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Judith Rogers, Judge.
Richard Springston brings this appeal from his first-offense conviction of driving while intoxicated for which he was sentenced to fourteen days in jail, fined $500, and his driver’s license was suspended for thirty days. For reversal, he contends that there is no substantial evidence to support the jury’s verdict of guilt and that the trial court erred in allowing the admission of a videotape into evidence. We find no merit in the issues raised and affirm.
First, appellant challenges the sufficiency of the evidence. Arkansas Code Annotated § 5-65-103(a) (Repl. 1993) provides that it is unlawful for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.
In reviewing the sufficiency of the evidence on appeal, we view the evidence in the light most favorable to the State and affirm if the verdict is supported by substantial evidence. Brown v. State, 54 Ark. App. 44, 924 S.W.2d 251 (1996). Substantial evidence is evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resort to speculation or conjecture. Christian v. State, 54 Ark. App. 191, 925 S.W.2d 428 (1996). We need consider only that testimony that supports the verdict of guilt. Ricks v. State, 316 Ark. 604, 873 S.W.2d 808 (1994).
Greene County Deputy John Purcell testified that he was employed by the Arkansas State Police on May 21, 1995, and that at around 3:10 p.m. he was called upon to investigate an accident at the intersection of Highways 351 and 358. About three-quarters of a mile away from the intersection, he observed a man, the appellant, attempting to walk on the shoulder of the road. Deputy Purcell testified that appellant “wasn’t doing too good,” and that he was staggering, stumbhng and “lurching around,” meaning that he was walking sideways as if he might fall onto the roadway. Purcell stopped to determine what the problem might be, and as he came close to the appellant, he smelled the strong odor of an alcoholic beverage about the appellant’s person. At around 3:20 p.m., he placed appellant under arrest for public intoxication, handcuffed him, read him his rights, and placed him in the patrol car. Purcell then proceeded to the intersection where he found a pick-up truck riosed off into a ditch. He said that it crossed his mind that appellant might have been the driver of the truck, so he ran a check on the vehicle’s license plate and learned that the truck belonged to the appellant. Keys found in appellant’s pocket fit the ignition of the truck.
Later, Purcell took appellant to the Paragould Police Department for a breathalyzer test. Purcell testified that appellant was obnoxious, a bit threatening, and uncooperative. He said that appellant was firm in his conviction that he would take a test for public intoxication, but not for DWI.
On cross-examination, Purcell further testified that appellant had told him that a man named Phil Vincent had been driving the truck at the time of the accident, and that Vincent had climbed a fence and had walked in the other direction across a field. Purcell said that he made his way up and down the road looking for this person. He checked with passers-by to see if they had met anyone on foot and spoke with a farmer who had not seen anyone in his field. He said that his investigation produced no evidence, other than appellant’s word, that Phil Vincent had been with appellant in the truck.
Dewayne Johnson of the Paragould Police Department testified that appellant was brought to him for a breathalyzer test. He said that appellant was uncooperative and refused to acknowledge that he understood his rights under the implied consent law. Johnson testified that appellant kept stressing the point that he was not driving a vehicle and thus would not state that he understood the obligation to take the test. He said that appellant told him that he would take a test if charged with public intoxication, but not if the charge was DWI. A videotape of these discussions was introduced and played for the jury over the appellant’s objection.
The State also presented the testimony of Kenneth Wilburn, appellant’s neighbor. He testified that he saw appellant and another man get into separate vehicles that afternoon at around 2:00 p.m. He said that they left in a hurry, that the wheels of both vehicles were spinning, and that they drove erratically up a hill. Wilburn testified that this was not too unusual because there was loose gravel on the hill but that he had, nevertheless, been concerned. He later noticed that several young trees to the side of the road had been run over.
Appellant’s argument is that the State failed to prove that he either operated or was in actual physical control of a vehicle. He relies chiefly on our decision in Cook v. State, 37 Ark. App. 27, 823 S.W.2d 916 (1992). There, the appellant was one of a group of individuals associated with a vehicle that had struck a tree. The officer had not seen the appellant driving the vehicle, and we concluded that the evidence was not sufficient to sustain a finding that appellant operated or was in physical control of the vehicle. The State maintains that the facts of this case compare more favorably with those found in our decision in Neble v. State, 26 Ark. App. 163, 762 S.W.2d 393 (1988). In that case, witnesses heard an accident near their home, and they went to the scene where they discovered a vehicle that had come to rest in a ditch after tearing down some fifty to sixty feet of a fence. The vehicle was unoccupied, and the witnesses contacted a deputy who lived nearby when they were unable to locate the driver. The deputy and other law enforcement officers arrived and began looking for the driver. During the search, the officers learned that the vehicle was registered in the appellant’s name, and they received a report that a man, later identified as the appellant, had come to the deputy’s home and had told the deputy’s wife that his car had broken down. The appellant had left by the time the deputy arrived at his home, but he was eventually found lying face down in a ditch three hundred feet from the wrecked vehicle. When questioned, the appellant told an officer that he had not been driving the vehicle but that the driver was a man named “Bill,” whom he had met at a tavern. On this evidence, we held that the jury, without speculating, could have concluded that the appellant was driving the vehicle when the accident occurred.
Turning to the case at hand, we first observe that the statute does not require law enforcement officers to actually witness an intoxicated person driving or exercising control of a vehicle. Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994); Hodge v. State, 27 Ark. App. 93, 766 S.W.2d 619 (1989). It is well-settled that the State may prove by circumstantial evidence that a person operated or was in actual physical control of a vehicle. Wetherington v. State, supra; Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985). Circumstantial evidence may constitute sub stantial evidence when every other reasonable hypothesis consistent with innocence is excluded. Yocum v. State, 325 Ark. 180, 925 S.W.2d 385 (1996). The question of whether the circumstantial evidence excludes any other hypothesis consistent with innocence is for the jury to decide. Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996). Our responsibility, as the reviewing court, is to determine whether the jury verdict is supported by substantial evidence. Wetherington v. State, supra.
We hold that the verdict is so supported. Appellant was discovered walking away from a one-vehicle accident involving his own truck for which he possessed the keys in his pocket. There was testimony that appellant had been driving his truck not long before his encounter with the police. And, the jury was entitled to disregard appellant’s story that someone else had been driving the truck, particularly in light of Deputy Purcell’s testimony concerning his efforts to locate that person, who was nowhere to be found. A jury is not required to believe the accused’s version of events because he is the person most interested in the outcome of the trial. Reams v. State, 45 Ark. App. 7, 870 S.W.2d 404 (1994). See also Altes v. State, 286 Ark. 94, 689 S.W.2d 541 (1985); Neble v. State, supra. In addition, a jury may consider and give weight to any false and improbable statements made by an accused in explaining suspicious circumstances. Reams v. State, supra. We think there is sufficient evidence from which the jury could properly infer that appellant was operating the vehicle at the time the accident occurred.
