, Judge.
The appellant was convicted on two counts of delivery of amphetamines by a Poinsett County Circuit Court jury and was sentenced to serve two concurrent ten-year terms in the Arkansas Department of Correction. From that decision, comes this appeal.
The appellant first argues that the trial court erred in denying the appellant the right to dismiss his attorney of record on the morning of trial and obtain other counsel. We find no error. A request to change counsel at such a late date would have necessitated the granting of a continuance; therefore, such a motion is treated as a motion for a continuance. Leggins v. State, 271 Ark. 616, 609 S.W.2d 76 (1980); Pickens v. State, 6 Ark. App. 58, 638 S.W.2d 682 (1982), aff'd, 279 Ark. 457, 652 S.W.2d 626 (1983). Determining whether a continuance should be granted is a matter in the discretion of the trial court, and the appellant has the burden of showing that the court abused that discretion. Berry v. State, 278 Ark. 578,647 S.W.2d 453 (1983); Phillips v. State, 17 Ark. App. 86, 703 S.W.2d 471 (1986). A defendant cannot be permitted to use a change of lawyers as a device to delay trial. Collins v. State, 276 Ark. 62, 632 S.W.2d 418 (1982). When making its decision whether to grant the continuance, the court must look at the particular circumstances of each case, considering the request for a change of counsel in the context of the public’s interest in the prompt dispensation of justice. Clay v. State, 290 Ark. 54, 716 S.W.2d 751 (1986); Legginsv.State, 271 Ark. 616,609 S.W.2d 76 (1980). In Thorne v. State, 269 Ark. 556, 601 S.W.2d 886 (1980), the Supreme Court set forth some of the factors to be considered:
[ W] hether there was adequate opportunity for the defendant to employ counsel; whether other continuances have been requested and granted; the length of the requested delay; whether the requested delay is for legitimate reasons; whether or not the motion for continuance was timely filed; whether or not the defendant contributed to the circumstances giving rise to the request for the continuance; whether of not the reason for the discharge of existing counsel was solely for the purpose of obtaining a continuance; whether the request is consistent with the fair, efficient and effective administration of justice; [and] whether denying the continuance resulted in identifiable prejudice to the defendant’s case of a material and substantial nature;. . . No one of these factors is a prerequisite to the granting of a continuance, but these and other factors are the legitimate subject of the court’s attention when a continuance is requested.
269 Ark. at 561.
Here, the appellant informed the court on the morning of trial that he wished to change attorneys. Upon inquiry by the court, he admitted that he had no funds of his own to hire a new attorney, but that his parents, who were over-the-road truckers and were currently out of town, had been talking of hiring him a new attorney. He admitted that he did not know for sure when his parents would be back in town. When asked by the court why he wanted to change attorneys, the appellant responded that his attorney had recommended within the last week that the appellant change his defense. The appellant did not say that his attorney was forcing him to change his defense or refusing to defend him if he did not do so. The court found that the appellant’s attorney was ready, willing, and able to defend him. The appellant here learned of the disagreement in trial tactics the week before the trial, but did not bring it to his attorney’s attention until the night before the trial. Under these circumstances, we cannot say the court erred in refusing to grant the continuance.
The appellant next contends that he was improperly sentenced under Ark. Stat. Ann. § 8 2-2617 (a) (1) (i) (Supp. 1985) and requests that we reduce his sentence to the minimum under the proper statute, Ark. Stat. Ann. § 82-2617(a)(1)(ii) (Supp. 1985) (having been sentenced to the minimum under the statute actually used). The State concedes that the appellant was sentenced under the wrong statute, but contends that the appellant cannot now raise the issue, as he did not object to the jury instructions setting forth the range of punishment. The State does request that, if we reach the issue, we reduce the appellant’s sentence to the five year minimum set forth in the statute instead of remanding it to the lower court. Because we agree with both parties that the sentencing was in error, and because both parties agree on what the sentence should have been, we reduce the appellant’s sentence to five years on each count, to be served concurrently. See Abbott v. State, 256 Ark. 558, 508 S.W.2d 733 (1974); Ark. Stat. Ann. § 43-2725.2 (Repl. 1977).
The appellant also contends that the trial court erred in admitting taped telephone conversations between him and a confidential informant. He contends that their introduction violated state law, specifically Ark. Stat. Ann. § 41-4501, et seq. (Supp. 1985). At trial, however, the appellant objected to the admission of the tapes on the ground that they violated federal law. It is settled law that the appellant cannot change the grounds for his objection on appeal. Vasquez v. State, 287 Ark. 468, 473-A, 702 S.W.2d 411 (1986) (supp. op. on denial of rehearing). Only the specific objections made at trial are available on appeal; all others are deemed waived. Biniores v. State, 16 Ark. App. 275, 701 S.W.2d 385 (1985). However, even if the appellant had properly preserved his objection below, we find no error in the admitting of the tapes, as they were made before the effective date of the statute. At that time, neither the consent of both parties nor a court order was required by law.
The appellant’s last argument is that the judge erred in failing to quash the jury panel because the jury from his trial was present for the trial of his codefendant, Bo Denton. The appellant fails to cite to us any convincing argument or authority on this point. We do not consider such points unless it is apparent without further research, which is not the case here, that they are well taken. Satterlee v. State, 289 Ark. 450, 711 S.W.2d 827 (1986); Reynolds v. State, 18 Ark. App. 193, 712 S.W.2d 329 (1986).
Affirmed as modified.
Cracraft, C.J., and Glaze, J. agree. | [
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Donald L. Corbin, Judge.
This appeal comes to us from the Jefferson County Chancery Court. Appellant, Mary Lois (Taylor) White, appeals the decision of the chancellor denying her petition for change of custody. We affirm.
Appellant petitioned the court to hold appellee, James E. Taylor, in contempt for failing to comply with appellant’s visitation rights and for a change of custody. Appellant alleged in her petition for change of custody that appellee had subjected the child to immoral and indecent behavior in that he had resided with a married woman in the presence of the child. Appellant also asserts on appeal that the only reason the court changed custody of the child from the mother to the father in a previous proceeding was because appellant failed to comply with the property settlement provisions in the divorce decree.
On August 1,1984, an order was filed in the Chancery Court of Jefferson County which held that the parties continued to have joint custody of the child; however, it changed primary custody of the child from appellant to appellee. Appellant filed a notice of appeal August 24, 1984, on the August 1, 1984, order changing custody to the father. However, on February 11, 1985, appellee filed a motion to dismiss the appeal for failure to file the record on appeal within 90 days, a violation of Arkansas Rules of Appellate Procedure Rule 5(a). On February 15, 1985, this motion was granted and the appeal was dismissed. Therefore, appellant has lost her right to appeal the August, 1984, decision changing custody.
Appellant’s petition for modification of custody decree and for order of contempt were properly made. The trial court made the following findings:
The Court finds that Mr. Taylor has violated the order concerning visitation. If either party has any problem in exercising any visitation or exchange they should contact the Court immediately, through their attorneys if possible, and the Sheriff will be requested to assist. Neither Mrs. Dew [appellant’s mother] nor Mrs. White have been very diligent in attempting to exercise visitation in the past but the Court wishes to assure both of them that the Court will assist in any way possible when and if any problems are brought to its attention.
Mary Lois Taylor White remains in flagrant and willful contempt of the orders of this Court pertaining to the division of property and has been since it was entered. The failure to pay the sums owing Plaintiff has been solely the fault of Mrs. White and she has had ample time, means, and opportunity to correct this situation. She has exasperated this Court in her refusal to comply with its orders (or to even bother to read the Court’s orders according to her testimony). Her present financial condition, even if her testimony is completely believed, which it is not, is not a sufficient excuse as she has had ample funds to pay during the past two years. She may purge herself yet of this contempt by paying to the Clerk the sum of $6,983.51 on or before November 20,1985. If payment has not been made in full by that time then the Sheriff of any County wherein Mrs. White may be located is ordered to incarcerate her promptly notifying the Court of such action and to hold her until further order of this Court or the receipt of $ 18,77 5.00, the total sum ordered previously. As a further condition to Mrs. White’s purging herself of this contempt, she shall within 180 days of this order, have established and made all contributions due the trust fund for her son.
This order was dated October 18,1985. Appellant raises the following points on appeal: (1) The trial judge erred in refusing to recuse from the case; (2) the court erred in denying appellant’s petition for change of custody; and (3) the court erred in denying appellant any reasonable means to purge herself of contempt of court.
Appellant alleges that it was error for the chancellor to refuse appellant’s motion for change of judge. Appellant’s mother testified at the hearing on the motion that appellee had bragged to her about knowing all the judges and that he could “put them in his hip pocket.” Another witness, James Merritt, testified that appellee’s girlfriend, Merritt’s wife, told him that appellee had worked for the judges, done favors for them, and that “it was time for a payback.”
In Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983), the Arkansas Supreme Court set out the following standard of review:
The fact that a judge may have, or develop during the trial, an opinion, or a bias or prejudice does not make the trial judge so biased and prejudiced as to require his disqualification in further proceedings. Walker v. State, 241 Ark. 300, 408 S.W.2d 905 (1966). Whether a judge has become biased to the point that he should disqualify himself is a matter to be confined to the conscience of the judge. Narisi v. Narisi, 229 Ark. 1059, 320 S.W.2d 757 (1959). The reason is that bias is a subjective matter peculiarly within the knowledge of the trial judge. We find no Arkansas case where a trial judge has stated that he was without prejudice and could hear a case and, without more, we reversed that decision. Thus, absent some objective demonstration of prejudice, it is a communication of bias which will cause us to reverse a judge’s decision on disqualification.
Id. at 331, 651 S.W.2d at 455. It appears that we cannot say that there was an objective demonstration of prejudice by the judge in the case at bar. We cannot hold that the judge should have recused merely because of allegations of prejudice by a concerned party. There must be an objective demonstration of prejudice by the judge and none was proven here.
It is well-settled that the paramount and controlling consideration in custody cases is the welfare of the child. Bond v. Rich, 256 Ark. 51, 505 S.W.2d 488 (1974). The decree fixing custody of the child is final on conditions then existing and should not be changed afterwards unless on conditions altered since the decree was rendered or on material facts existing at the time of the decree, but unknown to the court, and then only for the welfare of the child. Id. at 53, 505 S.W.2d at 489. The evidence appellant presented as to change of conditions was the following: Testimony that appellant had remarried and was a permanent resident of Alabama and testimony that a married woman had resided in appellee’s home for approximately four weeks while the child lived there also. Evidence indicated that the woman no longer lived there.
In cases involving child custody a heavier burden is cast upon the chancellor to utilize to the fullest extent all of his powers of perception in evaluating the witnesses, their testimony and the child’s best interest. This court has no such opportunity. We know of no case in which the superior position, ability, and opportunity of the chancellor to observe the parties carry as great weight as one involving minor children. Calhoun v. Calhoun, 3 Ark. App. 270, 625 S.W.2d 545 (1981). In custody matters, the chancellor’s finding of facts will not be overturned on appeal unless they are clearly erroneous. ARCP Rule 52; Calhoun v. Calhoun, 3 Ark. App. 270,625 S.W.2d 545 (1981). In the case at bar, the chancellor’s finding of no material change in circumstances substantial enough to justify change of custody is not clearly erroneous. Therefore, we find no merit in appellant’s second point for reversal.
As her third point for reversal appellant alleges that the court erred by denying appellant any reasonable means to purge herself of contempt. The record indicates that since October 19, 1983, appellant has been held in contempt for failure to comply with the October 7, 1983, order. On August 1, 1984, appellant was found in willful contempt. It appears to this court that the chancellor in this, case has made numerous attempts to allow appellant opportunities to purge herself of contempt.
The disobedience of any valid judgment, order, or decree of a court having jurisdiction to enter it is such an interference with the administration of justice as to constitute contempt. Henderson v. Dudley, 264 Ark. 697, 574 S.W.2d 658 (1978). Punishment for contempt is an inherent power of the court. Id. at 710, 574 S.W.2d at 666. On appeal from a finding of contempt this court will reverse only where the finding of the chancellor is against the preponderance of the evidence. C.R.T., Inc. v. Brown, 269 Ark. 114,602 S. W.2d 409 (1980). We find that the chancellor’s finding is not against the preponderance of the evidence.
For the reasons stated above we affirm the decision of the trial court.
Affirmed.
Cloninger, J., agrees
Mayfield, J., concurs. | [
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Tom Glaze, Judge.
In October 1985, appellee filed for divorce against appellant, alleging general indignities. While seven children had been born to the parties since 1966, the parties had not married until November 1978. Two of the children were born after the parties’ marriage, but appellant acknowledges all seven are his. Appellee admitted that she had married another man in Chicago in 1962 when she was fourteen years old and had never obtained a divorce from him. Neither party knew where appellee’s first husband could be located, and appellee testified that she had not seen him since 1974. Appellant admitted that he had known of appellee’s prior marriage and claimed he had tried on several occasions to help appellee dissolve that marriage. The chancery court found the parties never had a valid marriage, and therefore, it could not grant a divorce or settle their property rights. Nonetheless, the court found it had jurisdiction to determine paternity, to award custody of the parties’ children to appellee and to order child support in the amount of $450.00 to be paid by the appellant.
On appeal, appellant contends that the chancery court erred in retaining jurisdiction of this cause once he determined the parties were not legally married and no divorce could be granted. In support of his contentions, appellant urges the supreme court’s holding in Stain v. Stain, 286 Ark. 140, 689 S.W.2d 566 (1985), controls the facts here. We disagree.
In Stain, the parties were married in November 1981, and a divorce action was commenced in September 1982. One child had been born to the parties but over a year before their marriage. In her divorce complaint, Mrs. Stain alleged her husband was the father of this child and requested child support. The husband admitted paternity but challenged the chancery court’s decision that it had jurisdiction to decide the paternity issue or award child support. The supreme court agreed, relying on article 7, section 28, of the Arkansas Constitution, which provides in pertinent part that “[t]he county courts shall have exclusive original jurisdiction in all matters relating to . . . bastardy. . . .” Citing Higgs v. Higgs, 227 Ark. 572, 299S.W.2d837 (1957),and Rapp v. Kizer, Chancellor, 260 Ark. 656, 543 S.W.2d 458 (1976), the supreme court ruled that the Stain case involved a matter relating to bastardy and, accordingly, reversed the lower court’s decision. This case differs from Stain, however, because here the validity of the parties’ marriage itself is the ultimate question, not whether chancery court has jurisdiction over paternity. Obviously, if the parties’ marriage is valid, the chancery court clearly has jurisdiction of appellee’s divorce action. In this respect, we find the chancery judge here was clearly erroneous in determining the parties’ marriage was invalid, and we remand for further proceedings consistent with this opinion.
Under Ark. Stat. Ann. § 55-108 (Repl. 1971), a bigamous marriage is void from its inception, and no decree of any court is required to declare it so. Smiley v. Smiley, 247 Ark. 933, 448 S.W.2d 642 (1970); Goset v. Goset, 112 Ark. 47, 164 S.W. 759 (1914). However, it is a longstanding presumption of law that a marriage entered in due form is valid, and the burden of proving a marriage invalid is upon the party attacking its validity. It is presumed that, when a man and woman are married, and one has a living spouse, the former spouse has been divorced at the time of the marriage. Higgins v. Higgins, 266 Ark. 953, 588 S.W.2d 454 (1979); Lathan v. Lathan, 175 Ark. 1037, 1 S.W. 67 (1928); Cash v. Cash, 67 Ark. 278, 54 S.W. 744 (1899).
Further, there is the additional presumption that the former spouse was dead at the time of the second marriage. Goset v. Goset, 112 Ark. 47, 164 S.W. 759 (1914). The presumptions of divorce from or death of a previous spouse are so strong that they exist despite the fact that overcoming them involves proof of a negative, i.e., proof of no divorce and/or proof that the previous spouse is still living. Estes v. Merrill, 121 Ark. 361, 181 S.W. 136 (1915).
725 S.W.2d 1
Here, appellant failed in his burden of proving his marriage to appellee was invalid. The only testimony tending to rebut the presumption that appellee’s former spouse had been divorced was that of the parties’ testimony that appellee had not obtained a divorce. There was no evidence at all that appellee’s former spouse had not divorced appellee. The evidence was not sufficient to overcome the presumption of divorce. Neither did appellant produce any proof that appellee’s former spouse was alive, which leaves intact the presumption that he was dead.
We decide cases de novo on the record, and chancery cases will not be remanded for further proceedings when we can plainly determine from the record the rights and equities of the parties. Moore v. City of Blytheville, 1 Ark. App. 35, 612 S.W.2d 327 (1981). However, this court may in appropriate circumstances exercise its discretion to remand so that the pertinent facts, not fully developed, may be ascertained. Id.
In this divorce case, a temporary hearing and a contempt proceeding were the only proceedings held. Only the parties testified, and as we have said, appellant failed to show his and appellee’s marriage was invalid. Since the chancellor erroneously found that the parties had never been married and, consequently, that he did not have jurisdiction to entertain the divorce action, this cause is remanded for further proceedings on appellee’s complaint for divorce.
Reversed and remanded.
Cracraft, C.J., and Cooper, J., agree. | [
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Beth Gladden Coulson, Judge.
This appeal comes from the Arkansas Workers’ Compensation Commission. Appellant, Helen Wade, appeals the Commission’s decision rendered on October 12, 1987, finding that she is not entitled to workers’ compensation benefits for psychiatric treatments and disability that she claims were caused by a compensable injury she received when the store where she was working was robbed. We remand.
On October 12,1985, appellant was employed as a clerk in the Mr. C. Cavenaugh’s convenience store in Black Rock. During the early morning hours, two men robbed the store. One of the men punched appellant on the left side of the face, knocking her down and rendering her momentarily unconscious. After police interviewed her about the robbery, appellant finished her shift, but after she returned home appellant had a friend take her to a hospital emergency room. She was examined by a physician and also treated by a dentist. On October 13,1985, the dentist treated her for pain and inability to open her mouth because of injury from the blow to her face. On October 15, 1985, appellant was examined by the dentist, and on this occasion appellant also complained of reduced vision in her left eye. On October 21,1985, the dentist examined appellant again and released her to return to work.
Appellant worked from October 23, 1985, until November 10, 1985, when she was fired. There was testimony that appellant’s termination resulted from three cash shortages. However, the record contains testimony of a store bookkeeper who said that appellant was one of several employees who had cash shortages, and at least one of her shortages could be explained as resulting from an improper tallying procedure, not because any money was missing. On November 19,1985, appellant returned to the dentist and complained of pain in her jaw and reduced vision in her left eye. The dentist concluded that appellant should be examined by physicians.
Several physicians examined appellant for her vision problem, but none of the doctors could find any physical basis for it. Dr. Walter Jay, an opthamologist, found no organic abnormality affecting appellant’s vision and recommended psychological evaluation. A psychologist administered the Minnesota Multi-phasic Personality Inventory (MMPI). Appellant’s personality profile was normal. The MMPI profile did not indicate a conversion disorder related to physical injuries. Dr. Jay recommended that appellant obtain psychiatric treatment closer to her home, and she became a patient of Dr. Edward Price, a psychoanalyst at Jonesboro.
Appellees paid for appellant’s medical treatment until March 1986, including her initial evaluation by Dr. Price, but refused to pay for further treatment, controverting appellant’s claim for additional temporary total disability benefits and medical benefits. After two hearings, an administrative law judge denied appellant’s request for additional benefits. The Commission affirmed the law judge’s decision. The Commission found that appellant had failed to prove a causal connection between the compensable injury received during the robbery and the disability and additional benefits appellant claimed after her employment was terminated. Although the Commission found that appellant was upset by the robbery, it found that her emotional reaction did not rise to the level of a psychiatric problem or the level of disability within the meaning of Ark. Code Ann. § 11-9-102(5) (1987) [formerly Ark. Stat. Ann. § 81-1302(e) (Repl. 1976)].
Appellant’s five arguments for reversal may be condensed to the following three points: (1) that the Commission erred in not giving the claimant the benefit of the doubt of all factual determinations, (2) that the Commission’s findings were not based on substantial evidence, and (3) that any pre-existing injury did not disqualify appellant’s claim.
Appellant’s argument that the Commission erred by not giving her the benefit of the doubt lacks merit. Act 10 of 1986 states in part that the Commission must “weigh the evidence impartially and without giving the benefit of the doubt to any party” when determining whether a party has met the burden of proof on an issue. This court recently addressed that issue. See Marrable v. Southern LP Gas, Inc., 25 Ark. App. 1, 751 S.W.2d 15 (1988).
Appellant has two arguments that we find persuasive concerning the basis of the Commission’s decision. Appellant argues that the Commission should be reversed because its opinion states that it found “significant” that during the hearing before the law judge, appellant became upset and cried while testifying about being denied unemployment benefits and other related problems, but “not while describing the robbery.” The only way the Commission could make that determination would be to rely upon the statement in the law judge’s opinion or to rely upon statements in the transcript made by the court reporter and by the attorneys. In the first place, we do not believe those statements will support the Commission’s finding; certainly not the finding that appellant did not become upset and cry “while describing the robbery.” In the second place, the Commission’s finding about the claimant’s physical reactions during her testimony before the law judge is not a matter that the Commission can see or judge for itself. It is well settled that the Commission must weigh the credibility of the witnesses and that appellate courts are not at liberty to judge the witnesses’ credibility on review. Dena Construction Company v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1979). Despite the deference this court must grant to the Commission in determining witnesses’ credibility, we cannot allow the Commission to reach outside the record for facts that may or may not exist. Twenty-five years ago the Supreme Court of Arkansas held that “it is the duty of the Commission to make a finding according to a preponderance of the evidence, and not whether there is any substantial evidence to support the ruling of the Referee.” Moss v. El Dorado Drilling Company, 237 Ark. 80, 371 S.W.2d 528 (1963). This rule still applies. Dedmon v. Dillard Department Stores, Inc., 3 Ark. App. 108, 623 S.W.2d 207(1981).We hold that in the instant case the Commission was not .performing its duty, as set out in Moss, supra, by reaching a conclusion based on matters that it is not in a position to evaluate for itself.
Appellee correctly states that this court must view the evidence in the light most favorable to the findings of the Commission and that our standard of review is whether the Commission’s decision is supported by substantial evidence. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). Those standards must not totally insulate the Commission from judicial review and render this court’s function in these cases meaningless. We will reverse a decision of the Commission where convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission. Boyd v. General Industries, 22 Ark. App. 103, 733 S.W.2d 750 (1987). In the instant case, we cannot say that fair-minded persons would have reached the same conclusion about the “significant” factor of when appellant became upset while testifying and how that factor related to her credibility and to the cause of appellant’s emotional problems.
Appellant also contends that the Commission erroneously characterized the testimony of appellant’s psychiatrist, Dr. Price, concerning his opinion about the cause of appellant’s emotional problems. In support of its conclusion that appellant’s emotional problems were not causally linked to the robbery, the Commission stated:
The preponderance of the evidence in the record is that even if Wade is too traumatized to work and in need of psychotherapy, the emotional problems stem not from the robbery but from the firing and accusations regarding the alleged cash shortages and the denial of benefits by the Employment Security Division. Not only do these other matters figure much more prominently in Dr. Price’s reports and testimony, but we find it significant that Wade became distraught and began crying during the hearing before the Administrative Law Judge when questioned about the ESD problems but not while describing the robbery. . .
Although the Commission’s opinion is correct in stating the rule from Wilson & Company v. Christman, 244 Ark. 132, 424 S.W.2d 863 (1968) that a physician’s opinion is not conclusive or binding on the Commission, an administrative body like the Commission is not granted leeway to arbitrarily disregard a witness’s testimony. See Richards v. Daniels, 1 Ark. App. 331, 615 S.W.2d 399 (1981). Even when questioned by appellee’s attorney about the cause of appellant’s difficulties, Dr. Price testified that appellant’s legal problems since being fired were a “provocative factor” but not the cause of her emotional problems. Dr. Price stated several times that his medical opinion was that the robbery was the cause of appellant’s difficulties.
Appellant’s final point is that she should not be denied additional workers’ compensation benefits merely because of evidence that she had eye problems that pre-existed her compensable injury. Appellant correctly states the rule that when a preexisting injury is aggravated by a later compensable injury, compensation is in order. Henson v. Club Products, 22 Ark. App. 136, 736 S.W.2d 290 (1987). However, a claimant must prove that a compensable injury is the cause of any aggravation to a preexisting injury. Id.
For the reasons discussed, we remand for the Commission to make a new decision in keeping with this opinion.
Remanded.
Mayfield and Cooper, JJ., agree. | [
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Larry D. Vaught, Judge.
Appellant was convicted of rape and sentenced to fifteen years in the Arkansas Department of Correction. On appeal, he contends that the trial court erred in allowing the State to introduce the child victim’s statement about the incident through her mother, pursuant to the excited-utterance exception to the hearsay rule. Although we agree that the statement is inadmissible, we affirm because the error was harmless.
The State charged appellant with rape in violation of Ark. Code Ann. § 5-14-103 (Repl. 1997), alleging that on May 2, 1999, appellant engaged in sexual intercourse or deviate sexual activity with E.W, who was less than fourteen years old. A nonjury trial was held on May 8, 2000. The State called three witnesses at trial •— Darlene Richards, Dr. James Nesmith, and Detective Mike Shepard. The State called the victim to testify; however, she became upset and was excused before the court ruled on her competency.
Darlene Richards, E.W.’s mother, testified that E.W. was five years old at the time of the alleged incident. She stated that on May 2 or 3, 1999, she left her two children in appellant’s care while she went to do laundry. When she arrived home, she noticed E.W leaving her bedroom. At first, Richards thought nothing of it but then began to wonder why E.W was leaving her bedroom. She then asked appellant, her live-in boyfriend, about EW’s leaving her bedroom, and he said that he had been disciplining her. Richards testified that she thought E.W. was acting strange, so the following day she asked E.W whether anything was wrong or whether anybody “mess[ed]” with her.
Appellant’s counsel objected to Richards’s testimony on the basis of hearsay about what E.W said in response to her mother’s questioning. The trial court overruled the objection, stating that it was within the excited utterance exception. Richards stated that E.W. eventually told her that something happened, but that she was crying and did not say anything at first because she was so scared. Richards testified that when she asked E.W whether someone was “messing with her,” E.W responded affirmatively and gave Robert’s name. Richards recalled that E.W was looking down and crying, and kept repeating, “He did it.” Richards testified that E.W said that “he got his thing and put it in her.” Richards confronted appellant the same day. While he first denied doing anything, appellant admitted to “committing this incident” the second time Richards confronted him, as she threatened him with a knife. Richards then took E.W to the hospital and notified the police. Richards also testified that she had spanked EW the day before the alleged incident and that E W had a habit of lying like “every kid has a habit of lying.”
Dr. James Nesmith, a physician at Arkansas Children’s Hospital, testified that he examined E.W on May 3, 1999. Dr. Nesmith testified that he found bruises over the lower part of the her body. The bruises were on the buttocks, thighs, and groin area. In addition, Dr. Nesmith testified that there was a bruise on the right labia majora of the vaginal area, which could be consistent with sexual abuse. Dr. Nesmith stated that the bruises on the buttocks could be consistent with a child that had been spanked. On cross-examination, the doctor testified that he usually requests a history before performing the examination and did not recall receiving a history of anal penetration. Dr. Nesmith found no indication of rectal penetration.
The last witness called by the State was Mike Shepard, a juvenile sex-crimes detective in North Little Rock. Shepard stated that he first came into contact with appellant on May 18. Shepard read appellant his Miranda rights and went over them with him. Shepard took a taped statement from appellant, and appellant never asked him to stop and never requested counsel. Shepard testified that there was no indication that appellant’s statement was not completely voluntary. Shepard stated that appellant told him about the incident involving E.W Appellant explained that when he was watching E.W and her younger brother, the children began to fight. Appellant ordered them to stop fighting and to sit down, which they did for a short time. Appellant told Shepard that after the children began fighting again, he took E.W to the bedroom and told her to pull her pants down, and he stuck his penis in her buttocks. Appellant stated to Shepard that it did not happen very long because E.W’s mother returned home, so he pulled up E.W’s pants and sent her back in the living room. Shepard also testified that during his interview of appellant, appellant expressed a desire to get help. At trial, Shepard read from appellant’s statement wherein he said:
Then hitting her, even though he is young, he is one, so she — well then, I told her to get in the bed, bend over, and I pulled down her pants and panties down, and I inserted by [s/c] penis into her anus. I didn’t do it long enough. I don’t recall doing it long enough for semen to come out. Soon I heard the door open. I hurried up. I pulled up her clothes back up, her pajamas and panties back on her and hurried up, and put my penis back in my pants.
At the close of the evidence, appellant’s counsel moved for directed verdict on the grounds that the State failed to prove penetration and that the State failed to corroborate appellant’s confession. The trial court denied the motion for directed verdict and found appellant guilty of rape. Appellant was sentenced to fifteen years in the Arkansas Department of Correction. From that conviction, comes this appeal. Appellant contends that the trial court erred in allowing the victim’s mother to testify, pursuant to the excited-utterance exception to the rule against hearsay, about statements her child made to her about the alleged incident. Appellant argues that the State failed to establish that the statements met the criteria for admission under this exception.
A trial court’s ruling on matters pertaining to the admission of evidence is within the discretion of the trial court and will not be set aside absent abuse of discretion. Jameson v. State, 333 Ark. 128, 970 S.W.2d 785 (1998). Rule 803(2) of the Arkansas Rules of Evidence provides that excited utterances are excepted from the hearsay rule. An excited utterance is defined as a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” The supreme court recently addressed the excited-utterance exception:
In United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980), the federal court of appeals listed several factors to consider when determining if a statement falls under this exception: the lapse of time (which is relevant, but not dispositive), the age of the declar-ant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement. In addition, “[i]n order to find that 803(2) applies, it must appear that the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive rather than the product of reflection and deliberation.” Iron Shell, 633 F.2d at 85-86.
This court adopted these factors in Moore v. State, 317 Ark. 630, 882 S.W.2d 667 (1994), where we also said that, “[f]or the . . . exception to apply, there must be an event which excites the declarant. Also, the statements must be uttered during the period of excitement and must express the declarant’s reaction to the event.” Moore, 317 Ark. at 633. We added that it is within the trial court’s discretion to determine whether a statement was made under the stress of excitement or after the declarant has calmed down and had an opportunity to reflect. Id. at 634 (citing Marx v. State, 291 Ark. 325, 724 SW.2d 456 (1987)).
Fudge v. State, 341 Ark. 759, 768, 20 S.W.3d 315, 320 (2000), cert. denied, 121 S. Ct. 585 (2000). The mere fact that the declarant makes a statement in response to questioning is not determinative of whether they are the product of the event. See Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986). In addition to the above factors, the supreme court has followed the trend toward expansion of the time interval after an exciting event when the declarant is a child. See Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990). See also Johnson v. State, 326 Ark. 430, 934 S.W.2d 179 (1996), cert. denied, 520 U.S. 1242 (1997).
The statements in this case were made the day after the event, and after questioning by the mother. While these facts are indications that the child was no longer under the influence of the incident and must be considered in determining admissibility, they alone are not dispositive. The most significant element of an excited utterance is that it is a statement made “under the stress of excitement.” The evidence must reflect that the statement was spontaneous, excited, or impulsive as a direct product of the event itself. Based on the evidence in this case, we conclude that allowing this hearsay testimony as an excited utterance was an abuse of discretion because the facts do not establish that E.W’s statement was spontaneous, excited, or impulsive, as opposed to the product of reflection and deliberation.
Finding the statement inadmissible, however, does not conclude our analysis. An evidentiary error may be declared harmless if the error is slight, and the remaining evidence of a defendant’s guilt is overwhelming. Green v. State, 59 Ark. App. 1, 953 S.W.2d 60 (1997). This court has repeatedly held that prejudice is not presumed and no prejudice results where the evidence erroneously admitted was merely cumulative. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000). Appellant’s confession, if corroborated, would present overwhelming evidence of his guilt, rendering the inadmissible statement of E.W cumulative and harmless. However, appellant contends that in the absence of this hearsay testimony, there was not sufficient corroboration of appellant’s out-of-court confession to support his conviction. We disagree.
Arkansas Code Annotated section § 16-89-111(d) (1987) provides that a “confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed.” In Tinsely v. State, 338 Ark. 342, 345, 993 S.W.2d 898, 900 (1999), the supreme court stated:
This requirement for other proof, sometimes referred to as the corpus delicti rule, mandates only proof that the offense occurred and nothing more. Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). In other words, under the corpus delicti rule, the State must prove (1) the existence of an injury or harm constituting a crime and (2) that the injury or harm was caused by someone’s criminal activity. Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996). It is not necessary to establish any further connection between the crime and the particular defendant. Rucker v. State, 320 Ark. 643, 899 S.W.2d 447 (1995). Accordingly, we must determine whether, setting aside Appellant’s confession, the evidence demonstrates that the crime of rape was committed by someone.
Arkansas Code Annotated section 5-14-103 provides that a “person commits rape if he engages in sexual intercourse or deviate sexual activity with another person . . . [w]ho is less than fourteen (14) years of age. . . .” “Sexual intercourse” is defined as “penetration, however slight, of the labia majora by a penis.” Ark. Code Ann. § 5-14-101(8) (Repl. 1997). “Deviate sexual activity” is defined as “any act of sexual gratification involving: (A) The penetration, however slight, of the anus or mouth of one person by the penis of another person; or (B) The penetration, however slight, of the labia majora or anus of one person by any body member or foreign instrument manipulated by another person.” Ark. Code Ann. § 5-14-101(1).
Dr. Nesmith, the physician who examined E.W. the day after the incident, testified that he found bruises over the lower part of the body. The bruises were on the buttocks, thighs, and groin area. In addition, Dr. Nesmith testified that there was a bruise on the right labia majora of the vaginal area, which could be consistent with sexual abuse. As the State points out, penetration may be proven by circumstantial evidence. “ ‘Penetration can be shown by circumstantial evidence, and if that evidence gives rise to more than a mere suspicion, and the inference that might reasonably have been deduced from it would leave little room for doubt, that is sufficient.’ ” Tinsley v. State, 338 Ark. 342, 346, 993 S.W.2d 898, 900 (1999) (citations omitted). Dr. Nesmith testified that EW’s labia majora was bruised. Based on the facts of this case, we find that the medical evidence in this case was sufficient to corroborate the appellant’s confession.
Appellant’s corroborated and unchallenged confession, along with the medical evidence, is overwhelming evidence of his guilt. In this case, the appellant confessed to both the victim’s mother and to the police. The inadmissible statement of the victim is merely cumulative to the appellant’s confession. Based on the foregoing facts, we find the trial court’s admission of E.W’s statement is harmless error.
Affirmed.
GRIFFEN and ROAF, JJ., agree. | [
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Andree LAYTON Roaf, Judge.
The Arkansas Alcoholic Beverage Control Board (hereinafter “ABC”) and Pearcy Grocery, Inc., (hereinafter “Pearcy Grocery”) appeal from an order of the Garland County Circuit Court reversing the granting of a retail off-premises beer permit to Pearcy Grocery. On appeal, they argue that the trial court erred in finding that appellee Deborah Muncrief had standing to appeal ABC’s decision and in determining that ABC’s decision to grant the permit was not supported by substantial evidence. We reverse.
Pearcy Grocery applied to ABC for an off-premises beer permit for the convenience store that it operates on Airport Road in the community of Pearcy in Garland County. Objection to Pearcy Grocery’s permit request was received in the form of a petition bearing 379 signatures and three letters of opposition. The Alcoholic Beverage Control Division’s director denied Pearcy Grocery a permit, and it appealed to the ABC.
At a regularly scheduled monthly meeting of the ABC on April 15, 1998, Curtis Garner, the owner of Pearcy Grocery, described the store as a “market” in which a variety of items .were sold, including groceries, gas, feed, snacks, and deli sandwiches. He stated that it was staffed by him, his parents, and a “part timer,” and although the store operated 6:00 a.m. to 7:00 p.m. Monday through Friday, 7:00 a.m. to 7:00 p.m. on Saturday and 10:00 a.m. to 4:00 p.m. on Sunday, “someone named Garner” was always on duty in the store. Garner stated that he anticipated that beer sales would complement his current stock. Garner testified that the nearest beer oudet on Airport Road was Rovin Ramblers, which operated as an RV park and package beer store, some 2.4 miles west of his store. East of his store were five other outlets selling beer within ten miles, the closest of which was Miller’s Liquor Store. Garner asserted that he submitted a petition signed by more than 300 people who were in favor of his receiving a permit. He stated that his store was “kind of the hub” of the Pearcy community, and it would benefit the community if he had a beer permit.
Joe Goslee, Jr., testified that granting a beer permit to Pearcy Grocery would be a “welcomed addition to the community.” He stated that the population is moving west out to this area and that there are a lot of nice homes in the vicinity. Goslee opined that it would be safer if beer was sold in the store because the trip to get a six-pack would be shorter for the people who lived in more remote areas and would not be tempted to start drinking on the return trip.
Ned Bass testified that he lived about three miles from the store and stated that Garner and his family are “fine people” and run an “upstanding business.” He stated that if Pearcy Grocery got a beer permit, it would be much more convenient for him to get his gas, chips, and “what not,” and also his beer “in one place.” He also discounted the validity of the petitions circulated by the opponents of the permit, claiming that it was his experience that when he put petitions out at his convenience store, people would sign them without reading them simply because they knew him.
Muncrief testified that she owns Miller’s Liquor on Airport Road, about three miles east of the proposed location. She stated that she was familiar with the other permits in the area and opined that they adequately served the area. Muncrief stated that she opposed the permit because she feared that Pearcy Grocery would undercut her prices. She stated that the last time a convenience store was permitted in the area it took away a “tremendous” amount of her business. Muncrief stated that with all of the permits on Airport Road, she did not believe that law enforcement could adequately enforce all the regulations. She also introduced a petition signed by fifty-three persons opposing the permit. She claimed that she simply left the petition on the counter for her customers. Muncrief also testified that she had attempted to move her store closer to the county line in 1989 or 1990, and her petition had been denied.
Shirley Janiese, the owner of Rovin Ramblers, testified that she opposed granting the permit because she also feared that Pearcy Grocery could undercut her beer prices. She asserted that it would hurt her business, that there were already a number of existing outlets that adequately served the area, and that the intersection of Pearcy Road and Highway 70 West was not a suitable location for a beer outlet, because if there was a wreck, “it takes a good 20 minutes for the sheriff to get out there.” She also had a petition signed by a number of her customers who opposed the granting of the permit.
In addition to the petitions submitted by Muncrief and Janiese, a petition circulated by a local Baptist church was brought before ABC. Also, letters from the Garland County Sheriff and Prosecuting Attorney opposing the permit were entered into evidence.
ABC granted the permit by unanimous vote. In its findings of fact, ABC stated that Mr. Garner appeared to be a “good applicant,” that it did not find that the location of the store presented any danger to the customers, that the letter submitted by the Garland County Sheriff opposing the permit did not state that granting the permit would put “undue pressure” on law enforcement, and that Garner deserved a chance to compete with other beer outlets. Under the conclusions of law, it stated that “public convenience and advantage” would be “promoted and enhanced” by granting the permit.
Muncrief then filed for judicial review in Garland County Circuit Court. In her petition, she stated that she “considers herself injured by the action of the agency” and she alleged that granting the permit was in violation of constitutional or statutory provisions; in excess of the agency’s statutory authority; made upon unlawful procedure; affected by other error or law; not supported by substantial evidence of record; and arbitrary, capricious, or characterized by abuse of discretion. Pearcy Grocery successfully moved to intervene, and subsequently moved to dismiss. Citing Estes v. Walters, 269 Ark. 891, 601 S.W.2d 252 (Ark. App. 1980), Pearcy Grocery alleged that Muncrief did not have standing to petition for judicial review.
The circuit court denied the motion to dismiss and ultimately reversed ABC’s decision granting the permit. In reversing, the circuit court found that ABC based its decision on its factual findings that Garner was a good applicant who deserved the right to compete with other outlets that had beer permits, which was the incorrect test as none of the findings addressed public convenience or advantage. It also found that ABC disregarded the legislature’s mandate that the number of permits be limited. The court also found that the record indicates that beer prices are already extremely low in the area where Pearcy Grocery had made its application and there is nothing to indicate that the increased competition created by the granting of another permit would lower prices any further or make new products available. Finally, the court noted that both Pearcy Grocery and the opposition submitted a substantial number of signatures supporting and opposing their respective positions and found that, contrary to the law, ABC failed to focus on the reasons for these endorsements.
ABC first argues that the trial court erred in finding that the appellee had standing to appeal the decision of the ABC board. It contends that the record is void of any evidence that Muncrief has sustained a real, concrete, or specific injury or that she was in immediate danger of sustaining a real, concrete, or specific injury to her person, business, or property as a result of ABC granting the permit to Pearcy, and accordingly, she did not have standing to invoke the jurisdiction of the circuit court. Furthermore, ABC cites Estes v. Walters, supra, and asserts that because Muncrief failed to set out in her petition for judicial review in circuit court specific allegations as to how she has sustained or is in immediate danger of sustaining injury, it was insufficient to invoke the court’s jurisdiction under the Administrative Procedures Act, and the circuit court erred in finding that she had standing. We find this argument persuasive.
We are mindful of the fact that the Administrative Procedures Act confers standing to seek judicial review of a final agency action on “any person who considers himself injured in his person, business, or property.” Ark. Code Ann. § 25-15-212(a) (Repl. 1996). However, to have standing, a petitioner must assert in her pleadings how she has “already sustained or is immediately in danger of sustaining injury either in his ‘person, business or property’ as a consequence of the final action of [ABC] in issuing the new permit.” Estes v. Walters, supra.
We note that Muncrief argues that the instant case is distinguishable from Estes because she appeared at all stages of this proceeding and testified that as a neighboring business owner, she was threatened by increased competition and therefore she had standing because she considered herself to be “injured” by ABC’s decision. She urges us to hold that the “general rule” that “emerges” from Estes is that “when an individual does not appear in the proceedings below, seeks to appeal a final action under the administrative procedures act, he must set out in his petition how the issuance of the permit will harm him.” However, this interpretation cannot be reconciled with the plain wording of Estes; the fact that the appellant in Estes was not a protestant in the action before the ABC Division Director, was not a dispositive fact in our decision in that case. Accepting Muncrief s interpretation would therefore require us to overrule Estes, which we decline to do. Accordingly, we hold that Muncrief failed to establish her standing to seek judicial review of the ABC decision, and therefore, we reverse and dismiss.
Reversed and dismissed.
Bird and Baker, JJ., agree. | [
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Per Curiam.
The appellant was convicted of first-degree murder and filed an appeal. After the record on appeal was lodged, appellant asserted that the transcript of the proceedings did not accurately reflect the trial judge’s ruling on his motion to dismiss at trial. Appellant filed a motion for a writ of certiorari to complete the record, identifying the portion of the transcript he alleged to be inaccurate and attaching several affidavits to support his allegation. We granted this motion and, on June 17, 1998, remanded the matter to the trial court with directions to settle the record. On receipt of our order, the trial judge reviewed the transcript, listened to the recording from which the transcript was made, and found that the transcript of the proceedings was accurate. This finding was incorporated in an order settling the record dated July 20, 1998.
Appellant filed a second motion for writ of certiorari to complete the record on October 15, 1998. In it, he again asserts that the transcription of the record was inaccurate and requests that the matter be remanded for the record to be settled. As grounds for his motion, appellant asserts that the trial court’s order settling the record was contrary to the affidavits filed by appellant, and argues that a hearing was necessary in order to “really”settle the record. We deny this motion for the reasons set out below.
The appellant has not alleged that the transcript of the record omits the trial judge’s ruling on his motion to dismiss; instead, appellant asserts that the record as transcribed misstates that ruling. Rule 6(e) of the Arkansas Rules of Appellate Procedure — Civil provides that:
Correction or Modification of the Record. If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court, either before or after the record is transmitted to the appellate court, or the appellate court on proper suggestion, or on its own initiative, may direct that the omission or misstatement shall be corrected, and if necessary, that a supplemental record be certified and transmitted. All other questions as to form and content of the record shall be presented to the appellate court.
Rule 6(e) does not expressly require that a hearing be held in order to settle the record. Although there are undoubtedly cases where a hearing would be helpful, and perhaps necessary, to determine whether the transcription of the record contains a misstatement of what transpired below, appellant in the case at bar never requested a hearing in his initial motion. To the contrary, appellant’s initial motion requested only that “the Court Reporter should be ordered to review and correct those errors in the transcript.” We granted the relief requested and, in the absence of any allegation of bias or wrongdoing on the part of the trial judge, we see no significance in the fact that on remand the transcript was reviewed by the trial judge rather than the court reporter. Appellant having been afforded the relief he requested in his initial motion for writ of certiorari to complete the record, the present motion is denied.
Motion denied.
Bird, Arey, Neal, Griffen, and Roaf, JJ., dissent.
There is, in addition, no indication that appellant requested the trial judge to conduct a hearing after we granted his initial motion and the case was remanded. | [
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John F. Stroud, Jr., Judge.
James E. and Bonnie J. Hagans appeal the denial of their complaint for specific performance of a contract for the sale of commercial real estate. They contend that the Pope County Chancery Court erred 1) in permitting extrinsic evidence of a collateral matter to alter the terms of or to attack an executed, integrated agreement; and 2) in finding that there was no enforceable contract. We agree on both points and reverse and remand.
At a hearing before the chancellor, testimony for appellants was given by Mr. Hagans and Rita Gilbreath, a title company employee, regarding a two-page document entitled “Real Estate Contract (Offer and Acceptance).” Appellant James Hagans signed as buyer, and both appellees signed as sellers at the end of the two-page instrument.
Ms. Gilbreath testified that Dr. Lynn Haines contacted her in September 1996 and requested that she find out from a particular individual with the Internal Revenue Service “what it would take” to have an IRS Hen released on property that Dr. Haines wished to sell to Mr. Hagans. She learned that she would need to send the IRS an “offer and acceptance.” Dr. Haines kept her informed about negotiations between buyer and seller, and on November 26, 1996, she prepared an offer and acceptance based on information from Dr. Haines and from Mr. Hagans, whom she had telephoned earlier that day. She faxed the document to Mr. Hagans, who signed it and faxed it back to her. Dr. and Mrs. Haines then came to her office, and she told them to look over the offer and acceptance to “make sure it was what they wanted to do.” The Haineses signed the faxed copy in her presence the afternoon of November 26. About two weeks later, when Ms. Gilbreath telephoned Dr. Haines regarding closing, he informed her that the parties had not worked out an easement problem.
Mr. Hagans testified that the offer and acceptance incorporated the complete agreement between himself and the Haineses. Before the scheduled closing date in December, however, Dr. Haines told Mr. Hagans that the deal was off unless he agreed to a utility easement across the back of the property that Dr. Haines needed in order to sell an adjacent lot. Mr. Hagans also testified that he and Dr. Haines had a verbal agreement that allowed Dr. Haines to stay in the building and pay rent for his office space. Mr. Hagans did not agree to the easement, there were no more conversations, and the deal never closed.
The two-page document that was the subject of testimony was admitted into evidence and is a part of the record before us. It makes no mention of an easement or of a rental agreement. A merger clause on the second page reads as follows:
This Agreement, when executed by both Buyer and Seller, shall contain the entire understanding and agreement between the Buyer and Seller and agent with respect to the matters referred to herein and shall supersede all prior or contemporaneous agreements, representations and understanding with respect to such matters, and no oral representation or statement shall be considered a part hereof.
Witnesses for appellees included Bob Taylor, president and CEO of Boatmen’s National Bank of Russellville; Cliff Goodin, a real estate broker; and Dr. and Ms. Haines. Additionally, Mr. Hagans was recalled as a witness.
Mr. Taylor testified that he had been involved in Mr. Hagans’s negotiations to assume Dr. Haines’s loan and to purchase his property. Mr. Taylor learned in December 1996 that Dr. Haines wanted to give the buyer of an adjacent lot an easement across the property. Although Mr. Taylor told Mr. Hagans that the bank had no problem with it, Mr. Hagans told him that he felt the easement was detrimental to the value of the property and that he was out of the deal.
Mr. Goodin testified that he attempted to get an easement across the property for a couple of vacant lots next to it that he sold to another doctor. In December Mr. Hagans told him that “he was through, finished, the price was changed and he was through.”
Appellees Lynn and Bonnie Haines testified on their own behalf regarding the document they had signed. Dr. Haines testified that he signed the second page of the document, but that he did not agree to sign it as an offer and acceptance. When he referred to his agreement with Mr. Hagans regarding renting the property, appellants objected as follows:
Objection, your Honor. We are violating the collateral evidence rule. I ask the court to find the document in question is a contract and any testimony altering the terms of that agreement should be barred by the court.
The court overruled the objection. Dr. Haines then testified that he and his wife signed only the second page because there was no stipulation for rent agreement, that Ms. Gilbreath had told them they needed to sign something in order to negotiate with the IRS, that they signed for the purpose of sending it to the IRS, that he was negotiating to sell the adjacent lots to another doctor, that Mr. Hagans did not want to give an easement, and that he had a verbal agreement with Mr. Hagans to remain in the clinic until at least June 1997. He also stated that Ms. Gilbreath was untruthful in her testimony, that he did not initial the first page because it did not contain information about the rental agreement, and that he specifically told Ms. Gilbreath he would not sign it.
Ms. Haines testified that she signed only the second page because the document had no rental agreement, that she asked Ms. Gilbreath about the absence of the agreement, that there were not two pages attached when she signed, and that when she specifically asked if the agreement was binding, Ms. Gilbreath said, “No.” Mr. Hagans testified that he and Dr. Haines had a verbal agreement that Dr. Haines could stay in the building and pay rent for his office space.
I. Whether the trial court erred in permitting extrinsic evidence of a collateral matter to alter the terms of or attack an executed integrated agreement.
Appellants contend that the parol evidence rule was violated by appellees’ testimony that they did not intend the instrument to be an offer and acceptance because it contained no rental agreement. Appellants argue that the testimony was inadmissible in that it went to modification of the terms of the contract.
Where a contract is plain, unambiguous, and complete in its terms, parol evidence is not admissible to contradict or add to the written contract. Brown v. Aquilino, 271 Ark. 273, 608 S.W.2d 35 (Ark. App. 1980). The parol evidence rule is a rule of substantive law in which all antecedent proposals and negotiations are merged into the written contract and cannot be added to or varied by parol evidence. Id. In Cate v. Irvin, 44 Ark. App. 39, 43, 866 S.W.2d 423, 425 (1993), we further discussed the rule:
The parol evidence rale prohibits the introduction of extrinsic evidence, parol or otherwise, which is offered to vary the terms of a written agreement; it is a substantive rule of law, rather than a rule of evidence, and its premise is that the written agreement itself is the best evidence of the intention of the parties. It is a general proposition of the common law that in the absence of fraud, accident or mistake, a written contract merges, and thereby extinguishes, all prior and contemporaneous negotiations, understandings and verbal agreements on the same subjects. It is well settled that a written contract may be modified by a later oral agreement. Such testimony is inadmissible if it tends to alter, vary, or contradict the written contract but is admissible if it tends to prove a part of the contract about which the written contract is silent.
(Citations omitted.)
Testimony of an oral rental agreement could properly be admitted to show modification of the terms of a written contract if the agreement was made subsequent to the execution of the written contract, but the testimony here referred to an agreement made before the contract came into existence. Thus, the testimony was inadmissible under the parol evidence rule. Furthermore, the merger clause in the signed instrument stated that the executed agreement was to contain the entire understanding and agreement between the parties with respect to the matters referred to within the contract; that the agreement was to supersede all prior or contemporaneous agreements, representations and understanding with respect to such matters; and that “no oral representation or statement shall be considered a part” of the agreement. We find that the trial court erred in admitting the testimony of a previous rental agreement, for the testimony was considered in abrogation of the clear and unambiguous terms of the written contract, and in violation of the explicit terms of the merger clause. A lease agreement intended to be applicable after the sale of property has closed is not a necessary part of an offer and acceptance, nor does its omission from the written contract prevent the lease agreement from being enforceable.
The reasoning above also applies to appellees’ testimony that their purpose in signing the instrument was only to procure the release of an IRS Hen on the property. Testimony of the parties’ intent in signing the instrument was not admissible to contradict its plain, unambiguous, and complete terms.
II. Whether the court erred in finding that there was no enforceable contract.
The trial court here found that “the purported contract did not contain all of the agreements of the parties, that there was never a meeting of the minds, and therefore there was no enforceable contract.” A meeting of the minds does not depend upon the subjective understanding of the parties, but instead requires only objective manifestations of mutual assent for the formation of a contract. Thurman v. Thurman, 50 Ark. App. 93, 900 S.W.2d 221 (1995). The meeting of minds, which is essential to the formation of a contract, is determined by the expressed or manifested intention of the parties. Dziga v. Muradian Bus. Brokers, Inc., 28 Ark. App. 241, 773 S.W.2d 106 (1989). The ques tion of whether a contract has been made must be determined from a consideration of the parties’ expressed or manifested intention — that is, from a consideration of their words and acts. Id.
Here, the document admitted into evidence presents a complete understanding setting forth an agreement between buyer and seller, signed by both parties. The only evidence that the document was not a contract was the inadmissible testimony of appellees that the page was signed only for the purpose of sending the IRS something it required and that they did not intend the document to be a contract. Appellees’ signing the instrument was an objective manifestation of mutual assent to the formation of the contract and is evidence that a meeting of the minds occurred. Testimony of appellees’ intent that the instrument served a different purpose was not admissible to demonstrate their subjective purpose in signing the instrument.
In support of their position that the parties never had a meeting of the minds, appellees cite testimony by Mr. Taylor and Mr. Goodin that Mr. Hagans told them in December that he was “out of the deal.” All parties, however, had signed the instrument the previous month, and a contract was in existence at the time of these reported conversations. Thus, the testimony at most could have gone only to show that terms of the contract were modified or rescinded, but appellees have not shown the required mutual consent for modification or rescission. See Luningham v. Arkansas Poultry Fed’n Ins. Trust, 53 Ark. App. 280, 922 S.W.2d 1 (1996).
Reversed and remanded for action in keeping with this opinion.
Pittman and Rogers, JJ., agree.
The more modern term for “meeting of the minds” is “an objective indicator of agreement.” Fort Smith Serv. Fin. Corp. v. Parrish, 302 Ark. 299, 789 S.W.2d 723 (1990); Shea v. Riley, 59 Ark. App. 203, 954 S.W.2d 951 (1997). | [
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John E. Jennings, Judge.
Brian Glenn Findley was found guilty by a Washington County jury of theft of property and was sentenced by the court to ten years’ imprisonment. Find-ley argues on appeal that the trial judge abused his discretion in admitting into evidence certain exhibits and in denying his motion for a continuance when the exhibits were offered. These arguments are based on the appellant’s contention that the State did not fulfill its discovery obligations with respect to the exhibits. We find no error and affirm.
The basis of the State’s charge of theft was the contention that appellant had over a period of time voided a number of sale receipts of his employer, Pearle Vision Center, and retained the corresponding money for his personal use. To establish its case, the State introduced into evidence a series of exhibits showing individual transactions.
When the State offered exhibit two the defendant objected:
Defense Counsel: Objection on the grounds that I have asked numerous times, through discovery, for the transactions that the State intends to rely on and have been given stacks of transactions, none of which contain any type of work on a customer whose name is Brenda Canfield.
The Court: Mr. Rhoades [the prosecutor], has the material that the witness is referring to been provided to the defendant?
Prosecutor: Yes, your Honor. The State has talked to Mr. and Mrs. Rogers on numerous occasions and has gotten together all these documents and put them in the State’s file before the previous trial date. Although I cannot guarantee that I made copies of these documents and provided them to the defendant, I do know for a fact that the information has been in the State’s file in this exact order.
The Court: Have you denied access to the defendant?
The Prosecutor: No, sir.
The Court: All right, the objection is overruled.
Defense Counsel: Just for the record, I have on several occasions been to the Prosecutor’s office and made copies of documents in his file. These documents that the State is offering into evidence were not in the file, or I would have copied them. I want to clearly state that on the occasions I copied the State’s file, the documents at issue were not to be found therein. The defense simply requests an opportunity to look at and review the proposed evidence.
The Court: Ms. Britt, as you know the State maintains an open file policy. The State assures me that this material has been in its file for a considerable period of time. You have been given access to that file. If you want an opportunity for your client to review this information for the next 30 seconds or minute to confirm that it is the documents that the witness has identified, I’ll give you the opportunity to look at it, but this information has been available to you for a long, long time.
Prosecutor: I would like to repeat the fact that the documents comprising State’s Exhibits 2-8 have not only been in the State’s file, but they have been in the exact order that the State is presenting them now since the last meeting I had with Mr. and Mrs. Rogers several weeks ago. I do not remember when this case was initially set for trial, but I would say that the information at issue has been in my file for at least a month, although I cannot guarantee the exact amount of time.
The Court: We are going to break for ten minutes. That will give the defendant an opportunity to look at each one of the proposed Exhibits. Then we will come back and move forward with the trial.
Defense Counsel: Your Honor, although I recognize the State has an open file policy, it is obvious that I have been to copy the State’s file due to the large stack of papers that I have here, and I have been to copy this file on several occasions, but obviously do not have the new material that was brought in today. I don’t think the Court can expect us to check the file on a daily basis to make sure anything new has been put in after we have made several trips to copy the file and get the documents responsive to my discovery request. I believe it is up to the State to provide any new information to us or at least tell us that it is in their file. My client and I have painstakingly gone through a fist of transactions that was provided to us containing some 21 or 22 items on it. We have looked at each one of those and formulated a defense to each one of the transactions. None of this new paperwork that the State is proposing to submit into evidence was on the list of transactions to which we have prepared a defense, which I thought was the State’s master fist of transactions. Thirty minutes or ten minutes is not enough time to review seven new transactions that we have never seen before and at this time I would ask the Court to continue this case and give us time to prepare our defense.
Prosecutor: This case was originally scheduled for trial on November 26, 1997, and was continued until December 23, 1997. The case was continued from December 23, 1997, until today, February 24, 1998. In preparing for trial in December, I met with Mr. and Mrs. Rogers in my office where we examined and prepared several packages of documentation concerning this case. It is my belief that I either copied these packages or told the defendant’s attorney that I had them in my possession and that she could copy them at her convenience. At any rate, the documents comprising these Exhibits at issue have been in the State’s file since prior to the December trial date and have been in the exact order in which I propose to introduce them today. The State’s position is that these documents have been in its file for at least a month, probably two months. Considering the State’s open file policy, there is absolutely no cause for a continuance.
Defense Counsel: I disagree with the Prosecutor. I specifically remember coming back from my maternity leave and meeting with my client. At that time, I sent an investigator up to copy the State’s file, and he brought back what he described to me as being all of the transactions that the State had in its file. Your Honor, I have made every effort to copy the State’s file. If these items had been in the State’s file I would have copied them.
The Court: What are these documents that we’re talking about today?
Prosecutor: The documents at issue create a paper trail and involve several different types of documents. Each packet consists of time cards, daily business reports, which are business records showing what the deposits and transactions were for specific business days. The packages also consist of void records showing where void transactions were done. The packages also contain dispensing records showing where products were dispensed.
The Court: To try to answer my question then, I assume these are business records maintained by Mr. and Mrs. Rogers in the ordinary course of their business?
Prosecutor: Yes, sir.
The Court: Are these business records in the State’s file similar at least in terms of form to all the other records and documents that relate to this business?
Prosecutor: Yes. The only difference is that these documents are the originals of the Xerox copies which have been in our file for some period of time.
The Court: Since at least December the 23ri?
Prosecutor: Since the last trial setting, and I believe that was December the 23rd.
The trial court then admitted the exhibits. Rule 17.2 of the Rules of Criminal Procedure provides that the prosecuting attorney may perform his discovery obligations in any manner mutually agreeable to himself and defense counsel or by notifying defense counsel that material and information, described in gen eral terms, may be inspected, obtained, tested, copied, recorded or photographed during specified reasonable times. Ark. R. Crim. P. 17.2(b)(i). The trial court has broad discretion in matters pertaining to discovery, and that discretion will not be second-guessed by the appellate court absent an abuse of discretion. Banks v. Jackson, 312 Ark. 232, 848 S.W.2d 408 (1993); MacKintush v. State, 60 Ark. App. 42, 959 S.W.2d 404 (1997).
Appellant correctly notes that the “open-file policy” of the State has been subject to some judicial criticism. In Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981), the court said:
The ‘open-file policy’ of the Pulaski County Prosecuting Attorney’s Office may be a time saver for both the State and the defense; however, as here, it often results in the court being unable to determine whether discovery has been complied with under the Arkansas Rules of Criminal Procedure.
In Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988), the supreme court said that it had not given “carte blanche approval” to the open-file policy as an acceptable substitute for disclosure. In Robinson v. State, 317 Ark. 512, 879 S.W.2d 419 (1994), the court said:
If a prosecutor’s office intends to fulfill its discovery obligations by relying upon an open-file policy, it must make every practical effort to ensure that the information and records contained in the file are complete and that the documents employed at trial are identical to the material available to the defense in the open file.
Finally, in Dever v. State, 14 Ark. App. 107, 685 S.W.2d 518 (1985), we reversed for a discovery violation on the State’s part where critical evidence was located not in the prosecutor’s file but rather in a file at the sheriffs office. We said, “We do not read Robinson to hold that simply because the prosecution has an open file policy it has fulfilled its discovery obligation and defense counsel is then required to himself examine all other files in the county maintained by law enforcement officials.”
Nevertheless, seventeen years have passed since Earl v. State was decided, and the supreme court, although it has had a number of opportunities to do so, has not prohibited the use of an open-file policy as a means of compliance with the State’s discovery obligations. The case at bar is unlike Dever — there is no suggestion that defense counsel was required to search files other than the prosecutor’s.
The crux of appellant’s argument is that because statements of his lawyer and those of the prosecutor were in such conflict, it was an abuse of discretion for the court to admit the exhibits without granting a continuance. We do not view the statements of counsel as necessarily being in conflict. Although the prosecutor’s statements were not entirely without ambiguity, we think that the trial judge could fairly find that the exhibits sought to be introduced had been in the prosecutor’s file for at least sixty days prior to trial. Defense counsel did not tell the court when she last examined the State’s file, other than to say that it was after she came back from maternity leave. We have no way of telling when this was, nor do we have any reason to think the trial judge should have known the date to which counsel was referring.
Given the trial court’s broad discretion in deciding such matters, we simply cannot say that the court abused its discretion in fading to find a discovery violation. There is not the slightest indication that defense counsel was unaware that the State relied on an open-file policy, and there was no assurance given to the trial judge that defense counsel had checked the State’s file within the last sixty days prior to trial.
For the reasons stated, the decision of the circuit court is affirmed.
Pittman, Rogers, and Stroud, JJ., agree.
Bird and Roaf, JJ., dissent. | [
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John Mauzy Pittman, Judge.
The appellant in this criminal case was charged with residential burglary and theft of property. After a bench trial, he was convicted of those offenses and sentenced to twenty years in the Arkansas Department of Correction. From that decision, comes this appeal.
For reversal, he contends that the trial court erred in denying his motion for a directed verdict and in denying his motion to suppress an eyewitness’s identification of his hat. We affirm.
We first address appellant’s contention that the trial court erred in denying his motion for a directed verdict.
Motions for directed verdict are treated as challenges to the sufficiency of the evidence. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the state. Evidence is sufficient to support a conviction if the trier of fact can reach a conclusion without having to resort to speculation or conjecture. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Only evidence supporting the verdict will be considered.
Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998) (citations omitted). Appellant was convicted of residential burglary and theft of property. Residential burglary is committed when a person “enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.” Ark. Code Ann. § 5-39-201(a)(1) (Repl. 1997). Theft of property is committed when a person “knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner thereof.” Ark. Code Ann. § 5-36-103(a)(l) (Repl. 1997). Appellant argued in his motion for a directed verdict that the State had failed to prove that he unlawfully entered an occupiable structure with the purpose to commit a crime therein; that the State failed to prove that he knowingly took the property of another with the purpose of depriving the owner thereof; and that the State failed to prove the value of the items taken.
Viewing the evidence, as we must, in the light most favorable to the State, the record shows that an eyewitness telephoned the police department on April 30, 1997, to report that two black males were removing a television, stereo, and VCR from a house across the street from his on West 17* Street and placing the items in a green trash can. One of the men was wearing a gray hat. He testified that the men then pulled the trash can down the street, placed it near a vacant house, and began walking up 17* Street toward Maple. Finally, the eyewitness testified that, about fifteen minutes after he reported the incident, the police returned with two suspects, one of whom was wearing a hat like the one he had seen on the burglar.
The victim testified that, on the day in question, she returned to her home on West 17th Street and found that the door had been broken, and that a television, stereo, and VCR were missing. She further stated that the remote controls for those devices were also missing.
Officer Jim Tankersley, a patrolman with the Litde Rock Police Department, testified that he and another police officer were dispatched on April 30, 1997, to investigate a burglary in progress on West 17th Street. He stated that he was informed that the eyewitness had described one of the burglars as wearing a gray shirt, tan short pants, and a black hat, while the other was described as wearing a white t-shirt and tan pants. Officer Tank-ersley further testified that, when he was approximately one and one-half blocks south of the burglary scene, he observed two men walking southbound dressed in a manner virtually identical to that described by the eyewitness. The officers stopped the two men and noticed that appellant had a remote-control unit sticking out of his pants pocket. When appellant was patted down for weapons, two more remote control units were found in his pockets. Appellant was wearing a hat that Officer Tankersley described as either black or dark gray. When asked by Officer Tankersley to identify himself, appellant gave a false name and date of birth. Appellant and the other man accompanied the police officers to the burglary scene; while en route they found and inspected the trash can that had been pulled up to the vacant house. Inside the trash can the officers found a GE television, a Sharp stereo, and an Emerson VCR. The brand names on these items matched the brand names on the remote-control units that were found on appellant.
We think that the testimony recounted above is sufficient to show that appellant exercised unauthorized control over the victim’s property for the purpose of depriving her thereof, and that he did so by means of entry into an occupiable structure. His possession of remote-control units matching the items found in the trash can, his dress and description, and his proximity in time and space to the crime scene constitute circumstantial evidence of guilt, but circumstantial evidence may constitute substantial evidence when it excludes every other reasonable hypothesis. McCullough v. State, 44 Ark. App. 99, 866 S.W.2d 845 (1993). Furthermore, appellant’s use of a false name when asked to identify himself is evidence of his consciousness of guilt. Id. We think that the trier of fact in the case at bar could conclude, on this record, that the evidence presented excluded every other reasonable hypothesis but guilt, and we hold that the trial court did not err in denying appellant’s motion for a directed verdict.
Appellant next contends that the trial court erred in denying his motion to suppress an eyewitness’s identification of his hat because it raised a substantial possibility of irreparable misidentification. We find no error. At a pretrial suppression hearing, the trial judge suppressed the eyewitness’s identification of the appellant’s person as unduly suggestive because the eyewitness could not identify appellant as the individual he observed committing the burglary, but only as the individual he saw in the police car afterwards, wearing a hat like that worn by the burglar. However, the trial judge did permit the eyewitness to testify that he saw appellant wearing a similar hat at a later time and, on appeal, appellant argues that this was error. We do not agree. In so holding, we are persuaded by the reasoning of the court in Johnson v. Ross, 955 F.2d 178 (2d Cir. 1992), which held that the identification of clothing is not a procedure so inherently conducive to irreparable misidentification as to constitute a denial of due process.
Affirmed.
Rogers and Stroud, JJ., agree. | [
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Margaret Meads, Judge.
Appellant Sheila Robinson is the widow of Reginald Robinson, a West Helena fireman who was killed in the line of duty on May 8, 1997. Mr. Robinson died intestate. Appellee Linda Winston is the ex-wife of the decedent and the mother of his daughter, Candrice C. Robinson. On May 20, 1997, appellant petitioned to be appointed administratrix of the estate and listed the decedent’s mother and two sons as his heirs. Appellant failed to name Cand-rice as an heir and did not send notice of her petition to Candrice or the other heirs. On June 20, 1997, the probate judge appointed appellant administratrix of the estate.
On August 27, 1997, appellee filed an objection to appellant’s appointment as administratrix; in the alternative, she asked that she be appointed co-administratrix. Appellee alleged that appellant and her attorneys purposely disregarded Candrice as an heir of the decedent and failed to file a claim for death benefits with the State Claims Commission. Appellee also requested that Candrice be declared a legitimate heir of the estate. Appellant objected to appellee’s request to be appointed co-administratrix because appellee had no relationship to the decedent and stated: “Linda Winston is an ex-wife of the decease[d]; [she] may have some interest adverse to and in conflict with the estate for some claimed back support or other monies . . . .”
At a hearing held September 26, 1997, appellee testified that she had learned from the decedent’s mother of appellant’s failure to name Candrice as an heir on the petition and that when she asked appellant to include Candrice as an heir, appellant told her to have her own lawyer do so. She said that this conversation prompted her to file her objection to appellant’s appointment as administratrix. She also stated that she had received no information indicating that appellant had filed a death-benefit claim with the State Claims Commission.
Appellant testified that she had given Candrice’s name to her out-of-state lawyer before the petition was prepared. She admitted, however, that, before she signed the petition, she noticed that Candrice’s name was missing and that she had not yet amended it. She also admitted that she and the decedent had been separated at the time of his death. She contended that she had already filed a death-benefit claim with the State Claims Commission.
By order filed October 16, 1997, the judge found that appellant’s appointment as administratrix had not been published; that notice had not been provided to the known heirs; that Candrice, an heir, had been omitted from the petition; that appellant was aware of this omission at the time she signed the petition; and that appellant had not amended the petition after appellee bought the matter to her attention. The judge found that appellant had faded to perform basic duties required of her as administratrix, including (1) giving public notice after her appointment or providing proof of such notice; (2) providing notice of her appointment to the heirs; (3) fifing an inventory; (4) fisting all of the known heirs on the petition; (5) marshalling all of the assets of the estate; and (6) amending pleadings when informed of their deficiencies. The judge also noted that “obvious tension exists between the current Administratrix and the heirs-at-law as demonstrated during the hearing on this petition.” The judge found appellant unsuitable to serve as administratrix, removed her from that position, and granted appellee’s request to be appointed successor admin-istratrix.
Appellant first argues that because appellee is not an “interested person” as defined by the Arkansas Probate Code, the probate court’s order removing her and appointing appellee as successor administratrix is clearly erroneous. She says that the probate code defines “interested person” as any heir, devisee, spouse, creditor, or any other having a property right, interest in, or claim against the estate being administered, and a fiduciary, Ark. Code Ann. § 28-l-102(a)(ll) (1987), and that appellee’s only relationship to the decedent is that of ex-spouse.
Appellee responds that we should not consider this argument on appeal because appellant failed to raise it below. In her reply brief, appellant argues that she did not have to raise this argument below because the probate court was without subject-matter jurisdiction to decide the issue.
Subject-matter jurisdiction is the power of the court to adjudge certain matters and to act on facts alleged. Leinen v. Ark. Dept. of Human Servs., 47 Ark. App. 156, 886 S.W.2d 895 (1994). In Banning v. State, 22 Ark. App. 144, 149, 737 S.W.2d 167, 170 (1987), we explained:
The rule of almost universal application is that there is a distinction between want of jurisdiction to adjudicate a matter and a determination of whether the jurisdiction should be exercised. Jurisdiction of the subject matter is power lawfully conferred on a court to adjudge matters concerning the general question in controversy. It is power to act on the general cause of action alleged and to determine whether the particular facts call for the exercise of that power.
Arkansas Code Annotated section 28-48-105 (1987) authorizes the probate court to remove a personal representative for various reasons, either upon the court’s own motion or upon the petition of an interested person. Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994). Therefore, the probate court had the authority to remove appellant on its own motion, and we cannot agree that the probate court lacked subject-matter jurisdiction of this issue. See Pickens, supra.
Because the probate court did not lack subject-matter jurisdiction, the issue of whether or not appellee was an interested person should have been raised at trial. A question not raised in the court below by the pleadings or arguments of counsel cannot be considered for the first time on appeal. Gautney v. Rapley, 2 Ark. App. 116, 617 S.W.2d 377 (1981). Questions left unresolved are waived and may not be relied upon on appeal. Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987). Because appellant’s argument was not raised at trial, we do not consider it on appeal.
Appellant also argues that the probate court erred in finding her to be unsuitable to serve as administratrix and in removing her from that position. Arkansas Code Annotated section 28-48-105 (1987) provides among other things that the court may remove a personal representative who becomes mentally incompetent, disqualified, unsuitable, or incapable of discharging his trust, has mismanaged the estate, or has failed to perform any duty imposed by law.
In In re Guardianship of Vesa, 319 Ark. 574, 892 S.W.2d 491 (1995), the supreme court acknowledged that the probate code does not define the term “unsuitable” but quoted, as it had before in Davis v. Adams, 231 Ark. 197, 205, 328 S.W.2d 851, 856 (1959), the definition of that term provided by the Massachusetts Supreme Court in Quincy Trust Co. v. Taylor, 317 Mass. 195, 57 N.E.2d 573 (1944):
The statutory word “unsuitable” gives wide discretion to a probate judge .... Such a finding may also be based upon the existence of an interest in conflict with his duty, or a mental attitude toward his duty or toward some person interested in the estate that creates reasonable doubt whether the executor or administrator will act honorably, intelligently, efficiently, prompdy, fairly, and dispassionately in his trust. It may also be based upon any other ground for believing that his continuance in office will be likely to render the execution of the will or the administration of the estate difficult, inefficient or unduly protracted. Actual dereliction in duty need not be shown.
319 Ark. at 581, 892 S.W.2d.at 495. In Vesa, the supreme court also acknowledged that “family friction” and “continuous bickering” can adversely affect an administrator’s suitability. Id. at 581-82, 892 S.W.2d at 495.
Here, there was evidence that Candrice’s name had been omitted as an heir to the estate, and this omission was not corrected when appellant was informed of the error. We think that was enough for the probate judge to find appellant unsuitable because of a mental attitude toward some person interested in the estate that created a reasonable doubt whether appellant would act honorably, fairly, and dispassionately in her trust. Moreover, appellant hired Wisconsin attorneys for an Arkansas probate matter. Appellant’s choice of Wisconsin attorneys was a sufficient ground to believe that appellant’s continuance in office would likely render the administration of the estate difficult, inefficient or unduly protracted. Finally, we cannot ignore the probate judge’s finding of obvious tension between appellant and the heirs-at-law, which was demonstrated during the hearing on appellee’s petition.
An executor of an estate occupies a fiduciary position and must exercise the utmost good faith in all transactions affecting the estate. Guess v. Going, 62 Ark. App. 19, 966 S.W.2d 930 (1998). Although probate cases are reviewed de novo on the record, we will not reverse the findings of the probate judge unless they are clearly erroneous, giving due deference to the probate judge’s superior position to determine the credibility of the witnesses and the weight to be accorded their testimony. Jones v. Balentine, 44 Ark. App. 62, 866 S.W.2d 829 (1993).
We cannot find that the probate judge was clearly erroneous in removing appellant as administratrix of the estate.
Affirmed.
Arey and Griffen, JJ., agree. | [
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Judith Rogers, Judge.
Appellant entered a conditional plea of guilty pursuant to Arkansas Rule of Criminal Procedure 24.3(b) to conspiracy to manufacture methamphetamine and possession of methamphetamine with intent to deliver. On appeal, he argues that the trial court erred in denying his motion to suppress. We agree, and reverse and remand.
Appellant was charged in connection with evidence discovered after a search of a mobile home owned by Patrick Fouse. In a companion case, Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999), Fouse also entered a conditional plea of guilty to several charges. In Fouse, the Arkansas Supreme Court held that the affidavit for the search warrant, which is the same affidavit and warrant involved in the instant case, did not contain sufficient facts to justify a nighttime search.
Detective David Oser, of the 17th East Judicial District Drug Task Force, presented the affidavit to the municipal judge. In the affidavit, he stated that he had reason to believe that methamphetamine and items used to manufacture methamphetamine were currently being concealed at Fouse’s residence. Fie stated that on November 29, 1997, McRae police officers detected a chemical odor coming from the residence. He stated that he went to the residence at 9:00 p.m. on December 22, 1997, and also detected a very strong odor of ether coming from the residence. Officer Oser also attached to the affidavit a recipe for making methamphetamine, which indicated that ether is used during the active stages of the manufacturing process. He stated that the manufacturing process takes approximately four hours and that the chemicals used in the process are volatile. Officer Oser further stated that Fouse had a prior conviction for delivery of a controlled substance, and had previously associated with other persons who had been sentenced in federal court for conspiracy to manufacture and distribute methamphetamine. Officer Oser averred that there was an imminent danger that the items used to manufacture the methamphetamine and the controlled substance would be removed or destroyed.
The municipal judge issued the warrant, which allowed for execution to take place at any time based on the finding that reasonable cause existed to believe that the objects to be seized were in danger of imminent removal. At 12:20 a.m. on December 23, 1997, officers conducted the search and found evidence of an active methamphetamine lab, drug paraphernalia, and communication equipment.
Appellant was present in the mobile home at the time of the search; he was sleeping on the couch in the living room of the residence. Arkansas State Trooper Roger Ahlf testified that he conducted a pat-down search of appellant, and subsequently retrieved a clear plastic bag containing what he believed to be methamphetamine.
The trial court found that appellant had standing to challenge the search as an invitee in the home, and denied his motion to suppress. Appellant argues that the trial court erred in its ruling because the affidavit in support of the search warrant failed to justify a nighttime search and because the Leon good-faith exception did not apply.
It is well settled that an affidavit must set forth a factual basis as a prerequisite to the issuance of a nighttime warrant and that mere conclusions are insufficient to justify a nighttime search. Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998). Arkansas Rule of Criminal Procedure 13.2(c) provides that before a warrant authorizing a nighttime search is issued, the issuing judicial officer must have 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.
In reviewing whether the requirements of the rule were met, we make an independent determination based upon the totality of the circumstances and reverse the trial court’s ruling only if it is clearly against the preponderance of the evidence. Id.
In Fouse, the supreme court in finding that the instant affidavit failed to justify the nighttime search stated:
We view these comments by Detective Oser as conclusory and as falling more readily within the Richardson/Garner fine of cases where we held that factual support for a nighttime search had not been forthcoming. Nor can we agree with the trial court that a strong odor of ether detected at the Fouse residence at 9:00 p.m., on December 22, 1997, was a reasonable basis for concluding that methamphetamine was to be removed or sold or both within the next four hours and that a nighttime search was justified. We hold that not only was the search warrant deficient under Ark. R. Crim. P. 13.2(c) but that probable cause was lacking to justify a nighttime search.
337 Ark. at 20-21, 989 S.W.2d at 149. See also Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993); Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991).
In United States v. Leon, 468 U.S. 897 (1993), the Supreme Court held that objective good-faith reliance by a police officer on a facially valid search warrant will avoid the application of the exclusionary rule in the event the magistrate’s assessment of probable cause is found to be in error. See State v. Hart, 329 Ark. 582, 952 S.W.2d 138 (1997). In determining that the officers in the instant case lacked good faith in executing the search warrant, the court in Fouse stated:
The test under Leon is not whether the police officers executing the warrant subjectively believed they were complying with the law. Rather, the test to be applied under Leon is an objective standard of what reasonably well-trained police officers would believe is probable cause for a nighttime search.
What is required for establishing probable cause for a nighttime search is clear from Ark. R. Crim. P. 13.2(c) and the multiple decisions of this court requiring more than merely conclusory statements. We have held that an objective standard of good faith is not met when a police officer only presents suspicions regarding removal and the municipal judge only repeats the boilerplate language from Rule 13.2(c). Using an objective standard, we conclude that a reasonably well-trained police officer would not have believed that probable cause existed to conduct a nighttime search based on the smell of ether.
337 Ark. at 21-22, 989 S.W.2d at 149-50 (citations omitted).
Pursuant to the supreme court’s holding in Fouse, we must hold that the affidavit and resulting search warrant in the instant case did not contain sufficient facts to justify the nighttime search pursuant to Rule 13.2(c), that the smell of ether did not constitute sufficient probable cause to justify the nighttime search, and that the officers failed to meet the objective standard of good faith under Leon. We reverse and remand for entry of an order consistent with this opinion.
Reversed and remanded.
Griffen and Jennings, JJ., agree. | [
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Terry Crabtree, Judge.
This case arises from a state administrative hearing that found that the appellant, Arkansas Department of Human Services (DHS), could terminate a federal adoption subsidy, which had been payable to the appellees, Curtis and Christine Welborn. This appeal is brought in response to a decision of the Pulaski County Circuit Court reversing the administrative law judge’s ruhng. The circuit judge entered his order on April 6, 1998, finding that the hearing officer acted erroneously, without substantial evidence, and in an arbitrary and capricious manner in interpreting 42 U.S.C. § 673. On appeal, appellant argues that we should reverse the circuit judge’s order. We disagree and affirm.
On December 6, 1993, appellees adopted two special-needs children through the Adoption Services Unit of the Department of Human Services in Arkansas: James, who was born August 8, 1982, and Thomas, who was born June 26, 1983. At that time, appellees signed an Adoption Assistance Agreement for Federal IV-E Funded Assistance, wherein they acknowledged the terms under which the federal government would provide funding to parents of special-needs adopted children pursuant to 42 U.S.C. § 673. Appellees renewed that agreement on December 6, 1994. This agreement remained effective until December 6, 1995, and provided payment to appellees of $4,050 annually for James and $4,200 annually for Thomas.
In December 1993 appellees, Thomas, and James, moved to Tampa, Florida. Approximately two years later, in October 1995, the boys were placed in a private Christian boarding school in Florida. In November 1995 the boys were placed in another hospital and then in the Children’s Home of Tampa Bay. September 1995 was the last time either of the boys lived in appellees’ home. Since then, the boys have been enrolled in and referred to various residential care facilities in Florida and remained there at the time this case was heard.
In March 1996 appellees filed a Petition to Terminate Parental Rights in Florida. No action was taken by the Florida court on appellees’ petition and instead, on March 21, 1996, the Florida Department of Health and Rehabilitative Services (DHRS) took the two children into protective custody. In April 1996, DHRS filed a petition against appellees alleging that they refused any offer of services to assist the family, refused to take the children back into their home, and refused to pick up the children from the treatment facility. Appellees then entered into an agreement with DHRS to pay DHRS child support by assigning their federal subsidy check to Florida on a monthly basis. However, in April 1996, the Arkansas Division of Children and Family Services unilaterally terminated appellees’ monthly federal IV-E maintenance payments based on the agency’s determination that appellees were no longer emotionally supporting Thomas or James.
Meanwhile, on October 18, 1996, appellees filed a Motion to Set Aside Adoption in the Chancery Court of Sebastian County, Arkansas. The motion was denied because the one-year statue of limitations for challenging adoption decrees in Arkansas had run.
On April 17, 1997, appellees requested an administrative hearing on the issue of termination of the adoption subsidy. The ALJ held the hearing, and on July 21, 1997, she issued her order upholding the agency’s decision to terminate the adoption subsidy because appellees had “violated the terms of the Adoption Assistance Agreement and the federal statute relating to this issue when they emotionally and physically abandoned Thomas and James in Florida.” However, the ALJ found that “[t]he placement of Thomas and James in a residential treatment facility did not, per se, disqualify the Welborns from receiving the assistance.” Then, in July 1997, a state court in Florida found James and Thomas “dependent” under Florida law.
A state agency’s interpretation of federal law, as opposed to its findings of fact, is not entitled to deference. Alexander v. Pathfinder, Inc., 906 F. Supp. 502 (E.D. Ark. 1995), rev’d in part on other grounds, 91 F.3d 59 (8th Cir. 1996); see also DeLuca v. Hammons, 927 F. Supp. 132 (S.D.N.Y. 1996). In this case, we review a question of law; therefore, we employ a de novo standard of review. See Alexander, supra.
The “Adoption Assistance Agreement for Federal IV-E Funded Assistance” reflects the terms of the federal statute. At issue is 42 U.S.C. § 673(a)(4), which provides in part:
(A) no payment may be made to parents with respect to any child who has attained the age of eighteen (or, where the State determines that the child has a mental or physical handicap which warrants the continuation of assistance, the age of twenty-one), and (B) no payment may be made to parents with respect to any child if the State determines that the parents are no longer legally responsible for the support of the child or if the State determines that the child is no longer receiving any support from such parents.
(Emphasis added.)
The ALJ reasoned that the term “support” in the above-quoted provision must mean “more than mere monetary payments” because “[t]o define the term otherwise would be redundant as to the legal responsibility issue.” The ALJ found that the clause, “if the State determines that the child is no longer receiving any support from such parents,” would be rendered meaningless unless the word “support” was read to include emotional as well as financial support. We find this interpretation to be clear error.
A comparison of subsection (A) and subsection (B) exposes the fallacy in this reasoning. Subsection (A), in essence, says that assistance payments stop when the child is eighteen unless the child is handicapped; parents of handicapped children may receive assistance payments until the child is twenty-one. This dovetails with subsection (B), which says that support stops when the parents are no longer legally responsible for supporting the child, or when the parents are no longer actually supporting the child. Taking subsection (A) by itself, it could be argued that parents of handicapped children should receive assistance payments until the child is twenty-one just because the child is handicapped. Subsection (B) says that having a handicapped child over eighteen is not enough; the parents, although not legally required to support the child, must actually support the child to qualify for assistance payments. This language, by defining and restricting the application of subsection (A), serves an important purpose and consequently is not “redundant as to the legal responsibility issue.” The ALJ’s decision was based on faulty reasoning and an illogical enlargement of the scope of the statute.