In his next point, appellant contends that the trial court abused its discretion in allowing the jury to view the videotape filmed at the Paragould Police Department. He argues, in reference to Rule 403 of the Arkansas Rules of Evidence, that the probative value of the tape was substantially outweighed by the danger of unfair prejudice. He contends that the tape was overly prejudicial in that he was shown in handcuffs and because it depicted him as being angry and argumentative, using profanity, and refusing the breathalyzer test. We cannot agree.
It has repeatedly been held that the balancing of probative value against prejudice is a matter left to the sound dis cretion of the trial court, and this decision will not be reversed absent a showing of manifest abuse. Hill v. State, 325 Ark. 419, 931 S.W.2d 64 (1996). The prejudice referred to in Rule 403 denotes the effect of the evidence on the jury, not the party opposed to it. Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995). Since intoxication is an essential element of the crime in this case, evidence that shows the demeanor of the accused at or near the time of the offense is highly relevant to that issue. The fact that the evidence may have also portrayed the appellant in an unfavorable hght does not constitute the kind of unfair prejudice that would require its exclusion at trial. We also have some difficulty in accepting appellant’s claim of prejudice when we consider that appellant contended that the tape was favorable to his defense in his arguments before the court in his motion for a directed verdict and before the jury in his closing statement. We find no abuse of discretion.
Affirmed.
Robbins, C.J., and Crabtree, J., agree. | [
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John Mauzy Pittman, Judge.
The appellant filed a complaint against appellee seeking a decree of divorce. After a hearing, an order was entered granting appellant a divorce, providing for child custody and support, and dividing the bulk of the marital property. However, the chancellor held in abeyance any determination on alimony or division of appellant’s military retirement. The chancellor found that appellant participated in two such retirement plans, one of which was vested and one of which was not, but that appellant could not draw benefits from both. Consequently, when the second retirement vests on June 4, 1998, appellant will need to make an election between the two plans. The chancellor reserved jurisdiction of the division of the military retirement until appellant made an election between the two plans. From that decision, comes this appeal.
For reversal, appellant contends that the chancellor erred in holding in abeyance his decision regarding the division of the military retirement until appellant elects between the two retirement plans for which he will be qualified on June 4, 1998. Appellee has filed a motion to dismiss this appeal, asserting that the chancellor’s order is not final for purposes of appellate review. We grant appellee’s motion and dismiss for lack of an appealable order.
With some exceptions not applicable here, an appeal may be taken only from a final judgment or decree entered by the trial court. Ark. R. App. P. — Civ. (2)(a)(1). An order is not final and appealable merely because it settles the issue as a matter of law; to be final, the order must also put the court’s directive into execution, ending the litigation or a separable branch of it. Scaff v. Scoff, 5 Ark. App. 300, 635 S.W.2d 292 (1982). Our supreme court has said that the amount of a final judgment must be computed, as near as may be, in dollars and cents, so as to be enforced by execution or in some other appropriate manner. Estate of Hastings v. Planters and Stockmen Bank, 296 Ark. 409, 757 S.W.2d 546 (1988). Furthermore, the fact that a significant issue is involved is not sufficient, in itself, for the appellate court to accept jurisdiction of an interlocutory appeal. Scheland v. Chilldres, 313 Ark. 165, 852 S.W.2d 791 (1993).
Finally, we note that the chancellor made no determination in the case at bar that there was no just reason for delay so as to permit an interlocutory appeal under Ark. R. Civ. P. 54(b). Rule 54(b) provides that:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
This rule is applicable to property-division issues in divorce cases. Cook v. Lobianco, 8 Ark. App. 60, 648 S.W.2d 808 (1983). Under these circumstances, the chancellor’s order was not appealable, and we dismiss.
Appeal dismissed.
Arey and Neal, JJ., agree.
Jennings, J., concurs.
Stroud and Griffen, JJ., dissent.
We note the dissent’s argument that this case should be certified because it presents significant issues of first impression. We agree that the issues are novel and significant, and it is quite possible that the case would be certified should it return to us after a final order is entered. But in the absence of a final, appealable order, neither court has jurisdiction and there is nothing for us to certify at this time. | [
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Sam Bird, Judge.
This is an appeal from an order of the Sebastian County Circuit Court, which granted the appellee’s motion to dismiss appellant’s complaint for lack of subject-matter jurisdiction pursuant to Ark. R. Civ. P. 12(b)(1). The court held that jurisdiction for appellant’s claims lies in the Workers’ Compensation Commission. We agree and affirm.
Appellee VNE, Inc. (hereinafter VNE), obtained a policy of workers’ compensation insurance from appellant, Zenith Insurance Company, covering the period of October 1, 1994, through October 1, 1995. Appellant contends that in its application for that insurance, VNE misrepresented to appellant that it did not own, lease, or use an airplane. On October 24, 1994, Jerry D. Gardner (hereinafter Gardner), who, with his wife, owned both VNE and Sierra Hotel Corporation (hereinafter Sierra), was piloting an airplane owned by Sierra and occupied by Michael Coats, an employee of VNE, when the airplane crashed. As a result of the crash, Coats sustained injuries. The appellant investigated the airplane accident and paid Coats temporary total disability benefits and medical expenses.
Appellant later filed a complaint against VNE, Gardner, and Sierra seeking to recover the amount of workers’ compensation benefits it had paid to Coats. In its complaint and amended complaints, appellant asserted four reasons it should be entitled to recover. First, it alleged that Gardner had misrepresented that VNE did not own, lease, or use an airplane, that appellant had relied upon those misrepresentations when it issued its workers’ compensation policy, and that it would not have issued the policy had Gardner not made such misrepresentations. Second, appellant alleged that Gardner had been negligent in operating the airplane in which Coats was injured and that Gardner’s negligence was the proximate cause of Coats’s injuries. Third, appellant alleged that it had paid Coats’s workers’ compensation claims in rebanee upon representations by Coats that he was on an employment-related trip for VNE at the time of the airplane crash, but that during his deposition Coats admitted that he and Gardner were on a recreational trip at the time of the crash and that he had eariier bed about the purpose of the trip at Gardner’s insistence. And finahy, appebant abeged that Coats should not have been entitled to workers’ compensation benefits because VNE continued to pay his salary during the time he was receiving temporary total disabbity payments from appebant.
In response to appebant’s complaint, appebee filed a motion contending that appebant’s cause of action for misrepresentation about VNE’s ownership, léase, or use of an airplane should be dismissed under Ark. R. Civ. P. 12(b)(6) for fabure to state a claim upon which rebef could be granted, and that the other three claims should be dismissed under Ark. R. Civ. P. 12(b)(1) because, pursuant to Ark. Code Ann. § ll-9-105(a) (Repl. 1996), these claims were within the exclusive jurisdiction of the Workers’ Compensation Commission. The court granted appebees’ motion.
Appebant does not appeal the court’s dismissal of the claim of misrepresentation about the ownership, lease, or use of an airplane. Appebant appeals only that part of the trial court’s order that dismissed its second, third, and fourth claims. We affirm the circuit court’s order because jurisdiction of appebant’s second, third, and fourth claims properly lies in the Workers’ Compensation Commission.
Negligence Claim Against Gardner and Sierra
In accordance with Ark. Code Ann. § 11-9-105(a), the rights and remedies granted to employees under the Arkansas Workers’ Compensation Law (Ark. Code Ann. § 11-9-101 through Ark. Code Ann. § 11-9-1001 (Repl. 1996)) are within the exclusive jurisdiction of the Arkansas Workers’ Compensation Commission. Simply stated, an employer that has secured to its employees the benefits of workers’ compensation cannot be sued in tort by its employees for injury or death arising out of their employment. Only when the employer fails to secure the payment of compensation for the benefit of an employee who is injured or killed in the course of his employment can the employee or his legal representative elect to maintain a legal action in court for damages. Ark. Code Ann. § 11 — 9—105(b) (1).
However, an injured employee or the legal representative of a deceased employee may, in addition to pursuing a claim for workers’ compensation benefits, maintain an action in court against any “third party” who may be responsible for such injury or death. Ark. Code Ann. § ll-9-410(a) (Repl. 1996); Wilson v. Rebsamen Ins., 330 Ark. 687, 957 S.W.2d 678 (1997). Arkansas Code Annotated section ll-9-410(a) states that the employer or its workers’ compensation insurance carrier has the right to receive notice of the employee’s third-party action and to join in that action if it wishes. Under Ark. Code Ann. § ll-9-410(b), the employer or its carrier that is liable for the payment of workers’ compensation benefits may be subrogated to the employee’s claim and assert an action against a third party, but it must notify the employee in writing that he has the right to pursue any benefits to which he may be entitled in addition to the subrogation interest.
In the case at bar, appellant contends that Gardner and Sierra are third parties within the meaning of Ark. Code Ann. § ll-9-410(b) and claims that Coats’s injuries resulted from Gardner’s negligence in the operation of Sierra’s airplane. We do not agree that Gardner is a third party within the meaning of Ark. Code Ann. § 11-9-401 (b). The Arkansas Supreme Court has defined a third party under section 11-9-410 as “some person or entity other than the first and second parties involved, and the first and second parties can only mean the injured employee and the employer or one liable under the compensation act.” Wilson v. Rebsamen Ins., supra (citing Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969)). Thus, under section 410, neither a workers’ compensation carrier nor an employer can be a third party. Wilson v. Rebsamen Ins., supra.
In this case, the first party is the injured employee, Coats; and the second party is the employer, VNE, or its workers’ compensation insurance carrier, which is the appellant. Since appellant’s claim against third parties exists only by virtue of Ark. Code Ann. § ll-9-410(b), as a subrogee of Coats, appellant stands in the same position as Coats, who is prohibited by Ark. Code Ann. § ll-9-105(a) from suing VNE. Also, Gardner cannot be a third party in this case because he is the sole owner and an officer (and therefore a “persona”) of VNE, Coats’s employer, that is protected by the exclusive remedy provisions of Ark. Code Arm. § 11-9-105(a). Since no third party exists in the case at bar, section ll-9-410(b) is simply not applicable.
Appellant argues that Sierra qualifies as a third party within the meaning of Ark. Code Ann. § ll-9-410(b), but its complaint alleges no acts of negligence on Sierra’s part that would subject it to liability as a result of the plane crash. The complaint filed by appellant states:
That in the alternative, the plaintiff is entitled to reimbursement for sums paid to and to be paid to Coats based on the Workers’ Compensation claim from defendants Gardner and Sierra, jointly and severally. That on the 23rd day of October, 1994, Gardner, acting as an owner, agent and employee of Sierra, failed to exercise reasonable case (sic) in the operation of the 703SR. SeaRey amphibian airplane, owned by Sierra, in that when piloting the plane on said date, Gardner attempted to land on the Arkansas River on pontoons but negligently failed to cause the wheels to be raised, thereby causing the airplane to crash nose-first into the river where it first touched down, all of which was the proximate cause of Coats’ injuries.
Even if this court could construe the above-quoted portion of appellant’s complaint to mean that Gardner’s negligence should be imputed to Sierra, jurisdiction still remains in the Workers’ Compensation Commission pursuant to Ark. Code Ann. § 11-9-105(a), which clearly states,
No role, capacity, or persona of any employer, principal, officer, director, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this chapter, and the remedies and rights provided by this chapter shall in fact be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have.
Appellant argues that Gardner and Sierra are two distinct legal entities. However, Sierra is a persona of Gardner in that, as the complaint states, Gardner was acting as owner, agent, and employee of Sierra at the time of the airplane crash that resulted in Coats’s injuries. Therefore, section ll-9-105(a) places jurisdiction before the Workers’ Compensation Commission.
Appellant also argues that the exclusive remedy provision of Ark. Code Ann. § ll-9-105(a) applies only to the claims of employees against their employers and not to claims of insurance carriers against employers. However, this argument overlooks the fact that a workers’ compensation insurance carrier’s right to pursue a tort claim against third parties arises solely by virtue of Ark. Code Ann. § 11 -9-410(b), which grants to the carrier a right of subrogation only. As a subrogee, appellant’s claim stands on the same footing as the claim of Coats, to whose claim appellant is subrogated. Since Coats is precluded by Ark. Code Ann. § 11-9-105 (a) from pursuing a claim against his employer, so is appellant.