The purpose of this statute is to provide funds, including monetary supplements for parents of special-needs adopted children. This is evidenced not only through the statute’s title, “Adoption Assistance Program,” but also within the text of the statute. Consequently, we do not believe that the language “no payment may be made to parents ... if the State determines that the child is no longer receiving any support from such parents” means that the State may terminate the subsidy if the parents fail to provide emotional support to the children.
We recognize that the ALJ found appellees had no intention of reuniting with the two boys. The ALJ specifically stated in her final order:
It is clear from the Welborns’ answers to the Interrogatories as well as from Mr. Welborn’s testimony at the administrative hearing that, the Welborns do not “have any plans for a future relationship with either Thomas or James.” The Welborns have not spoken to Thomas or James since March 1996.
However, this finding and other similar findings made by the ALJ matter not. The federal statute does not condition the continuation of subsidy payments upon a State’s determination of whether parents provide emotional support for special-needs adopted children.
Based upon our de novo review of the question of law presented, we are convinced that the ALJ erred in her interpretation of 42 U.S.C. § 673.
Affirmed.
Robbins, C.J., and Pittman, J., agree.
June 2, 1999
D. Franklin Arey, III, Chief Counsel; Elisabeth McGee, Deputy Counsel, for appellant.
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Larry D. Vaught, Judge.
Appellant Amy Finley appeals a decision of the Workers’ Compensation Commission find ing that Wade Finley III, the son of Amy and her deceased husband Wade Jr., is not entitled to dependency benefits. We affirm.
The facts in this case are undisputed. Amy and Wade Jr. were married on October 6, 1990. Unable to become pregnant, the couple met with physicians to discuss fertility treatments in April 2001. On May 1, 2001, they executed a consent form outlining the terms of their participation in the In Vitro Fertilization (IVF) and Embryo Transfer Program. In June of 2001, physicians produced ten embryos using Amy’s eggs and Wade Jr.’s sperm. On July 2, 2001, two embryos were implanted into Amy’s uterus. Four of the eight remaining embryos were cryopreserved (frozen). The other four embryos were discarded. A pregnancy was confirmed after this procedure; however, Amy soon miscarried.
On July 19, 2001, Wade Jr. was fatally electrocuted while in the course and scope of his employment with appellee Farm Cat, Inc. The accident was accepted as compensable by Farm Cat’s workers’ compensation carrier and benefits were paid to Amy.
On June 26, 2002, approximately eleven months after her husband’s death, Amy had two of the frozen embryos thawed and implanted into her uterus. A pregnancy was confirmed on July 10, 2002. Amy gave birth to Wade III on March 4, 2003. Thereafter, Amy filed for workers’ compensation benefits, contending that Wade III was the dependent child of Wade Jr. and was entitled to weekly compensation benefits pursuant to Arkansas Code Annotated section 11-9-527(c) (Repl. 2002). Appellees controverted the claim.
The Administrative Law Judge issued an opinion finding that the preponderance of the evidence established that Wade III was entitled to dependency benefits. On appeal, the Commission reversed the opinion of the ALJ, denying and dismissing the claim. Amy timely appealed from the Commission’s opinion.
On appeal, Amy contends that substantial evidence fails to support the Commission’s finding that Wade III, the legitimate posthumous child of Amy and Wade Jr., is not entitled to dependency benefits under the Arkansas Workers’ Compensation Act. She also contends that the Commission, in denying Wade III these benefits, violated his constitutional rights.
First, Amy argues that there is a lack of substantial evidence supporting the Commission’s decision to deny section 11-9-527(c) dependency benefits to Wade III because he is the couple’s legitimate son; he was “conceived” prior to Wade Jr.’s death; and Wade Jr. was killed in the course and scope of his employment with Farm Cat. When reviewing a decision of the 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. Lawhon Farm Servs. v. Brown, 60 Ark. App. 64, 958 S.W.2d 538 (1997). 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. Id.
Section 11-9-527(c) provides death benefits for dependents of workers who die in work-related accidents. The statute states, “compensation for the death of an employee shall be paid to those persons who were wholly and actually dependent upon the deceased employee. . . .” Ark. Code Ann. § ll-9-527(c). Subsection (h) provides that “[a]ll questions of dependency shall be determined as of the time of the injury.” Ark. Code Ann. § 11-9-527(h). Dependency is a fact question to be determined in light of the surrounding circumstances. Fordyce Concrete v. Garth, 84 Ark. App. 256, 139 S.W.3d 154 (2003). When the Commission makes a finding of fact, that finding carries the weight of a jury conclusion. Id.
Amy argues that Wade III was a person at the time of the injury because he was a posthumous child conceived prior to Wade Jr.’s death. As support, she cites a provision of the probate code, section 28-9-209 (c), that defines legitimate children for the purpose of intestate succession. Based on section 28-9-209(c), Amy argues that Wade III, “was, as a matter of science, ‘conceived’ during the marriage” (when Amy’s egg was fertilized with Wade Jr.’s sperm), although not by artificial insemination but by IVF. She further argues that there is clear evidence that Wade Jr. consented to the IVF procedure based on the documents he signed to initiate the process. Amy contends that “the embryo was wholly and actually dependent” on Wade Jr. at the time of the injury as evidenced by the fact that the couple “had to pay UAMS a fee to store the fertilized embryos.” The Commission disagreed and found that at the time of Wade Jr.’s death, Amy was the only person wholly and actually dependent upon Wade Jr.
The parties devote considerable effort to arguing whether Wade III was a “person” at the time ofWade Jr.’s injury. Notably, “person” is not defined in the Arkansas Workers’ Compensation Act; however, section 11-9-527(c) does name those potentially entitled to dependency benefits. They include: widow, widower, child, parents, brothers, sisters, grandchildren, and grandparents. Ark. Code Ann. § 11-9-527. “Child” is defined in the Act as “a natural child, a posthumous child, a child legally adopted prior to injury of the employee, a stepchild, an acknowledged illegitimate child of the deceased or of the spouse of the deceased, and a foster child.” Ark. Code Ann. § 11-9-102(2) (Repl. 2002) (emphasis added). “Posthumous child” is not defined by the Act. Further, unlike intestate succession under the probate code, the Workers’ Compensation Act has no statutory language requiring that a “posthumous child” be “conceived” before the claimant’s death.
Nonetheless, it is unnecessary for us to decide whether Wade III was a “person” at the time of Wade Jr.’s injury. Assuming for the sake of argument that he was a “person,” we hold that there is substantial evidence to support the Commission’s decision that Wade III was not “wholly and actually dependent” on Wade Jr. at the time of the injury.
In Lawhon Farm Services, we discussed the application of section 11-9-527(c). We noted that in cases where children are not living with the employee at the time of the employee’s death, there must be some showing of actual dependency. Lawhon Farm Servs., 60 Ark. App. at 74, 958 S.W.2d at 542. “Actually dependent” does not require total dependency but rather a showing of actual support or a reasonable expectation of support. Id., 958 S.W.2d at 542. Dependency is an issue of fact, and the issue is to be resolved based upon the facts present at the time of the compensable event; it may be based upon proof of either actual support from the decedent or a showing of a reasonable expectation of support. 60 Ark. App. at 74-75, 958 S.W.2d at 542.
Amy argues that she and Wade Jr. were providing actual support to Wade III because they paid fees to store the frozen embryos. This argument is not persuasive. Storage fees for a frozen embryo are not the type of actual support or reasonable expectation of support envisioned by the statutory language as construed in the Lawhon case. There, we considered support in the form of food, clothes, transportation, housing, utilities, furniture, and toys. Id. Though storage fees are akin to housing, we decline to adopt this creative reading of the statute.
In the case at bar, there is no evidence in the record demonstrating that at the time of his father’s death, Wade III was “wholly and actually dependent” upon his father or that he had a reasonable expectation of support from him. The facts establish that Wade III was a frozen embryo at the time of his father’s death and was not born until almost two years after his father’s death. His mother was not pregnant with him until almost one year after his father’s death. As such, we hold that substantial evidence supports the Commission’s finding that Wade III was not wholly and actually dependent upon his father and accordingly, that he was not entitled to dependency benefits under section ll-9-527(c).
Amy’s second point is that the Commission’s denial of dependency benefits to Wade III violates his constitutional rights under the Due Process and Equal Protection Clauses. Specifically, she argues that the method ofWade Ill’s conception, through IVF, “created a whole new class of children who will be deprived of certain rights solely because they were not conceived and born in a ‘normal’ or ‘accepted’ manner.”
This argument is not preserved for review. There was no mention of this argument at the hearing before the ALJ, and the ALJ did not rule on it. Amy did not argue this point to the Commission. While her brief to the Commission generally states, “[t]o treat him any other way would be to discriminate against him and others similarly situated and deny him due process and equal protection,” this argument was not developed beyond a mere conclusory statement. And again, the Commission did not rule on this argument.
When an issue was not raised below, it is not preserved for appellate review. Kimbell v. Ass’n of Rehab Indus. & Bus. Companion Prop. & Cas., 366 Ark. 297, 235 S.W.3d 499 (2006); Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989). Further, where an argument is not fully developed at the trial level or on appeal, it is not preserved for review. Omni Holding & Dev. Corp. v. 3D.S.A., Inc., 356 Ark. 440, 156 S.W.3d 228 (2004).
We note that Amy admits that this argument was not raised below. However, she argues that making the constitutional argument to the Commission would have been “futile and meaningless” because the Commission lacked authority to overrule the Arkansas Supreme Court or make rulings about the probate code. We disagree. Even arguments of constitutional dimension must be argued below if they are to be preserved for appeal. Green v. Smith & Scott Logging, 54 Ark. App. 53, 922 S.W.2d 746 (1996). Because Amy did not raise the constitutional argument, it is not preserved for appeal.
Affirmed.
Robbins and Marshall, JJ., agree.
In a related matter, Amy filed for “child insurance benefits” from the Social Security Administration on behalf of Wade III and was denied benefits by the Appeals Council. She appealed the denial to the United States District Court for the Eastern District of Arkansas. Finley v. Astrue, No. 4:06CV01576 (June 13, 2007). The parties in that case agreed that regarding whetherWade III was entided to social security benefits, the determinative issue was whether he was entided to inherit from Wade Jr. under Arkansas intestacy law. Id. at 5. As such, the parties filed a joint motion to certify the following question of law to the Arkansas Supreme Court:
Does a child, who was created as an embryo through IVF during his parents’ marriage, but implanted into his mother’s womb after the death of his father, inherit from the father under Arkansas intestacy law as a surviving child?
The district court granted the motion to certify the question. Our supreme court accepted the certification. In Finely v. Astrue, 372 Ark. 103, 270 S.W.3d 849 (2008), the court declined the request to define “conception.” Instead, relying on the legislative intent of the posthumous-heir statute, it answered the question in the negative.
Arkansas Code Annotated section 28-9-209(c) (Repl. 2004) provides in pertinent part:
(c) Any child conceived following artificial insemination of a married woman with the consent of her husband shall be treated as their child for all purposes of intestate succession. Consent of the husband is presumed unless the contrary is shown by clear and convincing evidence.
Our supreme court has defined a “posthumous child” as: “A child born after a parent’s death.” Finley, 372 Ark. at 109 n.4,270 S.W.3d at 853 n.4 (citing Black’s Law Dictionary 255 (8th ed. 2004)). | [
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Wendell L. Griffen, Judge.
Dustin Tuck appeals from an order terminating his parental rights in his daughter, AC. He argues that he was denied assistance of counsel; that the Arkansas Department of Human Services (DHS) failed to join him as a party until it moved to terminate his parental rights; and that the evidence was insufficient to warrant termination. We agree with appellant that DHS should have included him in the case earlier in the proceedings. We therefore reverse and remand the termination order.
AC was born on September 7, 2003, to a single, sixteen-year-old mother. The father, appellant Dustin Tuck, was married to another woman when the child was born. On April 27, 2005, the Crawford County Sheriff took the mother and AC into custody, based on the mother’s status as a runaway and as a juvenile in an existing dependency-neglect case. DHS petitioned for emergency custody of AC, which the circuit court granted. The petition and custody order listed AC’s father as unknown.
On or about June 1, 2005, DHS prepared a case plan that established services for the mother and child. The last page of the plan listed appellant as AC’s father. However, the ensuing probable-cause and adjudication orders did not name appellant as a party; nor is there evidence that DHS notified appellant of the hearings. The court adjudicated AC as a dependent juvenile, due to her mother being under eighteen and in DHS custody, and both were placed in foster care together. Thereafter, the court’s orders, including a May 2006 permanency-planning order, continued this living arrangement while still listing AC’s father as unknown.
In November 2006, a DHS report declared that appellant had visited the agency’s office about a year earlier, in October 2005, claiming that he was AC’s biological father. Other DHS documents from late 2006 state that, in December of that year, appellant attended a DHS staffing, expressed an interest in visiting AC, and received background-information forms. The mother even identified appellant as AC’s father during her interactions with a CASA volunteer. A subsequent DHS report, dated January 2007, recognized appellant as AC’s putative father. There is nothing in the record that suggests that paternity was disputed at any time. However, DHS still did not make appellant a party to the case. Consequently, he was not provided with services or named a defendant in any review and planning orders entered from mid 2005 to early 2007.
On April 9, 2007, DHS filed its termination-of-parental-rights petition. For the first time, appellant’s name was listed in the caption, describing him as the putative father of AC. DHS alleged that appellant’s parental rights should be terminated because he failed to establish paternity; failed to visit or provide support for AC; failed to maintain contact with DHS; failed to maintain stable housing and employment; and, inexplicably, failed to comply with case-plan goals or court orders to which he was not a party. Appellant was served with the petition and filed a hand-written response denying its allegations.
The court scheduled a termination hearing for June 2007, but continued it twice so appellant could hire an attorney. Once appellant did so, his attorney immediately filed a motion for a paternity test. Appellant took the test in November 2007, and the court set a termination hearing for January 2008. Appellant objected, arguing that he was never advised of any case-plan goals and that a case plan should be established for him prior to a termination hearing. The trial court declined to continue the hearing, and it proceeded as scheduled once appellant’s paternity of AC was established.
At the hearing, the trial court considered the testimony of several witnesses, then terminated appellant’s parental rights in AC. Ordinarily at this point, we would recount the evidence regarding appellant’s fitness as a parent. However, we need not do so because reversible error occurred at the outset of this case.
We have said it so frequently that it is now axiomatic: few consequences of judicial action are so grave as the severance of natural family ties. See Osborne v. Ark. Dep’t of Human Servs., 98 Ark. App. 129, 252 S.W.3d 138 (2007). As long as there is reason to believe that positive, nurturing parent-child relationships exist, the law favors preservation, not severance, of natural familial bonds. See Santosky v. Kramer, 455 U.S. 745 (1982); Benedict v. Ark. Dep’t of Human Servs., 96 Ark. App. 395, 242 S.W.3d 305 (2006). Once a child has been adjudicated dependent-neglected, there is a presumption that DHS will provide services to preserve and strengthen the family unit. Benedict, supra. A parent’s right to the care and control of his or her child is a fundamental liberty, and termination of parental rights is an extreme remedy in derogation of those rights. See Jones v. Ark. Dep’t of Human Servs., 361 Ark. 164, 205 S.W.3d 778 (2005). This fundamental liberty interest does not evaporate simply because the mother and father have not been model parents. See Osborne, supra. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. Id. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting State intervention into ongoing family affairs. Id.
Accordingly, when the State moves to destroy weakened familial bonds, it must provide parents with fundamentally fair procedures. See id. Our Juvenile Code requires a dependency-neglect petition to set forth the names of the juvenile’s parents and putative parents and designate them as defendants. Ark. Code Ann. §§ 9-27-311 (a)(2), (a)(6), and (c) (Repl. 2008). It also provides that all adult defendants shall be served with a copy of the petition and either a hearing notice or an order to appear, as provided in the Arkansas Rules of Civil Procedure. Ark. Code Ann. § 9-27-312 (Repl. 2008). These elemental protections serve to identify the juvenile and his parents, place them within the system, and facilitate the provision of services in hopes of preserving the family.
Here, for reasons we cannot fathom, DHS did not make appellant a defendant for almost two years despite knowing of his putative fatherhood. And, to compound this grievous error, appellant’s parental rights were terminated without his ever being the subject of a case plan or receiving family services. Clearly, the dictates of sections 9-27-311 and 9-27-312 were not met, nor were basic due-process guarantees. See Jorden v. Ark. Dep’t of Human Servs., 73 Ark. App. 1, 38 S.W.3d 914 (2001) (holding that a putative father has standing to participate in a dependency-neglect proceeding by virtue of being a defendant under Ark. Code Ann. § 9-12-311(c)).
The agency and the ad litem attorney concede that appellant should have been made a party earlier in the case. However, they argue that the failure to do so was harmless error. We disagree. We can envision few things as harmful as a parent or putative parent’s being excluded from a dependency-neglect proceeding until the moment the State seeks to terminate his parental rights. As we stated in Jorden, supra:
[W] e cannot presume that the results of any of the issues will b e the same once [the putative father] is allowed to participate in the proceedings on remand. Therefore, our conclusion that the trial court erred in finding that [the putative father] had no standing is determinative of all the issues raised on appeal, requiring that we reverse and remand on all of them.
73 Ark. App. at 3, 38 S.W.3d at 915-16. Likewise, in the present case, we cannot presume that the outcome will be the same once appellant is allowed to participate as a party-defendant and receive services prior to termination.
DHS and the ad litem attorney also argue that appellant should have intervened in the case and that his non-participation was due to his own lack of diligence or enthusiasm. That argument must be addressed. As previously mentioned in this opinion, Arkansas law is explicit about the duty of the Department of Human Services to provide services to families when instances of dependency and neglect arise. That duty is not triggered by requests by parents. It does not arise because parents are diligent or enthusiastic. The duty to notify a parent or putative parent about a dependency-neglect proceeding exists to satisfy fundamental fairness. Put bluntly, it is fundamentally unfair for a parent or putative parent to be denied legal participation in a proceeding that involves his child. The only thing more unfair would be to terminate parental rights without such notice and opportunity to participate, as occurred in this case.
Remarkably, DHS also argues that appellant was required to prove paternity before he could participate in the case involving AC. That argument is directly refuted by the plain language of Ark. Code Ann. § 9-12-311, which requires that parents and putative parents be named as defendants and afforded legal notice in dependency-neglect proceedings.
Finally, the disturbing history of this case, where DHS sought to terminate the parental rights of a putative father after denying him an opportunity to participate in dependency-neglect proceedings and offering no services to him for almost two years, prompts yet another disquieting concern. It is troubling enough whenever a child has been neglected by a parent. Here, the governmental agency responsible for helping stabilize the family by providing support services to the child and parent refused to even involve appellant until it sought to terminate his parental rights, and never included appellant in any plan concerning his daughter’s care. We expect that the refusal by DHS to perform its duties and the manifestly invalid reasons for that non-performance will be rectified on remand.
Reversed and remanded.
Hart and Hunt, JJ., agree.
The court had already terminated the mother’s parental rights. She is not a party to this appeal. | [
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Sam Bird, Judge.
David Donald Schumacher, appellant/ cross-appehee (hereinafter appellant), appeals from a divorce decree entered by the Washington County Chancery Court contending that the court erred in its determination of the amount of alimony and child support that he should pay, and in its division of the marital assets and debts. Appellee/cross-appellant Rebecca W. Schumacher (hereinafter appellee) also appeals the order, arguing that the court erred in faffing to award to her certain work-related bonuses that were paid to appellant by his employer for 1996 and 1997. We affirm in part and reverse and remand in part on direct appeal, and we reverse and remand on cross-appeal.
Appellant and appellee were married on July 29, 1978. The parties’ only child, a son, was born in 1983, and at that time, appellee quit her employment. The couple separated on August 1, 1996, when appellant moved out of their home. For approximately fours months after he moved out, appellant voluntarily provided financial support to appellee. However, appellant ceased to provide any financial assistance to appellee from December 1996 to May 21, 1997.
In February of 1997, appellant filed for divorce in the Washington County Chancery Court, and appellee filed a counterclaim for separate maintenance. In May 1997, appellant dismissed his complaint for divorce, and the parties reached an agreement settling appellee’s claim for separate maintenance, by which appellee was awarded custody of the parties’ son, possession of their marital home, $750 per month in child support, and $1,500 per month for her separate maintenance. The parties also agreed that each would pay one-half of their marital debts as they became due and payable; however, the agreement did not identify those marital debts by creditor or amount. An amended decree of separate maintenance incorporating the parties’ agreement was filed on July 2, 1997. In June 1997, appellant moved into the home of another woman, and they opened a joint checking account. On July 25, 1997, the appellee filed a complaint for absolute divorce.
Subsequent to the entry of the decree of separate maintenance and before the parties were granted an absolute divorce, the appellant failed to pay appellee the agreed $1,500 monthly separate maintenance. The appellant, instead, reduced appellee’s separate maintenance payments by sums he contended that he was paying on their marital debt, thereby reimbursing himself for appellee’s share of their marital debt that he claimed to be paying for her.
Following a trial on January 6, 1998, the court granted appellee an absolute divorce on the grounds of general indignities. By its decree, the court granted appellee custody of the couple’s son, awarded appellee possession of the marital home and its contents during the minority of their son, ordered appellant to pay $750 per month in child support until their son’s eighteenth birthday, and ordered appellant to pay $1,500 per month in alimony until appellee’s remarriage or death. Appellee was also awarded one-half of the 1,000 shares of Kennametal stock that were owned by the couple, one-half of the money in the checking account that had been opened and maintained by appellant subsequent to the parties’ separation, and one-half of $54,918.84, which the appellant had vested in a 401 (k) retirement savings plan. The court also ordered appellee to maintain the mortgage payments on the mari tal home and ordered the appellant to. maintain the casualty insurance on it.
The appellant brings this appeal arguing six points for reversal. First, he argues that the court erred in refusing to use the child-support chart in setting the amount of child support. Second, he argues that the court abused its discretion in awarding permanent alimony in the amount of $1,500. For appellant’s third, fourth and sixth points, he makes arguments concerning the division of marital property and what constitutes marital property. And appellant argues for his fifth point on appeal that the court erred in ordering him to pay the casualty insurance premiums on the marital residence. We reverse and remand on appellant’s first and second points on appeal, and we affirm on appellant’s other remaining points.
Appellee cross-appeals, arguing that the court erred in refusing to award her one-half of appellant’s work-related bonuses for 1996 and 1997. We agree, and we reverse and remand on appel-lee’s cross-appeal.
Child Support
For appellant’s first point, he argues that the court erred in not setting child support by reference to the most recent revision of the family-support chart. Appellant’s net monthly income was determined to be $6,309. Fie argues that on that amount of monthly income, according to the family-support chart, he should be required to pay $946.50 per month in child support; however the court ordered, instead, that he pay only $750 per month. Appellant makes the seldom, if ever, heard argument that he has not been ordered to pay enough child support. However, he quickly assures us that his motive is less than eleemosynary when he argues that he has been ordered to pay too much alimony, and that while his child support should be increased, the amount the court ordered that he pay in alimony should be reduced. Appellant reasons that since he will probably be required to pay alimony much longer than he will be paying child support, it is financially advantageous to him, and it will also conform with the require- merits of the law, if the child support and alimony are set in accordance with the family-support chart.
After the hearing in which appellee was awarded a divorce, the court made the following oral findings relating to the issues of child support and alimony:
Barely six months ago another Court directed Mr. Schu-macher to pay $1,500.00 a month for separate maintenance and $750 a month of child support. If you add the two figures that the Chart shows it comes to $2,271.00. If you pick up on the $2,250 total from the Order of the other Court, you’ve got [an insignificant difference.] There appears to be no material change of circumstances, therefore, this Court directs that alimony shall be payable in the sum of $1,500.00 a month and child support in the sum of $750.00 per month.
Although the amount of child support a chancery court awards lies within the sound discretion of the chancellor and will not be disturbed on appeal absent an abuse of discretion, reference to the family-support chart is mandatory. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998); Woodson v. Johnson, 63 Ark. App. 192, 975 S.W.2d 880 (1998); Anderson v. Anderson, 60 Ark. App. 221, 963 S.W.2d 604 (1998). See also Ark. Code Ann. § 9-14-106 (Repl. 1998). The family-support chart itself creates a rebuttable presumption that the amount of child support set forth therein is the correct amount of child support to be awarded, and that such amount can be disregarded only if the chancery court makes express written findings or specific findings on the record that application of the support chart is unjust or inappropriate. Woodson v. Johnson and Anderson v. Anderson, supra. Relevant factors to be considered by the court in determining whether to deviate from the amount of child support set by the family-support chart are set forth in Administrative Order No. 10: Arkansas Child Support Guidelines, 329 Ark. 668 (1997).
In the case at bar, the chancellor did not refer to any of these factors when he deviated from the child-support guidelines. He merely referred to the separate-maintenance order entered by a different court six months earlier and stated that there had been no material change of circumstances over the last six months; therefore, he made the same award of alimony and child support. This court will consider a change of circumstances when modifying an existing child-support award. Payton v. Wright, 63 Ark. App. 33, 972 S.W.2d 953 (1998). However, in the case at bar, the chancellor was setting the initial amount of child support incident to the entry of an absolute decree of divorce. While there was in existence in another proceeding an order awarding child support, the court in the case at bar was not modifying an existing child-support award. Although the chancellor did refer to the family-support chart and noted that it called for child support and alimony in the amounts of $946.50 and $1,325.10, respectively, he declined to order payment of those sums by the appellant because their total ($2,271.60) was not significantly different than the total of the amounts of child support and alimony ($2,250) that had been set approximately six months earlier by another court in the disposition of appellee’s action for separate maintenance. Except for noting this insignificant difference in the totals, the chancellor did not make any findings of fact as to whether any of the relevant factors justified a conclusion that the amount of child support set forth in the family-support chart was inappropriate or unjust. Therefore, we reverse and remand as to the issue of child support in order that the chancellor can properly consider whether any of the relevant factors set forth in the Administrative Order No. 10 justify a deviation from the amount of child support fixed by the family-support chart.
Alimony
For appellant’s second point on appeal, he argues that the court abused its discretion in awarding the appellee permanent alimony in the amount of $1,500 per month. First, he argues that the chancellor did not set forth any factors that he considered in making the award. And the appellant asserts that if this court does not reverse the chancellor, then this court should award temporary alimony in the amount of $1,325.10.
The purpose of alimony is to rectify, insofar as is reasonably possible, the frequent economic imbalance in the earning power and standard of living of the divorced husband and wife. Mitchell v. Mitchell, 61 Ark. App. 88, 964 S.W.2d 411 (1998). The award of alimony is a matter resting solely in the chancery court’s discretion. Mitchell v. Mitchell, supra; Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993). The alimony award must always depend upon the particular facts of each case. Dean v. Dean, 222 Ark. 219, 258 S.W.2d 54 (1953). The ability of one party to pay and the need of the other party are primary factors to be considered in awarding alimony. Burns v. Burns, and Mitchell v. Mitchell, supra. To balance these primary factors, a chancery court should consider certain secondary factors, including the financial circumstances of both parties; the amount and nature of the income, both current and anticipated, of both parties; the extent and nature of the resources and assets of each of the parties; and the earning ability and capacity of both parties. Anderson v. Anderson, supra. The chancellor’s award of alimony will not be reversed absent an abuse of discretion. Mitchell v. Mitchell and Anderson v. Anderson, supra. In In Re: Administrative Order No. 10: Arkansas Child Support Guidelines, supra, the supreme court stated that when determining temporary support, a dependent custodian should be counted as two dependents as a guide for determining support. And in final hearings, on issues of alimony, the court should consider all relevant factors, including the chart, in determining the amount of spousal support that should be paid. In Re: Administrative Order No. 10: Arkansas Child Support Guidelines, supra.
In the case at bar, the appellee showed a need for alimony. First, she has not worked full time for fourteen and one-half years so that she could stay at home and raise the couple’s son. Second, a doctor testified that she is precluded from working long hours because of her illnesses. Third, appellee, over the past fourteen years, has never earned more than $800 per year, in the years that she did work. Clearly, she could not find a job in which she would earn enough to keep her in the standard to which she had become accustomed. Because of her testimony and the testimony of her doctor, the chancellor cannot be said to have abused his discretion in awarding alimony.
However, the chancellor did not consider the family-support chart, as the appellant argues, in determining the amount of alimony. Again, he referred to the separate-maintenance award of another court and stated that there had not been a material change of circumstances; therefore, he would award the same amount of child support and alimony. That constituted reversible error; therefore, we reverse and remand this issue to the chancery court in order to consider all relevant factors when determining the amount of alimony that should be awarded.
Marital Property
For appellant’s third, fourth, and sixth points on appeal, he makes certain arguments concerning what is and what is not contained within the definition of marital property. Marital property is defined by Ark. Code Ann. § 9-12-315 (Repl. 1998) as:
(b) ... all property acquired by either spouse subsequent to the marriage except:
(1) Property acquired prior to marriage, or by gift, or by bequest, or by devise, or by descent;
(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
(3) Property acquired by a spouse after a decree of divorce from bed and board;
(4) Property excluded by valid agreement of the parties;
(5) The increase in value of property acquired prior to marriage or by gift, bequest, devise, or descent, or in exchange therefor;
(6) Benefits received or to be received'from a workers’ compensation claim, personal injury claim, or social security claim when those benefits are for any degree of permanent disability or future medical expenses; and
(7) Income from property owned prior to the marriage, or from property acquired by gift, bequest, devise, or descent, or in exchange therefor.
Appellant contends that the trial court erred in finding that deposits that appellant had made into a joint checking account with another individual during the time the separate maintenance decree was in effect were marital property and, thus, appellee was entitled to one-half. He states that during the time he was making these deposits, he was supporting appellee and their son and that the separate checking account was merely for his living expenses. He also argues that the court erred in ordering him to pay one-half of the various credit card debts incurred by the appellee during the separation while he was paying court-ordered separate maintenance. And he argues that the appellee should not have benefitted from the sale of stock because the stock does not constitute marital property.
As defined in § 9-12-315, marital property is all property acquired subsequent to marriage except for those seven categories specifically listed. While the statute does exclude from the marital-property definition property that is acquired after a divorce from bed and board, it does not exclude property that is acquired after a legal separation. Therefore, the funds acquired by appellant and deposited into the joint checking account prior to their divorce are marital property subject to division by the court.
Likewise, the credit card debts incurred by appellee during the period of the parties’ legal separation were marital debts that the chancellor had discretion to divide between the parties.
The 1,000 shares of Kennemetal stock were acquired during the marriage and sold during the marriage, and are considered marital property. The appellant concedes in his argument that he “was vested with a certain amount of company stock, which he sold and deposited the proceeds into a bank account.”
Appellant seems to argue that since he was supporting appel-lee during the legal separation, the marital property should be distributed differently. He cites no authority for this argument. Neither the code nor case law make an exception for the division of marital property that has been acquired after a legal separation has been granted. See Ark. Code Ann. § 9-12-315.
The House
The appellant argues that because the appellee has the use and benefit of the home, he should not be responsible for the insurance payments on the home as ordered by the court. We disagree.
The court has wide discretion in awarding either party the possession of the home, and the award of possession of the home is subject to such terms as the chancellor deems to be equitable and just. Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989); Cantrell v. Cantrell, 10 Ark. App. 357, 664 S.W.2d 493 (1984); Hada v. Hada, 10 Ark. App. 281, 663 S.W.2d 203 (1984). It cannot be said to be unjust that appellant pays the casualty insurance while appellee pays the mortgage payment. When the house is sold, both parties will share in the equity resulting from appellee’s payment of the mortgage. Likewise, should the house be damaged in some way, again both parties would benefit from the insurance proceeds, even though only appellant paid the premiums.
Appellee’s cross-appeal: work-related bonus
Appellee cross-appeals arguing that the court abused its discretion by not awarding her one-half of the appellant’s 1996 and 1997 work-related bonus compensation. In February 1997, the appellant received a bonus of $14,000 for work performed in 1996. The court did not award the appellee one-half of the bonus. The court wrote, “That the Court finds that the defendant received a bonus through his employment during the separation in the amount of Fourteen Thousand Dollars ($14,000.00). That the plaintiff has no interest in said bonus.”
The chancellor also refused to award appellee one-half of the bonus he was to receive in 1998 for work performed in 1997. At trial on January 6, 1998, there was testimony that the amount of the award for 1997 had not yet been determined. The chancellor held that since the amount of the 1997 bonus had not been determined, the appellee was not entitled to one-half of it.
The court erred. Appellee should be awarded one-half of the $14,000 bonus paid to appellant by his employer for 1996, and one-half of the bonus he earned for 1997. See Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987). In Wilson the court held,
Because most of appellee’s bonus accrued and, therefore, was acquired during his marriage to appellant, we hold the chancellor abused his discretion in finding that none of the bonus was mari tal property. Therefore, we reverse and remand this cause on this point.
294 Ark. at 200, 741 S.W.2d at 644. Therefore, we reverse and remand as to this issue, with directions for the chancellor to award appellee one-half of appellant’s 1996 and 1997 work-related bonuses.
Based upon the foregoing, we affirm in part, and we reverse and remand in part on direct appeal, and we reverse and remand on cross-appeal.
Affirmed in part and reversed and remanded in part on direct appeal, and reversed and remanded on cross-appeal.
Hart, J., agrees.
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John Mauzy Pittman, Chief Judge.
This is an appeal from an award of sanctions pursuant to Rule 11 of the Arkansas Rules of Civil Procedure. Appellant Virginia Elder was involved in a motor vehicle accident on March 7,2003. She retained appellee Mark Ford as attorney to represent her in a lawsuit against the driver of the other automobile, Alma Boyd. Appellant subsequently brought a pro se action against Mark Ford alleging legal malpractice in connection with the tort case. The trial court found that appellant failed to raise any genuine issues of material fact and granted Ford’s motion for summary judgment in an order entered June 29, 2006. Appellant filed an appeal with this court, but it was dismissed because she failed to pay the fifing fee. On October 31, 2006, appellant, again acting pro se, filed a complaint in the trial court expressly stating her intent to “re-file” her malpractice claim against Ford. That complaint was based on the same events as the earlier claim. Appellee moved for Rule 11 sanctions on the ground that the lawsuit was frivolous because the claims were barred by res judicata. The trial court granted the motion and entered an order imposing sanctions in the amount of the appellee’s actual expenses in defending the frivolous lawsuit, $2,264.28. Appellant, again acting pro se, now appeals from that order. We affirm.
Many of appellant’s arguments have no bearing on the propriety of the order for sanctions being appealed. These include her renewed allegations that appellant was negligent in his prosecution of her tort claim and her assertions that she has filed a Social Security disability claim as the result of injuries sustained in her traffic accident. Other arguments, such as her allegation that appellee made false statements to the trial judge in order to obtain the summary judgment in the prior action, are unsupported by the record.
The single relevant issue in this appeal is whether the trial judge erred in imposing sanctions. The primary purpose of Rule 11 sanctions is to deter future litigation abuse. Harrison v. Loyd, 87 Ark. App. 356, 192 S.W.3d 257 (2004). Whether a violation of Rule 11 occurred is a matter for the trial court to determine and, because this determination involves matters of judgment and degree, we will reverse a Rule 11 determination on appeal only if the trial court has abused its discretion. Ward v. Dapper Dan Cleaners & Laundry, Inc., 309 Ark. 192, 828 S.W.2d 833 (1992). Rule 11 sanctions are proper when a claim is brought that is obviously barred by the doctrine of res judicata. Parker v. Perry, 355 Ark. 97, 131 S.W.3d 338 (2003).
Under the doctrine of res judicata, or claim preclusion, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action. Francis v. Francis, 343 Ark. 104, 31 S.W.3d 841 (2000). Res judicata bars not only the relitigation of claims that were actually litigated in the first suit but also those that could have been litigated. Id. The test for determining whether res judicata applies is whether matters presented in a subsequent suit were necessarily within the issues of the former suit and might have been litigated therein; when a new action is based on the same events and subject matter as the previous case, and only raises new legal issues and seeks additional remedies, the trial court is correct to find the present case is barred by res judicata. Id. Here, it is clear that appellant’s new action, although not identical, was based entirely on the same events and subject matter as the previous case, and that the additional issues and allegations contained in her second complaint could have been litigated in the prior proceeding.
Although we recognize that most laymen are unfamiliar with the workings of the doctrine of res judicata and that appellant’s mistake is therefore a natural one, the fact remains that she has chosen to represent herself both in the trial court and on appeal, and her right to represent herself in this manner carries with it concomitant responsibilities. Pro se appellants receive no special consideration of their argument and are held to the same standard as licensed attorneys, see Perry v. State, 287 Ark. 384, 699 S.W.2d 739 (1985); if they file frivolous lawsuits, they do so at their peril.
Affirmed.
Baker and Hunt, JJ., agree.
The notice of appeal in this case was signed only by appellant Virginia Elder. Although she purports to represent both herself and her husband, Edward, she is not a licensed attorney and may not represent the interests of others. To the extent that she filed pleadings on behalf of her husband, such actions are nullities. See Davidson Properties, LLC. v. Summers, 368 Ark. 283, 244 S.W.3d 674 (2006). Therefore, we address only Mrs. Elder’s claims on appeal. | [
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Wendell L. Griffen, Judge.
Appellant Rebecca Garcia Strickland appeals from an order terminating her parental rights in CS (born August 13, 2003) and JS (born August 5, 2005). She argues that there was insufficient evidence to warrant termination. We agree and reverse the termination order.
I. Background Information
Appellant is a twenty-six-year-old resident of Drew County. Both of her children suffer from developmental delays, and JS suffers from numerous physical problems as well. In January 2006, the Arkansas Department of Human Services (DHS) submitted an affidavit to the Drew County Circuit Court, seeking emergency custody of the children. The affidavit stated that JS was not attending a Kids First daycare program as prescribed by his doctor; that, when JS did attend, he arrived dirty and needing a bath; and that appellant had picked the children up from daycare in a vehicle with no child seats, accompanied by a cousin who smelled of alcohol. The circuit court granted emergency custody to DHS on February 3, 2006.
On March 31, 2006, CS andJS were adjudicated dependent-neglected. The court approved a goal of parental reunification and directed appellant to obtain stable housing, employment, and transportation; complete parenting classes; and obey court orders and the case plan. Subsequent review orders in June and July 2006 found that appellant had completed parenting classes, assisted with the children’s transportation, visited the children, and maintained stable housing since May 2006. The court allowed an increase in appellant’s visitation.
An October 12, 2006, review order continued the goal of reunification. The court observed that appellant had attended all of JS’s medical appointments and had moved in September 2006 due to a break-in at her home. Appellant was directed to re-enroll in parenting classes, maintain stable housing, and obey the case plan and court orders.
In January 2007, DHS reported that appellant “has done well in the past year.” The report stated that appellant had complied with court orders and the case plan; maintained stable housing and transportation; kept the children overnight on a weekly basis; and ensured the children’s health and safety needs when they were in her care.
A permanency-planning hearing, scheduled for January 2007, was continued based on appellant’s separation from her husband, Jose Garcia-Lopez. Several additional continuances involving Mr. Garcia-Lopez resulted in the permanency-planning hearing not being held until July 12, 2007. Interim court reports and case plans state that appellant did not have stable transportation; had been living in her aunt’s home for six months; and had been encouraged by DHS to obtain her own home.
On August 21, 2007, the court entered a permanency-planning order, stating that reunification was expected by January 1, 2008, based on appellant’s significant progress toward achieving the case-plan goals and her diligent work toward reunification. However, the court pointed out that, while appellant had obtained a car, she had not had her driver’s license reinstated and had not maintained stable housing or attended all of JS’s medical appointments (though it was possible she had not received notice of every appointment). Appellant was ordered to attend JS’s medical appointments; notify DHS if she needed transportation to the appointments; obtain and maintain a safe and stable home; complete another parenting course; maintain visitation; reinstate her driver’s license; and have adequate transportation.
According to DHS reports, appellant made unsuccessful attempts after the hearing to live with her mother and her grandmother. She then obtained her own apartment in September 2007. On October 4, 2007 — before the predicted reunification date and only six weeks after the last order — DHS filed a petition to terminate appellant’s parental rights. On the same day the petition was filed, the court entered a fifteen-month review order, changing the goal of the case to termination of parental rights and adoption. The court found that appellant had completed parenting classes, visited the children, and attended JS’s medical appointments but failed to acquire stable transportation or maintain stable housing, having moved three times since the last hearing.
II. The Termination Hearing
A termination hearing was held on December 13, 2007. Adoption specialist Marrianne Cruce testified that the children were adoptable and that DHS had families for them. Family service worker Jennifer Harper testified that appellant was in partial compliance with the case plan, having completed her parenting classes. However, Harper said, appellant had not acquired stable transportation, was not employed, and had not maintained stable housing for a year, as designated in the case plan. With regard to transportation, Harper admitted that the case plan did not require appellant to own a vehicle and that appellant could comply with the case plan by having readily available transportation. She further acknowledged that the children would not necessarily be endangered by appellant’s relying on others for transportation. Harper also testified that appellant was unemployed due to a disability and received SSI payments of $623 per month. Harper said that appellant could possibly support herself and the children on that income. As for housing, Harper testified that appellant had moved eight times since the case began, prior to moving to her current one-bedroom apartment in September 2007. According to Harper, JS’s medical needs required stable housing. She referenced a letter from Dr. Maryelle Vonlanthen, which stated that JS’s weight gains varied with changes in his living conditions.
CASA volunteer Cynthia Pope testified that she recommended termination of parental rights. Her recommendation was based on appellant’s purported failure to meet three basic requirements of the case plan — stable housing, reliable transportation, and employment. Pope stated, however, that appellant “has a support system in place for her transportation.” She also placed a CASA court report into evidence. The report stated, if appellant continued to move frequently, the children’s medical and emotional well-being could be disrupted. However, it also stated that appellant had no desire to vacate her apartment, that all utilities were in working order, and that appellant could possibly obtain a larger apartment when the children were returned to her. Additionally, the report stated that appellant could be situationally depressed. It referred to appellant’s psychological evaluation, which described appellant’s limited intellectual functioning and cognitive abilities, though it made no recommendation about reunification. Finally, the report noted that appellant was working hard to improve herself and was trying for her GED; that appellant understood the importance of her children’s education; that she loved her children and strongly desired that they be returned to her care; that appellant demonstrated an adequate ability to care for her home; that family members in the area assisted her with transportation; and that appellant “frequently stated her spiritual beliefs and how she used this for guidance and strength.”
Appellant testified that she suffered from a learning disability and had trouble spelling and reading. Because of this, she received $623 in disability payments and food stamps, which covered expenses with money left over. She testified that she had completed three sets of parenting classes and that she visited her children every week. Further, she had acquired a driver’s license. However, she relied on her aunt, who lived in the same apartment complex, or her mother, who lived about twenty minutes away, for transportation. She also said that she could use the Medicaid bus. Appellant said that she understood JS’s medical condition and received training from Arkansas Children’s Hospital on how to care for him. She also said that she had attended all ofJS’s medical appointments that she knew of except one. Appellant said she intended to stay in her apartment complex and would be transferred to a three-bedroom apartment if the children were returned to her. On cross-examination, she testified that her rights had been terminated as to another child and possibly second, although the testimony is unclear. Appellant also said on cross-examination that she did not think she needed counseling, but she would go if she were ordered to.
On rebuttal, Jennifer Harper testified that appellant was not notified about some ofJS’s doctor appointments, but appellant did miss three appointments to which she was “invited.”
III. The Termination Decision
Following the hearing, the court entered an order terminating appellant’s parental rights. The court found that appellant had not been in a stable home environment due to her frequent moves; that appellant’s SSI income might not be enough to support the children; that appellant could not understand some ofJS’s medical needs; that appellant could not read well; and that appellant was depressed, yet declined to seek treatment. Based on these findings, the court ruled that termination was in the children’s best interest and that the following grounds for termination were proved: 1) the children were adjudicated dependent-neglected and continued out of appellant’s custody for twelve months and, despite a meaningful effort by DHS to rehabilitate appellant and correct the conditions that caused removal, those conditions have not been remedied by appellant; 2) the children lived outside appellant’s home for a period of twelve months, and appellant willfully failed to provide significant material support in accordance with her means or maintain meaningful contact with the children; 3) other factors or issues arose subsequent to filing the original dependency-neglect petition that demonstrate a return of the children to appellant is contrary to their health, safety, or welfare and that, despite the offer of appropriate family services, appellant has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the circumstances that prevent return of the children to her. Ark. Code Ann. § 9-27-341(b)(3)(B)(í)(<j); (ii)(fl); and (vii)(a) (Repl. 2008). Appellant filed a timely notice of appeal from the termination order.
IV Standard of Review
Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Smith v. Ark. Dep’t of Human Servs., 100 Ark. App. 74, 264 S.W.3d 559 (2007). A heavy burden is placed upon a party seeking to terminate the parental relationship, and the facts warranting termination must be proven by clear and convincing evidence. Albright v. Ark. Dep’t of Human Servs., 97 Ark. App. 277, 248 S.W.3d 498 (2007). Clear and convincing evidence is that degree of proof which will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Smith, supra. This standard of proof reduces the possibility that a parent’s rights are terminated based solely on a few isolated instances of unusual conduct or idiosyncratic behavior and impresses the fact-finder with the importance of the decision, thereby perhaps reducing the chances that inappropriate terminations will be ordered. See Santosky v. Kramer, 455 U.S. 745 (1982). However, courts are not to enforce parental rights to the detriment or destruction of the health and well-being of the child. Smith, supra.
The law presumes that a fit parent acts in the best interests of his or her children. See Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002). While there is still reason to believe there can be a positive, nurturing parent-child relationship, the law favors preservation, not severance, of natural familial bonds. Santosky, supra. The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. Id.
Our termination statute requires clear and convincing proof that termination is in the child’s best interest, plus clear and convincing proof of at least one of the enumerated grounds for termination. See Smith, supra. We do not reverse the circuit court’s finding of clear and convincing evidence unless that finding is clearly erroneous. See id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. Our review is de novo. Williams v. Ark. Dep’t of Human Servs., 99 Ark. App. 95, 257 S.W.3d 574 (2007).
Discussion
We are firmly convinced that the circuit court erred in terminating appellant’s parental rights. When reviewing termination cases, we are ever mindful of the extraordinary nature of that remedy. As noted above, a heavy burden is placed upon a party seeking to terminate the parental relationship, and the facts warranting termination must be proven by clear and convincing evidence. Albright, supra. Often, this burden is met by a showing of physical or emotional abuse, drug or alcohol abuse, parental indifference, abandonment, severe psychological disturbances, or environmental neglect. Those factors are noticeably absent here. Instead, the termination decision, which forever severed appellant’s parental bonds with CS and JS, was primarily informed by appellant’s numerous moves during the time she was awaiting reunification with her children.
The evidence showed that appellant moved away from her mother shortly after the children were placed in DHS custody. She later lived with Mr. Garcia-Lopez, but they moved after a criminal incident at their home. She moved again when she separated from Mr. Garcia-Lopez, and lived in her aunt’s house for six months, according to at least one DHS report. When she was encouraged by DHS to get her own place, she apparently tried to live with her mother and her grandmother for brief periods. She then acquired her own apartment. By the time of the termination hearing, she had been living in the apartment for approximately three months. At least one other move took place during the case, but the circumstances are not explained in the record.
Unquestionably, appellant was under orders from the trial court to maintain stable housing. The case plan required her to do so for one year. However, nothing in the court orders or case plan required appellant to stay in a fixed location in order to meet that requirement. Appellant always maintained some type of housing, and DHS presented no clear and convincing evidence that any of her residences were unsafe or inappropriate. DHS cites the moves as evidence of an unusually peripatetic or unstable personality, but there are logical explanations for many of the moves. Moreover, they equally connote a continual striving by appellant to maintain suitable housing despite her circumstances.
We believe the termination decision is too important to rest on this factor, given the entirety of the evidence in this case. As late as August 2007, the court lauded appellant’s progress and predicted imminent reunification. Appellant is unquestionably devoted to her children and visited them faithfully throughout the case. Her completion of three sets of parenting classes is a testament to her determination to abide by the case plan and court orders. And, while it appears she may have missed some of JS’s doctor’s appointments during this two-year case, the record reveals some confusion as to whether she received notification of all appointments.
Further, there was no clear and convincing evidence that appellant’s limited cognitive abilities or her possible depression, which was not shown to be anything other than situational, adversely affected her ability to parent JS and CS. Nor was there clear and convincing evidence that appellant’s meager income rendered her unfit. Appellant testified that her disability payments and food stamps covered what few expenses she had, with money left over. DHS witness Jennifer Harper testified that appellant could possibly support herself and the children on that income. It is also noteworthy that, when appellant lost her vehicle after separating from Mr. Garcia-Lopez, she was able to establish a transportation support system that no DHS witness could seriously fault. Jennifer Harper testified that appellant’s obligation to acquire stable transportation did not necessarily require ownership of a car.
We therefore reverse the termination order. The circuit court is directed to conduct an immediate review hearing and either return the children to appellant’s custody or continue reunification services, as appropriate.
Reversed and remanded.
Hart and Hunt, JJ., agree.
Mr. Garcia-Lopez was the father of JS. His parental rights were also terminated. He does not appeal the termination in this proceeding. | [
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Sam Bird, Judge.
Appellant Heather Dawn Czupil’s sole point on appeal is that the Crawford County Circuit Court erred in retaining exclusive, continuing jurisdiction over the parties and the subject matter of this case under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). She makes three arguments to support her contention that the circuit court either lacked subject-matter jurisdiction or abused its discretion in exercising its jurisdiction: (1) the parties’ child, S.J., who is the subject matter of this action, has no significant connection with this state because she was not bom in Arkansas, has never lived in Arkansas, and has lived outside of Arkansas with appellant for over ten years; (2) Arkansas is an inconvenient forum; and (3) the Arkansas court had no jurisdiction to make the initial child-custody determination and therefore has no jurisdiction now. We hold that the Arkansas court had no subject-matter jurisdiction to enter the initial child-custody determination regarding S.J. and therefore reverse the order of the circuit court.
Appellant and appellee, Gregory Thomas Jernigan, were married on March 9, 1996. They separated on July 31, 1996, and were divorced on April 24, 1997, by order of the Crawford County Chancery Court. Although the parties lived in Fort Smith during their marriage, appellant left Arkansas after their separation and before S.J.’s birth. S.J. was born on November 6, 1996, in Georgia, where appellant was then living. While the record does not specify exactly how long S.J. and appellant lived in Georgia, an order modifying visitation entered in June 1999 indicates that they lived in Georgia at that time. Appellee testified that for the first several years after S.J. was born he visited her at appellant’s home in Georgia. Appellant and S.J. later moved to Texas, where they continue to live.
In the divorce decree, the court awarded custody of S.J. to appellant subject to appellee’s right to exercise reasonable visitation. In June 1999, the Arkansas court granted appellee’s motion to modify visitation so that it was governed by the court’s standard order regarding child visitation. On April 24, 2007, appellant filed a petition with the Crawford County Circuit Court to change “venue” from the circuit court in Crawford County to a court in Tarrant County, Texas, where she and S.J. live. She specifically asked the court to release jurisdiction over the case. This appeal arises out of the circuit court’s denial of appellant’s petition.
Child-custody jurisdiction is a matter of subject-matter jurisdiction. See Dorothy v. Dorothy, 88 Ark. App. 358, 360, 199 S.W.3d 107, 109 (2004) (citing Moore v. Richardson, 332 Ark. 255, 964 S.W.2d 377 (1998)). The UCCJEA is the exclusive method for determining the proper forum in child-custody proceedings involving other jurisdictions. Id. (citing Greenhough v. Goforth, 354 Ark. 502, 126 S.W.3d 345 (2003)). Subject-matter 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’ agreement, consent, or waiver. See, e.g., Zolliecoffer v. Post, 371 Ark. 263, 265 S.W.3d 114 (2007); Dorothy, supra; Larson v. Dunn, 474 N.W.2d 34, 39 (N.D. 1991). 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. Dorothy, 88 Ark. App. at 361, 199 S.W.3d at 110. Moreover, the fact that a state has subject-matter jurisdiction to enter a divorce decree does not necessarily confer jurisdiction to make a child-custody determination. Id. In Arkansas, the UCCJEA governs all custody cases having an interstate dimension even if jurisdiction over the dissolution action is undisputed, and it is not necessary to file a separate action under the UCCJEA to invoke its rules. Id.
At issue in this case is the following provision of the UCCJEA:
(a) Except as otherwise provided in § 9-19-204, a court of this state which has made a child-custody determination consistent with§ 9-19-201 or § 9-19-203 has exclusive, continuing jurisdiction over the determination until:
(1) a court of this state determines that neither the child, nor the child and one (1) parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
(2) a court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.
Ark. Code Ann. § 9-19-202(a) (Repl. 2008) (emphasis added).
We first address appellant’s argument that the Crawford County Chancery Court, which entered the parties’ divorce decree and the initial child-custody determination, did not have subject-matter jurisdiction because, under Ark. Code Ann. § 9-19-202(a), only a court “which has made a child-custody determination consistent with § 9-19-201 or § 9-19-203” has exclusive, continuing jurisdiction until it makes either of the two determinations set forth in subsections (1) or (2). Section 9-19-203 applies to jurisdiction to modify an order of another state and is not applicable to this case. Therefore, in order for the circuit court to have had exclusive, continuing jurisdiction it must have made an initial child-custody determination consistent with section 9-19-201.
The circuit court made an “initial child-custody determination” in 1997 in its decree of absolute divorce. In that order, the court awarded custody of S.J. to appellant subject to appellee’s right to exercise reasonable visitation. The UCCJEA was not enacted until 1999. The current UCCJEA provision found at Ark. Code Ann. § 9-19-201, which governs initial child-custody jurisdiction, replaced Ark. Code Ann. § 9-13-203, the provision in the Uniform Child Custody Jurisdiction Act (UCCJA) that governed jurisdiction for initial child-custody determinations. See Dorothy, 88 Ark. App. at 360, 199 S.W.3d at 109-110. Thus, any jurisdiction the circuit court had in 1997 to make an initial child-custody determination regarding S.J. must have derived from the following provision of the UCCJA:
(a) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six (6) months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as a parent continues to live in this state; or
(2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one (1) contestant, have a significant connection with this state and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
(3) The child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
(4)(i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivisions (a)(1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.
Ark. Code Ann. § 9-13-203(a) (Repl. 1993). “Home state” is defined as “the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six (6) consecutive months, and in the case of a child less than six (6) months old, the state in which the child lived from birth with any of the persons mentioned.” Ark. Code Ann. § 9-13-202(5) (Repl. 1993).
The record in this case shows that Arkansas was clearly not the home state of the child in 1997 when the circuit court entered its order. S.J. was born in Georgia, lived with her mother in Georgia, and had never been to Arkansas. Thus, the court could not have acquired jurisdiction under subsection (1). Home state jurisdiction belonged to the state of Georgia. Nor could the court have acquired jurisdiction under subsection (3), as S.J. was living with her mother and had not been abandoned. Subsection (4) would not have applied because Georgia was the home state of the child under subsection (1), and there was no evidence in the record that Georgia had declined to exercise that jurisdiction. Finally, while the court might have attempted to exercise jurisdiction pursuant to subsection (2), using a best-interest analysis, there is no evidence that it even considered the best interest of S.J. in making a jurisdictional determination and there are no findings to that effect in the record. Moreover, as a matter of law, we hold that S.J. could not have had “a significant connection with this state” and that there was not “available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.” S.J. had no connections to Arkansas at all: although her father lived in Arkansas, she was not born in Arkansas and had never been to Arkansas. See, e.g., LeGuin v. Caswell, 277 Ark. 20, 638 S.W.2d 674 (1982) (holding where only contact with state was that father had moved here, state had no jurisdiction over child custody). Further, there was a “home state” and there was no evidence that the home state had declined to exercise its jurisdiction. Thus, while we do not question the court’s jurisdiction to enter an order of divorce, we hold that the court had no subject-matter jurisdiction to enter an initial child-custody determination.
An order entered by a court that acts without subject-matter jurisdiction is void and cannot be enforced. See Rogers v. Rogers, 80 Ark. App. 430, 436, 97 S.W.3d 429, 433 (2003). Therefore, the circuit court in this case did not have continuing, exclusive jurisdiction over the subject matter because its continuing jurisdiction was based on a child-custody determination that was void. We vacate the circuit court’s order in this case and remand with directions for the circuit court to enter an order dismissing this case for lack of jurisdiction.
Reversed and remanded.
Gladwin and Robbins, JJ., agree.
By virtue of Amendment 80 to the Arkansas Constitution, which became effective on July 1,2001, our state courts are no longer chancery and circuit courts. These courts have merged and now carry the designation of “circuit court.” Perkins v. Cedar Mountain Sewer Imp. Dist. No. 43 of Garland County, 360 Ark. 50, 199 S.W.3d 667 (2004). | [
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Josephine Linker Hart, Judge.
Martin Hinojosa entered conditional plea of guilty to the charge of possession of marijuana with intent to deliver, for which he was sentenced to 108 months in the Arkansas Department of Correction. Pursuant to Ark. R. Crim. P. 24.3, Hinojosa reserved the right to appeal the denial of his motion to suppress evidence found in his vehicle. For reversal of that decision, Hinojosa argues 1) because the traffic stop was based on a mistake of law, the trooper conducting the stop did not have probable cause to believe that a traffic violation had been committed; 2) the stop was unlawful because Arkansas Code Annotated section 27-14-716, the statutory provision that the trooper making the stop purported to be invoking, did not apply to him; and 3) even if the stop was valid, the seizure became unlawful when it was prolonged beyond the time necessary to issue a citation in the absence of reasonable suspicion that he was committing a crime. We agree that the stop was unlawful because it was conducted without probable cause, and therefore, we reverse and remand.
Because we find Hinojosa’s second point dispositive of this case, we shall limit our discussion to that argument. At Hinojosa’s suppression hearing, Sergeant Kyle Drown of the Arkansas State Police testified that he stopped Hinojosa’s vehicle because it had an improperly displayed license plate, a violation of Arkansas Code Annotated section 27-14-716 (Repl. 2008). Sergeant Drown stated that the license-plate bracket “completely covered the state name.” He asked Hinojosa if he could tell where the plate was from, and Hinojosa admitted he could not. Hinojosa also admitted that he had previously been stopped for that very violation. Pictures introduced into evidence confirmed that the bracket that secured Hinojosa’s plate had a thin metal strip that covered the outer edge of the right and left sides. That thin strip also extended over the month and year stickers, but widened to a larger strip emblazoned with the word “HONDA” that completely covered “Arizona” on the plate. However, to the left of and below the registration characters was a stylized desert landscape with prominent cacti. On the right side, below the second set of registration characters was the Arizona nickname “GRAND CANYON STATE.”
On cross-examination, Sergeant Drown admitted that he had seen over 100 Arizona license plates. He acknowledged that he knew that there was a cactus symbol on the Arizona plate. Further, Sergeant Drown stated that he was “familiar” with the fact that the Grand Canyon lies in Arizona and that if he saw a license plate with “Grand Canyon State” on it, he would know that it would mean Arizona. Sergeant Drown stated that he recognized that Hinojosa’s license plate was from Arizona. Further, he stated that he was familiar with Arkansas traffic regulations, but not those of Arizona.
Based on Sergeant Drown’s testimony and the pictures of the license plate, the trial court denied Hinojosa’s motion to suppress. Hinojosa then entered a conditional guilty plea, reserving his right to appeal.
In reviewing the denial of a motion to suppress evidence, 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. Simmons v. State, 83 Ark. App. 87, 118 S.W.3d 136 (2003). In our review, we defer to the superior position of the trial judge to pass upon the credibility of witnesses. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003).
Hinojosa contends that the trial court erred in denying his motion to suppress because Sergeant Drown’s traffic stop was based on a mistake of law, and therefore he did not have probable cause to believe that a traffic violation had been committed. He asserts that although the trooper purported to stop him for violating Arkansas Code Annotated section 27-14-716 (Repl. 2006), that section was not applicable to out-of-state vehicles. Instead, he argues that because a general statute must yield to a specific one, in this case Arkansas Code Annotated section 27-14-704 (Repl. 2006), which concerns motor vehicles registered outside the State of Arkansas, is the applicable law. Under section 27-14-704, vehicles registered out-of-state are only required to have license plates that “conspicuously display the registration numbers.” We find this argument persuasive.
In order for a police officer to make a traffic stop, he must have probable cause to believe that the vehicle has violated a traffic law. Meraz-Lopez v. State, 92 Ark. App. 157, 211 S.W.3d 564 (2005). Probable cause is defined as “facts or circumstances within a police officer’s knowledge that are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected.” Burks v. State, 362 Ark. 558, 559-60, 210 S.W.3d 62, 64 (2005).
First, we agree with Hinojosa’s assertion that section 27-14-704, captioned “Motor vehicles registered in foreign states” controls over section 27-14-716, captioned “Display of license plates generally.” It is axiomatic that a general statute does not apply and must yield where there is a specific statute addressing a particular subject matter. Osborne v. State, 94 Ark. App. 337, 230 S.W.3d 290 (2006). Under section 27-14-704, as Hinojosa notes, all that was required was that his plate “conspicuously display the registration numbers.”
Having decided what the applicable law is in this case, we next consider the evidence of its violation and find it lacking. It is not disputed that the registration number of Hinojosa’s vehicle was conspicuously displayed. Furthermore, Sergeant Drown testified that he had seen more than 100 Arizona license plates, and he admitted that he recognized the license plate on Hinojosa’s vehicle as an Arizona license plate. Accordingly, there were no facts or circumstances that would permit a person of reasonable caution to believe that an offense had been committed. We therefore reverse the trial court’s denial of Hinojosa’s motion to suppress and remand for further proceedings consistent with this opinion.
In deciding this case today, we are mindful that in Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998), the supreme court rejected a mistake-of-law argument. However, we believe that Travis is distinguishable. In Travis, the appellant was stopped based on a deputy’s erroneous belief that Texas law required an expiration sticker to be displayed on the license plate, in the same manner as is required by Arkansas law. In the instant case, only Arkansas law was at issue, and there clearly was no violation of the applicable Arkansas statute. Pursuant to Arkansas Code Annotated section 12-8-101 (Repl. 2003), the Department of the Arkansas State Police was created for the express purpose of enforcing our motor vehicle laws. We hold that it is not reasonable for a trooper to stop a vehicle because he or she was not thoroughly familiar with this discrete body of law.
Reversed and remanded.
Hunt, J., agrees,
Griffen, J., concurs. | [
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John B. Robbins, Judge.
Appellant Charleen Elaine Costes was on a suspended sentence for several drug-related offenses dating back to 2002 when she was accused of violating the terms of her suspension in 2007 by possessing a small amount of methamphetamine along with drug paraphernalia. The contraband was found subsequent to a stop of the van she was driving and a search of the contents of the van, including her purse. After a revocation hearing conducted in October 2007, the trial judge in Sebastian County Circuit Court revoked her suspension on the basis that she possessed methamphetamine, sentencing her accordingly.
On appeal, appellant first contends that the search and seizure of drugs from a container in her purse violated her rights to be free from unreasonable searches. Specifically, appellant contends that the State failed to demonstrate that the consent she gave the officer was voluntary, and even if it was, the search exceeded the scope of her consent because she allowed him to search her vehicle, not her purse sitting in the vehicle. As her second point on appeal, appellant argues that the State failed to ensure that her conditions of suspension were entered into evidence, such that no revocation could be considered. Finally, appellant challenges the sufficiency of the State’s proof that she possessed a “usable” amount of drugs in her purse or that she possessed drug paraphernalia. We hold that only the sufficiency-of-the-evidence issue is preserved for review, but that the trial court’s decision to revoke is supported by a preponderance of the evidence. Therefore, we affirm.
Following our supreme court’s ruling in Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001), the requirements of Rule 33.1 of the Arkansas Rules of Criminal Procedure regarding motions for dismissal and directed verdicts were no longer applicable to revocation hearings. As a result, an appellant need not move for dismissal of a revocation petition in order to challenge the sufficiency issue on appeal. Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001); Brown v. State, 85 Ark. App. 382, 155 S.W.3d 22 (2004).
Probation may be revoked upon a finding by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of the probation. Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998). The trial court’s findings will be upheld unless they are clearly against the preponderance of the evidence. Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001). The State need only prove one violation in order to support revocation. Cheshire v. State, 80 Ark. App. 327, 95 S.W.3d 820 (2003). In a challenge to the sufficiency of the evidence, the evidence is viewed in the light most favorable to the State. See Gamble v. State, 351 Ark. 541, 95 S.W.3d 755 (2003). Because the burdens are different, evidence insufficient for a conviction may be sufficient to support a revocation. See Jones v. State, 355 Ark. 630, 144 S.W.3d 254 (2004).
Flere, the allegation was that appellant possessed a small amount of drugs, which she contends is not a “usable” amount. There is no provision in our Controlled Substances Act, codified at Ark. Code Ann. § 5-64-101 etseq., mandating that one must possess a usable amount of methamphetamine to support a conviction for possession. Nevertheless, our supreme court adopted a usable-amount criteria in Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990). Possession of a trace amount or residue which cannot be used and which the accused may not even know is on his person or within his control does not suffice. Harbison v. State, 302 Ark. 315, 322, 790 S.W.2d 146, 151 (1990) (cited with approval in Porter v. State, 99 Ark. App. 137, 257 S.W.3d 919 (2007)). Here, the State Crime Laboratory chemist weighed and tested the drug, determining it to weigh 4.3 milligrams. While not much, it was usable and, obviously, was measurable. See also Sinks v. State, 44 Ark. App. 1, 864 S.W.2d 879 (1993) (holding that 0.024 grams of cocaine was usable because the cocaine was capable of quantitative analysis, could be seen with a naked eye, was tangible and could be picked up, and was a clearly measurable amount that satisfied the requirements of Harbison). This is sufficient to support revocation.
Appellant also argues that there was insufficient evidence to revoke on the possession-of-paraphernalia allegation, which apparently related to the cotton found inside the container holding the methamphetamine. The arresting officer testified that cotton is commonly used as a filtering device by intravenous drug users. The trial court did not base the revocation on the State’s allegation of possession of drug paraphernalia, but rather possession of methamphetamine, rendering this argument moot.
Appellant attempts on appeal to challenge the search and seizure of the contraband from her purse. The testimony on this issue showed that after appellant’s vehicle was pulled over, she freely gave consent to search it and at no time limited the scope of her consent. Inside, she left her purse, which contained the small amount of methamphetamine and cotton. Any argument about this search, or the scope of it, is not preserved for appellate review. There was never a motion to suppress; there was never an objection on the scope of the consent received; there was never an objection to the admission into evidence of the laboratory results on the drugs. One who does not object to the introduction of evidence at the first opportunity waives such an argument on appeal. Marts II v. State, 332 Ark. 628, 968 S.W.2d 41 (1998).
Even had she presented suppression arguments to the trial court, the Rules of Evidence are not strictly applicable to revocation proceedings, with certain exceptions not present here, such that she would have no basis to appeal a suppression issue. See Deere v. State, 59 Ark. App. 174, 954 S.W.2d 943 (1997). For instance, an exception may exist if the probationer can prove a lack of good faith by the law-enforcement officers. Cook v. State, 59 Ark. App. 24, 952 S.W.2d 677 (1997). However, appellant has not attempted to demonstrate that the officer acted in bad faith. In snm; appellant failed to preserve any issue with respect to the admission of the evidence of drugs and paraphernalia found in her vehicle.
Appellant inserts a comment in her argument that the State failed to enter into evidence the conditions ofher suspension upon which to establish any violation. The State correctly notes that this argument is raised for the first time on appeal and is consequently not preserved for review. See Whitener v. State, 96 Ark. App. 354, 241 S.W.3d 779 (2006). Whether there is proof that a probationer received written conditions of probation is a procedural matter, and not one of the sufficiency of the evidence, because the purpose of providing the conditions in writing is to prevent confusion on the probationer’s part. See Nelson v. State, 84 Ark. App. 373, 141 S.W.3d 900 (2004). Moreover, appellant concedes in her brief to us that “possession of methamphetamine and possession of drug paraphernalia would, if supported by sufficient evidence, constitute violations ofher conditions of suspended sentence.” Furthermore, the record contains the file-marked written conditions to which appellant agreed in order to receive a suspended sentence.
The dissenting judge in this case believes that our court should overrule Whitener, supra, for the same reasons stated in his dissent to Whitener. That case was decided by a five-to-one majority. Appellant has not asked that we revisit that precedent nor does she cite that case in her brief, instead focusing her argument on the sufficiency of the proof, as have we. We adhere to the established case law.
For the foregoing reasons, we affirm the revocation of appellant’s suspended sentence.
Hart, Vaught, Heffley, and Baker, JJ., agree.
Griffen, J., dissents. | [
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Sam Bird, Judge.
Appellants Joshua Dachs, individually, and Joy Dachs, as special personal representative of the estate of Elizabeth Dachs, deceased, appeal the Greene County Circuit Court’s order granting summary judgment in favor of appel-lees Dr. Barry Hendrix; Family Practice Clinic; Hendrix Medical Services, PLLC; and Paragould Physicians Management, LLC (collectively, the physician defendants); Rebecca Fisher, L.P.N.; Cynthia Bartholomew, R.N.; Arkansas Methodist Hospital Corporation; and Continental Casualty Company (collectively, the hospital defendants). The Dachses assert that the circuit court erred in finding that the complaint was barred by limitations and that the complaint was a nullity. We affirm.
According to the complaint as amended, Joy Dachs presented at Arkansas Methodist Hospital in Paragould, where, after an emergency C-section, the deceased was stillborn on September 1, 2004. On November 3, 2004, an estate was opened for the deceased, and Joy Dachs was appointed special personal representative. Letters of administration were issued that same day.
The original complaint in this case was filed on August 25, 2006, by “Joy Danielle Dachs and Joshua Allen Dachs.” The complaint was a wrongful-death and survival action alleging medical negligence on the part of both the physician defendants and the hospital defendants relating to care provided to Joy Dachs, which proximately caused the death of the deceased. The complaint did not mention that Joy Dachs had been appointed special personal representative of the deceased’s estate or that she was acting as such in bringing the action.
On March 16, 2007, an amended complaint was filed by “Joy Danielle Dachs and Joshua Allen Dachs, Individually, and by Joy Danielle Dachs as Special Personal Representative of the Estate of Elizabeth Anne Dachs, Deceased.” The amended complaint contained an allegation that Joy Dachs had been appointed as special personal representative of the deceased’s estate.
On March 20, 2007, the hospital defendants filed a motion for summary judgment alleging that the Dachses lacked standing to bring the claims alleged in the original complaint. Therefore, the motion continued, the Dachses never properly commenced an action, and their claims were now time barred by the applicable two-year statute of limitations. The hospital defendants filed a second motion for summary judgment incorporating their previous motion to address the Dachses’ amended complaint. The physician defendants filed a motion for summary judgment which incorporated by reference the motion of the hospital defendants.
In response, the Dachses made two arguments. They first argued that the deceased’s estate and Joy Dachs’ capacity as its personal representative were not mentioned in the original complaint due to a “scrivener’s error.” They also argued that the original complaint was not a nullity because it included claims for injuries and harm to Joy Dachs and Joshua Dachs, as individuals, beyond the wrongful death claim. The Dachses argued that, because their individual claims were timely filed, Arkansas Rules of Civil Procedure 15 and 17 allowed the amended complaint to relate back to the filing of the original complaint. For their second argument, the Dachses asserted that the tolling provision found in Ark. Code Ann. § 16-114-203(c) (Repl. 2006) was amended to remove the death of a minor child as an event which would remove the disability of minority.
After a hearing, the circuit court ruled from the bench and granted the motions for summary judgment. However, the court ruled that any claims for injuries suffered by Joy Dachs individually would remain viable. The court also agreed to certify, pursuant to Arkansas Rule of Civil Procedure 54(b), the order as final for purposes of appeal. In its written order, the court found that the Dachses did not have standing to bring the wrongful-death claims in the original complaint because, when it was filed, Joy Dachs had already been appointed personal representative, that the wrongful-death and survival claims of the amended complaint could not relate back to the original complaint and were barred by the statute of limitations, and that the section 16-114-203(c) tolling provision did not apply. This appeal followed.
In this summary-judgment matter, there is no dispute as to any material fact. In cases where the parties agree on the facts, appellate courts simply determine whether the appellee was entitled to judgment as a matter of law. Swaim v. Stephens Prod. Co., 359 Ark. 190, 196 S.W.3d 5 (2004); Delt v. Bowers, 97 Ark. App. 323, 249 S.W.3d 162 (2007).
The Dachses first argue that the original complaint filed August 25, 2006, was not a nullity and that the amended complaint filed March 22, 2007, properly related back to the filing of the original complaint. We disagree. There are two causes of action that arise when a person’s death is caused by the negligence of another: (1) a cause of action for the estate under the survival statute, Ark. Code Ann. § 16-62-101, and (2) a cause of action for the statutory beneficiaries under the wrongful-death statute, Ark. Code Ann. § 16-62-102. Miller v. Centerpoint Energy Res. Corp., 98 Ark. App. 102, 250 S.W.3d 574 (2007). Under Arkansas Code Annotated section 16-62-101 (Repl. 2005), only the personal representative can file a survival action. Furthermore, pursuant to Arkansas Code Annotated section 16-62-102(b) (Repl. 2005), every wrongful-death action “shall be brought by and in the name of the personal representative of the deceased person. If there is no personal representative, then the action shall be brought by the heirs at law of the deceased person.” Ark. Code Ann. § 16-62-102(b). “An action for wrongful death brought by a plaintiff in his capacity as an administrator pursuant to Ark. Code Ann. § 16-62-102 involves neither the same action, nor the same plaintiff as in a survival action brought by the same person in his individual capacity pursuant to Ark. Code Ann. § 16-62-101.” St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, 348 Ark. 197, 205, 73 S.W.3d 584, 589 (2002). A survival claim is simply a claim by the injured party that would have ended upon his death at common law. The legislature enacted a survival statute allowing those claims to survive the injured party’s death. See Myers v. McAdams, 366 Ark. 435, 236 S.W.3d 504 (2006).
The question becomes whether the Dachses filed a proper complaint within the two-year limitations period. The Dachses filed their original complaint on August 25, 2006. At that time, Joy had already been appointed personal representative of the estate. Therefore, neither Joshua nor Joy Dachs, individually, had standing to bring the wrongful-death or survival claims. That Joy Dachs was proceeding in her individual capacity is shown by the fact that there are no allegations that she was the appointed personal representative of the estate. See Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004). Therefore, the circuit court was correct to conclude that the amended complaint, filed March 22, 2007, was barred by the statute of limitations because it was filed more than two years after the death of Elizabeth Dachs.
The Dachses argue that because they asserted individual claims outside the scope of the wrongful-death claim, the amended complaint could relate back to the filing of the original complaint. Joy Dachs’ individual claims were not resolved by the summary judgment and are not before this court. However, Joshua Dachs’ individual claims are before us. Joshua Dachs asserts that “[b]oth parents suffered the horror of a still-born birth and the resultant emotional trauma. These damages are outside of the wrongful-death act and sustainable by the parents in their own right.” We do not agree that the damages alleged by Joshua Dachs are outside of the wrongful-death act and, therefore, sustainable by him individually.
Pursuant to Arkansas Code Annotated section 16-62-102(f)(2) (R.epl. 2005), mental anguish damages in a wrongful-death case include grief normally associated with the loss of a loved one. Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003). Claims for mental anguish cannot be asserted by an individual in a wrongful-death case where a personal representative of the deceased’s estate has been appointed. See Dawson v. Gerritsen, 295 Ark. 206, 748 S.W.2d 33 (1988). Joshua Dachs has thus failed to assert any individual claims for himself outside of the wrongful-death statute that the amended complaint could relate back to. Therefore, the circuit court did not err in finding that the amended complaint did not relate back to the original complaint.
For their second argument, the Dachses contend that the statute of limitations on the wrongful-death and survival claims has not run. It is undisputed that more than two years elapsed between Elizabeth Dachs’ being stillborn on September 1, 2004, and the amended complaint being filed by Joy Dachs as the personal representative of the deceased’s estate on March 22, 2007. Therefore, unless the running of the statute was somehow tolled, it is clear from the above discussion that the claims are barred.
The Dachses rely on the legislative history of the Medical Malpractice Act, codified at Ark. Code Ann. §§ 16-114-201 to -209 (Repl. 2006), to argue that the death of their infant daughter did not trigger the running of the statute of limitations. The statute of limitations provision is now codified at Ark. Code Ann. § 16-114-203. As originally enacted, there was a two-year statute of limitations, but the limitations period for minors was extended until their nineteenth birthday.
In 1991, section 16-114-203 was completely rewritten by Act 997. That act continued the two-year limitations period and addressed injuries to minors in the following subsections of section 16-114-203:
(c) Except as otherwise provided in the subsection (d) of this section, if at the time at which the cause of action for medical injuries occurring from obstetrical care shall or with reasonable diligence might have first been known or discovered, the person to whom such claim has accrued shall be nine (9) years of age or younger, then such minor or the person claiming through such minor may notwithstanding that the period of time limited pursuant to subsection (a) of this section shall have expired, commence action on such claim at any time within two (2) years next after the time at which the minor shall have reached his ninth birthday, or shall have died, whichever shall have first occurred.
(d) If, at the time at which the cause of action for medical injuries occurring from obstetrical care shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be a minor without a parent or legal guardian, then such minor or the person claiming through such minor may, notwithstanding that the period of time limited pursuant to subsection (a) of this section shall have expired, commence action on such claim at any time within two (2) years next after the time at which the minor shall have a parent or legal guardian or shall have died, whichever shall have first occurred; provided, however, that in no event shall the period of limitations begin to run prior to such minor’s ninth birthday unless such minor shall have died.
1991 Ark. Acts 997, § 1 (emphasis added).
In 1995, section 16-114-203 was again rewritten by Act 735. The act addressed claims by minors as follows:
(c) If an individual is nine (9) years of age or younger at the time of the act, omission, or failure complained of, the minor or person claiming on behalf of the minor shall have until the later of the minor’s eleventh birthday or two (2) years from the act, omission, or failure in which to commence an action. However, if no medical injury is known and could not reasonably have been discovered prior to the minor’s eleventh birthday, then the minor or his representative shall have until two (2) years after the medical injury is known or reasonably could have been discovered, or until the minor’s nineteenth birthday, whichever is earlier, in which to commence an action.
1995 Ark. Acts 735, § 1.
The Dachses highlight the “shall have died” language in the 1991 amendment and the omission of such language in the current version of the statute. The Dachses assert that, because of that change in the language, the general assembly intended to eliminate the death of a child under nine as ending the tolling of the statute of limitations. In other words, they contend that the limitations period does not expire until the date on which Elizabeth Dachs would have turned eleven years of age.
The Dachses misinterpret the legislative history of these acts. As can be seen, both the 1991 and 1995 amendments dramatically shortened the length of time a minor has to bring an action for medical injury from the length of time allowed by the 1979 Act. Those amendments also provide that minors over the age of nine are to be treated as adults in terms of only having two years in which to bring their claim for medical injuries, while minors under the age of nine years shall have until the later of their eleventh birthday or two years from the event giving rise to the cause of action to bring suit. The 1991 amendment created a narrow, specific exception for minors with claims for medical injuries occurring from obstetrical care. The 1995 amendment broadened the savings provision for minors to include all medical injuries, not just those arising from obstetrical care. See Raley v. Wagner, 346 Ark. 234, 57 S.W.3d 683 (2001); Shelton v. Fiser, 340 Ark. 89, 8 S.W.3d 557 (2000). In other words, instead of removing the death of the minor as an event triggering the statute of limitations, the 1995 amendment indicates a legislative intent to allow all minors under the age of nine years to have until their eleventh birthday to file suit for medical injuries, not just those who suffered injuries from obstetrical care.
Furthermore, we are persuaded by cases from other jurisdictions that the minority tolling provisions of Ark. Code Ann. § 16-114-203 do not apply where only a personal representative can bring a wrongful-death or survival medical malpractice case. Runstrom v. Allen, 345 Mont. 314, 191 P.3d 410 (2008); see also Anderson v. R & D Foods, Inc., 913 So. 2d 394 (Miss. Ct. App. 2005); Walberg v. St. Francis Home, Inc., 697 N.W.2d 36 (Wis. 2005).
Runstrom is particularly instructive. Montana has a general, three-year statute of limitations for tort actions, as well as a three-year statute of limitations for medical malpractice actions. Mont. Code Ann. §§ 27-2-204, 27-2-205 (2007). Montana’s statute of limitations for medical malpractice actions has a tolling provision for injuries to minors:
[NJotwithstanding the provisions of [the general tolling statute], in an action for death or injury of a minor who was under the age of 4 on the date of the minor’s injury, the period of limitations [for medical-malpractice actions] begins to run when the minor reaches the minor’s eighth birthday or dies, whichever occurs first, and the time for commencement of the action is tolled during any period during which the minor does not reside with a parent or guardian.
Mont. Code Ann. § 27-2-205(2). The appellant in Runstrom argued that the “or dies” language in section 27-2-205(2) and the omission of such language in the general tolling statute demonstrated a legislative intent for the death of the minor patient to end “eighth birthday” tolling in survival medical malpractice actions involving children injured before age four, but not to end minority tolling before a child’s eighteenth birthday in survival medical malpractice cases involving minors injured at age four or older. This was important because the child in that case was sixteen years of age. The Montana court rejected the argument, holding that the tolling provisions do not apply where only a personal representative can bring the action. We find this reasoning sound because, like Montana, Arkansas law requires the appointed personal representative to bring the wrongful-death or survival actions.
For the reasons set forth above, we hold that the circuit court did not err in finding that the tolling provisions of section 16-114-203(c) did not apply.
Affirmed.
Gladwin and Robbins, JJ., agree. | [
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George Rose Smith, Justice.
On November 15,1984, the appellant was charged with having committed rape on or about January 15, 1984, by engaging in sexual intercourse or deviate sexual activity with a girl under the age of eleven. The jury found him guilty and imposed a 35-year sentence. There is no merit in his three arguments for reversal.
It is first contended that the appellant’s signed confession was involuntary and should not have been received in evidence. At the suppression hearing the appellant testified that the police officers compelled him to sign the statement, which he said was not true. The State presented convincing proof to the contrary. The officers testified that Huffman had not wanted to make a statement when he was arrested, but after three or four days he said he wanted to see the sheriff and make a statement. According to the officers, Huffman made the statement voluntarily. At the hearing Huffman admitted the truth of parts of the statement, relating to his childhood and his first job. His description of the criminal incident was the same as that given by the child in her testimony at the trial. We have reviewed the testimony taken at the suppression hearing and find that the statement was voluntarily made.
A second argument is that the court should have granted a continuance when, just before the trial began, the State was allowed to amend the information to allege that the crime occurred between November 1,1983, and January 15,1984. No prejudice resulted from the court’s action. In a case of this kind the particular time is not an ingredient of the offense; so the amendment was permissible. Ark. Stat. Ann. § 43-1015 (Repl. 1977); Scoggins v. State, 258 Ark. 749, 528 S.W.2d 641 (1975). The prosecutrix testified that there was intercourse both before and after Christmas (1983). In view of the statute making a variance in time immaterial, we fail to see how the defense was affected by the amendment.
A third argument is that the State’s proof was insufficient, but the appellant concedes that if the confession was admissible, as we hold it to have been, this point is not well taken.
Affirmed.
Purtle, J., not participating. | [
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Robert H. Dudley, Justice.
The appellee in this case is A.L. Lockhart, Director of the Arkansas Department of Correction. Appellant, Johnny Charles Brown, is an inmate in the Department of Correction. Appellant sought a declaratory judgment stating that appellee had erroneously applied Act 93 of 1977 in determining his parole eligibility date. Appellant also sought a writ of mandamus ordering appellee to make him eligible for parole after serving one-third (Í/3) of his sentence. The lower court denied the relief sought by appellant. We affirm.
Appellant was arrested and charged with the commission of a rape that occurred on May 1,1978. He was found guilty of that charge by a Pulaski County Circuit Court jury and was sentenced to serve thirty-five (35) years in the Arkansas Department of Correction. Appellant had a prior federal conviction for possession of a stolen government check. He committed that crime prior to 1977 and served six (6) months in a federal prison in Missouri with two and one-half {2Vi) years on probation. He was still on probation in connection with the stolen check charge when he committed the rape in May 1978.
Appellee classified appellant as a second offender under Act 93 of 1977. Ark. Stat. Ann. § 43-2828 (2) (Repl. 1977). As a second offender under that act, appellant would have to serve one-half (V2) of his 35 year sentence before becoming eligible for parole. Ark. Stat. Ann. § 43-2829 B. (3) (Repl. 1977).
Ark. Stat. Ann. § 43-2829 B. (3) provides in pertinent part:
B. Persons who commit felonies on and after April 1,1977, and shall be convicted and incarcerated for the same, shall be eligible for release on parole as follows:
(3) Inmates classified as second offenders under this Act upon entering a correctional institution in this State under sentence from a circuit court shall not be eligible for release on parole until a minimum of one-half (W) of their sentence shall have been served, with credit for good time allowances, ....