Course and Scope of Employment
The trial court also found that it did not have jurisdiction because the appellant alleged in its complaint that appellee was not working in the course and scope of his employment in that the airplane trip was not related to Coats’s employment with VNE. Appellant argues that it originally paid Coats’s claims because it relied upon representations by Coats that he was on an employment-related trip at the time of the accident. However, during a deposition, Coats admitted that he and Gardner were on a recreational trip. The appellant originally paid compensation benefits to Coats and is now seeking to recover the amount it paid from Coats’s employer by claiming that Coats was not working in the course and scope of his employment when his injury occurred. Arkansas Code Annotated section ll-9-102(5)(A) (Repl. 1996) defines a compensable injury as “[a]n accidental injury . . . arising out of and in the course of employment. . . .” Thus, whether an injury is compensable for purposes of workers’ compensation depends, in part, on whether the injury occurred within the course and scope of the injured employee’s employment. This is necessarily an issue to be determined by the Commission in deciding whether to award benefits. Therefore, appellant’s contention in this action that Coats was not acting within the course and scope of his employment when his injury occurred is one that should be made before the Workers’ Compensation Commission because of the exclusive remedy provisions of Ark. Code Ann. § ll-9-105(a).
Salary Payment in Addition to Workers’ Compensation Benefits
In its second amended complaint, appellant asserts that it learned that while it was paying benefits to Coats, Coats was in turn receiving a salary from VNE. The appellant contends that since Coats was being paid a full salary by VNE while he was disabled, appellant should not have been required to pay temporary total disability to Coats at the same time. Appellant seeks to recover from VNE the amounts of disability compensation it alleges that it erroneously paid to Coats. While under Ark. Code Ann. § ll-9-807(b) (Repl. 1996) Coats may not be entitled to receive disability compensation while also receiving a full salary from his employer, this is a defense that should be asserted before the Workers’ Compensation Commission.
Affirmed.
Meads and Roaf, JJ., agree.
Gardner was the sole owner of all the outstanding stock in Sierra Hotel Corporation, and Gardner and his wife, Vonda J. Gardner, owned all of the outstanding stock in VNE.
An exception to this rule exists when the injury or death of the employee results from an employer’s intentional act to bring about the injury or death of the employee, Sontag v. Orbit Valve Co., 283 Ark. 191, 672 S.W.2d 50 (1984); but this exception has no application to the case at bar. | [
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John Mauzy Pittman, Judge.
Mr. James Marschewski, Public Defender for the Twelfth Judicial District and attorney for the appellant, has filed this motion seeking leave to withdraw as counsel. He seeks to have the recendy created Capital, Conflicts, and Appellate Office of the Arkansas Public Defender Commission appointed as counsel for appellant. As grounds for his motion, Mr. Marschewski cites his office’s heavy caseload and limited resources.
Mr. Marschewski failed to serve a copy of his motion on the Capital, Conflicts, and Appellate Office. Therefore, we ordered our Clerk to serve that office. The Executive Director of the Public Defender Commission has now responded. She denies that Mr. Marschewski’s motion should be granted, asserting that the Capital, Conflicts, and Appellate Office is afflicted with its own substantial caseload and limited resources.
Our supreme court was recendy faced with an identical motion from Mr. Marschewski’s office in the case of Efurd v. State, CR97-1208. That motion was denied without comment on January 29, 1998. Inasmuch as the two motions are indistinguishable from one another, and in light of the circumstances faced by the Capital, Conflicts, and Appellate Office, we are not persuaded that the motion before us should be granted.
Motion denied.
Robbins, C.J., and Jennings, Bird, and Stroud, JJ., agree.
Rogers, Crabtree, and Roaf, JJ., concur and would deny the motion without comment.
Arey, Neal, Griffen, and Meads, JJ., dissent. | [
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Andree Layton Roaf, Judge.
The State of California, which was assigned child support as a condition for providing AFDC and Medicaid benefits, appeals a Pulaski County Chancery-Court order finding that appellee James F. West had fully satisfied his past-due child-support obligation, enjoining future collection attempts, and ordering that monies collected through the interception of West’s income tax refund and through a wage assignment be refunded. On appeal, California argues that the chancellor erred in finding that West did not owe any child-support arrearages and enjoining its cohection attempts. We affirm.
On September 7, 1979, an order was entered in Stanislaus County, California, granting custody of West’s daughter to the birth mother. The order also granted to West “reasonable visitation” and required that, commencing September 15, 1979, he pay child support in the amount of $75 per month for his four-year-old daughter Melissa, born August 12, 1975. In addition, the order specified that the support payments be made to the office of the Stanislaus County District Attorney so long as Melissa’s mother remained on AFDC. On November 7, 1979, the order was modified to deny West visitation rights. The amount of support, however, was not changed.
West was not diligent in making his support payments. Pursuant to a UIFSA petition filed in California on April 16, 1991, a motion for judgment on arrears was filed in Pulaski County Chancery Court, alleging that an arrearage of $4,310.18 had accrued from September 15, 1979, through April 30, 1990, and praying for judgment in that amount. At that time, California did not seek interest on the arrearage. On the same day, a consent judgment was filed in which West agreed to the amount of the arrearage and a payment of $50 per month.
On August 17, 1992, a second UIFSA petition was filed in California alleging an arrearage of $3,485.18 as of July 31, 1992, and asking that Pulaski County Chancery Court reduce it to judgment. The petition reflected that the total was calculated by subtracting the $825 West had paid from the previous consent judgment of $4,310.18. Again, interest was not mentioned in the petition. On November 3, 1993, a second order was entered in Pulaski Chancery granting judgment to the State of California in the amount of $4,094, and stating that West agreed to amortize the arrearage through payments of $100 per month, effective November 1, 1993. The order also stated that no current support was due because Melissa had become emancipated. Melissa’s eighteenth birthday was August 12, 1993. West subsequently paid the judgment and a “Satisfaction of Judgment” was filed for record on January 9, 1996.
Subsequent to West’s satisfaction of the judgment, California caused to be filed in Stanislaus County Superior Court a wage-assignment order alleging that West owed $7,546.23 as of January 31, 1996. The order required that West’s employer pay over to Stanislaus County $125 per month. California also intercepted West’s $220 income tax refund.
On August 2, 1996, West filed in Pulaski County Chancery Court a motion for declaratory and injunctive relief, alleging that he had completely satisfied the judgment against him and praying that the court find that he owed no additional child support, enjoin California and his ex-wife from collecting any further monies, and order California to disgorge his tax refund and the money it had collected pursuant to the wage assignment.
California opposed West’s motion in a responsive pleading and enlisted the Arkansas Office of Child Support Enforcement (OCSE) to represent it at a January 14, 1997, hearing. After filing responsive pleadings, however, according to OCSE’s trial counsel, California was not very forthcoming with regard to specific information upon which OCSE could offer a defense, and OCSE did little on its own to oppose West’s motion. The following exchange between OCSE’s trial counsel, Ann Dodson, and the chancellor at the hearing is illustrative:
The Court: All right, explain to me again.
Ms. Dodson: Well, we believe that California is claiming an interest, which is how they arrived at the Seven Thousand —
The Court: (Interposing) But you don’t know. Is that right?