Appellant committed the rape for which he is currently serving a 35 year sentence in May 1978. Ark. Stat. Ann. § 43-2829 B. (3) governs the calculation of appellant’s parole eligibility date. Accordingly, he must serve a minimum of one-half (V2) of the 35 year sentence, with credit for good time, before he will become eligible for parole.
In an effort to avoid the clear application of Ark. Stat. Ann. § 43-2829 B. (3), appellant first argues that Ark. Stat. Ann. § 43-2829 D. and E. (Repl. 1977) place persons who commit a felony while they are on probation from an earlier sentence in a different category from § 43-2829 B. (3). He cites Bosnick v. Lockhart, 283 Ark. 206, 672 S.W.2d 52, supp. op., 677 S.W.2d 292 (1984) as controlling authority for that proposition. He concludes that he should only be required to serve one-third (í/3), rather than one-half (Í/2), of his sentence before becoming eligible for parole. Appellant’s argument is a house of cards which collapses under scrutiny.
Ark. Stat. Ann. § 43-2829 D. (Repl. 1977) provides in pertinent part:
Any person found guilty of a felony and placed on probation or suspended sentence therefor, who is subsequently found guilty of another felony committed while on probation or suspended sentence, shall be committed to the Department of Correction to serve the remainder of his suspended sentence plus the sentence imposed for the subsequent felony. The sentence imposed for the subsequent felony is to be served consecutively with the remainder of the suspended sentence.
(Emphasis added)
Ark. Stat. Ann. § 43-2829 E. (Repl. 1977) provides:
For parole eligibility purposes, consecutive sentences by one or more courts, or for one or more counts, shall be considered as a single commitment reflecting the cumulative sentence to be served.
(Emphasis added.)
In Bosnick, supra, we stated that “[i]n treating consecutive sentences as a single commitment, we hold that the parole eligibility statute governing the original sentence is the one that should control the cumulative sentence.” (Emphasis added.) Subsections D. and E. and the quoted portion from Bosnick all address situations involving consecutive, cumulative sentences. Using those authorities, appellant attempts to bootstrap himself onto the more lenient parole eligibility statute which was in effect at the time he committed the earlier federal felony. See Ark. Stat. Ann. § 43-2829 A. (Repl. 1977). That is, he argues that under those authorities, his three (3) year sentence on the earlier federal felony conviction and his 35 year sentence on the state felony conviction constitute a single sentence of 38 years, and that under Bosnick, the more lenient parole eligibility statute in effect when he committed the earlier federal felony should apply.
In making that argument, however, appellant relies more upon fiction than upon fact. He completely ignores the fact that his prior felony conviction was in federal court stemming from a federal charge. Arkansas statutes governing parole eligibility do not apply with respect to sentences imposed by federal courts or other state courts outside of Arkansas. Arkansas simply has no authority over sentences imposed in other jurisdictions. Appellant is serving only one sentence in the Arkansas Department of Correction, the 35 year state sentence for rape. That 35 year sentence is not being served consecutively with his sentence on the federal felony conviction. Consequently, Ark. Stat. Ann. § 43-2829 D. and E. and Bosnick, supra, are not applicable to the case at hand. Appellant must serve a minimum of one-half of the 35 year sentence, with credit for good time, before he will become eligible for parole. Ark. Stat. Ann. § 43-2829 B. (3) (Repl. 1977).
For his second point of appeal, appellant argues that it is unconstitutional to apply Act 93 of 1977 in determining his parole eligibility date because it violates the Ex Post Facto Clause. This argument is also without merit.
In Bosnick, supra, we quoted from the United States Supreme Court case of Weaver v. Graham, 450 U.S. 24 (1981):
The ex post facto prohibition forbids the Congress and the States to enact any law “which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” (citations omitted) Through this prohibition, the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed. (Cites omitted)
In accord with these purposes, our decisions prescribe that two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. . . .
[I]t is the effect, not the form, of the law that determines whether it is ex post facto. The critical question is whether the law changes the legal consequences of acts completed before its effective date.
(Emphasis added)
There are two critical elements which must be present for a criminal penal law to be ex post facto: 1) it must be retrospective, that is, it must apply to events occurring before its enactment, and 2) it must disadvantage the offender affected by it. Neither of those two elements is present in the case at hand. Ark. Stat. Ann. § 43-2829 B. (3), effective April 1,1977, has in no way been applied to appellant’s prior federal felony conviction. It was only applied to appellant’s 35 year state felony conviction for rape. The rape was committed in May 1978, long after the statute took effect. There is no ex post facto violation.
Affirmed.
Purtle, J., not participating. | [
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Robert H. Dudley, Justice.
The basic issue in this divorce case is whether the chancellor correctly divided marital property. We modify and affirm the division of property.
Tim Addis, appellant, and Elizabeth Addis, appellee, were married in 1966. They have a 22 year old son, Dean, and two minor daughters, Timberly and Katherine. Appellant is a veterinarian employed by the United States Department of Agriculture as an inspector with a base pay of $32,858.00 per year. In June 1982, appellant and Dean formed a partnership for the purpose of operating a dairy. The chancellor awarded the appellee $8,500.00 as the sum equal to one-half of appellant’s net interest in the partnership. The appellant’s first argument is that this award is in the wrong amount.
Under the Uniform Partnership Act, a partner’s rights in specific partnership assets are those of a tenant in partnership. Ark. Stat. Ann. § 65-125 (Repl. 1980). At divorce, in determining the rights of a husband or wife to a spouse’s partnership interest, a court cannot make specific awards of partnership asserts. The court must determine the value of the interest in the partnership and then award the spouse an amount equal to one-half of the value of the interest, which may be enforced by a charging order on the partnership interest. Riegler v. Riegler, 243 Ark. 113, 419 S.W.2d 311 (1967).
The appellant testified that the liabilities of the partnership were $86,000.00 at the date of the trial. He testified that the assets were worth $79,000.00. An independent witness testified that the assets were worth $79,980.00. However, the independent witness did not include machinery which had an initial cost of $14,527.20, and, according to the partnership tax return, had a depreciated value of $9,210.24 at the time of the trial. In addition, his appraisal did not include permanent leasehold improvements to the land which initially cost $17,828.08, and, after straight-line depreciation over the life of the lease, had a depreciated value of $11,121.04. In order to determine the value of all the partnership assets, we accept the $79,980.00 value assigned to the assets which were appraised by the independent appraiser, and add to this figure the depreciated value of the items not appraised. Thus, we take the appraised figure of $79,980.00, and we add $9,210.24 and $11,121.04 for total assets of $100,311.28. The difference between partnership assets of $100,311.28 and liabilities of $86,000.00 is $14,311.28. Therefore, based upon our calculations, one-half of the net interest in the partnership amounts to $7,155.64. The Chancellor awarded appellee $8,500.00 as an amount equal to one-half the value of the partnership interest. Accordingly, we modify the $8,500.00 award to $7,155.64.
Appellant next argues that the trial court erred in fixing $4,000.00 as the amount of money which appellant must pay to appellee for her interest in his retirement account. He does not contend that the retirement account is not marital property.
During the last four years of the marriage, appellant worked for the Department of Agriculture and paid seven percent (7%) of his salary into a retirement account. At the time of trial, this account would entitle appellant to withdraw $8,000.00 if his employment were terminated for any reason. Appellant’s right to the $8,000.00 is not subject to divestment or forfeiture even though the complete contributory plan will not mature until appellant reaches the retirement age and elects to retire. Thus, appellant has a vested but non-mature right to the retirement funds.
Three basic methods are available for disposing of vested but non-matured retirement interests upon divorce: (1) assign the whole of the interest in the plan to the employee, and assign assets of equivalent value to the other spouse; (2) divide the interest in the plan itself on a percentage formula, and (3) reserve jurisdiction until retirement to divide the actual monetary benefit when received. See B. Goldberg, Valuation of Divorce Assets, § 9.5, at 254. The chancellor chose the first method, an appropriate method. The appellant does not question the method, but instead questions the valuation. However, at trial no actuarial valuations were offered. The trial court could value the rights only upon the evidence presented, which was the amount of cash that appellant had contributed to the fund at the time of the hearing. We affirm the trial court’s action.
In dividing the property, the trial court awarded all of the household furniture and a Honda automobile to appellee, and, to offset that, awarded a Chevrolet pickup truck to appellant. The appellant contends that the trial court erred by awarding the appellee all of the furniture. The record does not disclose error. There was no testimony about the value of the furniture, the car, or the truck. The only testimony about the value of these items is appellee’s testimony that the car is worth less than the truck. We assume the chancellor attempted to balance the awards by giving the furniture and the lesser valued car to the appellee and the more expensive truck to the appellant.
Appellant next contends that the amount of alimony is excessive. There is no merit in the argument. Appellee is 43 years old, and has no job and no job skills. She has the care and custody of the two minor children, the younger one being only 13 months old. Appellant has a job and his take-home pay from the Department of Agriculture is in excess of $1,700.00 per month. Out of that amount, the Chancellor found that $500.00 per month is necessary for support of the children and $400.00 per month for a period of five years is necessary for alimony. Apparently, the chancellor awarded alimony for the period of time he thought would be necessary for the appellee to receive training and enter into the job market.
The combined needs of the parties are greater than the income. Their testimony indicates that both need at least $1,000.00 per month, but there simply is not that much income. The standard of living of both parties will suffer. Under the circumstances, the alimony award of $400.00 per month for five years is not excessive.
Affirmed as modified.
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John F. Stroud, Jr., Judge.
In June 1995 the Arkansas Department of Human Services filed a petition to terminate the parental rights of M.T. in her biological son, J.L., Jr. The case came before the chancellor in December 1995. At the beginning of the hearing DHS made an oral motion to withdraw its petition, stating that it wanted instead an adjudication of paternity and placement of the child with the natural father. The guardian ad litem responded that the maternal parental rights should be terminated. The natural father, intervenor in this action, stated that he also wanted M.T.’s parental rights terminated but that he would be willing to permit visitation at some point in the future. He asked that the court determine him to be the father of the child.
The chancellor denied the motion of DHS to withdraw the petition, proceeded with the hearing, and granted the petition to terminate M.T.’s parental rights. He ordered legal custody of the child to continue with DHS and placement of the child with the biological father until such time as the paternity action could be adjudicated.
M.T. now appeals, raising three points. She contends that the chancellor erred by not allowing DHS to withdraw its petition, that termination of parental rights was not necessary to clear the child for permanent placement, and that the trial court erred in finding clear and convincing evidence supporting termination of appellant’s parental rights. We affirm, addressing the last point first.
Grounds for termination of parental rights must be proven by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b) (Supp. 1995). When the burden of proving a disputed fact in chancery is by “clear and convincing” evidence, the question on appeal is whether the chancellor’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous, giving due regard to the opportunity of the trial court to judge the credibility of witnesses. Beeson v. Arkansas Dep’t of Human Servs., 37 Ark. App. 12, 823 S.W.2d 912 (1992). Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Corley v. Arkansas Dep’t of Human Servs., 46 Ark. App. 265, 878 S.W.2d 430 (1994).
Here, appellant’s seven-week-old son had skull fractures when he was brought to Arkansas Children’s Hospital in November 1993. Appellant said that he had been dropped by her boyfriend the night before while she was at work. SCAN filed a petition for emergency custody of the child, and he was released from the hospital to a foster home. At an adjudication hearing the next month, he was found to be a dependent neglected child. He was placed in foster care in the custody of the DHS and eventually placed in the home of his maternal grandmother. The boyfriend was ordered to have no contact with the child. After the first review hearing in March 1994, the child was returned to appellant’s custody. A second emergency custody motion was filed in June 1994 alleging medical neglect of the child by appellant because of untreated and infected blisters on his feet as well as failure to thrive. The motion was granted, and the child was returned to his grandmother’s custody. The grandmother notified the court several weeks later that she was not able to continue to keep the child in her home, and he was placed in the custody of DHS.
SCAN noted that appellant was hostile and had failed to cooperate with the caseworker. Appellant visited her son only sporadically and allowed the boyfriend to move back into her home. In September 1994 appellant’s therapist notified SCAN that appellant no longer wished to receive services and that custody of her son was not important enough to her for her to comply with SCAN’s requirements and the court’s orders. Appellant discontinued visits with her son for several months, resumed them briefly, and discontinued them again. At the review hearing in April 1995 the goal of the case was changed to allow DHS to pursue termination of appellant’s parental rights rather than reunification with her child. In the summer of 1995 appellant resumed visits with the child.
In matters involving the welfare of young children, the appellate court gives great weight to the trial judge’s personal observations. In re Adoption of K.F.H. and K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993). Here, the chancellor credited the testimony of the SCAN worker and discredited the testimony of appellant, noting her false assertions that the child was not fathered by her husband. He noted that appellant had shown little interest in her child until the petition to terminate her parental rights was filed. Our own review of the evidence, coupled with our deference to the chancellor on the credibility of the witnesses, shows that the decision to terminate appellant’s parental rights was not clearly erroneous.
The next point we address, that the chancellor erred in denying DHS’s oral motion to dismiss the petition, is a procedural issue. Under Rule 41 of the Arkansas Rules of Civil Procedure, an action can be dismissed before final submission of a case without prejudice to the plaintiff. A plaintiff is a party who asserts a cause of action against another, and the right to dismiss an action rests only with the plaintiff See Walton v. Rucker, 193 Ark. 40, 97 S.W.2d 442 (1936).
Under Arkansas Code Annotated section 9-27-341 (a) (Supp. 1995), termination of parental rights is a remedy available only to the Department of Human Services and not to private litigants. Therefore, the right of dismissal accrues to DHS as the petitioner, and not to a parent. Though a parent has the right to appeal the termination of parental rights, she is not the proper party to appeal the trial court’s refusal to allow the petitioner to withdraw its cause of action. DHS has not appealed the denial of its motion to withdraw. We will not consider any alleged error in the trial court’s ruling on this issue because appellant has no standing to raise it.
The final point we consider is whether the chancellor erred in ordering termination of appellant’s parental rights “when termination was not necessary to clear the child for permanent placement.” Arkansas Code Annotated section 9-27-341(a) (Supp. 1995) reads in part as follows:
[This section] shall be used only in such cases when the Department of Human Services is attempting to clear a juvenile for permanent placement. The intent of this section is to provide permanency in a juvenile’s life in all instances where return of a juvenile to the family home is contrary to the juvenile’s health, safety, or welfare, and it appears from the evidence that return to the family home cannot be accomplished in a reasonable period of time.
The statute does not require that termination of parental rights be a predicate to permanent placement, but only that DHS be attempting to clear the juvenile for permanent placement when parental rights are terminated, which was the case here.
Though the disposition plan in this case had at one time been to reunify appellant and the child, the court had ordered the plan changed to terminate her parental rights. At the conclusion of the termination hearing, the court stated:
[M.T. has] had a long period to try to do the things that would make her have a more significant relationship with this child. Having a few visits. . . on the eve of the termination hear ing, doesn’t make it with the Court. When you look at the total history of the case, that’s not enough. . . .
This child needs permanency. It’s the Court’s opinion that it is in the best interest of this child to terminate the mother’s parental rights. This child, I think, will do far better if he doesn’t have to have an occasional visit from someone who really has not brought much to the quality of his life. I think the child would be much better off with [M.T.] out of his life.
She may show love and concern when she visits the child, but a child needs something more than a visit every now and then where you stop in and show some concern. A child needs 24-hour parenting, 24-hour responsibility. This child has been abused in this home, and I think it’s time to get the child on with his life and get him out of an abusive situation. Hopefully, he’ll be into something that’s much better and that will not cause this child injury.
Clearly, the court’s determination to terminate appellant’s parental rights was made pursuant to the authority of Arkansas Code Annotated section 9-27-341. Termination of appellant’s parental rights was pursued because a return of the child to her home would have been contrary to the child’s health, safety, or welfare and because it appeared that the return could not be accomplished within a reasonable period of time.
Affirmed.
Robbins, C.J., and Bird, J., agree.
This remedy is now available under the juvenile code to both the Department of Human Services and a court-appointed guardian ad litem. See Act 1227 of 1997, section 13. | [
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John Mauzy Pittman, Judge.
Paul Frette was charged with violating Ark. Code Ann. § 27-23-113 (Supp. 1993), which prohibits a person from operating or being in physical control of a commercial motor vehicle while having alcohol in his system. His pretrial motion to suppress evidence obtained as a result of his arrest was denied. Pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure, he entered a conditional guilty plea to the charge, reserving the right to appeal the denial of his motion to suppress. He was fined $250.00, plus costs, and his driver’s license was suspended for 120 days. Our review of the record requires us to conclude that his motion to suppress should have been granted; therefore, we reverse to permit appellant to withdraw his guilty plea as provided for in Rule 24.3(b).
Appellant was arrested on June 15, 1995, based on information provided by a tip called in to the dispatch office of the Spr-ingdale Police Department by a person identifying himself as Jerry Smith, a truck driver from Jonesboro, Georgia. Smith reported that he had seen an older man drinking beer while seated behind the wheel in the cab of a red tractor-trailer that was parked in a commercial truck parking lot behind the McDonald’s restaurant. Based solely upon the information provided by the dispatch office, an officer was sent to the location to investigate and found appellant seated in the driver’s position in the parked truck. The officer approached the driver’s side of the truck and ordered appellant to get out. When appellant exited his vehicle, the officer noted an odor of intoxicants and observed appellant’s poor balance. The officer ordered appellant to perform field sobriety tests. When appellant failed all of the officer’s field sobriety tests, he was placed under arrest and transported to the Springdale Police Department for booking where he made incriminatory statements and regis tered .08 on a breathalyzer test. Appellant contends that prior to the stop, the officer observed nothing that would indicate wrongful activity on appellant’s part and that the trial court erred in denying his motion to suppress because the arresting officer lacked reasonable suspicion to stop him. The trial court found that appellant was lawfully stopped and detained and denied appellant’s motion to suppress evidence as a result of the stop.
Arkansas Rule of Criminal Procedure 3.1 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 a felony, or 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. “Reasonable suspicion” is defined under Rule 2.1 as “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.”
Justification for an investigative stop depends upon whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating the person or vehicle may be involved in criminal activity. United States v. Cortez, 449 U.S. 411 (1981); Terry v. Ohio, 392 U.S. 1 (1967); Johnson v. State, 319 Ark. 78, 889 S.W.2d 764 (1994); Hill v. State, 275 Ark. 71, 628 S.W.2d 284, cert. denied 459 U.S. 882 (1982). The reliability of an informant reporting possible criminal activity may be shown by police observations that tend to corroborate the information provided. Alabama v. White, 496 U.S. 325 (1990); Bliss v. State, 33 Ark. App. 121, 802 S.W.2d 479 (1991). However, an accurate description of a particular vehicle, standing alone, does not establish an informant’s reliability, see Kaiser v. State, 296 Ark. 125, 752 S.W.2d 271 (1988), and the mere fact that a caller identifies himself in no way establishes his trustworthiness, see Evans v. State, 33 Ark. App. 184, 804 S.W.2d 730 (1991).
The informant in the present case was a person unknown to and unseen by law enforcement officers, who had not previously provided information to them, and was not otherwise established to be rehable. Cf. Adams v. Williams, 407 U.S. 143, 146-47 (1972) (informant known to police officer personally provided information to officer that was immediately verifiable at the scene; “. . .informant might have been subject to immediate arrest for making a false complaint had [police officer’s] investigation proved the tip incorrect”); Brooks v. State, 40 Ark. App. 208, 212, 845 S.W.2d 530 (1993) (citizen informant, not previously known to police officer, came forward and personally provided to officer information “. . .relating criminal activity that he had observed [and] supplied the officer with the description of the vehicle, its occupants and its license number”; prior to stop of vehicle, police officer verified informant’s description of vehicle, its license number, and number of occupants). Here, the information given by the informant was limited to a description of a vehicle, its location, and that it was occupied by an elderly man seen drinking.
In reviewing a trial court’s denial of a motion to suppress evidence, we make an independent determination based on the totality of the circumstances and reverse the trial court’s ruling only if it is clearly against the preponderance of the evidence. Phillips v. State, 53 Ark. App. 36, 918 S.W.2d 721 (1996). We hold that appellant’s motion to suppress should have been granted. Kaiser v. State; supra; Evans v. State, supra. This does not mean that police must verify the reliability of an informant before conducting an investigation based on the information provided by the informant, as the information may be a “catapult to launch” an investigation. Nottingham v. State, 29 Ark. App. 95, 778 S.W.2d 629 (1989). Upon police investigation and independent verification of the information provided, reasonable suspicion may be established. Id. However, conspicuously absent from the case before us is any police investigation or reasonable suspicion before the officer made an investigatory seizure.
The State argues that the officer acted under the authority of Ark. R. Crim. P. 2.2 which permits a law enforcement officer to request a person to furnish information in investigation of a crime; and that there was not a “seizure” by the officer approaching the vehicle to question appellant. The State relies on Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990), in which the Arkansas Supreme Court found that it was not a seizure under the Fourth Amendment for a police officer to approach a car parked in a public place to determine whether there was anything wrong. However, the court in Thompson held that there was not a seizure, noting that there was no evidence that the officer restrained the defendant’s liberty by means of physical force or a show of authority, as the officer did not order the defendant out of his vehicle until after the officer noticed an odor of alcohol and had reasonable suspicion. The present case, however, is distinguishable from Thompson because here the officer ordered appellant out of his truck before making any investigation or establishing reasonable suspicion. Only after appellant stepped from his truck did the officer first smell intoxicants and observe poor balance sufficient to have reasonable suspicion.
Whether a person has been seized within the meaning of the Fourth Amendment depends on whether, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Phillips v. State, supra. A “seizure” occurs when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. Thompson v. State, supra; Cf. Hammons v. State, 327 Ark. 520, 940 S.W.2d 424 (1997). We conclude that a “seizure” occurred in this case by the officer ordering appellant to step from his vehicle, so that this was an investigatory stop under Rule 3.1, and not a Rule 2.2 request for information. Thompson v. State, supra; see Phillips v. State, supra; accord Popple v. State, 626 So.2d 185, 187 (Fla. 1993) (police officer approached defendant, who was seated in vehicle, in order to request information; defendant seized when officer directed defendant to exit vehicle).
The dissenting opinion maintains that this seizure of appellant was reasonable under the circumstances for reasons having to do with officer safety. This analysis is flawed for two reasons. In the first place, the informant did not provide any information to the Springdale Police Department that would give rise to a reasonable suspicion that the appellant was armed with a weapon of some sort or was otherwise presently dangerous to the officer. Cf. Adams, 407 U.S. at 145 (informant told police officer that suspect “had a gun at his waist”). It is true, as the dissenting opinion points out, that when the officer initially approached appellant, he was seated in the cab of an eighteen-wheel tractor-trailer truck. According to the dissenting opinion, this situation posed a danger to the officer’s safety and, therefore, provided the legal basis for the officer’s seizure of appellant by ordering him to get out of the cab of the tractor-trailer truck. This is the second flaw in the dissent’s analysis — it is applicable in every “officer approaches car” case. Every time a police officer approaches an individual seated on the driver’s side of a parked vehicle of any size, the officer can always truthfully state that he was concerned for his safety in that the individual could try to run over him or could produce a firearm or other weapon from the interior of the passenger compartment of the vehicle. Police officers can order the driver of a vehicle and any passengers to exit the vehicle; however, a police officer may do so only after having validly stopped the vehicle. See Maryland v. Wilson, 117 S.Ct. 882 (1997).
Appellant finally contends that the facts to which he stipulated and the facts recited by the prosecuting attorney were insufficient to support the charge against him and that the trial court erred in accepting his guilty plea. We do not address these issues as they are not properly before this court. When one pleads guilty pursuant to Rule 24.3(b), the only claim cognizable on direct appeal is a challenge to the denial of a pretrial motion to suppress illegally obtained evidence. See Scalco v. City of Russellville, 318 Ark. 65, 883 S.W.2d 813 (1994); Jenkins v. State, 301 Ark. 586, 786 S.W.2d 566 (1990); Fullerton v. State, 47 Ark. App. 141, 886 S.W.2d 887 (1994).
Reversed and remanded.
Arey, Rogers, and Stroud, JJ., agree.
Crabtree and Meads, JJ., dissent. | [
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Sam Bird, Judge.
Morrilton Manor, a nursing home, appeals a decision of the Workers’ Compensation Commission that held that appellee had sustained a work-related back injury on June 6, 1995, and was entitled to medical benefits, temporary total disability benefits from June 8, 1995, to June 23, 1995, and the maximum allowable attorney’s fee for full controversion of the claim.
Appellant argues that (1) the Commission erred in failing to recognize that a presumption contained in Ark. Code Ann. §11-9-102(5)(B)(iv) (Repl. 1996) is an absolute bar to this claim, and that appellee waived any objection to the admission of the result of the drug test; (2) the Commission improperly gave the benefit of the doubt to the appellee; and (3) the Commission’s opinion is not supported by substantial evidence.
The parties stipulated that the employer-employee-carrier relationship existed on June 6, 1995. Appellee testified that she was assigned to the laundry room and had just taken some linens from a dryer, put them into a basket, and moved them to a folding table. In the process, a sheet fell to the floor, and when appellee bent over to pick it up, her back popped. She immediately reported the incident to her supervisor who filled out an accident report and directed appellee to submit a urine specimen for a drug screen. Although appellee was not scheduled to work on June 7th and 8th, she went in on June 8th to pick up her paycheck, and was told that the urine sample she gave on June 6th had been collected in an “inappropriate” container. She was asked to submit another specimen, and she did. The second specimen appellee gave tested positive for opiates (morphine and codeine), and on that basis appellant terminated appellee’s employment and controverted her workers’ compensation claim.
Appellant contended before the Commission that Ark. Code Ann. § ll-9-102(5)(B)(iv) (R.epl. 1996) operates as an absolute bar to appellee’s claim because the urine specimen collected two days after her injury tested positive for codeine. That statute provides:
(B) “Compensable injury” does not include:
(iv)(a) Injury where the accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders.
(b) The presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders.
(c) Every employee is deemed by his performance of services to have impliedly consented to reasonable and responsible testing by properly trained medical or law enforcement personnel for the presence of any of the aforementioned substances in the employee’s body.
(d) An employee shall not be entitled to compensation unless it is proved by a preponderance of the evidence that the alcohol, illegal drugs, or prescription drugs utilized in contravention of the physician’s orders did not substantially occasion the injury or accident.
Appellee contended that she was neither intoxicated nor had she taken drugs prior to her injury. She explained that the night before the second urine specimen was collected she was in pain and had taken a Tylenol #3 tablet given to her by her father, with whom she lived. Appellee said she had informed the nurse who collected the second sample that she had taken the Tylenol, which contains codeine. Appellee's father confirmed that he had given her the Tylenol #3 tablet for pain.
The administrative law judge said that the appellant had failed to prove that the drug screen performed on a urine specimen taken two days after an injury was a “‘reasonable and responsible’ test on which to base a denial of benefits for an injury ‘substantially occasioned’ by an intoxicant.” He held that the claimant had proven that she sustained a compensable back injury and was entitled to temporary total disability benefits from June 8, 1995, to June 23, 1995, and medical expenses. The Commission affirmed and adopted the opinion of the law judge.
Appellant argues that the Commission’s interpretation of the statute was erroneous, and that because appellee failed to object to the result of the drug test being considered by the Commission, any objection to it was waived. Appellant argues that, consequently, the Commission could not find that the drug test was not “reasonable and responsible,” or that it was insufficient evidence on which to base a denial of benefits. Appellee argues that the Commission may disregard the result of a drug test done on a urine specimen collected two days after an injury when the injured party admits having taken pain medication in the interim between the injury and submission of the urine specimen. We agree with appellee and find the appellant’s interpretation of the statute to be flawed.
Prior to 1993, the burden was upon the employer to prove that a claimant’s injury was the result of intoxication or drug use. Act 796 of 1993 shifted the burden to the claimant by creating a rebuttable presumption that an injury was substantially occasioned by an intoxicant if one is found to be present in the body. Now, if the claimant is found to have alcohol or drugs in his body after an injury, he must prove by a preponderance of the evidence that his injury was not substantially occasioned by the alcohol or drugs. In such cases, however, our standard of review remains the same.
This court on appeal is required to review the evidence in the light most favorable to the findings of the Commission and to give the testimony its strongest probative value in favor of the order of that Commission. ... [I]t is the function of this court to determine whether there is any substantial evidence to support the Commission’s finding.
Davis v. C & M Tractor Co., 4 Ark. App. 34, 40-41, 627 S.W.2d 561, 564 (1982); Country Pride v. Holly, 3 Ark. App. 216, 624 S.W.2d 443 (1981).
In Weaver v. Whitaker Furniture Co., 55 Ark. App. 400, 935 S.W.2d 584 (1996), we explained:
Under our prior workers’ compensation law, there was a prima facie presumption that an injury did not result from intoxication of the injured employee while on duty. See Ark. Code Ann. § 11-9-707(4) (1987). Act 796 of 1993, however, changed that presumption].]
55 Ark. App. at 401-02, 935 S.W.2d at 585.
The plain language of the last sentence of section 11-9— 102(5)(B)(iv)(d) denies compensation “unless it is proved by a preponderance of the evidence that the . . . illegal drugs . . . did not substantially occasion the injury or accident.” Furthermore, section ll-7-104(c)(3) ]ll-9-704(c)(3)] requires that all provisions of the chapter be strictly construed. It was up to the Commission to determine whether appellant met its burden of proof in rebutting the presumption, and it did so by addressing in its decision “whether the presumption has been overcome.” Whether a rebuttable presumption is overcome by the evidence is a question of fact for the Commission to determine. See Eagle Safe Corp. v. Egan, 39 Ark. App. 79, 842 S.W.2d 438 (1992).
When reviewing a finding of fact made by the Commission, we must affirm if the Commission’s decision is supported by substantial evidence. Purolator Courier v. Chancey, 40 Ark. App. 1, 841 S.W.2d 159 (1992). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Southern Steel & Wire v. Kahler, 54 Ark. App. 376, 927 S.W.2d 822 (1996). Furthermore, it is well established that the credibility of witnesses and the weight to be given their testimony are matters exclusively within the province of the Commission. James River Corp. v. Walters, 53 Ark. App. 59, 918 S.W.2d 211 (1996). The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).
55 Ark. App. at 403-04, 935 S.W.2d at 586-87.
The Commission was well within its fact-finding authority in holding that the statutory presumption had been rebutted and giving litde credence to the positive result of a drug test when the specimen was not collected until two days after the injury, particularly when the claimant admitted that she had taken pain medication containing codeine before the test.
We agree with appellant that under Ark. Code Ann. § 11-9-102(5) (B)(iv) (Repl. 1996), when the presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders is detected in an employee following an injury, the burden is on the claimant to rebut the presumption that the injury was substantially occasioned by the alcohol or drugs. However, in this case, there was no evidence whatsoever that the claimant was intoxicated or under the influence of drugs at the time of the injury. The urine sample collected immediately after the injury, which would have provided an accurate test of the presence of alcohol or drugs in appellee’s body at the time of the injury, was rendered defective and unreliable due to a mistake imputed to the employer. The suggestion that codeine found in a urine sample collected two days after an injury proves that the injury was caused by the drug stretches credulity, especially when the claimant presents a credible explanation for the existence of the codeine in her urine. Under these circumstances, we do not think the presumption arises at all, but if it does, it has been effectively rebutted.
Appellant also argues that the law judge was biased and had impermissibly given the benefit of the doubt to appellee. While it is a correct statement of the law that the Commission is no longer allowed to give the benefit of the doubt to either party, we find no evidence in the record to support the allegation that appellee was given the benefit of the doubt. Appellant also submits that there was no evidence that appellee was not intoxicated after the injury. There is also no evidence that appellee was intoxicated before the injury. That she had taken pain medication following the injury is not indicative of intoxication before the injury.
Finally, appellant contends there is no substantial evidence to support the Commission’s decision. That the collection of the urine specimen for drug screen was not contemporaneous with the injury and that no causal connection was shown between the injury and the presence of codeine in appellee’s urine two days later is substantial evidence supporting the Commission’s decision.
Affirmed.
Robbins, C.J., and Stroud, J., agree. | [
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John F. Stroud, Jr., Judge.
This is a workers’ compensation case. Appellant, Min-Ark Pallet Company, Inc., is the employer. Appellee, Michael Lindsey, is the claimant. Appellee’s job involved lifting heavy wooden pallets. He sustained a hernia for which he filed a claim with the Commission, contending that the injury arose out of and in the course of his employment. Appellant opposed the claim, asserting that the injury did not happen on the job and that it did not satisfy the requirements of Arkansas Code Annotated section 11-9-523 (Repl. 1996), which deals specifically with hernias. The administrative law judge found that appellee did not sustain a compensable injury. The Commission reversed. We affirm.
In its first point of appeal, appellant argues that appellee did not give notice of an injury, that in failing to do so he failed to meet the requirement of seeking medical care within seventy-two (72) hours of the injury, and that without an “established incident” the claimant could not meet the strict requirements of Arkansas Code Annotated section 11-9-523 (Repl. 1996). We disagree.
In reviewing workers’ compensation cases on appeal, we 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. Southern Steel & Wire v. Kahler, 54 Ark. App. 376, 927 S.W.2d 822 (1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. 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. Id.
Arkansas Code Annotated section 11-9-523 provides:
(a) In all cases of claims for hernia, it shall be shown to the satisfaction of the . . . Commission:
(1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;
(2) That there was severe pain in the hernial region;
(3) That the pain caused the employee to cease work immediately;
(4) That notice of the occurrence was given to the employer within forty-eight (48) hours thereafter; and
(5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a hcensed physician within seventy-two (72) hours after the occurrence.
The Commission determined that all of the requirements of this statute were satisfied because appellee testified that he felt a burning pain in his side when he lifted a pallet ((a)(1)); because appellee said that the pain “almost brought me to my knees” and that he stopped working in order to call his mother ((a)(2) and (a)(3)); because appellee discussed his problem with a co-worker who was the wife of one of the company owners within forty-eight (48) hours of the onset of the pain ((a)(4)); and because “it is sufficient that the physical distress required the attendance of a physician within the amount of time required by subsection (a)(5), not that the physician was actually seen within the seventy-two hour time frame” ((a)(5)). We hold that there was substantial evidence to support the Commission’s findings.
Here, appellee testified that he worked at Min-Ark Pallet Company, rebuilding wooden pallets. He explained that lifting was involved in his job because it was necessary to pull pallets off stacks, put them on the table, rebuild them, and then lift them back onto another stack for pick-up. He testified that on the day of the injury, Friday, September 23, 1994, he reached up, pulled a pallet down, and felt a severe burning pain in his side. He thought it was appendicitis or something going wrong with his side. He stopped work and went to Maybelle Minick’s office to call his mother. He said Ms. Minick was the secretary and that he used the phone on her desk, in her presence, to call his mother. He told his mother that his side “grabbed” him and “almost dropped me to my knees.” He said he told Ms. Minick that he was having some really bad pains and did not know what was wrong. Appel-lee’s mother, Susan Lindsey, testified that in response to appellee’s phone call she made a doctor’s appointment for him that afternoon, but that appellee told her he could not take offbecause they had a work order that had to be completed. Ms. Lindsey said she then made a doctor’s appointment for appellee on Monday, September 26, 1994. She said she and Ms. Minick, whose husband is a part owner of Min-Ark Pallet Company, speculated that appellee might have appendicitis. Ms. Lindsey testified that appellee was still in a lot of pain when he got home that afternoon, that he “laid around” all weekend, and that he went to the doctor on Monday. The doctor ruled out appendicitis, but could not determine the source of the pain. Appellee testified that he was able to continue work by stopping when he needed to stop and working when he felt he could. He said he would go lie on the couch in Ms. Minick’s office for a while or sit on his table until he could work again. Ms. Lindsey testified that appellee continued to work until October 13, 1994, when he called and asked her to meet him at the emergency room because “he couldn’t take it any more.” She said that eventually exploratory surgery was performed and revealed an inguinal hernia.
In reviewing the statutory requirements, the Commission found that the requirement of subsection (a)(1) was satisfied based upon appellee’s testimony that he “felt a burning pain” in his side when he attempted to lift a pallet. Appellant argues that appellee never mentioned a “burning pain” until his testimony before the administrative law judge. The argument misses the point. Regardless of whether appellee initially described the pain as “burning” or not, there was substantial evidence presented to the Commission that appellee suffered severe pain when he attempted to lift a pallet.
Similarly, the Commission found that the requirements of subsections (a)(2) and (a)(3) were satisfied by appellant’s testimony that the pain almost brought him to his knees and that he stopped working in order to call his mother. Appellant argues that the cessation of work requirement under subsection (a)(3) was not supported by substantial evidence because appellee returned to work within moments of calling his mother. We disagree. Appellee testified that he continued to work because a work order had to be completed and that he worked when he could and stopped when he could not, resting on his table or lying down on the couch in Ms. Minick’s office. Reasonable minds could accept this evidence as adequate to support the Commission’s conclusion that there was a cessation of work under subsection (a)(3). See also Osceola Foods, Inc. v. Andrew, 14 Ark. App. 95, 685 S.W.2d 813 (1985) (explaining that claimant only stopped work for 15-20 minutes and continued to work both the day of the injury and the following morning).
The Commission found that the notice requirement under subsection (a)(4) was satisfied because appellant discussed his problem with Ms. Minick within minutes of the onset of pain, even though he did not tell her what he had been doing when the pain started. Appellant argues that there was not substantial evidence to support the Commission’s finding that the notice requirement under subsection (a)(4) was satisfied. In addition, appellant argues that the statute must be strictly construed, that it specifically provides that notice of the “occurrence” must be given, and that appellee “never once notified his employer of any occurrence in conjunction with his pain.” In other words, appellant argues that the legislature intended for the word “occurrence” to describe a work event that caused the hernia. We disagree. Even when statutes are strictly construed, they must be construed in their entirety, harmonizing each subsection where possible. Thomas v. Cornell, 316 Ark. 366, 872 S.W.2d 370 (1994). The word “occurrence” appears four times within section 11-9-523, two of which are within the phrase “occurrence of the hernia.” Ark. Code Ann. § 11-9-523(a)(1), (4) & (5). Clearly, when used within this phrase, “occurrence” means the happening of the hernia itself, not necessarily the work event resulting in the hernia. Our construction is buttressed by the fact that subsection (a)(1). addresses the work event causing the hernia: “[t]hat the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal ivall[.]” Appellant’s argument would have us give two different meanings to the same word, “occurrence,” within the same statute, totally ignoring its use in the phrase “occurrence of the hernia.” Rules of strict construction do not require such a strained application of the words of the statute.
In making its argument with respect to subsection (a)(4), appellant also relies upon Price v. Little Rock Packaging Co., 42 Ark. App. 238, 856 S.W.2d 317 (1993), and Siders v. Southern Mattress Co., 240 Ark. 267, 398 S.W.2d 901 (1966). In both cases, the appellate courts reversed the Commission’s denial of benefits to employees who had suffered hernias. In Siders, the supreme court noted:
The commission imposed a heavier burden on appellant than the law calls for. Just as the Act does not require an immediate diagnosis, it also does not require that the claimant insist that the doctor’s history contain the gory details of the occurrence.
Appellant has established a prima facie case. Prom all the circumstances, there is no question but that the employer had timely and proper notice of the occurrence that caused the hernia. There is no substantial evidence to the contrary. Appellant is not required to give notice that he has a hernia — he is not a doctor — the statute merely requires that appellant give notice of the occurrence which results in a hernia. Clark v. Ottenheimer Bros., 229 Ark. 383, 314 S.W.2d 497; McMurtry v. Marshall Model Market, 237 Ark. 11, 371 S.W.2d 4.
On the case as a whole, “if the claimant’s disability arises soon after the accident and is logically attributable to it, with nothing to suggest any other explanation for the employee’s condition, we may say without hesitation that there is no substantial evidence to sustain the commission’s refusal to make an award.” Hall v. Pittman Constr. Co., 235 Ark. 104, 357 S.W.2d 263.
That decision is based upon the court’s review of the total circumstances of the case, and its resulting conclusion that those circumstances did not support the Commission’s denial of benefits under subsection (a)(4).
Here, our examination of the evidence shows that there was substantial evidence to support the Commission’s finding that the notice requirement of subsection (a)(4) was satisfied. That is, appellee’s discussion of his problem with Ms. Minick, her knowledge that he had been lifting heavy pallets, and his statement during the phone call to his mother in front of Ms. Minick that his side “grabbed” him provided sufficient “notice of the occurrence” under the circumstances of this case to affirm the Commission’s finding. As we have explained in a previous case with respect to the “cessation of work” requirement under subsection (a)(3), there is no mathematical formula where these findings of fact are concerned. See Osceola Foods, Inc. v. Andrew, 14 Ark. App. 95, 685 S.W.2d 813 (1985). Rather, determinations regarding the requirements of these subsections “should be based on evidence which satisfies the finder of fact” that the requirements have been met. Id. Indeed, Arkansas Code Annotated section 11-9-523, the statute at issue here, begins, “In all cases of claims for hernia, it shall he shown to the satisfaction of the Workers’ Compensation Commission: . . . .” Our task on appeal is to determine whether reasonable minds could reach the Commission’s conclusion that appellee gave notice of the occurrence to the employer within forty-eight hours thereafter. We hold that reasonable minds could reach such a conclusion.
The Commission found that the final subsection, (a)(5), was satisfied “because it is sufficient that the physical distress required the attendance of a physician within the amount of time required by the subsection, not that the physician was actually seen within the seventy-two-hour time frame.” Appellant argues that there is no substantial evidence to support this finding because the date of the injury cannot be determined, and therefore it is impossible to determine the seventy-two-hour time frame. We disagree. For all of the reasons discussed previously, the seventy-two hour time frame began on Friday, September 23, 1994. Appellee did not see his doctor on that date because he was working on an order that had to be completed. He did see his doctor on Monday, September 26, 1994, which was still within the seventy-two-hour time frame.
Under its second point of appeal, appellant argues that the Commission violated the legislative directive to strictly construe the statute because the Commission relaxed the burden of proof by excusing appellee’s inconsistent statements. We disagree. Appellant sprinkles several challenges to credibility throughout its arguments under both points of appeal, including testimony of a coworker that his injury might have been caused by an accident on a “wet bike.” The determination of the credibility and weight to be given a witness’s testimony is within the sole province of the Commission. Osceola Foods, Inc. v. Andrew, 14 Ark. App. 95, 685 S.W.2d 813 (1985). Moreover, the determination of credibility has nothing to do with statutory construction.
Affirmed.
Robbins, C.J., and Bird, J., agree. | [
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John E. Jennings, Judge.
The claimant in this workers’ compensation case appeals from the Commission’s order, which found that the respondent was entitled to a credit based upon a setdement entered into between the claimant and a third-party tortfeasor. Claimant argues that the Commission erred in allowing the credit. We disagree and affirm.
Joanne Wentworth was on her way to work at Sparks Regional Medical Center on August 17, 1992, when, while walking across the street between the parking lot and the hospital entrance, she was hit by a car driven by Emma Jo Couthern and was injured. In December 1992, she filed a claim for workers’ compensation benefits, which was fully controverted by the respondent. The issue of compensability was finally determined by this court in a decision handed down March 5, 1995. On May 14, 1993, while the compensation claim was still pending, claimant setded with Emma Jo Couthern and her liability carrier for $50,000.00.
Claimant and respondent stipulated before the Commission that, prior to the third-party settlement, respondent’s attorney was aware that Couthern had insurance coverage on the automobile that struck claimant and that claimant had retained counsel to represent her in a third-party claim. Neither claimant nor her attorneys notified the respondent or its attorney of the third-party settlement until after it had been agreed on. The release that was executed in regard to the settlement failed to reserve and protect any subrogation or lien rights of the respondent in the event the compensation claim was allowed. The release operated as a bar to any action by the respondent against Couthern and her liability insurance carrier. The settlement was not approved by any court or by the Commission. Claimant never filed a lawsuit against Couthern or her liability carrier.
Arkansas Code Annotated section 11-9-410 (1987), in effect at the time of claimant’s injury, provided:
(a) LIABILITY UNAFFECTED.
(1) The making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of the employee, or his dependents, to make claim or maintain an action in court against any third party for the injury, but the employer or his carrier shall be entitled to reasonable notice and opportunity to join in the action. If they, or either of them, join in the action, they shall be entitled to a first lien upon two-thirds (2/3) of the net proceeds recovered in the action that remain after the payment of the reasonable costs of collection, for the payment to them of the amount paid and to be paid by them as compensation to the injured employee or his dependents.
(2) The commencement of an action by an employee or his dependents against a third party for damages by reason of an injury to which this chapter is applicable, or the adjustment of any claim, shall not affect the rights of the injured employee or his dependents to recover compensation, but any amount recovered by the injured employee or his dependents from a third party shall be applied as follows:
(A) Reasonable costs of collection shall be deducted;
(B) Then, in every case, one-third (1/3) of the remainder shall belong to the injured employee or his dependents, as the case may be;
(C) The remainder, or so much as is necessary to discharge the actual amount of the liability of the employer and the carrier; and
(D) Any excess shall belong to the injured or his dependents.
(b) SUBROGATION.
(1) An employer or carrier Hable for compensation under this chapter for the injury or death of an employee shall have the right to maintain an action in tort against any third party responsible for the injury or death.
(2) After reasonable notice and opportunity to be represented in the action has been given to the compensation beneficiary, the liability of the third party to the compensation beneficiary shah be determined in the action as well as the third party’s liability to the employer and carrier.
(3) After recovery shah be had against the third party, by suit or otherwise, the compensation beneficiary shah be entitled to any amount recovered over and above the amount that the employer and carrier have paid or are hable for in compensation, after deducting reasonable costs of cohection. In no event shah the compensation beneficiary be entitled to less than one-third (1/3) of the amount recovered from the third party, after deducting the reasonable cost of cohection.
(c) SETTLEMENT OF CLAIMS.
(1) Settlement of claims under subsections (a) and (b) of this section must have the approval of the court or of the commission, except that the distribution of that portion of the settlement which represents the compensation payable under this chapter must have the approval of the commission.
(2) Where liability is admitted to the injured employee or his dependents by the employer or carrier, no cost of cohection shah be deducted from that portion of the settlement under subsections (a) or (b) of this section representing compensation, except upon direction and approval of the commission.
In St. Paul Fire & Marine Ins. Co. v. Wood, 242 Ark. 879, 416 S.W.2d 322 (1967), the supreme court construed Ark. Stat. Ann. § 81-1340 (Repl. 1960) (the predecessor to Ark. Code Ann. § 11- 9-410 (1987)) to allow an employee to settle his common-law cause of action in negligence against a tortfeasor free of any claims of his employer’s workers’ compensation carrier where the settlement documents specifically preserved all rights of the carrier. In that case, the compensation carrier had provided benefits to the injured employee and intervened in the employee’s action against the tortfeasor. While the injured employee and the tortfeasor could agree on what they considered a fair settlement, the tortfeasor and compensation carrier could not agree on a settlement of the carrier’s subrogation claim.
In Travelers Ins. Co. v. McCluskey, 252 Ark. 1045, 483 S.W.2d 179 (1972), the compensation carrier paid benefits to the injured employee, who later sued third-party tortfeasors. Although there were conversations and correspondence between the compensation carrier’s attorney and the employee’s attorney, the compensation carrier did not intervene and received no notice of an offer and settlement between one of the tortfeasors and the employee. The release preserved the compensation carrier’s sub-rogation rights. The supreme court, while holding that the compensation carrier was not entitled to a lien upon the settlement proceeds because it did not intervene in the employee’s action against the tortfeasors, recognized that “[fundamental fairness, justice and reason dictate that [Ark. Stat. Ann. § 81-1340] subsection (c) should apply to any settlement[,]” and held:
Since the statutory purpose of § 81-1340 is to protect the rights of both the compensation carrier and the employee, we shall hereafter interpret Wood to require that as between the employer (or carrier) and employee, the proceeds of any compromise settlement of a tort claim be subject to the hen of the employer or the compensation carrier unless the settlement has been approved by a court having jurisdiction or by the Workmen’s Compensation Commission, after the compensation carrier has been afforded adequate opportunity to be heard.
252 Ark. at 1052.
In Jackson Cookie Co. v. Fausett, 17 Ark. App. 76, 703 S.W.2d 468 (1986), the employer sought a credit against the settlement of a tort action entered into by the employee and a third party. The Commission found that the employer had actual knowledge of the ongoing third-party action and, by failing to intervene, was precluded from recovering any part of the settlement. This court affirmed, stating:
Where the employee has made a claim under the Worker’s Compensation Act and the employer or carrier has had reasonable notice and an opportunity to join in a third-party action, we hold that the employer and its carrier must intervene in a third-party action to have a right to a credit, whether or not the liability of the employer has been determined.
17 Ark. App. at 81.
In John Garner Meats v. Ault, 38 Ark. App. 111, 828 S.W.2d 866 (1992), the employer and its carrier paid benefits for the employee’s compensable injury. The employee filed suit against a third-party tortfeasor, giving his employer and its carrier notice of the suit and making demand that they assist in prosecution of the suit. They declined to intervene or participate. The employee’s third-party action settled and the Commission ruled that the employer and its carrier were not entitled to a Hen or credit from the settlement funds. The employer and carrier appealed, arguing that they were entitled to a Hen because the employee did not obtain court or Commission approval of the settlement and also because their subrogation rights were not preserved in the settlement. We held that, while Ark. Code Ann. § ll-9-410(c) (1987) was controlHng and required court or Commission approval of settlement of such third-party actions, that approval was meant to protect the various rights of the parties, and by failing to intervene the employer and its carrier had waived the rights that the statute was designed to protect.
In the case at bar, the Commission’s opinion reviews the statute and the applicable case law, and then states:
Thus, where the employee and third-party tortfeasor propose a settlement after the claimant has filed a claim for workers’ compensation benefits, as in the present case, the employee and third party may only setde around the employer or carrier’s right to a Hen on settlement proceeds received by the employee where at least three conditions are met:
(1) The setdement agreement between the employee and the third party must protect the statutory right of the employer or carrier to pursue an action against the third party tortfeasor. Wood, supra.
(2) The employer or carrier must be provided reasonable notice of the proposed setdement and an opportunity to be heard. McCluskey, supra.
(3) The settlement agreement must be approved by a court or by the Commission. Id.
However, in John Garner Meats v. Ault, 38 Ark. App. 111, 828 S.W.2d (1992), the Arkansas Court of Appeals held that an employer or carrier waives its protection to have an agreement approved by the Commission or a court of competent jurisdiction unless the carrier or employer first intervenes in an ongoing third-party lawsuit even where the settlement agreement between the employee and the third party extinguishes the employer’s right of subrogation. Id.
We find that the present case is clearly distinguishable from Ault, McCluskey, and Fausett. In those three cases, the carrier or employer was provided actual notice of a lawsuit filed in court, and simply chose not to intervene in the ongoing lawsuit. In the present case, however, the claimant setded her claim against the tortfeasor and terminated the respondent’s statutory right of sub-rogation without ever filing an action in any Court.
In short, the stipulated facts indicate that the claimant entered into a setdement agreement which terminated the respondent’s subrogation rights against the third-party tortfeasor. The claimant did not file an action in court prior to entering the setdement agreement, and the setdement agreement was not approved by the Commission or a court of competent jurisdiction. In addition, the claimant’s failure to institute judicial proceedings prior to entering a settlement agreement with the third party denied the respondents their statutory right to reasonable notice and an opportunity to intervene in an action in court to preserve their statutory Hen under the provisions of Ark. Code Ann. § ll-9-410(a)(l) (1987). Therefore, after a de novo review of the entire record, and for the reasons discussed herein, we find that, under the facts presented in the present case, the respondent is entitled to a credit to the extent of the lien provided for in Ark. Code Ann. § ll-9-410(a)(l) (1987).
On appeal, the claimant argues that here the employer had actual knowledge of the third-party claim against the tortfeasor but failed to take any action to preserve its right to a credit against the setdement. She argues that an employer’s ability to protect its subrogation rights is not dependent on whether the injured employee files a lawsuit, and that the absence of a lawsuit in which the employer could intervene should not excuse the employer’s failure to take any action to protect its subrogation rights. Claimant suggests that “a determination should be made in regard to what action is required to preserve an employer’s subrogation interest in a third-party case once that employer has actual knowledge of the existence of the third-party claim.”
The “determination” that appellant seeks is readily disclosed by reviewing § 11-9-410 (1987) and the case law, as the Commission’s opinion in this case makes apparent. The statutory purpose of Ark. Code Ann. § 11-9-410 is to protect the rights of both the compensation carrier and the employee. If there is an action by the employee against a third party in which the employer or carrier can intervene, they are entitled to reasonable notice and opportunity to join in the action; failure to do so waives their rights. See Ark. Code Ann. § 11-9-410(a)(1) (1987); John Garner Meats v. Ault, 38 Ark. App. 111, 828 S.W.2d 866 (1992). The proceeds of any compromise settlement of a tort claim is subject to the hen of the employer or compensation car rier unless the settlement has been approved by a court having jurisdiction or by the Commission after the carrier has been afforded an adequate opportunity to be heard. See Ark. Code Ann. § 11-9-410(c) (1987); Travelers Ins. Co. v. McCluskey, 252 Ark. 1045, 483 S.W.2d 179 (1972).
The Commission’s decision is affirmed.
Meads and Roaf, JJ., agree.
Wentworth v. Sparks Regional Medical Center, 49 Ark. App. 10, 894 S.W.2d 956 (1995).
Since the time of claimant’s injury, an addition has been made to subsection (c) of the Code to make this even more explicit:
(c)(3) No party shall settle a claim under subsections (a) and (b) of this section without first giving three (3) days’ written notice to all parties with an interest in the claim of the intent to settle. Each party with an interest in a claim under subsections (a) and (b) shall cooperate with all other parties in litigation or setdement of such claims.
Ark. Code Arm. § ll-9-410(c)(3) (Supp. 1995). | [
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Terry Crabtree, Judge.
Appellant Terry Jay Kenyon appeals his conviction of two counts of negligent homicide for which he was sentenced to a term of imprisonment of twelve months and fined $2,000. Appellant raises three points on appeal. He first argues that the trial court should have suppressed the results of the blood-alcohol test obtained by the State because the private laboratory that performed the test and then stored the remainder of the blood sample removed the sample from refrigeration, causing it to be useless for further testing by appellant. Appellant then argues that the judgment should be reversed because the trial court allowed the introduction of graphic photographs of the victims. Finally, appellant argues that the trial court should have granted his motion for a mistrial because spectators attending the trial and sitting near the front of the courtroom were wearing buttons with the picture of one of the victims and coming and going often, thereby drawing attention to themselves. Finding no error, we affirm.
The tragic facts of this case are that appellant and his wife, Rhonda Kenyon, invited three couples to a small “get-together” on their houseboat on Greers Ferry Lake at Heber Springs, Arkansas, on the evening of July 3, 1995. The couples grilled, drank beer and margueritas, and watched fireworks. From the testimony, it appears that appellant acted as host throughout the evening, serving the guests and grilling. According to the testimony by the guests on appellant’s houseboat, appellant did not appear to be intoxicated during the evening. Appellant’s testimony was that he had between three and four beers during the course of the evening. He testified that he had no difficulty cleaning up the boat and loading everyone’s cars at the end of the evening. He felt that he was in an acceptable condition to drive. After the guests left at approximately 11:30 p.m., appellant and his wife straightened and cleaned the houseboat before leaving. Everyone was returning to Searcy, Arkansas, by way of Highway 16. Appellant’s wife reclined her seat and slept on the way home while appellant drove. Appellant, who was driving a Ford Explorer, testified that he did not remember anything from the time that he left the parking lot at the lake.
Meanwhile, Melissa Patrick was spending the evening with her parents; a friend’s child; her boyfriend, victim Steven Seitz; and her one-month-old son, victim Cody Patrick. At the end of the evening, Melissa Patrick, Steven Seitz, and Cody started to return to Hickory Flat, Arkansas, by way of Highway 16. Melissa was driving her pickup truck, and Steven was following in a Ford Escort with Cody strapped in an infant carseat in the backseat. Melissa’s testimony was that she was driving fifty-five miles an hour when appellant’s car entered her lane, hitting her truck, and causing her to wreck. Melissa was able to climb from her truck through a window and saw that the Escort in which Steven and Cody were riding also had been hit. Steven Seitz and Cody Patrick were killed instantly in the wreck. After the accident, Melissa was taken to the hospital in the same ambulance as appellant, but she was hysterical and could not recall if he smelled of alcohol.
Passengers in a car that immediately came upon the wreck and stopped testified that appellant had passed them on a double yellow fine at a high rate of speed a mile or less before the acci dent. One passenger testified that he smelled alcohol in appellant’s Ford Explorer. Another testified that he smelled a strong odor of intoxicants, but did not know if it was alcohol, anti-freeze, or something else.
The state trooper who went to the scene testified that he smelled alcohol on appellant and listed that as a contributing factor in the accident report. Both paramedics who came to the scene smelled a strong odor of intoxicants coming from appellant. Appellant’s nurse at Central Arkansas Hospital testified that she smelled the distinct odor of alcohol coming from appellant.
Corporal Lindsey Williams of the Arkansas State Police testified that he is certified to reconstruct accidents. He arrived at the scene several hours after the accident. From the skid marks, measurements, and photographs, he concluded that the accident occurred on a stretch of straight, flat highway. It was Williams’s definite opinion that the impact occurred in the victims’ lane of traffic. Williams testified that his conclusion was that appellant crossed the center line, hit Melissa Patrick, then continued across the center line and hit the Ford Escort in which Steven Seitz and Cody Patrick were riding. He saw no sign of braking by appellant before the initial impact.
At the hospital, appellant signed a statement of rights form for administration of a blood-alcohol test. Appellant agreed to take the test. On the rights form, he indicated that he did not wish to have his own blood, urine, or breath test. Appellant put the wrong date on this form. He also wrote “I was not driving.” The result of the legal blood test was that appellant had a blood-alcohol level of .10. The hospital also performed tests. The result of the medical tests performed by the hospital was that appellant’s blood-alcohol level was .120. Melissa Patrick had a blood-alcohol level of .00, as did Steven Seitz.
We first address appellant’s argument that the trial court should have suppressed the blood-alcohol test result showing his blood-alcohol level to be .10 because his right to have his own test performed was destroyed when the laboratory that performed the test removed his blood sample from refrigeration. He asserts that when a defendant’s right to run his own tests is violated, his rem edy is the exclusion of the State’s evidence because to do otherwise deprives the defendant of due process. The trial court correctly denied appellant’s motion to suppress the result of the blood-alcohol test.
The facts pertinent to this point are that following the accident, appellant signed the statement of rights form as to the blood-alcohol test. The form explained his rights with regard to the test and explained his right to have his own test performed if he agreed to take the test. He agreed to submit to the blood-alcohol test and checked the box by the “no” following the question as to whether he would like a blood, urine, or breath test. Appellant signed this form at 2:05 a.m. on July 4, 1995. Then, on November 16, 1995, appellant filed a motion requesting an order directing the laboratory that stored the blood to make a portion of the blood available for independent testing. At this time it was discovered that an employee of the laboratory, which was privately owned and operated, had removed the blood from refrigerated storage, and the blood was no longer in a suitable condition for testing for the blood-alcohol level.
Section 5-65-204 of the Arkansas Code Annotated provides in pertinent part:
(e) The person tested may have a physician or a qualified technician, registered nurse, or other qualified person of his own choice administer a complete chemical test in addition to any test administered at the direction of a law enforcement officer.
(1) The law enforcement officer shall advise the person of this right.
(2) The refusal or failure of a law enforcement officer to advise such person of this right and to permit and assist the person to obtain such test shall preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer.
Ark. Code Ann. § 5-65-204(e) .(Repl. 1993).
Appellant relies on the above statute and the case of California v. Trombetta, 467 U.S. 479 (1984), in support of his argument. In Trombetta, the issue before the United States Supreme Court was “whether the Due Process Clause requires law enforcement agencies to preserve breath samples of suspected drunken drivers in order for the results of breath-analysis tests to be admissible in criminal prosecutions.” Id. at 481. The Court held that “the Due Process Clause of the Fourteenth Amendment does not require that law enforcement agencies preserve breath samples in order to introduce the results of breath-analysis tests at trial.” Id. at 491. In reaching its conclusion, the Court stated that the authorities in the case did not destroy the defendant’s breath samples in a calculated effort to circumvent the disclosure requirements previously established by the Court; rather, the authorities acted in good faith. Secondly, the Court stated that, more importantly, the duty to preserve samples must be limited to evidence that “might be expected to play a significant role in the suspect’s defense.” Id. at 488. The Court stated that to meet this standard, the evidence must possess exculpatory value that was apparent before it was destroyed and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means. The Court noted that the evidence from the breath samples would be much more likely to be inculpatory rather than exculpatory. Finally, the Court pointed out that the defendants had other methods of demonstrating their innocence, such as presenting evidence of how the tests could be inaccurate.
In Wenzel v. State, 306 Ark. 527, 815 S.W.2d 938 (1991), the Arkansas Supreme Court followed Trombetta, supra, in affirming a defendant’s conviction when he appealed on the basis that the State had used all the semen found on vaginal swabs during DNA testing, and he was, therefore, unable to conduct his own tests. The court stated that the defendant made no showing that the evidence possessed exculpatory value before it was destroyed. The court also cited Arizona v. Youngblood, 488 U.S. 51 (1988), in stating that the defendant failed to show bad faith on the part of the State, which was necessary in order to constitute a denial of due process.
Applying Trombetta and Wenzel to the present case, the trial court correctly admitted the evidence of the blood-alcohol test. First, the authorities did not destroy the leftover blood sample in bad faith. To the contrary, the State did not destroy the sample at all; an employee of a private laboratory left the sample out of refrigeration after appellant had waived his right to have his own analysis performed. We do not agree that the private laboratory employee’s inadvertent destruction of the blood sample was “tantamount to bad faith on the part of the State” as argued by appellant. As appellant’s attorney admitted to the trial court, there is no evidence that the State or any other person requested, hinted, schemed, or in any way caused the lab employee to remove the blood from refrigeration. Second, all indications are that another test performed on the blood sample would have proven inculpa-tory rather than exculpatory. Not only had the State’s test revealed a blood-alcohol level of .10, but the hospital’s test, which was introduced by appellant, obtained a result of .12. Thus, the alleged exculpatory value of the test was not at all apparent before the sample was left out of refrigeration. Thirdly, appellant had other means to demonstrate his innocence, which he did, through the testimony of his expert, who attacked the accuracy of the particular test run on the State’s sample.
In sum, appellant waived his right to have his own analysis performed; there was no evidence of bad faith; the exculpatory value of the sample was not apparent, in fact further tests probably would have proven inculpatory; and appellant put on evidence through his expert that the test results could be inaccurate. The trial court properly admitted the test result.
We now turn to appellant’s argument that the judgment should be reversed because the trial court admitted inflammatory photographs of the victims. It is appellant’s position that the probative value of the photographs was outweighed by the prejudicial value since there were other methods available for the State to prove the death of the victims.
We do not determine this argument on the merits because appellant failed to provide a copy of the photographs in issue in the abstract. Although appellant requests in his reply brief that this court waive the requirement that the photographs be included in the abstract, he cites no authority for doing this and presents no convincing argument that the court should do so in this case. The law is well established that the appellate court will not consider the admissibility of photographs when the appealing party fails to include copies in the abstract.
In Coney v. State, 319 Ark. 709, 894 S.W.2d 583 (1995), the supreme court stated that when the admission of photographs is an issue on appeal, the failure to include them in the abstract is fatal to the point because the reviewing court cannot have a clear understanding of the objection that forms the basis of the appeal. The court reiterated the rule that there is only one record, and it is essential that the material parts of the record be abstracted.
In Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995), the supreme court did not consider an argument on appeal concerning photographs when black-and-white photocopies of the photographs were in the abstract. The court stated that the State described the photographs, but the appellant’s abstract contained only black-and-white photocopies, and the court could not tell what the photos depicted and whether they were without probative value. The court stated that, therefore, it could not state that the trial court abused its discretion in admitting the photographs.
The record on appeal is limited to that which is abstracted. Moncrief v. State, 325 Ark. 173, 925 S.W.2d 776 (1996). Without the photographs in issue to consider, this court cannot say that the trial court abused its discretion in admitting them into evidence.
Even if we were to decide this issue on the merits, we would affirm. The trial court specifically stated that it would rule on each photograph individually. The State wished to introduce eight photographs taken by the state police and seventeen photographs taken by the coroner’s office. The trial court found that, while the State had the right to prove the cause of death through the method and manner it wished, the number of photographs was excessive. The trial court refused to allow the introduction of duplicative photographs, finding that allowing such duplication would inflame and prejudice the jury. The court allowed the introduction of three of the photographs.
The first photograph depicts victim Cody Patrick. It shows the cause of death and that Cody was strapped in a carseat. The second photograph shows both victims in the car. From the second photograph, one can see the damage to the car and the injury to the victims. The third photograph shows victim Steven Seitz, still strapped in the driver’s seat, and also shows the damage to the car. The second and third photograph demonstrate the speed at which the collision occurred and the impact of the cars. See Prunty v. State, 271 Ark. 77, 607 S.W.2d 374 (1980).
Whether to admit photographs into evidence is a matter left to the sound discretion of the trial judge, and his determination will not be reversed absent a clear abuse of that discretion. Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990). Photographs may be admissible even if they are cumulative to other evidence presented. Id. Even inflammatory photographs are admissible if they shed light on an issue, help a witness to better describe what is portrayed, or enable the jury to understand the testimony. Id. Rather than routinely accepting, carte blanche, graphic and repetitive photographs, the trial court should weigh the probative value of photographs against their prejudicial nature. Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986).
In the present case, the trial court did not give carte blanche acceptance to the photographs. Rather, the court considered the photographs and excluded all but three. The witness testifying as to the three photographs in issue stated that the photographs would help him to describe the victims’ injuries and how they died. He testified that the photographs helped show the severity of the collision. The witness testified that the photographs would much better depict the nature of the victims’ deaths than he could describe. The trial court did not abuse its discretion in admitting the photographs.
As his third point for reversal, appellant argues that the judgment should be reversed because the trial court denied his motion for a mistrial. His motion was based on the fact that spectators who were sitting near the front of the courtroom were wearing badges with the photograph of one of the victims on them. According to appellant’s attorney’s statement to the trial court, these people were coming and going often. It is appellant’s position that these individuals prejudiced the jury.
After the selection of eight jurors and during the noon recess before finishing voir dire, appellant’s attorney addressed the trial court, stating that it was brought to his attention during the middle of his voir dire that there were people in the front row of the audience who were wearing badges with a picture of one of the victims on them. From the discussion of the lawyers and the judge, it appears that the badges were approximately four inches in diameter, but contained writing as well as the photograph, so that the photograph was about the size of a driver’s license picture. Appellant’s attorney asserted that the people with the badges had continually walked back and forth in the courtroom and periodically left and come back, thus drawing attention to themselves and their grief. Appellant’s attorney stated that this was very prejudicial and requested a mistrial. The trial court denied the motion for mistrial, stating that appellant had had no objection to the trial court deferring action until the first break. The trial court noted that the prosecutor had advised the people during lunch to take the badges off. The trial court also noted that it had seen only two people get up and leave from the front row. The court did not think that the jury had been prejudiced, but stated that appellant’s attorney could inquire of the panel to determine if they had been. The abstract does not contain any questioning of the jury panel by appellant’s attorney as to this matter.
The granting of a mistrial is a drastic remedy. Johnson v. State, 325 Ark. 197, 926 S.W.2d 837 (1996). A trial court should only resort to mistrial when there “has been an error so prejudicial that justice cannot be served by continuing the trial.” Id. at 204, 926 S.W.2d at 837. The determination of whether to grant a motion for mistrial is a matter within the trial court’s sound discretion, and a denial of a motion for mistrial will not be reversed absent an abuse of that discretion. Johnson, supra. In the present case, it has not been demonstrated that the jury saw the badges being worn by some spectators or, if they did, that this affected their ability to be fair jurors. Also, it is not clear that the jury members, if they saw that some people were wearing badges, could tell what was on them. Appellant did not question the panel with regard to whether they saw the buttons and could tell what they were and whether this would influence their ability to sit fairly on the jury. Appellant has not demonstrated prejudice, as is necessary in order for this court to reverse, Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied 470 U.S. 1985 (1985), and has failed to demonstrate that the trial court abused its discretion in denying his motion for mistrial.
Affirmed.
Rogers and Stroud, JJ., agree. | [
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John F. Stroud, Jr., Judge.
This is an employment security case. Appellant, Charles Garrett, appeals from a decision of the Arkansas Board of Review that found that he left his work voluntarily and without good cause connected with the work. The Board’s decision reversed the Appeal Tribunal’s finding that appellant had good cause for quitting his job. The appellant is not represented by an attorney, and neither party has filed a brief. We reverse and remand to the Board of Review to award appellant’s benefits.
Appellant worked for the employer approximately fifteen years. He left his supervisor position because of problems on the job. Specifically, appellant’s own supervisor was not able to hire enough employees to perform all the work. Consequently, appellant was required to work long hours. He worked fifteen to eighteen hours per day. As a salaried management employee, he was not paid overtime. His employees, who did receive overtime pay, earned more than he did. A former plant manager had promised him a five percent raise and back pay. He admitted that he had received a raise in 1995, but it was not a five percent raise and he did not receive back pay. Company reorganization and restructuring had been taking place for approximately four years prior to appellant’s departure from the company. Management changes had resulted in an unstable work environment that was stressful. He complained to his supervisor, but nothing was done. He complained to the plant manager and plant superintendent on September 11, 1995. He said that they also promised changes, but that he believed that changes needed to be made immediately.
The human resources representative testified that appellant’s exit statement indicated that he quit because of dissatisfaction with pay, long hours of work, and poor management attitude. He testified that appellant did not have a formal contract, but as a management employee he was exempt under federal law from being paid overtime. He acknowledged that appellant and other supervisors complained about the company’s management and that the other supervisors had many of the same complaints voiced by appellant. He stated, however, that the other supervisors did not quit.
“Good cause” is a cause that would reasonably impel an average able-bodied, qualified worker to give up his or her employment. Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993). It is dependent not only on the good faith of the employee involved, which includes the presence of a genuine desire to work and to be self-supporting, but also on the reaction of the average employee. Id. Another element of good cause is whether the employee took appropriate steps to rectify the problem. Claflin v. Director, 53 Ark. App. 126, 920 S.W.2d 20 (1996). What constitutes good cause is ordinarily a question of fact for the Board to determine from the particular circumstances of each case. Perdrix-Wang, supra.
We do not conduct a de novo review of the evidence in an appeal from a decision of the Board of Review. Cowan v. Director, 56 Ark. App. 17, 936 S.W.2d 766 (1997). The Board’s findings of fact are conclusive if they are supported by substantial evidence. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Rucker v. Director, 52 Ark. App. 126, 915 S.W.2d 315 (1996). We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Cowan, supra. Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.
Here, appellant had worked in an admittedly stressful environment for four years while the company was reorganizing and restructuring. He worked fifteen to eighteen hours per day, with no overtime pay. He had made several attempts to discuss his concerns with his supervisors, but those concerns were never addressed. Viewing the evidence in this case in the light most favorable to the Board’s finding, we conclude that the finding is not supported by substantial evidence. We determine that the Board could not reasonably reach its decision that appellant left his job voluntarily and without good cause. We therefore reverse and remand the case to the Board of Review to award appellant his unemployment benefits.
Reversed and remanded.
Neal and Meads, JJ., agree. | [
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Andree Layton Roaf, Judge.
Malika L. Stepp appeals from an order increasing the child-support payments made to her by the appellee, Winifred T. Gray. She argues that the chancellor erred in: 1) calculating the amount of child support; 2) making the increase retroactive for only six months; 3) allowing Gray to pay a part of the child support in an annual, lump-sum payment; and 4) denying her request for attorney fees and expert witness fees. We agree that the chancellor erred by excluding the amount of a depreciation deduction reflected on Gray’s income tax return in calculating the child support, and reverse and remand on the first issue. We affirm the chancellor on the remaining three issues raised.
Stepp and Gray were divorced in 1991. Stepp was awarded custody of the parties’ three minor children, and Gray was ordered to pay child support of $1075 per month. On December 1, 1994, Stepp petitioned for an increase in child support, alleging, among other changes in circumstances, that Gray was earning more from his business than when the prior support order was entered in 1991.
At the hearing held on September 11, 1995, Stepp placed into evidence the fact that Gray had acquired a dozen rental properties since the divorce, and as a result had substantially increased his after-tax income. On December 12, 1995, the chancellor entered a letter order raising Gray’s child-support obligation from $1,075 to $3,054.46 per month. On January 5, 1996, Gray filed a motion to reconsider, and after a February 13, 1996, hearing in which the chancellor accepted additional evidence, he lowered Gray’s child-support obligation to $2,418.56 per month, retroactive for six months. The chancellor also denied Stepp’s motion for attorney and expert-witness fees.
After Stepp’s motion to reconsider this order was deemed denied, Stepp timely filed her notice of appeal. There was a subsequent order entered on April 29, 1996, which apparently allowed Gray to pay a part of his regular support in a lump-sum, end-of-the-year annual payment. This order is not abstracted and does not appear in the record; however, Stepp has abstracted her notice of appeal from this order.
f. Child-Support Calculation
Stepp first argues that the chancellor erred in calculating Gray’s child-support obligation because he: 1) allowed a $34,861 depreciation deduction on Gray’s rental properties; 2) failed to consider the fact that Gray received a company car; 3) faded to consider that Gray received income from seventeen rent houses; and 4) allowed a self-employed health-insurance tax deduction of $793. Stepp urges that this court remand to the chancellor for him to consider all the factors stated in the 1993 Supreme Court Per Curiam Order setting forth child-support guidelines. Stepp further cites Black v. Black, 306 Ark. 209, 812 S.W.2d 480 (1991), in urging that Gray should be ordered to pay additional child support based on a net-worth approach, because Gray owns seventeen rent houses and a company car. We agree that Stepp’s argument has merit only with regard to the depreciation tax deduction.
Gray’s sources of income for 1994 were clearly established at the hearings. His two main sources of income were his primary business, Bart Gray Realty, from which he drew a regular salary of $44,650, and his rental properties, with gross receipts of $152,513 and net taxable income of $24,226. This income, as well as income from several other ventures, was clearly reflected on Gray’s tax returns, which were entered into evidence and relied upon by the chancellor. Gray’s adjusted gross income for 1994 was $127,820. From this sum, the chancellor disallowed a $2,000 deduction for an IRA, which brought his adjusted gross income to $129,820. After properly subtracting federal and state income taxes, FICA, and a deduction for maintaining health insurance on the minor children, which are specifically allowed by the child-support guidelines, In Re Guidelines for Child Support, 314 Ark. App. 644, 863 S.W.2d 291 (1993), the amount of Gray’s income upon which his child-support obligation was calculated stood at $90,696. Because he owed support for three children, his monthly support obligation pursuant to the child-support guidelines was 32% of this total, or $2,418.56, the amount ultimately ordered by the chancellor.
Stepp presented testimony by her accountant and argued to the chancellor that a depreciation deduction claimed by Gray on his rental properties should be included as income for the purpose of calculating Gray’s child-support obligation because it was not an actual expenditure. However, the chancellor based the support award on Gray’s adjusted gross income, allowing all of the business deductions claimed by Gray and disallowing only a deduction for an IRA.
For the purposes of calculating child support, the child-support guidelines state that, “Income refers to the definition in the federal income tax laws,” less proper deductions for:
1. Federal and state income tax;
2. Social security (FICA) or railroad retirement equivalent;
3. Medical insurance paid for dependent children; and
4. Presendy paid support for other dependents by Court order.
The guidelines further provide that:
For self-employed payors, support shall be calculated based on last year’s federal and state income tax returns and the quarterly estimates for the current year. Also the court shall consider the amount the payor is capable of earning or a net-worth approach based on property, life-style, etc.
However, the Internal Revenue Code contains a number of provisions which purport to define income. “Gross income” is defined in 26 U.S.C. § 61 (1994). Section 62 defines “adjusted gross income,” while section 63 defines “taxable income.”
Section 61 defines gross income as comprising a laundry list of various forms of compensation, including gross income derived from business, gains derived from dealings in property, and income from discharge of indebtedness. Clearly, reference to this definition alone will not suffice to determine a proper amount on which to calculate child support because at least one of the items, income from discharge of indebtedness, does not represent funds actually received, and business income is defined as “gross income derived from business,” before deduction of any out-of-pocket business expenses.
We also do not find that section 62, which defines adjusted gross income, provides a sufficient basis for calculating income for the purpose of the support guidelines. This section allows deductions from gross income for, among other items, “trade and business deductions,” and “losses from the sale or exchange of property,” which could also lead to an inequitable result in calculating a child-support obligation. Finally, taxable income is defined in section 63 as adjusted gross income less certain deductions including personal and itemized deductions. Consequendy, we conclude that the chancellor may not simply utilize one of the definitions of “income” found in the tax code, particularly in the case of self-employed persons, to arrive at the true disposable income of the support obligor.
Moreover, Arkansas appellate courts have suggested that a depreciation deduction should properly be considered in awarding child support, in two pre-child-support-guideline cases. In Hoyt v. Hoyt, 249 Ark. 266, 459 S.W.2d 65 (1970), the supreme court declined to reduce an award of child support and alimony totaling $1000 per month, which the appellant, a practicing physician, argued was excessive. The court commented that, although the appellant’s net income after taxes was about $24,000, “if personal exemptions and unfunded depreciation are added to that figure, it appears that Dr. Hoyt had about $32,000 of spendable income in that year.” Id. at 267, 459 S.W.2d at 66 (emphasis added).
In Pierce v. Pierce, 268 Ark. 864, 596 S.W.2d 364 (Ark. App. 1980), this court affirmed a denial of a petition for reduction of child-support payments filed by a self-employed payor whose federal tax return showed an income, for tax purposes, of only $2,892.12 for the previous year. The court noted that the appellant admitted that he had a gross income of over $15,000 and had included a deduction for depreciation on business equipment of $4,930.61 on his return. The court stated that “it is clear from this and other evidence in the record that the tax return alone is not an accurate indicator of his available expendable income for 1978.” Id. at 866, 596 S.W.2d at 366 (emphasis added), c.f., Belue v. Belue, 38 Ark. App. 81, 85, 828 S.W.2d 855, 857 (1992)(it is appropriate for a chancellor to look beyond the technical definitions of income). Surely, determining the “expendable income” of a child-support payor is still the ultimate task of the chancellor following the adoption of the child-support guidelines in 1989.
Once income is determined, Arkansas Code Annotated section 9-12-312(a)(2) (Repl. 1993) makes reference to the family support chart mandatory when determining the appropriate amount of child support. The statute creates a rebuttable presumption that the amount of child support indicated by the chart is correct, and the presumption shall only be rebutted “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 the established criteria set forth in the family support chart.” Id. Moreover, in Roland v. Roland, 43 Ark. App. 60, 859 S.W.2d 654 (1993), this court stated “[rjeference 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.” We recognize that Gray’s income exceeds the amount for which there is a specific entry on the child-support chart and that this necessitated a separate calculation made in accordance with the child-support guidelines, but find that the same imperative applies regarding written findings for deviation from the level of support indicated by the guidelines.
By omitting that portion of the depreciation deduction which represents spendable income to Gray without entering a specific finding on the record that it would be unjust or inappropriate to calculate Gray’s support based on its inclusion, the chancellor in effect deviated from the child-support chart without making the requisite written findings. We came to a similar conclusion in Fontenot v. Fontenot, 49 Ark. App. 106, 898 S.W.2d 55 (1995), a case that involved awarding to a noncustodial parent the right to claim the parties’ children as a tax exemption. We held that allowing the noncustodial parent to benefit from the tax deduction was a deviation from the support chart without the requisite findings to support such a deviation. Id.
Although this court has the power to decide chancery cases de novo on the record, we think it appropriate to remand this case to the chancellor for further consideration of the depreciation deduction issue. See Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 130 (1993). Stepp argues that the entire $34,861 depreciation should be included in Gray’s income. However, Gray testified that he acquired his rental properties with 100% financing. His tax returns reflect that he claimed the interest paid on the mortgages as a business deduction, but not the principal. It also appears from the evidence presented concerning Gray’s mortgage payments that he would have approximately $20,000 in disposable income remaining from the depreciation deduction even if he is credited with the amount of principal paid on the rental properties. Consequently, we leave it to the discretion of the chancellor to determine whether further evidence is needed to arrive at the amount of the depreciation deduction to be considered as income to Gray.
Stepp also claims that the chancellor failed to consider the fact that Gray received a company car. However, this allegation is not supported by the evidence. According to Stepp’s own witness, CPA Keith Mabry, personal use of the company car should have been reflected on Gray’s W-2, but he could not say it was not included because the W-2 was not “broken down.” Moreover, there was no evidence presented by Stepp with regard to the actual monetary value for the use of this car. Therefore, she has failed to bring up a record sufficient to demonstrate error in this regard. See Jones v. Jones, supra.
Also meritless is Stepp’s claim that the chancellor faded to consider that Gray received rent from seventeen rent houses. This income was clearly reflected on Gray’s tax returns and was a substantial portion of the income upon which his support obligation was calculated.
Finally, we do not agree with Stepp’s assertion that the court erred in allowing Gray a self-employed health-insurance tax deduction of $793. Gray claimed that health-insurance coverage on his three minor children cost $3540.94 per year, and he was credited with these payments pursuant to the Family Support Guidelines. On appeal, Stepp argues only that Gray’s health-insurance policy also covered Gray and another son. Stepp does not argue that excluding the $793 tax deduction from Gray’s income in effect allows Gray a double credit for the health-insurance payments; consequently, we cannot say that the chancellor erred by excluding this amount from Gray’s income.
As we agree that the chancellor erred by failing to consider the depreciation deduction in calculating Gray’s support obligation, we must remand this case to the chancellor for further consideration of the child-support award consistent with this opinion.
2. Retroactive Support Award
Stepp also argues that the chancellor erred in denying her request that the child-support increase be made retroactive to December 27, 1994, the date her petition for increase was filed. The increase was instead awarded retroactive to approximately the date of the hearing on the petition in September 1995. She argues that awarding child support retroactive for only six months was inequitable because she deserved the increase retroactive to the date of the filing of the petition. She relies upon Pardon v. Pardon, 30 Ark. App. 91, 722 S.W.2d 379 (1990), as authority for the proposition that requesting support retroactive to the petition date was proper. However, Stepp’s argument on this point is without merit.
A chancellor has discretion to set the amount of child support, and his findings in this area will not be disturbed absent an abuse of discretion. Creason v. Creason, 53 Ark. App. 41, 917 S.W.2d 553 (1996). While it is well settled that a chancellor may retroactively modify a child-support obligation up to the date a modification petition is filed, Grable v. Grable, 307 Ark. 410, 821 S.W.2d 21 (1991), such an award is not mandatory. Stepp relies on Pardon, supra, which quotes with approval 27C C.J.S. Divorce § 684 (1986). Section 684 sets forth the range of options available to a chancellor regarding retroactive modification of child support, and provides in pertinent part:
In an appropriate case, it is within the discretion of the court to make an order for child support retroactive to an earlier date where it appears that the needs of the child existed as of that date. However, it has been held that child support payments 'may not be ordered to commence earlier than the date the divorce action was commenced.
Thus, in various instances it has been held proper for the court to fix the effective date of an order of child support from the date of filing of the petition or complaint, or from the date of the trial....
(Emphasis added.)
There is nothing in the record which suggests that the needs of the children would justify a finding that the chancellor abused his discretion in ordering the increase retroactive for only six months. In fact, although Stepp testified that a private school in which she had enrolled the children was expensive, she nonetheless stated that she did not need the increase in support because of this additional expense, and further stated that she was “perfectly capable” of paying for it. Virtually all of Stepp’s evidence consisted of proof that Gray’s income had increased substantially since the entry of the previous support order. While this evidence clearly supports an increase in Gray’s child-support obligation, see Ark. Code Ann. § 9-14-107 (Supp. 1995), it does not provide an adequate basis for finding that the chancellor abused his discretion in ruling that the increase be made retroactive for only six months.
3. Annual Payment of Support
Stepp next argues that the chancellor erred in allowing Gray to pay the child support in two parts. Stepp argues that allowing Gray to pay $752 twice a month, with the balance payable at the end of the year when he receives a bonus, violates the intent of the supreme court per curiam order setting forth the support guidelines.
However, we cannot reach this issue because permission to pay part of the support in a lump sum was apparently granted in an order that is not included in the record. Parties seeking relief in this court must bring up a record sufficient to show error. See Reynolds v. Rogers, 297 Ark. 506, 763 S.W.2d 660 (1989). Moreover, although Stepp has abstracted comments made by the chancellor from the bench regarding the lump-sum payment, the chancellor’s statements fall far short of even constituting a specific ruling on this issue.
4. Attorney’s Fees
Stepp’s final argument is that the chancellor erred in denying her request for attorney’s fees and expert-witness fees for her accountant. Stepp asserts that the chancellor abused his discretion by increasing her child support, but denying her request for attorney fees. We find her reliance on Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990), as authority for this argument to be misplaced.
In Scroggins, the supreme court deferred to a chancellor’s determination of whether to award attorney fees in a divorce case, stating that “the chancellor is in a better position to evaluate the services of counsel than an appellate court.” As in Scroggins, here, the chancellor asked Stepp’s counsel for an itemized billing record, but he awarded no fees; the chancellor in Scroggins had awarded less than one-half the amount that the appellant had requested. However, we do not read Scroggins as departing from the well-settled rule that an award of fees in domestic-relations cases is a matter within the sound discretion of the chancellor and not a matter of right. Ryan v. Baxter, 253 Ark. 821, 489 S.W.2d 241 (1973).
Reversed in part and remanded, affirmed in part.
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Andree Layton Roaf, Judge.
This is a wrongful discharge case. The appellant, St. Edward Mercy Medical Center (St. Edward), employed the appellee, Patricia Ellison, as a cardiac monitor technician. Ellison was terminated after a delay in alerting the nursing staff that a patient, whom she was monitoring, was in ventricular fibrillation which resulted in the patient’s death. Ellison filed suit for wrongful discharge, and was awarded damages of $20,000 in a jury trial. During the trial, St. Edward’s motions for directed verdict were denied. St. Edward appeals from the denial of its motion for judgment notwithstanding the verdict or for a new trial, contending that Ellison was an at-will employee who could be discharged with or without cause. We agree that the trial court erred in denying the motion, and reverse.
Because we agree that St. Edward was entitled to judgment as a matter of law pursuant to the employment-at-will doctrine, we need only summarize the facts leading to Ellison’s termination. Ellison was employed by St. Edward as a monitor technician assigned to the cardiac monitor room of the intensive-care unit (I.C.U.). She was discharged for incompetence after St. Edward determined that she had misread a patient’s monitor and delayed reporting the problem to the I.C.U. nurses, resulting in the patient’s death. Ellison contended that because of understaffing, she was required to watch more groupings of patient monitors at the time than she could safely handle, and more than the terms of her employment required. Thus, she contended that St. Edward breached its agreement with her, and she was fired without cause. She asserted that language contained in documents promulgated by St. Edward created an employment agreement with terms sufficient to constitute an exception to the employment-at-will doctrine, and that St. Edward could not terminate her without cause.
The three documents relied upon by Ellison are St. Edward’s employee handbook, a “twelve-hour shift agreement,” and a document entitled “Cardiac Monitoring System.” Ellison testified that she considered the twelve-hour-shift agreement to be her contract with St. Edward, and that it bound her to perform at a competent level. The twelve-hour shift agreement contains provisions for holiday and vacation pay, life insurance, retirement, leave of absence, sick pay, jury duty, etc., and concludes by stating:
ACKNOWLEDGMENT I have read all the information contained in this 12-hour shift proposal and I understand it. In consideration of being placed on a 12-hour shift I know that continued status is dependent upon my compliance to the stated rules and regulations. (Emphasis added.)
The document was signed by Ellison, the nursing-department head, and the director of personnel.
The Cardiac Monitoring System includes a description of the system and provides that:
[e]ach technician should be responsible for no more than thirty-two patient monitors or one station of four vistas .... Because of the obligation of constant observation of the patients’ monitors, the technicians must always be replaced with an I.C.U. nurse in the event of staffing shortage in the monitor room. (Emphasis added.)
Ellison was responsible for ten vistas at the time of the incident which led to her termination because another technician had taken a break and had not been replaced.
Finally, the employee handbook contains an express provision that “employees are employed at will and for an indefinite term”; states that the list of serious offenses for which an employee may be terminated is not considered all inclusive and is provided for informational purposes only; and further states that the employee handbook does not constitute a contract and does not confer any contractual rights on the employee. However, the handbook also describes St. Edward’s “progressive disciplinary policy,” which is the provision relied upon by Ellison. The policy states:
[violations of work rules, safety codes, and hospital policies are dealt with appropriately and in a uniform, consistent manner. Depending upon the seriousness of the offense, the progressive disciplinary process may involve one or more of the following: preliminary investigation, informal talk, oral warning, written counseling, written first warning, written second warning, suspension (3-5 days), and written final warning or termination. (Emphasis added.)
One of the “serious offenses for which an employee may be terminated” is “[i]mproper performance of duty including malpractice.”
On appeal, St. Edward claims that it was entitled to a judgment as a matter of law and that its motion for judgment notwithstanding the verdict was erroneously denied. A directed-verdict motion is a condition precedent to moving for a judgment notwithstanding the verdict. Wheeler Motor Co. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993); Ark. R. Civ. P. 50(e). Appellate review of a denial of a motion for a directed verdict or judgment notwithstanding the verdict entails determining whether the non-movant’s proof was so insubstantial as to require a jury verdict, if entered in his behalf, to be set aside. Nicholson v. Simmons First Nat'l Corp., 312 Ark. 291, 849 S.W.2d 483 (1993). Arkansas courts have consistently upheld the general rule that a trial court may enter judgment notwithstanding the verdict only if there is no substantial evidence to support the verdict of the jury and the moving party is entitled to judgment as a matter of law. Schmidt v. Pearson, Evans and Chadwick, 326 Ark. 499, 931 S.W.2d 774 (1996); McLaughlin v. Cox, 324 Ark. 361, 922 S.W.2d 327 (1996); See also, Anslemo v. Tuck, 325 Ark. 211, 924 S.W.2d 798 (1996); Dr. Pepper Bottling Co. v. Frantz, 311 Ark. 136, 842 S.W.2d 37 (1992); Dedman v. Porch, 293 Ark. 571, 739 S.W.2d 685 (1987). In considering sufficiency of the evidence on appeal, the court will only consider evidence favorable to the appellee together with all its reasonable inferences. Dedman, supra.
St. Edward argues specifically that Arkansas law dictates that contracts for employment are at-will contracts with very limited exceptions and that the present case does not present one of those exceptions. St. Edward submits that “at will” means that the contract may be terminated by either party, for any reason, or without a reason. Conversely, Ellison claims that the twelve-hour shift agreement, the employee handbook, and the cardiac monitoring system document constituted a contract which required St. Edward to have cause to terminate her.
Generally, the law of this state is that an employer or an employee may terminate an employment relationship at will. Crain Indus., Inc. v. Cass, 305 Ark. 566, 810 S.W.2d 910 (1991). Under the employment-at-will doctrine, an at-will employee may be discharged for good cause, no cause, or even a morally wrong cause. Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683 (1991). Although the employment-at-will doctrine has been modified in some respects, it continues to represent the law of this state. Kimble v. Pulaski County Special Sch. Dist., 53 Ark. App. 234, 921 S.W.2d 611 (1996).
The Arkansas Supreme Court has repeatedly reaffirmed the employment-at-will doctrine and has recognized only limited exceptions to it,
where there is an agreement that the employment is for a specified time, in which case firing may be only for cause, or where an employer’s employment manual contains an express provision stating that the employee will only be dismissed for cause and that provision is relied on by the employee.
Mertyris v. P.A.M. Transp., Inc., 310 Ark. 132, 832 S.W.2d 823 (1992) (quoting Crain Indus., supra). (Emphasis added.) The court has further recognized a limited public-policy exception to the at-will doctrine and has held “that an at-will employee has a cause of action for wrongful discharge if he or she is fired in violation of a well-established public policy of the state.” Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 249, 743 S.W.2d 380, 385 (1988). However, only the “express provision” exception is at issue in this case.
After review of the documentation relied upon by Ellison, we conclude that Ellison’s employment does not fall within the narrow exception to the employment-at-will doctrine recognized by our supreme court in a series of cases in which language contained in employee manuals and handbooks was at issue.
In Gladden v. Arkansas Children's Hosp., 292 Ark. 130, 728 S.W.2d 501 (1987), the court upheld judgments in favor of two employers, where the employees contended that they could not be fired without cause because of provisions contained in employment regulations and an employer handbook. However, the court modified the employment-at-will doctrine, stating:
We do . . . believe that a modification of the at will rule is appropriate in two respects: where an employee relies upon a personnel manual that contains an express provision against termination except for cause he may not be arbitrarily discharged in violation of such a provision. Moreover, we reject as outmoded and untenable the premise announced in St. Louis Iron Mt. Ry. Co. v. Matthews, 64 Ark. 398, 42 S.W. 902 (1897), that the at will rule applies even where the employment agreement contains a provision that the employee will not be discharged except for cause, unless it is for a definite term. With those two modifications we reaffirm the at will doctrine.
Id. at 136, 728 S.W.2d at 505. The court cautioned, however, that “an implied provision against the right to discharge is not enough.” Id.
In Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 684 (1991), the court declined to hold that the following language in an employer’s handbook created an enforceable promise to discharge only for cause: “[w]e believe in working and thinking and planning to provide a stable and growing business, to give such service to our customers that we may provide maximum job security for our employees.” The court held that it did not rise to the level of an “express provision” as the Gladden ruling required.
Finally, in Crain Indus., supra, the court affirmed a judgment for employees who had sued for wrongful discharge because their layoffs were not in accordance with a provision contained in their employee handbook. The jury found the following provision to be an express agreement:
[I]n the event it should become necessary to reduce the number of employees in the workplace, employees will be laid off on a seniority basis.
Crain Indus., 305 Ark. at 568, 810 S.W.2d at 911.
In Crain Indus., the supreme court stated that this handbook provision was a “model of clarity and definiteness” and that there was “no doubt as to its meaning,” in holding that “when an employer makes definite statements about what its conduct will be, an employee has a contractual right to expect the employer to perform as promised.” Although the employee handbook in Crain Indus, had been later changed to include a provision that the handbook was not a contract of employment and the employer could change it at any time, the court did not decide the effectiveness of this disclaimer provision, because there was no evidence that the employees had been notified of the change.
When we apply the holdings of Gladden and Crain Indus, to the evidence submitted by Ellison, we find that it falls short of the requirement that there be an “express provision stating that the employee will only be dismissed for cause.” Although the cardiac monitoring system document sets forth the duties of the monitor technicians with some degree of specificity, it clearly contains no language which can be construed as a promise that termination will be only for cause.
As to the employee handbook, we cannot construe the progressive disciplinary policy as a guarantee that an employee can only be terminated in accordance with the policy, or for a “serious offense,” where the same handbook states clearly and unequivocally that the handbook is not a contract, does not confer contractual rights upon employees, and also expressly states that employees are employed at will. Moreover, although a guarantee could perhaps be implied from the existence of the policy, and from its terms, this would be contrary to the supreme court’s directive in Gladden, that an implied provision against the right to discharge will not be sufficient to invoke the exception.
We also can find no express provision against termination without cause in the document primarily relied upon by Ellison, the twelve-hour-shift agreement. We do not agree with Ellison’s contention that the document constitutes a “clear and unambiguous employment agreement” which incorporates by reference other hospital rules and regulations, including the cardiac monitoring system and the employee handbook. This agreement was signed by Ellison in 1986, while she was employed by St. Edward as a patient-service technician, some five years before St. Edward trained her in 1991 to work as a monitor technician. The agreement states that only employees with “good attendance records” will be selected to work a twelve-hour shift, and contains a number of rules which are specific to employees who work that shift, as opposed to an eight-hour shift. The language that Ellison relies upon clearly provides that continued status as a twelve-hour-shift employee is dependent upon compliance with the rules stated in the agreement, and we cannot find even an implied provision against the right to discharge in this language.
As none of the documents relied upon by Ellison contains an express provision that discharge will not be without cause, the trial court erred in denying St. Edward’s motion for judgment notwithstanding the verdict.
Reversed and dismissed.
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John Mauzy Pittman, Judge.
The appellant in this workers’ compensation case, whose job required heavy lifting, alleged that he developed hemorrhoids as a gradual-onset injury. The administrative law judge denied benefits after concluding that appellant’s hemorrhoids were not a compensable gradual-onset injury under the new Act. The Commission adopted the administrative law judge’s opinion as its own, and this appeal followed.
For reversal, appellant contends that the Commission erred in ruling that hemorrhoids are not a compensable injury under Ark. Code Ann. § 11 -9-102(5)(A)(ii) (Repl. 1996). In addition, he asserts that there is substantial evidence to show that he sustained a compensable injury, and urges us to hold that the record supports a finding of compensability. We find no error, and we affirm.
Appellant’s first argument focuses on a distinction between accidental injuries (as defined in Ark. Code Ann. § 11 — 9— 102(5)(A)(i) (Repl. 1996)) and gradual onset injuries (as defined in Ark. Code Ann. § ll-9-102(5)(A)(ii) (Repl. 1996)): accidental injuries are those that are both caused by a specific incident and identifiable by time and place of occurrence; gradual onset injuries are those that either are not caused by a specific incident or are not identifiable by time and place of occurrence if the injury is (a) caused by rapid'repetitive motion, (b) a back injury, or (c) hearing loss. On the basis of this “and/or” distinction, appellant posits that there exists a third type of compensable injury, i.e., a non-back, non-hearing loss, non-repetitive motion injury that is not caused by a specific incident but that is otherwise identifiable by time and place of occurrence.
In essence, appellant argues that the distinction between subsection (i) and subsection (ii) regarding the requirement that an injury be identifiable by time and place of occurrence renders the statute ambiguous, and asks us to construe it so as to expand its meaning. We note that, even if we agreed that the statute was ambiguous, we would be required to subject it to strict construction pursuant to Ark. Code Ann. § ll-9-704(c)(3) (Repl. 1996). In any event, we see no ambiguity in the statutory language. The only injuries that have been defined as compensable by the legislature are: accidental injuries, gradual injuries of the three specified types, mental illness, cardiovascular disease, and hernias. See generally Ark. Code Ann. § 11-9-102(5) (Repl. 1996). Appellant has demonstrated that there may be a category of injury which has not been included in the statutory definition of compensability and, in effect, asks us to treat this as a legislative oversight. However, the legislature has expressly declared that:
[T]he extent to which any physical condition, injury or disease should be excluded from or added to coverage . . . shall be addressed by the General Assembly and should not be done by administrative law judges, the Workers’ Compensation Commission, or the courts.
Ark. Code Ann. § 11-9-1001 (Repl. 1996). In light of this declaration, and in the absence of any assertion that the injury resulted from rapid repetitive motion, we hold that the Commission correctly found that appellant’s hemorrhoids did not constitute a compensable injury under Ark. Code Ann. § 11-9-102(5) (A) (ii) (Repl. 1996).
Finally, appellant asks us to review the record and hold that the evidence supports a finding that he suffered a compensable injury. In fight of our holding that the injury appellant assertedly sustained was not compensable, we need not address this issue. We note, however, that even had we agreed with appellant’s initial argument, we would lack the authority to make findings of facts and remand for an award of benefits. Our review is governed by Ark. Code Ann. § 11-9-711(b)(4) (Repl. 1996), which states that:
The court shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the order or award, upon any of the following grounds, and no other:
(A) That the commission acted without or in excess of its powers;
(B) That the order or award was procured by fraud;
(C) That the facts found by the commission do not support the order or award;
(D) That the order or award was not supported by substantial evidence of record.
Affirmed.
Robbins, C.J., and Arey, Griffen, and Roaf, JJ., agree.
Meads, J., dissents.
The dissent argues that the Commission’s findings of fact are inadequate. We agree that the Commission is required to make findings of fact sufficient to justify the denial of benefits. Shelton v. Freeland Pulpwood, 53 Ark. App. 16, 918 S.W.2d 206 (1996). However, the Commission did so in the case at bar. Appellant never contended, either before the Commission or on appeal to this court, that his injury came within any of the three categories of compensable gradual-onset injuries established by Ark. Code Ann. § ll-9-102(5)(A)(ii). After reciting the categories of injury compensable under subsection (ii), the Commission denied relief, explaining that the Act set forth only three types of gradual-onset injuries, and the claimant’s hemorrhoids did not fall within any of those categories. Although the Commission’s findings were brief, they were sufficient to allow us to determine whether the Commission resolved the issues before it in conformity with the law, and that is all that is required. See Shelton v. Freeland Pulpwood, supra. | [
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Per Curiam.
Before the Court is a Motion to Correct the Record brought by separate appellees David C. Kolb, M.D., and T. Eric Bowen, M.D. Separate appellees note that the record in this case was in the possession of appellant’s counsel until it was checked out to their counsel. Upon receipt, counsel for separate appellees discovered that several pages of the record contained highlighted sections or notations. Separate appellees identify several pages in their motion that are said to be highlighted or annotated. Further, separate appellees, through their counsel, certify that these notations and highlights were placed on the record prior to its receipt by counsel for separate appellees.
Separate appellees served their motion on all parties to this appeal. No responses were filed, and the time to respond has expired.
The clerk’s records indicate that counsel for the appellant checked out the record on March 20, 1997. Counsel then returned the record to the clerk’s office on July 18, 1997; on that same date, counsel for separate appellees checked out the record. Separate appellee’s motion was filed on July 25, 1997.
A review of the record confirms that, as alleged by separate appellees, it has been highlighted with notations added on a substantial number of pages. This cannot be permitted; the record should not be tampered with in any fashion. Therefore, pursuant to Ark. R. App. P. — Civ. 6(e), we order counsel for the appellant to correct all pages of the record that contain highlights or notations by preparing a supplemental record, properly certified, replacing these pages. This supplemental record shall be filed within 30 days of the date of this opinion. Appellant is to bear all costs in connection with the preparation, certification and transmission of the supplemental record.
By this Per Curiam, we place all counsel and parties, in this case and all future cases, on notice: the Court’s record on appeal is not to be disfigured, marked upon, or otherwise tampered with. | [
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John E. Jennings, Judge.
On July 30, 1995, Robyn Ross Owens was found shot to death at the Elk’s Club in Fordyce, Arkansas. Appellant, Stacey Moore, was subsequently charged with first-degree murder in connection with Owens’s death. Moore was also charged with being a felon in possession of a firearm. Moore was found guilty by a Dallas County jury of the lesser included offense of second-degree murder and of felon in possession of a firearm and was sentenced to serve twenty-eight years in the Arkansas Department of Correction. On appeal, Moore argues two points for reversal: (1) the trial court erred in denying appellant’s motion for directed verdict; and (2) the trial court erred in allowing the coroner to testify with regard to the bullet wound found on the victim. We find no error and affirm.
A motion for directed verdict is a challenge to the sufficiency of the evidence. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). In determining the sufficiency of the evidence we review the proof in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992). The fact that evidence is circumstantial does not render it insubstantial. Payne v. State, 21 Ark. App. 243, 731 S.W.2d 235 (1997).
In addition, intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances surrounding the crime. Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996). The jury is allowed to draw upon its own common knowledge and experience to infer intent from the circumstances. Tiller v. State, 42 Ark. App. 64, 854 S.W.2d 730 (1993). Because of the difficulty in ascertaining a person’s intent, a presumption exists that a person intends the natural and probable consequences of his acts. Brown v. State, 54 Ark. App. 44, 924 S.W.2d 251 (1996).
In the case at bar, the State offered testimony from thirteen witnesses. In particular, Ms. Jonell Jenkins, the victim’s sister, testified that she had been with her sister all day on July 29, 1995, and during the early morning hours of July 30, 1995. They had just completed a two-week course to become certified nurse’s assistants and were celebrating with two other friends, Melody and Stephanie Harris. Jenkins testified that after visiting their cousin, Chris Ross, at his house, they decided to go to the Elk’s Lodge. At the Lodge, Jenkins testified that Robyn, Melody, Stephanie, and herself, got a table, sat down, and then danced. Jenkins stated that after Chris Ross, who was also at the Lodge at that time, got into an altercation with Patrick Crain, they decided to leave the Lodge.
Jenkins testified that as they were driving away, they changed their minds, and decided to go back to the Lodge to see their cousin, Ross. When they arrived back at the Lodge, Jenkins stated that appellant and another man named “Pop” were in front of the club arguing. According to Jenkins, Robyn got out of the car and went back into the Lodge. Jenkins testified that appellant was still outside with Pop arguing when she noticed that he had a gun. She stated that appellant started to shoot. She did not notice Robyn the first time appellant was shooting; however, she testified that the second time she saw appellant shooting, Robyn was walking back toward the car from the Lodge. Jenkins stated that at that particular time she saw Robyn fall to the ground and then saw appellant jumping the fence. She stated that she then ran over to Robyn and called others to help her.
Jenkins stated that during this time people were fighting and some more shooting had started around them. Jenkins testified that she, along with Chris Ross and Melody and Stephanie Harris, put her sister in the car and took her to the hospital. Jenkins also testified at trial that she did not remember anyone else shooting while appellant was shooting, which was at the time when she saw her sister fall on the ground. In addition to Jenkins’s testimony, several other State witnesses testified that they saw appellant at the Elk Lodge when the incident occurred and saw him shooting a gun. The witnesses also testified that gunshots were coming firm different directions and numerous people were fighting. One witness, Larry Buckley, testified that he was at the Lodge around two-thirty in the morning of July 30, 1995, and saw appellant shooting. Buckley also stated that he saw Ross at the Lodge with a gun. Patrick Strickland testified that he went to the Lodge with Ross on the evening of July 29, 1995. He stated that Ross had a .45 caliber gun and tried to shoot it in the air but the gun was jammed and would not shoot. Strickland testified that he thought Ross had gotten the gun unjammed but that he did not see him shoot it. Strickland also testified that he heard four or five shots but could not tell if these shots came from the same gun.
Chris Ross also testified at trial. Ross stated that he shot the gun in the air in an attempt to stop the fighting at the club. He claimed to only have shot the gun once. Ross further testified that he saw appellant shoot a gun first in the air and then in the crowd. Travis Bell, appellant’s brother, testified that between 4:00 and 5:00 o’clock in the morning of July 30, 1995, appellant and his mother came by his house. Bell stated that appellant’s mother asked him if he could take appellant to the bus station because she was “tired of fooling with him.” Bell testified that he drove appellant to the bus station in Little Rock. Bell claimed that after driving appellant to the bus station he found a pistol under the passenger seat of his car. Bell stated that he had not seen this pistol prior to that time and thereafter turned it over to the police.
Rick McKelvey, an investigator with the State Police, testified that he was contacted on July 30, 1995, regarding a shooting in Fordyce. He conducted a crime-scene search and examined the victim’s body at Dallas County Hospital. McKelvey stated that, in the course of his investigation, he obtained a weapon from Bell. McKelvey identified the weapon as a nine-millimeter pistol. McKelvey also testified that while interrogating appellant, appellant stated that he was at the Elk’s Lodge on the evening in question and that he was in possession of a small nine-minimeter pistol belonging to his cousin. McKelvey further stated that appellant told him he fired the gun once into the air. On cross-examination, when asked about the type of bullet which caused the victim’s wound, McKelvey testified that it could not have been caused by a .45 bullet, and was smaller than a .357 or a .38 bullet. However, McKelvey could not identify the exact size bullet which caused the wound below that range, other than to state that a .45 could not have caused such a wound.
Charles Teppenpaw, the Dallas County Coroner, testified at trial regarding his examination of the victim. Teppenpaw, at the time of the trial, had been a coroner for approximately fifty years and had recently been appointed forensic medical examiner. Tep-penpaw testified that appellant died of a gunshot wound which entered her back on the right side and exited the left chest. Tep-penpaw stated that he concentrated his examination on the entrance and exit wounds and made a determination of what type of bullet may have caused the wound. Over appellant’s objection, Teppenpaw testified as to the manner in which he made such determination. He stated that he carried sample bullets such as ,22s, .38s, .45s, and nine-millimeters and matched those to the wound on the victim. Teppenpaw testified that he tried to match the .38, the .32, the .45, and the nine-millimeter bullet to the victim’s wound. He stated that, of these bullets, the only one that he could identify to fit the victim’s wound was the nine- millimeter bullet.
Viewing the evidence in the light most favorable to the State, as we must, we hold that in the case at bar there was substantial evidence to support appellant’s conviction. The State offered testimony which placed appellant at the scene of the crime shooting a gun in the direction of the victim. The victim was seen falling to the ground immediately after appellant fired his gun. A gun, whose size bullet fit the victim’s wound, was recovered by appellant’s brother after he had taken him to the bus sta tion. In addition, testimony regarding shots being fired by Ross, the victim’s cousin, involved a .45 caliber gun to which both the investigating officer and the coroner testified could not have caused the victim’s fatal wound. The State also presented sufficient evidence in this case from which the jury could infer that appellant’s actions were done with the purpose of causing serious physical injury to another person which resulted in the death of Robyn Owens.
Furthermore, reconciling conflicts in the testimony and weighing evidence are matters within the exclusive province of the jury, and the jury’s conclusion on credibility is binding on this court. Ashley v. State, 22 Ark. App. 73, 732 S.W.2d 872 (1987). Jurors are allowed to draw upon their common knowledge and experience in reaching a verdict from the facts directly proved. Ashley, supra. It has also been held that the action of fleeing from the scene of the crime is relevant to the issue of guilt. Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984).
Appellant’s second argument on appeal involves the coroner’s testimony. Specifically, appellant argues that it was error for the judge to allow the coroner to testify regarding his process of matching bullets to the victim’s wound and stating as a result that a nine-millimeter bullet matched the victim’s wound. The coroner was not qualified as an expert in this case. His testimony, therefore, falls under Rule 701 of the Arkansas Rifles of Evidence. Rule 701 states that:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact issue.
Ark. R. Evid. 701 (1997). A trial judge’s decision to allow lay-opinion testimony under Rule 701 will not be reversed absent an abuse of discretion. Bridges v. State, 327 Ark. 392, 327 S.W.2d 392 (1997).
In Carton v. Missouri Pac. R.R., 303 Ark. 568, 798 S.W.2d 674 (1990), the supreme court, citing Professor Weinstein, stated the following applicable principles with regard to Rule 701:
Rule 701 “seeks to balance the need for relevant evidence against the danger of admitting unreliable testimony. It recognizes that necessity and expedience may dictate receiving opinion evidence, but that a factual account insofar as feasible may further the values of the adversary system. . . . ‘The opinion rule today is not a rule against opinions but a rule conditionally favoring them.’”. . . [I]n order to satisfy the first requirement of Rule 701, the testimony must initially pass the personal knowledge test of A.R.E. Rule 602. But, even if the witness does have the requisite personal knowledge, any inferences or opinions he expresses must thereafter pass the rational connection and “helpful” tests of Rule 701. “The rational connection test means only that the opinion or inference is one which a normal person would form on the basis of the observed facts. He may express the opinion or inference rather than the underlying observations if the expression would be ‘helpful to a clear understanding of his testimony or the determination of a fact in issue.’” If, however, an opinion without the underlying facts would be misleading, then an objection may be properly sustained.
Carton, 303 Ark. at 571-72, 798 S.W.2d at 675 (quoting 3 Wein-stein’s Evidence ¶ 701 [02] at 701-13(1987)).
The court has also held that lay witnesses may be permitted to give their opinion as to the cause of death or other physical condition if the witness is qualified by experience and observation with regard to the subject matter. Russell v. State, 306 Ark. 436, 815 S.W.2d 929 (1991). In Russell, the court held that the opinion testimony of an emergency medical technician concerning the instrument which caused the victim’s wounds was properly admitted pursuant to Rule 701. The medical technician testified that in his opinion the wounds were caused by a square-headed or Phillips head screwdriver. Appellant argued that because the medical technician lacked specialized training and expertise, he should not have been allowed to testify regarding the cause of the wounds. The court held that the testimony was based upon the technician’s personal knowledge, having previously observed wounds made by screwdrivers, and based upon the observation of the victim’s wounds. In addition, the technician’s opinion was helpful to the determination of a fact in issue, the cause of the victim’s wounds. Russell, supra.
In Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996), the court held that the opinion testimony of a lay witness in accordance with Rule 701 was proper. The crime lab in Moore had been unable to identify or eliminate the shoe print found in the victim’s bedroom as having been made by appellant’s shoe due to the lack of sufficient individual markings, but noted that the shoe-sole pattern of the print was consistent with the pattern on appellant’s shoe. The police investigator, during direct examination, however, testified that in his opinion the sole of appellant’s athletic shoe matched the shoe print found on the center of the victim’s bedroom floor. The court held that the trial court did not abuse its discretion in allowing the investigator’s testimony because, even though the investigator was not an expert in that field, he had some experience in that area and he was clearly testifying that the patterns matched, which was not inconsistent with the crime lab report. Moore, supra.
In the case at bar, we cannot say that the trial court abused its discretion in allowing the coroner’s lay-opinion testimony, subject to cross-examination. The situation is essentially analogous to that in Russell and, as in Moore, the coroner’s testimony was not inconsistent with the testimony of Officer McKelvey, which had previously been admitted without objection.
Affirmed.
Bird, Rogers, and Stroud, JJ., agree.
Neal and Crabtree, JJ., dissent. | [
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Olly Neal, Judge.
Appellant, Entrón Rollins, appeals the decision of the Arkansas Board of Review disqualifying him from receiving unemployment compensation benefits based on a finding that he was discharged for misconduct connected with the work. The issue before us, in this appeal submitted without briefs, is whether the Board’s decision is supported by substantial evidence. We hold that it is not and reverse.
Appellant worked for the employer as a machine helper for more than a year. The employer manufactures corrugated containers. On May 9, 1994, appellant entered the break room and found his lunch sitting on a trash can. Appellant asked the cleaning man if he knew who put his lunch on the trash can. The cleaning man kiddingly said he put the lunch there. During the exchange between appellant and the cleaning man, a co-worker, Carl Jones, intervened, telling appellant that the cleaning man did not put the lunch on the trash can and implying that he knew who did. Appellant responded to Jones saying, “I’m not talking to you. This is between [me] and this guy. What are you talking about? You need to shut up.” Jones responded, “You make me shut up.” Appellant declined and walked out of the breakroom. Jones followed appellant out of the breakroom and according to appellant “got nose to nose, right up in my face.” Jones then drew back his arm and it appeared to appellant that appellant was going to be hit by Jones. Appellant grabbed Jones to avoid being hit. They struggled until the supervisors came and broke them apart. Appellant had started outside to smoke a cigarette, when Jones struck him from behind with a two-by-four. As Jones prepared to hit appellant a second time, appellant ran into him to keep from being hit. They again struggled until the supervisors separated them.
The Board found that the appellant twice retreated from violence with Jones and only fought to the extent necessary and reasonable to protect himself from physical attacks. However, the Board found that appellant’s “harsh and provocative” speech led directly to violent events and, as such, constituted misconduct connected with the work.
On appeal, the findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. George’s Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Id. Our review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.
Arkansas Code Annotated § ll-10-514(a)(l) (Repl. 1996) provides that an individual shall be disqualified for benefits if he is discharged from his last work for misconduct in connection with the work. “Misconduct,” for purposes of unemployment compensation, involves: (1) disregard of the employer’s interest, (2) violation of the employer’s rules, (3) disregard of the standards of behavior which the employer has a right to expect of his employees, and (4) disregard of the employee’s duties and obligations to his employer. Greenberg v. Director, 53 Ark. App. 295, 922 S.W.2d 5 (1996). However, as the court explained in Nibco, Inc. v. Metcalf 6 Daniels, 1 Ark. App. 114, 613 S.W.2d 612 (1981):
To constitute misconduct, however, the definitions require more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertancies, 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. Carraro v. Director, 54 Ark. App. 210, 924 S.W.2d 819 (1996). (Emphasis added.)
Therefore, there is an element of intent associated with a determination of misconduct. George’s, Inc., supra.
In the present case, the misconduct at issue revolves around the words spoken by the appellant to a co-worker immediately preceding a fight. Appellant was found to have acted in self defense during the scuffle, but the Board of Review found that he was guilty of misconduct by saying what amounted to “stop meddling in my business” and “shut up” to the co-worker, because those words were “harsh and provocative.” While it is true that these words may have been spoken in poor judgment, we cannot say that they rise to the level of misconduct as defined by statute and as applied by this court. Even assuming that appellant spoke out of lack of judgment, his actions can not be said to constitute such negligence that they evidence a malicious or willful intent. Furthermore, there was no evidence that appellant had ever engaged in such conduct on any job before this incident; thus, there was no recurrence of poor judgment in this case.
Reversed and remanded for award of benefits.
Roaf, Griffen, Jennings, and Bird, JJ., agree.
Pittman, J., dissents. | [
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Margaret Meads, Judge.
This is an appeal from an order of the Baxter County Juvenile Court granting appellee’s petition for termination of parental rights. Appellant Rebecca Gregg is the natural mother of L.G., a male minor child, born August 2, 1995. Appellant Michael Gregg is the husband of Rebecca Gregg and the child’s legal father.
Initially, we note with chagrin that appellee did not file a brief in this case; thus, we must rely solely on appellant’s abstract and brief. In a matter of such importance as the termination of parental rights, for which the Department of Human Services has exclusive authority, we find it unconscionable that DHS elected not to file an appellee’s brief.
Appellant’s brief reveals that on October 3, 1995, Mrs. Gregg took L.G. to Baxter County Regional Hospital where a skeletal survey revealed multiple fractures of the collarbones, legs, forearms, and ribs. Appellee filed a petition for emergency custody which alleged that L.G. was at imminent risk and should be removed from appellants’ custody. At an ex parte hearing held October 5, the court found probable cause to believe the child was dependent-neglected, ordered his immediate removal from appellants’ custody, and placed him in appellee’s custody. After an adjudication hearing held November 6, 1995, the court entered an order finding L.G. to be dependent-neglected and further find ing that L.G.’s injuries were severe and consistent with Child Maltreatment Syndrome.
On December 4, 1995, appellee filed a Petition for Termination of Parental Rights alleging that L.G. was the victim of neglect or abuse perpetrated by appellants that endangered his life. On May 10, 1996, appellee filed a Court Report for Hearing which stated in part:
Despite their dependability and appropriate demeanor, there is still strong concern for L. G. or any child in the care of Michael and Rebecca because it was this same conduct that took place while L. G. was subjected to 18 fractures between 08/25/95 and 10/03/95. This was a period of time that Rebecca and Michael were receiving supportive services and seemed very appropriate to all workers that they had contact with and yet extreme severe physical abuse was being inflicted on a very young infant.
Rebecca and Michael’s attorney had advised the couple not to submit to psychiatric evaluations so our knowledge of this couples’ mental makeup is limited. We do know that they present a very “normal” behavior to our workers. However, some very abnormal violent behavior took place in their home behind closed doors, with Hide L. G. as the victim.
After a hearing held June 17, 1996, the trial court entered an order finding appellee had proved, by clear and convincing evidence, that L.G. was a victim of neglect or abuse that could endanger his life; that L.G. sustained multiple fractures over a period of two to three weeks evidencing Battered Child Syndrome; and that these injuries were perpetrated by Rebecca “and/ or” Michael Gregg. Appellants’ parental rights were terminated, and appellee was authorized to consent to the adoption of the minor child without notice to or consent of appellants.
Grounds for termination of parental rights must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b) (Supp. 1995). Clear and convincing evidence is that degree of proof which will produce in the factfinder a firm conviction as to the allegation to be established. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). When the burden of proving a disputed fact is by “clear and convincing” evidence, the question on appeal is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Freeman v. Freeman, 20 Ark. App. 12, 722 S.W.2d 877 (1987). In resolving this question we must give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Beeson v. Arkansas Dep’t of Human Servs., 37 Ark. App. 12, 823 S.W.2d 912 (1992). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Hardison v. Jackson, 45 Ark. App. 49, 871 S.W.2d 410 (1994). Our case law is clear that termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents; however, parental rights will not be enforced to the detriment or destruction of the health and well being of the child. Corley v. Arkansas Dep’t of Human Servs., 46 Ark. App. 265, 878 S.W.2d 430 (1996).
Appellants argue the chancellor’s finding that appellee proved by clear and convincing evidence that L.G. was the victim of neglect or abuse perpetrated by appellants is clearly erroneous. Appellants do not argue that the child was not abused, but only that there were other persons who had access to the child who could have inflicted the abuse.
At the June 17, 1996, hearing on appellee’s petition, Dr. Perry Wilber, a pediatrician, testified that L.G. was brought into the emergency room on October 3, 1995, because he was inconsolable and would not stop crying. A skeletal survey revealed multiple fractures of the collarbones, legs, arms, and ribs that were in various stages of healing. A physical examination revealed some dime-sized brownish bruises on the lower back to the right of the spine.
Dr. Wilber testified there was no medical problem that could have caused the fractures; the history related by the mother was the child had been crying and fussy, irritable, and inconsolable unless held upright; and the emergency room record stated that the mother said “he” fell with the child two weeks prior, but the child did not start crying until Sunday. Dr. Wilber testified in detail about the fractures. He testified that the left forearm bones were completely separated in an acute fracture, and the bones would have required a forceful injury to be cleanly broken like that; that it is unusual to find fractures above and below the knee because those are non-weight-bearing areas in a baby, and also unusual to find fractures around the ankle in non-ambulatory children; and that the blow which caused the rib injuries had to be “pretty hard,” harder than the force used in doing CPR.
Dr. Wilber testified further that the injuries had occurred within the past month, since they were not present on a skeletal survey done a month previously, when L.G. was hospitalized with hemorrhages in his eyes and some peculiar hemorrhages on his fingers. Rebecca’s explanation for those injuries was that L.G. rolled off the couch while in Michael’s care. Dr. Wilber testified that he did not see how that could have happened, because a month-old baby does not project himself off a couch.
Based on the unexplained crying, the x-rays, and the various ages of the fractures, Dr. Wilber believed L.G. had been physically abused. He testified that he was and still is concerned about L.G., because his injuries were severe and potentially fife threatening.
Dr. Robert Foster, an orthopedic surgeon, testified that L.G.’s injuries presented a classic case of child abuse, which can be fife threatening; that the injuries could not have been caused accidentally; and that L.G has had no new fractures since he has been out of appellants’ home.
Cheryl Munson, a caseworker for appellee, testified that she recommended terminating appellants’ parental rights even though the Greggs had complied with everything she told them to do. She had a problem leaving L.G. with appellants because he had suffered over thirteen fractures during the period they were receiving services from appellee, during which time their behavior always seemed appropriate. Ms. Munson testified it was her opinion that appellants had injured the infant because Michael admitted grabbing him by the leg to keep him from dropping, tripping in the bedroom and falling on the floor with him, and leaving him on the sofa just before he fell off. She also believed appellants had injured L.G. because the health-care professionals believed that the nature of his injuries presented a classic case of child abuse. Ms. Munson testified that L.G. was subjected to severe physical abuse while in appellants’ care which was perpetrated by “one of two” people. She did not believe that Angela Rowden, a babysitter, inflicted the injuries.
’ Appellant Rebecca Gregg testified that L.G. had been watched by her in-laws, and by Angela Rowden and Angie Gibson. She could not say that the babysitters could not have injured L.G. She stated she had never harmed L.G.; that she did not believe Michael would intentionally hurt L.G.; and that she believed Michael accidently hurt L.G.
However, Rebecca also testified that Michael dropped L.G. and caught him by the leg, bumped L.G.’s head on the bedroom wall, and fell with L.G. She said she had told the police that she was never around when Michael had anything happen to L.G.; that she would come home sometimes and find a bruise on L.G. which neither she nor Michael could explain; and whenever anything bad happened with L.G., she was either asleep or not at home. She said Michael is “clumsy.” Rebecca testified further that she continued using Angela Rowden as a babysitter even though she thought Angela Rowden might have dropped L.G.
Appellant Michael Gregg testified that he had accidently injured L.G. when the infant “got loose from my arm” and he caught L.G.’s leg before the infant hit the floor; when he bumped L.G.’s head against the wall after picking him up to go out the door; and when he fell forward while holding L.G. He said he did not go to the hospital after falling with L.G. because the infant was able to move his arms and legs, and he did not call the doctor when he hit L.G.’s head even though it was bruised. He also testified that L.G. rolled off the couch while in his care when he left him unattended for two to four minutes. Michael 'had no other explanation for the fractures.
At the conclusion of the hearing, the chancellor stated that Michael Gregg had indicated four instances where something had happened to L.G. while in his custody, and the incident in which Michael fell forward could not have accounted for all of L.G.’s broken bones. It might have accounted for some of the broken ribs or leg fractures, but did not account for the difference in the age of the injuries or for the extremities that were injured. He had never seen that kind of damage done to a child in that earliest period of its life. In terminating appellants’ parental rights, the chancellor said there “has never been a decision that this Court made that the Court makes with more confidence than this one,” and he could not in good conscience ever allow L.G. to return and be subjected to “this kind of unbelievable situation.”
After a thorough review of the record we are not left with a definite and firm conviction that a mistake has been made. On the evidence before us, we cannot say the chancellor’s findings are clearly erroneous.
Affirmed.
Robbins, C.J., and Crabtree, J., agree. | [
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John Mauzy Pittman, Judge.
The appellee was employed by the appellant trucking company on July 26, 1994. He filed a claim for benefits alleging that he injured his back and neck on that date when he fell while pulling a tarp over the load. The administrative law judge found that he sustained a compensable injury and awarded temporary total disability benefits. On de novo review, the Commission likewise found that appellee sustained a compensable injury to his cervical spine, and that he was entitled to temporary total disability benefits from July 26, 1994, until August 25, 1995. This appeal followed.
For reversal, appellant contends that the evidence is insufficient to support the Commission’s findings that appellee sustained a compensable neck injury and that appellee was temporarily totally disabled from July 26, 1994, through August 26, 1995.
In determining the sufficiency of the evidence to sustain the findings of the Workers’ Compensation Commission, we review the evidence in the light most favorable to the Commission’s findings and affirm if they are supported by substantial evidence. Weldon v. Pierce Brothers Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. Tyson Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 S.W.2d 617 (1988). In making our review, we recognize that it is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Whaley v. Hardee's, 51 Ark. App. 166, 912 S.W.2d 14 (1995). 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. 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.
Appellant first contends that there is no substantial evidence to support the Commission’s finding that appellee sustained a compensable neck injury. We do not agree. Appellee testified that, while attempting to cover the load with a tarp, he feE from his trailer and that his “head popped back” when he struck the ground. He further testified that he was treated in the emergency room, where he informed medical personnel that he was experiencing pain in his neck. The employer refused to provide additional medical treatment, and appellee did not obtain further medical care until September 1994, when an MRI scan revealed a large disc herniation of the cervical spine at C4-C5.
Appellant argues that there were inconsistencies in appellee’s testimony that render it unworthy of belief. However, this argument goes to the weight and credibility of the testimony, and these matters are exclusively within the province of the Commission. Crawford v. Pace, 55 Ark. App. 60, 929 S.W.2d 727 (1996).
Appellant also argues that the finding of a compensable injury was not supported by substantial evidence because the only objec tive medical evidence of a neck injury was an MR.I performed in September 1994 that revealed a herniation at C4-C5. Appellant does not argue that the MRI fails to show an injury, but instead asserts that there is no objective medical evidence to show that the injury took place on July 26, 1994, or that appellee injured his neck while working for appellant.
Appellant’s argument requires us to decide the scope of Ark. Code Ann. § ll-9-102(5)(D) (Repl. 1996), which provides that “[a] compensable injury must be established by medical evidence supported by ‘objective findings’ as defined in § 11 — 9— 102(16).” This statute is part of the Arkansas Workers’ Compensation Law, which by legislative mandate must be stricdy and literally construed by the Commission and the courts. Ark. Code Ann. § ll-9-704(c)(3) (Repl. 1996); Duke v. Regis Hairstylists, 55 Ark. App. 327, 935 S.W.2d 600 (1996). Appellant, in effect, asks us to apply the statutorily mandated standard of strict construction to hold that a claimant must offer objective medical evidence to prove not only the existence of an injury, but also to show the circumstances under which the injury was sustained and the precise time of the injury’s occurrence. This we cannot do. Although it is irrefutably true that the legislature has required medical evidence supported by objective findings to establish a compensable injury, it does not follow that such evidence is required to establish each and every element of compensability. The statutory definition of compensability as set out in Ark. Code Ann. § 11-9-102(5) contains many elements that simply are not susceptible of proof by medical evidence supported by objective findings. For example, a compensable accidental injury must be shown to have been caused by a specific incident and to be identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(5) (A) (i). Injuries inflicted at a time when employment services were not being performed are not compensable, Ark. Code Ann. § 11 — 9-102(5) (B) (iii), nor are injuries resulting from engaging in horseplay. Ark. Code Ann. § 11-9-102(5) (B)(i). We know of no type of medical examination or test that would result in objective findings to show exactly where and when an injury was incurred, or whether the employee was injured while performing employment services rather than while engaging in horseplay. Even statutes that must be strictly construed will not be given a literal interpretation leading to absurd consequences that are clearly contrary to legislative intent. Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993).
The legislature has declared that the major and controlling purpose of workers’ compensation is to pay timely benefits to all legitimately injured workers and return them to work. Ark.Code Ann. § 11-9-1001 (Repl. 1996). Were we to interpret the Act so strictly as to require objective medical evidence to prove nonmedical elements of compensability, we would defeat the overriding legislative intent. Consequently, we hold the requirement that a compensable injury must be established by medical evidence supported by objective findings applies only to the existence and extent of the injury.
Next, appellant contends that the Commission’s finding that appellee was temporarily totally disabled from July 26, 1994, through August 26, 1995, is not supported by substantial evidence because appefiee did not show that he remained in his healing period until August 26, 1995. Appellant argues that the record is “devoid of any medical evidence indicating that appellee was ever within his healing period.” The Commission noted the paucity of medical evidence to show the duration of appellee’s healing period but nevertheless found that he remained in his healing period until he returned to work in August 1995. In so finding, the Commission emphasized the employer’s refusal to provide further treatment and the appellee’s inability to pursue treatment on his own due to restricted finances following his termination. Although the Commission did not expressly state that it was applying the doctrine of estoppel, it is implicit in its opinion that it did so. See Southern Hospitalities v. Britain, 54 Ark. App. 318, 925 S.W.2d 810 (1996). However, because estoppel is ordinarily a question of fact, see Dickson v. Delhi Seed Co., 26 Ark. App. 83, 760 S.W.2d 382 (1988), and because the Commission did not make a specific determination that the employer was estopped, we reverse and remand on this point for the Commission to make findings sufficient for us to determine whether this issue was resolved in conformity with the law. See Wright v. American Transportation, 18 Ark. App. 18, 709 S.W.2d 107 (1986).
Affirmed in part; reversed and remanded in part.
Crabtree, J., agrees.
Arey, J., concurs.
The concurring judge misconstrues our holding. We do not hold that estoppel was the basis for the Commission’s decision. Although that decision strongly suggests that the Commission applied the doctrine of estoppel to bar the employer’s argument that the medical evidence was inadequate, the fact remains that the Commission did not explain the basis for its decision on this point, nor did it make specific findings of fact to support estoppel if estoppel was in fact applied. These matters will be clarified on remand. | [
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Judith Rogers, Judge.
Appellants herein are twenty-eight local exchange carriers (LECs), the largest such carrier being Southwestern Bell Telephone Company (SWBT). This appeal concerns the Carrier Common Line (CCL) charges that the LECs assess the interexchange carriers (IXCs) for the IXCs’ use of the LECs’ facilities. The IXCs use the LECs’ local loop networks in the origination and termination of long-distance toll calls and are charged intrastate access charges by the LECs. These charges are designed to recover a reasonable share of LECs’ local loop network costs and are treated by the IXCs as part of their cost of service, which they include in their toll rates. To determine the amount of CCL charges, the CCL revenue requirements are calculated annually on the basis of a formula, hereinafter referred to as the algorithm, which quantifies each LEC’s operating expense, current depreciated assets, and return on the LEC’s invested capital that is associated with access service to the IXCs. A 12% rate of return is used in the algorithm.
The Arkansas InterLATA Carrier Common Line Pool (AIC-CLP) was established by the Arkansas Public Service Commission (Commission) to administer the CCL revenue requirement and resulting charges. Annually, the AICCLP files tariffs with the Commission setting forth the LECs’ revenue requirements for the succeeding calendar year. On November 30, 1994, SWBT as administrator of the AICCLP filed revised tariffs with the Commission setting forth the 1995 preliminary revenue requirements (and the proposed tariffs) for each LEC member of the AICCLP. Three IXCs, AT&T Communications of the Southwest, Inc., MCI Telecommunications Corporation, and LDDS of Arkansas, Inc., responded that the 12% rate of return used in the algorithm was excessive and moved to suspend the effective date of the tariff revisions pursuant to Ark. Code Ann. § 23-4-407 (1987) in order to permit an investigation and public hearing. Order No. 27 granted the IXCs’ motion, suspended the tariffs pursuant to Section 23-4-407, ordered a public hearing on the proposed tariff revisions, and ordered the AICCLP, the LECs, and the other interested parties supporting the proposed tariffs to file their testimony first. In separate motions for reconsideration of Order No. 27, the General Staff of the Arkansas Public Service Commission (Staff), the LECs, and SWBT argued that the IXCs have the burden of proof in this proceeding and that they should be ordered to present their testimony first. Order No. 30 granted their petition for reconsideration. Order No. 31 held that the burden of proof that the AICCLP’s tariffs are just and reasonable and in the public interest remains on the proponents of the tariff filing but adjusted the procedural schedule to require the IXCs to file testimony first in order to facilitate the development of the issues.
After testimony had been filed in the proceeding and the public hearing concluded, the Administrative Law Judge (ALJ) stated her findings in Order No. 32. She concluded that the rate of return used in the algorithm should be reduced to appropriately reflect the current cost of capital and that, based upon the record, there was substantial evidence that the AICCLP revenue rate of return should be reduced to 9.2%. The Commission in Order No. 33 adopted without modification Order No. 32. Order No. 34 denied appellants’ request to stay the procedural schedule for the fifing of the revised tariffs, and Order No. 36 approved the proposed tariffs utilizing the 9.2% rate of return authorized by Order No. 33. Order No. 37 denied appellants’ petition for rehearing of Orders No. 33, 34, and 36. On appeal, appellants argue five points for reversal.
This court’s review of appeals from the Commission is limited by the provisions of Ark. Code Ann. § 23-2-423 (c)(3) and (4) (Supp. 1995), which provide:
(3) The finding of the commission as to the facts, if supported by substantial evidence, shall be conclusive.
(4) The review shall not be extended further than to determine whether the commission’s findings are supported by substantial evidence and whether the commission has regularly pursued its authority, including a determination of whether the order or decision under review violated any right of the petitioner under the laws or Constitution of the United States or of the State of Arkansas.
See Bryant v. Arkansas Pub. Serv. Comm'n, 54 Ark. App. 157, 924 S.W.2d 472 (1996). The Commission has broad discretion in exercising its regulatory authority, and courts may not pass upon the wisdom of the Commission’s actions or say whether the Commission has appropriately exercised its discretion. Bryant v. Arkansas Pub. Serv. Comm’n, 55 Ark. App. 125, 931 S.W.2d 795 (1996). “This Court has often said that, if an order of the Commission is supported by substantial evidence and is neither unjust, arbitrary, unreasonable, unlawful, or discriminatory, then this court must affirm the Commission’s action.” Id. at 135.
Appellants’ first point concerns their contention that the Commission failed to regularly pursue its authority by engaging in single-issue ratemaking. Appellants state that, the algorithm is composed of numerous separate components or allocation factors, that all components are interdependent on each other, and that a change in one component may necessitate a change in another component. Unlike a traditional rate case in which the relevant ratemaking factors consist solely of various items associated with rate base, test-year revenues, test-year expenses, and rate of return, appellants argue that the relevant ratemaking factors in the instant case also include the various components of the algorithm as well as other non-algorithm components such as “IXC credits” that the Commission should have considered before reducing the CCL rate of return. Appellants conclude that, by considering the 12% rate-of-return component of the algorithm in isolation, the Commission engaged in single-issue ratemaking.
The Commission addressed appellants’ single-issue ratemak-ing argument in Order No. 37:
The Commission has the statutory authority and jurisdiction to create the AICCLP and to prescribe its rates. Historically, the annual revenue requirement of the AICCLP has been considered on a stand alone basis which has resulted in increases in access rates to recover increases in non-traffic sensitive (NTS) costs recovered through the AICCLP. As Staff points out in its Response, the Commission also allows “LECs to increase the traffic sensitive portion of their access rates through parity filings in Docket 86-160-U” and such “rate increases to the LECs were allowed on a stand alone basis, without regard to the revenue requirements of the respective LECs.” However, it is apparent from the LECs’ Petitions that their position is that “single issue ratemaking” becomes unlawful when it results in a decrease in rates. AT&T, MCI & LDDS point out that “the LECs’ unified theory of ratemaking, if carried to its logical extreme, results in the conclusion that the Arkansas Intrastate Carrier Common Line Pool, and the tariffs establishing CCL revenues and the monthly CCL rate to be charged by LECs, are themselves the product of “single issue ratemaking”. Consequendy, LECs must also conclude that the AICCLP and its monthly CCL rate are unlawful.”
The term single-issue ratemaking was first used by appellants in their petition for rehearing of Order No. 33. They stated that single-issue ratemaking occurs “when the Commission has failed to consider all relevant ratemaking factors in setting a utility’s rates.” No Arkansas statute or Arkansas case discusses single-issue ratemaking. Single-issue ratemaking is discussed in Citizens Utility Board v. Illinois Commerce Commission, 166 Ull.2d 111, 651 N.E.2d 1089 (1995); Business and Professional People for the Public Interest v. Illinois Commerce Commission, 146 Ill.2d 175, 585 N.E.2d 1032 (1991); State ex rel. Utility Consumers Council of Missouri, Inc. v. Public Service Commission of Missouri, 585 S.W.2d 41 (Mo. 1979); and Pennsylvania Indus. Energy Coalition v. Pennsylvania Pub. Util. Comm’n, 653 A.2d 1336, 1350 (Pa. Commw. Ct. 1995), aff'd, 670 A.2d 1152 (Pa. 1996). Our review of these cases, however, does not lead us to conclude that “prohibited single-issue ratemaking” occurred in this situation.
Unfortunately, the Commission’s orders that established the AICCLP and the CCL charges prior to SWBT’s filing of the AICCLP’s November 1994 tariff have not been included in the record despite the fact that appellants clearly recognized that these orders were necessary to this court’s understanding of the facts of this appeal. In this court’s letter order of February 21, 1996, we denied appellants’ motion to file a brief with these orders appended; however, we did so without prejudice to appellants’ fifing a motion to supplement the record. No such motion was ever filed. Therefore, this court is unable to determine whether the various components of the AICCLP have been determined in the past on a single-issue basis and we must defer to the Commission’s discretion in this regard.
Furthermore, we disagree with appellants’ allegation that the rate-of-return component of the algorithm was considered by the Commission in isolation. It was appellants’ burden to prove that their November 1994 tariffs were just and reasonable and in the public interest. They were allowed to file exhibits and testimony in this regard, and a public hearing was also held in which witnesses testified regarding their prefiled testimony and the parties were allowed to cross-examine the witnesses. Appellants have not directed this court to any of the Commission’s rulings showing that they were limited in any manner from producing evidence in support of the proposed tariffs, nor did they produce any evidence of the other relevant factors that they contend the Commission should have considered. It is apparent, however, that other factors were in issue as evidenced by MCI’s challenge to the inter/intra allocation factors used in the algorithm. Orders No. 32 and 33 also refute appellants’ contention that other components that impact appellants’ costs for CCL service such as Commission-ordered credits and universal service were not considered by the Commission. In sum, appellants have failed to show that the Commission engaged in single-issue ratemaking.
The appellants further argue that the Commission failed to pursue its authority regularly by not first determining whether the appellants were earning more than a reasonable rate of return before ordering a reduction in their CCL revenue requirements. The Commission adequately dealt with this argument in Order No. 37:
All twenty-three (23) LECs were provided notice of the suspension of the CCL tariff and the issue of the CCL revenue requirement which resulted in the suspension of the tariff on December 30, 1994. All the LECs were given an opportunity to be heard, but not a single LEC produced any evidence that a reduction of the AICCLP rate of return would result in that LEC’s failure to earn its allowed rate of return. Substantial evidence requires more than a generic assertion that one of the LECs might at some future time not earn its allowed rate of return.
The burden was on appellants at the hearing to justify the revised tariffs included in the AICCLP’s November 1994 filing and to show that without such rates they would be unable to earn their allowed rate of return. General Tel. Co. of the SW v. Arkansas Pub. Serv. Comm’n, 23 Ark. App. 73, 744 S.W.2d 392 (1988), aff'd, 295 Ark. 595, 751 S.W.2d 1 (1988). This in part stems from the fact that appellants had possession of all pertinent records. Accord City of El Dorado v. Arkansas Pub. Serv. Comm’n, 235 Ark. 812, 362 S.W.2d 680 (1962). The appellants have not cited us to any evidence that was before the Commission that demonstrates they will be unable to earn a reasonable rate of return as a result of the Commission’s decision to reduce the rate-of-return component of the CCL formula. The appellants’ conclusion that they have no reasonable prospect of achieving their allowed rate of return unless they are allowed to increase their rates by a corresponding amount for another service is supposition and not evidence. In fact, the testimony is disputed as to whether appellants will even suffer any revenue loss as a result of the rate-of-return reduction.
Ratemaking is a legislative, not a judicial, function, and every rate order may be superseded by another, not only when conditions change, but also when the administrative understanding of the same conditions changes. See Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 267 Ark. 550, 593 S.W.2d 434 (1980). This court has repeatedly held that the Public Service Commission has wide discretion in choosing its approach to rate regulation, and the appellate court does not advise the Commission concerning how to make its findings or exercise its discretion. Bryant v. Arkansas Pub. Serv. Comm’n, 50 Ark. App. 213, 907 S.W.2d 140 (1995). The appellate court is generally not concerned with the method used by the Commission in calculating rates as long as the Commission’s action is based on substantial evidence and the total effect of the rate order is not unjust, unreasonable, unlawful, or discriminatory. See Bryant v. Arkansas Pub. Serv. Comm’n, 57 Ark. App. 73, 941 S.W.2d 452 (1997). Here, substantial evidence existed to support the Commission’s reduction in the AICCLP’s rate of return, and appellants have not come forward with any evidence to show the reduction is unjust, unreasonable, unlawful, or discriminatory.
For their second point, appellants contend that the Commission denied appellants due process of law by refusing to implement a mechanism for concurrent rate relief. They contend that, because the Commission failed to evaluate the appellants’ needs for rate relief to recover the revenues lost as a result of the reduction of the rate of return, the Commission in effect took their property without due process of law and that nowhere is the Commission given taking authority. We do not address this argument because it was not made in appellants’ petition for rehearing. Arkansas Code Annotated § 23-2-423(c)(2) (Supp. 1995), states that an objection to an order of the Public Service Commission may not be considered by the Court of Appeals unless the objection has been urged before the Commission in the application for rehearing. See Bryant v. Arkansas Pub. Serv. Comm’n, 57 Ark. App. at 85. In regard to appellants’ argument that the Commission denied appellants due process by not evaluating appellants’ need for rate relief to recover lost revenues resulting from the reduction in the AICCLP’s rate of return, we note that appellants failed to produce any evidence before the Commission that they will lose revenue.
A full and fair hearing is a fundamental requirement of due process in the determination of the reasonableness of utility rates, and in order to meet due process requirements, a hearing must afford a utility the right to reasonably know the charges and the right to meet such charges by competent evidence. Arkansas Pub. Serv, Comm’n v. Continental Tel. Co. of Ark., 262 Ark. 821, 561 S.W.2d 645 (1978). The opportunity to submit evidence to rebut charges or adverse claims and testimony is an essential requirement of a full and fair hearing of the due process clause of the Constitution. Id. Here, the evidence supports the Commission’s finding that the appellants were advised of the issues before the Commission and were given the opportunity to present evidence to the Commission in support of all the components of the proposed tariffs, including the existing rate-of-return factor. The Commission correctly observed in Order No. 37 that “[t]he failure of a party to produce evidence on an issue is not a denial of due process.” Where the appellants are afforded every opportunity to participate in a proceeding below, the simple fact that the outcome is not as appellants would have wished is not tantamount to a denial of due process. See Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm’n, 35 Ark. App. 47, 813 S.W.2d 263 (1991).
Appellants for their third point argue that the Commission exceeded its jurisdiction as set forth by Ark. Code Ann. § 23-2-301 (1987) in treating the AICCLP as a stand-alone “utility busi ness” and by prescribing a service-specific rate of return for CCL service. That section provides “[t]he Commission is vested with the power and jurisdiction, and it is made its duty, to supervise and regulate every public utility defined in § 23-1-101. . . .” Appellants contend that, because the AICCLP has no separate legal status except for purposes of its administrative functions of filing tariffs and billing and collecting CCL revenues, it is not a public utility as defined in Section 23-1-101 and as such, it cannot lawfully have its rates prescribed by the Commission. Appellants acknowledge that the AICCLP algorithm requires the use of a target rate of return but contend that the Commission has never prescribed a separate rate of return for CCL service in a contested proceeding. They insist that the rate of return used in the AIC-CLP is simply an agreed-upon return by the parties, and the approval of these joint agreements by the Commission does not constitute a legal prescription of a service-specific rate of return for CCL service.
The Commission responded to this argument in Order No. 37:
The Commission has the statutory authority and jurisdiction to create the AICCLP and to prescribe its rates. Historically, the annual revenue requirement of the AICCLP has been considered on a stand alone basis which has resulted in increases in access rates to recover increases in non-traffic sensitive (NTS) costs recovered through the AICCLP. As Staff points out in its Response, the Commission also allows “LECs to increase the traffic sensitive portion of their access rates through parity filings in Docket 86-160-U” and such “rate increases to the LECs were allowed on a stand alone basis, without regard to the revenue requirements of the respective LECs.”
Section 23-2-301 authorizes the Commission to supervise and regulate every public utility defined in Section 23-1-101 and “to do all things, whether specifically designated in this act, that may be necessary or expedient in the exercise of such power and jurisdiction, or in the discharge of its duty.” See Bryant v. Arkansas Public Service Commission, 46 Ark. App. 88, 94-95, 877 S.W.2d 594 (1994). The Commission was created to act for the General Assembly, and it has the same powers that that body would have when acting within the powers conferred upon it by legislative act. Id. at 95.
The AICCLP has acted as a stand-alone unit in recouping the appellants’ CCL costs since 1986. In relation to their CCL revenue requirements, the appellants do not act independently but through the AICCLP’s filing of annual proposed rates, which is the subject matter of this docket. This court does not have for its review the prior Commission orders concerning the “agreed-upon” 12% rate of return. Assuming, however, that this rate did result from the parties’ agreement, it does not change the fact that rates are still required to be approved by Commission order. See Ark. Code Ann. § 23-2-304 (Supp. 1995). Moreover, this court has previously held that the Commission’s statutory authority is clearly broad enough to allow the Commission to consider stipulations entered into by some of the parties to a proceeding in approaching rate regulation. See Bryant v. Arkansas Public Service Commission, 46 Ark. App. at 98 (emphasis in original). The Commission must, however, make an independent finding supported by substantial evidence that the stipulation resolved the issues in dispute in a way which was fair, just, and reasonable, and in the public interest. Id.
Appellants’ point number four is analogous to their argument of Point One. They contend that the Commission acted arbitrarily and capriciously and abused its discretion by fading to adequately address the implications of Order No. 33 on universal service and by failing to enumerate and identify explicit support mechanisms. We disagree. The ALJ discussed universal service in Order No. 32, which was adopted by the Commission in Order No. 33:
The Commission continues to support the objective of universal service. However, universal service goals can be maintained through explicit support mechanisms instead of nonspecific pooling support mechanisms. It does not have to be supported by inflated intrastate toll rates which are not beneficial to the public in a rural state where toll calls are an essential means of daily communications for many residents. Furthermore, reducing CCL charges furthers the Commission’s goal of reducing the disparity between interstate toll rates and intrastate toll rates.
To set aside the Commission’s action as arbitrary and capricious, the appellant must prove the action was a willful and unreasoning action made without consideration and with a disregard of the facts and circumstances of the case. Bryant v. Arkansas Pub. Serv. Comm’n, 54 Ark. App. 157, 924 S.W.2d 472 (1996). Administrative action may be regarded as arbitrary and capricious only where it is not supportable on any rational basis and something more than mere error is necessary to meet the test. Id. The ALJ recognized the objectives of the universal fund, but she also recognized the rapid changes in the telecommunications industry. The General Assembly also recognized these changes when it passed Act 238 of 1993, codified at Ark. Code Ann. § 23-2-304(b). The emergency clause to that act states:
It is hereby found and determined by the General Assembly that because of competitive and technological changes relating to telecommunications services, it is essential that the Arkansas Public Service Commission be authorized to deviate from the rate/base rate of return method of regulation in establishing rates and charges for such services; that it is in the best interest of the public that this authority be granted at the earliest possible date to enable the commission to more equitably establish a system of rates and charges for telecommunications services and that this act is designed to grant such authority and should be given effect immediately.
For their final point, appellants argue that the Commission’s failure to consider the IXCs’ credits in setting the 9.2% rate of return was arbitrary and capricious. Appellants claim that these credits reduce the total AICCLP revenue requirement allocated to the IXCs by $5.2 million annually, thereby reducing the effective rate of return paid by the IXCs from 12% to 6.45%. The appellants argue that using a 9.2% rate of return without making any adjustment to these credits will produce an earned rate of return significantly below SWBT’s current 6.45% rate of return and violates the prohibition against confiscatory ratemaking.
We are hampered in discussing these credits because none of the Commission’s orders granting the IXCs such credits are included in the record. It is apparent from the testimony, however, that the IXCs’ credits appellants discuss were issued in other dockets and used as offsets against the IXCs’ AICCLP payments. Both AT&T witness Arthur Lerma and SWB witness Paul Waits testified that the IXC credits are not part of the algorithm used to develop the AICCLP revenue requirement. Waits testified:
The majority of them came out of a docket where the Commission wanted to reduce intraLATA toll rates. It might have been from a Southwestern Bell case. I can’t recall for sure. But when we settled it, the interexchange carriers intervened and said we want some access charge reductions as part of this deal.
Lerma testified that a “good number” of the IXC credits were the result of overearnings investigations, that the remainder are a combination of credits from SWB and other ordered credits related to changes in the toll pool, and that the credits are separate from the AICCLP revenue requirement. The ALJ discussed these credits in Order No. 32:
The LECs raised two points regarding any reduction in the AICCLP rate of return. First, the LECs allege that credits flowed through the AICCLP should be reduced or eliminated if the rate of return is reduced. The credits addressed by the LECs are the result of findings by the Commission in a number of other dockets. Some credits are the result of company specific earnings reviews and other credits are the product of generic toll reductions. Other than a desire not to have the AICCLP revenue requirement reduced, the LECs have presented no evidence that any orders establishing the credits should be modified or overturned. Nor have the LECs presented any evidence that these credits which were the result of findings and orders in other dockets are within the scope of this proceeding and subject to consideration herein.
The Commission adopted Order No. 32 and concluded that it was not appropriate to consider these credits in setting the 9.2% rate of return. From the limited information we have before us concerning these credits, we cannot conclude that the Commission acted arbitrarily and capriciously.
In Order No. 32, the ALJ reviewed the testimony that supported the reduction in the rate-of-return component, and it would unduly lengthen this opinion to repeat the testimony here. Suffice it to say that substantial evidence existed in the record to support the Commission’s finding that the 12% rate of return should be reduced to 9.2%. The orders of the Commission are therefore affirmed.
Affirmed.
Jennings, Stroud, Crabtree, Meads, and Roaf, JJ., agree.
Orders No. 27 and 31 of this docket held that the burden of proof was on appellants to show that the proposed November 1994 tariffs were just and reasonable. Appellants have not appealed these orders. | [
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Judith Rogers, Judge.
The appellants, Robert Lawrence Lee, Lyman John Endsley II, Garth Wellshear, and Roger Kluska, appeal from an order of summary judgment in favor of their former employer, appellee Hot Springs Village Golf Schools. Appellants raise two issues for reversal. First, they contend that the trial court erred in granting appellee’s motion for summary judgment, and secondly they argue that the trial court erred in ruling that they lacked standing to assert, as an affirmative defense, appellee’s breach of the covenant of good faith and fair dealing. We agree that appellee’s motion for summary judgment was granted improvidently, and we reverse.
Appellants were hired by appellee as instructors at a golf school pursuant to separate written contracts dated January 1, 1993. According to the agreements, appellants were to be compensated based on commissions generated by the operation of the school, and they were advanced certain sums on a monthly basis as a draw against future commissions. The school ceased operations in December of 1994. Appellee thereafter brought this suit against appellants to collect the “excess draws,” or the portion of those monthly sums advanced to appellants but which had not been offset by commissions earned by them when their contracts were terminated. Appellee filed a motion for summary judgment contending that it was entitled to a refund of these monies as a matter of law. In making this argument, appellee relied on the following provision contained in each of the employment agreements:
3.1 As full compensation for all services to be rendered pursuant to this Agreement, the Partnership agrees to pay the Employee, during the Term, compensation based upon fees generated by the Partnership’s operation of the School, based upon the fee schedule as set out herein.
The trial court accepted appellee’s reasoning and ruled that, because appellants were paid by commission, the contract clearly and unambiguously required the return of the sums advanced in excess of commissions earned, and it granted judgment against appellants Lee, Endsley, Wellshear, and Kluska in the respective amounts, including prejudgment interest, of $34,891.36, $34,227.84, $24,581.89, and $20,371.47. This appeal followed, wherein appellants argue as their primary issue that the trial court erred in granting appellee’s motion for summary judgment.
Summary judgment should be granted only when a review of the pleadings, depositions, and other filings reveals that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Johnson v. Harrywell, Inc., 47 Ark. App. 61, 885 S.W.2d 25 (1994). All proof submitted must be considered in the light most favorable to the non-moving party, and any doubts or inferences must be resolved against the moving party. Wozniak v. Colonial Insurance. Co., 46 Ark. App. 331, 885 S.W.2d 902 (1994). Summary judgment is not proper where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. Kimble v. Pulaski County Special School District, 53 Ark. App. 234, 921 S.W.2d 611 (1996).
We agree with the appellants that the contract is not so clear and free of ambiguity that the trial court could declare as a matter of law that appellants were bound to return the monies advanced simply because they were paid on a commission basis. As argued by appellants below, the contract is conspicuously silent on this question in that it contains no provision for the refund of advance payments in the event that the golf school closed or their employment was otherwise terminated. By its silence, the contract is susceptible of differing interpretations, and is thus ambiguous. Triska v. Savage, 219 Ark. 80, 239 S.W.2d 1018 (1951). And, if there is ambiguity in the contract, a question of fact remains as to the parties’ intent. Albright v. Southern Farm Bureau Life Ins. Co., 327 Ark. 715, 940 S.W.2d 488 (1997). Therefore, the trial court erred in granting appellee’s motion for summary judgment. In so holding, we have also applied the well-known rule of contract construction that, if there is any ambiguity in the contract, it must be construed most strongly against the party who prepared it, which in this case is the appellee. Prepkat Concrete Co. v. Whitehurst Bros., 261 Ark. 815, 552 S.W.2d 212 (1977). Thus any inference to be made from the contract’s silence should have been resolved in appellants’ favor.
In their brief, appellants also refer us to a body of law from other jurisdictions, to which we add our own citation, Carter Construction Co., Inc. v. Sims, 253 Ark. 868, 491 S.W.2d 50 (1973), and suggest that they are entitled to prevail as a matter of law because of the contract’s silence on the issue of recoupment. While our review of the record reflects that appellants resisted appellee’s motion for summary judgment on the ground that the contract was ambiguous, we are in agreement with appellee that appellants did not make this precise argument below. Since appellants did not present their own motion for summary judgment, we do not address this contention. We will not consider arguments on appeal that were not fully developed at the trial level. Bradford v. Bradford, 52 Ark. App. 81, 915 S.W.2d 723 (1996). We only hold that the trial court erred in concluding that the contract was clear and unambiguous and that appellee was entitled to judgment as a matter of law.
We cannot accept appellants’ second argument, however. In response to appellee’s motion for summary judgment, appellants alleged that there remained a dispute as to material fact concerning their defense that appellee had breached the covenant of good faith and fair dealing. Citing Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683 (1991), appellants maintained that every contract of employment contains this implied covenant, and in support of this claim or defense, appellants urged that appellee had lured them away from other work, that appellee had promised to vigorously promote and advertise the golf school to make it a success, and that appellee had promised to keep the school open unless it showed a loss of $200,000. They alleged that appellee had not vigorously supported the school and that it had manipulated the books to create a $200,000 loss so as to justify the closure of the school. Appellants argued that appellee’s breach of the covenant should excuse their performance of the contract.
The trial court ruled that this was a claim being asserted in another lawsuit by a corporation of which appellants were stockholders and that appellants, as shareholders, lacked standing to assert the claim of the corporation as a defense in this action. In their argument on appeal, appellants concede that the trial court’s ruling was correct, but claim error because the court failed to address their status as employees under an employment agreement. The short answer to appellants’ argument is that the trial court did address appellants’ claim with respect to their status as employees. In addition to the issue of standing, the court recognized from the cited authority of Smith v. American Greetings Corp., id., that the covenant of good faith and fair dealing prohibits an employee’s discharge for reasons that contravene public policy. The court then ruled that the allegations made by appellants did not support such a claim. Appellants have not contested this aspect of the trial court’s ruling and make no argument that the termination of their employment violated public policy. We can thus find no error in the trial court’s decision.
November 5, 1997
Reversed and remanded.
Neal and Griffen, JJ., agree. | [
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Per Curiam.
On June 25, 1997, we delivered an opinion reversing the conviction of appellant Michael Glen Branch and remanding the case to the trial court. Mr. J. F. Atkinson, Jr., has filed his motion for an award of an attorney’s fee as appointed counsel in this appeal. We note that an earlier motion was filed by Mr. R. Paul Hughes, III, in which an attorney’s fee was also sought as appointed counsel. It was not made apparent in either motion that appellant was represented by two attorneys in this appeal. We previously awarded a fee of $850 to Mr. Hughes. We now award an additional fee of $500 to Mr. Atkinson. The lesser award does not reflect an opinion that Mr. Hughes should receive a greater fee than Mr. Atkinson, but rather that the court was not aware that another motion for a fee would be filed when it granted the earlier award.
So that this situation does not reoccur in the future, we direct that in cases where co-counsel have been appointed for an indigent defendant, such co-counsel must submit their applications for fees jointly or at the same time. | [
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Terry Crabtree, Judge.
Appellants brought suit in chancery court seeking to enforce an alleged oral contract from 1974 between appellants’ mother, Sarah Abraham Klerekoper, and their aunt, Frances Abraham. The substance of the alleged oral contract was that appellants’ mother gave her share of appellants’ grandfather’s estate to appellants’ aunt, Frances Abraham, with the understanding that Frances would leave her estate to Sarah Abraham Klerekoper’s children, the appellants herein.
In a separate proceeding, appellants also challenged the will of their aunt that left equal shares of her estate to all of her nieces and nephews (appellants’ cousins and appellees herein), alleging the will was not executed properly, the testator lacked capacity, and was subject to undue influence.
A will that left equal shares to each of her nieces and nephews was probated at Frances’s death in 1994 and did not uphold the alleged oral agreement between Sarah and Frances to leave proportionately more of her estate to appellants. After extensive depositions, submissions of documentary evidence, and argument of counsel, the chancellor ruled for the defendants/appellees on their motion for summary judgment in both cases. The chancellor’s ruling on the chancery case was based on the following, as abstracted in appellants’ brief;
In order to prevail at trial [on the chancery case], Plaintiffs would have to produce evidence [of an oral contract] that is clear, cogent and convincing. [Pickens v. Black, 318 Ark. 474, 481 (1994).]
There are several flaws in Plaintiffs’ case at this point. First, a written statement was signed by Sarah Klerekoper which says that she was transferring her interest in her father’s estate to her sister, Frances Abraham, “to pay my debt to you.” Plaintiffs argue that Sarah never owed Frances any money (according to her husband’s affidavit) and that Frances needed funds to acquire the interest in the John Abraham estate from her brothers. Plaintiffs contend that in return for this transfer from Sarah, Frances promised to leave her property to Sarah’s children. However, the written statement signed by Sarah at the time made no mention of an agreement of the type alleged. The agreement stated that the consideration for the transfer was in payment of a debt by Sarah to Frances. Further, there is another writing by Sarah Klerekoper discharging Frances Abraham for all actions, claims and demands that now or may hereafter accrue. Both documents were executed in 1973 and 1974, around the time of the alleged oral agreement. Both are exactly contrary to the assertions of Plaintiffs. These are the only two written documents found relative to what happened at that time between the two sisters.
Secondly, the only two people who know what transpired between them were the two long deceased sisters. What has been stated in depositions and affidavits about the alleged agreement between them is predicated almost entirely on inadmissible hearsay. Even if admissible, the statements of Sarah would not be sufficient, standing alone, to establish by “clear, cogent and convincing” evidence “substantially beyond a reasonable doubt” that such an agreement between the two sisters existed.
What is missing is any reliable proof, not grounded in hearsay, to establish an enforceable contract that is the subject of this equity suit.
The chancellor incorporated by reference his memorandum disposing of the chancery case into his memorandum granting summary judgment on the probate case. In part, his reasoning follows, as abstracted:
No evidence was offered at that hearing nor by way of depositions or affidavits that would suffice even to establish a prima facie case for the invalidity of the Will filed herein. As stated in the separate Chancery opinion, attached hereto, much of what was presented was predicated upon hearsay. The Plaintiffs’ case seems largely to have depended on their ability to establish an enforceable oral contract between these two deceased sisters, which they failed to do in the Chancery case.
For purposes of appeal, the chancery and probate cases were consolidated. From the chancellor’s two memorandum opinions, appellants challenge the grant of summary judgment and dispute that affidavits were properly excluded from consideration as hearsay not within an exception.
1. Summary Judgment
Summary-judgment disposition is governed by Arkansas Rule of Civil Procedure 56, and a thoroughly developed body of accompanying case law. In pertinent part, Rule 56 reads:
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 party is entitled to a judgment as a matter of law.
Ark. R. Civ. P. 56(c). Here, the summary-judgment evaluation was aided by a multitude of affidavits and documentary evidence from both sides.
Although affidavits and documents in support of motions for summary judgment are construed against the moving party, once a prima facie showing of entitlement to summary judgment is made, the responding party must discard the shielding cloak of formal allegations and meet proof with proof by showing a genuine issue as to a material fact. J.M. Prod. v. Arkansas Capital Corp., 51 Ark. App. 85, 90, 910 S.W.2d 702, 704 (1995) (citing Mathews v. Garner, 25 Ark. App. 27, 751 S.W.2d 359 (1988)).
A. Chancery Case — Oral Contract to Make a Will
In McDonald v. Petty, 254 Ark. 705, 496 S.W.2d 365 (1973), the supreme court stated that an oral contract to make a will to devise or to make a deed to convey real estate is valid when the testimony and evidence to establish such a contract is clear, cogent, satisfactory, and convincing. Further, the evidence must be so strong as to be substantially beyond reasonable doubt. Id. See also Pickens v. Black, 318 Ark. 474, 481, 885 S.W.2d 872, 876 (1994). Post-1981 contracts to make a will are governed by Ark. Code Ann. § 28-24-101 (1987), requiring such contracts to be proven by a writing or express reference. However, the purported agreement in the present case is pre-1981 and, therefore, not controlled by the statute.
However, appellees fail to show where this heightened burden of proof has ever been applied at the summary-judgment level. Cf. Pickens, supra, (court affirmed grant of partial summary judgment on a different issue). Even if the facts will require a heightened standard of proof at trial, this does not change the controlling law that trial courts must use when evaluating summary-judgment motions. Requiring “clear, cogent and convincing” evidence at the summary-judgment level amounts to an impermissible weighing of the evidence. Accordingly, it was error for the chancellor to award summary judgment based on the heightened standard of proof required of oral contracts under Pickens, supra.
B. Standard of Review — Probate Case
The proper analysis for considering the summary-judgment disposition of the probate case is also based on Ark. R. Civ. P. 56, discussed above. While appellants’ claims against the will may appear weak and not very well developed, that is a weighing of the evidence, which is inappropriate when the chancellor should merely view the pleadings and affidavits to ascertain whether issues exist to be litigated.
The facts in the probate case still leave some gaps that could fairly be characterized as fact questions. For instance, sworn testimony from Frances’s physician stated that her mental prowess began to diminish in 1987, the same year that the contested will was executed. While other testimony contradicts this, it is not the role of summary judgment to weigh and resolve conflicting testimony, but to simply decide whether such questions exist to be resolved at trial. Further, while Fairfax Abraham, Jr., did not take a disproportionate share under the challenged 1987 will, that is only one factor to consider in whether he exercised undue influence by taking Frances to his own attorney, taken together with Fairfax’s developing confidential relationship with his ailing aunt. Again, these facts may stack up weakly against the contradicting testimony, but the summary-judgment analysis does not evaluate evidence beyond the question of whether a dispute exists.
Further, it was improper for the chancellor to exclude evidence that he suspected was inadmissible hearsay, without ruling on its admissibility in light of the present-intent exception to the hearsay rule. Ark. R. Evid. 803(c).
2. Admissible Evidence
The Arkansas Supreme Court has recognized that Rifle 56(e) requires affiants to support their summary-judgment testimony not with mere conclusions, but with admissible testimony. A line of cases show the court excluding hearsay statements from the summary-judgment analysis since such statements would be inadmissible at trial and violate the rule’s own call for “such facts as would be admissible in evidence.” Ark. R. Civ. P. 56(e).
ARCP Rule 56(e) requires that “ [supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” This court has stated that affidavits which are conclusory rather than factual are insufficient. See McDonald v. Eubanks, 292 Ark. 533, 731 S.W.2d 769 (1987). Mrs. Swindle’s affidavit merely declares that she was told Wright was the owner of the real estate company by its agents. Her affidavit does nothing more than assert a conclusion that is based on hearsay. Nothing in the affidavit indicates Mrs. Swindle had personal knowledge that Wright was the owner of Wright Realty. Mrs. Swindle’s affidavit does not meet the requirements of Rule 56(e), and therefore does not create a dispute as to the fact of ownership of Wright Realty.
Swindle v. Lumbermans Mut. Casualty Co., 315 Ark. 415, 421-22, 869 S.W.2d 681, 684 (1993).
In the present case, the chancellor apparently refused to give any weight to the appellants’ affidavits and excluded them as inadmissible under Ark. R. Evid. 803. Appellants cite the hearsay exception involving intent to make a will pursuant to Ark. R. Evid. 803(3), and cite three cases purporting to apply that exception. Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979); Williams v. Robinson, 251 Ark. 1002, 476 S.W.2d 1 (1972); and Easterling v. Weedman, 54 Ark. App. 22, 922 S.W.2d 755 (1996).
Without an adversarial hearing on the issue, it is impossible to determine if the affidavits in question may be admissible, and may further the appellants’ defense against the summary-judgment ruling on the probate case. The chancellor’s sweeping summation that “some of the evidence is inadmissible hearsay” is not adequate to support his conclusion.
Accordingly, the granting of summary judgment on both claims is reversed and remanded.
Reversed and remanded.
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John F. Stroud, Jr., Judge.
This is an employment security case in which appellant, Sondra Clark, was denied unemployment benefits because she was discharged for misconduct in connection with her work. The Appeals Tribunal denied appellant benefits for a period of eight weeks. The Board of Review denied benefits for a period of ten weeks, finding that the misconduct involved dishonesty. We affirm the Board of Review.
Appellant had been employed by appellee, Northwest Arkansas Radiation Therapy Institute, for more than nine years when she was discharged in February 1995. Her duties as a senior staff radiation therapist and clinical supervisor included taking and logging daily equipment readings on six machines. The readings numbered between 150 to 200 each day.
One of the machines monitored by appellant was used to deliver high energy radiation in the treatment of cancer patients. Appellant took twenty-one readings each day on this machine, including one with respect to the machine’s water pressure. It was important that the readings not vary from day to day because any deviation from the normal operation of the equipment could affect the delivery of the radiation treatment, conceivably altering the treatment outcome. Appellant had performed this task since October 1985.
On January 11, 1995, the water-pressure gauge on this machine was replaced by an engineer employed by NARTI. Prior to replacement, the old gauge had consistently read 60 p.s.i. The engineer performed a preventive maintenance inspection on the machine between January 23, 1995, and February 4, 1995. The inspection included a review of the logbook. In making the inspection, he noticed a discrepancy between the actual reading on the newly installed water-pressure gauge and the readings that were recorded in the log book. The new gauge measured 75-76 p.s.i., rather than the 60 p.s.i. that registered on the old gauge. However, appellant continued to record the readings at 60 p.s.i. She was terminated on February 14, 1995, for “falsifying records,” an offense calling for immediate termination under NARTI’s progressive discipline policy.
Appellant filed a claim for unemployment benefits. The Appeals Tribunal denied her benefits for a period of eight weeks, and the Board of Review denied her benefits for a period of ten weeks, finding that her misconduct involved dishonesty. On appeal to this court, appellant argues that the Board of Review’s finding that she engaged in misconduct by intentionally falsifying company records was not supported by substantial evidence. We disagree.
On appeal, the Board of Review’s findings of fact are conclusive if they are supported by substantial evidence. Rucker v. Director, 52 Ark. App. 126, 915 S.W.2d 315 (1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Id. Our review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.
Arkansas Code Annotated section 11-10-514 (Repl. 1996) provides in pertinent part:
(a)(1) If so found by the Director of the Arkansas Employment Security Department, an individual shall be disqualified for benefits if he is discharged from his last work for misconduct in connection with the work.