Ms. Dodson: They have not sent us a transmittal.
The Court: Have you requested one from them?
Ms. Dodson: Yes, they got notice of Mr. Tripcony’s Motion, and Mr. Dirden was in touch with them about giving us a transmittal, and we haven’t heard from them. We believe they’re relying on those cases, Tannebaugh (sic) versus Hall and Troxell, Arkansas Supreme Court cases saying that Arkansas Orders don’t nullify another state’s Order, and, therefore, they have the right to enforce it.
The Court: Yeah, but they’re not here today. What about that?
Ms. Dodson: They don’t have the information to us (sic) and I believe — I’m just here to offer those cases on their behalf. That’s it, Your Honor.
OCSE nonetheless attempted to explain how California arrived at the arrearage it alleged in its 1996 order, without success. The chancellor subsequently entered an order finding that West had satisfied in full his child-support obligations and that no further support was owed. Additionally, the court ordered California to pay over all monies confiscated from West since January 9, 1996, and enjoined West’s employer from paying any further money pursuant to the wage assignment.
On appeal, California argues that the chancery court was clearly erroneous in ruling that West did not owe any child-support arrearages or reimbursement for government assistance, and erred in enjoining appellant from collecting the 1996 arrearage pursuant to a wage-withholding order issued to West’s employer. California acknowledges that a Satisfaction of Judgment was entered in this case, but argues that it pertained only to the 1993 order entered by Pulaski County Chancery Court and that the arrearage not affected by the Satisfaction of Judgment remains valid until it is paid in full. Relying on Jefferson County Child Support Enforcement Unit v. Hollands, 327 Ark. 456, 939 S.W.2d 784 (1997), which it says stands for the proposition that, absent express words of nullification, underlying support orders are unaffected by the orders entered pursuant to URESA or UIFSA relating to the enforcement of the support obligation, California contends that the two Arkansas orders did not impair California’s right to collect interest on the arrearage in accordance with California law. These arguments fail to persuade.
First, California’s reliance on Jefferson County Child Support Enforcement Unit v. Hollands, is clearly misplaced as this authority addresses an issue not now before us. Unlike the court in Hollands, the Pulaski County Chancery Court did not enter a support order or adjust West’s current support obligation; it merely reduced the arrearage to judgment and ordered a monthly payment to amortize the judgment. The fact that an additional arrearage might or might not exist was not argued in Arkansas pursuant to either the 1991 or 1992 UIFSA petitions.
Regarding California’s arguments concerning the imposition of interest on the arrearage, it is not disputed that California could have asked for interest at the time it transmitted its UIFSA petitions to Arkansas; indeed the form that California transmitted to Arkansas had a section for claiming interest payments that had not been filled in. In Wells v. Arkansas Pub. Serv. Comm’n, 272 Ark. 481, 616 S.W.2d 718 (1981), our supreme court defined the doctrine of res judicata as a final adjudication on the merits, without fraud or collusion, by a court of competent jurisdiction on a matter litigated or which might have been litigated. Accordingly, we find the issue of whether interest is owed on the arrearage encompassed by the 1993 order is res judicata.
Finally, as to California’s argument that the chancellor was clearly erroneous in ruling that West owed no additional child support, we note from the transcript of the hearing that OCSE was unable to tell the trial court how California had calculated the arrearage, what portion of the arrearage was interest, and how that interest was calculated. Although we may surmise from the abstracted comments of the chancellor and trial counsel that the record of West’s child-support payments were before the trial court, California has failed to abstract any of those records.
It is axiomatic that the record on appeal is limited to what is abstracted and the burden is clearly placed on the appealing party to provide an abstract sufficient for appellate review. Oliver v. Washington County, 328 Ark. 61, 940 S.W.2d 884 (1997). Arkansas appellate courts will not examine the transcript of a trial to reverse a trial court. Id.
Although this court reviews chancery cases de novo, it will not disturb a chancellor’s findings unless they are clearly against the preponderance of the evidence. Harrington v. Harrington, 55 Ark. App. 22, 928 S.W.2d 806 (1996). Absent clear evidence of how California calculated the alleged arrearage, it is impossible to say that the chancellor’s finding was clearly against the preponderance of the evidence.
Affirmed.
Bird and Meads, JJ., agree. | [
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John F. Stroud, Jr., Judge.
Tyson Foods, Inc., appeals a decision of the Arkansas Workers’ Compensation Commission that found that Teddy Griffin sustained a compensable injury to his hands as a result of his employment. Tyson challenges the sufficiency of the Commission’s findings regarding osteoarthritis and carpal tunnel syndrome. It contends that Mr. Griffin did not 1) present objective medical findings to support the Commission’s finding that his osteoarthritis was aggravated by his employment, and 2) establish that his carpal tunnel syndrome is a compensable claim. We affirm.
In reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Terrell v. Arkansas Trucking Service, Inc., 60 Ark. App. 93, 959 S.W.2d 70 (1998). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We do not reverse a decision of the Commission unless we are convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission. Id.
At the hearing before the administrative law judge, testimony of appellee and two co-workers described appellee’s employment and difficulties with his hands. He worked as a “deboner” for eight months, washed tubs for two years, worked in de-icing for three years, went back to washing tubs, and was later assigned to the main plant in the “Steak and Ale” area. There he removed bags of meat from a conveyor line, cut the meat with scissors and wrapped it — repeating the motion several thousand times a night. His fingers were sore after the first couple of nights; then his condition worsened to include pain and numbness in both hands, and difficulty in holding things. He followed the company nurse’s advice to dip his hands in wax and to wear a splint, but he was sent to the company doctor, M. S. Harford, after nothing helped.
Dr. Harford, a family practitioner, diagnosed appellee with osteoarthritis and released him to return to work. Appellee sought more specialized treatment from Dr. James S. Deneke, a rheumatologist, who diagnosed osteoarthritis, tendinitis, and carpal tunnel syndrome. At the time of the hearing, appellee was working on the chicken fine, where he picked up boxes of chicken and laid them on a conveyer belt, handling up to 3,400 boxes in three hours. The pace on the line required workers “to be pretty quick” with their hands, and appellee had problems keeping up.