(3) Except as otherwise provided in this section, disqualification for misconduct shall be for eight (8) weeks of unemployment as defined in § 11-10-512.
(b) If he is discharged from his last work for misconduct in connection with the work on account of dishonesty, ... or willful violation of the rules or customs of the employer pertaining to the safety of fellow employees or company property, he shall be disqualified from the date of fifing his claim until he shall have ten (10) weeks of employment in each of which he shall have earned wages equal to at least his weekly benefit amount.
As we pointed out in Perry v. Gaddy, 48 Ark. App. 128, 891 S.W.2d 73 (1995):
Mere inefficiency, unsatisfactory conduct, failure of good performance as a result of inability or incapacity, inadvertence, and ordinary negligence or good-faith errors in judgment or discretion are not considered misconduct for unemployment insurance purposes unless they are of such degree or recurrence as to manifest culpability, wrongful intent, evil design, or an intentional or substantial disregard of an employer’s interests or of an employee’s duties and obligations.
(Emphasis added.)
Here, the Board of Review could reasonably reach the decision it did based upon the evidence that was before it. There was substantial evidence to support the Board’s finding that appellant was discharged for misconduct connected with the work on account of dishonesty. After the gauge was replaced and the new gauge consistently registered 75-76 p.s.i., appellant continued to chart the gauge readings at 60 p.s.i. Once the problem was brought to the employer’s attention, the gauges and logs were monitored on a daily basis and compared to appellant’s readings. The discrepancies between the actual readings and appellant’s log entries constituted substantial evidence that appellant’s actions surpassed those of mere misreadings to those of not reading the gauges at all and logging false numbers. Such misconduct demon strates an intentional or substantial disregard of an employer’s interests or of an employee’s duties and obligations.
Affirmed.
Pittman, Arey, Bird, and Meads, JJ., agree.
Neal, J., dissents. | [
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John F. Stroud, Jr., Judge.
Donald King has appealed from an order of the Carroll County Chancery Court granting judgment to appellee, Office of Child Support Enforcement, in the amount of $28,240.67 for child-support arrearages owed to Candida Paschall that had accrued since August 2, 1979. We hold that the chancellor should have applied Arkansas’s statute of limitations and remand this case for a determination of the amount of arrearages owed by appellant.
Appellant and Ms. Paschall were divorced in Nevada on August 2, 1979, and appellant was ordered to pay $150.00 per month in child support. On May 18, 1995, appellee filed a motion in Carroll County, Arkansas, alleging that appellant had failed to comply with the Nevada order and requesting judgment for arrearages through March 31, 1995, in the amount of $27,600.00. The Nevada order was registered with the Arkansas court, and a hearing was held to determine the amount of arrear-ages owed by appellant.
At the hearing, the chancellor raised the issue of the statute of limitations. Appellee’s counsel responded that the Nevada statute of limitations should apply, but he did not know the precise date at which it would terminate appellee’s right to obtain arrear- ages. Appellant’s attorney argued that the Arkansas statute of limitations should apply. Appellee’s counsel then asserted that appellant could not raise this defense because he had failed to do so in his pleadings. At that point, appellant moved to amend his pleadings to conform to the proof. Although the chancellor did not specifically rule on appellant’s motion, he continued to discuss the statute of limitations issue with counsel for both parties. At the conclusion of the hearing, the chancellor directed counsel to provide him with the Nevada statute of limitations. On July 19, 1996, the chancellor entered judgment against appellant in the amount of $28,240.67 for arrearages that had accrued since August 2, 1979. In the judgment, the chancellor did not mention the statute of limitations and did not apply either the Arkansas or the Nevada statute.
In his brief, appellant argues that the chancellor erred in awarding judgment for arrearages dating back to the original divorce decree. In response, appellee contends that, because appellant did not raise the affirmative defense of statute of limitations as a defense in his pleadings, he cannot now argue that issue on appeal. It is true that the statute of limitations is an affirmative defense that must be specifically pled. Ark. R. Civ. P. 8(c), Smallwood v. Ellis Gin Co., 10 Ark. App. 41, 661 S.W.2d 410 (1983). Although appellant did not raise this issue in his pleadings, he did move to amend the pleadings to include this defense after the chancellor had raised this issue and discussed it at length with counsel for both parties. In fact, the hearing concluded with the chancellor directing counsel to supply him with applicable Nevada law, which he would not have needed if he had not considered the pleadings to be amended to include the statute of limitations defense. That he considered the pleadings to be amended is clear to us from his actions, if not his words.
Arkansas Rule of Civil Procedure 15(b) provides:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended in its discretion. The court may grant a continuance to enable the objecting party to meet such evidence.
The trial court is vested with broad discretion in allowing or denying amendments to pleadings. Cawood v. Smith, 310 Ark. 619, 839 S.W.2d 208 (1992). Given the extensive discussion of this defense at the hearing and the chancellor’s delay in making a decision until the parties supplied him with the Nevada statute of limitations, we cannot say that he abused his discretion in considering the issue. However, we conclude that once the chancellor considered this issue, he erred in not applying the Arkansas statute of limitations.
Arkansas Code Annotated § 9-17-604(b) (Repl. 1993), which is part of the Uniform Interstate Family Support Act, provides: “In a proceeding for arrearages, the statute of limitation under the laws of this state or of the issuing state, whichever is longer, applies.” See Durham v. Arkansas Dep’t of Human Servs., 322 Ark. 789, 912 S.W.2d 412 (1995). Our current statute, Ark. Code Ann. § 9-14-236 (Supp. 1995) (Act 870 of 1991), provides that the statute of limitations for child support now commences with an initial order of support and extends until a child reaches the age of twenty-three. However, in Branch v. Carter, 326 Ark. 748, 933 S.W.2d 806 (1996), the supreme court affirmed our decision in Branch v. Carter, 54 Ark. App. 70, 923 S.W.2d 874 (1996), and held that Act 870 of 1991 cannot be retroactively applied beyond March 29, 1986. Therefore, any cause of action for child-support arrearages accruing prior to March 29, 1986, is barred.
Citing McKellar v. McKellar, 110 Nev. 200, 871 P.2d 296 (1994), appellant and appellee state that the law of Nevada would bar the recovery of any arrearages which accrued more than six years prior to May 18, 1995 (when appellee’s motion for citation was filed). Both parties argue that, under Nevada law, all child-support arrearages accruing prior to May 18, 1989, would be barred and, under Arkansas law, all child-support arrearages accruing prior to March 29, 1986, would be barred in this case. Although appellant urged the chancellor to apply the Arkansas statute of limitations at the hearing, he now argues that the chancellor should have applied the Nevada statute of limitations to bar all arrearages accruing prior to May 18, 1989. We cannot agree. It is clear, for the purpose of this case, that the Arkansas limitations period is longer than that of Nevada and should have been applied.
In its brief, appellee urges this court, if it chooses to apply the Arkansas statute of limitations, to modify the judgment against appellant to $16,240.67. It is true that we consider chancery appeals de novo, and where the record is sufficiently developed, we may enter the order which the chancellor should have entered. See Cochran v. Cochran, 309 Ark. 604, 832 S.W.2d 252 (1992). However, we find the interests of justice would be better served in this case by remanding this issue to the chancellor in order that he can compute the arrearages after applying the Arkansas statute of limitations.
Reversed and remanded.
Robbins, C.J., and Bird, J., agree. | [
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Judith Rogers, Judge.
This is an appeal from the dismissal of appellant’s motion for contempt based on a finding that her claim was barred by the statute of limitations. For reversal, appellant contends that the trial court erred in applying the five-year statute of limitations applicable to written contracts to a provision in a property settlement agreement that was incorporated into a decree of divorce. Failing that, she contends that the five-year statute of limitations had not expired. We affirm.
The marriage of appellant, Judith Meadors, and appellee, Thomas Meadors, ended in divorce by a decree entered on August 4, 1989. The decree incorporated a property settlement agreement, dated August 2, 1989, which contained a provision stating that “[appellee] shall pay to the [appellant] the sum of $10,000 cash.” On December 6, 1995, appellant filed a motion for contempt alleging that appellee had failed to pay her this sum of money. Appellee countered with a motion to dismiss, arguing that the provision in the agreement was subject to the five-year statute of limitations applicable to written contracts under Ark. Code Ann. § 16-56-111 (Supp. 1995). The chancellor held that the agreement was an independent contract that was governed by the five-year limitations period. By order dated June 24, 1996, the chancellor dismissed appellant’s motion, thus giving rise to this appeal.
In our law, two types of property settlement agreements are recognized. Seaton v. Seaton, 221 Ark. 778, 225 S.W.2d 954 (1953); McGaugh v. McGaugh, 19 Ark. App. 348, 721 S.W.2d 677 (1986). A distinction is made between independent contracts, which do not merge into the decree and are thus not subject to modification by a trial court, and those less formal agreements which do merge and become part of a decree of divorce. See Shipley v. Shipley, 305 Ark. 257, 807 S.W.2d 915 (1991); Seaton v. Seaton, supra; Kennedy v. Kennedy, 53 Ark. App. 22, 918 S.W.2d 197 (1996); Dodson v. Dodson, 37 Ark. App. 86, 825 S.W.2d 608 (1992); Linehan v. Linehan, 8 Ark. App. 177, 649 S.W.2d 837 (1983). In this appeal, appellant does not strenuously contest the chancellor’s finding that the agreement in question was an independent contract. Indeed, the agreement contains language strikingly similar to that used in the agreement at issue in Armstrong v. Armstrong, 248 Ark. 835, 454 S.W.2d 660 (1970), where it was held that the agreement constituted a separate, independent contract that did not merge into the decree.
It is appellant’s argument, however, that the agreement was nonetheless incorporated into the decree of divorce and was subject to enforcement by the court, and thus should be considered a judgment. Appellant maintains that, as a judgment, the provision was subject to the ten-year statute of limitations found in Ark. Code Ann. § 16-56-114 (1987). We reject appellant’s argument.
Arkansas Code Annotated § 16-56-114 provides that:
Actions on all judgments and decrees shall be commenced within ten (10) years after the cause of action shall accrue and not afterward.
In Thomas v. McElroy, 243 Ark. 465, 420 S.W.2d 530 (1967), the court discussed the formal requirements of a judgment. The court said that a judgment should state the amount that the defendant is required to pay and the date from which interest is to be computed. Although the court held that a judgment is to be tested by its substance and not form, it stated that a judgment must clearly specify the relief granted and must clearly show that it is the act of the law, pronounced and declared by the court upon determination and inquiry. It must be such a final determination as may be enforced by execution or other appropriate manner.
When we apply these principles to the case at bar, we do not believe that the court, by its decree, rendered judgment for the amount specified in the property settlement agreement. While the provision imposed an obligation upon appellee to pay a sum certain, there is no indication that the court rendered judgment for that amount. That relief was not clearly stated in the decree, as it contains no language denoting the rendition of judgment. As such, we do not think that the provision was capable of enforcement by execution without it being reduced to judgment. It must be remembered that the agreement was an independent contract, and while it was incorporated into the decree, it did not, under settled law, merge into the decree. We hold that the provision was subject to the five-year statute of limitations.
Appellant further argues that, because the agreement did not specify when the payment was due, the statute of limitations did not begin to run until she became aware that appellee had repudiated the agreement. She contends that appellee repudiated the agreement in September of 1995 and that it was at that time that her cause of action accrued. We do not reach this issue because the chancellor was not apprised of it, and we do not consider issues raised for the first time on appeal. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993).
Affirmed.
Robbins, C.J., and Jennings, J., agree.
In Davenport v. Pack, 35 Ark. App. 40, 812 S.W.2d 487 (1991), we applied the five-year statute of limitations to a property setdement agreement. We did not, however, address the issue raised in this appeal, as the parties in that case did not question the applicability of that limitations period. | [
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Terry Crabtree, Judge.
Appellant Kenneth Blankenship argues that the trial court erred by exercising personal jurisdiction over him for a paternity complaint when the mother testified that the conception occurred outside of Arkansas. Further, appellant argues that the trial court erred in refusing his motion to dismiss — based on a dismissal of an earlier complaint for lack of the statutorily required evidence — on the theory of res judicata.
Appellant has defended three separate actions regarding this paternity suit.
The first paternity action was brought by the Office of Child Support Enforcement on behalf of the maternal grandmother, who had custody of the child at the time. That action was dismissed due to the State’s failure to put on corroborating testimo nial evidence from the mother to support the DNA evidence of paternity. Ark. Code Ann. § 9-10-108(a)(l)(4)(Repl. 1993).
The State refiled the same paternity complaint a second time, but in the name of the mother instead of the maternal grandmother. The second trial, before a different chancellor, resulted in dismissal when the mother testified, contrary to the allegations in the complaint for paternity, that she and appellant lived in Louisiana, not Arkansas, at the time of conception. Based on this admission, appellant objected to lack of personal jurisdiction, and the trial court granted a dismissal.
The State asked the trial judge to reconsider, arguing that appellant’s appearance and failure to raise the personal jurisdiction defense by motion or special appearance constituted a waiver of the defense. The trial court agreed, reinstated the action, and commenced a third trial. At the third trial, the court denied appellant’s motion to dismiss based on collateral estoppel and res judicata, viewed the DNA testing, heard corroborating testimony from the mother, entered a finding of paternity, and ordered support payments to a trust pending this appeal.
Personal Jurisdiction
Appellant argues that the court could not properly exercise personal jurisdiction over him when the mother admitted that the child was conceived in Monroe, Louisiana. However, Ark. R. Civ. P. 12 provides that the defense of lack of personal jurisdiction is waived if not raised in a motion before the cause is heard on the merits. Searcy Steel Co. v. Mercantile Bank, 19 Ark. App. 220, 719 S.W.2d 277 (1986). While a special appearance to contest jurisdiction is no longer required, see Fausett v. Host, 315 Ark. 527, 868 S.W.2d 472 (1994), appellant failed to assert lack of personal jurisdiction as a defense until midway through his second trial. Accordingly, we hold the appellant’s failure to assert the defense of lack of personal jurisdiction in a timely manner amounts to a waiver of the defense.
Collateral Estoppel and Res Judicata
Collateral estoppel bars the relitigation of issues, while res judicata bars the relitigation of claims. The policy consideration behind both theories is the finality of litigation. Coleman's Serv. Ctr. Inc. v. Federal Deposit Ins. Corp., 55 Ark. App. 275, 935 S.W.2d 289 (1996); see also Newbern, Arkansas Civil Practice and Procedure (2d ed.), § 26-13. Res judicata is applicable here since appellant seeks to bar the entire litigation based on the initial dismissal for the State’s failure of proof.
Res judicata bars a later suit when (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) both suits involved the same cause of action; and (4) both suits involved the same parties or their privies. Ward v. Arkansas State Police, 653 F.2d 346 (8th Cir. 1981). Res judicata or claim preclusion bars the relitigation of issues which were actually litigated or which could have been litigated in the first suit. Federated Dep’t. Stores v. Moitie, 452 U.S. 394 (1981)(emphasis added). Finally, res judicata can only apply where both parties had a “full and fair opportunity” to litigate the claim. Id.
Res judicata may not apply when a trial court splits a claim, preserving certain issues for future litigation, or when the court makes an express reservation, commonly denoted “without prejudice.” See Coleman's Serv. Ctr., supra at 294-96, citing Section 26(l)(b) of the Restatement (Second) of Judgments (held that court must expressly reserve future claims to avoid res judicata preclusion).
Here, the first suit and dismissal for the State’s failure of proof satisfy the elements of res judicata. First, the dismissal was granted after both sides had a full and fair opportunity to put on evidence. The trial court noted that the State failed to seek a continuance to find the mother and acquire her necessary testimony. Instead, the State put on a case consisting entirely of the DNA testing report. While this scientific evidence is logically conclusive that appellant is the father, Judge Guthrie’s reading of the statute, Ark. Code Ann. § 9-10-108 (Repl. 1993), places appropriate emphasis on the use of “and,” which plainly requires that DNA results must be accompanied by corroborating testimony of the mother. The State apparently later convinced Judge Anthony that Judge Guthrie’s dismissal was “without prejudice,” and that refiling was therefore not barred. However, the text of the initial order, along with the accompanying analysis in Judge Guthrie’s letter opinion, lacks any express reservation of the right to refile, and is therefore a proper basis for applying res judicata.
The second prong of the res judicata test requires that the initial suit be based on proper jurisdiction. While appellant objects to personal jurisdiction in this appeal, which if the court agreed would be fatal to this prong of the res judicata analysis, appellant’s waiver, as discussed above, amounts to proper jurisdiction.
Third, the initial suit, and the subsequent two, involve the same cause of action. Each was a complaint for paternity seeking reimbursement for benefits and future child support in the best interest of the same child.
Finally, much res judicata litigation turns on privity. The parties to the suits must be the same, or must be in privity with each other. “Privity of parties within the meaning of res judicata means ‘a person so identified in interest with another that he represents the same legal right.’” Robinson v. Buie, 307 Ark. 112, 817 S.W.2d 431 (1991), (quoting Spears v. State Farm Fire & Cas. Ins., 291 Ark. 465, 725 S.W.2d 835 (1987)). “The parties need not be precisely the same for a judgment in one action to bar another, as long as there is a substantial identity and the same claim is at stake.” Newbern, supra, citing Terry v. Taylor, 293 Ark. 237, 737 S.W.2d 437 (1987). Here, the first case was brought by the State on behalf of the maternal grandmother, while the second and third cases were brought by the State on behalf of the mother. However, the same State agency represented each claim, the claims were identical — seeking paternity and support — and the basis for all three claims was identical — the minor child in question. Further, both the grandmother and mother presumably represent the child and its best interests, and it therefore seems logical to hold them in privity on behalf of the child’s interest, thus satisfying the fourth element of the res judicata analysis.
This approach is consistent with our holding in Department of Human Servs. ex rel. Davis v. Seamster, 36 Ark. App. 202, 820 S.W.2d 298 (1991). In Seamster, res judicata barred the State from relitigating a paternity action previously brought by the mother. However, we also recognized that paternity actions may be filed by the child as the named party, and that the child’s rights in such matters may be different from those of the mother. Id. at 205. In the present case, while the State, the mother, and the maternal grandmother have exhausted their rights under res judicata, our holding here does not bar the child from pursuing her own paternity action.
Conclusion
In the present case, attorneys for both parties were confused about whether the initial order included the words “without prejudice,” and related conflicting opinions on this matter to the second chancellor. However, the record, as abstracted, is clear that the initial dismissal included no express reservation which would work to hold open the claim. Further, Judge Guthrie, in his letter opinion accompanying the first order of dismissal, discussed the fact that his decision would work to bar the plaintiff and her privies from collecting child support. His comments reflect this court’s own analysis:
In its letter brief plaintiff requested the opportunity to submit additional testimony. Defendant has objected to such request. At the hearing, neither plaintiffs client, the grandmother, nor the natural mother of the child was present. The absence of these crucial witnesses could have been remedied by a motion for a continuance prior to the hearing. In light of defendant’s objection and the untimeliness of the request, additional testimony will not be allowed.
The end result of this ruling is that the individual who is in all probability the natural father of the child will not be held accountable for the support of that child. However, this is a statutory cause of action with the requirements clearly set forth by the legislature. Regardless of the consequences, the Court must render its ruling according to the law.
We do not take lightly the consequence of reversing and dismissing this matter. Such a remedy is harsh in light of the scientific proof establishing appellant as the father and the ongoing duty of support inherent in all parents. However, this case is an egregious example of the Office of Child Support Enforcement repeating the same litigation three times to the detriment of judicial efficiency, the undermining of the finality of judgments, and the expense and time of the parties. While support of children is a vital State interest, the office charged with protecting this interest has no greater rights than private litigants before the courts, and the State’s initial failure of proof is controlling in this case, despite the very strong countervailing policy of a child’s right to support from his parents. See Davis v. Office of Child Sup. Erforcement, 322 Ark. 352, 356, 908 S.W.2d 649, 651-52 (1995).
Reversed and dismissed.
Pittman and Arey, JJ., agree. | [
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John F. Stroud, Jr., Judge.
Connie Roberson worked as a truck driver for Waste Management. She suffered a compensable injury to her right knee on April 13, 1994, when she lost her footing while opening the truck door and grabbing a chain to keep from falling into the ruts below. She underwent arthroscopic surgery the next month by Dr. W. J. Giller, and she began a weight loss program under the care of a dietician. She weighed 296 pounds at the time of the injury.
At a hearing in November 1995, the administrative law judge found that the claimant had proven that she remained within her healing period, that she was entitled to temporary total disability benefits for the periods she had not worked after the injury, and that she was entitled to reasonable and related medical benefits for treatment by Dr. Giller. The Workers’ Compensation Commission reversed the decision of the ALJ, finding that the claimant had failed to prove that she remained within her healing period beyond August 1994, that she was entitled to additional temporary total disability benefits, or that she was entitled to an osteotomy surgical procedure by Dr. Giller. Ms. Roberson contends on appeal that the Commission’s denial of additional temporary total disability benefits and denial of reasonable and related medical treatment is not supported by substantial evidence. We disagree and affirm.
When 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 the Commission’s decision if its opinion displays a substantial basis for the denial of relief. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). Substantial evidence is that relevant evidence which reasonable minds might accept as adequate to support a conclusion. Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996).
Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. J.A. Riggs Tractor Co. v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990). The healing period is that period for healing of the injury which continues until the employee is as far restored as the permanent character of the injury will permit. If the underlying condition causing the disability has become more stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). The Commission has the duty of weighing the medical evidence as it does any other evidence, id., and its resolution of the medical evidence has the force and effect of a jury verdict. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989).
The evidence at the hearing included letters and medical records of appellant’s primary treating physician, Dr.Giller; an independent medical evaluation by Dr. John Slater; and appellant’s own testimony. Both doctors are orthopedic surgeons.
The day after Dr. Giller performed arthroscopic surgery on May 23, 1994, he wrote, “It is evident that the patient is going to have continuing difficulties with her knee. It is an absolute must that she lose weight to a more normal range.” At the end of May he released appellant to light-duty work with the restrictions that she could not stand or walk for prolonged periods of time and that she sit with her leg propped up. He wrote in June 1994 that appellant should continue on limited duty at work. In August 1994 he stated, “She will continue with her physical therapy . . . and she will also continue on her diet. She was told that she could return to work so long as she was not required to stand or walk.” Finally, on November 30, 1994, Dr. Giller wrote:
Since the patient was last seen she has lost approximately 70 pounds on the New Directions Weight Loss Program. She tells me that she is still having discomfort in the knee and she has not been working.
It is still my recommendation that the patient needs to be scheduled for a tibia! osteotomy. ... In the meantime, she will continue with her weight loss program. . . . She was told that she could work as long as she adhered to the restrictions that have been outlined previously.
Dr. John Slater’s report of the independent medical examination on February 28, 1995, included the following: “In reviewing the record, I would ascertain that she reached maximum medical improvement three months after her arthroscopic surgery.” He stated that his findings did not suggest a need for surgery, and he recommended that appellant continue with her weight loss. At the hearing, Ms. Roberson testified that she was twenty-six years old and was five feet, six inches tall. She stated that she had weighed 296 pounds at the time of her injury and further testified:
I now weigh 125 pounds. I had to lose weight because of my knee injury. I needed another surgery and they wanted me to lose the weight so that I could heal better from the surgery. The second surgery has not been done yet. Dr. Giller was going to do a second surgery on my knee when I lost the weight. I’ve lost the weight.
Appellant relies upon Dr. Giller’s statements and her own testimony to support her argument that she is still within her healing period and that she needs additional surgery. When reviewing decisions from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Com mission and uphold those findings if they are supported by substantial evidence. Torrey v. City of Fort Smith, 55 Ark. App. 226, 934 S.W.2d 237 (1996). The issue is not whether this court might have reached a different result from that reached by the Commission or whether the evidence would have supported a contrary finding; if reasonable minds could reach the result in the Commission’s decision, we must affirm. Harvest Foods v. Washam, supra.
The Commission based its decision that appellant’s healing period ended in August 1994 upon Dr. Slater’s opinion that the healing period had ended three months after surgery. The Commission also found that appellant had not proven that she suffered a total incapacity to earn wages. This finding was based upon her testimony that although she would return to work if she could find a job where she could sit with her leg elevated and where she could get up and move around, she had not looked for work. The Commission’s finding that appellant had failed to prove entitlement to additional temporary total disability benefits was based upon Dr. Slater’s independent medical evaluation and the fact that the claimant’s condition improved after she lost weight.
We hold that Dr. Slater’s findings, as reported in the independent medical evaluation, support the Commission’s findings that appellant’s healing period ended in August 1994 and that the osteotomy surgery is not reasonable and necessary treatment for her compensable injury.
Affirmed.
Rogers, J., agrees. Crabtree, J., concurs. | [
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James R. Cooper, Judge.
This is an appeal from the trial court’s dismissal of the appellant’s third-party complaint with prejudice. On the morning of trial, the complaint was dismissed on the motion of the third-party defendants, appellees John Joplin and Martin Gipson, for failure to state a cause of action. We affirm the court’s decision, modifying the dismissal to be without prejudice.
On January 26, 1984, the appellant, Big A Warehouse Distributors, Inc., (Big A) was sued by the appellee Rye Auto Supply, Inc. (Rye) for $ 15,620.44, the sum Rye alleged was owed by Big A for goods, wares, and merchandise it received from Rye. Big A denied the indebtedness in its answer and on July 25,1984, with leave of the court, filed a third-party complaint against Joplin and Martin. In granting Joplin and Martin’s motion to dismiss, the trial court stated:
The record will reflect that this is occurring on the morning of the trial. That back in July, we had a pre-trial conference on this matter, at which time the Court expressed it’s [sic] utter frustration at the State [sic] of the pleadings. That I have reviewed the pleadings just this morning, again, the third-party complaint, in particular, and the third-party complaint simply states a defense to the claim of Rye Auto, that, if, in fact, it believes, “the beliefs stated are true”, they are not as allegations, as I understand it, but they are beliefs that Big A has, that there was some hanky-panky going on between the managers of these two firms, if they were true, and, as a result of which, Big A did not get the merchandise, Big A had an absolute defense to the claim of Rye. If, on the other hand, there was some hanky-panky, and, in spite of that, Big A got the merchandise, he owes for it. The burden is on Rye Auto to prove that Big A got the merchandise, Big A has an obligation to pay for it, it’s that simple.
The allegations against these two managers does not state a cause of action against them, it just simply says that they were engaged in some kind of conspiracy.
Let the record reflect, very clearly, that the Court does not intend to inhibit the defendant from showing a conspiracy, or any hanky-panky, but, to make these two men parties to the action, there’s no basis for it. If, in fact, Big A owes for the merchandise, it matters not whether these men were guilty of conspiracy; and, if they didn’t get the merchandise, they can show it by the conspiracy, be evidence, but not as a cause of action.
Big A argues that it was entitled to maintain a third-party action because Joplin and Gipson were liable to it for all or part of Rye’s claim against it, citing Ark. R. Civ. P. 14. However, Rule 14 also provides that the third-party defendants may raise defenses against the third-party plaintiff as provided in Ark. R. Civ. P. 12. Joplin and Gipson did just that. They moved for a judgment on the pleadings under Rule 12(c), claiming that, under Rule 12(b)(6), the third-party complaint failed to state facts upon which relief could be granted. It is a settled rule of law that a pleading will be judged by its contents. Martin v. Citizens Bank of Beebe, 283 Ark. 145, 671 S.W.2d 754 (1984). In considering a motion for judgment on the pleadings for failure to state facts upon which relief can be granted, under 12(b)(6), the facts alleged in the complaint are treated as true and are viewed in the light most favorable to the party seeking relief. McAllister v. Forrest City Street Improvement District, 274 Ark. 372, 626 S.W.2d 194 (1981). A complaint or third party claim must contain a “statement ... of facts showing that the pleader is entitled to relief. . . .” Ark. R. Civ. P. 8(a). Failure to do so is grounds for dismissal under Rule 12(b)(6); Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981); Thompson-Holloway Agency v. Gribben, 3 Ark. App. 119, 623 S.W.2d 528 (1981). The facts constituting the cause of action must be pled in direct and positive allegations, not by way of argument, inference, or belief. Kohlenberger v. Tyson’s Foods, Inc., 256 Ark. 584, 510 S.W.2d 555 (1974). Furthermore, statements of generalities and conclusions of law are not sufficient to state a cause of action. Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980); Gribben, 3 Ark. App. at 123.
Upon examination of Big A’s third-party complaint, we note that the action Big A is attempting to bring is an action in trover, for the conversion of personal property, in this case the merchandise that Rye claims to have delivered to Big A. To be sufficient, the complaint must state that the plaintiff had a property interest in the subject goods and that the defendant wrongfully converted them. Sevier v. Holliday, 2 Ark. 512, 576-7 (1840). While a failure to plead either may be cured by a verdict, it is fatally defective upon a general demurrer, or in this case, a motion under Rule 12(b)(6). Id. The property interest may be shown by a possession or a present right to possession when the defendant cannot show a better right, since possession carries with it a presumption of ownership. Arkansas Airmotive Division of Currey Aerial Sprayers v. Arkansas Aviation Sales, 232 Ark. 354, 335 S.W.2d 813 (1960). The act of conversion is “the exercise of dominion over property in violation of the rights of the owner or person entitled to possession.” Quality Motors v. Hays, 216 Ark. 264, 268, 225 S.W.2d 326, 328 (1949). The conversion need not be a manual taking or for the defendant’s use: if the defendant exercises control over the goods in exclusion, or defiance, of the plaintiff’s right, it is a conversion, whether it is for his own or another’s use. Gentry v. Madden, 3 Ark. 127 (1840).
The third-party complaint is full of inferences, beliefs and conclusions of law; however, after examining the facts alleged in the third-party complaint and taking them all to be true, we find it to fall short of stating a cause of action for trover. While the facts, if true, show that Joplin and Gipson exercised control over Rye’s property, at no time does the pleading allege that Big A had any interest in, or right to possess, the property. As noted earlier, an allegation of an ownership interest or right to possession is essential to a case of action for trover. Failure to do so is fatal. This case is similar to the above-cited case of Quality Motors, where the court held that the plaintiff could not claim the defendant converted the car when it denied owning the car. Here, the appellant has made no allegation of ownership or right of possession and indeed, in its answer to Rye’s complaint, denied ordering or receiving the property.
Big A also contends that the court should have allowed it to put on evidence from which the pleadings could be amended to conform to the truth. In determining whether the court correctly ordered judgment on the pleadings, we look to the allegations appearing in the face of the complaint; evidence proffered and excluded is not to be considered. See Files, 268 Ark. at 110-11; Ark. R. Civ. P. 12(c). Indeed, it is improper to look at anything beyond the pleadings, unless the court is treating the motion as one for summary judgment. Rule 12(c); see Guthrie v. Tyson Foods, Inc., 285 Ark. 95, 685 S.W.2d 164 (1985). This was not the situation in the case at bar. Amendment of the pleadings is within the discretion of the trial court, unless the evidence has already been presented at trial with the express or implied consent of the parties. Ark. R. Civ. P. 15(b). Here no evidence had yet been presented in the cause, and the third-party defendants had objected to the state of the pleadings. The trial court did not abuse its discretion by refusing to allow Big A the opportunity to shore up its defective pleading with evidence.
Even if the third-party complaint had stated a cause of action, the court’s dismissal would not be error. Rye’s claim against the appellant was for the payment of accounts. The claim the appellant might have against Joplin and Gipson would sound in trover. The proof in the second cause of action would relate entirely to whether Joplin and Martin converted to their own use property of the appellant. The proof in Rye’s cause of action relates solely to whether that same property was delivered to the appellant, making the appellant liable to Rye for payment. The only common denominator in the two cases is the property involved. This case is virtually indistinguishable from the case of Nolen v. Prickett, 268 Ark. 369, 596 S.W.2d 693 (1980), where The Supreme Court, in upholding the trial court’s decision to quash the appellant’s third-party complaint, stated “ . A defendant cannot assert an entirely separate claim against a third party under Rule 14, even though it arises out of the same general set of facts as the main claim.***’ ” 268 Ark. at 372 (quoting 3 Moore Federal Practice 14.04 [sic]). The appellant’s claim against Joplin and Gipson constitutes just such a separate claim.
The court, however, should not have dismissed the appellant’s complaint with prejudice. The appellant should have had the opportunity to plead further; by dismissing his third-party claim with prejudice, the court denied him that opportunity. See Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984). Therefore, the order of dismissal is modified to be without prejudice, and the judgment is affirmed as modified.
Affirmed as modified.
Cloninger and Mayfield, JJ., agree.
The adoption of the Rules of Civil Procedure abolished general demurrers, replacing them with motions under Rule 12(b)(6). Files, 268 Ark. at 111 n.l. | [
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James R. Cooper, Judge.
The appellant in this criminal case was charged with a violation of Ark. Stat. Ann. § 41-1602 (Supp. 1985). He was convicted of that charge after a jury trial but, upon the recommendation of the jury, the trial court imposed no sentence. From that conviction comes this appeal. For reversal, the appellant argues that his conviction was not supported by substantial evidence, and that the trial court erred in refusing to give the appellant’s requested jury instruction on justification. We find the latter contention to be meritorious and we reverse.
As required by the Arkansas Supreme Court’s decision in Harris v. State, 284 Ark. 247,681 S.W.2d 334 (1984), we first consider the appellant’s contention that the evidence was insufficient to support his conviction. Reviewing the evidence in the light most favorable to the appellee, we will affirm the judgment if the verdict is supported by substantial evidence. Biniores v. State, 16 Ark. App. 275, 701 S.W.2d 385 (1985). To be substantial, the evidence must be of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must induce the mind to go beyond mere suspicion or conjecture. Harris, 284 Ark. at 252; Jones v. State, 11 Ark. App. 129, 668 S.W.2d 30 (1984).
The evidence reflects that on September 20, 1985, the appellant was an inmate in the isolation punitive wing of the Tucker Maximum Security Unit, Arkansas Department of Corrections. Officer Mark Carnes was employed at that facility as a guard. While Officer Carnes and another officer were transporting the appellant and two other inmates back to their cells from the day room, an altercation took place between the appellant and Officer Carnes. The appellant raised his hand and a loose handcuff struck Officer Carnes on the left side of his head.
Arkansas Statutes Annotated § 41-1602(l)(d)(iv) (Supp. 1985) provides that a person commits battery in the second degree if he intentionally or knowingly without legal justification causes physical injury to one he knows to be an officer or employee of the State while such officer or employee is acting in the course of his or her lawful duty. “Physical injury” is defined as the impairment of physical condition or the infliction of substantial pain. Ark. Stat. Ann. §41-115(14) (Repl. 1977). As his first point for reversal, the appellant contends that there was insufficient evidence of physical impairment or substantial pain to support a conviction for battery in the second degree. We do not agree.
At trial, Officer Carnes testified that, as a result of being struck with the loose handcuff, he received a laceration on the left side of his eye which required seven stitches, and that he still had a scar from this injury. A photograph of Officer Carnes, showing his injury, was introduced at trial and the following exchange took place:
Q. Does that [photograph] accurately depict the way you looked?
A. Well, that was after I had the stitches in me, Ma’am. I looked — I had a lot more blood. My eye was lot [sic] more swollen from when he hit me first. That was after I had my stitches put in.
In Holmes v. State, 15 Ark. App. 163, 690 S.W.2d 738 (1985), we held that the fact that the victim in that case did not verbally relate the extent of his pain was not controlling, and we stated that:
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 area of the body to which the injury is inflicted. The finder of fact is not required to set aside its common knowledge and may consider the evidence in the light of its observations and experiences in the affairs of life.
15 Ark. App. at 166. Viewing the testimony in the light most favorable to the appellee, the injury in the instant case was a bloody, swollen wound, in close proximity to the eye, which required seven stitches. The jury was permitted to consider the sensitivity of the area surrounding the eye in making its determination. Under these circumstances, we cannot say that there was insufficient evidence of substantial pain to support a conviction under Ark. Stat. Ann. § 41-1602(1) (d) (iv).
As his second point for reversal the appellant contends that the trial court erred in not allowing the appellant’s proffered jury instruction on justification, AMCI 4104. Where the defendant has offered sufficient evidence to raise a question of fact concerning a defense, the instructions must fully and fairly declare the law applicable to that defense. Hill v. State, 253 Ark. 512, 487 S.W.2d 624 (1972). In the instant case there was testimony from which the jury could find that there had been previous problems between the appellant and Officer Carnes; that the appellant had in the past been harrassed by Officer Carnes; that Officer Carnes had provoked the altercation by using abusive language to describe the appellant and the appellant’s family; and that the appellant struck Officer Carnes in self-defense only after Officer Carnes had himself pushed and struck the appellant. Without commenting on the weight of this evidence or the credibility of the witnesses, we hold it to be sufficient to raise a question of fact regarding the defense of justification. Since the acts with which the appellant was charged would be violative of Ark. Stat. Ann. § 41-1602 (l)(d)(iv) only if they were performed without legal justification, we cannot say that no prejudice resulted because of the trial court’s refusal to give the requested instruction.
Reversed and remanded.
Cloninger, J., and Wright, Special Judge, agree. | [
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Tom Glaze, Judge.
This case involves riparian rights. The parties’ dispute focuses on a spring that originates on appellants’ land and flows into Mill Creek which provides appellees with water for irrigation, drinking and other domestic purposes. In March 1984, appellants applied to the Arkansas Soil and Water Conservation Commission (Commission) for a dam permit which was issued the following May. In August 1984, appellees filed this suit against appellants, alleging appellants constructed a dam which wrongfully impounded waters on their land and obstructed the flow of water to Mill Creek. The appellants moved to dismiss appellees’ complaint, urging the trial court had no jurisdiction because appellees failed to exhaust their administrative remedies before the Commission. Alternatively, appellants claimed by law they were exempt from applying to the Commission for any dam-building permit because the spring was located on their land and it did not impede the flow of water into a stream, so neither the trial court nor the Commission had any authority to limit appellants’ use of the spring water.
The trial judge found appellants had complied with the Commission’s regulations in obtaining the permit for a dam. He held that the dam could remain but that, if an insufficient amount of water overflowed it, appellants must make water available to appellees in an amount equal to the flow from the spring before it was dammed. Appellants raise the same issues on appeal as they did below.
First, we agree with appellants and the trial court that appellants properly complied with the state law in obtaining the permit for a dam. The law that was pertinent and effective when appellants applied for their permit is set forth in Ark. Stat. Ann. §§ 21-1306 and 21-1310 (Supp. 1983). Section 21-1306 establishes the procedures required to apply for a permit to construct a dam, and it delineates the notice and hearing requirements interested persons must be given. In sum, appellants claim they complied with those statutory requirements in all respects, and because the appellees failed to file an objection concerning the dam with the Commission, they lost their right to question the Commission’s action in granting the permit to appellants. In other words, the appellants argue the Commission’s findings that led to its issuance of the dam-building permit became res judicata, since appellees had an opportunity to litigate their dispute before the Commission, but did not.
While we agree that the appellants and the Commission complied with the legal requirements necessary for the issuance of the permit for a dam and that the appellees did not object, appellants’ argument ignores appellees’ response that they had no objection to the dam — only to its obstruction of the flow of water from the spring located on appellants’ land. In this respect, § 21-1306(A)(1) (Supp. 1983), in pertinent part, provides protection to appellees, as lower riparian owners, as follows:
and that there shall be discharged each day from the water impounded by it (dam) a quantity of water as may be fixed by the Commission as that necessary to preserve, from time to time, below the dam, the flow of the stream involved at a rate designed to protect the rights of lower riparian owners. . .
In fact, the Commission in the instant case condi tioned, as it was required to do, its issuance of appellants’ dam permit upon the requirement that the dam discharge water below it at a rate approximating the flow the stream would maintain if the dam had not been constructed. The Commission, under Ark. Stat. Ann. § 21-1308 (Repl. 1968), is empowered to allocate available water whenever a shortage exists. This statutory scheme provides the Commission with authority to issue dam-building permits and, at the same time, recognizes and encompasses Arkansas’s case-law authority dealing with the rights of riparian owners. See Harris v. Brooks, 225 Ark. 436, 283 S.W.2d 129 (1955); Boyd v. Greene County, Arkansas, 7 Ark. App. 110, 644 S.W.2d 615 (1983); see also 38 Ark.L.Rev. 221,235 (1984). Under these same statutory provisions, the Commission may duly modify or cancel any dam permit issued by it if the person holding the permit fails to maintain the dam adequately or to comply substantially with any condition of the permit with respect to the operation of the dam. See § 21-1306(D). Consistent with our foregoing analyses of the law and the facts of this case, we hold that the appellees should have sought their remedy before the Commission rather than to have filed this original action in Chancery. See Ark. Stat. Ann. § 21-1304 (Supp. 1983) and -1304 (Supp. 1985). Because we conclude the Commission has jurisdiction of this cause, it is an elementary principle of administrative law that an issue must be raised at the lower level to be pursued on appeal. Arkansas Cemetery Board v. North Hills Memorial Gardens, 272 Ark. 172, 616 S.W.2d 713 (1981).
Since we disagree with appellants’ contention that appellees’ failure to appear before the Commission was res judicata, we consider their alternative contention that neither the Commission nor chancery court had the jurisdiction to limit appellants’ use of their water. Of course, we discussed how the Commission acquired jurisdiction in this matter, and now we turn to our reasoning why appellants are not exempt from that jurisdiction.
Appellants contend the Commission had no authority to limit their spring water because they were exempt from applying to the Commission for a dam-building permit pursuant to Ark. Stat. Ann. § 21-1310(b) (Supp. 1983), which provides:
Any person owning land, or having a right to occupy land, shall have the right to impound, and use for any lawful purpose, water flowing from a spring on that land, so long as he does not thereby obstruct the flow of water in a stream, and the Commission shall have no authority or jurisdiction with respect thereto.
Relying upon the above statutory language, appellants claim that, independent from the Commission, they had a right to impound their own water and use it for any lawful purpose because it was water flowing from a spring on their own land and the dam did not obstruct the flow of water in a stream. Appellants offer this contention even though they voluntarily submitted themselves to the jurisdiction of the Commission by applying for a dam permit. But more importantly, appellants are wrong in their assertion that their dam did not obstruct the flow of water in a stream. The record is replete with evidence to the contrary. Appellants’ own witness, a water resources engineer for the Commission, testified that there was a natural flow of water out of appellants’ spring that made its way to Mill Creek through a channel he described as a water course or stream. He further stated that appellants’ dam “is affecting” the flow of water into Mill Creek. The appellees offered similar testimony, summarily concluding that appellants’ spring flows into Mill Creek and that the creek never had run dry until after appellants built the dam impounding the water from their spring. Because the record reflects appellants’ dam does obstruct the flow of water in a stream, we conclude the appellants are not exempt under § 21-1310(b) (Supp. 1983).
Consistent with the foregoing opinion, we reverse and dismiss this cause, leaving the appellees to seek their remedy before the Commission.
Cracraft, C.J., and Corbin, J., agree.
Appellees respond to appellants’ arguments, claiming the trial court found the parties entered an express agreement that appellants would pump water out of their impoundment Into Mill Creek and that the trial court merely was enforcing that agreement by its decree. The trial court’s order reflects no such finding nor can we find any such agreement in the abstract of record.
Both of these provisions have been amended by Act 475 of 1985. Act 475 deleted all of the former subsections (a) through (d) of § 21 -1310, so that it now provides no permit is required for any dam which impounds less than fifty (50) acre-feet of water or is of a height less than fifteen (15) feet. | [
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James R. Cooper, Judge.
This is an appeal from the appellant’s misdemeanor conviction for criminal nonsupport, under Ark. Stat. Ann. § 41-2405 (Supp. 1985) by a Sebastian County Circuit jury. The appellant was fined $1,000.00 and sentenced to one year in jail. The appellant raises two points for reversal: The trial court erred in allowing testimony concerning the “impact” of the appellant’s alleged failure to pay child support and in not granting the appellant’s motion for directed verdict at the close of the State’s case. We find no error and affirm the conviction.
Because a motion for a directed verdict is a challenge to the sufficiency of the evidence, see Armstrongs. State, 12 Ark. App. 143, 671 S.W.2d 772 (1984), we must first determine whether the trial court’s denial of the motion was error. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). In reviewing evidence, we look at it in the light most favorable to the State, overturning the verdict only if there is no substantial evidence to support it. Kennel v. State, 15 Ark. App. 45, 689 S.W.2d 5 (1985).
In this case, the appellant made his motion for directed verdict at the close of the State’s case. Upon its denial, he elected to present evidence in his defense. He then renewed his motion at the close of all evidence. The motion was again denied. Both the appellant and the State feel that, under these circumstances, the reviewing court is to consider only the evidence put on by the State. The appellant cites no authority for this proposition, and the State cites Christiana. State, 6 Ark. App. 138, 639 S. W.2d 78 (1982). This, however, is not the correct standard of review. In Christian we held that, when a defendant presents additional evidence and fails to renew his motion for direct verdict at the conclusion of the evidence, we look to the entire record to determine the sufficiency of the evidence. 6 Ark. App. at 143. The dispositive factor in Christian is the fact that the defendant elected to put on additional evidence, not that he failed to renew the motion for directed verdict. In Walker v. County of Washington, 263 Ark. 317, 564 S.W.2d 513 (1978), the Arkansas Supreme Court stated, “we consider only appellant’s second motion for directed verdict since the first motion was waived by subsequently offered proof.” 263 Ark. at 320. The court went on to consider evidence presented by the defendant in determining the sufficiency of the evidence. Therefore, because the appellant here also waived his first motion by subsequently offered proof, we too must consider all of the evidence.
Arkansas Statutes Annotated § 41-2405(1) (Supp. 1985) provides:
A person commits the offense if without just cause he fails to provide support to: . . . (b) his legitimate child who is less than eighteen (18) years old ... .
In order to make out the offense, the State must show a willful or negligent failure to provide, not a mere failure because of inability. See Dempsey v. State, 108 Ark. 76, 157 S.W. 734 (1913). The statute construed in Dempsey provided: “ ‘If any man shall, without good cause, . . . fail, neglect or refuse to maintain or provide for such wife, child or children ... he shall be punished . . . .’”108 Ark. at 77. The statute now uses the words “just cause” instead of “good cause”, however, we find, for purposes of this statute, that these phrases are equivalent in meaning. See § 41-2405 commentary (Repl. 1977); Black’s Law Dictionary 622,775 (5th ed. 1979). In the context of the criminal nonsupport statute, “without just cause” means to have the inability to pay. See Dempsey, 108 Ark. at 79. While the Arkansas courts have not determined what constitutes an inability to pay in a nonsupport case, our sister states have held that the inability to pay cannot be brought about intentionally and willfully by the defaulting parent. See People v. James, 89 Ill. App. 3d 157, 411 N.E. 2d 563 (1980); State v. Greer, 259 Iowa 367, 144 N.W.2d 322 (1966); State v. Arnett, 370 S.W.2d 169 (Mo. App. 1963); Commonwealth v. Wright, 289 Pa. Super. 399, 433 A.2d 511 (1981). While the State must prove every element of its criminal nonsupport case beyond a reasonable doubt, it may do so by circumstantial, as well as direct, evidence. See Hudson v. State, 370 N.E. 2d 983 (Ind. App. 1977); Arnett, 370 S.W.2d 169; Wright, 433 A.2d 511.
In the case at bar, the appellant’s ex-wife testified that she and the appellant were divorced in December, 1980, at which time the appellant was ordered to pay $29.00 a week as child support for their daughter who was 8 years old at the time of the trial. She stated that, since the divorce, the appellant had only paid $ 115.00 in child support ($ 100.00 in April, 1985, and $ 15.00 in November, 1985) and that he was approximately $7,000.00 behind in his support. She further testified that, at the time of their divorce and for a while thereafter, the appellant was working at Baldor Electric. The appellant testified that he worked for Baldor for close to a year after the divorce, until he was fired for drinking on the job. He stated that, shortly after being fired, he worked at a pottery plant for three months and then moved to a farm. The appellant stated that he has been working for ranchers the past three or four years for room and board, with the exception of the chicken farm where he made an additional $125.00 per week. He testified that he worked at this last job for about a year, until he was arrested for non-support. The appellant said he would not get a factory job, because when he worked indoors he “was closed up and [he] couldn’t stay.” We find this evidence of the appellant’s duty, failure, and ability to pay support sufficient to uphold his conviction.
The appellant also contends that the trial court erred in admitting evidence showing the impact of his failure to pay support on the child. The appellant contends that this evidence is irrelevant and inadmissible, citing Ark. Stat. Ann. § 28-1001, Unif. R. Evid. 410, 402, and 403 (Repl. 1979) (now Ark. R. Evid. 410, 402, and 403). The evidence complained of consists of the ex-wife’s testimony that, because of the appellant’s failure to provide support, she was unable to pay a babysitter for the child while working, and the child received subsidized school lunches. Evidence in this case clearly shows that the appellant has failed, without just cause, to provide support for his minor daughter. Under these circumstances, we do not need to determine whether it was error to admit “impact” testimony, because, even if it were error, we find no prejudice. We do not grant reversal for nonprejudicial error. Vasquez v. State, 287 Ark. 468, 702 S.W.2d 411 (1985); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied 105 S.Ct. 1847 (1985).
Affirmed.
Cloninger and Mayfield, JJ., agree. | [
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Melvin Mayfield, Judge.
The question in this case is whether the court erred in denying appellants a trial by jury.
Appellees filed suit in unlawful detainer against appellants on April 23, 1985. On May 17 a writ of possession was issued which contained a provision for appellants to retain possession of the property by filing a $2,500.00 surety bond within five days of the issuance of the writ. The bond was filed on May 22,1985, and trial was set for July 18, 1985. On July 3, 1985, an order was entered which stated that the bond which had been filed to permit the appellants to retain possession of the property was not in proper form and was invalid. Appellants were given until July 8, 1985, in which to post a proper bond and if this was not done the clerk was directed to issue a writ granting appellees possession of the property.
In the meantime, appellants had dismissed their original attorney and retained another one, and on June 21,1985, the new attorney had filed a cross-complaint against appellees and in that pleading had requested a trial by jury. On June 28,1985, answer to the cross-complaint was filed and it contained an objection to a jury trial on the basis that the request was untimely filed.
On July 18,1985, court convened for a trial on the merits of the case. Before the trial started, counsel for appellants an nounced to the court that the motion for jury trial was renewed. At that time, a record was made on the court’s previous denial of appellants’ same request. The discussion between counsel for both parties and the court discloses that the case had first been set for trial on July 18, 1985, but had been accelerated to July 3 because of the problem with the bond, and that the court had informed appellants’ counsel sometime prior to July 3 that a jury trial could not be had on that date. Then on July 3,1985, the court had granted an oral motion by appellants’ counsel for a continuance, over the objection of counsel for appellees, and had issued the order declaring the bond invalid but giving appellants until July 8, 1985, to post a proper one.
On appeal, the appellants argue that the trial court erred in denying them a jury trial. They say their request, filed on June 21, 1985, was made more than twenty days prior to the date on which the trial was actually held, July 18,1985. It is admitted, however, that at the time the request for jury trial was made, the case had already been reset for trial on July 3,1985. The appellants cite the case of Bussey v. Bank of Malvern, 270 Ark. 37, 603 S.W.2d 426 (Ark. App. 1980), in which the trial court was reversed for taking the case away from the jury when both sides moved for a directed verdict. In that case, we explained that prior to the adoption of the Arkansas Rules of Civil Procedure the Arkansas rule was that where both parties moved for a directed verdict and no other jury instructions were requested by either party, the parties were regarded as having agreed that the issues could be decided by the court rather than the jury, but that the new rules of procedure had abolished that law, and that the new rules “should be interpreted so as not to give effect to dubious waivers of rights.” Of course, we are not faced with that same factual situation in the case at bar.
In Johnson v. Coleman, 4 Ark. App. 58, 627 S.W.2d 564 (1982), the appellant demanded a jury trial on the date of trial. We affirmed the denial of a jury trial because he had failed to comply with ARCP Rule 38. That rule provides:
(a) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by filing with the clerk a demand therefor in writing at any time after the commencement of the action and not later than 20 days prior to the trial date. Such demand may be indorsed upon a pleading of the party.
(c) Waiver. The failure of a party to file a demand as required by this rule and as required by Rule 5(d) constitutes a waiver by him of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.
Appellants do not direct us to any Arkansas cases analyzing this rule and our research has disclosed none. The federal rule is somewhat different, and we found no assistance from that quarter. In Texas, a request for jury trial must be made not less than ten days before trial. In Peck v. Ray, 601 S.W.2d 165 (Tex. Civ. App. 1980), the appellate court held that the trial court did not abuse its discretion in refusing the request for a jury trial which was prepared by the attorney thirteen days prior to trial but inadvertently not mailed until eight days before trial. The Texas appellate court listed several factors to be considered by the trial court in determining whether a jury trial should be granted or denied after a late request. Included were the obviously important considerations of whether granting the request would injure the adverse party, would interfere with the orderly handling of the court’s docket, or would unduly delay the trial.
In the case at bar, the record shows that the request for jury trial filed on June 21 was not more than twenty days prior to July 3, the date the case was at that time set for trial. A hearing was held on July 3, or at least an informal conference between counsel and the court, and the order voiding the bond was entered and a continuance for the trial on the merits was granted. The record before us does not disclose that appellants renewed their request for a jury trial at that time. The record shows that the request was renewed only on the day the trial actually took place, July 18. Under ARCP Rule 39(b), the trial court has the discretion to grant a motion for jury trial even though the demand has not been made in keeping with the provisions of ARCP Rule 38. However, in the instant case, the trial court did not use that discretion to grant the motion for jury trial made on July 18. Under the circumstances, we hold that the court did not abuse its discretion in refusing to grant the appellants a trial by jury.
Affirmed.
Cracraft, C.J., and Corbin, J., agree. | [
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Lawson Cloninger, Judge.
This is a divorce case in which the appellee was granted a divorce from the appellant. Appellant alleges four points for reversal: insufficient proof of grounds for divorce; inadequate corroboration of those grounds; error in awarding judgment for temporary alimony; and that the award of alimony was improper or, in any event, excessive. The question we will resolve on this appeal is whether the appellee’s grounds for divorce were sufficiently corroborated. We agree with appellant’s contention that appellee’s grounds were inadequately corroborated and reverse on that point.
We review chancery cases de novo on the record and do not reverse a decree unless the chancellor’s findings are clearly. erroneous or clearly against a preponderance of the evidence. Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981); ARCP Rule 52(a).
Divorce is a creature of statute and can only be granted when statutory grounds have been proved and corroborated. Copeland v. Copeland, 2 Ark. App. 55, 616 S.W.2d 773 (1981); Ark. Stat. Ann. Section 34-1202 (Supp. 1979). “In order to obtain a divorce based upon indignities, the plaintiff must show a habitual, continuous, permanent and plain manifestation of settled hate, alienation, and estrangement on the part of one spouse, sufficient to render the condition of the other intolerable.” Anderson v. Anderson, 269 Ark. 751, 753, 600 S.W.2d 438, 440 (Ark. App. 1980).
In a contested divorce case, the required corroboration of grounds for divorce may be slight. Hilburn v. Hilburn, 287 Ark. 50,696 S.W.2d 718 (1985). This court has defined corroboration as testimony of some substantial fact or circumstance independent of the statement of a witness which leads an impartial and reasonable mind to believe that the material testimony of that witness is true. Anderson, supra. “It is not necessary that the testimony of the complaining spouse be corroborated on every element or essential in a divorce suit.” Sowards v. Sowards, 243 Ark. 821, 825, 422 S.W.2d 693, 696 (1968). Corroboration is required in order to prevent the parties from obtaining a divorce by collusion, and where there is no evidence of collusion, the corroboration may be comparatively slight. Anderson, supra.
In Harpole v. Harpole, 10 Ark. App. 298, 664 S.W.2d 480 (1984), this court quoted with approval the early Supreme Court case of Bell v. Bell, 105 Ark. 194, 195-96, 150 S.W. 1031, 1032 (1912):
It is for the court to determine whether or not the alleged offending spouse has been guilty of acts or conduct amounting to rudeness, contempt, studied neglect or open insult, and whether such conduct and acts have been pursued so habitually and to such an extent as to render the condition of the complaining party so intolerable as to justify the annulment of the marriage bonds. This determination must be based upon facts testified to by wit nesses, and not upon beliefs or conclusions of the witnesses. It is essential, therefore, that proof should be made of specific acts and language showing the rudeness, contempt and indignities complained of General statements of witnesses that defendant was rude or contemptuous toward the plaintiff are not alone sufficient. The witness must state facts — that is, specific acts and conduct from which he arrives at the belief or conclusion which he states in general terms — so that the court may be able to determine whether those acts and such conduct are of such a nature as to justify the conclusion or belief reached by the witness. The facts, if testified to, might show only an exhibition of temper or of irritability probably provoked or of short duration. The mere want of congeniality and the consequent quarrels resulting therefrom are not sufficient to constitute that cruelty or those indignities which under our statute will justify a divorce.
10 Ark. App. at 302-303 (emphasis in original). See also Hair v. Hair, 272 Ark. 80, 613 S.W.2d 376 (1981); Welch v. Welch, 254 Ark. 84, 491 S.W.2d 598 (1973).
With these considerations in mind, our review of the evidence reveals that there was not sufficient corroboration of appellee’s grounds for divorce to entitle her to a divorce from appellant. Without reaching the merits of appellee’s testimony as to grounds, we observe that the only possible corroborating evidence of any of appellee’s grounds was the testimony of her sister, Glenna Bradley, who could not testify from any personal knowledge or observations to specific acts or language. Appellee’s sister testified that she did not believe that she had seen anyone live quite like appellant and appellee lived with the assets they had available and that she would not live that way herself. The only substantive testimony was that the appellee had been unhappy and depressed but was a “much happier person” since the separation of the parties. Although it is obvious that there was no collusion between the parties to this action, the testimony of Ms. Bradley was not sufficient in light of the authorities cited above. The decision of the chancellor in this regard is clearly erroneous, and we reverse.
Since we reverse the decree of divorce because of insufficient corroboration of grounds, we do not reach the remaining issues concerning alimony.
Reversed and dismissed without prejudice.
Cooper and Mayfield, JJ., agree. | [
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George K. Cracraft, Chief Judge.
Appellant condemned a total of 4.38 acres of land owned by appellee and, pursuant to Ark. Stat. Ann. Section 76-538 (Repl. 1981), deposited into escrow $32,500 as estimated just compensation for such taking. Appellant entered the land on July 22, 1983, and a trial on the issue of damages was held on October 2,1985. The jury returned a verdict of $60,000. The trial court set the interest rate at 11.77% on the amount of the judgment in excess of the original deposit into escrow. Appellant’s sole point on appeal is that the 11.77% interest rate set by the court is excessive and should be set aside. We do not agree and therefore we affirm the lower court’s award.
In Arkansas State Highway Commission v. Stupenti, 222 Ark. 9, 257 S.W.2d 37 (1953), the court held that even though at trial a landowner is given judgment for the present value of his land taken, he has been deprived of its use and rents from the date of entry by the condemning authority until the date of judgment, and the State should be obligated to pay the landowner for this. In ruling that interest should be paid from the date of taking, the court stated:
To allow the State to escape this liability would be contrary to our State Constitution. Art. 2, section 22, reads:
“Section 22. Property Rights — Taking Without Just Compensation Prohibited. — The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.”
Just compensation means full compensation. While the real loss to appellee might well be described as the denial of the use of his land for the time stated, yet the universally recognized rule for measuring this loss is by calculation of interest on the value of the land.
Id. at pp. 12-13.
The court recently expanded on what constitutes full compensation in Arkansas State Highway Commission v. Vick, 284 Ark. 372, 682 S.W.2d 731 (1985), which appears to be controlling here. In Vick, the trial court allowed the appellee landowners interest at the statutory rate of 6% per annum on the difference between the appellant’s deposit and the amount of the verdict. Ark. Stat. Ann. Section 76-536 (Repl. 1981). Appellees argued that a 6% rate of interest was so inadequate as to amount to an unconstitutional taking of their property without just compensation. To support their contention, the landowners proved that, during the period between the Commission’s entry on the land in 1981 and the return of the verdict in 1984, money could be invested in bank certificates of deposit at a rate of 11.5% interest and borrowers were required to pay interest at rates ranging from 13.5% to 18%. The court agreed with the landowners, and stated that as a matter of just compensation and due process under the federal and state constitutions, a landowner should be allowed interest on the unpaid part of the award “at a proper rate” during the time he is deprived both of the use of the land and of the money representing its value and that the statutory limitation on interest rate could not constitutionally be applied in the circumstances.
Here, the president of a local savings and loan testified that the interest payable on a 12-month certificate of deposit averaged 11.77% from July 22, 1983, to September 30, 1985. A witness for appellant who invests funds on behalf of appellant testified that a proper rate of interest would be 7.32% to 9.2%. These figures were based on risk-free United States Treasury bill rates from July, 1983, to September, 1985. The Highway Commission thus contends that the “proper” rate of interest paid should be one representative of risk-free investments backed by the government. We conclude that this view is too narrow.
Here, the trial court found that the proper rate of interest on the amount of the judgment over and above the initial deposit was 11.77%, which was an average of rates paid on certificates of deposit at a local financial institution. In determining whether evidence is sufficient to support the verdict, the appellate court will view the testimony in the light most favorable to appellees and will indulge all reasonable inferences in favor of the judgment. Arkansas Power and Light Company v. Melkovitz, 11 Ark. App. 90, 668 S.W.2d 37 (1984). The lower court’s award of a 11.77% interest rate on the unpaid portion of the condemnation award is fully supported by the evidence and is affirmed.
Affirmed.
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George K. Cracraft, Chief Judge.
Leonard F. Pickle, Jr., and Delta Pecan, Inc., appeal from an order of the chancery court of Phillips County, Arkansas, holding that they are barred by a decree of the chancery court of Coahoma County, Mississippi, and our opinion in a former appeal in this case from asserting their claim of title to lands lying in Arkansas claimed by Simon Zunamon. The sole issue on the first appeal was whether the Phillips County Chancery Court erred in holding that a former decree entered by the chancery court of Coahoma County, Mississippi, was entitled to full faith and credit and constituted a bar to appellants’ claim in the Arkansas proceedings. The issue here in whether our decision affirming that determination barred further assertion of that claim under the rule of the “law of the case.” We agree with the chancellor that the action is barred.
A detailed recitation of the facts presented in the record would serve no useful purpose and unduly lengthen this opinion. Only a brief mention of the factual and procedural background is required to bring the narrow issue we decide into focus. At the time Arkansas was admitted into the Union the main channel of the Mississippi River marked the boundary line between the States of Arkansas and Mississippi in the area in which this controversy arose. Arkansas lands, now known and designated on charts as “Island Sixty-Four,” lay on the left descending bank opposite Mississippi lands designated as “Jackson Point.” Due to the process of erosion and accretion many changes in the channel occurred in subsequent years. Each state lost some territory to erosion and each gained some at the other’s expense by accretion. In some places lands once originally surveyed in one state had been completely lost to it by erosion and their geographic situs occupied by accretions to lands of the other states. So long as the river maintained its main channel through the area, these changes marked no change in the state boundary or the boundaries of private owners as these boundaries followed the changing course of the channel. Arkansas v. Tennessee, 246 U.S. 158 (1918); Uhlhorn v. U.S. Gypsum Co., 366 F.2d 211 (8th Cir. 1966).
In 1941 the U. S. Corp of Engineers effected a cut-off across the neck of Jackson Point causing the river to abandon its old channel and adopt a new one. The abandoned channel between “Jackson Point” and “Island Sixty-Four” subsequently stagnated and ceased to flow. The boundary line between the States of Arkansas and Mississippi and of private ownership in each state then became fixed in the thalweg of the old channel, no longer subject to changes by erosion and accretion. Arkansas v. Tennessee, supra; Missouri v. Nebraska, 196 U.S. 23 (1904); Uhlhorn v. U.S. Gypsum Co., supra. Although subject to accurate location, the boundary between Island Sixty-Four and Jackson Point has never been established by an original action or compact between the two states and has been shown on all subsequent maps and charts of the Mississippi River Commission as “indefinite.” In any litigation involving lands in this area the location of that fixed boundary and hence the territorial jurisdiction of courts in the sister states was, and is, a question of fact.
Zunamon claims title to lands on both Island Sixty-Four and Jackson Point, deraigning his title to the former from the State of Arkansas and the latter from the State of Mississippi. In 1982 Zunamon brought an action in the chancery court of Coahoma County, Mississippi, to quiet his title to lands lying on Jackson Point as against the claims and purported interests of named defendants who were asserting title to that land under tax deeds executed by the Arkansas Commissioner of State Lands. The appellees contended that the area described in the Arkansas tax deeds had been lost to the State of Arkansas by erosion prior to the 1941 avulsion and that the geographic situs once occupied by those lands was now occupied by accretions to Mississippi lands on Jackson Point. By subsequent amendment, the appellants, Pickle and Delta Pecan, Inc., were made parties to that suit and served under process authorized by the State of Mississippi. The appellants did not answer and a decree, which recited that the claim of the appellee Zunamon was superior to any claims of the defendants to all lands described in his complaint, was entered against them by default. No appeal was taken from that decree.
Shortly thereafter Zunamon brought this action against appellants in the chancery court of Phillips County alleging that they were conducting activities on his lands on Island Sixty-Four which interfered with his use and quiet enjoyment, and prayed that they be enjoined from conducting those activities and that his title be quieted against them. The appellants answered, asserting their tax deed from the State of Arkansas, and counterclaimed for the quieting of that title against the claims and purported interests of Zunamon. Zunamon moved to strike the counterclaim, asserting that the geographic situs of the lands described in appellants’ tax deed had been held by the Mississippi court to be now occupied by lands within the territorial jurisdiction of Mississippi and the Arkansas deed could not now be asserted as the basis of a claim adverse to Zunamon’s title.
Appellants answered contending that they had never been served with summons in the Mississippi action and were not subject to the Mississippi court’s jurisdiction. They further asserted that no land described in their counterclaim constituted a part of the State of Mississippi, nor was included in the description of lands described in the complaint of the plaintiff filed in Coahoma County, and, as it did not lie within the State of Mississippi, the court had lacked subject matter jurisdiction. The chancellor granted the motion to strike the counterclaim, holding that the Mississippi court did have jurisdiction to enter the decree, that it was entitled to full faith and credit in this state, and was a bar to the action asserted in the counterclaim.
The court of appeals affirmed the ruling of the chancellor in an unpublished opinion in Leonard F. Pickle, Jr., et al. v. Simon Zunamon, CA 83-289 (June 13, 1984). In that opinion we upheld the chancellor’s finding that the Mississippi law regarding service of process was complied with and that the appellants additionally had actual notice of the action. We also rejected the appellants’ contention that the Mississippi decree was subject to collateral attack in the Arkansas court because it purported to affect title to lands which were actually within the territorial jurisdiction of the State of Arkansas. We recognized that a court in one state cannot directly adjudicate or operate upon title to lands located in another, Tolley v. Tolley, 210 Ark. 144, 194 S.W.2d 687 (1946), but concluded, however, that the Mississippi court was not attempting to directly operate on the title to Arkansas lands. It merely determined the extent of its territorial jurisdiction and purported to operate only on the title to those lands it found to be within the State of Mississippi and thus within its jurisdiction. We also held that the court had the authority to determine the extent of its territorial jurisdiction. Uhlhorn v. U.S. Gypsum Co., supra. Although we recognize that a determination of a court as to the extent of its jurisdiction is subject to appellate review, it is not subject to collateral attack in subsequent proceedings. Durfee v. Duke, 375 U.S. 106 (1963). See also Leflar, American Conflicts Law, § 79 (1977). In Durfee it was held that the constitutional command for full faith and credit requires that judicial proceedings be given the same full faith and credit in every court within the United States as they have by law or usage in the courts of such states from which they are taken. It is clear to us that the Mississippi courts would give full res judicata effect to the decree of the Coahoma County Chancery Court in quieting the appellees’ title. The Mississippi court gives the same effect and legal consequences to a default judgment as it does to a jury verdict. McGee v. Griffin, 345 So.2d 1027 (Miss. 1977);Strainv. Gayden, 20 So.2d 697 (Miss. 1945). The courts of Mississippi give that effect not only to those matters which were actually litigated but those which could and therefore should have been litigated in the prior proceedings. Id. We concluded that the chancellor’s determination that the Mississippi court had jurisdiction over both the parties and the subject matter and entitled to full faith and credit was not clearly erroneous and against the preponderance of the evidence and affirmed his order.
Subsequent to that opinion the appellants amended their complaint, deraigned their title, and offered to prove by expert testimony that the lands described in their deed had never been lost by the State of Arkansas by erosion. They proffered proof that the property which they claimed originated in part as an island which was never eroded away and had always remained intact. They also contended that the Mississippi decree was not broad enough to encompass the lands then in issue. In the order now subject to our review the chancellor held that, since his initial decree had been fully affirmed by the appellate court, evidence tending to show that he had been in error in those determinations on which it had been based could not then be received. We agree.
Our court has long adhered to the rule that when a case has been decided by it, and after remand returned to it on a second appeal, nothing is before the court for adjudication except those proceedings had subsequent to its mandate. Matters decided in the first appeal are the law of the case and govern the action of the trial court on remand and our actions on a second appeal to that extent, even if we were now inclined to say that we were wrong in the earlier decision. This rule is based on the fundamental concept that judgments must at some point become final and departure from that rule would result in only uncertainty, confusion, and incalculable mischief. International Harvester Co. v. Burks Motors, Inc., 252 Ark. 816, 481 S.W.2d 351 (1972); Ouachita Hospital v. Marshall, 2 Ark. App. 273, 621 S.W.2d 7 (1981).
On the first appeal we affirmed the chancellor’s findings and conclusions that the Mississippi decree was entitled to full faith and credit and was a bar to the claims of the appellants in the Phillips County action. Our mandate neither directed nor authorized further proceedings. It “in all things” affirmed the decree appealed from. That opinion and our mandate became the law of the case and the issues of whether the Mississippi court had territorial jurisdiction to enter the decree and whether the decree actually encompassed the lands in question or otherwise did not bar the counterclaim, were foreclosed.
Affirmed.
Cooper and Glaze, JJ., agree. | [
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Donald L. Corbin, Judge.
This case comes to us from Nevada County Chancery Court. Appellants, Conrad T.E. Beardsley and Lillemor W. Beardsley, appeal the chancellor’s decision that granted a set-off to appellee, Kathleen Pennino, for losses she incurred due to appellants’ breach of a settlement agreement, entered into by appellants and appellee, and restructured the note payments appellee owes appellants. We affirm.
The parties to this action entered into a settlement agreement which was dictated into the record on January 24, 1984. Under the terms of the settlement agreement, both parties were to perform certain obligations. Appellee was to bring current her debt on a $300,000 note to appellants and appellants were to assume the financial responsibility on certain debts of appellee’s. However, appellee’s obligation to pay was conditioned on appellants first assuming the financial obligation on her debts. Appellants failed to do so. Consequently, appellee went into default on some of the debt.
Appellee filed a motion in chancery court to enforce the settlement agreement of January 24, 1984. In her motion appellee also asked that she be allowed a set-off for the amounts she was held in default as well as for other costs incurred by her because of appellants’ failure to act. Appellee also asked that she be awarded $49,780.80, which represented the additional costs of financing, at current interest rates, a note on her default judgments and other related costs totalling $ 155,497.21, as opposed to paying that same amount to appellants at a lower interest rate. By stipulation of the parties, the court determined that the current interest rate in that community was set at thirteen percent (13%). The note to appellants had been set at ten percent (10%). Using an amortization schedule, the court determined that appellee would incur $49,780.80 in additional interest over the next eighteen years, which was the remaining time on the note.
Appellants argue the following two points for reversal:
I.
THE CHANCERY COURT ERRED BY ALLOWING APPELLEE A SET-OFF OF $49,780.80 FOR THE ESTIMATED ADDITIONAL COST OF SECURING A LOAN TO SATISFY OTHER SET-OFFS ALLOWED.
II.
THE CHANCERY COURT ERRED BY RESTRUCTURING APPELLEE’S NOTE PAYMENTS TO APPELLANTS SO AS TO REDUCE APPEL-LEE’S MONTHLY PAYMENTS FROM $3,000.00 PER MONTH TO $1,798.00 PER MONTH.
The record indicates that under the terms of the settlement agreement, appellee was to pay appellants $18,000, the amount she was in arrears on a note to appellants, in addition to an amount she owed appellants on an inventory. Appellee was to make payment to appellants on February 17,1984. On the same date, appellants were to have assumed the obligations on properties upon which appellee is now obligated.
On February 17, 1984, appellee notified plaintiff that she was ready, willing, and able to perform under the terms of the parties’ agreement. Appellants, however, failed to assume the obligations on the properties as agreed upon. Appellee continued to communicate to appellants her readiness to perform according to the terms of the settlement agreement, but appellants failed to carry out the agreement. In June of 1984, a partial foreclosure decree was entered against appellee for property concerned in the settlement agreement.
Appellee filed a motion in chancery court to enforce the January 24, 1981, settlement agreement. The chancellor enforced the settlement agreement, finding that all the parties knew what was required of them under the terms of the agreement. The court specifically found that appellee did not frustrate appellants in their effort to perform their duty under the agreement. The chancellor found that, as a result of appellants’ continued refusal to carry out the agreement, appellee suffered losses entitling her to relief in the form of a set-off against the amount she owed to appellants.
As their first point for reversal appellants argue that the court erred by allowing appellee a set-off of $49,780.80 for the estimated additional cost of securing a loan to satisfy other set-offs allowed. Appellants argue that the additional cost of securing a loan to satisfy the other set-offs is an expense which may never be incurred by appellee. In support of their argument appellants cite Harris Construction Co., Inc. v. Powers, 262 Ark. 96, 554 S.W.2d 332 (1977), in which the Arkansas Supreme Court discussed the doctrine of avoidable consequences:
The doctrine of avoidable consequences limits the amount of recoverable damages in that a party cannot recover damages resulting from consequences which he could reasonably have avoided by reasonable care, effort or expenditure, [citations omitted] The doctrine appears equally applicable to damages caused by breach of contract and those caused by negligence, [citation omitted]
The burden of proving that a plaintiff could have avoided some or all of the damages by acting prudently rests on the defendant [citations omitted], not only on the question of causation of damages for failure to avoid harmful consequences [citation omitted], but also on the question of the amount of damage that might have been avoided, [citation omitted] But whether one had acted reasonably in minimizing, mitigating or avoiding damages is, in most cases, a question of fact.
Id. at 104-105, 554 S.W.2d at 336 (citations omitted).
We find that the Harris case cited by appellants does not require reversal of the chancellor’s decision. The $49,780.80 set-off is not a recovery for damages resulting from consequences that appellee reasonably could have avoided by reasonable care, effort or expenditure. Appellants failed to abide by the settlement agreement and consequently default judgments were filed against appellee. The chancellor allowed appellee a set-off for the amount of the unpaid deficiency judgment, the unpaid mortgage principal and the interest. In addition, the chancellor awarded appellee a set-off for reimbursement of expenses incurred resulting from appellants’ failure to abide by the agreement and for the estimated additional cost of her securing a loan to satisfy the indebtedness caused by appellants’ failure.
While chancery cases are tried de novo on appeal, the findings of a chancellor will not be reversed unless clearly against a preponderance of the evidence; and since the question of the preponderance of the evidence turns largely on the credibility of the witnesses, the appellate court defers to the superior position of the chancellor. Stover v. Stover, 287 Ark. 116, 696 S.W.2d 750 (1985); ARCP Rule 52(a).
The underlying purpose in awarding damages for breach of contract is to place the injured party in as good a position as he would have been in had the contract been performed. Bowman v. McFarlin, 1 Ark. App. 235, 615 S.W.2d 383 (1981). In matters of equity the court is one of conscience which should be ever diligent to grant relief against inequitable conduct, however ingenious or unique the form may be. Holland v. Walls, 3 Ark. App. 20, 621 S.W.2d 496 (1981). We find that the chancellor’s findings are not clearly against the preponderance of the evidence. Therefore, we find no merit in appellant’s first point for reversal.
As their second point for reversal appellants assert that the chancellor erred by restructuring appellee’s note payments to appellants so as to reduce appellee’s monthly payments from $3,000 per month to $ 1,798 per month. The chancellor found that appellee owed appellants the total sum of $351,319.07, less a set-off of $205,278.10, for a net amount of $146,040.97. The court then restructured the amount of the monthly payments from $3,000 to $1,798.
Appellee argues that the purpose of reducing the monthly payments was to place appellee in as good a position as she would have been in had appellants carried out their obligations under the settlement agreement. Appellee notes that if the reduction had not been allowed, appellee would have been unduly burdened by having to make her $3,000 monthly payments to appellants as well as payments to satisfy the default judgments caused by appellants’ breach of the agreement. If the chancellor had not reduced the monthly payments, the number of payments to be made would have been reduced. The chancellor found that reducing the amount of the payments, instead of reducing the number of payments, was equitable to all parties. Appellee also notes that the chancellor, in determining the amount of the monthly payments, found that appellants were entitled to the benefit of the current interest rates, thereby increasing the interest appellants received on the balance of the note.
We do not find that the chancellor’s findings on this point are erroneous or contrary to the law. As stated above, the damage rule for breach of contract is to place the injured party in as good a position as he would have been in had the contract been performed. A court of equity may mould any remedy that is justified by the proof. Cox v. Cox, 17 Ark. App. 93, 704 S.W.2d 171 (1986). Appellants breached the contract and the chancellor’s order increased the interest rate applied on the balance of the note due them from appellee. We do not believe that appellants should be permitted to complain on this point.
For the reasons stated above we affirm the decision of the chancellor.
Affirmed.
Cracraft, C.J., and Mayfield, J., agree. | [
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Melvin Mayfield, Judge.
This appeal from a decision of the Workers’ Compensation Commission has a bizarre procedural history which must be recounted for an understanding of the issues. For convenience, our references to the employer include its liability carrier.
On September 21, 1983, a hearing was held before the administrative law judge at which it was stipulated that the claimant, Kenneth P. Lloyd, had sustained a work-related injury when he was burned over 70% of his body. It was also stipulated that he had been paid temporary total disability benefits until the end of his healing period, January 11, 1981, and that subsequently the employer had voluntarily paid him for 10% permanent partial disability to the body as a whole, based upon the September 16,1981, report of Dr. Robert Love, and for scheduled injuries of 5% impairment to the right arm and 5% impairment to the left leg, based on the ratings of Dr. Richard A. Knutson made on May 27, 1982.
The claimant contended that he was entitled to more than 10% permanent partial disability to the body as a whole and, after the hearing, the law judge awarded the claimant 15% permanent partial disability to the body as a whole and ordered the employer to pay the additional 5%. That opinion was filed November 23, 1983, and the employer did not appeal from that decision. However, on December 13,1983, the employer filed, with the law judge, a petition for rehearing stating that one of the office notes in the records of Dr. Knutson, introduced into evidence at the hearing, stated that on June 16,1983, it appeared the claimant no longer had any impairment to his arm and leg. The petition, therefore, requested that the law judge’s opinion be “clarified” to hold that the “claimant no longer has an anatomical disability to his right arm and left leg, but does have an anatomical disability of 15% to the body as a whole.” On the same day the petition for rehearing was filed, the law judge entered an order stating that the petition for rehearing “is hereby denied.”
On January 3, 1984, claimant’s counsel, by letter made a part of the record, requested that the law judge order the employer to pay the full amount due, stating that this amount was $2,835.00, and explaining that the employer was taking credit for the two scheduled injuries previously paid.
On January 6, 1984, the law judge wrote a letter to the employer’s attorney, also made a part of the record, and stated:
A review of my Award entered November 23,1983, clearly indicates that the respondents were ordered and directed to pay Workers’ Compensation benefits at a rate of $126.00 for 22.5 weeks. No credit for previously paid Workers’ Compensation benefits was allowed in that Award. Please advise me if the respondents intend to comply with same.
On January 9, 1984, the employer’s attorney replied to the law judge’s letter and reiterated that they had previously paid permanent partial disability of 10% to the body as a whole, 5% to the right arm, and 5% to the left leg. Therefore, the letter explained, since the doctor had later reported that the claimant no longer had the arm and leg impairments, the employer took the position that the claimant had already been overpaid. Although the record does not reflect a reply letter from the law judge, there is a letter in the record from the employer to the law judge dated January 17, 1984, which refers to the law judge’s letter of January 16 and states “it is clear” that the employer’s previous letter was not accepted by the law judge as an adequate response to his letter ordering the employer to make the payments found due. The letter restated the employer’s position and said that had it been advised in the order denying its rehearing petition that no credit for benefits previously paid was being allowed, it could have appealed but, since that clarification was not made until the law judge’s letter of January 6, 1984, was written, the employer considered that letter to be the final ruling on the petition for rehearing. The letter concludes with a request that the employer be permitted to furnish the law judge with the doctor’s report stating claimant no longer has any permanent disability to the arm and leg.
The law judge then issued an order dated January 20,1984, which stated that the employer had been directed to pay benefits to the claimant for a period of 22.5 weeks at a rate of $126.00 per week, for a total of $2,835.00; that no appeal was taken from that award; that only $472.50 had been paid on it; and that the sum of $2,362.50 was still due. The employer was directed to pay that amount.
The employer filed an appeal from that order on January 26, 1984, and in an opinion issued September 20, 1984, the full Commission held that the appeal was untimely, stating:
We agree with claimant’s attorney that respondents’ appeal is not timely. The decision of the Administrative Law Judge which the Full Commission is actually being asked to review is the decision of November 23, 1983. Absent the filing of a “. . . petition in writing for a review by the Full Commission . . .”, that decision became final upon the expiration of thirty (30) days from the date it was received by respondents. Ark. Stat. Ann. § 81-1325(a). See also, Cooper Industrial Products v. Meadows, 5 Ark. App. 205, 634 S.W.2d 400 (1982).
The Commission noted that the employer had filed a petition for rehearing on December 13, 1983, within thirty days of the decision, but held that this did not extend its appeal time. Citing Cooper Industrial Products v. Meadows, supra, the Commission stated that “there is apparently no rehearing procedure at all before an Administrative Law Judge.” Further, the Commission held: “With respect to the [law judge’s] order of January 20, 1984, from which respondents are attempting to appeal, we hold that that order cannot be used as a vehicle by which to obtain review before the Full Commission of a matter which was, or should have been, decided by the Administrative Law Judge in his November 23,1983, opinion.” Nevertheless, the Commission then remanded the case to the law judge for further consideration of the matter of whether the employer should have been given credit for compensation already paid. The Commission reasoned:
We do have great concern, however, that respondents have never been able to obtain a definitive ruling specifically addressing the issue of whether they are entitled to a credit for the previously paid scheduled injury impairment ratings, which respondents now say no longer exist. This substantive issue deserves development and decision at the Administrative Law Judge level. It involves serious and important questions of fact and law. Therefore, we are going to treat respondents’ notice of appeal filed on January 26, 1984, as a petition for modification of the Administrative Law Judge’s November 23, 1983, award based upon the alleged change in the claimant’s physical condition pursuant to Ark. Stat. Ann. § 81-1326.
Upon remand, the law judge added to the record the correspondence with the parties’ attorneys through March 14, 1985, and a report from Dr. Rex Easter, who had examined claimant at the request of the law judge. Attached to a letter for the employer dated September 25, 1984, was a report from Dr. Richard A. Knutson, dated January 12, 1984, which stated that when the claimant was last seen, on June 16, 1983, he did not appear to have any permanent impairment relative to either the knees or the ulnar palsy [arm], although the report also stated it was not “accurate to dismiss potential future problems secondary to the [claimant’s] gout or superimposed on the patient’s previous knee injury which may yet give him a definitely ratable condition.” Dr. Easter’s report stated he had examined claimant on October 24, 1984, and that claimant was very lucky to have recovered from such a severe burn with no “functional impairment.”
The law judge in an opinion issued May 29,1985, held, as he had before, that the employer was liable to claimant for an additional 18.75 weeks of benefits [22.5 weeks awarded previously minus 3.75 weeks the employer had paid] at a rate of $126.00 per week for a total of $2,362.50. To this was added a penalty of $472.50. Citing Ark. Stat. Ann. § 81-1319(m) (Repl. 1976), which allows credit for advance payments of compensation, he also held that the employer was not entitled to credit for payments previously made for the scheduled injuries to the leg and arm because they were not advance payments of compensation within the meaning of the statute.
On appeal, the full Commission reversed the law judge by an order filed on December 18, 1985. The Commission reasoned as follows:
The Full Commission has already acknowledged that the first appeal before it was untimely. However, we also found that because the Law Judge had failed to address important substantive issues, an order of remand was necessary in order that he do so. In his subsequent opinion the Law Judge specifically found the respondents not entitled to a credit for the 18.75 weeks of scheduled benefits they had already paid. The Law Judge cited in support of his position Ark. Stat. Ann. § 81-1319(m) and found the benefits paid were not “advanced payments of compensation” within the meaning of the statute.
After a de novo review of the record and the evidence contained therein, we must conclude that the Law Judge erred in treating this case as one involving a credit and further erred in failing to find the award to the claimant has been satisfied by the respondents. While admittedly these payments were payments for scheduled injuries, the inescapable fact remains that these were payments of compensation. To hold otherwise, we find, would result in both an unjust and an inequitable situation and would be a disincentive for employers to voluntarily go forward and pay benefits on a claim as was done previous to the hearing in this case.