The Commission affirmed and adopted the opinion of the administrative law judge, including all findings of fact and conclusions of law. The Commission’s decision included the following:
The claimant has proven by a preponderance of the credible evidence that he has sustained two compensable injuries to his hands, within the meaning of A.C.A. §11-9 — 102(5)(A)(ii)(a) while in the employ of this respondent. These compensable injuries are in the form of bilateral carpal tunnel syndrome and an aggravation of his degenerative arthritis, involving his hands. Specifically, the claimant has proven that these conditions constitute injuries arising out of and in the course of his employment with this respondent, that these conditions have resulted in internal physical harm to the affected portions of his anatomy, that these injuries were caused by rapid repetitive motion required by his employment, that these injuries are established by medical evidence, supported by objective findings, and that these injuries are the major cause of his need for medical treatment on and after December 5, 1995. The claimant has failed to “establish” by medical evidence, supported by objective findings, the presence of the diagnosed condition of tendinitis. Thus, he has failed to prove that this condition constitutes a compensable injury within the meaning of the Act.
The Commission found appellee to be a very credible witness, found that the opinions of Dr. Deneke were entitled to more weight than the opinions of Dr. Harford, and found that the greater weight of the credible medical evidence established that appellant’s difficulties with his hands and wrists were the result of three separate, but perhaps interacting conditions: degenerative arthritis, tendinitis, and carpal tunnel syndrome. It also found that appellant’s employment activities in the form of rapid repetitive movement had aggravated his degenerative osteoarthritis in the area of his hands and wrists, and that his conditions of bilateral carpal tunnel syndrome and aggravation of his pre-existing degenerative arthritis constituted the major cause of his need for ongoing medical treatment.
Osteoarthritis
Tyson contends that appellee failed to present objective medical findings to support the Commission’s finding that his osteoarthritis was aggravated by the employment, arguing that the opinion of Dr. Deneke was not stated with a reasonable degree of medical certainty and is entitled to little weight.
In a letter to appellee’s counsel on March 25, 1996, Dr. Deneke wrote, “It would certainly be my feeling that required use of the hands, i.e. wrapping as well as using scissors, is likely to aggravate osteoarthritis of the hands . . . .” He also stated that, although he did not expect the arthritis to go away, appellee should avoid repetitive use of his hands. Appellant contends that these two statements cannot be reconciled and that Dr. Deneke’s “feeling” does not rise to the requirement of Arkansas Code Annotated § ll-9-102(16)(B) that medical opinions addressing compensability “be stated within a reasonable degree of medical certainty.” We do not agree.
We addressed a similar argument regarding section ll-9-102(16)(B) in Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998), also handed down today. Giving the words their ordinary and usually accepted meaning in common language, we construed the statute just as it reads and stated, “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.” Id. at 196. We 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 “magic words.” Id. at 197, citing Paulsen v. State, 249 Neb. 112, 541 N.W.2d 636 (1996).
In addition to the opinion stated by Dr. Deneke in the letter of March 25, 1996, the Commission had before it Dr. Deneke’s report of appellant’s office visit on March 29, 1996. Reporting appellant’s complaints of numbness and continued “significant pain in his hands with his job,” Dr. Deneke continued:
[A]t least the numbness in his hands is related to the carpal tunnel syndrome. Whether any pain is related remains to be seen. Certainly, the stiffness and discomfort is at least partially related to the osteoarthritis and tendinitis of his hands and it would seem that his job requiring repetitive lifting of boxes, etc. has led to a large portion of this.
Certainly, it is likely that continuing his present job is going to continue the aggravation in his hands and I have explained this to Mr. Griffin. I think primarily we are seeing an overuse type syndrome.
Appellant points to the contrasting opinion of Dr. Harford that appellee’s osteoarthritis was simply a “disease process that occurs in many people as they age.”
The Commission wrote in its decision, “Dr. James S. Deneke clearly states that it is his opinion that the claimant’s employment activities for the respondent, which required strenuous and rapid use of his hands, was ‘likely to aggravate osteoarthritis of the hands ....’” Noting that Dr. Deneke had far more expertise in the area of appellee’s medical difficulties than did Dr. Harford, the Commission found that his opinion was entitled to greater weight and credit. It further found that Dr. Deneke expressed his opinion in accord with accepted medical theories, and with sufficient conviction and absoluteness to be within a reasonable degree of medical certainty; and found it immaterial that he did not use the term “reasonable degree of medical certainty.”
Determinations of the weight and credibility of the evidence are exclusively within the province of the Commission. George W. Jackson Mental Health Ctr. v. Lambie, 49 Ark. App. 139, 898 S.W.2d 479 (1995). Furthermore, it is the function of the Commission to draw inferences when testimony is open to more than one interpretation, and when it does, its findings have the force and effect of a jury verdict. Pilgrim’s Pride Corp. v. Caldarera, 54 Ark. App. 92, 923 S.W.2d 290 (1996). The Commission in the present case considered the opinions of two doctors regarding the causal connection between appellee’s employment activities and his multiple conditions, and it assigned greater weight and credibility to Dr. Deneke. We find that Dr. Deneke’s March 1996 letter and office notes constitute sufficient evidence to support the Commission’s finding that appellee’s employment aggravated his osteoarthritis.
Carpal Tunnel Syndrome
Carpal tunnel syndrome injuries are addressed by our workers’ compensation statute as follows:
(5) (A) “Compensable injury” means:
(ii) An injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:
(a) Caused by rapid repetitive motion. Carpal tunnel syndrome is specifically categorized as a compensable injury falling within this definition ....
Ark. Code Ann. § ll-9-102(5)(A)(ii)(a) (Supp. 1997). The burden of proof for injuries falling within the definition of compensa-ble injury under subdivision (5) (A) (ii) shall be by a preponderance of the evidence, and the resultant condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment. Ark. Code Ann. § ll-9-102(5)(E)(ii) (Supp. 1997). Thus, in the present case, appellee had the burden of proving by a preponderance of the evidence that his carpal tunnel syndrome injury was the major cause of the disability or need for treatment.
Appellant argues that the major cause of appellee’s need for treatment was osteoarthritis and contends that appellee failed to establish the compensability of his carpal tunnel syndrome. Appellant challenges the following finding of the Commission:
Finally, the . . . evidence is sufficient to establish by a preponderance of the evidence that the claimant’s conditions in the form of bilateral carpal tunnel syndrome and an aggravation of his pre-existing degenerative arthritis of his hands was the major cause of the claimant’s need for ongoing medical treatment since December 5, 1995, [thus] satisfying the requirement of A. C. A. § 11-9-102 (5) (E) (ii).
On December 27, 1995, Dr. Deneke diagnosed osteoarthritis and probable tendinitis, noting that appellee had experienced a year’s discomfort in his hands with occasional sore wrists, pain in his left forearm, and his right hand “going to sleep” and more painful than the left. Dr. Deneke’s office notes of March 29, 1996, state that a nerve conduction study showed carpal tunnel syndrome to be moderate on the right and mild on the left, that numbness was related to the syndrome, and that the relation of pain to the syndrome remained to be seen. Dr. Deneke wrote that if splints were not of benefit over the next two months, “[W]e will consider referring to Orthopaedics for carpal tunnel release, at least on the right. If his symptoms worsen and he is unable to work, we may need to send him sooner. Certainly, it is likely that continuing his present job is going to continue the aggravation in his hands.”