We find the controlling question in this case is whether or not the respondents have satisfied their obligation to the claimant for permanent partial disability benefits. At no time has the claimant been awarded permanent partial disability benefits in excess of a rating of fifteen percent to the body as a whole. Such a rating equals 67.5 weeks of compensation benefits under any basis of mathematical calculation. The respondents have paid 67.5 weeks of compensation benefits. Since the Administrative Law Judge did not modify the award in such a way as to find the claimant’s permanent partial disability to be in excess of fifteen percent to the body as a whole, there is no justification for holding the respondents liable for an additional 22.5 weeks of benefits.
As we have found the respondents have fully complied with the award set out in the Law Judge’s initial order, we also hold that the penalty imposed upon the respondents is error and must be reversed. (Emphasis in the original.)
Commissioner Farrar dissented.
We find that this decision must be reversed. In simple fact, the Commission’s decision of December 18,1985, has reversed a law judge’s decision made on November 23, 1983, and this has been accomplished despite the fact that the Commission’s order of September 20, 1984, remanding the case to the law judge, acknowledged that the law judge’s decision had not been timely appealed to the Commission. Furthermore, the Commission’s order of remand recognized that there was no procedure for rehearing before a law judge and specifically stated that appeal from denial of a petition for such a rehearing could not be used as a vehicle to obtain review of a law judge’s decision which had not been timely appealed. But, the Commission, by renaming the appeal and calling it a “petition for modification” allowed the employer to do exactly what the Commission said the employer could not do.
The Commission’s order of remand was wrong for two reasons. The Commission said that the notice of appeal was being treated as a petition for modification based “upon an alleged change in the claimant’s physical condition pursuant to Ark. Stat. Ann. § 81-1326.” However, the record clearly shows that there had been no change in the claimant’s physical condition since the law judge’s decision of November 23,1983. Not only had no such change occurred, the employer had never alleged that such a change had occurred after the November 23 decision. Indeed, the alleged change in physical condition was called to the law judge’s attention by the employer at the hearing on September 21,1983. Thus, the employer could not contend that it was entitled to a modification of the law judge’s decision pursuant to Ark. Stat. Ann. § 81 -1326 (Repl. 1976). That section is clearly not involved under the facts of this case, and the Commission erred in remanding to the law judge under the provisions of that statute.
The employer does argue, however, that it was entitled to obtain a “clarification” of the law judge’s decision of November 23, 1983, and when this was done by the law judge’s order of January 20, 1984, a timely appeal was filed from that order. However, in our case of Cooper Industrial Products v. Meadows, 5 Ark. App. 205, 634 S.W.2d 400 (1982), there had not been a timely appeal from the law judge’s decision, appar ently because the law judge had indicated he would reconsider his decision based upon receipt of some clarifying medical information. We said our Workers’ Compensation Law does not provide for rehearing or reconsideration procedures and that the law judge did not have the authority or power to make the assurance that he would reconsider his order, “at least after” the thirty-day appeal period had expired. We have never deviated from that position, although in Smith v. Servomation, 8 Ark. App. 274, 651 S.W.2d 118 (1983), we did explain that this court’s decision in Walker v. J & J Pest Control, 270 Ark. 941, 606 S.W.2d 597 (Ark. App. 1980), held that the Commission had authority to consider a motion for rehearing that was filed within the thirty-day period for appeal.
In the present case, the employer did file a petition for rehearing within thirty days of the law judge’s decision of November 23, 1983. But that petition was denied on December 13,1983, and no appeal was filed within thirty days of that date. Our decision that no timely appeal was filed in this case is not changed by the fact that the law judge subsequently, at the claimant’s request, filed an order, from which an appeal was filed within thirty days, directing the employer to pay the amount found due by the law judge’s original decision. The full Commission recognized, in its September 20,1984, order of remand that it was “actually being asked to review” the law judge’s decision of November 23, 1983, and we agree. The Commission, however, erred in remanding the matter to the law judge as there was no timely appeal from the law judge’s decision of November 23, 1983, or from his denial of the petition for rehearing of that decision.
In the Cooper Industrial Products v. Meadows case, supra, the employee argued that we should take a more liberal view on the timely appeal matter. We declined to do so because the time for appeal was a legislative matter. We also rejected the theory upon which the Commission had remanded to the law judge in that case. The Commission had applied an estoppel theory because it said the evidence showed that the employee would have filed a timely appeal if the law judge had not indicated that he would reconsider his award upon receipt of clarifying medical information. Although we expressed “great sympathy” for the employee, we said the law judge and the Commission lost jurisdiction after the employee failed to file an appeal within thirty days after the law judge’s original decision was filed. We rejected a similar argument made by the employee in Smith v. Servomation, supra. In the present case, it is the employer who wants relief from the failure to file a timely appeal. We must, however, reject this request also.
The employer also argues that the claimant cannot appeal from the Commission’s last decision, filed on December 18,1985, because he failed to appeal from the Commission’s remand to the law judge entered on September 20, 1984. It is sufficient to say that we do not think the Commission’s remand order of September 20, 1984, was an appealable order. Therefore, it was perfectly proper for the claimant to raise that issue in his appeal from the Commission’s decision of December 18, 1985. The Cooper Industrial Products v. Meadows case, supra, aptly demonstrates this point. That was the second appeal of that case. In the first appeal, Cooper Industrial Products v. Meadows, 269 Ark. 966, 601 S.W.2d 275 (Ark. App. 1980), the employer attempted to appeal from the Commission’s remand to the law judge, made for the purpose of taking additional evidence. This court said the remand order was not a final order, and hence not appealable. Then in the second appeal to this court, we reviewed the question of whether the law judge had the authority to consider the additional evidence and to amend his original order which had not been timely appealed, and we held that the law judge did not have such authority.
It is the general rule that orders of remand are not final, appealable orders. Floyd v. Ark. State Board of Pharmacy, 248 Ark. 459, 451 S.W.2d 874 (1970) (remand by circuit court for Board to reduce its findings to writing); Nolan Lumber Co. v. Manning, 241 Ark. 422, 407 S.W.2d 937 (1966) (remand by circuit court to Workers’ Compensation Commission for “further development”); Chandler Trailer Convoy v. Henson, 266 Ark. 760, 585 S.W.2d 370 (Ark. App. 1979) (remand by circuit court to Workers’ Compensation Commission for the purpose of taking the testimony of a certain witness and “development of any further evidence to determine” whether the employee was within his scope of employment when he suffered a fatal heart attack). The employer in this present case argues, however, that the mere fact that a remand is ordered does not mean there is no appealable order if there is a ruling on the merits prior to making the remand. The case of Bibler Brothers, Inc. v. Ingram, 266 Ark. 969, 587 S.W.2d 841 (Ark. App. 1979), is cited in support of this position. But in that case the circuit court found that the claimant’s healing period had not ended, reversed the award of 30% permanent partial disability made by the Workers’ Compensation Commission, and found that the claimant could be further healed by entering a therapeutic work program “which the court had personally investigated and found to be available and suitable.” The appellate court did reverse the circuit court and order it to reinstate the Commission’s decision since the rule that an order of remand is not a final and reviewable order was not applicable because:
In this case, the Commission order has been reversed and the Commission has no latitude to make further determination of the crucial question whether the healing period has ended. The court substituted its own factual determination and legal conclusion, and that is a final order.
266 Ark. at 973-74.
However, this is not the situation in the instant case. Here, the Commission’s remand of September 20, 1984, was not a final, appealable order. It was a remand for “clarification” or for “modification” of the law judge’s decision. No final order was involved. The final order in this case is the one made by the full Commission on December 18, 1985. We are today reviewing that order and it is reversed because we hold the Commission erred in remanding this matter to the law judge on September 20, 1984, and because there was no timely appeal from the law judge’s decision of November 23,1983, or from his December 13, 1983, denial of the employer’s petition for rehearing of the November 23 decision. The timely filing of a notice of appeal is jurisdictional and should be raised by the court even if the parties do not raise it. LaRue v. LaRue, 268 Ark. 86, 593 S.W.2d 185 (1980). Here, however, the question was raised before the full Commission in its first hearing which resulted in its September 20,1984, decision to remand, and again in the last hearing before the full Commission which resulted in its December 18, 1985, order now before this court.
Therefore, we reverse the Commission’s order of December 18, 1985, and remand this matter to the Commission with directions to reinstate the law judge’s opinion of November 23, 1983, in which he directed the employer to pay the claimant “Workers’ Compensation benefits at a rate of $126.00 for 22.5 weeks which represents the additional five percent (5%) permanent partial disability herein awarded,” and which also directed the employer to pay “to the claimant’s attorney the maximum attorney’s fee as allowed by the Arkansas Law on this Award.” Before the remand, the law judge held, in his order of January 20, 1984, that the employer had paid $472.50 on the award of November 23,1983, and we hold that the employer does not have to pay that amount twice. Whether the award of January 20, 1984, in fact had been paid was not foreclosed by the failure to appeal from that award, but whether the award had to be paid was foreclosed by the failure to appeal from the law judge’s decision making that award.
Reversed and remanded.
Cloninger and Corbin, JJ., agree. | [
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Donald L. Corbin, Judge.
Appellants, Security Insurance Corporation of Hartford d/b/a Fire and Casualty of Connecticut, and Reynolds Insurance Agency, Inc., appeal a jury verdict in the amount of $35,455.19 in favor of appellee, Johnny C. Henley. This lawsuit was tried on the basis of appellants’ alleged breach of an oral agreement to insure appellee’s Mack truck for physical damages and lost profits plus a statutory twelve percent penalty and attorney’s fees. We reverse and remand.
In August of 1983, appellee Henley contacted the Frank/ Watson Agency in Dumas, Arkansas, to obtain insurance for a Mack truck. The Frank/Watson Agency placed a request for coverage on the truck through appellant Reynolds Insurance Agency, Inc., a licensed agent for appellant Security Insurance Corporation of Hartford, and later forwarded a written application which contained a signature that appellee admitted looked like his signature. At this time there was an existing policy with appellant Security Insurance Corporation of Hartford which covered an International truck owned by appellee and used in his hauling business. On August 11, 1983, the Mack truck was damaged in a single vehicle accident. The damage was evaluated by Crawford and Company, an appraiser appointed by appellant Security Insurance Corporation of Hartford. Appellant Security Insurance Corporation of Hartford’s check was subsequently issued to appellee for the physical damage to the Mack truck but the check was never negotiated by appellee. After appellee claimed to have discovered additional physical damage to the Mack truck, and upon obtaining an appraisal, appellant Security Insurance Corporation of Hartford offered to pay the appraised amount of the damage but would not pay the claim for lost profits. Appellee declined the offer and this lawsuit was instituted.
Appellants contend that appellee produced no proof of authority to bind appellants to an alleged oral contract to insure for loss of use, and the trial court erred in its refusal to direct a verdict for appellants. Pursuant to ARCP Rule 50(a), appellants moved for a directed verdict at the close of appellee’s evidence as well as at the close of all of the evidence, which motions the trial court denied.
Appellee testified that he went to the Frank/Watson Agency to obtain insurance on his Mack truck. He stated he dealt with Millie Rhodes Corker, an employee of the Frank/Watson Agency. He informed Ms. Corker that he wanted $500,000 worth of liability. He was asked about the value of his truck which he stated was $13,500, and testified that he told Ms. Corker he wanted to be insured for everything, including down time. He wrote a check for $350 for the down payment. He also testified that he was never told by a company representative nor led to believe that he was not protected for down time.
Millie Rhodes Corker of the Frank/Watson Agency testified that she knew appellee and recalled his coming in and requesting coverage on an additional truck. She stated that she supplied John Reynolds of Reynolds Insurance Agency, Inc., in Little Rock with the information provided by appellee. Ms. Corker identified a document entitled “Truck Application” dated August 8, 1983. She stated that she made sure when appellee signed the application that she had applied for all of the coverage appellee desired. She testified that she did not recall that appellee asked her to get coverage for loss of use on the Mack truck.
John Reynolds of Reynolds Insurance Agency, Inc., testified that he was an insurance agent and had been in the insurance business for approximately thirty years. He noted that most of his business consisted of truck insurance. He was the general agent for appellant Security Insurance Corporation of Hartford and was the agent through whom the Frank/Watson Agency acquired insurance for appellee. He reviewed the policy covering appellee’s International truck and stated that there was not a loss of use provision in the policy. Reynolds noted that if Ms. Corker of the Frank/Watson Agency had been told that appellee wanted the down time coverage or loss of use coverage and had indicated to him that it was desired, it should have appeared on the application. The coverage, however, was not requested on the application and appellee did not deny that it was signed by him.
Reynolds also testified that he had been contacted by the Frank/Watson Agency with a request to add a Mack truck to appellee’s policy. He received the premium and notified appellant Security Insurance Corporation of Hartford. Reynolds stated that when he called the request in to appellant Security Insurance Corporation of Hartford, the Mack truck was immediately covered. He explained that the coverage on appellee’s Mack truck was based upon the application inasmuch as the truck was wrecked within hours of his binding the coverage, noting that it was not necessary to add a written endorsement in order to afford coverage. Reynolds testified that if the Frank/Watson Agency told appellee he had loss of use coverage, such a statement could not have bound appellant Security Insurance Corporation of Hartford. He explained that there was no such thing as loss of use coverage on that type of policy. Reynolds stated that the Frank/ Watson Agency was not an agent of the insurance company with binding authority, but rather appellee’s agent.
Certified copies of the agent record cards from the Arkansas Insurance Department were received into evidence which contained the names of the insurers for which the Frank/Watson Agency was licensed to act as agent. The cards established that it held no appointments as agent for either of the appellants.
David R. Newbert, the Midwest Division Claims Manager for appellant Security Insurance Corporation of Hartford, testified that he had never heard of the company’s writing loss of use coverage for a vehicle.
The trial court has a duty, when requested to grant a motion for directed verdict, to consider whether the evidence against whom the motion is made, when given its strongest probative force, presents a prima facie case; however, if the evidence viewed in that light would require the setting aside of a jury verdict for the party against whom the motion is made, it is error to refuse to grant the motion for directed verdict. See Henley’s Wholesale Meats, Inc. v. Walt Bennett Ford, Inc., 4 Ark. App. 362, 631 S.W.2d 316 (1982).
It is well settled law that the insured or beneficiary of an insurance policy has the burden of proving coverage. Snow v. Travelers Insurance Co., 12 Ark. App. 240, 674 S.W.2d 943 (1984). Arkansas is one of the states that makes the distinction between the authority of general agents and special agents of insurance companies. A general agent is one who has authority to transact all business of the company of a particular kind and whose powers are prima facie coextensive to the business entrusted to his care. Commercial Standard Insurance Co. v. Moore, 237 Ark. 845, 376 S.W.2d 675 (1964). On the other hand, our courts have consistently and repeatedly held that a soliciting agent does not have authority to make contracts on behalf of the insurer. American National Insurance Co. v. Laird, 228 Ark. 812, 311 S.W.2d 313 (1958). Notice to a soliciting agent is not notice to the company. A soliciting agent has no authority to waive any of the policy requirements, nor can his knowledge be imputed to the company he represents. Continental Insurance Companies v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978). The burden is on the plaintiff to prove that such an agent has real or apparent authority to bind his principal by contract. American National Insurance Co. v. Laird, supra. Arkansas follows the general rule that terms of an oral agreement to insure will be enforced if made by a general agent, or on behalf of the company by one acting within the scope of his actual or apparent authority. National Automobile Insurance Co. v. Dalton, 214 Ark. 120, 214 S.W.2d 507 (1948).
In the case at bar we do not think there is any substantial evidence from which the jury could find that Ms. Corker or the Frank/Watson Agency was clothed with any authority beyond that ordinarily exercised by a soliciting agent. Appellee’s contention that the Frank/Watson Agency acted as a general agent by collecting his premium is without merit inasmuch as the collection of premiums is one of a soliciting agent’s ordinary duties. American National Insurance Co. v. Laird, supra. Appellee also argues that the conduct of appellants was of a character that justified the reasonable belief on his part that the Frank/Watson Agency was a general agent. In this respect, he relies upon the fact that he had previously secured coverage on his International truck through the Frank/Watson Agency and that the insurance company actually recognized coverage on the Mack truck by issuing its check to pay the physical damage on that truck. However, we do not find any substantial evidence to support a finding by the jury that either the Reynolds Insurance Agency or Security Insurance Corporation of Hartford ever agreed to insure the Mack truck for loss of use. In fact, appellants adduced evidence establishing that the company did not write insurance for loss of use coverage. Accordingly, since there is no substantial evidence that the Frank/Watson Agency was a general agent and no substantial evidence that either of the appellants agreed to insure the Mack truck for loss of use, the trial court erred in its refusal to direct a verdict against appellee on that issue. In view of our disposition of this issue, we do not find it necessary to address appellants’ arguments that (1) appellee failed to prove the essential terms of an alleged oral contract; and (2) appellee’s evidence of lost profits was entirely speculative.
Since we must remknd this case for another trial to determine the extent of physical damages to the Mack truck, we will address an evidentiary issue raised by appellants which is likely to arise on retrial. Appellants argue that the trial court erred in admitting appellee’s invoices and repair estimates into evidence to establish the amount of physical damage. An invoice and two repair estimates were admitted over appellants’ objection on the basis that they constituted inadmissible hearsay, that appellee had failed to establish a proper foundation and the evidence was irrelevant. These exhibits were introduced through the testimony of appellee, not by the persons who prepared or issued them. Appellants contend these exhibits constitute inadmissible hearsay and rely upon the supreme court’s holding in Home Mutual Fire Insurance Co. v. Hagar, 242 Ark. 693, 415 S.W.2d 65 (1967). The court there held that an estimate of repairs offered by the plaintiff as proof of his damages was inadmissible hearsay in the absence of the testimony of the author. We agree with appellants’ argument and hold that the admission of these exhibits was prejudicial and constitutes reversible error. See Wallin v. Insurance Co. of North America, 268 Ark. 847, 596 S.W.2d 716 (Ark. App. 1980).
Finally, appellants argue that the trial court erred in assessing a statutory twelve percent penalty and attorney’s fee and that the attorney’s fee awarded was excessive. It is well settled in Arkansas that in order for an insured to be entitled to a twelve percent penalty and attorney’s fees pursuant to Ark. Stat. Ann. § 66-3238 (Repl. 1980), the plaintiff must recover the exact amount claimed. Cato v. Arkansas Municipal League Municipal Health Benefit Fund, 285 Ark. 419, 688 S.W.2d 720 (1985). In the instant case, the record reflects that appellee prayed for an award of $15,573.54 in compensatory damages and $47,200 for lost work time in his complaint. In view of our holding that appellee cannot recover for loss of use, the statutory twelve percent penalty and the trial court’s allowance of attorney’s fees must be reversed also. Of course, we do not know what amount appellee may seek to recover in a new trial, but if he seeks an amount that is contested and recovers the amount sought, the penalty and attorney’s fees should be allowed. This is true inasmuch as the trial court may permit amendments to the pleadings for the second trial. See American National Insurance Co. v. Laird, supra, Stacker v. Hartford Accident & Indemnity Co., 222 Ark. 268, 258 S.W.2d 544 (1953).
Reversed and remanded.
Cracraft, C.J., and Mayfield, J., agree. | [
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Ernie E. Wright, Special Judge.
This is a multi-claimant appeal from the Board of Review. The Board, reversing the Appeal Tribunal decision, found that appellants left their employment by reason of a labor dispute, and denied them benefits under Ark. Stat. Ann. § 81-1105(f) (Repl. 1976). For reversal, appellants contend that the Board’s decision is against the weight of the evidence and contrary to the law. We disagree and affirm.
Appellants are members of the United Paperworkers’ International Union, Local 844. In August 1982, the union and the employer entered into a labor agreement to be in effect through July 31, 1985. Section 18 of the agreement provides:
At any time after the anniversary date, if no agreement on the questions at issue has been reached, either party may give written notice to the other party of intent to terminate the agreement in ten (10) days. All the provisions of the agreement shall remain in force and effect until the specified time has elapsed. During the period attempts to reach an agreement shall be continued.
By August 1,1985, negotiations between the union and the employer for a new agreement were at a standstill. On that day, the employer made its final offer to the union, and on August 9, the employer gave the union its ten days notice for termination of the agreement. The union gave its ten days notice to the employer on August 12 to terminate the labor agreement.
The testimony is conflicting as to the events of August 22, 1985. Edgar Lewis, the plant manager, testified that on the morning of August 22, he met with Lindell Hale, the local union president. He stated that he was confused by the union’s notice of August 12, and he wanted clarification of it. Lewis testified that Hale stated that “at 3:00, we’re going on strike.” Lewis also testified that during negotiations, statements were made to the effect that “this was not going to be fun and games . . .,” and he thought that meant violence. Lewis testified that, in light of these statements, the company decided to let the workers go home early.
At 1:00 p.m. on August 22, the employees were called to a meeting, and Lewis read a statement that the union had given notice of intent to terminate the contract at 3:00 p.m., that the company chose to end the shift ending at 3:00 p.m. at the time of the meeting, that the action was not a lockout, and that the employees would be paid for the remainder of the shift.
Mr. McFalls, international representative for the union and the local bargaining agent, testified that when he arrived at the plant at about 2:00 p.m. the workers were outside the plant, and that the gates were locked and workers had been told they could not go in. He further testified that the employer had stated that union members would have to resign their union membership before they could return to work.
Lewis testified the gates were not locked, and that guards had been posted, not to keep workers out, but to protect the property from any violence. Lewis stated that union members were not required to resign their membership before returning to work. He stated that workers who had inquired about returning were told that they could work, but they could be subject to a fine or punishment from the union for crossing the picket line.
McFalls testified that, at the time the union issued its ten days notice to the employer, it meant that if, at the end of that period, there was no agreement, “we would be on strike:” It is undisputed that the union did began striking at about 3:00 p.m. on August 22.
Ark. Stat. Ann. § 81-1105(f) (Repl. 1976) provides, in pertinent part:
If so found by the Director no individual may serve a waiting period or be paid benefits for the duration of any period of unemployment if he lost his employment or has left his employment by reason of a labor dispute other than a lockout at the factory, establishment, or other premises at which he was employed . . .
On appeal, the findings of the Board of Review are deemed conclusive if they are supported by substantial evidence. Ark. Stat. Ann. § 81-1107(d)(7) (Repl. 1976); Feaginv. Everett, 9 Ark. App. 59, 652 S.W.2d 839 (1983). The scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. We may not substitute our findings for those of the Board even though we might have reached a different conclusion had we made the original determination upon the same evidence. Shipley Baking Co. v. Stiles, 17 Ark. App. 72, 703 S.W.2d 465 (1986). Therefore, at issue before us is not whether the decision of the Board of Review is against the weight of the evidence but whether there is substantial evidence to support the Board’s finding that claimants left their employment because of a labor dispute and not a lockout.
The term “lockout” is not defined in the statute, nor do we find a definition in our cases. Black’s Law Dictionary 848 (rev. 5th ed. 1979) defines “lockout” as “cessation of furnishing of work to employees or withholding work from them in effort to get for employer more desirable terms. . . .” We conclude this is the meaning to be ascribed to the word as used in the statute.
In the instant case, we believe there is substantial evidence to support the Board’s decision. Lewis met with the local president on the morning of August 22, and he was told that absent an agreement, there would be a strike that afternoon. They discussed ground rules for the strike, and health insurance coverage for union members during the strike. The statement Lewis read during the 1:00 p.m. meeting with the workers specified that the employer was not staging a lockout. Although the testimony conflicted, there was evidence presented that the gates were not locked, and work was available for members who wanted to work. The workers were advised that there could be repercussions from the union if they crossed the picket line, but they were not denied work.
Appellants argue that we should give greater weight to the decision of the Appeal Tribunal referee who actually conducted the hearing, rather than to the Board, which made its decision based on the written record. We dispose of this argument by simply restating the familiar rule that the credibility of witnesses and the weight to be accorded their testimony are matters to be resolved by the Board of Review. Grigsby v. Everett, 8 Ark. App. 188, 649 S.W.2d 404 (1983).
Affirmed.
Cooper and Cloninger, JJ., agree. | [
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Melvin Mayfield, Judge.
The appellant was convicted of selling a controlled substance, cocaine, and sentenced to ten years in the Arkansas Department of Correction. The case was tried twice, with the first trial resulting in a hung jury. We set out the following factual summary taken from the combined evidence of both trials.
During the summer and fall of 1983, undercover operations were conducted by the Arkansas State Police with regard to narcotic traffic in Crittenden County, Arkansas. The investigation was made in cooperation with the West Memphis Police Department. During the investigation, an individual was arrested who provided information and assisted in the investigation of another individual named Troy Powers. As a result, Powers and his girlfriend, who later became his wife, were arrested and charged with the sale of marijuana.
Powers agreed to become a confidential informer and there is testimony that he was “developed” by Officer Carter of the West Memphis Police Department and later “passed” to John Brackin, who was a criminal investigator with the Arkansas State Police. In August of 1983, at Brackin’s direction, Powers purchased cocaine from an individual named Gene Guin. The following day, Powers had a conversation with the appellant in the Crittenden County Courthouse and was told that appellant knew he had purchased the cocaine from Guin. Powers told Trooper Brackin about this conversation and there is evidence that about this point in time the investigation of the officers had begun to focus on one Larry Rogers.
After the conversation between appellant and Troy Powers, whom appellant had known for many years, Powers began to build upon his relationship with appellant. Powers told appellant that he was being pursued by the internal revenue department and his ex-wife for money, that he was in bad financial shape, had a heart condition, and was trying to get a construction contract that could literally make or break him. He told the appellant that in order to cinch the construction contract he had to get some cocaine to give to the person in charge of approving the contract. Eventually, the appellant agreed to provide cocaine for Powers and his business associate, who was, in fact, Sergeant Larry Gleghorn of the Arkansas State Police, and the exchange of cocaine was made on September 2, 1983.
On October 5,1983, the appellant received a telephone call from Lt. Jim Presley of the West Memphis Police Department requesting that he come to the police department to look at some property. This was admittedly a ruse and when the appellant arrived he was greeted by Lt. Presley, Trooper Brackin, and Officer Stevens of the Crittenden County Sheriff’s Office and appellant was requested to sit down and view a video tape of the transaction of September 2, 1983.
Following the playing of the tape, appellant was informed that if he cooperated he (according to his version) would not be prosecuted but otherwise he would get 40 years to life. Appellant testified that he inquired about an attorney but was dissuaded from seeking legal advice and that he cooperated at that time with the police to the extent that he made a telephone call to Larry Rogers and arranged a narcotic purchase from him. The appellant also testified that he was allowed to leave with instructions to come back the next day to follow up, on the transaction and that night he talked to an attorney and was told that immunity could not be arranged by the police officers but would have to be arranged by the prosecuting attorney. So, the next day, according to appellant, he notified Sergeant Presley that he wanted an attorney to discuss with the police officers the offer of immunity and to advise him of his rights in that regard. The appellant testified that Presley advised him that a certain West Memphis attorney could be arranged for him if he would come to the police headquarters but, since this attorney was not familiar to the appellant, this offer was declined. Appellant said that he suggested another attorney but Presley said he would be arrested if he did not come to the police headquarters immediately. Appellant did not go to the police headquarters and he was subsequently arrested, tried, and convicted.
Appellant’s main defense was entrapment. However, during the second trial the court would not allow appellant to introduce evidence of events that occurred after the transaction on September 2, 1983, when he sold the cocaine to the undercover agent, Sergeant Gleghorn. It was the appellant’s contention that events after the September 2 transaction were admissible to show the entire scheme of things. He contended that this evidence would help establish his defense of entrapment by showing that the law enforcement officers desired to have him help them catch “bigger fish,” to wit, Larry Rogers, and when he refused to help them in this regard, he was prosecuted for the September 2 transaction. The trial court explained that he had admitted the evidence in the first trial but was now convinced that it was not proper. As a result of the court’s ruling, it was agreed that the evidence of the first trial relating to the events that occurred after September 2,1983, which the appellant desired to proffer as proof on the issue of entrapment, could be made a part of the record.
We think this evidence was admissible and that the trial court erred in refusing to allow it to be introduced at the second trial. Ark. Stat. Ann. § 41-209 (Repl. 1977) provides as follows:
(1) It is an affirmative defense that the defendant was entrapped into committing an offense.
(2) Entrapment occurs when a law enforcement officer or any person acting in cooperation with him, induces the commission of an offense by using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute an entrapment.
In Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978), the court said that under the provisions of the above statute:
Primary importance is accorded to the conduct of a law enforcement officer, or the person acting in cooperation with him. . . . Any evidence having any tendency to make the existence of entrapment more probable is admissible. . . . The accused should be allowed a reasonable latitude in presenting whatever facts and circumstances he claims constitute an entrapment, subject to ordinary rules of admissibility.
264 Ark. at 92.
In the instant case, although the court did admit testimony by Officer Carter and Trooper Brackin that the decision to “induce” appellant to provide cocaine for the undercover man was the product of a joint discussion between them and Powers, the court’s ruling excluded evidence from which the jury could find that after the police officers video taped the September 2, 1983, sale they called the appellant to come view that taped occurrence and that they then suggested that he cooperate with them to help them catch “bigger fish” and that his failure to so cooperate would get him 40 years, but if he did cooperate, he would not be prosecuted. The court’s ruling also eliminated the testimony, given in the first trial by Trooper John Brackin, that on October 5,1983, when the appellant was called to view the taped occurrence of September 2, Brackin wanted the appellant to arrange a purchase from Rogers because Gene Guin had left the jurisdiction, and that a case was not made against Rogers until after the arrangements with the appellant fell through on October 5,1983, and they finally found Guin and got him to make a purchase from Rogers. All of the above evidence, we believe, was admissible on the appellant’s defense of entrapment.
The trial court was very generous in allowing the appellant to make a proffer of proof of all the testimony in the first trial that appellant thought was admissible on his defense of entrapment, and we do not hold that all of the evidence of events that occurred after September 2,1983, are necessarily admissible on retrial. We do hold, however, that the trial court unduly limited the appellant’s evidence on his entrapment defense by refusing to let him show any evidence of events that occurred after September 2, 1983. In this connection, we call attention to the commentary to Ark. Stat. Ann.. § 41 -209, supra, which states that the statute attributes more importance to the conduct of the law enforcement officer than to any predisposition of the defendant and that the obvious purpose is to discourage governmental activity that might induce innocent persons to engage in criminal conduct. Here, the thrust of the appellant’s defense of entrapment is that the police have selected him, and caused an informant of theirs to persuade him to sell the informant cocaine in violation of the law, so that he can be used by the police, under threat of prosecution, to make purchases from “bigger fish” that the police are after. The jury is entitled to hear this evidence in considering the issue of whether appellant has been entrapped.
The appellant also contends that the trial court should have granted his motion for directed verdict made at the conclusion of the State’s evidence in the first trial. Apparently, he would have us reverse and dismiss the charges against him, even after the second trial, because he was entitled to that relief in the first trial. Suffice it to say, we are cited no authority for this novel contention and, in addition, we do not agree that he was entitled to that relief in the first trial. Appellant’s argument is based upon the contention that his defense of entrapment was established as a matter of law. Entrapment, however, is ordinarily a fact question, Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983), and we think the evidence in the first trial presented a factual question on that issue.
It is also argued that members of the city police department, the county sheriffs office, and the state police department promised that the charges against appellant would be dismissed if he cooperated in helping them to catch “bigger fish” who were engaged in narcotic traffic in Crittenden County and that it would be unconscionable not to enforce the agreement made. Cooper v. U.S., 594 F.2d 12 (4th Cir. 1979), and cases from the states of Iowa, Washington and Maryland are cited in support of this proposition. In Hammers v. State, 263 Ark. 378, 565 S.W.2d 406 (1978), the Arkansas Supreme Court reversed a conviction and dismissed the charge when it held the record established that the defendant in that case had an agreement with the State for immunity from prosecution. But, in the instant case, the record does not establish that the appellant had an agreement that he would not be prosecuted if he cooperated with the police. To the contrary, the law enforcement officers testified that they made no such promise. There is authority that “the police in their own right do not have authority to commit the state to anything by way of declining to prosecute,” Butler v. State, 462 A.2d 1230, 1233 (Md. Ct. Spec. App. 1983), but in any event, whether such an agreement has been made is a question of fact. We cannot say the trial court’s decision on that point was “clearly against the preponderance of the evidence.” See Hammers v. State, 261 Ark. 585, 603, 550 S.W.2d 432 (1977) (the remand which gave rise to the second opinion in Hammers v. State, 263 Ark. 378, 565 S.W.2d 406, supra).
Another contention is that the prosecutor made improper and prejudicial remarks to the jury during closing argument; however, there was no objection to these remarks at the time and the point cannot be raised for the first time on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
The appellant also argues that a video tape of a meeting between Powers and appellant on August 24, 1983, was inadmissible in the State’s case in chief because its only relevance was to show predisposition to sell a controlled substance and this evidence would only be admissible in rebuttal to appellant’s defense of entrapment. We do not agree. Unlike the case of Spears v. State, supra, relied upon by appellant for this point, in the instant case, there was evidence of entrapment in the State’s evidence in chief, therefore, evidence of predisposition was also admissible during the presentation of the State’s case in chief.
Appellant’s last two points for reversal deal with the trial court’s refusal to grant him a continuance of the second trial, and the refusal to grant his motion for mistrial because a potential juror indicated during voir dire that he had a preconceived opinion about the case. Since neither matter is likely to arise again on retrial, we see no reason to discuss these points. For the error in refusing to admit the evidence which we have discussed, this case is reversed and remanded for a new trial.
Wright, Special Judge, agrees.
Glaze, J., not participating. | [
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James R. Cooper, Judge.
The appellant, widow of John Hammons, brings this appeal from summary judgment granted the appellee in the Sebastian County Circuit Court. The appellant claims that the trial court erred in determining that Oklahoma law controlled in this case and in granting summary judgment based on that finding. We think the trial judge was correct and therefore we affirm.
The facts are not in material dispute. John Hammons, a long-time employee of Griffin Grocery Company and resident of Fort Smith, Arkansas, died on an Oklahoma interstate highway in January of 1984 of a heart attack, after the truck he was driving for his employer jackknifed on icy roads during frigid weather. Hammons had suffered a heart attack about a year previously, but returned to work after a recuperating period. The appellant claims the stress of the accident and sudden exposure to cold weather caused the heart attack. The appellee claims the heart attack was a result of a pre-existing bodily infirmity, and Oklahoma law bars recovery. The appellee paid life insurance benefits to the appellant as a result of the death but refused to pay an additional amount pursuant to the accidental death provisions of the policy. This suit followed.
It is undisputed that Griffin Grocery Company, an Oklahoma corporation, contracted with the appellee in Tulsa, Oklahoma, for the undisputed insurance policy. It is also undisputed that all premiums were paid by Griffin Grocery Company and that the only dealings between the appellee and the appellant’s decedent involved annual mailings from the appellee to the decedent certifying the terms of the insurance policy. The parties agree that, under Arkansas law, the appellee would not be entitled to summary judgment. The appellant claims that, even under Oklahoma law, summary judgment would not be appropriate.
Under Oklahoma law, the insurance contract alone is the measure of liability. Minyen v. American Home Insurance Company, 443 F.2d 788 (10th Cir. 1971). Here, the policy provided that all the following conditions must be met in order to entitle the employee to the accidental death benefit: (1) the employee sustained an accidental injury while a covered individual; (2) the injury, directly and independently of all other causes, resulted in the loss; (3) the loss occurred within ninety days after the injury was sustained. Therefore, under Oklahoma law, no coverage is provided if Hammons’ death was caused at least in part from a bodily infirmity. See Minyen, supra.
“It is well settled in this State that the nature, validity and interpretation of contracts are to be governed by the law of the place where they are made. . . .” Lawler v. Lawler, 107 Ark. 70, 73, 153 S.W. 1113, 1114 (1913); see also R. Leflar, American Conflicts Law, Sec. 153 (3d Ed. 1977). It is clear from the record that the insurance contract in issue was made in Oklahoma and that all significant events in connection with it occurred in that state. Accordingly, the conclusion of the trial judge that the law of Oklahoma governed was not against the clear preponderance of evidence and is affirmed.
Summary judgment is an extreme remedy and should only be granted when it is clear that there is no question of fact in issue. Johnson v. Stuckey & Speer, Inc., 11 Ark. App. 33, 665 S.W.2d 904 (1984). Based upon the supporting documents attached to the affidavits of the parties in this case, it is clear that there is no question but that the unfortunate death was caused at least in part from bodily infirmity or the concurrence of his heart condition with an accidental injury, if there were any such injury. Since Oklahoma law absolutely bars recovery in cases such as this, the trial judge was correct in granting summary judgment.
Affirmed.
Cloninger and Mayfield, JJ., agree. | [
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George K. Cracraft, Chief Judge.
Bridgette Ann Kennedy Van Nostrand appeals from an order of the chancery court enlarging the visitation rights of Jerry Millard Kennedy with their minor child. She contends that the order was an unauthorized change of permanent custody. We agree.
Jerry Millard Kennedy and Bridgette Ann Kennedy were divorced in 1981 by a decree which awarded permanent custody of a five-month-old child to its mother with defined reasonable visitation in the father. The custodial order was modified by agreement twice in 1982. By an order dated December 14,1982, permanent custody of the child was placed in the mother subject to the father’s visitation on alternate weekends and during a six-week period during the summer. The father was ordered to pay $30.00 per week for support of the child.
In April of 1985 the father filed a petition seeking a change of permanent custody based on allegations of material changes in circumstances which affected the best interest of the child. After a hearing on that petition the chancellor expressly found that there had been no such material change in circumstances as would warrant a change in custody but that the child’s best interest required an enlargement of the father’s visitation to Monday through Friday for three weeks plus one weekend each month. The mother’s period of custody was reduced to Monday through Friday one week per month and three weekends per month.
There was no evidence that the mother was not adequately tending to the child’s physical and emotional needs or that her home was not stable and financially secure. Both parties agreed that the mother’s arrangements for the child’s kindergarten and day care were satisfactory and that the child was well cared for while in her custody. There was evidence that the appellee had remarried and divorced twice since 1981, that he had slept with women in his home while the child was present and permitted others to do so. The appellee asserted that due to his vastly improved financial condition he was able to hire additional employees, work less himself, and therefore spend more time with the child than the mother was presently able to spend.
The appellant brings this appeal relying on our well-settled rule that a change of custody cannot be ordered unless there had first been established a material change in the circumstances which affects the child’s best interest or a showing of facts affecting that best interest which were not presented to or known by the court at the time the custodial custody order was entered. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 111 (1986); Greening v. Newman, 6 Ark. App. 261, 640 S.W.2d 463 (1982); Harris v. Tarvin, 246 Ark. 690, 439 S.W.2d 653 (1969). She argues that the court’s order is in fact a change in permanent custody contrary to our announced rule rather than a mere modification of visitation rights. The appellee does not contend that the chancellor’s finding that there was not such a material change affecting the interest of the child which would warrant a change in custody was erroneous. He contends that the court was merely exercising its discretion to make such adjustments in visitation as recent circumstances may have indicated. Robbins v. Robbins, 231 Ark. 184, 328 S.W.2d 498 (1959); Myers v. Myers, 226 Ark. 632, 294 S.W.2d 67 (1956). The narrow issue for us to decide is whether the order appealed from constitutes an impermissible change of permanent custody or a mere clarification or modification of visitation rights.
We agree with the statement of the Texas court in Leaberton v. Leaberton, 417 S.W.2d 82 (Tex. Civ. App. 1967), that it is as impossible to draw an exact line marking a change from one color to another in a rainbow as it is to draw an exact line marking the change from visitation to a modification of custody in cases involving children. There is a time, however, when the difference is apparent and must be recognized. We shall not attempt to point out the exact dividing line distinguishing the two but have no doubt that this case involves a change in permanent custody and not a mere change in visitation privileges regardless of the terminology used in the order.
Nor can we conclude that the finding that the welfare of the child would be served by increasing the appellee’s visitation is well founded. The main thrust of appellee’s testimony was that he had recently made such an advantageous contract with the Little Rock Air Force Base that he was now able to hire others to do much of the work he once did. This he testified would permit him to spend more time with the child in the afternoons than the mother now does. The mother was working at two jobs to supplement the $30.00 per week the father contributed to the child’s support. There was no criticism of the kindergarten and day care she provided for the child at her church. If it was deemed better for the child not to be in a day care, which no one contended, that result could as readily have been obtained by ordering an increase in child support in lieu of hiring the additional workers at the father’s place of business.
In view of the evidence and the chancellor’s finding that there had been no material change in circumstances warranting a change in custody, we hold that the order of the court was an unauthorized change of custody which should be reversed.
Reversed.
Glaze and Mayfield, JJ., agree. | [
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John E. Jennings, Judge.
This suit was brought by First National Bank of Conway, the appellee here, against Ted Akin, appellant here, and William Yarbrough to foreclose a mortgage on a home in Guy, Arkansas. The lawsuit also sought reformation of a guaranty executed by Akin and a note to the bank executed by Yarbrough. Yarbrough failed to answer the bank’s complaint. The chancellor reformed both the guaranty and the note, and awarded judgment to the bank as against Akin.
On appeal Akin argues that the court erred in reforming the guaranty, erred in reforming the note, and erred in exercising personal jurisdiction over him. Because we find merit in the second argument only, we affirm the chancellor’s decree, as modified.
The only two witnesses at trial were Tommy Sanson, a vice-president for the bank, and Larry Grady, an attorney for the bank. Neither Akin, a resident of Dallas, nor Yarbrough, apparently a resident of Mesquite, Texas, testified. Sanson testified that he made a loan to Yarbrough in 1980. The loan was to enable Yarbrough to buy the house at Guy from a Mr. and Mrs. Stephens. A loan application was admitted into evidence, signed by both Akin and Yarbrough. Sanson said that Yarbrough signed it in his presence, but that the application was mailed to Akin in Texas for his signature. Akin submitted a personal financial statement to the bank showing a substantial net worth. The application itself indicated that the property would be held in Yarbrough’s name. Sanson testified that he talked with Akin on the telephone about the loan and Akin told him that he was going to “co-sign” and be a “co-owner” with Yarbrough. Akin told him they were in the dog business down in Texas and that they wanted the property in Guy for raising dogs. He said that Akin also told him he did not want the property in his name.
Sanson testified that he required a loan guaranty agreement to be signed by Akin and that his secretary prepared it. He said that he and Akin had discussed this by telephone. The guaranty agreement was apparently received by Akin in Texas, signed by him, and returned to the bank in Conway. It was also signed by David M. Voyles, Molly Bisson, and J.H. Yarbrough. These three parties were never served and the chancellor dismissed the lawsuit as to them.
In the instrument of guaranty, Akin, and the others, agreed to guarantee the debt of Akin to the bank. Sanson’s testimony was that the instrument was intended to guarantee the debt of William Yarbrough and that it failed to do so only because Sanson’s secretary had made a mistake. The guaranty was dated August 26, 1980.
On September 26, 1980, William Yarbrough executed a note and mortgage in favor of the bank, on the Guy property. Yarbrough also took title to the property in his name alone. Yarbrough subsequently failed to make the payments on the note to the bank and, on December 14,1982, deeded the Guy property to Akin.
Sanson testified that he went to Dallas with the lawyer, Grady, to talk to Akin about the debt, in 1984. He said that Akin told them that he was going to pay the debt. Apparently, at this time Akin had filed for reorganization under Chapter 11 of the Bankruptcy Act. Grady corroborated Sanson’s version of the 1984 meeting with Akin in Dallas. He also testified that Akin had listed this debt in his bankruptcy pleadings, showing the bank as the creditor. By the time of trial, the Guy property had been released from the bankruptcy proceeding.
At the conclusion of the testimony counsel for Akin conceded that the bank was entitled to foreclose its mortgage, but argued that the court should not enter a personal judgment against Akin.
Reformation of a written instrument is permitted in equity to show the true intent of the parties where there is a mutual mistake. Bicknell v. Barnes, 255 Ark. 697, 501 S.W.2d 761 (1973). Reformation is an equitable remedy which is available when the parties have reached a complete agreement but, through mutual mistake, the terms of their agreement are not correctly reflected in the written instrument purporting to evidence that agreement. Delone v. USF&G, 17 Ark. App. 229, 707 S.W.2d 329 (1986). The parties seeking reformation, however, must present evidence which “clearly and convincingly” warrants a finding that a mutual mistake occurred. Bicknell, supra; Turner v. Pennington, 1 Ark. App. 205, 646 S.W.2d 28 (1983). However, the proof need not be undisputed in order to obtain reformation. Winkle v. Grand Nat’l Bank, 267 Ark. 123, 601 S.W.2d 559 (1980). Bicknell, supra; Turner, supra. Although we continue to hear chancery cases de novo, “the test on review is not whether we are convinced that there is clear and convincing evidence [to support the] judge’s findings, but whether we can say that the . . . judge was clearly wrong in his findings.” ARCP Rule 52; A.B. v. Arkansas Social Services, 273 Ark. 261, 620 S.W.2d 271 (1981) (Hickman, J., dissenting). We have said that in such a case, the question we must answer on appeal is whether the chancellor’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Freeman v. Freeman, 20 Ark. App. 12, 722 S.W.2d 877 (1987); Turner, supra. Even in reformation cases, where the burden of proof is by clear and convincing evidence, we defer to the superior position of the chancellor to evaluate the evidence. Bicknell, supra; Turner, supra.
When all of the evidence in the case is considered we think it reasonably clear that Akin agreed with the bank to guarantee the debt of Yarbrough and that through the error of Sanson’s secretary the instrument did not reflect the parties true intention. In Kohn v. Pearson, 282 Ark. 418, 670 S.W.2d 795 (1984), the court said, “[t]he mistake of a draftsman, whether he is one of the parties or merely a scribner, is adequate grounds for relief, provided only that the writing fails to reflect the parties true understanding,” citing D. Dobbs, Remedies § 4.3 (1973). The fact that it was a bank employee who drafted the instrument wrong, does not render the mistake a unilateral one in a legal sense. Certainly, a guaranty agreement can be reformed. Scott v. Citizens Bank of Batesville, 245 Ark. 235, 431 S.W.2d 832 (1968). We cannot say the chancellor was clearly wrong in finding that a mutual mistake had been established by clear and convincing evidence.
However, the evidence to support the chancellor’s decision to reform the note itself is clearly insufficient. Once it is accepted that Akin understood he was guaranteeing the note signed by Yarbrough, Akin’s subsequent acknowledgment of the debt provides no support for an argument that the note should be reformed. Although Sanson was apparently in charge of the preparation of the note and mortgage, he offered no testimony that his secretary or any other bank employee had made a mistake in their preparation. Sanson’s insistence that Akin guarantee Yarbrough’s debt is inconsistent with a contention that Akin was a co-debtor.
Finally, Akin contends that the trial court erred in exercising in personam jurisdiction over him. Ark. Code Ann. § 16-4-101 provides that a court may exercise personal jurisdiction over a person as to a cause of action arising from that person’s “transacting any business in this state.” The supreme court has held that the purpose of the statute is to expand this state’s personal jurisdiction over non-residents, within the limits permitted by the due process clause of the United States Constitution. See S.D. Leasing, Inc. v. Al Spain and Assoc., Inc., 277 Ark. 178, 640 S.W.2d 451 (1982); Nix v. Dunavant, 249 Ark. 641, 460 S.W.2d 762 (1970). In order for a valid judgment to be rendered against a non-resident not served within the forum state, due process requires that certain minimum contacts exist between the non-resident and the state, such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310 (1945). The contacts with the forum state must be such that the non-resident defendant should reasonably anticipate being “haled” into an Arkansas court. Jagitsch v. Commander Aviation Corp., 9 Ark. App. 159, 655 S.W.2d 468 (1983) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980)). A single contract can provide the basis for the exercise of jurisdiction over a non-resident defendant if there is a substantial connection between the contract and the forum state. McGee v. International Life Ins. Co., 355 U.S. 220 (1957). Whether the “minimum contacts” requirement has been satisfied is a question of fact. Wisconsin Brick & Block Corp. v. Cole, Judge, 274 Ark. 121, 622 S.W.2d 192 (1981).
In Jagitsch, supra, we said that although there was no exact formula for deciding what is reasonable and fair under the circumstances five factors should be considered: The nature and quality of the contacts with the forum state; the quantity of contacts with the forum state; the relation of the cause of action to the contacts; the interest of the forum state in providing a forum for its residents; and the convenience to the parties. Jagitsch, 9 Ark. App. at 163, citing Arkansas-Best Freight System, Inc. v. Youngblood, 359 F. Supp. 1115 (W.D. Ark. 1973).
In the case at bar it is clear that Akin was a resident of the State of Texas. Sanson’s testimony was that Akin never came to Conway and that their discussions were all by mail or phone. There was also evidence, however, that Akin signed a loan application, a financial statement, and a personal guaranty and delivered them to the bank in Conway to induce the bank to loan Yarbrough the money to buy land in Guy, Arkansas. The evidence was undisputed that Akin intended to go into business on that property and he subsequently took a deed to the property from Yarbrough. The evidence in the case, taken as a whole, provides some support for Sanson’s contention that Yarbrough was merely acting as a “front” for Akin. We find no error in the trial court’s factual determination that Atkin “transacted business” within the State of Arkansas. Nor do we think that the due process clause is violated by the court’s exercise of in personam jurisdiction. Appellant could reasonably have anticipated that issues involving both the mortgage and the guaranty might properly be litigated in the State of Arkansas, rather than the State of Texas, and we affirm the trial court on this issue.
Because we hold that it was error for the court to reform the note, we remand this case to the chancellor for the entry of an order consistent with this opinion.
Affirmed as modified.
Corbin, C.J., Cooper and Mayfield, JJ., dissent. | [
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Donald L. Corbin, Chief Judge.
This appeal comes from the Arkansas Workers’ Compensation Commission. Appellant, College Club Dairy, appeals from a decision of the full Commission entered January 20, 1988. We affirm.
Appellee, George Carr, sustained a right knee injury on January 2, 1985, while employed by appellant as a milk route salesman. Appellee received medical expenses and disability benefits through the first week of June, 1986. A hearing was conducted before the Administrative Law Judge on June 11, 1986, to determine appellee’s eligibility for further benefits. The Administrative Law Judge entered a decision finding that appel-lee was barred from recovery of benefits under the doctrine of Shippers Transport of Georgia v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979) because he failed to disclose prior knee injuries. In that case, the Arkansas Supreme Court stated:
The following factors must be present before a false statement in an employment application will bar benefits: (1) The employee must have knowingly and wilfully made a false representation as to his physical condition. (2) The employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring. (3) There must have been a causal connection between the false representation and the injury.
265 Ark. at 369, 578 S.W.2d at 234.
On appeal to the full Commission, the decision of the Administrative Law Judge was reversed and remanded. The Commission found that appellant did not meet its burden to establish that Mr. Carr knowingly and willfully misrepresented his physical condition as is required in the first factor in the Shippers Transport defense. Furthermore, the Commission found no causal connection as required under the third factor in Shippers Transport. This appeal comes from the decision of the full Commission.
Appellant makes three contentions for reversal: (1) The Workers’ Compensation Commission placed an impermissibly strict limitation on the type of information an employer can elicit and evaluate concerning an employee’s history of physical defects, injuries or health problems under the rule of Shippers Transport of Georgia v. Stepp; (2) The Commission erred in impermissively limiting its consideration to the claimant’s false application answer, ignoring his misrepresentation during his pre-employment interview with appellant; and (3) The Commission’s decision is not supported by substantial evidence and should be reversed. The arguments will be addressed together because they all essentially go to the ultimate issue of whether there is substantial evidence to support the Commission’s decision that the appellant did not meet its burden of proving entitlement to the Shippers Transport defense.
On appeal this court is required to view the evidence in the light most favorable to the findings of the Commission and give the testimony its strongest probative value in favor of the order of the Commission. The issue on appeal is not whether the evidence would have supported a finding contrary to the one made. The question is solely whether the evidence supports the finding made by the Commission, and the decision must be upheld if supported by substantial evidence. DeFrancisco v. Arkansas Kraft Corp., 5 Ark. App. 195, 636 S.W.2d 291 (1982). Substantial evidence has been defined as more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It is of such force and character that it would with reasonable and material certainty and precision compel a conclusion one way or another. General Ind. v. Gibson, 22 Ark. App. 217, 738 S.W.2d 104 (1987).
Appellant first argues that in its opinion, the Commission establishes an impermissibly strict new standard and burden of proof for employers not supported by authority interpreting the Shippers Transport defense. We disagree. The Commission found that appellant failed to prove that appellee knowingly and willfully misrepresented his physical condition on his job application wherein he answered “No” to the question, “Do you have any physical defects?” With regard to the question, the Commission stated:
The employer knows which physical conditions or maladies would be relevant to fitness for the particular tasks he expects the applicant to perform. Therefore, employers relying upon the Shippers Transport affirmative defense must show that the employee was questioned in some degree regarding health history, and present condition in such a way as to elicit responses likely to be worthwhile in assessing the employee’s health history, condition, and capacity for performing the employment. The question posed in this case is so general and broad that it conveys no message about any aspect of one’s health that it may be germane to employability.
We cannot say that reasonable minds could not reach the conclusion of the Commission or that the application of the law to that conclusion was erroneous.
Additionally, we cannot agree with appellant’s contention that the Commission ignored statements made by appellee in his pre-employment interview with appellant. Appellant bases this argument on the fact that the Commission’s opinion makes no mention of the interview. The evidence of record indicates that during the interview, appellant’s supervisor, Mr. Tice, explained the strenuous nature of the job and asked if appellee had any physical problems, to which appellee answered negatively. It further reveals that Mr. Tice did not ask appellee any questions regarding his physical condition, past injuries, or medical problems. The Commission had before it all evidence relating to this case. Based upon this evidence, the Commission rendered its opinion. From our review of the record, appellant has not demonstrated that the Commission did not consider the interview in reaching its decision. Viewing the evidence in the light most favorable to the Commission, we find no error in this regard.
Lastly, appellant contends that the Commission’s decision is not supported by substantial evidence. The Commission found that appellant failed to meet its burden of proving willful misrepresentation under the first test in Shippers Transport and further that proof was lacking on the third test involving causal connection. All three tests set out above must be shown by an employer to successfully raise the, Shippers Transport defense of misrepresentation on an employment application. Roberts-Mc-Nutt, Inc. v. Williams, 15 Ark. App. 240, 691 S.W.2d 887 (1985). Further, the party having the burden of proof on an issue must establish it by a preponderance of the evidence. Ark. Code Ann. § 11 -9-704(c)(2) (1987) (formerly Ark. Stat. Ann. § 81-1323(c) (Supp. 1985)).
The evidence reveals that in 1981 appellee sustained injuries to his right knee in a noncompensable motorcycle accident. Appellee was employed in physically demanding jobs from 1981 until his on-the-job injury in 1985 without any medical attention or known work interruptions relating to knee problems. Furthermore, appellee did not receive any disability compensation for the prior injury.
The record reveals that appellee understood the question “Do you have any physical defects?” to refer to congenital defects. However, testimony adduced from Mr. Tice, appellant’s supervisor, during cross-examination reveals that he interpreted “physical defect” to mean an injury. The Commission found appellee’s interpretation reasonable and once the Commission has made its decision on issues of credibility, this court is bound by that decision. Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987). Weight and sufficiency of evidence are matters for determination by the Commission. Central Maloney, Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984). The Workers’ Compensation Commission is better equipped, by specialization and experience, to analyze and translate evidence into findings of fact than we are. Id. The reviewing court may not set aside the Commission’s decision unless it cannot conscientiously find from a review of the entire record that the evidence supporting the decision is substantial. DeFrancisco v. Arkansas Kraft Corp., 5 Ark. App. 195, 636 S.W.2d 291 (1982).
With these considerations in mind, we find substantial evidence on which the Commission could find that appellee’s failure to disclose his 1981 knee injury on his employment application was not a willful misrepresentation. For this reason, we will not reach the issue of the causal connection test because failure of proof on one part of the defense test precludes its use by an employer. See Shippers Transport of Georgia v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979).
Affirmed.
Cracraft and Jennings, JJ., agree. | [
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John E. Jennings. Judge.
Roger Blevins was a produce buyer for a Little Rock Safeway store. On March 10, 1983, Blevins and Alice Denson, a co-worker, went out to dinner with Quinton Lundberg, a regional produce supervisor. Sometime late that evening, or early the next morning, Blevins was killed in a one vehicle accident. He was found dead in his car at 10:00 a.m. on March 11. A posthumous blood alcohol test registered .22 percent. The Workers’ Compensation Commission denied the claim for benefits filed by the appellant, Mr. Blevins’ widow. On appeal, she raises three arguments: (1) that Blevins’ death was not “substantially occasioned” by intoxication; (2) that even if his death was caused by intoxication, the appellee should be estopped to assert this defense, and (3) that Blevins’ death arose within the scope of his employment. We affirm the Commission’s decision.
Appellant first argues that Blevins’ death was not substantially occasioned by intoxication. Ark. Stat. Ann. §81-1305 (Repl. 1976) (now Ark. Code Ann. § ll-9-401(a)(2) (1987)) provides that “there shall be no liability for compensation under this Act where the injury or death from injury was substantially occasioned by intoxication of the injured employee. . . .” There is a statutory presumption that the injury did not result from intoxication. Ark. Stat. Ann. § 81 -1324 (Repl. 1976) (now Ark. Code Ann. § 11-9-707 (1987)).
At the hearing before the ALJ, the appellee asked to be permitted to depose a medical witness to establish the effect of a blood alcohol level of .22 percent. In response, the appellant stipulated that the effect was “bad,” that .22 percent is more than double the legal intoxication level, and that it was common knowledge as to the condition of a person having such a blood alcohol level. Ms. Denson, Blevins’ co-worker, testified in fair detail about Mr. Blevins’ drinking that night, and Mrs. Blevins testified that he invariably came home inebriated after being out in the evening with the produce supervisor. While it is true that there was no direct evidence that Blevins was driving in a dangerous manner on the night of March 10, and there was no eyewitness to the accident, we are persuaded that there was substantial evidence to support the Commission’s finding that Mr. Blevins’ death was “substantially occasioned” by his intoxication.
Appellant next argues that even if Blevins’ death was substantially occasioned by intoxication, the employer is es-topped from raising the defense. The courts have taken two basic approaches to this issue. Some have held that the doctrine of estoppel can never bar the employer’s assertion of the defense of intoxication. See Hopper v. F.W. Corridori Roofing Co., 305 A.2d 309 (Del. 1973); Smith v. Trader’s & General Ins. Co., 258 S.W.2d 436 (Tex. Civ. App. 1953). This approach has been described as “draconian.” See 1 A. Larson, The Law of Workmen’s Compensation § 34.36, n. 51 (1985). Another group of cases hold that an employer may, in appropriate circumstances, be estopped from asserting the defense and that the issue of estoppel is generally one of fact. See Tate v. Industrial Accident Commission, 261 P.2d 759 (1953); McCarty v. Workmen’s Compensation Appeals Board, 12 Cal. 3d 677, 527 P.2d 617, 117 Cal. Rptr. 65 (1974); West Florida Distributors v. Laramie, 438 So.2d 133 (Fla. Dist. Ct. App. 1983).
This court has implied that estoppel may be available to bar the assertion of the defense of intoxication, under appropriate circumstances. See Davis v. C & M Tractor Co., 4 Ark. App. 34, 627 S.W.2d 561 (1982); In Davis we said:
The employer testified that while he was aware that appellant drank intoxicants on a regular basis and had done so for the past fifteen years, he had no knowledge of how much he drank and had never seen him so influenced by alcohol that he could not perform his duties satisfactorily or drive and control a vehicle. He had no knowledge that appellant was intoxicated on the date of the accident or at the time the accident occurred. Reviewing the testimony most favorable to the finding of the Commission, the Commission could, and did find that the employer did not know that appellant was intoxicated on the date of the accident and has no knowledge of his having previously consumed alcohol to such an extent as to affect his driving or ability to perform fully all of his duties satisfactorily. There was no evidence that the employer participated in any drinking sprees or that he knowingly permitted the appellant to continue to work in an intoxicated condition. Mere knowledge of his propensity to consume alcohol does not, in our opinion, estop the employer from raising the defense of intoxication under the circumstances presented by this record.
At the hearing in the case at bar, Mrs. Blevins testified that, at one time, she had been a produce buyer for Safeway. She said that the regional manager would come to town three or four times a year and that it was customary for the produce buyer to pick him up at the airport and spend time with him afterwards. Quinton Lundberg had been her husband’s supervisor for approximately five years. She testified that there were usually dinner meetings after work, that business was usually discussed at those meetings and that there was always drinking involved. Sometimes she went with her husband to these dinners and sometimes she did not. She said that when she did not go with him, Mr. Blevins invariably came home in an inebriated condition. She testified that it was his custom to drink a six-pack of beer every night. She said that it was her belief that appellee knew of Mr. Blevins’ drinking problem because the manager of the McAllen Produce Buying Department had told her that he thought Blevins had a drinking problem some years before. She said that she thought Mr. Blevins was reimbursed for his mileage in taking the manager from place to place. She also testified that the employer did not require the produce buyer to go out to dinner with the supervisor, nor did the employer require that the buyer drink.
Alice Denson was a buyer accountant for Safeway and worked for Mr. Blevins. She testified that she ordinarily went to dinner with Mr. Blevins and Mr. Lundberg when Lundberg was in town. She said that the bill for dinner, including whatever drinks were consumed, was paid sometimes by Mr. Lundberg and sometimes by Mr. Blevins. If Lundberg paid the bill it would be charged back to Safeway on his expense account. She testified that there was no requirement that either she or Mr. Blevins go out to dinner with the regional manager.
Ms. Denson said that on March 10, 1983, they closed the office at 4:30 and went to Mr. Lundberg’s hotel room. She, Blevins, and Lundberg had a couple of drinks there. Sometime after 6:00 p.m. they went to dinner at the Sir Loin’s Inn in North Little Rock. They all had appetizers and a few more drinks before dinner. She testified that while she and Mr. Lundberg had wine with their dinner she wasn’t sure that Mr. Blevins did. Ms. Denson said that they each had an after-dinner drink. She testified that Blevins and Lundberg followed her home to make certain that she got there safely, and that when they left her at around 10:15 p.m., she had no indication that Blevins was intoxicated. She also said that Lundberg told her the next morning that he and Blevins had gone back to the bar and had “a couple more drinks” before Blevins left.
John Guy was the Safeway employee who replaced Mr. Blevins as produce buyer. He testified that he would routinely go to dinner with the regional manager when he came to town, but that there was no Safeway policy, that required buyers to go to dinner with regional managers. He also said that there was no requirement that they have drinks at dinner and that he, in fact, did not drink at all.
The question of whether an employer is estopped to raise the defense of intoxication will depend on the particular circumstances of the case. See, e.g., Davis v. C & M Tractor Co., 4 Ark. App. 34, 627 S.W.2d 561 (1982); West Florida Distributors v. Laramie, 438 So.2d 133 (Fla. Dist. Ct. App. 1983). Estoppel is ordinarily an issue of fact. State v. Industrial Acc. Commission, 261 P.2d 759 (1953). In workers’ compensation cases, the Commission functions as the trier of fact. On appeal to this court, the question is whether the Commission’s findings are supported by substantial evidence. DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). On appeal, we must view the evidence in the light most favorable to the findings of the Commission and give the testimony its strongest probative force in favor of the Commission’s actions. See McCollum v. Rogers, 238 Ark. 499, 382 S.W.2d 892 (1964). In the case at bar, we hold only that the Commission’s finding that the employer was not estopped to assert the defense of intoxication is supported by substantial evidence. Because we hold that the Commission did not err in finding that the claim was barred by the defense of intoxication, we need not reach appellant’s final argument.
Affirmed.
Corbin, C.J., and Cracraft, J., agree. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from Randolph County Chancery Court. Appellants, L J., Larry, and Karen Kellett, appeal from a judgment entered in favor of appellee, Pocahontas Federal Savings and Loan Association. We affirm.
Appellants received a loan from appellee in the amount of $125,134.79 and executed a promissory note for the sum bearing interest from maturity at the rate of 13 % per annum, payable at $141,357.74 on April 24,1986. A mortgage with a power of sale, financing statement and security agreement were executed, delivered and filed to secure the note. The appellants defaulted and on January 26,1987, a decree of foreclosure was filed in favor of appellee, appointing a commissioner and ordering a sale of the security. Proof of Publication was filed February 27, 1987. A public sale was held on March 17, 1987 and appellee purchased the real property for a price of $75,000. The personal property was also sold, the facts of which are not pertinent to this appeal. On March 22,1987, the court approved and confirmed the sale. A petition for a deficiency judgment was filed and granted in the amount of $59,225.46 plus interest. The Commissioner’s Deed was filed of record March 20,1987. On June 23,1987, appellants moved to have the deficiency judgment, order approving sale, report of sale, and sale of property set aside. The chancellor denied the motion but reduced the deficiency judgment by $12,500 to reflect a sale by appellee to a third party for $87,500 on the same day of the public sale, in accord with appellee’s usual policy. It is from the denial of the motion that appellants appeal.
For reversal, appellants argue that the court erred in denying their motion since there was evidence of irregularities in the public sale of their property and since the property was sold for a grossly inadequate sale price.
In judicial sales the court is the vendor, and in the exercise of sound judicial discretion, it may confirm or refuse to confirm a sale made under its order. Campbell v. Campbell, 20 Ark. App. 170, 725 S.W.2d 585 (1987). In determining whether the chancellor abused his discretion, the appellate court does not substitute its decision for that of the trial court but merely reviews the case to see whether the decision was within the latitude of the decisions that the court could make in a case like the one being reviewed. Id.
Appellants argue that the chancellor abused his discretion in failing to set aside the judicial sale because of alleged irregularities. The record reflects that prior to the judicial sale, appellee’s representative, Rex Tyler, engaged in a conversation with Gilbert Burgess regarding the sale of the subject property. Appellants contend that through this conversation appellee engaged in conduct tending to discourage Mr. Burgess from bidding on the subject property. Evidence was also presented that on the day of the judicial sale, appellee sold the subject property to Larry Carter and Darrell Johnson jointly for a price of $87,500. Carter and Johnson divided the property into three parcels and sold it for a total of $100,000 approximately one month later. However, there was no evidence that Carter and Johnson or the subsequent purchasers were discouraged from bidding or that other irregularities existed with regard to their purchases. Their testimony appears to be relevant only on the issue of adequacy of price.
Judicial sales are not to be treated lightly, and to give them a certain desired stability, the court should not refuse to confirm a sale for mere inadequacy of price. Campbell, 20 Ark. App. at 171, 725 S.W.2d at 586. When great inadequacy of price is shown, the courts will seize upon slight circumstances to go along with the inadequacy of price and justify a refusal to approve the sale. Looper v. Madison Guar. Sav. & Loan Ass’n, 292 Ark. 225, 729 S.W.2d 156 (1987).
Appellants contend that $75,000 was an inadequate sale price for the property. Thus, the issue for appeal is whether the chancellor’s finding that the price received was adequate, is clearly erroneous. We first note that appellants actually received credit for an $87,500 sale price to reflect the subsequent sale to Carter and Johnson on the same day as the sale. Therefore, the focus is upon the adequacy of $87,500. No fixed formula exists or can exist to determine what is an inadequate sale price. See Looper, 292 Ark. at 227, 729 S.W.2d at 157. The chancellor heard testimony from several witnesses regarding the value of the property, ranging from $75,000 to $138,000. The $75,000 price was bid at a sale well attended by the public. The value of the property was a question of fact for the chancellor and the sale price fell within the range of testimony presented. The chancellor specifically stated that the evidence of the adequacy of the sale price was conflicting, but found by a preponderance of the evidence that the price received at the public sale was not inadequate. Factual determinations by the chancellor must be upheld unless clearly erroneous. Ark. R. Civ. P. 52(a). All relevant evidence was before the chancellor and we cannot say that his finding that the price was not inadequate, is clearly erroneous. Having failed to show an inadequate sale price, the issue of fraud or irregularities is irrelevant in the case at bar. Mr. Burgess, the purchaser who the appellants contend was discouraged from bidding by appellee’s representative, testified that he was willing to pay between $80,000 and $85,000 for the subject property. Appellants received the benefit of a sale price of $87,500, which was more than Mr. Burgess was willing to pay. We cannot see how any alleged irregularities adversely affected the appellants, as they failed to show that a price higher than $87,500 would have been received absent the alleged irregularities.
In reviewing the exercise of discretion, the test is whether the ordinary, reasonable, prudent judge, under all the facts and circumstances before him, would have reached the conclusion that was reached. Looper, 292 Ark. at 234, 729 S.W.2d at 160. Viewed in that light, we cannot say that the chancellor abused his discretion in denying appellant’s motion to set aside the sale.
Affirmed.
Cracraft and Jennings, JJ., agree. | [
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Melvin Mayfield, Judge.
This is an appeal from the revocation of a suspended sentence. On February 7, 1985, appellant Tilman Russell pleaded guilty to seven separate charges pending against him in Jackson County. He was sen tenced to the Arkansas Department of Correction for five years, four years of which were suspended subject to certain conditions, among which were that he lead a law-abiding life, be of good behavior, and not violate any state, federal, or municipal law punishable by imprisonment.
On June 12,1987, the state filed a petition to revoke alleging appellant had violated the terms of his suspended sentence in that on December 20, 1986, he was arrested in Sharp County, Arkansas, and was found to possess over three ounces of marijuana, and therefore, possessed a controlled substance with intent to deliver it. After a hearing held August 7,1987, the circuit court in Jackson County revoked appellant’s suspended sentence and sentenced him to four years in the Arkansas Department of Correction to run concurrent with the sentence he had received in Sharp County.
On appeal to this court, the appellant makes two contentions. One is that the state did not introduce sufficient evidence to support a finding that appellant violated a condition of his suspended sentence. In a revocation hearing, the state has the burden to show a violation by a preponderance of the evidence and, on appellate review, the trial court’s findings are affirmed unless clearly against a preponderance of the evidence. Hoffman v. State, 289 Ark. 184, 711 S.W.2d 151 (1986);Dunavin v. State, 18 Ark. App. 178, 712 S.W.2d 326 (1986). The rules of evidence do not apply to revocation hearings, Felix v. State, 20 Ark. App. 44, 723 S.W.2d 839 (1987); and the trial court may consider all relevant evidence, Harris v. State, 270 Ark. 634, 606 S.W.2d 93 (Ark. App. 1980).
Two witnesses testified for the state. The first witness was the circuit clerk of Jackson County. He identified the original judgment of the appellant’s February 7,1985, conviction, and a certified copy of the judgment was introduced into evidence.
The next witness was Bob Wilkin, a probation officer for Jackson County. Mr. Wilkin testified that he was present in the courtroom on February 7,1985, when appellant entered a plea of guilty to various charges in Jackson County and was sentenced to five years with four suspended. He testified that he was also in the Sharp County Circuit Court on June 23, 1987, when the jury returned a verdict finding the appellant guilty of possession of a controlled substance with intent to deliver. He said he was “vaguely” familiar with the Sharp County case, did not know who arrested the appellant on the charge for which he was being tried, had no personal knowledge of the facts, and was present in the courtroom just at the end of the trial when the jury verdict was returned.
This was the extent of the state’s case and the only evidence offered by the appellant was just prior to the calling of the state’s first witness. At that time, counsel for appellant made an oral motion stating that the case should not be heard because the Sharp County conviction had been appealed but not yet decided. Appellant’s counsel then introduced into evidence a copy of the appellant’s Notice of Appeal and Designation of Record filed in the Sharp County case. The court overruled the appellant’s motion and later in the proceedings revealed his reasoning by stating that the petition for revocation was not based on a conviction but on an allegation that appellant had violated a law of the state. The conviction, the court said, was simply evidence of the violation — whether appealed or not.
At the conclusion of the state’s evidence, the appellant moved that the petition for revocation be dismissed because the evidence was not sufficient to prove that the appellant had violated a condition of his suspended sentence. This brings us back to the first argument in the appeal to this court. Applying the standard of review set out above, we cannot say that the trial judge’s finding that appellant had violated a law punishable by imprisonment is clearly against the preponderance of the evidence. The rules of evidence do not apply as to admissibility, and we have evidence of the finding of a violation by a Sharp County jury, testified to by a probation officer who knew the defendant there was the same defendant placed on suspended sentence in Jackson County.
Appellant’s next argument on appeal does reveal a defect in the state’s evidence. This argument is based on the fact that the state’s evidence did not show a violation of the law committed during the four years of the appellant’s suspended sentence. For all we know, from the evidence presented, the violation for which appellant was convicted in Sharp County could have occurred prior to his conviction in Jackson County. However, we do not believe this matter was sufficiently called to the trial court’s attention. In Janes v. State, 285 Ark. 279, 686 S.W.2d 783 (1985), our supreme court said:
We have consistently held that where there is a particular defect in the State’s proof that might readily have been corrected had an objection been made, the absence of any objection prevents the point’s being raised for the first time on appeal. For instance, where the State’s proof by accomplices is not corroborated, the absence of an objection on that ground at trial waives the omission. [Citation omitted.]
285 Ark. at 281. In the instant case, the closest the appellant got to stating the specific grounds now urged on appeal was the statement that “the petition to revoke is predicated solely on the commission of a particular act and we feel that the state did not prove that.” This is followed by a reference to the probation officer’s statement that he “vaguely” remembered what happened in court. There is, however, no statement that the proof failed to show that there was a violation of the law during the period of appellant’s suspended sentence. Had this specific objection been called to the court’s attention, it seems highly likely that the missing proof could have been supplied. Surely, the state had a copy of the Sharp County Judgment or the Information filed in that county, one of which probably stated the date of the violation involved. We simply do not think that the motion to dismiss was specific enough to meet the requirements of the law.
Finally, the appellant argues that the trial court lacked jurisdiction to revoke his suspended sentence because the state did not show that a violation of a condition of the suspended sentence occurred during the period the sentence was suspended. Appellant argues that jurisdiction may be raised at any time.
While it is unquestionably true that the issue of jurisdiction can be raised at any time, we do not agree with appellant’s contention that the trial court lacked jurisdiction in this matter. In Arkansas, the circuit court has subject matter jurisdiction to try cases involving the violation of criminal statutes and has the authority to impose or suspend sentences and to revoke those suspended sentences. Banning v. State, 22 Ark. App. 144, 737 S.W.2d 167 (1987). In the instant case, the circuit court clearly had jurisdiction over the subject matter of the revocation hearing and the appellant was properly before the court. Banning v. State, supra.
Affirmed.
Cooper and Jennings, JJ., agree. | [
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John E. Jennings, Judge.
Appellant, Mitchell E. Johnson, owns a business known as Sparky’s in Sparkman, a town of 600 people in Dallas County. Sparky’s is a combination convenience store, gas station, restaurant, and washateria.
Appellant applied to the Arkansas Beverage Control Board for a retail off-premises beer permit. After conducting a hearing the Board granted the permit. Subsequently, several persons opposed to the issuance of the permit, including the sheriff of Dallas County, Lee Hornaday, obtained an order of the Dallas County Circuit Court remanding the matter to the Board for the taking of additional evidence. On remand, the Board heard testimony from the sheriff; a fulltime deputy, Mr. Skinner; and a part-time deputy, Mr. Franks.
The sole issue on appeal is whether the Board’s denial of the permit after remand is supported by substantial evidence. We affirm.
Although the circuit court affirmed the Board’s denial of the permit and this appeal comes from the decision of that court, it is clear that we are reviewing the decisión of the Board, not the circuit court’s decision. See Fouch v. State, Alcoholic Beverage Control Div., 10 Ark. App. 139, 662 S.W.2d 181 (1983). Our review is limited in scope: we uphold the Board’s decision if it is supported by substantial evidence and is not arbitrary, capricious, or characterized by an abuse of discretion. Marshall v. Alcoholic Beverage Control Bd., 15 Ark. App. 255, 692 S.W.2d 258 (1985). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Carder v. Hemstock, 5 Ark. App. 115, 633 S.W.2d 384 (1982). We may not displace the Board’s choice between two fairly conflicting views even though we might have made a different choice had the matter been before us de novo. Fouch, supra. The burden of proof was on the appellant to establish that the public convenience and advantage would be served by issuing him a beer permit. Marshall, supra.
It is reasonably clear from the order of the Board denying the permit that the denial was based upon a determination that it was not in the public interest to grant the permit because of inadequate law enforcement in the area. Law enforcement problems are certainly relevant to the Board’s determination. Fouch, supra. We have no doubt that a finding that the issuance of a permit would create substantial law enforcement problems, if supported by the evidence, will in turn support a conclusion that the issuance of a permit will not promote public convenience and advantage.
Although the Board made extensive findings of fact in both its original order granting the permit and in the order issued after remand, we need examine only those findings relating to law enforcement problems because it is clear that this was the basis for the denial of the permit.
At the first hearing, appellant testified that the closest outlet for the sale of beer for off-premises consumption, in Dallas County, was 17 miles (Princeton). It is 12 miles from Sparkman to the closest outlet in Ouachita County. He testified that although Sparkman had hired one officer there was no city police department. He said that there was a part-time officer who was also a deputy sheriff who lives in Sparkman, and that his son is an elected constable in the City of Sparkman.
Mr. Johnson’s son testified that he is an auxiliary deputy sheriff for Dallas County and an elected constable for the City of Sparkman. He testified that he had talked to the sheriff and that at the time of their conversation the sheriff had no opposition to the application. He testified that he would enforce the law when he was on duty but that he had not personally arrested anyone because he was not sure of his powers of arrest. Richard Fleming, a former mayor of Sparkman testified that he thought there was inadequate law enforcement in the area now since it is a one hour drive to Fordyce.
Benny Grant, the pastor of the First Baptist Church in Sparkman, testified that he thought the permit should not be granted because of the proximity of Sparky’s to a church and school. The Board also noted that it had received a letter in opposition to the application from Sheriff Lee Hornaday.
On remand, the Board heard testimony from Hornaday and made lengthy findings relating to that testimony. The sheriff testified that he had three full-time deputies including James Skinner, who lives in Sparkman and has a 200 square mile territory. The sheriff said he also had an unpaid auxiliary deputy who lived in Ouachita Township and worked in Sparkman. The auxiliary deputy has no power except under the supervision of the deputy or the sheriff. Hornaday said he needed three more deputies to adequately patrol the county, that Skinner is the busiest deputy in the county, and that Sparkman has the highest crime rate in the county. He said he had no assistance from the State Police in the western part of the county.
Hornaday expressed his opinion that the location of Sparky’s, in a residential area near a church and school on Main Street, would make the workload greater for law enforcement. He said he would have trouble from the outlet because of the sale of beer and does not have the manpower to get to the store as soon as law enforcement is needed. Sparkman has no city police force. He said there was heavy traffic on the highway from the colleges in the area, especially in the spring.
Hornaday testified that Skinner had made approximately 90 arrests in the past two and one-half months and that at least one-third were put in jail at Fordyce. He testified that it takes three to four hours to transport a suspect arrested in Sparkman to the county jail in Fordyce. He said that he currently needed two full-time deputies to patrol the Sparkman area.
On cross-examination the sheriff admitted that he had as much law enforcement availability in Sparkman as in those places where beer permits had been granted in Dallas County, Mom’s Place, Farindale, and Princeton. He said that he had not objected to the permits at Princeton and Farindale because there was no opposition from area residents to the applications. He also said, however, that there is no town around Mom’s Place and that Princeton has a population of forty-one. He said there was no school at any of the three locations.
The Board also heard testimony from James Skinner that he currently had his hands full with subpoena service, tickets, investigations, and the like, and that he worked seven days a week. He also gave his opinion that the issuance of the permit would increase law enforcement problems but could point to no specific problems which had arisen since the issuance of the permit to appellant.
On these facts we hold that the Board’s ultimate conclusion, that the issuance of a beer permit for Sparky’s would not be in the public interest, is supported by substantial evidence and is not arbitrary or capricious.
Appellant argues that our decision in Snyder v. Alcoholic Beverage Control Bd., 1 Ark. App. 92, 613 S.W.2d 126 (1981), requires reversal here. In Snyder, we said:
There is no evidence in this case to indicate that the public would be inconvenienced or would be placed at a disadvantage by the issuance of this permit. In fact, the Board seems to have based its decision primarily on the fact that there was opposition from a significant number of persons, including the chief of police and a lieutenant on the police department of the City of Camden. The number or official position of persons who object or support the issuance of retail liquor permits is of no significance under the statute. The reasons those persons oppose or support specific permit applications may be very significant. The reasons may clearly show whether the public convenience or advantage will be served.
Appellant’s argument is that, because the sheriff testified that he would not have opposed the issuance of the permit at Sparky’s if it were not opposed by people in the area, the Board in effect denied the permit because of such opposition. In our view, however, the sheriff’s motive in testifying is relevant only to the issue of the credibility of his testimony. The credibility of witnesses is essentially a matter for the trier of fact, in this case the Board. Arkansas Health Planning & Development Agency v. Hot Spring County Memorial Hospital, 291 Ark. 186, 723 S.W.2d 363 (1987). The Board obviously believed the testimony of the sheriff and this was its prerogative. That testimony supports a finding that the issuance of a beer permit at Sparky’s would create significant law enforcement problems, and such a finding, in turn, supports the Board’s ultimate conclusion that the issuance of such a permit would not serve the public convenience or advantage.
Affirmed.
Cooper, J., dissents. | [
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James R. Cooper, Judge.
The appellant in this criminal case was charged with two counts of theft of property on October 15, 1985. He was arrested on December 2, 1986. Amended informations were filed on February 15, 1987, and March 19, 1987. After a jury trial on April 29,1987, the appellant was found guilty of two counts of theft of property and was sentenced as an habitual offender to twenty-five years in the Arkansas Department of Correction on each count. Within ninety days after the judgment was entered, the appellant petitioned the trial court for reduction of his sentence under Ark. Stat. Ann. § 43-2314 (Supp. 1985), now codified at Ark. Code Ann. § 16-90-111 (Supp. 1987). The trial court denied the petition in an order filed August 24, 1987. From those convictions, comes this appeal.
For reversal, the appellant contends that he received ineffective assistance of counsel in both the guilt phase and the sentencing phase of his trial. We affirm.
The appellant first argues that he received ineffective assistance in the guilt phase of his trial because his attorney failed to assert his right to a speedy trial under A.R.Cr.P. Rule 28.1, or to enter a motion to dismiss on that ground. The State argues that the appellant has failed to preserve this issue for appeal.
The record shows that the felony information was filed on October 15,1985, and that trial was held on April 29,1987. The appellant contends that trial was thus held fifteen days after the expiration of the time limit for bringing him to trial under Rule 28.1(c). The appellant concedes that he waived his rights under the speedy trial rule by his failure to move for dismissal under that rule, see A.R.Cr.P. Rule 30.2, but he argues that his waiver of the right to a speedy trial did not operate as a waiver of the right to effective assistance of counsel. See Hall v. State, 281 Ark. 282, 663 S.W.2d 926 (1984).
The appellant never raised any issue at trial concerning the effectiveness of his trial counsel. In his post-trial motion for reduction of sentence under Ark. Stat. Ann. § 43-2314, he asserted that his trial counsel was ineffective in that he failed to “raise motions” and subpoena witnesses as requested by the appellant. The petition also alleged that one of the appellant’s prior convictions was improperly used to enhance his sentence.
As the Arkansas Supreme Court stated in Lasiter v. State, 290 Ark. 96, 717 S.W.2d 198 (1986), ineffectiveness of counsel is not generally considered when a case is first appealed because the facts relevant to that issue have not been developed. However, the Court noted that if the facts have been presented to the trial court at a hearing related to motions for a new trial, the Court will look at the issue on direct appeal. In the present case, the appellant did not specify in his § 43-2314 petition the motions which he assertedly requested but his attorney failed to make. The present contention of ineffective assistance based on counsel’s failure to protect the appellant’s right to a speedy trial was never presented to the trial court. We disagree with the appellant’s contention that no objection was required to preserve for appeal his argument concerning ineffective assistance of counsel. Our Supreme Court has “reiterated time and again that the question of effectiveness of counsel may not be raised for the first time on appeal.” Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981). It is also settled that an argument based on the trial court’s failure to list all excluded time periods in determining whether a defendant received a speedy trial will not be considered on appeal when it has never been raised in the trial court. Allen v. State, 294 Ark. 209, 742 S.W.2d 886 (1988). With few exceptions, not applicable here, see, e.g., Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), an argument for reversal will not be considered in the absence of a timely, clear, and specific objection in the trial court. Horn v. State, 282 Ark. 75, 665 S.W.2d 880 (1984); Dillard v. State, 20 Ark. App. 35, 723 S.W.2d 373 (1987). It is clear that the speedy trial issue was never raised in the trial court, and may not be raised for the first time on appeal. The appellant’s remedy is to challenge the adequacy of his attorney’s representation in a petition for post-conviction relief under A.R.Cr.P. Rule 37. Carrier v. State, 278 Ark. 542, 647 S.W.2d 449 (1983).
The appellant’s next contention concerns the use of one of his prior convictions for sentence enhancement under the Habitual Offender Statute. The appellant asserts that one of the three prior convictions offered for sentence enhancement should not have been considered. The record shows that the appellant raised this issue in his § 43-2314 petition for reduction of sentence. The appellant’s argument, although couched in terms of ineffective assistance, is that the Habitual Offender Statute was improperly applied, and we will address it on that basis.
The conviction which is the subject of this point for reversal stems from an offense which occurred on December 14, 1982. The appellant contends that Ark. Stat. Ann. § 41-1001 (Supp. 1985), now codified at Ark. Code Ann. § 5-4-501 (1987), prohibits the use of convictions for offenses committed before June 30, 1983, for sentence enhancement purposes. We find no merit to this contention. Arkansas Statutes Annotated § 41-1001(1) provides that:
A defendant who is convicted of a felony committed after June 30, 1983, and who has previously been convicted of more than one (1) but less than four (4) felonies, may be sentenced to an extended term of imprisonment. . . .
The statute clearly distinguishes between the conviction being enhanced, which must have occurred after June 30,1983, and the “previous” conviction or convictions used for enhancement purposes, for which no limitation period is stated. The Supreme Court has stated that § 41-1001 “provides in clear language that in an appropriate case, a prior conviction, regardless of the date of the crime, may be used to increase punishment.” Washington v. State, 273 Ark. 482, 621 S.W.2d 216, 218 (1981) (emphasis supplied). We think that the June 30, 1983, time limit is clearly applicable only to the conviction being enhanced, and not to prior convictions being used for enhancement purposes.
Affirmed.
Mayfield and Coulson, JJ., agree. | [
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Melvin Mayfield, Judge.
Appellant, Arkansas Blue Cross and Blue Shield, appeals a decision of the Sebastian County Circuit Court holding it liable to appellee for $1,564.81 hospital and medical bills plus costs, penalty and attorney’s fees, under a health and hospitalization insurance policy.
In December, 1984, appellee had breast enlargement surgery. In August, 1985, she developed redness and tenderness in her left breast. Appellee’s plastic surgeon, Dr. E. F. Still, testified that she gave him a history of being bitten by an insect while on a camping trip but at that time he could not tell whether the problem was caused by an infected insect bite or a rupture of the “capsule inside — not the implant, but the scar capsule around it.” He said the symptoms were consistent with an insect bite. On September 5,1985, Dr. Still performed surgery, but, he testified, he still could not determine the cause of the problem. He said the most plausible cause was an insect bite, that the abscess had drained, that his normal charge for “lysising the capsule from scar tissue” was $1,450.00, but he had charged appellee only $180.00, “the normal charge for opening and draining a complicated abscess.”
Upon submission of the hospital and doctor bills for the surgery, appellant, Arkansas Blue Cross and Blue Shield, refused to pay, stating that the surgery was excluded from coverage under appellee’s policy because it was cosmetic; “performed due to complications arising from prior augmentation mammoplasty.” Appellee filed a complaint against appellant for $1,763.02 plus attorney’s fees and penalty, pursuant to Ark. Stat. Ann. § 66-3238 (Repl. 1980) [Ark. Code Ann. § 23-79-208 (1987)]. In answers to interrogatories and requests for admission, appellant admitted that appellee owned a valid policy of health insurance; that the premiums were paid up to date; that it had refused to cover the surgical and hospital bills; and that its only basis for denying the claim was that it contended the surgery was cosmetic in nature, and, therefore, excluded from coverage under the appellee’s policy. In answers to interrogatories appellant also admitted that if appellee’s claim had not been denied its liability on appellee’s September 5, 1985, surgery would be: Crawford County Memorial Hospital, $1,227.21; Dr. Grimes, $193.60; and Dr. Still, $144.00; or a total of $1,564.81. Thereafter, appellee filed an amended complaint praying for actual damages of $1,564.81.
At the trial Irvin Pate, the Senior Claims Director for Arkansas Blue Cross and Blue Shield, testified that a claim passes through four levels of review before finally being denied. The claim is first examined by a clerk. If it is rejected it is then referred to the Utilization Review Division, a group of registered nurses; if they determine the claim is to be denied, it is then sent to a Medical Director for a third level of review. If he denies the claim, there is a fourth level of review called the Medical Services Review Committee, composed of thirty physicians from many specialties, who review disputed claims and make the final decision. Pate explained that appellee’s insurance policy excluded from coverage any reconstructive or cosmetic surgery and any complications from cosmetic surgery, and that her claim had been rejected by the Medical Services Review Committee as being cosmetic. On cross-examination Pate testified that if it had been determined that Blue Cross and Blue Shield was liable for appellee’s medical bills on this claim, considering deductibles and other exclusions Blue Cross and Blue Shield would have paid $1,564.81.
Appellee testified that her husband had first noticed that it looked like she had been bitten on the left breast by a spider. She said it was a red, purplish, infected looking area consistent with spider bites she had suffered in the past.
Leona Kennedy, Dr. Still’s surgical nurse, testified that when she first observed it, appellee’s left breast was quite red and there was a little pinpoint area where you could assume some type of insect had bitten her. Ms. Kennedy said it resembled insect bites she had seen in the past. She also testified that she assisted Dr. Still with appellee’s surgery and that the infection was not inside the breast. She said no new implant was placed in appellee’s breast; the original implant was returned.
The jury found for appellee and she was granted judgment against appellant for $1,564.81 plus costs, 12% penalty and attorney’s fees as authorized by Ark. Stat. Ann. § 66-3238 (Repl. 1980). Arkansas Blue Cross and Blue Shield has appealed that verdict contending (1) that the court erred in allowing appellee’s requested jury instruction number 12, which stated in part: “You must find for Ms. Remagen in the amount of $ 1,564.81 (2) that the award of attorneys fees in the sum of $3,870.00 was excessive; and (3) that the court erred in submitting a verdict form to the jury which specified the amount of damages the jury was to award the appellee. As arguments (1) and (3) are essentially identical, they will be discussed together.
Appellant argues it was error to instruct the jury that if it found in favor of appellee it “must find for Ms. Remagen in the amount of $1,564.81” because its answers to the requests for admission, which were introduced into evidence, did not specify the amount which would have been due and payable if appellant was liable on the claim and the interrogatories which did specify this amount of liability on the claim were not introduced into evidence. Appellant contends that by so instructing the jury the judge made a factual decision and thus erroneously invaded the province of the jury.
The record shows that counsel for appellee, in Ms. Remagen’s case in chief, called as her witness Irvin Pate, the Senior Claims Director for appellant and that he testified that Blue Cross and Blue Shield’s liability on the claim, if eligible, would be $1,564.81. Although it is ordinarily the province of the jury to assess the amount of recovery, see, Winters v. Barr, 263 Ark. 618, 566 S.W.2d 745 (1978), where the amount of damages is undisputed it is not error for the court to give the jury a binding instruction which assumes as true matters which are established by the undisputed evidence. See St. Louis, I. M. & S. Ry. Co. v. Burrow, 89 Ark. 178, 116 S.W. 198 (1909). See also, Coleman v. Utley, 153 Ark. 233,240 S. W. 10 (1922), in which the court held that where the undisputed evidence showed that the plaintiff was entitled to a certain amount if he was entitled to recover anything, a verdict for a lesser amount was arbitrary, and it was error for the court to deny the plaintiffs motion for judgment for the full amount. See also, Chaney v. Missouri Pacific Railroad Co., 167 Ark. 172, 267 S.W. 564 (1925).
We think appellee placed in evidence sufficient evidence to warrant the binding instruction to the jury that if it found in her favor, (in other words, if it found that the plaintiffs surgery was medically necessary and not merely cosmetic and that, therefore, Blue Cross and Blue Shield was liable for the plaintiffs medical bills) it should award the plaintiff the sum of $1,564.81. At the same time the jury was also instructed that it could find for the defendant (in other words, that Blue Cross and Blue Shield had no liability because the surgery was cosmetic and, therefore, excluded from coverage by the terms of the insurance policy). We find no error in the giving of these instructions.
Next appellant argues that the court erred in allowing appellee an attorney’s fee. Ark. Stat. Ann. § 66-3238 (Repl. 1980), [Ark. Code Ann. § 23-79-208 (1987)], provides that if a loss occurs, and after demand has been made, the insurance company fails to pay the claim within the time specified in the policy, the insurance company “shall be liable to pay the holder of such policy or his assigns, in addition to the amount of such loss, twelve percent (12%) damages upon the amount of such loss, together with all reasonable attorney’s fee . . . .” Appellant contends that because appellee’s health insurance was a group contract between it and Rhodes Chevrolet of Van Burén, Arkansas, appellee was not the “holder of the policy” and, therefore, not entitled to the twelve percent penalty and attorney’s fee. Appellant cites no authority and no real argument supporting its position. We do not consider on appeal matters unsupported by authority or convincing argument. Harrison v. Benton State Bank, 6 Ark. App. 355, 642 S.W.2d 331 (1982). Furthermore, the record does not indicate that this argument was presented to the trial court for its consideration and we do not consider issues which are raised for the first time on appeal. Bull v. Brantner, 10 Ark. App. 229, 662 S.W.2d 476 (1984).
Appellant also argues that the $3,870.00 attorney’s fee awarded was excessive. In support of this position appellant lists eleven cases and compares the percentage of attorney’s fee awarded with the amount recovered and concludes that the average amount awarded was 23 % and the maximum allowed was 41 %. Appellant then contends that the fee allowed in the instant case should not have exceeded 41 % of the recovery or $641.57. Appellee has filed a cross-appeal alleging that her attorney should have been granted the amount requested, $4,917.30. Appellee points out that although it was appellant who forced this matter to trial when it had no legitimate defense to appellee’s claim, it was still necessary for her counsel to spend many hours in preparation for trial in order to prevail. She insists her attorney has documented 51.60 hours spent in preparing her case and he is entitled to his regular fee of $85.00 an hour, plus expenses.
In Equitable Life Assurance Society v. Rummell, 257 Ark. 90, 514 S.W.2d 224 (1974), the Arkansas Supreme Court considered a similar situation. It said:
The purpose of the statute is to permit an insured to obtain the services of a competent attorney and the amount of the allowance should be such that well prepared attorneys will not avoid this class of litigation or fail to devote sufficient time for thorough preparation. Old Republic Insurance Co. v. Alexander, 245 Ark. 1029, 436 S.W.2d 829. It is contemplated that the allowance should not be a speculative or contingent fee but that it be such a fee as would be reasonable for a litigant to pay his attorney for prosecuting such a case. Old Republic Insurance Co. v. Alexander, supra.
257 Ark. 91-92. This court relied on the Rummell case in Southall v. Farm Bureau Mutual Insurance Co. of Arkansas, Inc., 283 Ark. 335, 676 S.W.2d 228 (1984), when we stated:
The Legislature, not the courts, enacted Ark. Stat. Ann. § 66-3238 (Repl. 1980) providing for an award of a reasonable attorney’s fee against an insurer who wrongfully refuses to pay under an insurance policy. Our task is simply to carry out this legislative command. The computation of allowable attorneys’ fees under the statute is governed by familiar principles. These factors include the experience and ability of the attorney and the time and work required of him, the amount involved in the case and the results obtained, the fee customarily charged in the locality for similar legal services and whether the fee is fixed or contingent.
283 Ark. at 337. The award of an attorney’s fee is a matter for the sound discretion of the trial court and in the absence of abuse, its judgment will be sustained on appeal. Southhall, 283 Ark. at 338. We cannot say the trial court abused its discretion in its award of the attorney’s fee in this case.
Affirmed.
Coulson and Jennings, JJ., agree. | [
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George K. Cracraft, Judge.
Everett Crutchfield appeals from his conviction of the crimes of attempted kidnapping and being a felon in possession of a firearm for which he was sentenced to concurrent terms of ten and three years in the Arkansas Department of Correction. On appeal he argues several points for reversal. We find no merit in any of them and affirm the judgment of the trial court.
Appellant first contends that the trial court erred in denying his motion for a directed verdict because there was insufficient evidence to sustain these convictions. He does not contend that the State’s evidence did not establish that the offenses charged had occurred, but only that the finding that he was the perpetrator of those crimes is not supported by substantial evidence.
On appeal from a jury verdict, the evidence is viewed in the light most favorable to the State and the verdict affirmed if there is substantial evidence to support it. Evidence is substantial if the jury could have reached the conclusion without having to resort to speculation or conjecture. In this review, we need only consider testimony lending support to the verdict and may disregard any testimony that could have been rejected by the jury on the basis of credibility. Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985); Chaviers v. State, 267 Ark. 6, 588 S.W.2d 434 (1979).
After testifying to the events constituting the offenses for which the appellant was charged, the victim positively identified appellant as the person who had attempted to abduct her at gunpoint and who had fired several shots at her after she escaped. In support of his defense of alibi, the appellant offered the testimony of a number of persons who stated that at the time these events occurred the appellant was in Port Aransas, Texas. Some of these witnesses were relatives and others were friends. We agree that if their testimony had been accepted as true by the jury the appellant could have been acquitted. However, the jury may accept or reject any or all of any witness’s testimony and is entitled to accept as true only that part of the evidence it believes to be more credible and worthy of belief. It was not bound to believe appellant’s witnesses. Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884 (1977). We cannot conclude that the jury’s finding that appellant was the person who attempted to abduct the victim is not supported by substantial evidence.
Appellant next contends that the identification testimony of the victim was the result of an unduly prejudicial, defective identification procedure and was impermissibly suggestive. Suppression of an in-court identification is not warranted unless the pretrial identification procedure was so suggestive as to create a substantial likelihood of irreparable misidentification. Forgy v. State, 16 Ark. App. 76, 697 S.W.2d 126 (1985). See also Martinez v. State, 269 Ark. 231, 601 S.W.2d 576 (1980). At the hearing on the motion to suppress, the victim testified that she had a good opportunity to see and observe the appellant during the attack. Immediately after the attack, she furnished the officers with a detailed description of him and informed them of distinctive, recognizable decay of her attacker’s teeth and that he had one protruding tooth. She stated that at the time of the attack she thought he said, “You are not Shelia,” but that he at least said something about “Shelia.”
Based on this and other information, the police officers then questioned Shelia Sutiles, who informed the officers that the description furnished them by the victim was that of the appellant, who at one time had been Ms. Suttles’ brother-in-law and with whom she had had numerous encounters. She furnished the officers with two photographs of the appellant from an album. The police officers then exhibited one to the victim. The victim stated that it “looks like” the man, but pointed out that her attacker had facial hair whereas the man in the photograph did not. The officers then photocopied the photograph and penciled in facial hair as the victim had described it. She then positively identified that photograph as being a photograph of the person who had attacked her. A day or two later, she again identified the appellant as her attacker from a six-photo spread. At trial she stated that she had not been coached by the officers at the prior identifications and that there was no doubt in her mind that the appellant was the person who attacked her. At the time she identified him in the courtroom, she stated she was basing her identification on her observation at the time of the attack and not upon the photographs or any suggestions made by the police officers.
We have declared that the factors to be considered in testing the reliability of a pretrial identification include the opportunity of the witness to view the criminal at the time of the crime; the witness’s degree of attention; the accuracy of any prior description of the criminal; the level of certainty demonstrated by the witness at the time of confrontation; and the length of time between the crime and the confrontation. Whitt v. State, 281 Ark. 466, 664 S.W.2d 876 (1984). The evidence shows that the victim had ample opportunity to view the appellant at the time of the crime and was able to give a detailed description of the person immediately after the crime. There is nothing to indicate that that description was other than accurate. She positively identified the appellant as her attacker in the initial photographs and from a photo line-up within a matter of days after the crime, with no suggestion or encouragement from the police to do so.
It is for a trial court to determine if there are sufficient aspects of reliability surrounding an identification to permit its use in evidence, and then it is for the jury to determine what weight the identification testimony should be given. Wilson v. State, 282 Ark. 551, 669 S.W.2d 889 (1984); Forgy v. State, supra. We cannot conclude from this record that the trial court erred in its determination that there were sufficient aspects of reliability surrounding this identification to permit its use in evidence.
At trial Shelia Suttles testified, over appellant’s objection, that the appellant had for several years been infatuated with her and over a period of time had made telephone calls professing his love for her. She stated that the appellant had followed her around and had gotten “physical” in his advances toward her “three or four” times. The last of these attacks had occurred two years previously, when appellant broke into Ms. Suttles’ home and threatened and choked her. She stated, however, that the telephone calls from appellant had continued up until “March of this year.” Ms. Suttles also testified that in the summer months she rode a bicycle over a nine-mile course every afternoon at about the same hour and that this route passed the point at which the attack was made on the victim.
Appellant’s motion for a mistrial was denied. The court ruled that the testimony was relevant for the purpose of showing intent, motive, and identification of the appellant. The appellant contends that the trial court erred in not granting his motion for a mistrial because the evidence could only have been admitted to show that the appellant was a bad man, was too remote in time to be considered, and was not relevant to the instance for which the trial was being had. We do not agree. Rule 404(b) of the Arkansas Rules of Evidence provides that evidence of other acts may not be admitted merely to prove the character of a person in order to show that he acted in conformity with that trait of character at the time in question. However, it also provides that such evidence may be admitted for the purpose of proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. To be admissible under this rule, the evidence must be independently relevant and its probative value must not be substantially outweighed by the danger of unfair prejudice.
This evidence was relevant. The victim did not personally know the appellant and was unable to give a motive for the attack. Proof of one’s purpose or motive for an abduction is an essential element of the offense of kidnapping, see Ark. Code Ann. § 5-ll-102(a) (1987) (formerly Ark. Stat. Ann. § 41-1702(1) (Repl. 1977)), and proof of the identity of the assailant is essential to conviction. There was evidence that this victim was attacked while riding a bicycle at a place where Shelia Suttles regularly rode a bicycle. He had attacked and threatened Ms. Suttles because she had spurned his affections. There was evidence that at the time of the attack appellant had referred to the victim as, or made some reference to a person named, Shelia. The appellant had placed his identity in issue by offering an alibi as his sole defense. As he had questioned the victim’s identification of him, this evidence was independently relevant to establish that fact, as well as the fact that the appellant had attempted to abduct her to avenge his unrequited love for Shelia. We also note that the trial court on its own motion offered to and did give a limiting instruction to the jury as to the purposes for which that evidence could be considered. From our review of the facts and circumstances surrounding the admission of that testimony, we cannot conclude that the trial court erred in admitting it for the limited purposes we have discussed.
During the cross-examination of appellant, the prosecuting attorney asked him if a particular individual had not visited him while he was in jail. The appellant moved for a mistrial, which was denied. He argues that this testimony so prejudiced him that he could not receive a fair trial and deprived him of his due process rights. The appellant does not point to us wherein he was prejudiced by that testimony or how it was a significant factor in his conviction. Our courts have held that facts indicating incarceration are not prejudicial per se and that prejudice is not presumed where there is nothing to indicate what impression may or may not have been made on the jurors by the remark and where the appellant offers no proof of prejudice. Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985). The defendant must bear the burden of affirmatively demonstrating prejudice and appellant has failed in that burden.
Appellant finally contends that the trial court erred in limiting the closing arguments to twenty-five minutes per side. Trial courts have inherent power to govern and control the orderly progress of trials, and it is within the sound discretion of the court to limit the time for argument by counsel. It is well settled that the range as well as the length of arguments must necessarily be left up to the discretion of the trial judge and the exercise of that discretion will not be disturbed unless it is manifestly abused to the prejudice of the parties. Ethridge v. State, 9 Ark. App. 111, 654 S.W.2d 595 (1983); Kelley v. State, 7 Ark. App. 130, 644 S.W.2d 638 (1983). The appellant here does not point out to us what arguments he was unable to cover during the period provided by the court or any manner in which he might have been prejudiced by the court’s ruling. The only issues before the court were the identity of the appellant and the question of his alibi. Although a number of witnesses and exhibits were introduced in support of those positions, we cannot conclude that the trial court abused its discretion or that prejudice resulted from the limitation on argument placed by the trial court.
Affirmed.
Corbin, C.J., and Jennings, J., agree. | [
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John E. Jennings, Judge.
After a bench trial, Forrest Knight was convicted of terroristic threatening in the first degree and was sentenced by the court to two years in prison. His sole argument on appeal is that the evidence was insufficient to support his conviction. We agree and reverse.
When the sufficiency of the evidence is challenged in a criminal case, we will affirm the trial court’s decision if it is supported by substantial evidence. Jimenez v. State, 12 Ark. App. 315, 675 S.W.2d 853 (1984). Substantial evidence has been defined as evidence which is of sufficient force that it will compel a conclusion one way or the other — it must amount to more than mere suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). In determining whether there is substantial evidence to support a verdict, we view the evidence in the light most favorable to the State. Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977).
On March 13, 1987, Edgar Householder was a Pulaski County Deputy Sheriff, working at the county jail. He and several other deputies were returning a number of inmates to their cell after their “activity time.” An altercation arose between several deputies and some of the inmates, and blows were struck. Appellant was present but was not involved in the altercation. After all the inmates were finally returned to their cells, Householder left and went into a part of the jail called the “control room.” From the control room, he listened through an intercom system to the inmates in the cell and heard appellant say, “Don’t worry about it, man. You’ll read about some of those [deputies] in the obituary and they won’t die of natural causes because I’ll be out of this pen someday.” He testified that he considered this a death threat and that he felt terrorized.
Appellant denied making the statement and his testimony was corroborated by that of several other inmates. The trial judge expressly stated that he did not believe this testimony, and he was not required to do so. Decisions on credibility belong to the trier of fact. Core v. State, 265 Ark. 409, 578 S.W.2d 581 (1979). Appellant also testified as follows:
Q: Were you aware while you were in maximum security that your conversations in there were subject to being heard through a microphone system?
A: Yes, sir.
Q: You did know that they could listen in on you?
A: Well, I knew that they talked to us and I heard other inmates.
Q: And what now?
A: They would talk to us over the intercom. I’ve never talked on it personally.
Q: I’m not sure if I’m understanding you right. You knew they could talk to you on an intercom?
A: Right.
Q: But my question to you was did you know that they could listen to what you were saying in the cell?
A: No, sir. There’s occasions when somebody would rap on the window and he would, you know, get on the intercom and say something.
Terroristic threatening is defined by Ark. Stat. Ann. § 41-1608(l)(a) (Supp. 1985) (now Ark. Code Ann. § 5-13-301 (1987)) as follows:
A person commits the offense of terroristic threatening in the first degree if with the purpose of terrorizing another person he threatens to cause death or serious physical injury or substantial property damage to another person.
Ark. Stat. Ann. § 41-203(1) (Repl. 1977) (now Ark. Code Ann. § 5-2-202 (1987)) defines “purposely” as follows:
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.
We agree with the State that the gravamen of the offense of terroristic threatening is communication, not utterance. The statute does not require that the threat be communicated by the accused directly to the person threatened. Richards v. State, 266 Ark. App. 733, 585 S.W.2d 375 (1979). There is no requirement that the terrorizing continue over a prolonged period of time. Warren v. State, 272 Ark. 231, 613 S.W.2d 97 (1981). Nor does the statute require that it be shown that the accused has the immediate ability to carry out the threats. See Commonwealth v. Ashford, 268 Pa. Super. 225, 407 A.2d 1328 (1979). We do agree, however, with the statement of the court in State v. Morgan, 128 Ariz. 362, 625 P.2d 951 (1981), that to be found guilty of threatening the defendant must intend to fill the victim with intense fright. Under our statute it is an element of the offense that the defendant act with the purpose of terrorizing another person, i.e., it must be his “conscious object” to cause fright.
When we view the evidence in the light most favorable to the State, we find that the State established that appellant made the threatening statement, that the statement was perhaps sufficiently specific to constitute a threat to Householder, that appellant was aware that it was possible that his statement might be overheard, and that Householder was, in fact, put in fear. While we are aware that one’s purpose, like any other state of mind, is not ordinarily subject to proof by direct evidence, and must frequently be inferred from other facts, we do not think that the evidence in this case is sufficient to establish that appellant made the statement with the conscious object of terrorizing Deputy Householder, even if he was aware that he might be overheard. Statutes in other states impose criminal liability for threats made in reckless disregard of the risk of causing terror. See, e.g., State v. Schweppe, 184 Minn. 25, 237 N.W.2d 609 (1975). Our statute does not.
Reversed and dismissed.
Cooper and Coulson, JJ., agree. | [
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Melvin Mayfield, Judge.
This is an appeal from a probate court order granting appellee’s petition for termination of parental rights and appointment of a guardian with authority to consent, without notice to or consent of the natural parents, to the adoption of two minor children, Timothy Garibaldi, born February 11, 1976, and Casey Garibaldi, born December 3, 198.4.
Timothy Garibaldi has been under the care and custody of the Arkansas Department of Human Services since September 9, 1985. On April 22,1986, appellee Richard Dietz, Administrator of Adoption Services, Arkansas Department of Human Services, filed a petition seeking appointment as guardian with power to consent to adoption with respect to Timothy. Casey Garibaldi has been under the department’s care and custody since March 4, 1986, and in January 1987, the department amended its petition to include her.
A hearing was held May 15, 1987, at which the appellant, Joy Sue Garibaldi, appeared and opposed the granting of appel-lee’s petition. After hearing the evidence, the court granted the petition. The court found that the appellant suffers from a longstanding and uncontrollable mental or emotional illness; that the return of custody of the children to the appellant would present a substantial risk of serious harm to them as a result of appellant’s illness; that the appellee had attempted for a period of six months to provide remedial support services designed to reunite the children with their mother, but these services were refused; that the testimony, except for James Moneypenny, a psychologist, is not indicative of any ability in appellant to care for her children; that appellant has functioned somewhat adequately in the structured setting of a nursing home, but this setting would not be appropriate for the raising of children and, from the evidence presented, appellant will never be able to care for her children outside such a structured setting; that the children’s best interests will be served by termination of appellant’s parental rights; and that appellant, by her own testimony, even at the time of trial, still holds some of her delusions.
On appeal to this court, appellant first argues the trial court erred in finding her an unfit parent because the appellee failed to provide appropriate remedial services and because appellant’s mental illness is under control. Appellant says the evidence indicates that her mental illness is controlled and has been controlled since shortly after she received proper medical treatment.
Ark. Code Ann. § 9-9-304 (1987) lists the conditions which permit a court to appoint a guardian with power to consent to the legal adoption of the child or children. Under that statute, before entering a guardianship order, the court shall find from the evidence that:
(3) Both parents are, or the surviving parent or the mother of an illegitimate child is, unfit to have the child for any of the following reasons:
(F)(i) Placing the child in the custody of the parent would raise a substantial risk of serious harm to the child;
(ii) However, before grounds may be established under this subdivision, the court must be satisfied that the parents have received for a period of up to six (6) months in the discretion of the court, from the Arkansas Department of Human Services, remedial support services designed to reunite the child and the parents and that such services have failed to substantially reduce the risk of harm to the child.
(iii) In determining the risk the court may consider, but shall not be deemed to be limited to, one (1) or more of the following:
(a) Longstanding and uncontrollable mental or emotional illness or mental deficiency of the parent;
In a proceeding to appoint a guardian with power to consent to adoption, the evidence justifying the appointment must be clear and convincing; and while this court reviews probate proceedings de novo, the findings of the trial court will not be disturbed unless clearly erroneous, giving due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses. Burdette v. Dietz, 18 Ark. App. 107, 711 S.W.2d 178 (1986).
In the instant case, there was evidence that appellant had been hospitalized three times between May 22,1985, and July 3, 1986. A doctor testified that appellant’s diagnosis after her third admission was “bipolar disorder manic, what we call mood congruent.” He said appellant was “psychotic with a bipolar manic”; a “congruent psychotic” with “judgment markedly impaired by psychosis.” After release from her third hospitalization, appellant resided in nursing homes until the date of the hearing in this matter. At that time, she had no place to live and was taking medication for her illness.
Dr. Matthews, who had examined appellant on her second and third hospital admissions, testified by deposition that appellant was not capable of parenting at the time of her third discharge. He said she was still very sick when she was discharged from the hospital and they felt she had to be in a structured environment and that is why they referred her to a nursing home. He testified that appellant’s disorder can be controlled by medication, that she needs long-term medication, and that persons with her type of disorder are notorious for not staying on their medication. He said that, if appellant has been in a structured environment for the past eleven months with no manic episodes, it is not significant as to what will happen in the future. He stated the key to her being able to face life on the outside is whether she would stay on her medication.
Dr. Hickman, who interviewed appellant on April 21,1987, testified by deposition that appellant suffers from mental illnesses of psychotic proportions and that her illnesses are not curable. He testified that appellant’s chances to stay on medication are guarded at best. It was his impression that she was not interested in continuing her medication. He said appellant could not make it on the streets and that she does not recognize she is sick. Dr. Hickman testified that appellant did not talk about her children during the interview other than being concerned about getting them back, and that the more accurate measure of her parenting ability would be how she was as a parent prior to her illness. He said appellant would not be as good a parent now because psychosis does not improve parenting skills, and that appellant’s type of illness can be explosive even while on medication.
James Huett, appellant’s oldest son, testified that his mother quit her job in Morrilton in 1982. At that point, he said, his mother started talking to herself and put “no trespassing” signs in the yard. After Casey was born, they moved to North Little Rock. His mother let his brother, Tim, stay home from school and she heard they were going to call Social Services, so the family left. He said the family took a bus to Fort Smith and hitchhiked from there to Oklahoma, then to Kansas City, and then all the way back to Morrilton. This was in April of 1985. James said that he had been the one primarily responsible for taking care of the kids because his mother couldn’t do it. He testified that he had been scared of his mother; that her moods would change; and that she behaved erratically. He said she told him that he was paid to kill her and she’d kill him and have his daddy get the coffin and put James in it for his eighteenth birthday. James also testified that his mother had told him and the other children that she had a relationship with Mac Davis, the entertainer, and had plans to marry him. James’s testimony detailed her psychotic episodes and delusions, and he testified that he thought the children should be in foster care.
As to appellant’s contention that the appellee had failed to provide appropriate remedial services, the record shows that appellant was offered counseling and refused. Peggy Hendricks testified that she was a service worker for Children and Family Services and became involved in the Garibaldi case in 1985 when she had offered appellant counseling services and appellant refused. Linda Woodruff, who was the case worker from June 1985 through January 1987, testified that several services were offered to the appellant and that appellant refused the homemaker services, mental health counseling, and all of the educational information items. Ms. Woodruff also testified the only service ever accepted was transportation to go shopping on two occasions.
From the foregoing evidence, we cannot say the trial court’s finding appellant an unfit parent was clearly erroneous.
Appellant next argues the trial court erred in admitting and considering the prior testimony of Timothy Garibaldi because it was hearsay. The court admitted testimony of Timothy taken at a mandatory administrative review hearing held by a foster care magistrate for the purpose of deciding whether services provided to the children while in foster care were adequate, whether and to what degree parental visitation was proper, and similar matters. Appellant says Rule 804 of the Arkansas Rules of Evidence provides for the admission of some former testimony if the witness is “unavailable” within the meaning of the rule, but that Timothy was not unavailable under any of the criteria of Rule 804.
When the state sought to introduce Timothy’s testimony, the following exchange took place:
MS. DRIVER: At this point I would like to introduce into evidence Tim Garibaldi’s testimony, if you have no objection. You wouldn’t agree?
MR. WOLFMAN: I don’t mind us going over it, but I don’t think it is admissible.
This was the extent of appellant’s objection. Appellant’s counsel failed to state the specific grounds of her objection to this testimony and we do not think they were apparent. Error cannot be predicated upon a ruling admitting evidence unless a timely objection is made stating the specific ground of the objection if the ground is not clear from the context. Walt Bennett Ford, Inc. v. Brown, 283 Ark. 1, 670 S.W.2d 441 (1984); A.R.E. 103(a)(1). Moreover, at best, this evidence was cumulative because substantially the same evidence was admitted without objection through the testimony of Janis Engelkes, a psychological examiner who had examined Timothy. Without objection, she testified to what Tim had told her. We find no prejudicial error in the admission of Tim’s testimony.
Appellant finally argues the trial court erred in finding that termination of parental rights was in the best interest of the children, and especially, by failing to distinguish between the two children. Appellant contends the notion of best interest cannot be taken literally as it would in a custody dispute between parents; but rather, due regard must be given to the paramount rights of the natural parent. Appellant argues that there is some testimony that the mother-child bond between Timothy and the appellant has been broken because of appellant’s illness, but that Casey has suffered no conscious rejection.
In Burdette v. Dietz, 18 Ark. App. 107, 711 S.W.2d 178 (1986), this court stated:
While we agree that the rights of natural parents are not to be passed over lightly, these rights must give way to the best interest of the child when the natural parents seriously fail to provide reasonable care for their minor children. Parental rights will not be enforced to the detriment or destruction of the health and well-being of the child.
18 Ark. App. at 109. In the instant case, the trial judge heard evidence that appellant had hitchhiked across several states with the children; that James Huett had been primarily responsible for taking care of the children; that he thought Casey and Tim should be in foster care; that Timothy had no desire to go back and live with appellant because of the way his life was when he lived with her; that appellant’s illnesses were not curable; and that appellant could not make it on the streets. While there was some evidence that appellant had functioned somewhat adequately in the structured setting of a nursing home, the trial court found that raising children in a nursing home is not in their “best interest.”
The judge in his ruling from the bench stated:
I know how important my children are to me, and I am sure they’re just as important to Mrs. Garibaldi. I am truly concerned. I do not believe Mrs. Garibaldi can look after the children.. . . It is very sad. It is unfortunate. And, it certainly is not an easy thing to do, is to deprive a parent from the right to be with their children. But, it is not right to the children to place them with the parent simply because they’re a parent, if it is not for the benefit of the children. ... I am sure it would be beneficial to Miss Garibaldi to have the children with her, and probably be therapeutic. I don’t think it would be therapeutic and beneficial to the children, and I don’t think the past history of this family relationship is indicative that it will ever be a happy and congenial home for these children.
We cannot say that the trial court erred in finding that termination of parental rights was in the best interests of the children.
Appellant has filed a motion to strike certain portions of the appellee’s supplemental abstract and brief. We were aware of appellant’s objections and have relied only on matters in the record in reaching our decision. Therefore, for practical purposes, the appellant’s motion has been granted.
The trial court’s decision is affirmed.
Jennings, J., dissents. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from the Arkansas Workers’ Compensation Commission. Appellant, Clayton Hamilton, now deceased, appeals from a decision of the full Commission dated April 30, 1986, which held that Arkansas Statutes Annotated §§81-1314(a)(7) and -1318(a)(2) (Repl. 1976) (recodified at Ark. Code Ann. §§ 11-9-601(g)(1)(B) and 11-9-701 (a)(2)(A) (1987)) are valid. We affirm.
Appellant was employed by appellee, Jeffrey Stone Company, from 1957 until 1969 as a rock crusher. In this capacity, appellant was exposed to silica dust. In 1969, appellant was hospitalized and treated for tuberculosis. Appellant was thought to have been cured and was released to return to work; however, his physician advised him not to return to the same type work. Appellant found employment as a security guard, a position he held until 1977 when breathing difficulties necessitated his retirement. In 1980, appellant consulted a different physician who diagnosed his condition as silicosis. Appellant immediately filed a claim for workers’ compensation benefits which was denied because the statute of limitations had run.
On the first appeal of this case before the Arkansas Court of Appeals, appellant challenged the constitutionality of the silicosis limitations statutes, Ark. Stat. Ann. §§ 81-1314(a)(7) and -1318(a)(2). This court in Hamilton v. Jeffrey Stone Co., 6 Ark. App. 333, 641 S.W.2d 723 (1982), remanded the case to allow appellant the opportunity to argue the constitutional issues for the following reasons:
In the instant case, appellant failed to properly raise before the Commission the issue concerning the constitutionality of §§ 81-1314(a)(7) and 81-1318(a)(2). Because we have never held, until now, that such issues must be raised first at the Commission level, we believe it would be unfair not to remand this cause in order to allow the appellant the opportunity to present and argue his constitutional issue.
Id. at 335-36, 641 S.W.2d at 725. On remand, the Commission upheld the constitutionality of the foregoing statutes and the case was again appealed to this court. In an unpublished opinion by this court, we affirmed the Commission’s decision.
Appellant then petitioned the Arkansas Supreme Court for review. Review was granted from this court’s unpublished opinion and the supreme court reversed and remanded the case to this court for a decision on the constitutionality of the above statutes stating we “refused to reach the constitutional questions although those issues were argued and briefed before the Commission and the court of appeals.” Hamilton v. Jeffrey Stone Co., 293 Ark. 499, 739 S.W.2d 161 (1987). Therefore, the instant appeal represents the third appearance of this case before our court.
In approaching questions pertaining to the constitutionality of legislative acts, it is appropriate to keep in mind basic principles regarding the presumptions and burdens of proof involved. It is well settled that before an act may be struck down as unconstitutional, it must clearly appear that the act is at variance with the Constitution. Handy Dan Improvement Center, Inc. v. Adams, 276 Ark. 268, 633 S.W.2d 699 (1982). There is a presumption of constitutionality attendant to every legislative enactment, and all doubt concerning an act must be resolved in favor of constitutionality. Holland v. Willis, 293 Ark. 518, 739 S.W.2d 529 (1987). If it is possible for the courts to construe an act so that it will meet the test of constitutionality, they not only may, but should and will do so. Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980). Also, the party challenging a statute has the burden of proving it unconstitutional. The Citizens Bank of Batesville v. Estate of Pettyjohn, 282 Ark. 222, 667 S.W.2d 657 (1984).
Applying the above law to the case at hand, appellant bears the burden of proving the unconstitutionality of §§ 81-1314(a) (7) and -1318(a)(2) which provide that a claim for compensation for disability from silicosis must be filed with the Commission within one year from disablement, provided disablement is within three years of the last injurious exposure to the hazards of the disease.
EQUAL PROTECTION
Appellant first argues that the above statutes are unconstitutional as violative of the equal protection clause of the fourteenth amendment to the United States Constitution. Appellant contends these provisions are more restrictive than the statute of limitations placed on industrial accident victims, particularly since the judicial adoption of the “discovery rule” which provides that the limitation period does not begin to run until the claimant knows or should reasonably be expected to know the nature and extent of his injuries. Woodard v. ITT Higbie Mfg. Co., 271 Ark. 498, 609 S.W.2d 115 (Ark. App. 1980).
In determining whether a classification denies the equal protection of the laws, the court must consider if it has a rational basis and is reasonably related to the purpose of the statute. Holland v. Willis, 293 Ark. 518, 739 S.W.2d 529 (1987). A classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly circumstanced shall be treated alike. Corbitt v. Mohawk Rubber Co., 256 Ark. 932, 511 S.W.2d 184 (1974).
The Supreme Court addressed the scope of state discretion in McGowan v. Maryland, 366 U.S. 420 (1961) that:
Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classifica tion rests on grounds wholly irrelevant to the achievement of the States objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. [Citations omitted.]
Id. at 425-26.
Here, the legislature could reasonably find that the limitation period established for silicosis victims prevents litigation on claims too old to be successfully investigated and defended. Additionally, the legislature could conclude that the distinction between the limitation periods for silicosis as opposed to accidental injuries is needed because each malady has a different mode of detection and treatment.
The record does not contain any indication that this apparently reasonable basis does not exist. Furthermore, while we agree with Justice Glaze that the constitutionality of the statutes are ripe for resolution, the record reveals that appellant did not comply with Judge Glaze’s initial instruction to present proof on remand and argue the constitutional issue. The record contains no evidence to support appellant’s position. The abstract contains only the requested briefs and opinions of the administrative law judge, Commission, and this court. Appellant did not meet the burden required of him to show that there was no rational basis for the distinction between the limitation period for silicosis versus accident victims. On its face, the silicosis limitation statute is not arbitrary because all silicosis victims are treated alike with regard to the allotted time within which their claims for disability must be filed. Furthermore, the statutes in question grant silicosis victims a greater limitation period than victims of other occupational diseases who must file claims within one (1) or two (2) years after the last injurious exposure to the hazards of the disease.
In this case, appellant’s constitutional challenge to the silicosis limitations statute must fail for lack of proof that an arbitrary classification is involved or the statute is unsupported by a legitimate governmental interest. Considering the strong presumption of constitutionality and resolving all doubt in favor thereof, we find that appellant has not clearly demonstrated that Arkansas Statutes Annotated §§ 81-1314(a)(7) and-1318(a)(2) violate the equal protection clause of the United States Constitution. See Bill Dyer Supply Co. v. State, 255 Ark. 613, 502 S.W.2d 496 (1973); Green Star Supermarket, Inc. v. Stacy, 242 Ark. 54, 411 S.W.2d 871 (1967).
DUE PROCESS
As set out under the equal protection portion of this opinion, appellant has not borne his burden of proving a violation of the due process clause. Appellant argues that the statute of limitations for silicosis victims denies due process of law by setting limitation of action periods so brief that they amount to unreasonable denials of rights and remedies due to the slow, insidious nature of the disease.
It is clear that the legislature has the power to set the statute fixing the limitation period within which a claimant must file a claim for benefits. As decided in Owen v. Wilson, 260 Ark. 21, 537 S.W.2d 543 (1976), the vital question is one of reasonableness, and the courts may not strike down a statute of limitations unless the period before the bar becomes effective is so short that it amounts to a virtual denial of the right itself or it can be said that the legislature has committed palpable error.
Any statute of limitations will eventually operate to bar a remedy and the time within which a claim should be asserted is a matter of public policy, the determination of which lies almost exclusively in the legislative domain, and the decision of the General Assembly in that regard will not be interfered with by the courts in the absence of palpable error in the exercise of the legislative judgment. Id.
Here, without sufficient proof to the contrary, we cannot say that the legislative determination of three years from the date of last exposure or one year from disablement is an unreasonably short time for silicosis victims to discover and assert their cause of action. Appellant presented no sufficient proof of record that the limitation period imposes an unreasonably short time for silicosis victims to file claims; therefore, we find no basis to declare it unconstitutional.
Affirmed.
Coulson, J., agrees.
Cracraft, J., concurs. | [
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James R. Cooper, Judge.
In this appeal from the Workers’ Compensation Commission the only issue is whether the Commission was correct in holding that the appellant’s claim is barred by the statute of limitations. We affirm.
The appellant was injured on July 11,1979, when a ladder on which he was standing came into contact with a power line. On June 3,1981, the appellant filed a civil suit in the circuit court of Poinsett County against the appellant, Arkansas Power and Light, and E. Ritter Company. On April 11,1983, the trial court granted the appellee’s request for a directed verdict, finding that there was no negligence on the part of the appellee. The appellant then filed a claim with the Workers’ Compensation Commission on August 8,1984. The administrative law judge found that the appellant’s claim was barred by the statute of limitations and this finding was adopted by the Commission. The appellant contends that the statute of limitations on workers’ compensation claims was tolled by the filing of his civil suit which was subsequently dismissed.
Arkansas Statutes Annotated § 81-1318 (a) (Supp. 1985) [Ark. Code Ann. § ll-9-702(a)(l) (1987)] provides that a claim of compensation shall be barred unless filed with the Commission within two years from the date of injury. However, according to Ark. Stat. Ann. § 8.1-1318(e) (Repl 1972) [Ark. Code Ann. § 1 l-9-702(e) (1987)], the limitation period in § 81-1318 may be tolled:
Whenever recovery in an action at law to recover damages for injury to or death of an employee is denied to any person on the ground that the employee and his employer were subject to the provisions of the Act [§§ 81-1301 — 81-1349], the limitations prescribed in subsections (a) and (b) shall begin to run from the termination of such action.
It is clear that in order to toll the statute section (e) requires (1) an action at law for damages; (2) denial of recovery; and (3) that recovery be denied on the ground that the employer and employee were subject to the Act. Bryan v. Ford, Bacon & Davis, 246 Ark. 327, 438 S.W.2d 472 (1969); Guthrie v. Tyson Foods, Inc., 20 Ark. App. 69, 724 S.W.2d 187 (1987). In the present case, the appellant has not met the third requirement for tolling the statute. The trial court did not dismiss the appellant’s civil suit because the claim was subject to the Workers’ Compensation Act, but because there was no evidence of negligence on the part of the employer. The burden of filing a claim within the statute of limitations is on the claimant. St. John v. Arkansas Lime Co., 8 Ark. App. 278, 651 S.W.2d 104 (1983). The court cannot extend the period of the statute of limitations on appeal, despite the fact that the claim may be meritorious. Miller v. Everett, 252 Ark. 824, 481 S.W.2d 335 (1972). Any statute of limitations will eventually operate to bar a remedy and the time within which a claim should be asserted is a matter of public policy, the determination of which lies almost exclusively with the legislative domain, and the decision of the General Assembly in that regard will not be interfered with by the courts in the absence of palpable error in the exercise of the legislative judgment. Hamilton v. Jeffrey Stone Co., 25 Ark. App. 66, 752 S.W.2d 288 (1988).
Affirmed.
Corbin, C.J., and Cracraft, J., agree. | [
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George K. Cracraft, Judge.
George Mathews appeals from a summary judgment entered in favor of Woodrow Garner, Earl Kirkpatrick, and Lonie Pettus, as directors of the Sardis Water Association, and the dismissal of his complaint with prejudice. Appellant contends that the chancellor erred in granting summary judgment because there were genuine issues as to material facts to be resolved, and because his ruling was based in part upon consideration of both oral testimony and a brief filed in support of the appellees’ motion for summary judgment. We find no error and affirm.
Appellant filed a complaint alleging that he was owner of lands known as Sardis Suburbs Subdivision and that on August 13, 1985, the defendants, as directors of the water improvement district providing water to that area, contracted to supply water service to lots in the subdivision. He further alleged that on July 14, 1986, the appellees adopted a resolution suspending the issuance of all new “tie-ons” to the water district lines, and that, although they had supplied water to other persons, appellees had failed to supply water to appellant or those persons residing in appellant’s subdivision. Appellant prayed for an order enjoining the appellees from supplying water to any additional customers until service to the subdivision had been supplied.
The appellees answered, admitting that such a contract had been entered into but stating that they had adopted a resolution stopping extension of water service to the appellant and all other persons because the Arkansas State Department of Health, the governing body of water associations within this state, entered an order directing the appellees not to initiate any new service contracts subsequent to July 23,1986. Appellees further alleged that neither appellant nor any of the persons purchasing lots from appellant had applied for water service prior to the effective date of the Health Department ban, and they prayed that the complaint be dismissed.
The appellees then filed a motion for summary judgment in which they alleged that judgment should be granted in their favor because it was impossible for them to fulfill the terms of the contract with appellant due to the order issued by the Department of Health prohibiting new tie-ons to the Sardis Water System. Attached to the motion was the affidavit of Bob Makin, an engineer-supervisor with the Department of Health, which stated that the department imposed a ban on new connections to the Sardis Water System in July of 1986 because of water supply problems the association was experiencing, and that the Sardis Water Association had no choice but to comply with the directive or otherwise be in violation of the law. He further averred that the ban was imposed on July 16,1986, but provided for a seven-day grace period for the purpose of allowing those persons who had construction underway or who had otherwise committed themselves financially to live in the area an opportunity to be connected to the water system in order to prevent undue hardship to those individuals. He further averred that the ban on new connections was to be absolute with regard to anyone other than those who signed up during the grace period. Also attached were averments that notice of the ban and grace period was published.
The affidavit of Roger Moren, engineer-superintendent of the Sardis Water Association, was also attached to the motion for summary judgment. Mr. Moren averred that the appellant was present at the meeting where the ban and grace period were discussed, and that the water to his subdivision had not been supplied simply because he had not signed up for connection to the system during the grace period. He further averred that the refusal to supply appellant with water was based entirely upon the prohibiting order of the state agency.
Appellant filed a timely response to the motion asserting that there were material issues of fact to be resolved presented by the pleadings, specifically appellant’s claim of entitlement to money damages. Contained in the response to the motion for summary judgment was a prayer that the matter be transferred to the Saline Circuit Court as all equitable issues had been resolved and rendered moot. No supporting documents were attached to the response. The court thereafter entered an order reciting that after consideration of the pleadings, the motion for summary judgment, the attached affidavits, the appellees’ supporting brief, and the response to the motion, it found that the motion for summary judgment should be granted and entered an order dismissing the complaint with prejudice.
The appellant first contends that the chancellor’s ruling was erroneous because there were genuine issues of a material fact to be resolved. We do not agree.
Motions for summary judgment are governed by Rule 56 of the Arkansas Rules of Civil Procedure, which provides that a judgment may be entered if the pleadings, depositions, answers, interrogatories, and admissions on file, in addition to affidavits, if any, show that there is no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. Summary judgment is an extreme remedy which should be allowed only when it is clear that there is no genuine issue of fact and the moving party is entitled to a judgment as a matter of law. Johnson v. Stuckey & Speer, Inc., 11 Ark. App. 33, 665 S.W.2d 904 (1984). Although affidavits and documents in support of motions for summary judgment are construed against the moving party, once a prima facie showing of entitlement to summary judgment is made, the responding party must discard the shielding cloak of formal allegations and meet proof with proof by showing a genuine issue as to a material fact. Pruitt v. Cargill, Inc., 284 Ark. 474, 683 S.W.2d 906 (1985); Hughes Western World, Inc. v. Westmoor Manufacturing Co.., 269 Ark. 300, 601 S.W.2d 826 (1980); McMullan v. Molnaird, 24 Ark. App. 126, 749 S.W.2d 352 (1988).
Here, the affidavits submitted by appellees constituted proof that the Arkansas Department of Health had imposed an absolute ban against the water association’s adding any new customers, that the association could not then provide service to appellant’s subdivision without violating that order, and that the ban was the only reason for its refusal to provide that service. Our supreme court has recognized impossibility of performance as an excuse for failure to perform a contract, see Frigillana v. Frigillana, 266 Ark. 296, 584 S.W.2d 30 (1979), and other jurisdictions have stated sound reasons why the defense should be available where public service contracts are not performed because of valid orders of state or federal regulatory agencies. See, e.g., Litman v. Peoples Natural Gas Co., 303 Pa. Super. 345, 449 A.2d 720 (1982). See also Restatement (Second) of Contracts § 264 (1979). We conclude that the appellees’ proof as to their performance of the contract being impossible made out a prima facie case of their entitlement to judgment. As the appellant filed no affidavits or submitted any other proof contradicting the averments of appellees’ affidavits, he failed to meet proof with proof showing a genuine issue as to a material fact, and we conclude that the entry of summary judgment in favor of the appellees was correct.
Appellant also argues that the chancellor should not have considered the affidavits filed by officials of the water association because they were self-serving. We disagree. Rule 56 does not prohibit or limit the filing of self-serving affidavits, but it does require that affidavits establishing prima facie entitlement to judgment be controverted. See Ark. R. Civ. P. 56(e).
The appellant further contends that the court should have transferred the case to circuit court for further proceedings as the issues calling for purely equitable relief had been resolved or rendered moot. Appellant does not point out to us the basis for his assertion that the equitable issues had been resolved. The only issues before the court at any time were equitable ones — praying for injunctive relief. Although the appellant in his motion stated that there remained an issue of money damages, he does not point out or abstract for us any pleading in which money damages were requested. Additionally, a determination of impossibility of performance would negate any issue of damages for the failure to perform.
Appellant next contends that the chancellor erred in basing his decision on appellees’ brief. The court recited in its order that it had considered, along with the supporting documents attached to the motion, the appellees’ supporting brief. The brief as abstracted contains nothing more than a recitation of the facts set forth in the supporting documents attached to the motion for summary judgment, along with citations of law which appellees felt applicable to those facts. We find nothing in Rule 56 which prohibits a party from submitting his motion on briefs so long as he has submitted the necessary documents to support the materials contained in the brief. A brief containing citations on a complicated issue of law is always helpful to the court. This case is not one in which the trial court relied upon allegations in a brief, such as the supreme court spoke out against in Guthrie v. Tyson Foods, Inc., 285 Ark. 95, 685 S.W.2d 164 (1985). Here, the judgment was based on facts recited in uncontroverted affidavits. Moreover, even if the brief was disregarded, we would still conclude that the summary judgment in this case was correct.
Appellant finally contends the chancellor committed reversible error in taking into consideration oral testimony prior to rendering the summary judgment. Rule 56 does not permit supplementation by oral testimony of the pleadings, depositions, answers, interrogatories, admissions on file, and affidavits filed in considering whether summary judgment is appropriate. Montgomery Ward & Co., Inc. v. Credit, 274 Ark. 66, 621 S.W.2d 855 (1981); Dixie Furniture Co. v. Arkansas Power & Light Co., 19 Ark. App. 160, 718 S.W.2d 120 (1986). Here, although the court did take oral testimony on some preliminary matters many months prior to granting summary judgment, no oral testimony was taken at any hearing on the motion. Additionally, the court specifically recited those matters it considered in granting the motion, and “oral testimony” was not included in that recital. Furthermore, as in the two cases just cited, when the oral testimony is disregarded, there remains the uncontradicted affidavits which are sufficient to sustain a finding that there was no material issue of fact to be determined and that appellees were entitled to judgment as a matter of law.
Affirmed.
Corbin, C.J., and Coulson, J., agree. | [
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Donald L. Corbin, Chief Judge.
This appeal comes to us from Garland County Circuit Court. Appellant, Ester Pamela Demarest, appeals her conviction of theft in excess of $2,500 in violation of Ark. Code Ann. § 5-36-103 (1987) (formerly Ark. Stat. Ann. § 41-2203 (Repl. 1977)). We find reversible error and remand.
Appellant was employed by Dr. Bhaktnan Krishnan and performed nursing as well as office duties. During her employment, appellant wrote two checks to herself totaling $2,866.77 which she signed with the doctor’s signature stamp. The check disbursement journal reveals that appellant made false entries on both checks for payee and check amounts. The evidence regarding the checks is conflicting. Appellant argues that she was initially hired as a surgical assistant; however, her duties later expanded to include part-time office work. Appellant contends that she wrote the checks in question at the direction of Dr. Krishnan as compensation for the additional office duties. Appellant also contends that Dr. Krishnan instructed her to make the false entries in the journal because he did not want his wife to know about the money paid appellant for additional office duties. Dr. Krishnan denies any such agreement with appellant. He argues that he did not authorize appellant to write the two checks in issue or make the false journal entries, and he terminated her when he became aware of her actions. Dr. Krishnan made a complaint to the police and the case proceeded to trial wherein the jury found the appellant guilty and assessed a fine of $15,000. From the judgment of conviction comes this appeal.
For reversal, appellant raises the following two points as error: (1) The lower court erred in sustaining the State’s objection to the proffered prior inconsistent statement of Dr. Krishnan; (2) the lower court erred in sustaining the State’s objection to testimony which established hostility between Dr. Krishnan’s wife and appellant.
First, appellant argues that she was denied a fair trial by the lower court’s refusal to allow Nelda Hunt’s proffered testimony which would have placed doubt on Dr. Krishnan’s credibility. We agree. Arkansas Rules of Evidence provide that all relevant evidence is admissible. A.R.E. Rule 402. 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. A.R.E. Rule 401.
Here, the proffered testimony reveals that Ms. Hunt would have testified to a prior inconsistent statement by Dr. Krishnan. Specifically, she testified that Ms. Hunt interviewed for a job with the doctor at which time he told her that she would be his bookkeeper and officer manager and that appellant would be his surgical nurse. This testimony would have contradicted testimony elicited from Dr. Krishnan during cross-examination when he denied telling Ms. Hunt that appellant was going to be his surgical nurse and Ms. Hunt his office manager and bookkeeper. Dr. Krishnan testified that he discussed the job with Ms. Hunt but in the meantime talked with and employed appellant who agreed to work as both a nurse and office worker.
Both parties to this action agree that the issue to be resolved is whether the checks were written by deception without authorization of Dr. Krishnan or whether Dr. Krishnan authorized the checks and directed the false entries in the cash disbursement journal. Ms. Hunt’s proffered testimony goes to the existence of some fact that is of consequence to the determination of this action. This evidence makes the existence of that fact more probable because it suggests that Dr. Krishnan recognized two separate jobs associated with his medical practice. It places Dr. Krishnan’s credibility in doubt and is relevant to appellant’s defense that she agreed to perform office duties in addition to her nursing position for which she was to receive additional compensation. See A.R.E. Rule 401.
Arkansas Rules of Evidence provide methods by which the credibility of a witness may be impeached. Rule 607 provides that the credibility of a witness may be attacked by any party, including the party calling him. Also, Rule 613(b) allows extrinsic evidence of a prior inconsistent statement by a witness into evidence if the witness and the opposite party are afforded an opportunity to explain or deny the statement and the opposite party is afforded an opportunity to interrogate the witness.
It is the general rule that relevancy of evidence is within the trial court’s discretion and, absent a showing of abuse of that discretion, its decision will be affirmed. Lewis v. State, 288 Ark. 595, 709 S.W.2d 56 (1986). Here, the trial court’s refusal to allow the proffered testimony of Ms. Hunt demonstrates an abuse of discretion.
Secondly, appellant argues the lower court erred in sustaining the State’s objection to testimony which established hostility between Dr. Krishnan’s wife and appellant. The record reveals that during direct examination of appellant, the court disallowed testimony regarding appellant’s relationship with Dr. Krishnan’s wife. The proffered testimony would have been that Mrs. Krishnan came to the office on two occasions and was upset and hostile toward appellant, asking many questions. Appellant would have testified that she felt physically threatened by Mrs. Krishnan’s behavior.
The trial judge has discretion in deciding evidentiary issues and his decision will not be reversed on appeal unless he has abused that discretion. Baumeister v. City of Fort Smith, 23 Ark. App. 102, 743 S.W.2d 396 (1988). Here, the trial court abused its discretion in excluding evidence of the hostility. The trial court improperly limited evidence that tended to make the existence of a specific fact more probable, i.e., whether Dr. Krishnan directed the false journal entries so that his wife would not be aware of the additional funds paid appellant for office duties.
Accordingly, the judgment is reversed and remanded.
Reversed and remanded.
Cracraft and Jennings, JJ., agree. | [
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Terry Crabtree, Judge.
On August 18, 1997, Central Arkansas Telephone Cooperative and seven other local exchange carriers, appellants, filed a notice of appeal from Order No. 9 issued by the Arkansas Pubhc Service Commission (Commission) in Docket No. 96-428-U. Appellants also filed a motion for stay and expedited appeal. This court denied their motion for stay but granted their motion for an expedited appeal. Their appeal concerns Act 77, the “Telecommunications Regulatory Reform Act of 1997,” and its effect on the Arkansas IntraLATA Toll Pool (AITP or Toll Pool). In Order No. 9, the Commission held that the passage of Act 77 made participation in the Toll Pool voluntary and vacated Order No. 7, which created the Toll Pool. On appeal, appellants argue that the Commission erred in holding that Act 77 made participation in the Toll Pool voluntary without further action of the Commission.
The Arkansas IntraLATA Toll Pool (the Toll Pool) was established by Commission Order No. 7 in Docket No. 83-042-U to allow local exchange carriers (LECs) to recover their costs of providing intraLATA toll service. Participation in the Toll Pool was required by Order No. 7, and the Toll Pool agreement provided that all LECs would charge their customers uniform rates for intraLATA toll calls and contribute these revenues to the Toll Pool. The Toll Pool then redistributed the revenues to the LECs based on their individual needs, causing some LECs to contribute more to the Toll Pool than their actual expenditures and some LECs to receive more in reimbursements than their contributions to the Toll Pool.
In 1996, GTE Southwest, Inc., and GTE Arkansas, Inc. (collectively “GTE”), sought permission from the Commission to exit the Toll Pool so that it could flexibly price intraLATA toll services to meet competition as required by the federal Telecommunications Act of 1996. GTE argued that it was the only local exchange carrier in Arkansas that was required to implement full competition for intraLATA toll service in its serving areas by August 7, 1997, and therefore, it needed the same flexibility in pricing toll plans as the interexchange carriers, which is inconsistent with a pooling environment. Docket No. 96-428-U was opened by the Commission in response to GTE’s motion.
Act 77, the “Telecommunications Regulatory Reform Act of 1997,” was passed by the Arkansas General Assembly and became law on February 4, 1997. Act 77 significantly changed the Commission’s regulation of the telecommunications industry. Basically, it limited the Commission’s authority over certain “electing” LECs and their revenues and permitted companies that elect regulation under Act 77 to avoid much of the rate regulations of the Commission to which telephone companies are subject. Additionally, section 4 of the Act created the Arkansas Universal Services Fund (AUSF), the purpose of which is “to promote and assure the availability of universal service at rates that are reasonable and affordable, and to provide for reasonably comparable services and rates between rural and urban areas.”
After Act 77 was enacted, the Commission expanded Docket No. 96-428-U to also consider AT&T Communications of the Southwest, Inc.’s (AT&T’s) request to abolish the Toll Pool in light of the passage of Act 77. The Commission entered Order No. 5, which set a public hearing on GTE’s and AT&T’s requests. Alltel Arkansas, Inc. (Alltel) and appellants, and others were permitted to intervene in the docket.
In its comments filed with the Commission, AT&T argued that the Toll Pool should be abolished because it depends on mandatory participation. AT&T noted that section 11(f) of Act 77 exempts certain LECs from the requirements of Ark. Code Arm. § 23-3-114(b), which gives the Commission authority to fix uniform rates, and that this exemption could be interpreted to mean that the Commission no longer has authority to order uniform or statewide average intraLATA toll rates for electing LECs.
Alltel argued in its prefiled testimony that participation in the Toll Pool became voluntary with the passage of Act 77. Its witness, Jack Redfern, testified in his prefiled testimony that Act 77 significantly changed the status of telecommunications providers in the state of Arkansas:
[H]istorically the Commission has relied on a provision of Arkansas law which allowed it to require statewide average toll rates. This law is referred to in the AT&T Comments as Arkansas Code Annotated Section 23-3-114. Section 11(f) of Act 77 expressly provides that Arkansas Code Annotated Section 23-3-114 is not applicable to companies electing alternative regulation under Act 77. Additionally, and just as importantly, Act 77 provides ILECs [Interstate Local Exchange Carriers] the ability to elect to be regulated under forms of regulation that are alternative to the traditional rate base rate of return regulation. A number of ILECs have elected to be regulated under Section 6 or Section 12 of Act 77, the alternative regulation provisions. One of the significant results of these elections is that the Commission no longer regulates the earnings and revenue streams of the ILECs. While rates of basic local exchange services and intrastate switched access rates are capped, electing ILECs are granted pricing flexibility with regard to all other services including intraLATA toll. The electing ILECs, therefore, cannot be required to maintain toll rates at the same level as all other ILECs. Thus, there is an irreconcilable conflict between Act 77 and the Commission’s previous Order requiring ILECs to participate in the Toll Pool. As a result of the passage of Act 77 and the subsequent election of ILECs under Act 77, the Toll Pool, therefore has become a purely voluntary arrangement among telecommunications providers and the Commission cannot mandate participation in the Toll Pool. In other words, the Commission lacks jurisdiction to require participation in the Toll Pool or to estab lish the intraLATA toll rates charged by an incumbent local exchange carrier.
Staff of the Commission also argued that participation in the Toll Pool became voluntary as a result of the passage of Act 77. John Bethel, manager of the Telecommunications section of the general Staff of the Commission, argued that participation in the Toll Pool should no longer be mandatory for all LECs. In his prefiled testimony, he noted that sections 8(c) and 9(a) of Act 77 authorize ILECs selecting alternative forms of regulation to increase or decrease rates at any time for telecommunications services (including intraLATA toll service) and, consequendy, electing ILECs may change their intraLATA toll rates without prior Commission approval. He then explained that the operation of the Toll Pool is dependent upon all members charging uniform intraLATA toll rates and that, absent identical toll rates being charged by all participants, the Toll Pool members could not be equitably compensated under the Toll Pool’s current compensation scheme. He concluded that participation in the Toll Pool should no longer be mandatory for all ILECs.
Appellants’ witness Larry Lovell, chairman and CEO of E. Ritter Telephone Company and Tri County Telephone Company, disagreed with AT&T’s suggestion that the Commission should abolish the Toll Pool and argued that the establishment of the Arkansas Universal Services Fund (AUSF) must precede the abolishment of the Toll Pool. He testified that the LECs realize that the current Toll Pool arrangement will have to change with the implementation of the dialing arrangements required by federal law but argued that significant time and industry resources would be required to allow an acceptable method of Toll Pool compensation to replace the existing Toll Pool procedures. He also testified that, under section 4(e) of Act 77 of 1997, the LECs must have an opportunity to apply for replacement of any revenue shortfalls that might be caused by elimination of the Toll Pool and, at this time, it is unclear when the AUSF will be in place and available to replace such revenue losses.
Another witness for appellants, Steven Sanders, president and general manager of Northern Arkansas Telephone Company, Inc., also stated in his prefiled testimony that he did not believe the General Assembly intended to abolish the Toll Pool with the passage of Act 77.
Order No. 9 was entered by the Commission on July 2, 1997. In it, the Commission held that participation in the Toll Pool became voluntary with the passage of Act 77. The Commission explained:
In Act 77, the General Assembly clearly provided ILECs the opportunity to elect to operate under alternative forms of regulation and once an ILEC elects alternative regulation, it can flexibly price intraLATA toll services under §§ 8(c) and 12(a) of Act 77. Furthermore, when an ILEC elects alternative regulation, § 11(f) of Act 77 exempts the ILEC from a number of statutory requirements including, Ark. Code Ann. § 23-3-114 which requires the maintenance of average message toll service rates. The ILEC deregulatory election provisions in conjunction with the § 11(f) exemptions of Act 77 supersede and vacate the Commission Order requiring mandatory participation of the ILECs in the AITP.
Based upon Act 77, the Commission finds that ALLTEL is correct in stating that “the Toll Pool became voluntary with the passage of Act 77” and pursuant to Act 77 “the Commission lacks jurisdiction to require participation in the Toll Pool or to establish the intraLATA toll rates charged” by electing ILECs. Therefore, the Commission finds that by operation of law Order No. 7 in Docket No. 83-042-U was vacated effective February 4, 1997, upon enactment of Act 77. AT&T’s request to abolish the AITP need not be addressed since the Commission order requiring participation in the AITP was vacated by operation of law. With the enactment of Act 77, GTE’s Motion became moot.
Thereafter, appellants moved for clarification of Order No. 9, specifically requesting the Commission to issue an order stating that any reduction in the net revenue experienced by any rural telephone company as a result of the operation of Act 77 on the distributions of the Toll Pool would be subject to revenue replacement in accordance with section 4(e)(4)(B) of Act 77. The Commission responded in Order No. 10 that absolutely nothing in Order No. 9 should be interpreted as a bar to any LEC’s right, pursuant to section 4(e)(4)(B) of Act 77, to seek revenue replacement later in an appropriate docket. Appellants petitioned the Commission to rehear Order No. 9 and to stay its effective date pending rehearing. The Commission denied appellants’ petition in Order No. 11.
Appellants’ single point for reversal is that the Commission was clearly erroneous in interpreting Act 77 to hold that it rendered participation in the Toll Pool voluntary effective the date of its passage. Appellants argue that nowhere in the Act does it state that participation in the Toll Pool becomes voluntary on the effective date of the Act and that section 4(e) of the Act prohibits participation in the Toll Pool being made voluntary before the AUSF is implemented. Section 4(e) of Act 77 provides: “The Commission shall not, prior to the implementation and availability of funds from the AUSF, require any local exchange carrier to reduce rates for intrastate switch access services or require any local exchange carrier to reduce its net revenue received from the Arkansas IntraLATA Toll Pool (AITP).”
The Commission addressed this argument in Order No. 9:
The ILECs contend that no action may be taken on the AITP until such time as the Arkansas Universal Service Fund is established to compensate the ILECs for any revenues lost through dissolution of the AITP ....
The Commission has not taken any action which requires any ILEC “to reduce rates for intrastate switched access services,” nor has the Commission taken any action which requires any ILEC “to reduce its net revenue received” from the AITP. Act 77 vacated the Commission order requiring participation in the AITP effective February 4, 1997, without Commission action. Therefore, § 4(e) of Act 77 cited by the ILECs has no application in this proceeding.
Nevertheless, appellants maintain that the Commission’s action in holding that participation in the Toll Pool became voluntary allows members to leave the Toll Pool before the AUSF is in place, which will cause a reduction in revenues to the Toll Pool and thus a reduction in the revenues received by the remaining Toll Pool members. They conclude that this result is contrary to the plain wording of section 4(e). The problem with appellants’ argument is that there is no evidence that appellants have suffered any lost revenue since the Commission held that Act 77 rendered participation in the Toll Pool voluntary. Consequently, even if the Commission erred in its finding, appellants have not demonstrated that they have been prejudiced by this action. While they speculate that they could be prejudiced by the Commission’s decision in the future, no prejudice has been shown at this time. It is well settled that the appellate court does not render advisory opinions nor answer academic questions. Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997). See also Almond v. Cigna Property and Casualty Ins. Co., 322 Ark. 268, 908 S.W.2d 93 (1995); Tortorich v. Tortorich, 50 Ark. App. 114, 902 S.W.2d 247 (1995). Where error is alleged, prejudice must be shown. City of W. Memphis v. Burroughs, 319 Ark. 611, 893 S.W.2d 323 (1995). It is no longer presumed that error is prejudicial. Abernathy v. Weldon, Williams, & Lick, Inc., 54 Ark. App. 108, 923 S.W.2d 893 (1996); Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 130 (1993).
Moreover, assuming without deciding that appellants are correct in their contention that Act 77 did not render participation in the Toll Pool voluntary effective the date of its enactment, appellants’ argument is now moot because the AUSF is in place. Appellants’ initial appeal was that the Commission erred in finding that participation in the Toll Pool became voluntary prior to the implementation and availability of funds from AUSF. In its response to the appellants’ motion for stay and expedited appeal, the Commission attached a copy of Order No. 5, which states that “the Commission will implement rules for the AUSF and make funds available to the eligible telecommunication carriers on or before October 13, 1997.” Order No. 5 was entered in Docket No. 97-041-R, a rule-making proceeding to establish rules and procedures necessary to implement the Arkansas Universal Service Fund. Indeed, appellants’ counsel acknowledged in the oral argument of this appeal that the AUSF is in effect. Therefore, a decision on the issue appellants raised on appeal will have no practical effect. An issue is moot when it has no legal effect on an existing controversy; when a decision of this court could not afford appellant any relief. Bryant v. Arkansas Pub. Serv. Comm’n, 45 Ark. App. 47, 870 S.W.2d 775 (1994). As a general rule, the appellate courts do not address moot issues. Dillon v. Twin City Bank, 325 Ark. 309, 924 S.W.2d 802 (1996).
Appeal dismissed.
Robbins, C.J., and Arjey, Jennings, Stroud, and Meads, JJ., agree. | [
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Andree Layton Roaf, Judge.
The Workers’ Compensation Commission (Commission) ordered appellant Jonesboro Human Development Center (Center) to pay one-half the attorney’s fees awarded to appellee Mary Jo Taylor, for controverting her change-of-physician request. The Center appeals from the finding that it controverted Taylor’s request and from the award of attorney’s fees. We agree that there is not sufficient evidence to support the Commission’s finding and reverse.
Taylor, an employee of the Center, suffered a compensable injury on February 14, 1996, and the Center paid benefits. On March 15, 1996, the Center apparently refused to pay certain medicals bills because they were not from the original treating physician. On March 20, 1996, Taylor requested a change of physician. The Center received a letter from the Workers’ Compen-' sation Commission notifying it of Taylor’s request. The Center responded by letter dated April 1, 1996, to the Commission and Taylor’s attorney stating that there was no objection to her request provided that she gave the name of the new physician and the Commission approved the change. The Center received no response to this letter.
On May 6, 1996, Taylor requested a hearing before the administrative law judge (ALJ) regarding her change-of-physician request. On May 31st, the Center sent another letter to Taylor’s attorney, again stating that there was no objection to the change and again requesting the name of the physician. There was again no response to the letter. Finally, on June 10, 1996, the Center’s attorney telephoned Taylor’s attorney and, for the third time, requested the name of the physician. The Center’s attorney was informed that the new physician was Dr. James Robinette, and on the same day sent a letter to the ALJ stating that there was no objection to the new physician. The ALJ conducted a pre-hear-ing telephone conference on June 14, 1996, regarding Taylor’s request for a new physician. In this conference, the ALJ approved the change and awarded Taylor attorney’s fees of $200, one-half to be paid by the Center because it had controverted the request. The ALJ’s decision was affirmed by the Commission. In its opinion, the Commission stated that the Center “knew, or should have known that [Taylor] requested an official change to Dr. Robi-nette.” The Center appeals from the award of a fee.
The sole issue on appeal is whether the Commission’s finding that the Center controverted Taylor’s change-of-physician request is supported by substantial evidence.
The Center contends that it never controverted Taylor’s request, but instead requested the name of the new physician three times before it was informed that Dr. Robinette was the new phy sician. The Center further states that the day it received this information, Taylor was sent a letter stating that there was no objection to the change.
In response, Taylor asserts that the Center was aware that Dr. Robinette was the new doctor because it completed an AR-E form, which listed Dr. Robinette as the physician she visited a few days after her accident. Furthermore, the Center had received bills since March 1996 from only two providers, Dr. Robinette and Mediquik, the company provider.
This court reviews decisions of the Workers’ Compensation Commission to determine if they are supported by substantial evidence. Deffenbaugh Indus. v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992). Substantial evidence is that relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993). The issue is not whether this court might have reached a different result from that reached by the Commission or whether the evidence would have supported a contrary finding. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). If reasonable minds could reach the result shown by the Commission’s decision, the court must affirm the decision. Id.
An award of attorney’s fees is proper where a claimant’s request for a change of physician is controverted by the employer. Ark. Code Ann. § ll-9-715(c)(l) (Repl. 1996). If there is substantial evidence to support a finding that a claim is controverted, there is no abuse of the Commission’s discretion to award attorney’s fees, and this court cannot reverse the Commission’s finding in the absence of a gross abuse of discretion. Moro, Inc. v. Davis, 6 Ark. App. 92, 638 S.W.2d 694 (1982). Controversion is a question of fact to be determined from the circumstances of the particular case by the Commission. New Hampshire Ins. Co. v. Logan, 13 Ark. App. 116, 680 S.W.2d 720 (1984). The Commission’s finding should not be reversed if there is substantial evidence to support it, or unless it is clear that there has been a gross abuse of discretion. Id.
In the present case, the Commission considered the following facts. Two letters from the Center were quoted in the opin ion. The April 1st letter, written by Otis Palmer, a claims manager, acknowledged the compensability of the claim and stated that,
[c]oncerning the change of physician request, we do not object to a change to the desired physician provided we know the name of the desired physician and provided the Workers’ Compensation Commission approves the change.
The May 31st letter from the Center’s attorney stated:
Respondents are not denying the claimant’s petition for a change of physician if the selected physician is acceptable and it is treated as claimant’s one time petition for a change of physician per Ark[.] Code Ann. [§] 11-9-514. Please advise the name of the physician to whom the claimant wants to change.
(Emphasis in original.)
On May 6, 1996, Taylor requested an immediate hearing before an ALJ regarding her change of physician. The Commission also noted that prior to this request, the Center had refused to pay medical bills from Dr. Robinette. Based on these facts, the Commission found that the Center knew or should have known that Taylor wanted to change to Dr. Robinette, and therefore sufficiently controverted her request so as to warrant an award of fees.
We do not agree that reasonable minds could reach this conclusion based on the evidence before the Commission. Neither the April 1st or May 31st letter from the Center objected to Taylor’s request for a change of physician. On the contrary, both letters specifically stated that there was no objection to the request and asked for the name of the new physician. Moreover, Ark. Code Ann. § ll-9-514(e) (Repl. 1996) encourages both the employer and the employee-claimant to cooperate in an effort to select another physician. Here, there was no cooperation on Taylor’s part. Instead of simply providing the name of the doctor (after three requests), she opted to go forward with a hearing.
Moreover, the Center was within its rights to refuse payment of Dr. Robinette’s bills submitted before Taylor requested a change of physician on March 20, 1996. The procedure for obtaining a change of physician is contained in Ark. Code Ann. § 11-9-514, and provides in pertinent part:
the claimant may petition the commission one (1) time only for a change of physician, and, if the commission approves the change, with or without a hearing, the commission shall determine the second physician and shall not be bound by the recommendations of the claimant or respondent.
It is clear from the Center’s letters that it was merely seeking to insure that Taylor follow the statutory procedure for obtaining a one-time change of physician, and it is unreasonable to find that the Center should know, from bills sent prior to the request for change, who that new physician was to be. It is not uncommon for claimants to obtain medical services from several physicians and medical providers for treatment of their injuries. Moreover, referrals to specialists by the treating physician are authorized without making a change of physician. See Department of Parks and Tourism v. Helms, 60 Ark. App. 110, 959 S.W.2d 749 (1998). Finally, neither the bills in question, the AR-E form, nor the letter of March 15, 1996, denying payment for Dr. Robinette’s bills referred to in Taylor’s argument, were made part of the record. Consequently, we determine that the Commission’s finding is not supported by substantial evidence, and that it could not reasonably conclude from the evidence of record that the Center controverted the change of physician. We therefore reverse the award of attorney’s fee to Taylor.
Reversed.
Alley, Neal, Rogers, and Stroud, JJ., agree.
Pittman, J., dissents. | [
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D. Franklin Arey, III, Judge.
The Workers’ Compensation Commission found that the appellee, Douglas Atwood, sustained a compensable injury to his left eye. The appellant, Service Chevrolet, was found to be responsible for appellee’s medical treatment and expenses; the Commission approved reservation of the issue of appellee’s permanent disability pending additional treatment. Appellant argues on appeal that the Commission’s decision is not supported by substantial evidence, and that the Commission erred by reserving the issue of permanent disability for later determination. We affirm.
In determining the sufficiency of the evidence to sustain the Commission’s findings, we review the evidence in the light most favorable to the Commission’s findings and affirm if they are supported by substantial evidence. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; rather, the extent of our inquiry is to determine if the Commission’s findings are supported by substantial evidence. See Bearden Lumber Co. v. Bond, 1 Ark. App. 65, 644 S.W.2d 321 (1983).
In making our review, we recognize that it is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Whaley v. Hardee’s, 51 Ark. App. 166, 912 S.W.2d 14 (1995). The Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989). The testimony of medical experts is an aid to the Commission in its duty to resolve issues of fact. Id. 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.
Appellant employed appellee to detail cars. On January 30, 1995, appellee was spraying cleaner on the wheel of a car when a drop of the cleaner splashed into his left eye. Appellee immediately washed his eye with water but did not report the incident at that time. Appellee testified that he began to experience difficulties with his left eye approximately one week after the incident. His initial symptoms included redness, swelling, watering, and matting of the left eye. Appellee eventually reported the incident because these symptoms persisted.
John McDonald, appellant’s service manager, testified that sometime after January 30, 1995, appellee informed him that he had splashed the tire cleaner in his eye, and that his eye was burning. McDonald advised appellee to go to the office, fill out a workers’ compensation report, and go see his doctor. An injury report was completed on February 20, 1995, suggesting that appellee first reported the incident approximately three weeks after it occurred.
Appellee was referred by his initial treating physician to Dr. Susan Blair, an ophthalmologist. She first saw appellee on May 12, 1995. Her report noted that appellee experienced problems with his eye since the time of the injury, and that he experienced watering, redness, swelling, and decreased vision in his left eye. Dr. Blair prescribed non-steroidal, anti-inflammatory eye drops. She subsequently noted that the redness, pain, and swelling in the left eye improved.
Visual acuity testing indicated that appellee’s vision was 20/ 20 in the right eye and 20/40 in the left eye. Dr. Blair referred appellee for a corneal topography at UAMS, which confirmed irregular astigmatism in the cornea of appellee’s left eye as compared to a normal topography of appellee’s right eye.
In a report dated August 4, 1995, Dr. Blair noted appellee’s reported history of splashing wheel cleaner in his left eye. She observed that she did “not have a record of what medical evaluation was completed at the time of the initial injury.” She diagnosed irregular corneal astigmatism in appellee’s left eye accounting for his mild decrease in visual acuity in that eye. She continued:
An ophthalmologic exam before and immediately after the injury would be needed to clearly associate the injury with this. Certainly, an acidic solution such as wheel cleaner can cause irregular corneal astigmatism like what is present in Mr. Atwood’s eye.
The Commission concluded that appellee proved by a preponderance of the evidence each of the requirements necessary to establish a compensable injury. It noted the objective findings by Dr. Blair and her observations of redness and swelling, as well as the abnormality indicated by the corneal topography. The Commission further noted that appellee consistently related his left eye problems to a chemical injury sustained on January 30, 1995; that both appellee and Dr. Blair indicated that the wheel cleaner was an acidic solution; and that Dr. Blair opined that an acidic solution such as the wheel cleaner can cause irregular corneal astigmatism like that present in appellee’s left eye.
Appellant first argues that appellee did not prove that he sustained a compensable injury under Ark. Code Ann. § ll-9-102(5)(A)(i) (Supp. 1997). In support of this argument, appellant contends that appellee failed to report his injury in a timely fashion and failed to seek medical treatment in a timely fashion. These arguments go to the weight and credibility of the testimony, and these matters are exclusively within the province of the Commission. See Stephens Truck Lines, 58 Ark. App. at 278, 950 S.W.2d at 474. The statutory definition of a compensable injury does not require timely reporting of an injury, or receipt of medical treatment within a specified period. See Ark. Code Ann. § 11-9-102(5) (A) (i).
Appellant next argues that the Commission’s opinion is based upon speculation and conjecture, because appellee did not introduce certain medical records, nor did he introduce evidence of the toxicity of the wheel cleaner. These arguments fail to recognize that it is the Commission’s function to determine the credibility of appellee, and the weight to be given to his testimony concerning his medical history. See Whaley, 51 Ark. App. at 169-70, 912 S.W.2d at 15. The Commission obviously relied upon appellee’s relation of his left eye problems to the chemical injury he sustained on January 30, 1995. Further, it relied upon appellee’s and Dr. Blair’s indications that the wheel cleaner was an acidic solution. Thus, substantial evidence supports the Commission’s findings.
Appellant also argues that Dr. Blair’s medical testimony was not stated to a reasonable degree of medical certainty. Specifically, appellant argues that the standard is not satisfied by Dr. Blair’s opinion that the wheel cleaner “can” cause an irregular corneal astigmatism.
Appellant’s argument requires us to further interpret Act 796 of 1993. In considering the meaning of a statute, we construe it 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, 939 S.W.2d 280 (1997); Terral v. Terral, 212 Ark. 221, 205 S.W.2d 198 (1947). The basic rule of statutory construction to which all other interpretive guides defer is to give effect to the intent of the legislature. Vanderpool, 327 Ark. at 415, 939 S.W.2d at 285. A legislature is presumed, in enacting a statute, to have had in mind court decisions pertaining to the subject legislated on and to have acted with reference thereto. Terral, 212 Ark. at 228, 205 S.W.2d at 201.
Prior to the passage of Act 796, proof of causation in workers’ compensation cases did not require medical certainty. See Hubley v. Best Western-Governor’s Inn, 52 Ark. App. 226, 232 & n.l, 916 S.W.2d 143, 146 & n.1 (1996). Our decisions simply did not require physicians to express opinions in terms of either a “most likely possibility” or “a reasonable degree of medical certainty.” Pittman v. Wygal Trucking Plant, 16 Ark. App. 232, 700 S.W.2d 59 (1985). Thus, in pre-Act 796 cases, we held that the medical experts’ use of such terms as “possible” or “might cause,” among others, did not preclude a finding of causal connection provided there was other evidence supporting that conclusion. Id.; see Carter v. Flintrol, Inc., 19 Ark. App. 317, 720 S.W.2d 337 (1986).
Act 796 clearly works a change in our prior law. Section 11-9-102(5)(D) states that “[a] compensable injury must be established by medical evidence . . . .” Section ll-9-102(16)(B) requires that “[m]edical opinions addressing compensability . . . must be stated within a reasonable degree of medical certainty . . . .” The statute does not require the use of the phrase, “reasonable degree of medical certainty.” Rather, it requires that the opinion be stated within a reasonable degree of medical certainty.
Viewed in the context of our prior law, the change wrought by § ll-9-102(16)(B) becomes apparent. Our prior law did not bar a finding of causal connection if a doctor used tentative expressions or phrases, provided that there was other evidence supporting the conclusion. See Pittman, 16 Ark. App. at 236, 707 S.W.2d at 61-62. We presume that the General Assembly was aware of this when it enacted Act 796. See Terral, supra. Section ll-9-102(16)(B) changes prior law. Now, medical opinions addressing compensability under § ll-9-102(5)(A)(i) must be stated in terms expressing the medical expert’s reasonable certainty that the claimant’s internal or external physical harm was caused by his accidental injury.
A recent decision of the Supreme Court of Nebraska is helpful in this regard:
Our cases discussing the sufficiency of expert opinions have been a survey of various characterizations by the claimant’s experts as to how certain they are that the claimant’s injury was caused by his or her employment. We have held that expert medical testimony based on “could,” “may,” or “possibly” lacks the definite ness required to meet the claimant’s burden to prove causation. Our well-known preference for the use of the phrases “reasonable degree of medical certainty” or “reasonable degree of probability” is an indication to courts and parties of the necessity that the medical expert opinion must be stated in terms that the trier of fact is not required to guess at the cause of the injury.
Paulsen v. State, 249 Neb. 112, 121, 541 N.W.2d 636, 643 (1996)(citations omitted). Although the court expressed a preference for certain phrases, it noted “that an expert opinion is to be judged in view of the entirety of the expert’s opinion and is not validated or invalidated solely on the basis of the presence or lack of the magic words ‘reasonable medical certainty.’ ” Id.