The Commission found that appellant’s bilateral carpal tunnel syndrome and the aggravation of his osteoarthritis were both compensable injuries. We do not view Arkansas Code Annotated section ll-9-102(5)(E)(ii) (Supp. 1997), as precluding a finding that separate injuries or conditions that occur simultaneously or near in time to each other can be compensable. This is true even though the statute requires that both compensable injuries or conditions are the major cause of the disability or need for treatment. Neither does the fact that injuries are located in the same body member, as here, act to disqualify an award of benefits when a claimant meets the statutory requirements of the need for treatment. “Major cause,” which is defined as more than fifty percent of the cause, shall be established according to the preponderance of the evidence. Ark. Code Ann. § 11-9-102(14) (A) & (B) (Repl. 1997).
As discussed earlier in this opinion, appellee and his coworkers testified that at the time of onset and progression of his difficulties, he grasped and lifted and moved thousands of items during an eight-hour shift. Dr. Deneke diagnosed carpal tunnel syndrome, a nerve conduction study confirmed the diagnosis, and medical records established the need for medical treatment. Thus, there was sufficient evidence to support the Commission’s finding that the claimant’s carpal tunnel syndrome was compensable.
Affirmed.
Arey and Roaf, JJ., agree.
See Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998), for a discussion of Act 796 of 1993, which dramatically changed workers’ compensation law in Arkansas and gave rise to Ark. Code Ann. § 11-9-102(16)(B) (Repl. 1996). | [
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Per Curiam.
The Director of the Employment Security Department has filed a Motion to Strike additional infor mation filed by the appellant, Dorothy A. Jones, with her petition for review. However, there is no need to file such a motion in Employment Security cases; the decision of the Board of Review in this case was affirmed without opinion on March 18, 1998, pursuant to Rule 5-2(b) of the Rules of the Supreme Court and Court of Appeals, without consideration of the additional information submitted. This court does not consider additional evidence filed except as ordered by this court and directed to the Board of Review pursuant to Ark. Code Ann. § 11-10-529(c)(2)(A) (Repl. 1997). See also Fry v. Director of Labor, 16 Ark. App. 204, 698 S.W.2d 816 (1985).
In the future, the Director should be advised that a Motion to Strike for the reason set out above is cumulative and unnecessary.
It is so ordered. | [
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Margaret Meads, Judge.
Christopher Ward has appealed from an order of the Faulkner County Chancery Court denying his motions to dismiss and for summary judgment, and granting appellee Linda Mae Ward McCord’s petition for a new trial on the ground that appellant committed fraud on the court during their divorce action in 1986. Appellee asserted in her petition that appellant had concealed $42,000 in marital funds from her. In her order granting a new trial, the chancellor stated:
This case should be reopened and [appellee] should be granted a new trial, because [appellant] committed a fraud on the court, and because due diligence by [appellee] would not have uncovered the balance in the disputed savings account. The parties’ daughter, Teresa L. DeBolt, was under the control of the [appellant], While the divorce case was pending, [appellant] moved the disputed $42,000.00 savings account into an account with the daughter’s name and social security number on it. Because she was under the control of the [appellant], the daughter would not have revealed any information to the [appellee]. Had the [appellant] asked the daughter to do so, the daughter would have consented to moving the account again in order to conceal it Rom the [appellee]. The [appellee] did not file any interrogatories or do any other discovery in the 1986 divorce case, but even if she had done interrogatories or other discovery the [appellee] still would not have uncovered the disputed account.
On appeal, appellant argues that: (1) he did not commit fraud in 1986, and (2) even if he did commit fraud, the fraud was intrinsic, rather than extrinsic, the type of fraud required to vacate a judgment under Ark. R. Civ. P. 60(c)(4). In other words, if appellant defrauded appellee, rather than the court, he argues, the divorce decree cannot be set aside. We have no doubt that appellant did commit fraud against appellee; however, it is not the sort of fraud for which a judgment can be set aside. Therefore, we reverse the chancellor’s decision and dismiss this action.
The parties were married in 1960 and had four children. Appellant was an officer in the Air Force, and appellee, who did not graduate from high school, worked as a waitress. By the summer of 1984, the parties had saved approximately $62,000 in joint accounts at the Little Rock Air Force Base Federal Credit Union. That summer, appellee informed appellant that she wanted a divorce, but appellant was able to talk her out of it. Appellant then withdrew $38,000 from the parties’ joint accounts and deposited it into an account in his name at the credit union. On May 27, 1986, appellee filed for divorce and informed appellant that she had done so. Appellant immediately went to the credit union and transferred the money in this account, which had increased to $42,000, into an account held in his name and that of the parties’ daughter, Teresa DeBolt. This account carried Teresa’s address and social security number. Appellant informed Teresa of his actions, and Teresa kept quiet about the account for six years.
On June 30, 1986, the parties entered into a property settlement agreement which provided that each party would keep their own personal effects and that appellant would retain the marital home and be responsible for its debt. The agreement further provided that appellee would retain the sum of $19,000, her IRA of $8,610, and specific items of household furniture; and that appellant would retain the balance of the checking and savings accounts, the remaining IRA, and household items not specifically given to appellee. The agreement concluded with paragraph 11, which provided: “Each party acknowledges that this is a fair agreement and that it is not the result of any fraud, duress, or undue influence exercised by either party upon the other and further acknowledge [sic] that they have read and understand each and every provision.”
In September 1992, Teresa informed appellee of the $42,000 account. On June 11, 1993, appellee filed a petition to set aside the property settlement agreement on the ground that appellant had fraudulently concealed this account from her and had conveyed the funds to Teresa in order to defeat her marital property rights. Appellant responded with motions to dismiss and for summary judgment. In support of his motions, appellant filed his affidavit, wherein he admitted that in August of 1984, he had withdrawn $38,000 from the parties’ savings and had placed it in an account in his own name. He stated that he had informed appellee of this action. He also admitted that on May 27, 1986, he had moved the $42,000 that had accumulated in this account into a new account held in his name and that of his daughter, Teresa. He also stated that, during negotiations for the property settlement, he had given appellee a “bottom line figure” for an uncontested divorce: appellee could only have the IRA in her name and $19,000 of their savings. He stated that appellee had considered this proposal and had asked for an additional $1,500 for their son Jeffs braces, to which appellant agreed.