Applying this reading of § ll-9-102(16)(B), appellant’s challenge to Dr. Blair’s opinion must fail. Relying upon appellee’s account, Dr. Blair stated that “[c]ertainly, an acidic solution such as wheel cleaner can cause irregular corneal astigmatism like that present in [appellee].” This opinion complies with the statute.
Appellant also challenges the Commission’s reservation of the issue of permanent disability for later determination. Appellant contends that if appellee has not developed his evidence, he should not be allowed a second chance to offer proof. Appellant cites Ark. Code Ann. § ll-9-705(c)(l) for the proposition that all evidence must be presented in the initial hearing.
Appellee sought permanent disability compensation for the decreased visual acuity caused by the irregular corneal astigmatism in his left eye. The Commission affirmed the administrative law judge’s reservation of this issue. The Commission referenced Dr. Blair’s determination that appellee’s uncorrected visual acuity is 20/40, and her statement that his visual acuity may be subject to improvement by use of a hard contact lens over the cornea. Arkansas Code Annotated § 11-9-521 (c)(2) provides that, in all cases of permanent loss of vision, the use of corrective lenses may be taken into consideration in evaluating the extent of loss of vision. Since all medical treatment had been controverted, and since Dr. Blair had not yet determined the degree of correctable impairment, the Commission found that the ALJ properly-reserved this issue.
We agree. Appellee’s initial medical treatment and evaluation were never completed, justifying a reservation of the issue of permanent disability for later determination. See Gansky v. Hi-Tech Eng’g, 325 Ark. 163, 924 S.W.2d 790 (1996).
Affirmed.
Neal and Griffen, JJ., agree. | [
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John Mauzy Pittman, Judge.
Wade Lucas has appealed from an order of the Saline County Chancery Court denying his petition to establish a constructive trust or an equitable lien on real property held by the Estate of Myra Lucas. We affirm the chancellor’s decision.
Appellant married Myra Lucas in January of 1989, after living with her for approximately eight months. On December 30, 1988, the real property in issue was conveyed by warranty deed to Myra, who gave a mortgage to Superior Federal Bank to secure a $20,000.00 note of the same date. Myra signed the mortgage as an unmarried person and was the only person to sign the note. On August 17, 1989, Myra signed a quitclaim deed to the same property to herself and appellant as husband and wife. On December 6, 1989, Myra and appellant signed a quitclaim deed of the property to Myra.
Myra died intestate on February 26, 1994, survived by appellant and her two daughters, Linda Brown and Tanya Grant. Myra’s estate sought authority from the probate court to sell the decedent’s home. Appellant filed a counterclaim, contending that he was the equitable owner of the home and asking the court to impose a constructive or resulting trust or equitable lien. The probate court denied the counterclaim, and on appeal to this court, we held that the probate court lacked jurisdiction to decide the merits of the counterclaim. See Lucas v. Brown, No. CA95-634 (November 27, 1996).
On February 28, 1997, appellant filed a petition in the Saline County Chancery Court, asking the court to impose a constructive trust or equitable lien on the property. By agreement, the parties submitted the record from the probate court as the record in this case.
Appellant testified that he had provided $61,000.00 of the house’s purchase price, which was $69,000 plus cancellation of a $2,000.00 debt that the sellers owed to Myra. Appellant testified that a portion of the $20,000.00 loan from the bank went toward the purchase price of the house. Appellant stated that he had caused the deed to be placed in Myra’s name because he owed the Internal Revenue Service approximately $30,000.00 and because his ex-wife had recently obtained a $15,000.00 judgment against him. He said that he and Myra had a joint checking account, into which both deposited their income. The $300.00 monthly mortgage payments were made from this joint checking account. He stated that he had not intended to give the house to Myra and had caused it to be placed in her name “[bjecause I didn’t want the IRS or my ex-wife to have any part of it.” He stated that the house had been placed in his and Myra’s names in order to secure a loan for $5,000.00; he signed the property back to Myra after they obtained the loan.
In his decision, the chancellor found:
Mr. Lucas deeded the property to his deceased wife on two occasions for the purpose of avoiding a tax lien with the Internal Revenue Service and to avoid paying a judgment to his former wife. This decision is based upon the doctrine of estoppel, because Mr. Lucas knew exactly what he was doing and the ramifications of signing the deed and the doctrine of unclean hands.
On appeal, appellant argues that the chancellor abused his discretion in refusing to impose a constructive or resulting trust or an equitable lien on the property. Appellant contends that he and Myra were in a confidential relationship and, therefore, a presumption arose that appellant intended to purchase the property for his own benefit.
The burden of proof was upon appellant to establish the existence of a trust. Waller v. Waller, 15 Ark. App. 336, 693 S.W.2d 61 (1985). A chancellor’s decision regarding whether to impose a constructive or resulting trust will not be reversed unless it is clearly erroneous or clearly against the preponderance of the evidence.
A confidential relation exists between two persons when one has gained the confidence of the other and purports to act or advise with the other’s interest in mind. Horton v, Koner, 12 Ark. App. 38, 671 S.W.2d 235 (1984). Relationships deemed to be confidential are not limited to those involving legal control; they also arise whenever there is a relation of dependence or confidence, especially confidence that springs from affection on one side and a trust in reciprocal affection on the other. Jones v. Balentine, 44 Ark. App. 62, 866 S.W.2d 829 (1993). A confidential relationship, however, is not established simply because parties are related or live in the same household. Wright v. Union Nat’l Bank, 307 Ark. 301, 819 S.W.2d 698 (1991). There is no set formula by which the existence of a confidential relationship may be determined, for each case is factually different and involves different individuals. Donaldson v. Johnson, 235 Ark. 348, 359 S.W.2d 810 (1962). Whether two individuals have a confidential relationship is a question of fact. See Savage v. McCain, 21 Ark. App. 50, 728 S.W.2d 203 (1987). On this record, we cannot say that the chancellor erred in failing to find that appellant had a confidential relationship with Myra.
In Henry v. Goodwin, 266 Ark. 95, 583 S.W.2d 29 (1979), the supreme court recognized that to determine whether to impose a constructive trust conflicting principles of public policy must be balanced:
The appellants also contend that since Mrs. Goodwin apparently misrepresented her position to the Social Security agency, she is precluded by estoppel or the clean hands doctrine from claiming the land. In a similar situation, where the owner of property transfers it upon an intended trust which fails for illegality, “a resulting trust does not arise if the policy against permitting unjust enrichment of the transferee is outweighed by the policy against giving relief to a person who has entered into an illegal transaction.” Restatement, [(Second) of Trusts] § 422. It is thus a matter of balancing conflicting principles of public policy. Among the factors to be considered are (1) whether the grantor’s conduct involves moral turpitude, (2) the extent of the policy making the transaction illegal, (3) whether the enforcement of a trust would tend to prevent the accomplishment of the illegal purpose, (4) whether the transferee was more at fault than the transferor, and (5) whether the transferor was ignorant of the law or of the facts making the trust illegal. Id., Comment b.
266 Ark. at 98-99, 583 S.W.2d at 31.
It has long been recognized that the clean-hands maxim bars relief to those guilty of improper conduct in the matter to which they seek relief. The purpose of invoking the clean-hands doctrine is to protect the interest of the public on the grounds of public policy and to protect the integrity of the court. Id. It is within the chancellor’s discretion to determine whether the interests of equity and justice require application of the doctrine. Id.; Reid v. Reid, 57 Ark. App. 289, 944 S.W.2d 559 (1997); Laroe v. Laroe, 48 Ark. App. 192, 893 S.W.2d 344 (1995).
We cannot say the chancellor erred in applying the clean-hands doctrine in the case at bar. Appellant freely admitted at trial that the conveyance of the property to Myra was his idea, and we note that appellant saw to it that a deed to the property was placed in Myra’s name on two occasions. Additionally, Myra signed a note for $20,000.00 and a mortgage securing the same in her own name. Money from the parties’ joint checking account, into which both parties deposited their income, paid this note. Appellant admits that he was simply attempting to avoid a tax lien and the enforcement of a judgment by his ex-wife. At trial, appellant testified that he had not yet paid either debt. Certainly, there is no dispute that appellant was guilty of improper conduct and that his actions have been unconscientious and unjust in this matter. Obviously, the chancellor believed that, in this case, the policy against permitting possible unjust enrichment of the estate was outweighed by the policy against giving relief to a person who has entered a transaction for an improper purpose. See Henry v. Goodwin, supra. As the chancellor was in the better position to determine the facts and weigh the competing interests in this case, we cannot say that he abused his discretion in applying the clean-hands doctrine against appellant.
Finally, appellant argues that the probate judge erred in failing to admit parol evidence concerning Myra’s and appellant’s intent. Although appellant testified at length about his intent in having the deed placed in Myra’s name, the chancellor refused on the ground of hearsay to consider appellant’s or Ohma Adair’s testimony about Myra’s statements regarding the house. It is true that parol evidence of an oral promise is admissible to establish the existence of a constructive trust. Bramlett v. Selman, supra. Nevertheless, even if the chancellor had admitted this testimony, we could not say that the outcome would have been different, because the chancellor was not required to believe appellant or Ms. Adair. Further, even if taken as true, these statements are not germane to the question of whether the chancellor acted appropriately in applying the clean-hands doctrine. Error is no longer presumed to be prejudicial; unless the appellant demonstrates prejudice, we do not reverse. Abernathy v. Weldon, Williams, & Lick, Inc., 54 Ark. App. 108, 923 S.W.2d 893 (1996); Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 130 (1993).
Affirmed.
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John B. Robbins, Chief Judge.
This case involves an initial construction contract, a breach of that contract, a second contract concerning the repair of a parking lot that was built pursuant to the initial contract, the breach of the second contract, and the amount of money that the nonbreaching party is entitled to recover as damages. Appellant Jocon, Inc., a corporation engaged in the construction business as a contractor, appeals the Pulaski County Circuit Court’s judgment in which the court awarded appellees, Paul Hoover, Jr., and Dan Robinson, Jr., damages of $7,611.71 and attorney’s fees for the breach of a construction contract and as a consequence of appellant’s breach of a subsequent contract to repair the damaged and deteriorated portions of a parking lot that appellant had previously constructed on commercial property owned by appellees. We affirm the circuit court’s judgment as modified.
In February 1995, appellant and appellees entered into a contract whereby appellant agreed to construct a warehouse and parking lot on property owned by appellees in return for a payment of $108,491. After appellant completed construction of the warehouse and the parking lot, problems developed with the part of the parking lot where a dumpster was situated. In this area, the asphalt used to construct the parking lot began to deteriorate, and this area was damaged by heavy trucks driving to and from the dumpster.
Because of these problems with the parking lot, appellees retained $2,519.10 of the $108,491 that was due to appellant under the original contract. On May 13, 1996, the parties entered into a second contract. This second contract had to do with repair of the deterioration and damage to the parking lot. Pursuant to the provisions of this agreement, appellant agreed to provide the equipment and labor necessary to repair the parking lot and appellees agreed to pay for all the materials necessary to complete the repairs. Appellant began repair of the parking lot by subcontracting with an excavation contractor, who used a bulldozer and backhoe to excavate to a depth of approximately two feet in the damaged areas of the parking lot. At this point, appellant was to fill in the excavated area with gravel and then pave over the gravel with asphalt. However, appellant did not do any further repair work on the damaged areas of the parking lot. Appellees completed the repair work and incurred $10,130.81 in expenses.
In January 1996, appellant filed suit against appellees in order to recover the payment that appellees owed on the initial construction contract, which appellant alleged was $5,000. Appellees filed an answer in which they denied that they owed appellant any money in connection with the initial contract. Appellees also filed a counterclaim in which they alleged that appellant had breached the February 1995 contract and that they were entitled to damages in an amount to be proven at trial. However, during pretrial discovery, appellees admitted, in response to appellant’s request for admissions, that they had retained $5,000 of the payment they owed appellant on the initial construction contract.
Appellant brings four allegations of error. According to appellant, the circuit court erred in finding that appellees had retained $2,519.10 of the amount that they owed appellant pursuant to the initial contract and erred further in determining appellees’ damages by subtracting this figure from appellees’ total cost to repair the parking lot. Appellant also asserts that the circuit court erred in finding that it breached the May 13, 1996, contract whereby it agreed to provide the equipment and labor to repair the deteriorated and damaged areas of the parking lot. Appellant also maintains that the circuit court erred in determining that the damages appellees were entitled to after they completed the repair of the parking lot included the cost of the materials used to make the repairs. Finally, appellant asserts that the circuit court erred in awarding appellees attorney’s fees of $3,500.
For its first allegation of error, appellant asserts that the circuit court erred in determining the amount of damages to which appellees were entided. The circuit court found that appellees were entitled to damages of $7,611.71. The court arrived at this figure by deducting from appellees’ total expenditure to complete the repair of the damaged and deteriorated portions of the parking lot, which was $10,130.81, the amount of money that appellees retained from the payment they owed appellant on the initial construction contract, which the parties had entered into in February 1995. The circuit court found that the appellees had retained $2,519.10 of the amount that they owed appellant pursuant to the initial construction contract. The circuit court found that the appellee were entitled to damages of $7,611.71, which is the remainder of $10,130.81 minus $2,519.10.
Appellant asserts that the trial court’s calculation of appellees’ damages is in error in that the circuit court should have subtracted from $10,130.81, the appellees’ total cost to repair the parking lot, $5,000, rather than $2,519.10. Appellant maintains that the circuit court should have determined appellees’ damages by subtracting $5,000 because this was the amount that the appellees retained from the payment they owed appellant on the initial contract. Appellant asserts that the appellees retained $5,000, not $2,519.10, because appellees admitted, in their response to appellant’s request for admissions made pursuant to Arkansas Rule ’of Civil Procedure 36(a), that they had withheld $5,000 of the amount they owed appellant on the initial construction contract. The request for admission and response that appellant relies on are as follows:
Please admit that the [appellees] withheld the sum of $5,000.00 on the contract.
Admitted, due to the fact that it appeared that parking areas were failing and that defective work and defective materials were causing the failure.
At trial, appellee Hoover testified that although appellees had admitted in pretrial discovery that they had retained $5,000 from the payment they owed appellant on the initial contract, this admission was a mistake and that they had retained only $2,519.10. However, Hoover acknowledged that he was “standing by that mistake.”
Furthermore, during the trial appellees’ counsel objected to a characterization by appellant’s counsel that the parties had stipulated that the balance owed appellant by appellees on the original contract was $5,000. But after appellant’s counsel read appellees’ response to appellant’s request for admission that $5,000 was withheld from the contract, appellees’ counsel, Mr. Cearley, stated: “I withdraw my objection, I don’t know how I can get around that. Our testimony, your Honor, will be that that was in error, and I wasn’t aware there had been an admission, but we’re bound by that.” Appellant’s position at trial, and on appeal, is that appellees were bound by their response to appellant’s request for admissions that they had withheld $5,000 of the payment they owed appellant on the initial construction contract. Appellant bases this argument on the following provision of Arkansas Rule of Civil Procedure 36(b): “Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.”
Appellant is correct in maintaining that this admission was conclusive because there was no motion seeking, or order granting, a withdrawal or amendment of the admission. Consequently, we conclude that the circuit court erred in crediting only $2,519.10 against appellees’ damages, rather than $5,000. The judgment of the trial court should be modified accordingly.
Appellant also asserts that the circuit court erred in determining that it had breached the parties’ May 13, 1996, contract to repair the deteriorated and damaged portions of the parking lot. Pursuant to this agreement, appellant was to provide the equipment and labor necessary to repair the parking lot, and appellees were to pay for all materials that were used to complete the repairs. In essence, appellant maintains that the appellees breached the “repair” contract because they failed to have gravel delivered to the job site. Appellees, on the other hand, maintain that appellant breached the “repair” contract in that it failed to complete repairing the parking lot by having the excavated area filled in with gravel and by then paving over the gravel with asphalt. At trial, each party presented testimony that explained why appellant did not finish repairing the parking lot. This testimony was in conflict. Appellant’s owner, Robert Jones, testified that appellee Hoover told him to contact a man named Manny Lassiter to make arrangements to have gravel delivered to the job site. Mr. Jones testified further:
I got ahold of Manny Lassiter, and he told me that he would have to get back in touch with [Mr. Hoover] to verify it and he’d get back in touch with me, so he never got back in touch with me on that. I think I called Mr. Hoover a second couple of times [to] see if they could get the [gravel] out there and no one ever showed up with the [gravel] then and the next day, I called the man that was the manager out there [at the job site] and I asked him was the [gravel] out there and he said no, it was not there yet, so I continued to call and ask if the [gravel] was out there. After about two weeks ... I finally decided they weren’t going to be interested in putting [gravel] in there.
Appellees contradicted Jones’s testimony with their own testimony and that of other witnesses, including Manny Lassiter, to the effect that they had tried to make contact with Jones concerning the delivery of gravel to the job site but were unable to do so. When asked on re-direct examination for how long had he tried to get in contact with Mr. Jones concerning delivery of gravel to the job site, Manny Lassiter replied, “I’d guess that I tried for a couple of weeks, three weeks or so, we tried to call and it got to the point where the tenant was about ready to leave ... so we had to move in ourselves [to finish the repairs].” Given this conflicting testimony, whether appellant breached the “repair” contract was a matter of fact for the circuit court to determine. It is for the trial court, sitting as the trier-of-fact, not this court, to determine the credibility of witnesses and to resolve any conflicts in their testimony. See Firstbank of Arkansas v. Keeling, 312 Ark. 441, 445-46, 850 S.W.2d 310 (1993); Fazeli v. Barnes, 47 Ark. App. 99, 101, 885 S.W.2d 908 (1994). The trial court’s finding on this issue was not clearly erroneous.
Appellant’s third allegation of error also has to do with the circuit court’s finding that it breached the May 13, 1996, contract between the parties pursuant to which it would provide the equipment and labor necessary to repair the damaged and deteriorated areas of the parking lot. According to appellant, the circuit court erred in determining the damages that appellees were entitled to recover as a consequence of its breach of the May 13, 1996, contract. According to appellant, even though it breached this contract, the appellees were bound by its provision requiring them to pay for the gravel, asphalt, and other material necessary to repair the parking lot. Appellant maintains that the circuit court erred in determining the damages appellees should recover by including appellees’ expenditure for the materials necessary to repair the parking lot. According to appellant, even if it breached the May 13, 1996, contract, appellees were still obligated, pursuant to the contract, to pay for the materials necessary to repair the parking lot and, therefore, appellees should not recover, as damages, their expenditures for the materials.
Appellant’s allegation of error is based on a faulty premise: that the appellees were bound by the provisions of the May 13, 1996, contract even though appellant had breached it. The May 13, 1996, letter agreement was in the nature of an accord, or agreement to substitute a new undertaking in settlement of the dispute over the original February 10, 1995, contract. The question that the trial court impliedly decided was whether there was satisfaction of the accord. The general rule is that if the consideration agreed upon in an accord is not performed then the whole accord fails and recovery may be had for breach of the original contract. See General Air Conditioning Corp. v. Fullerton, 227 Ark. 278, 282, 298 S.W.2d 61, 64 (1957); Boone v. Armistead, 48 Ark. App. 187, 191, 892 S.W.2d 531, 534 (1995). There are exceptions to this general rule where a promise to perform the accord is accepted in lieu of satisfaction, Lyle v. Federal Union Ins. Co., 206 Ark. 1123, 1129-30, 178 S.W.2d 651, 654 (1944), and when a party has taken such action, or accepted such benefits, as to place it out of his power to abandon the settlement/compromise agreement. Boone v. Armistead, supra. Although the trial court did not expressly find that these exceptions were not applicable, we indulge in the presumption that the trial court acted properly and made the findings necessary to support its judgment. See Ingram v. Century 21 Caldwell Realty, 52 Ark. App. 101, 103 n.1, 915 S.W.2d 308, 309 n.1 (1996).
After appellant breached the May 13, 1996, contract, appellees were free to undertake reasonable efforts to repair the deteriorated and damaged areas of the parking lot, which they did. Given that appellees repaired the parking lot, the appropriate measure of damages to which they were entitled as a result of appellant’s breach of the original contract was the cost of the repairs. See Howard Brill, Arkansas Law of Damages 268 (3d ed. 1996).
Appellant also asserts that the circuit court erred in awarding appellees’ counsel a fee of $3,500. This allegation of error is procedurally barred from our review. To preserve this allegation of error for our review, appellant should have objected at the circuit court level to the fee award. Because appellant failed to do so, we will not address this allegation of error. Schueck v. Burris, 330 Ark. 780, 787, 957 S.W.2d 702 (1997); Farm Bureau Mut. Ins. Co. v. David, 324 Ark. 387, 393-94, 921 S.W.2d 930 (1996); Jamison v. Estate of Goodlett, 56 Ark. App. 71, 84, 938 S.W.2d 865 (1997).
For the reasons set forth above, we affirm the judgment that the Pulaski County Circuit Court caused to be entered in the instant case in favor of appellees, but modify the amount of judgment from $7,611.71 to $5,130.81 and attorney’s fees.
Affirmed as modified.
Rogers and Crabtree, JJ., agree. | [
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Margaret Meads, Judge.
Express Human Resources III and Spirit Homes, Inc., appeal the decision of the "Workers’ Compensation Commission that Farren Terry is entitled to medical benefits and temporary total disability benefits from an on-the-job injury, although he tested positive for marijuana metabolites two days after the accident. We find no error, and we affirm the Commission’s decision.
Appellee was employed by appellant Spirit Homes as a maintenance worker. On March 10, 1996, he was assisting in putting a roof on a new building. A hole had been cut in the roof in order to allow some equipment to be placed in the building. Approximately forty-five minutes after the hole was cut, appellee was injured when he fell through the hole, landing on his back on the floor below. He was taken to Conway Regional Medical Center, where it was determined that he had a radial head fracture, right elbow fracture, right wrist fracture, and T-ll compression fracture, and he was admitted to the hospital. Appellee also consented to a drug-screen urinalysis, which was taken on March 12 while he was still in the hospital. The urine sample tested positive for marijuana metabolites. Appellants controverted the claim after learning of the positive results of the urine test.
A hearing was held before the administrative law judge (ALJ) on October 24, 1996. Based upon the results from the urine sample, the ALJ found that appellants had established the presence of an illegal drug pursuant to Ark. Code Ann. § 11-9-102(5)(B)(iv)(a) (Supp. 1997), thus creating a rebuttable presumption that appellee’s injury was substantially occasioned by the use of marijuana under Ark. Code Ann. § 11-9-102(5) (B)(iv)(b). However, the ALJ also found that appellee had rebutted this presumption and had proven by a preponderance of the evidence that marijuana did not substantially occasion the injury, pursuant to Ark. Code Ann. § ll-9-102(5)(B)(iv)(d). She awarded appellee medical benefits and temporary total disability benefits from March 10, 1996, until June 15, 1996. The Commission affirmed and adopted the ALJ’s opinion. Appellants’ sole point on appeal is that the Commission erred in finding that appellee had rebutted the statutory presumption created by Ark. Code Ann. § 11-9-102(5)(B)(iv).
Prior to the passage of Act 796 of 1993, it was the employer’s burden to prove that an employee’s accident was caused by intoxication or drug use. Morrilton Manor v. Brimmage, 58 Ark. App. 252, 952 S.W.2d 170 (1997). However, Act 796 shifted this burden of proof by requiring the employee to prove by a preponderance of the evidence that alcohol or drug use did not substantially occasion the injury, if alcohol or drugs were found in his body after an accident. Id.
The relevant statutory provisions provide:
“Compensable injury” does not include:
(iv)(a) Injury where the accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders;
(b) The presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders shall create a rebut-table presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders.
(d) An employee shall not be entitled to compensation unless it is proved by a preponderance of the evidence that the alcohol, illegal drugs, or prescription drugs utilized in contravention of the physician’s orders did not substantially occasion the injury or accident.
Ark. Code Ann. § U-9-102(5)(B)(iv)(a)-(d) (Supp. 1997).
The standard of review in workers’ compensation cases is well-settled. On appeal, this court must determine whether there is substantial evidence to support the Commission’s decision. Weaver v. Whitaker Furniture Co., 55 Ark. App. 400, 935 S.W.2d 584 (1996). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Id. The evidence is viewed in the light most favorable to the findings of the Commission and is given its strongest probative value in favor of the Commission’s decision. Barrett v. Arkansas Rehabilitation Servs., 10 Ark. App. 102, 661 S.W.2d 439 (1983). The issue is not whether the appellate court might have reached a different conclusion from the one found by the Commission, or even whether the evidence would have supported a contrary finding, but if reasonable minds could arrive at the same decision as the Commission, the decision must be upheld. Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996).
At the hearing, appellee testified that on the day of his injury, he had worked seven days straight and was in his twenty-eighth hour of overtime. Appellee had been at work since 7:00 a.m. and had a thirty-minute lunch break; the accident occurred at approximately 3:40 p.m. He had carried pressed boards weighing between 150 and 200 pounds for most of the day, and he believed the accident was caused by his fatigue. At the time of the accident, appellee was walking forward, carrying one end of a four-foot by sixteen-foot pressed board with his supervisor, Bobby Cole, who was walking backward. Appellee could not see his feet or the hole, but he believed that Mr. Cole could see the hole because he was in front, guiding their path. Mr. Cole avoided the hole, but appellee fell through it onto the floor below. None of this testimony was controverted by appellants.
Appellee testified that he had not smoked marijuana since March 6, 1996, and denied smoking it on March 7, 8, 9, or 10. He denied being impaired on March 10. He admitted that he had smoked marijuana in the past, probably once every two weeks, and that it might be difficult for other people to detect that he had smoked marijuana. He did not challenge the urinalysis results but offered no explanation as to how the level of marijuana present in his system came to be in his body on March 12, 1996.
Three of appellee’s co-workers testified on his behalf. Johnny Morales testified that he had cut the hole and thought it would be covered with decking for safety reasons. He believed that a person who was being safe and was in good mental condition could have an accident such as appellee’s. Mr. Morales further testified that he had ridden to work with appellee on the day of the accident, had worked around him during the day, and had eaten lunch with him; to his knowledge, appellee did not smoke any marijuana that day. He further testified that appellee did not appear to be impaired, though he admitted he had no expertise in the detection of marijuana impairment.
Larry Hardin testified that the hole in the roof should have been covered, and he agreed with appellee that a person walking forward while carrying a four foot by sixteen foot board would not be able to see his feet or a hole in front of him. He also stated that he was around appellee before, during, and after lunchtime, and did not see anything that would cause him to believe appellee was impaired from the use of any intoxicant. Mr. Hardin admitted that he did not know if appellee smoked marijuana, and he did not know what effect, if any, it had on him. Joseph Hooten testified that although he did not go to lunch with appellee, he worked with him “pretty much all day” and did not notice anything that would lead him to believe appellee was impaired.
Dr. Henry Simmons, a toxicologist, reviewed the results of appellee’s urine tests. In his deposition, he stated that everything he had reviewed in the case was consistent with marijuana impairment on March 10; however, he also stated that the test results were consistent with appellee not being impaired on March 10. Dr. Simmons stated that a person might test positive for marijuana anywhere from two days to six weeks after usage, depending upon whether the individual used marijuana regularly or only one time. He explained this discrepancy stating that chronic marijuana smokers have higher THC body burdens, meaning that the metabolites build up and stay in a chronic smoker’s body for a longer period of time than in a person who has smoked marijuana only one time. In addition to the frequency of use, other factors that may affect the test results include metabolic capability and hydrational status. However, he did not take these factors into consideration when reviewing appellee’s test results because that information was not available to him. He admitted that based on the tests, he could tell very little about the time frame in which appellee had used marijuana.
Dr. Simmons also noted that depending upon the frequency of use, a person might remain impaired anywhere from two to twenty-four hours after ingesting marijuana, and that the strength of the marijuana used would also have a bearing on the degree of impairment. He admitted that he could not determine from the tests alone when appellee had last used marijuana, and that the level of metabolites in the urine tests revealed nothing about the extent of appellant’s impairment, if any, at the time of the accident. He also opined that he would not anticipate that an isolated use of marijuana on March 6 would prevent appellee from performing construction work safely four days later.
Appellants argue that appellee did not present sufficient evidence to rebut the presumption that his accident was substantially occasioned by the use of illegal drugs and urge this court to find appellee’s denial of impairment to be incredible. They also contend, citing Weaver, supra, that appellee’s co-workers are not credible because they were not constantly with appellee on the day of the accident and have no expertise in the field of marijuana impairment. Further, appellants argue that Dr. Simmons’s deposition states that everything he reviewed in connection with this case was consistent with impairment on the date of the accident.
The Commission, as fact finder, must resolve any conflicts in evidence. Warwick Elec., Inc. v. Devazier, 253 Ark. 1100, 490 S.W.2d 792 (1973). It is within the Commission’s sole discretion to determine the credibility of each witness and the weight to be given to the testimony, Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989), and it is not required to believe or disbelieve the testimony of any witness. Green v. Jacuzzi Bros., 269 Ark. 733, 600 S.W.2d 448 (Ark. App. 1980). Once the Commission has made its decision on issues of credibility, the appellate court is bound by that decision. Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987). Whether the rebuttable presumption that claimant’s injury was substantially occasioned by the use of alcohol or illegal drugs is overcome by the evidence is a question of fact for the Commission. Weaver, supra.
The ALJ found appellee’s testimony to be credible, and we are bound by that credibility assessment. It is most reasonable to believe that a person in his seventh straight day on the job and in his twenty-eighth hour of overtime would be fatigued. Moreover, although appellee was aware of the hole and knew that he should be careful, the manner in which he had to carry the large boards prevented him from being able to see where he was going. Although his supervisor could see the hole while assisting appellee in carrying the board, he led appellee directly to the hole.
With regard to appellants’ contention that Weaver requires the ALJ to discount the co-workers’ testimony because they had no training in detecting marijuana impairment, such reliance is misplaced. In ERC Contr. Yard & Sales v. Robertson, 60 Ark. App. 310, 961 S.W.2d 36 (1998), rehearing denied, (Supp. Op. delivered on April 8, 1998), this court affirmed the Commission’s grant of benefits to an injured worker who had fallen from a scaffold due to an alcohol-withdrawal seizure. Although a small amount of alcohol was found in his body, he denied having consumed any alcohol on the day of the seizure. Both his employer and his girlfriend corroborated that testimony. In both Weaver and ERC, we affirmed the decision of the Commission because in each case there was substantial evidence to support it. We note that in the case at bar, appellee’s testimony alone provides substantial evidence upon which it could be determined that he rebutted the statutory presumption of Ark. Code Ann. § 11-9-102(5)(B)(iv), even had his co-workers not provided corroborating testimony.
As to appellants’ argument concerning Dr. Simmons’s deposition, the doctor testified that appellee’s urine test results supported both impairment and non-impairment on the date of the accident. Suffice it to say that the Commission has the duty of weighing medical evidence as it does any other evidence, and its resolution of the medical evidence has the force and effect of a jury verdict. Roberson v. Waste Management, 58 Ark. App. 11, 944 S.W.2d 858 (1997).
As in all workers’ compensation cases, the Commission’s decision must be affirmed if there is substantial evidence to support its determination. Here, we find there was substantial evidence on which the Commission could reach its decision.
Affirmed.
Robbins, C.J., and Griffen, J., agree.
Appellee also received unemployment benefits during this time, and the ALJ noted that he was only entitled to the difference between his unemployment benefits and his temporary total disability benefits during the period of temporary total disability. | [
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Wendell L. Griffen, Judge.
Charles Freshour has appealed the decision of the Pulaski County Chancery Court that denied his motion to change custody of his minor child from her maternal grandmother. Appellant contends that the chancellor erred in maintaining custody of his child, born out of wedlock, with her legal guardian and maternal grandmother, appellee Brenda West, despite a finding that appellant was not unfit to have custody of the child. We find no error and affirm.
Appellant and the noncustodial mother, Tera West (“West”), conceived a child together when they were both 17 years old. West gave birth to Victoria West on May 11, 1993. Appellant was unsure whether he was the father of the child, and after initially visiting Victoria in the hospital at her birth, followed the advice of legal counsel who advised him against visiting the child. West lived with her mother, appellee, so after Victoria was born, West and Victoria returned home to live with appellee. Some time afterwards, appellee directed West to leave the residence because she refused to follow house rules. Victoria has remained with appellee since that time. Appellant eventually moved to Texas, studied to be a mechanic, married, and established a family life in Houston, Texas.
Meanwhile, appellee became Victoria’s legal guardian pursuant to Ark. Code Ann. § 9-10-113 (Repl. 1993). She applied for and received AFDC and Medicaid benefits for Victoria. As a result, the Pulaski County Office of Child Support Enforcement (OCSE), filed a paternity action to determine whether appellant was Victoria’s father. After paternity testing confirmed that appellant was Victoria’s biological father, appellant filed a petition for change of custody in which he sought custody of Victoria, who was three years old when the petition was filed.
After hearings on September 27, 1996, and October 4, 1996, the chancellor ruled that although she could not find appellant either unfit or incompetent, it would be in the best interest of Victoria for her to remain in the custody of appellee. Appellant challenges that decision on appeal and argues that a decree should have been entered awarding custody to him because he is the biological parent and, therefore, preferred in the eyes of the law over all other persons, including a grandparent, unless found unfit or incompetent. See Feight v. Feight, 253 Ark. 950, 490 S.W.2d 140 (1973) (as between a parent and a grandparent, the law prefers the former unless the parent is incompetent or unfit); Golden v. Golden, 57 Ark. App. 143, 942 S.W.2d 282 (1997)(there is a preference for the parent above all other custodians); Ideker v. Short, 48 Ark. App. 118, 892 S.W.2d 278 (1995); McKee v. Bates, 10 Ark. App. 51, 661 S.W.2d 415 (1983).
In child-custody cases, a chancellor’s findings will not be reversed unless they are clearly erroneous or clearly against a preponderance of the evidence. Ark. R. Civ. P. 52(a); Ideker v. Short, supra. We give due regard to the opportunity of the trial court to judge the credibility of the witnesses, and to the chancellor’s superior position to determine the facts. Id. The primary consideration in child-custody cases is the welfare and best interest of the children involved; all other considerations are secondary. Id. The welfare of the child is the polestar in every child-custody case.
The flaw in appellant’s reasoning arises from his failure to appreciate the factors involved when a change-of-custody petition is considered. Appellant plainly sought a decision that changed custody from appellee. In deciding whether a change of custody is warranted, a chancellor must first determine whether there has been a material change in circumstances of the parties since the most recent custody decree; if material changes have occurred, the chancellor must then determine custodial placement, with the primary consideration being the best interest of the child. Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997). The party seeking modification of a child-custody order has the burden of showing a material change in circumstances. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996).
We have no difficulty affirming the chancellor’s decision because appellant failed to show a material change of circumstances to justify a change in custody. Appellee has exercised custody of Victoria most of her life since the child was born on May 11, 1993. After appellee assigned her rights to child support to the Pulaski County Child Support Enforcement Unit and alleged in a June 6, 1995, affidavit that appellant was the child’s biological father, appellant denied paternity. His May 14, 1996, motion for change of custody was filed only after DNA testing had established paternity.
More important, however, is the clear evidence that appellant took virtually no interest in and provided no support, care, supervision, and protection for Victoria until the paternity action aimed at recovering the money that had been paid on Vic toria’s behalf had been filed by the Office of Child Support Enforcement. In that regard, we note that Ark. Code Ann. § 9-10-113(c) (Repl. 1993) provides that a court may award custody of a child born out of wedlock to a biological father upon a showing that: (1) he is a fit parent to raise the child; (2) he has assumed his responsibilities toward the child by providing care, supervision, protection, and financial support for the child; and (3) it is in the best interest of the child to award custody to the biological father. The chancellor was clearly justified in denying appellant’s motion to change custody where the proof established that he had not assumed the responsibilities specified at section 9-10-113(c)(2), even if appellant was deemed a fit parent in other respects.
We also affirm the chancellor because her finding that it is in Victoria’s best interest to remain in the custody of appellee is not clearly erroneous. Aside from the fact that appellant failed to establish a material change of circumstances to justify modifying the custody arrangement, it is fundamental that the primary consideration in child-custody cases is the welfare and best interest of the children involved; all other considerations, including the legal preference favoring biological parents over third persons, are secondary. Our appellate decisions have consistendy recognized that a heavier burden is placed on a chancellor in child-custody cases to utilize, to the fullest extent, all of her powers of perception in evaluating the witnesses, their testimony, and the child’s best interests, and that we know of no cases in which the superior ability, position, and opportunity of the chancellor to observe the parties carries as great a weight as those involving child custody. Turner v. Benson, supra.
These controlling principles clearly lead us to affirm the chancellor’s finding that it is in Victoria’s best interest that she remain in the custody of appellee. The proof shows that Victoria has lived with appellee for practically her entire life, and that she has known no other parent figure. She also has grown up with an older half-sister, unrelated to appellant, with whom she enjoys a familial bond and from whom she would be separated if appellant is granted custody. Appellee has given Victoria a home, nurture, and a sense of stability that the chancellor was entitled to consider in evaluating whether her best interest would be served by grant ing appellant’s motion to change custody based only on his status as biological father, particularly where appellant had failed to provide those vital elements for the child’s life. We decline appellant’s invitation to reverse the chancellor and to hold, in effect, that his status as a biological parent trumps what is in the best interest of his four-year-old daughter.
Finally, we note that appellant emphasizes the chancellor’s assessment that he is a fit person to take custody if appellee’s circumstances change, and characterizes that assessment as an almost impossible hurdle that will prevent him from ever having custody of his daughter. We do not know whether appellee’s circumstances will change, and neither did the chancellor. Flowever, the chancellor was well informed about what Victoria’s circumstances had been insofar as appellant was concerned. Between appellant and appellee, the proof concerning who had acted to protect and advance Victoria’s best interest was clear and uncontradicted. If appellant views the chancellor’s decision as a hurdle, he can remember that the chancellor decided what was in Victoria’s best interest based upon proof that appellant had acted without apparent regard for her interest as long as it appeared convenient and/or financially advantageous to do so. The principle that the best interest of the child is the polestar in determining child custody disputes not only allowed the chancellor to rule as she did, it practically dictated the result that she reached when one considers how appellant had behaved concerning Victoria’s best interest.
The fact that appellant was but seventeen years old when Victoria was conceived, while remarkable, is legally insignificant. Victoria was his responsibility. He left her. He cannot fault the chancellor for correctly observing that appellee has provided the care that he was obligated but refused to provide. Nor can he use his biological status as father to erase his disregard for the child’s best interest by his demonstrated failure and refusal to provide for her for most of her life.
Appellee was Victoria’s legal guardian, and appellant only moved for custody after OCSE sought reimbursement for public benefits paid to support Victoria. There had been no material change in circumstances that would prompt a change of custody, as appellant had virtually abandoned the minor child until he was sought out by OCSE. However, even if a change in circumstances had been shown, the chancellor’s decision that it was in the best interest of the minor child to be placed with the maternal grandmother was not clearly erroneous.
Affirmed.
Arey, Stroud, and Neal, JJ., agree.
Pittman and Jennings, JJ., dissent. | [
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John Mauzy Pittman, Judge.
The appellee, who was born without any fingers on her right hand, filed a workers’ compensation claim on December 6, 1993, alleging that she developed numbness and pain in her left hand while working for the appellant employer. The employer accepted the claim as compensable, but ultimately denied medical expenses and benefits associated with the evaluation and treatment of Dr. Phillip Wright, asserting that he was not an authorized physician and that his treatment was not reasonably necessary. After a hearing, the Commission found that appellee was properly referred to Dr. Wright, that the treatment provided by Dr. Wright was reasonable and necessary, and that appellee was entitled to temporary total disability benefits for the period during which Dr. Wright removed her from work. From that decision, comes this appeal.
For reversal, appellants contend that the evidence does not support the Commission’s findings that Dr. Wright’s treatment is reasonably necessary; that Dr. Wright’s treatment resulted from a valid referral; or that appellee was entitled to temporary total disability benefits for the six-week period that Dr. Wright removed her from work. We affirm.
In determining the sufficiency of the evidence to support the findings of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the Commission’s findings, and we will affirm if those findings are supported by substantial evidence. Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Nelson v. Timberline International, Inc., 57 Ark. App. 34, 942 S.W.2d 260 (1997). The determination of the credibility and weight to be given a witness’s testimony is within the sole province of the Commission. Min-Ark Pallet Co. v. Lindsey, 58 Ark. App. 309, 950 S.W.2d 468 (1997). The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. McMillan v. U.S. Motors, 59 Ark. App. 85, 953 S.W.2d 907 (1997).
Viewing the evidence, as we must, in the light most favorable to the Commission’s findings, the record reflects that appellee, who was 37 years old at the time of the hearing, was employed by appellant employer for seven years filling orders. Although she was born without any fingers on her right hand, she was considered to be an exemplary worker and fulfilled her production quota without difficulty for the first five years of her employment. After working in this capacity for five years, however, she began experiencing numbness and pain in her left hand, which became progressively worse until she was taken completely off work for six weeks on the recommendation of Dr. Wright. This six-week cessation of all hand activity gready improved appellee’s condition.
Arkansas Code Annotated § 11-9-508 (a) (Repl. 1996) requires employers to provide such medical services as may be reasonably necessary in connection with the employee’s injury. What constitutes reasonably necessary treatment under this section is a fact question for the Commission. Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984). In the case at bar there was evidence that Dr. Wright was a qualified specialist in whom appellee had confidence and that his recommendations greatly improved appellee’s worsening condition. Given this evidence, we cannot say that the Commission erred in finding his services to be reasonably necessary in connection with appellee’s compensable injury.
Nor do we agree with appellants’ argument that the Commission erred in finding that appellee was referred to Dr. Wright. Under Ark. Code Ann. § ll-9-514(b) (Repl. 1996), routine treatment by a physician other than the claimant’s authorized treating physician shall be at the claimant’s expense. However, this section is inapplicable if the authorized treating physician refers the claimant to another doctor for examination or treatment. See Electro-Air v. Villines, 16 Ark. App. 102, 697 S.W.2d 932 (1985). We held in Electro-Air that a referral had indeed occurred where the evidence showed that a claimant’s treating physician had referred her to a psychiatrist, despite the fact that the Commission had improperly labeled it a change of physician. In White v. Lair Oil Co., 20 Ark. App. 136, 725 S.W.2d 10 (1987), we again held that a treating physician referring his patient to a specialist constituted a valid referral rather than an unauthorized change of physicians. The situation in the case at bar is virtually identical. Appellee’s treating physician, Dr. Woloszyn, recommended that appellee obtain continued care from a hand specialist, and provided her with the names of two qualified specialists in that field: Dr. Wright and Dr. Bourland. Appellee obtained treatment from Dr. Wright based on this recommendation. We hold that this constitutes substantial evidence to support the Commission’s finding that appellee was referred to Dr. Wright.
Finally, appellants contend that the Commission erred in finding that appellee was entitled to temporary total disability benefits for the six weeks she was removed from work by Dr. Wright. Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. J.A. Riggs Tractor Co. v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990). Arkansas Code Annotated § 11-9-102(13) (Repl. 1996) defines “healing period” as that period for healing of an injury resulting from an accident. The healing period continues until the employee is as far restored as the permanent character of his injury will permit, and if the underlying condition causing the disability has become stable and if nothing in the way of treatment will improve that condition, the healing period has ended. Carroll General Hospital v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996). The determination of when the healing period has ended is a factual determination for the Commission which will be affirmed on appeal if supported by substantial evidence. Id. Here there was evidence that appellee suffered from overuse syndrome affecting her left hand, a condition that improved after she stopped using her hand altogether for six weeks on the recommendation of Dr. Wright. Although there was evidence to the contrary, questions of weight and credibility are within the sole province of the Workers’ Compensation Commission, Min-Ark Pallet Co. v. Lindsey, supra, and we cannot say that there is no substantial evidence to support the Commission’s finding.
Affirmed.
Neal, Arey, Jennings, and Stroud, JJ., agree.
Griffen, J., dissents.
There was evidence to support the narrative and conclusions presented by the dissent. However, the issue on appeal is not whether the evidence would have supported a contrary finding. White v. Frolic Footwear, 59 Ark. App. 12, 952 S.W.2d 190 (1997). The findings that the Commission actually made are supported by substantial evidence; consequently, we must affirm. Id. | [
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Sam Bird, Judge.
The Office of Child Support Enforcement (OCSE) brings this appeal from the Chancery Court of Lonoke County challenging the authority of the court to enter an amended judgment after the lapse of time prescribed by Ark. Civ. P. 60(b).
Before we discuss the merits of the case, the facts need to be set forth. Scarlett Offutt and Jerry Gordon Offutt, appellee, were married and resided in Alabama. They separated in 1977, and appellee moved to Arkansas where he obtained a divorce in January 1978. Mrs. Offutt gave birth to a male child on October 10, 1977, but appellee denied that he was the child’s father. In 1994, appellant commenced this action to establish paternity of the child and to collect current and past-due child support on behalf of the child’s mother. The parties consented to DNA testing to determine paternity; the testing resulted in a determination of the probability of paternity being 99.41 percent. On May 19, 1995, a hearing was conducted, but the chancellor did not issue a ruling, taking the case under advisement. In November of 1995, six months after the paternity hearing and after having received no decision from the court, the appellant’s attorney prepared a precedent containing a finding that appellee was the father of the child and setting appellee’s child-support arrearage at $6,000, based upon $100 per month for five years. The precedent was mailed to the judge and appellee’s attorney, along with a transmittal letter by which appellee’s attorney was requested to notify the judge within seven days if she objected to the precedent, and the judge was requested to sign the order if he did not receive an objection from appellee’s attorney within seven days. The appellee’s attorney received the transmittal letter and the precedent and, on the seventh day, she telephoned the judge and voiced her objection to the precedent. However, the order was entered on November 29, 1995.
On December 8, the appellee filed a “Motion for Relief fromDecree/and Amendment of Judgment of Paternity” pursuant to Ark. R. Civ. P. 52 and Ark. R. Civ. P. 60(b), but the court took no action on appellee’s motion until it entered an order on January 30, 1996, which granted a hearing on February 5. A hearing was conducted on February 5, and the judge made oral findings on the record that the November 29, 1995, order should be amended to reduce the child-support arrearage from $6,000 to $635. Counsel for appellee was instructed to prepare the precedent, but no order was entered until July 16, 1996.
Appellant appeals from the July 16, 1996, order, arguing that under Ark. R. App. P. — Civ. 4(c), the December 8, 1995, motion was “deemed denied” when not acted upon by the trial court within thirty days, and that, thereafter, the order was final, and the trial court lacked jurisdiction to consider appellee’s motion. The appellant also argues that the trial court lacked authority to modify its November 29, 1995, order under Ark. R. Civ. P. 60(b) after the lapse of ninety days. We agree with the appellant and reverse and remand.
Appellant argues on appeal that the court erred in granting appellee’s motion for relief because the motion was deemed denied when the court failed to act on it within thirty days from the filing of the motion. Arkansas Rules of Appellate Procedure — Civil 4(a) provides that a notice of appeal shall be filed within thirty days from the entry of the judgment, decree, or order appealed from. Sections (b) and (c) of the rule state:
(b) Time for Notice of Appeal Extended by Timely Motion. Upon timely filing in the trial court of a motion for judgment notwithstanding the verdict under Rule 50(b), of a motion to amend the court’s findings of fact or to make additional findings under Ride 52(b), or of a motion for a new trial under Rule 59(b), the time for fifing of notice of appeal shall be extended as provided in this rule.
(c) Disposition of Posttrial Motion. If a timely motion fisted 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 fifing, the motion will be deemed denied as of the 30th day.
This rule has been strictly construed. Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997); Arkansas State Highway Comm’n v. Ayres, 311 Ark. 212, 842 S.W.2d 853 (1992); Wal-Mart Stores, Inc. v. Isely, 308 Ark. 342, 823 S.W.2d 902 (1992).
In the case at bar, the appellee timely filed his motion requesting relief from the paternity judgment on December 8, 1995, but the court took no action on appellee’s motion until January 30, 1996, when an order was entered setting the motion for hearing on February 5. Although the hearing on appellee’s motion was conducted on February 5, this was too late because appellee’s motion was already “deemed denied” by virtue of the court’s failure to act on it within thirty days, and the court had already lost jurisdiction. Slaton v. Slaton, supra; Arkansas State Highway Comm’n v. Ayres, supra; Wal-Mart Stores, Inc. v. Isely, supra.
The case at bar is similar to Slaton v. Slaton, supra. In Slaton, the parties were divorced on September 26, 1991, and Jeffery Sla-ton was awarded custody of their children. Several hours after the decree was entered Teresa Slaton filed a motion for reconsideration. On September 30, 1991, the trial court entered an order stating that the decree should be stayed and held in abeyance, and it scheduled a hearing for October 8, 1991. Flowever, the hearing was not held until February 24, 1992. When the hearing was held, the court granted the motion for reconsideration. On March 5, 1992, the court entered an order modifying the original order. Over the next three years, the parties filed several motions dealing with child custody, support, and visitation. However, on December 26, 1995, Jeffery Slaton filed a motion contending that the March 5 order was void. On appeal, the supreme court agreed.
First, the supreme court held that even though a chancery court has continuing jurisdiction, in order to modify child-support awards, the chancery court must find that the moving party has demonstrated a change in circumstances that would require modification. 330 Ark. at 292, 956 S.W.2d at 153.
Second, the court held that Teresa Slaton’s motion for reconsideration was deemed denied after thirty days; therefore, the court did not have jurisdiction to modify the order. Id. at 294-95, 956 S.W.2d at 154. As in Slaton, in the case at bar, the court did not act upon the appellee’s motion for relief until more than thirty days after it was filed. Therefore, it was deemed denied, and the court did not have jurisdiction to modify the original order.
Finally, in Slaton, the court held that Ark. R. Civ. P. 60 dictates that the trial court loses jurisdiction to modify or set aside an order ninety days after it is entered. Id. at 295, 956 S.W.2d at 154. In the case at bar, the court lost jurisdiction to correct its original order of November 29, 1995, on February 27, 1996, ninety days after it was entered. Therefore, the July 16, 1996, order was void.
The appellee seeks to uphold the trial court’s action amending its November 29, 1995, order by arguing that the appellant’s attorney committed fraud. He refers us to Ark. R. Civ. P. 60(c)(4) that provides that a trial court may set aside a judgment even after the lapse of ninety days “[f]or fraud practiced by the successful party in obtaining the judgment.” Appellee points to the conduct of appellant’s attorney in preparing the precedent containing findings not made by the court and mailing it to the judge along with a letter requesting that the judge sign the order if no objection is received from appellee’s attorney within seven days. In support of his position he cites Davis v. Davis, 291 Ark. 473, 725 S.W.2d 845 (1987), in which the supreme court affirmed a trial court’s determination that an attorney had acted fraudulently in procuring a judgment when he prepared and mailed to the judge a precedent that contained an award of damages almost twice the amount actually awarded by the judge in a letter opinion. He sent the precedent to the judge along with a letter explaining his reasons for changing the amount of the damages award, but failed to send a copy of the letter to opposing counsel. The judge “routinely” signed the precedent and returned it to the attorney who prepared it.
The case at bar is clearly distinguishable from Davis. Here, appellant’s attorney sent a copy of the precedent and transmittal letter to both the judge and appellee’s attorney. By requesting that the judge sign the precedent only if he did not receive an objection by opposing counsel within seven days, the judge was alerted to the fact that there might be an objection from appellee’s counsel as to the form or content of the judgment. We do not interpret this action as an effort by appellent’s attorney to deceive either the judge or appellee’s attorney. In fact, we know that appellee’s attorney received the precedent and letter because she contacted the judge and voiced her objection to the precedent, but the judge signed it anyway. We do not consider the conduct of appellant’s attorney in this case to be in any way similar to the conduct of the attorney in Davis and certainly not fraudulent within the meaning of Rule 60(c)(4).
In addition to Davis v. Davis, supra, the dissenting opinion also refers to First Nat’l Bank v. Higginbotham Funeral Serv., Inc., 36 Ark. App. 65, 818 S.W.2d 583 (1991), in stating that the facts of the case at bar are suggestive of fraud on the part of appellant’s attorney in procuring the November 29, 1995, judgment. We believe that Higginbotham is also clearly distinguishable from this case. In Higginbotham, an attorney succeeded in getting the trial judge to sign a consent judgment by telling the judge that he was the attorney for a party to the litigation under circumstances in which the attorney knew or should have known that his status as the attorney for that party was in doubt. After the lapse of more than ninety days, the trial court set the consent judgment aside, finding that the attorney’s action constituted fraud within the meaning of Ark R. Civ. P. 60(c)(4). We do not find the conduct of appellant’s attorney in the case at bar to be in any way similar to the conduct of the attorney in Higginbotham.
Davis, supra, and Higginbotham, supra, are also distinguishable from this case because in Davis and Higginbotham, the trial courts found that there was fraud in the procurement of the judgments. In the present case, appellee never argued in the trial court that the November 29, 1995, order should be set aside for fraud in its procurement under Rule 60(c)(4). Appellee relied solely on Ark. R. Civ. P. 60(b) and 52(b) in support of his motion in the trial court. The party seeking to set aside the judgment has the burden of showing that the judgment was obtained by fraud. Karam v. Halk, 260 Ark. 36, 537 S.W. 2d 797 (1976).
Therefore, we reverse and remand this case to the trial court with instructions to reinstate the November 29, 1995, order.
Reversed and remanded.
Robbins, C.J., Rogers and Meads, JJ., agree.
Roaf and Crabtree, JJ., dissent.
The testimony from this hearing was not included in the record. The appellee filed a motion to supplement the record with a transcript of the May 19, 1995, hearing, but this court denied the motion.
By that time the child had already reached majority, so no current support was set. | [
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John Mauzy Pittman, Judge.
The appellant is the mother of Darrell and Everett. Darrell, who is now five years old, suffers from emotional and behavioral disorders; Everett, who is three years old, has serious health problems that require special care. On March 14, 1995, the appellee filed a petition alleging that both boys were dependent-neglected. After an adjudication hearing, an agreed order finding the children to be dependent-neglected was entered and the children were removed from appellant’s custody. After several unsuccessful attempts to rectify the conditions causing removal, appellee filed a petition to terminate parental rights. After a hearing, the trial court entered an order terminating appellant’s parental rights on March 10, 1997. From that decision, comes this appeal.
For reversal, appellant contends that the evidence was insufficient to support the trial court’s findings that appellant had not remedied the conditions that caused removal; that appellee made a meaningful effort to rehabilitate the home and correct the conditions that caused removal; that termination of parental rights was in the best interest of the children; and that appellee had an appropriate placement plan for the children. In addition, appellant contends that Ark. Code Ann. § 9-27-341 (b)(2)(E) creates an unconstitutional presumption that the mentally ill have the inability to rehabilitate their circumstances. We affirm.
The trial court based the termination of appellant’s parental rights on Ark. Code Ann. § 9-27-341 (Supp. 1995), which provides, in pertinent part, that:
(b) The court may consider a petition to terminate parental rights if it finds that the Department of Human Services has physical or legal custody of the juvenile and the parent or parents, or putative parent, if the putative parent can be identified, have received actual or constructive notice of the hearing to terminate parental rights. An order forever terminating parental rights shall be based upon a finding by clear and convincing evidence:
(1) That it is in the best interest of the juvenile;
(2) Of one or more of the following grounds:
(A) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the home for twelve (12) months, and, despite a meaningful effort by the Department of Human Services to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent. It is not necessary that the twelve-month period referenced in this subdivision (b)(2)(A) immediately precede the filing of the petition for termination of parental rights, or that it be for twelve (12) consecutive months
We first address appellant’s contention that the evidence was insufficient to support the trial court’s findings that appellant had not remedied the conditions that caused removal; that appellee made a meaningful effort to rehabilitate the home and correct the conditions which caused removal; that termination of parental rights was in the best interest of the children; and that appellee had an appropriate placement plan for the children.
The record shows that Darrell and Everett were initially removed from appellant’s home because appellant was not giving Everett necessary medical care and because her home was filthy, mildewed, and unsafe. Appellant was ordered to attend parenting classes and medical appointments; ADHS was to provide transportation to and from the appointments and assist appellant to find adequate housing. Although ADHS did provide housing assistance, transportation, homemaker services, and referral to parenting classes, appellant failed to attend required therapy sessions with Darrell, and her living conditions remained deplorable so as to cause a Family Service Worker who visited the residence to become physically ill. Furthermore, the unsanitary living conditions were extremely detrimental to Everett, who suffers from sickle-cell anemia and who will consequently forever be at risk for life-threatening infection. Everett also suffers from an eating disorder and must be fed by means of an apparatus which must be kept clean. Darrell has a psychological disorder for which he is required to attend therapy, but appellant missed therapy sessions for him while he was in her custody. There was evidence that appellant has a low level of intellectual functioning with an I.Q. of 74 but is not mentally retarded. There was also evidence that, although she was capable of meeting the children’s needs, she was resistant to attempts to teach her to do so through services provided by ADHS, such as parenting classes, housekeeping services, and counselling. For example, although appellant demonstrated her ability to keep a clean house by doing so when she initially relocated to a trailer, her housekeeping efforts subsequently lapsed and again became unacceptable. We think that the inadequacy of housing which caused the children to be removed was largely the result of uncleanliness, a condition which was not remedied despite meaningful efforts by AJDHS. Furthermore, although there is no assurance that the children will be adopted, we cannot say that the ADHS plan for placement of the children is not appropriate given appellant’s unwillingness to provide proper care for them. We find no error on this point.
Nor do we agree with appellant’s argument that the trial judge committed reversible error in granting the termination petition because it was filed before both children had continued out of the home for twelve months. The record shows that, at the time the petition was filed, Everett had been outside the home for more than twelve months, but Darrell had been in foster care for a few days over eleven months. However, even if Ark. Code Ann. § 9-27-341 (b) did not permit a termination petition to be filed until both children had continued out of the home for twelve months (a matter which we do not decide), any error that may have taken place in the case at bar was cured because the hearing was not conducted until both children had been out of the home for over fourteen months. See Briscoe v. State, 323 Ark. 4, 912 S.W.2d 425 (1996).
Next, appellant contends that Ark. Code Ann. § 9-27-341(b)(2)(E) creates an unconstitutional presumption that the mentally ill have the inability to rehabilitate their circumstances. We do not address this issue because appellant lacks standing to raise it. The trial judge’s order specifically stated that appellant had the mental capacity to remedy her conditions and that the termination petition was not granted under Ark. Code Ann. § 9-27-341(b)(2)(E). An appellant lacks standing to challenge the constitutionality of a statute where it was not applied to her in a discriminatory manner. Wineman v. Brewer, 280 Ark. 527, 660 S.W.2d 655 (1983).
Affirmed.
Jennings and Stroud, JJ., agree. | [
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Sam Bird, Judge.
Continental Express, a trucking company, appeals a decision of the Workers’ Compensation Commission holding that appellee had rebutted the presumption contained in Ark. Code Ann. § ll-9-102(5)(B)(iv)(b) (Repl. 1996), and proved that the one-vehicle accident in which he was injured was not “substantially occasioned” by the use of alcohol. Appellant argues that the Commission erred in (1) interpreting and applying Ark. Code Ann. § 11-9-102(5) (B)(iv)(b); (2) finding that appellee’s seizures are causally related to his employment; and (3) awarding additional temporary total disability benefits because there was not substantial evidence to show that the claimed period of total incapacitation was causally connected to the compensable injury. We affirm.
On December 21, 1994, appellee was on his way to Crossett. He testified that it was raining and foggy, that he was on a two-lane road, that he was driving about forty-five miles an hour, and that his trailer was empty when a small white car attempted to pass without adequate room and cut closely in front of him. Appellee said that when he put on his brakes to avoid hitting the car and an on-coming vehicle, his truck jackknifed and went into a ditch.
Appellee testified that he was unconscious for a short time and awakened to find a witness asking him if he was all right. He said he crawled out of the truck, across the ditch and onto the highway where law enforcement officers were waiting. He had bruises and cuts on his head, hands, and knees. There was a twelve-pack of unopened beer in the cab of his truck, but an officer performed a field sobriety test on appellee, and appellee passed. Appellee was taken to the hospital by ambulance where he was treated for a laceration to his scalp, a neck injury, a lower back injury, and a left leg injury. Blood withdrawn at the hospital revealed that appellee’s blood-alcohol content was .021%. It is unlawful to operate a motor vehicle if a person has one-tenth of one percent (0.10%) or more alcohol in his blood. Ark. Code Ann. § 10-65-103 (Repl. 1993). However, Ark. Code Ann. § 27-23-112 (Repl. 1994) provides that a commercial truck driver shall be disqualified from holding a commercial driver’s license if convicted of driving a commercial vehicle with a blood-alcohol concentration of four one-hundredths of one percent (0.04%) or greater.
Appellee testified that on December 21, 1994, he and his partner had driven all night from Albuquerque, New Mexico, to Little Rock, and had arrived between 5 and 7 a.m. While waiting for a new load, appellee and his co-driver drank a couple of beers, and then appellee went to bed. Late that afternoon he was told to go pick up a load in Crossett. The accident occurred just north of Monticello. Appellee was taken to Drew Memorial Hospital in Monticello where the emergency-room report shows the time as being 7:09 p.m. The blood-alcohol report shows that appellee’s blood was drawn at 7:45 p.m.
Following his release from the hospital, appellee returned to his hometown of Rayville, Louisiana, where he was treated by Dr. Charles S. Krin, a family practice physician in Rayville. Appellee began to have severe headaches, vertigo, and seizure-like episodes, in addition to his other injuries. On June 15, 1995, appellee was taken to the emergency room at Richardson Medical Center in RayvilLe because he had been drinking and suffered a seizure. His blood-alcohol level was 0.28 percent. Appellee testified at the hearing that he quit drinking that day and had not had a drink since.
Appellant originally accepted the claim as compensable and paid medical expenses and temporary total disability benefits until October 30, 1995, but controverted any claim subsequent to that date. Appellee sought compensation for temporary total disability and medical expenses to the end of his healing period. Appellant raised the defense of Ark. Code Ann. § ll-9-102(5)(B)(iv)(b), which provides that the presence of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders. Section (d) states that an employee shall not be entitled to compensation unless it is proved by a preponderance of the evidence that the alcohol, illegal drugs, or prescription drugs utilized in contravention of the physician’s orders did not substantially occasion the injury or accident.
The administrative law judge held that the presumption had been rebutted, and the Commission affirmed and adopted his opinion. It pointed to the evidence that there was a small amount of alcohol in appellee’s blood, that he was driving under the posted speed limit, that there was rain and fog, that his trailer was empty, that his truck was cut-off by a car pulling in too quickly, and that appellee was not cited for being under the influence of alcohol by the investigating officer. The Commission also found that appellee’s testimony was credible, that his seizures were the result of his injury, that he remained in his healing period and totally incapacitated to earn wages as of April 18, 1996, and that he was entitled to temporary total disability benefits from October 30, 1995, through the end of his healing period.
Appellant first argues that the Commission erred in its interpretation and application of Ark. Code Ann. § 11-9-102(5)(B)(iv)(b), because it “engaged in a ‘cause in fact’ analysis in its interpretation of the definition of ‘substantially occasioned’ and erred in its application of the facts to that standard.” Appellant contends that the proper test is merely one of causation and does not equate to a “causation in fact” or a “but for” analysis but instead correlates to a “concurrent cause” analysis. As an example, appellant points to cases of joint and several liability in which concurrent acts of negligence combine to produce a single injury and “each is responsible for the entire result, even though his act alone might not have caused it,” citing Woodward v. Blythe, 249 Ark. 793, 462 S.W.2d 205 (1971) [emphasis appellant’s]. Appellant asserts that to the extent that the Commission required more than a “concurrent cause” analysis, its decision should be reversed and remanded so it can consider the case under a proper standard. Appellant then submits that the rebuttable presumption establishes that appellee’s consumption of alcohol was “at least a concurrent cause” of the accident and appellee was required to prove that alcohol was not a factor by proving the existence of a superseding, intervening cause.
A statutory presumption is a rule of law by which the finding of a basic fact gives rise to the existence of a presumed fact, unless sufficient evidence to the contrary is presented to rebut the presumption. Black’s Law Dictionary 1185 (6th ed. 1990). If evidence that is contrary to the presumed fact is presented, the determination of the existence or nonexistence of the presumed fact is a question for the trier of fact. Ross v. Vaught, 246 Ark. 1002, 440 S.W.2d 540 (1969); Curtis Circulation Co. v. Henderson, 232 Ark. 1029, 342 S.W.2d 89 (1961); Ford & Son Sanitary Co. v. Ransom, 213 Ark. 390, 210 S.W.2d 508 (1948); Ball v. Hail, 196 Ark. 491, 118 S.W.2d 668 (1938). The determination of the weight to be given a presumption is a matter within the province of the trier of fact. Dunn v. Dunn, 255 Ark. 764, 503 S.W.2d 168 (1973). Whether a rebuttable presumption is overcome by the evidence is a question of fact for the Commission to determine. Weaver v. Whitaker Furniture Co., 55 Ark. App. 400, 935 S.W.2d 584 (1996); see also Eagle Safe Corp. v. Egan, 39 Ark. App. 79, 842 S.W.2d 438 (1992).
When reviewing a finding of fact made by the Commission, we must affirm if the Commission’s decision is supported by substantial evidence. Purolator Courier v. Chancey, 40 Ark. App. 1, 841 S.W.2d 159 (1992). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Southern Steel & Wire v. Kahler, 54 Ark. App. 376, 927 S.W.2d 822 (1996).
Appellant argues that appellee never presented proof that there was a white car and that the only proof that he was not impaired was his own self-serving testimony. We disagree. As the Commission noted, appellee was driving between six and seven p.m. on a two-lane road under the posted speed limit, it was raining and foggy, his trailer was empty, he was cut off by another vehicle, he passed a field sobriety test administered by the investigating officer, and he was not cited for being under the influence of alcohol. The Commission found this evidence to be credible and sufficient to rebut the presumption. It is well established that the credibility of witnesses and the weight to be given their testimony are matters exclusively within the province of the Commission. James River Corp. v. Walters, 53 Ark. App. 59, 918 S.W.2d 211 (1996). While it is true that the uncorroborated testimony of an interested party is never considered uncontradicted, this does not mean that the fact finder may not find such testimony to be credible and believable or that it must reject such testimony if it finds the testimony worthy of belief. Ringier Am. v. Combs, 41 Ark. App. 47, 849 S.W.2d 1 (1993). 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. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). Since whether a presumption is rebutted is a fact question, we must affirm the Commission unless we are persuaded that fair-minded persons, with the same facts before them, could not have reached the conclusion reached by the Commission. We think fair-minded persons could interpret the evidence as the Commission did; therefore, we affirm the Commission’s finding that appellee had rebutted the presumption that the accident was substantially occasioned by the use of alcohol.
Next appellant challenges the Commission’s finding that appellee’s seizures are causally related to his employment. Appellant contends that there is no objective evidence that appel- lee even had seizures, much less that they are the result of the accident. It takes the position that the evidence of seizures is based only on appellee’s verbal history, and that Dr. Krin’s rebanee on a March 4, 1996, CT scan is misplaced. Appellant argues that because the March 4 CT scan was without contrast and the CT scan performed on May 9, which was both with and without contrast, showed no abnormalities, the CT scan of March 4 is erroneous. The Commission has the duty of weighing the medical evidence as it does any other evidence, Foxx v. American Transp., 54 Ark. App. 115, 924 S.W.2d 814 (1996); Brantley v. Tyson Foods, Inc., 48 Ark. App. 27, 887 S.W.2d 543 (1994), and its resolution of the medical evidence has the force and effect of a jury verdict. Roberson v. Waste Management, 58 Ark. App. 11, 944 S.W.2d 858 (1997); McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989). When the Commission chooses to accept the testimony of a physician, the courts are powerless to reverse the Commission’s conclusion in this regard. Jones v. Scheduled Skyways, Inc., 1 Ark. App. 44, 612 S.W.2d 333 (1981); Hunter Wasson Pulpwood v. Banks, 270 Ark. 404, 605 S.W.2d 753 (Ark. App. 1980).
Appellant also alleges that no doctor had ever witnessed appellee in an active seizure and the medical tests did not provide definite evidence of seizures. Therefore, appellant submits, the most bkely cause of appellee’s alleged seizures is alcohol. We disagree. On March 3, 1996, on a history and physical when appellee was admitted to Richardson Medical Center, Dr. Krin wrote:
We have unfortunately not been able to catch any of these seizures on work-up except for one which was observed by myself. We are going to go ahead and repeat his EEG while we have him in today. This episode started yesterday afternoon at which time he was noted to have tonic clonic movement of all extremities. He was postictal at the time of arrival at emergency room however he started coming out of his postictal state shortly thereafter. Loss of memory extends for at least an hour.
As to whether his seizures are attributable to his work-related accident, on December 1, 1995, Dr. Krin wrote:
I have been following Mr. Harris for the last year since he was involved in a motor vehicle accident. He has suffered from seizures since that time, and is barred from working as a truck driver for this reason (unable to pass the physical exam for a Commercial Driver’s License with a history of seizures.)
The Commission accepted Dr. Erin’s opinion regarding appellee’s seizures and their etiology, and since it is the Commission’s function to weigh the medical evidence, its resolution of the issue has the force and effect of a jury verdict. Roberson v. Waste Management, supra; McClain v. Texaco, Inc., supra.
Finally, appellant argues that there is no evidence to support the finding that appellee was totally incapacitated and still within his healing period after October 30, 1995, or that his alleged incapacitation was causally connected to his injury. Appellant relies on an outpatient disability evaluation note of that date from Dr. Stephen Horne:
Patient has left arm pain, exact etiology unknown. It is, however, suspected that the patient is doing something at home, more than what he relates to me as he does have heavily calloused hands which I would not expect after this period of time and also, it appears that he has lateral epicondylitis which is a repetitive trauma type disorder and it is my suspicion that the man is doing some type of work at home that he is not relating to me.
However, in a letter dated April 18, 1996, speaking of Mr. Harris, Dr. Erin said:
He has not been able to perform his usual and customary occupation since the accident on 21 December 1994, as seizure disorder is an absolute grounding condition for commercial truck drivers under DOT standards.
The only thing that I can find as a cause of his continued seizures and headaches is the accident referred to above.
The Commission chose to accept the medical opinion of appel-lee’s treating physician, Dr. Erin, over that of Dr. Horne. When the Commission chooses to accept the opinion of one physician over another, the courts are powerless to reverse the Commission’s conclusion in this regard. Jones v. Scheduled Skyways, Inc., supra; Hunter Wasson Pulpwood v. Banks, supra.
Affirmed.
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Andree Layton Roaf, Judge.
Attorney David Potter appeals a jury verdict finding breach of contract in his representation of appellee Margaret Magee and awarding her $2,000 in damages. On appeal, Potter contends that the trial court erred in excluding his testimony about the services he rendered to Magee. On cross-appeal, Magee asserts that the trial court erred in: 1) granting judgment on the pleadings on the issue of punitive damages; 2) excluding proffered evidence concerning Potter’s prior conduct that was probative of his breach of fiduciary duty; and 3) fading to refer Potter to the Committee on Professional Conduct, and failing to order a larger monetary award as Rule 11 sanctions. We reverse on appeal and affirm on cross-appeal.
Margaret Magee decided to obtain a divorce and began calling attorneys in the Texarkana phone directory on Memorial Day in 1995, until she reached David Potter, who was working at his office. Potter agreed to see her that day. Magee claimed that she informed Potter her objectives were to obtain a divorce, obtain custody of her child, and to remain in the marital home as long as possible to save money. Potter agreed to represent Magee and required that she pay him $3,500 up front. Potter claimed that the money was a fixed fee for handling her divorce; Magee denied that any agreement was reached regarding how the money would be apportioned. Potter deposited the entire $3,500 paid by Magee on May 30, 1995, in his business account.
Potter filed Magee’s divorce complaint two days later, on June 1, 1995, and per her instructions had her husband served on June 2, 1995, at 12:10 a.m. Potter requested a temporary hearing that was apparently set for June 8, 1995, but it conflicted with the schedule of Damon Young, the attorney for Magee’s husband. Potter subsequently reached an agreement with Young whereby both parties could continue to five in the marital home, but Mr. Magee would be required to leave whenever Mrs. Magee was present. The parties apparently worked different shifts, and through this arrangement could share care and custody of their thirteen-year-old son during the pendency of their divorce. According to Potter, this made a temporary hearing unnecessary.
However, the agreement broke down when Magee’s husband changed the locks on the doors several days later. At that time, Potter referred Magee to a locksmith, prepared a motion for contempt, and renewed his efforts to secure a temporary hearing. As the weeks passed, Magee became dissatisfied with the agreement that Potter had made, and on July 5, 1995, she fired Potter. Magee then hired attorney Paul Dickerson, who, for a fixed fee of $1,500, completed her divorce.
Magee later hired Attorney Fredye Mac Long to attempt to recover a portion of the $3,500 that she had paid to Potter. In a letter dated October 10, 1995, Long demanded a refund of $3,100, which Potter resisted. Magee filed suit against Potter on November 27, 1995, alleging breach of contract and breach of fiduciary duty, and seeking in addition to contract damages, unspecified punitive damages, attorney’s fees, costs, and interest. Potter counterclaimed for breach of contract, libel, slander, and intentional infliction of emotional distress, and in the same pleading, moved for Rule 11 sanctions. Potter alleged that the motivation for Magee’s suit was Long’s personal animosity toward him because Potter was representing Long’s estranged husband in a bitter divorce action.
Magee later amended her complaint to allege negligence and gross negligence. Potter then twice amended his counterclaim, after the court’s deadline for amending pleadings, to add a third-party complaint against Magee’s counsel, praying that she and Magee be held jointly and severally liable for intentional infliction of emotional distress, libel, and slander. The third-party complaint contained numerous allegations of wrongdoing by Magee’s counsel.
The trial court ultimately granted Magee’s motions to strike both of Potter’s amended pleadings as untimely filed and for failure to state a cause of action upon which relief could be granted. The court ordered the pleadings sealed.
Prior to the trial, the court awarded Potter partial judgment on the pleadings and dismissed Magee’s claim for punitive damages. During the trial, the judge granted Potter’s motion for directed verdict on the claims of negligence and gross negligence, leaving only Magee’s breach-of-contract and breach-of-fiduciary-duty counts to be submitted to the jury. The jury found in Potter’s favor in the breach-of-fiduciary-duty claim, but awarded Magee $2,000 for breach of contract.
A. Direct Appeal
Potter argues that the trial court erred in excluding as cumulative his testimony during his case-in-chief regarding the exact nature of the services that he provided to Magee. Citing Crockett & Brown, P.A. v. Courson, 312 Ark. 363, 849 S.W.2d 938 (1993), which he claims stands for the proposition that an attorney discharged with or without cause may recover the reasonable value of his services to the date of discharge, he contends that it was vital for him to prove that he had earned the fee that he charged. Although Potter was called to testify in Magee’s case-in-chief, he asserts that he was only allowed to properly account for 2.5 of the 21.85 hours that he expended in representing her.
During Potter’s case-in-chief, in a proceeding conducted out of the presence of the jury, the trial court prohibited Potter from testifying about the terms of Magee’s divorce settlement because it was not relevant to the action involving his representation of Magee. The court further complained that Potter was going over matters that had already been covered and stated, “I’m going to stop you if I think you are doubling up and just doing a repeat and you’re boring the jury. I won’t tell you again next time.” The following colloquy regarding Potter’s itemized billing statement ensued:
The Court: All right. Let’s get in. If you’ve got something new, this is your time to bring it up, and I don’t have any problem with that. I understand you need to do that.
Mr. Potter: Can I go into that —
The Court: Let’s get back —
Mr. Potter: —• A reasonable fee for what he’s being — what he deserves —
The Court: You have already covered that numerous times already, back and forth. And that’s why I kept, before and Ms. Long asking about first one thing and another. He kept on evading the question at the time. You went through that document there. You went through every bit before.
Ms. Long: I’m going to object if you didn’t designate it as an exhibit.
The Court: Well, if that’s the same document we were looking at earlier, I think —
Mr. Potter: He testified on direct examination.
The Court: — He went through directly with every bit of that. She asked him about how he arrived and all this and that. And was subject to cross examination, every bit of it was. I think you’re wasting everybody’s time right now. With that admonition, though, I’m going to call them back in.
When the jury returned, Potter was only asked two questions about the services he rendered:
Q. David, I want you to look at this answer to your interrogatories. We provided an accounting of the time you had this case, and you charged at the rate of a hundred and fifty dollars ($150.00) an hour.
A. That’s correct. And we didn’t talk about everything else in here that goes into the total hours, describing the services I rendered, the actions I took, the time it took, and so forth. It’s the day it occurred, what I did, and just tracks the services rendered.
Q. Based upon those services that you provided, what was the total amount that you collected at the Plaintiffs request?
A. Three thousand four hundred twenty-seven dollars and fifty cents ($3,427.50).
The Rules of Evidence favor admission of evidence; relevant evidence may only be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Ark. R. Evid. 403; see, e.g., Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979). Taken as a whole, Potter’s testimony during Magee’s case-in-chief, Magee’s own testimony, as well as the testimony of Damon Young and Paul Dickerson, was only sketchy at best as to the services he rendered. Potter’s testimony, however, would have pulled this information together in a coherent form which, even if cumulative, was not needlessly so because it was the essence of his case. Childs v. Motor Wheel Corp. 164 Ark. 149, 261 S.W. 28 (1924).
Additionally, not all of the proffered testimony duplicated testimony already presented. Potter’s statement details seven office conferences and seven phone calls with Magee. Potter’s testimony during Magee’s case only substantively deals with one phone call and three office visits. Moreover, Potter’s statement tends to refute Magee’s testimony that Potter did not often return her phone calls.
Exclusion of evidence is prejudicial where a substantial right of a party is affected. Stacy v. Lin, 34 Ark. App. 97, 806 S.W.2d 15 (1991). Screening of relevant evidence is within the sound discretion of the trial court and will only be reversed on appeal where there is a manifest abuse of discretion. Sony v. Balch Motor Co., 52 Ark. App. 233, 917 S.W.2d 173 (1996). However, here the trial court prevented Potter from effectively presenting his case. Accordingly, we reverse the award of damages to Magee.
B. Cross-appeal
On cross-appeal, Magee first argues that the court erred in granting judgment on the pleadings on the issue of punitive damages. Magee contends that the trial court improperly required that her allegations of fact satisfy the legal standard set forth in South County Inc. v. First Western Loan Co., 315 Ark.722, 871 S.W.2d 325 (1994), that the tortfeasor acted with malice, intent to cause injury, or with conscious indifference such that malice may be inferred, when older cases such as Wallace v. Dustin, 284 Ark. 318, 681 S.W.2d 375 (1984), required only that she prove that Potter acted wantonly or with a conscious disregard for her rights. She contends that her factual allegations meet this standard.
In response, Potter contends that this issue is moot given the jury’s determination that there was no breach of fiduciary duty. Under Arkansas law, a case becomes moot when any judgment rendered would have no practical legal effect on an existing legal controversy. Dillon v. Twin City Bank, 325 Ark. 309, 924 S.W.2d 802 (1996). Because we affirm the trial court’s evi- dentiary ruling in Magee’s second point pertaining to her breach-of-fiduciary-duty claim, this issue is moot.
Magee’s second argument is that the trial court erred in excluding proffered evidence concerning Potter’s prior conduct that related to her cause of action for breach of fiduciary duty. In the course of her direct examination of Potter, Magee asked him about his dealings with an elderly Little Rock woman, with whom he had been involved along with two others in purchasing an apartment complex in Little Rock. Potter claimed that the partnership was short-lived and he ultimately bought out his partners’ interests. Further, he denied that a local attorney had made a demand upon him alleging overreaching with respect to his dealings with the woman’s money.
Potter moved in limine to have examination on this subject excluded, but the trial court only disallowed the testimony on the subject from witnesses other than Potter. The trial judge stated: “What I don’t want to do is try this case on some side issue or something that doesn’t have any bearing. I understand the rules about credibility and so forth and you’re entitled to test the credibility of anyone. I don’t want to get too far and get you all trying to bring in and try another lawsuit.” The trial court ruled that he would not allow inquiry that would confuse the issue, but would allow Potter’s credibility to be challenged if he made it an issue.
Relying on Ark. R. Evid. 403 and 404(b) and Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985), for the proposition that similar conduct in the past is admissible to prove intent or motive in the current course of conduct, Magee argues that the trial court should have allowed her to call a rebuttal witness, John Pickett, to testify that Potter had previously wrongfully refused to return money to a person with whom he had a fiduciary relationship. Alternatively, relying on dicta in Kellogg v. State, 37 Ark. App. 162, 827 S.W.2d 166 (1992), Magee argues that the witness should have been allowed to testify for purposes of impeachment by contradiction.
Rule 403 states: “relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Here, there was a very real danger that the proffered testimony would prejudice the jury with an assertion that Potter had tried to cheat an elderly lady and almost certainly confuse the issue under litigation. Screening of relevant evidence is within the sound discretion of the trial court and will only be reversed on appeal where there is a manifest abuse of discretion. Sony v. Batch Motor Co., supra. We cannot say that the trial court committed a manifest abuse of discretion in excluding the evidence.
Magee’s reliance on Rule 404(b) and Shelton v. State, supra, is similarly misplaced. Rule 404(b) allows an exception to the general rule that evidence of past wrongs is not admissible to prove character or show conformity therewith if the evidence is offered to prove motive or intent in the current course of conduct. In Shelton, testimony about a burglary committed just prior to an ambush of a police officer was deemed admissible. However, there was a close temporal nexus linking the two events, and the previous act explained the reason for the subsequent act. In the instant case, no such temporal nexus is apparent, and the two events are clearly unrelated.
Magee also contends that the witness should have been allowed to testify for purposes of impeachment by contradiction. In McFadden v. State, 290 Ark. 177, 717 S.W.2d 812 (1986), the supreme court stated that Ark. R. Evid. 608(b) is restrictively interpreted and does not prohibit the introduction of extrinsic evidence of misconduct of a witness where the witness has testified on direct examination that he or she has not engaged in certain misconduct extrinsic to the offense charged. However, Potter’s credibility was not the issue as Magee’s counsel made plain in her argument to the court:
I would like to renew my request to ask for punitive damages based on a course of conduct. I want to call John Pickett with respect to Mr. Potter’s dealings with Ms. Weatherford. I am proffering his testimony to be that there was actually a lawsuit prepared to be filed against Mr. Potter based upon overreaching in fine with the breach of fiduciary duty allegations —■ all of which is contrary to Mr. Potter’s testimony.
Magee made it clear to the trial court that her reason for calling Pickett was to establish a course of conduct to justify punitive damages based on more than one instance of Potter committing a breach of fiduciary duty. Accordingly, the trial court correctly excluded this testimony as being more prejudicial than probative and as potentially misleading to the jury.
Moreover, for extrinsic evidence of misconduct of a witness to be admissible, the alleged misconduct must be extrinsic to the offense with which the accused is charged. McFadden v. State, supra. In Magee’s argument to the trial court, she urged that Pickett be called to testify so as to establish a course of conduct in order to justify her claim for punitive damages. The alleged prior bad act was therefore intended to prove what she believed to be an integral part of her case, despite the fact that summary judgment had been granted on the issue of punitive damages. For this reason as well, the trial court did not err in excluding Pickett’s charges.
Magee finally argues the trial court erred in not referring Potter to the State Bar of Arkansas and in not ordering a larger monetary award as sanctions. Magee argues that because Potter’s third-party complaint against her counsel was not well-grounded in law, Rule 11 sanctions were appropriate, and Potter and his attorney should be referred to the Committee on Professional Conduct. Magee argues that this court should fine Potter for embarrassing her attorney, in an amount sufficient to deter future conduct of this type. She also prays that this court refer Potter to the Committee on Professional Conduct.
Magee further contends that the $1,000 awarded pursuant to her Rule 11 motion was insufficient because $2,950 would have covered her actual billing. Additionally, she argues that $492 billed relative to her motion to compel discovery, and $300 incurred in a hearing to unseal the third-party complaint for this appeal should be added to the judgment.
Regarding Magee’s first contention that this court should refer Potter and his attorney to the Committee on Professional Conduct, there is no requirement in the Procedures of the Court Regulating Professional Conduct of Attorneys at Law that a com plaint be filed by a court. See § 5A. Moreover, while Potter’s amended pleadings made some rather nasty allegations, this court has no basis for determining whether they are true or false. The only thing that is certain is that the pleadings were untimely filed, and even then it was within the trial court’s discretion to allow them to be filed if it found that it would serve the interest of justice to do so. Harris Const. Co. v. Powers, 262 Ark. 96, 554 S.W.2d 332 (1977).
As to Magee’s contention that the $1,000 in fees awarded pursuant to her Rule 11 motion was insufficient, neither she nor Potter have abstracted the judgment awarding the fees, and we are thus precluded from considering this issue. McPeek v. White River Lodge Enters., 325 Ark. 68, 924 S.W.2d 456 (1996)
Affirmed on cross-appeal; reversed and remanded on direct appeal.
Rogers, Griffen, and Neal, JJ., agree.
Pittman and Arey, JJ., dissent. | [
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