Appellant also filed the parties’ son Michael’s affidavit. Michael stated that his mother had admitted to him, during negotiations for the property settlement, that she knew appellant had more money and that she might be entitled to a portion of his retirement pay but that she did not care because she wanted out of the relationship as soon as possible.
In response to appellant’s motions, appellee filed her own affidavit, in which she stated that throughout the parties’ marriage, she was not fully aware of their financial situation because appellant had withheld this information from her. She also said that she had been afraid of appellant and had been under his domination. She stated that when she filed for divorce in 1986, appellant had told her that he would go to jail before he saw her receive any part of his retirement income. Appellee testified that she was not aware of the $42,000 until September 1992, when Teresa revealed its existence to her.
Appellee also filed Teresa’s affidavit. She stated that after her parents’ separation, her father had asked her for a favor. She stated that she had agreed to help him hide some money from her mother in a joint account with his and her names, using her social security number. She also said that her father informed her that he had asked a friend employed with the credit union to “put a lock on it” so no one could locate the account.
On December 6, 1993, Chancellor Watson Villines issued a letter order in which he stated: “Although the Court came very near to granting the Motion For Summary Judgment, it will be denied at this time so the Court can hear all of the evidence on this matter.” On June 30, 1994, appellant again moved for summary judgment. Appellant argued that appellee had failed to exercise due diligence in the divorce action and that the court lacked jurisdiction to reopen the case under Rule 60(c). The depositions of appellee and Teresa were also filed.
In her deposition, appellee testified that during negotiations, appellant had given her a piece of paper with their assets purportedly listed thereon and stated: “[T]his is what we have; this is what I’m going to agree to, and I will not let you have my retirement.” The $42,000 account was not listed on this piece of paper. Appellee also testified that she was afraid of appellant but was tired of arguing with him. She stated that when she went to the credit union for information about their assets, the credit union refused to provide any information to her. Appellee added that even if the credit union had provided her with information, it would have never occurred to her to ask about any accounts in her daughter’s name. She admitted that she had informed her lawyer, Phil Strat-ton, that she could not obtain information from the credit union and had assumed that he had sought that information. She said that when she signed the property settlement agreement, she believed that the $19,000 she received was half of the parties’ assets.
Appellee filed the affidavit of her former attorney, Mr. Strat-ton, in which he stated:
3. ... The existence of marital funds in Mr. Ward’s name was not disclosed to me by anyone involved. Anything as important as marital funds would have been pursued vigorously had I known the funds existed.
5. As I remember, Mrs. Ward was adamant in foregoing any interest in her husband’s military retirement plan but I believe she would have pursued all other marital property rights and had I known Mr. Ward had not made full disclosure of all marital assets that fact would have been presented to the court for her to pursue or to disclaim.
In August of 1994, Judge Villines denied appellant’s second motion for summary judgment, and soon after, appellant filed a notice of appeal. This court dismissed appellant’s appeal in CA94-1362 on March 9, 1995. On March 13, 1995, appellant again filed a motion in which he argued that appellee could not prove that she was diligent in uncovering the existence of the bank account, and that even if appellant’s actions were fraudulent, they were intrinsic fraud and not the type of fraud required to vacate a judgment. Appellant requested that the court enter findings of fact and conclusions of law. After Judge Villines’s untimely death in 1995, Karen Baker was appointed to serve out the remainder of his term. On August 12, 1996, Judge Baker entered an order dismissing this action without prejudice for lack of prosecution.
On January 31, 1997, appellee again filed a petition to set aside the property settlement agreement, alleging the same grounds as before. Appellant again filed motions to dismiss and for summary judgment. The affidavits previously filed were refiled. Chancellor Linda Collier (who was elected to the position formerly held by Judge Villines) heard arguments of counsel on April 3 and April 23, 1997. In her order entered June 2, 1997, she denied appellant’s motions to dismiss and for summary judgment and granted appellee a new trial because of appellant’s fraud upon the court.
Appellant argues that the chancery court had no jurisdiction to grant a new trial because appellee was not diligent in the divorce proceeding in discovering the existence of the $42,000 account and because the evidence does not establish that he fraudulently withheld information about the account from appellee. Appellant also argues that even if his actions did amount to fraud, they were intrinsic fraud rather than extrinsic fraud and the chancery court lacked jurisdiction to vacate the judgment under Ark. R. Civ. P. 60(c)(4) (1997). Because appellant’s actions amounted to intrinsic fraud, we hold that the chancery court lacked jurisdiction to reopen the case and set aside the divorce decree.
Rule 60(c)(4) provides:
(c) Grounds for Setting Aside Judgment, Other Than Default Judgment, After Ninety Days. The court in which a judgment, other than a default judgment [which may be set aside in accordance with Rule 55(c)] has been rendered or order made shall have the power, after the expiration of ninety (90) days after the filing of said judgment with the clerk of the court, to vacate or modify such judgment or order:
(4) For fraud practiced by the successful party in obtaining the judgment.
Rule 60(c) allows judgments to be set aside and new trials granted for the same reasons as could previously be done under Ark. Stat. Ann. §§ 27-1906 and 29-506. Garrett v. Allstate Inc. Co., 26 Ark. App. 199, 762 S.W.2d 3 (1988). Comment 1 in the Reporter’s Notes to Rule 60 provides:
This rule is substantially different from FRCP 60. Its purpose is to substantially retain existing Arkansas law on the subject. The Court feels that the adoption of FRCP 60 would detract from the stability of final judgments and that the changes which would be made in Arkansas law are highly undesirable. The distinction between intrinsic and extrinsic fraud as a basis for relief from a judgment is considered an important and desirable one.
In Parker v. Sims, 185 Ark. 1111, 51 S.W.2d 517 (1932), the supreme court explained the type of fraud that will warrant the setting aside of a judgment:
The law is settled that the fraud which entitles a party to impeach a judgment must be fraud extrinsic of the matter tried in the cause, and does not consist of any false or fraudulent act or testimony the truth of which was or might have been in issue in the proceeding before the court which resulted in the judgment assailed. It must be a fraud practiced upon the court in the procurement of the judgment itself.
185 Ark. at 1116, 51 S.W.2d at 519-20 (citations omitted).
Therefore, the fraud for which a decree will be canceled must consist in its procurement and not merely in the original cause of action. First Nat’l Bank v. Higginbotham Funeral Serv., Inc., 36 Ark. App. 65, 818 S.W.2d 583 (1991). It is not sufficient to show that the court reached its conclusion upon false or incomplete evidence, or without any evidence at all, but it must be shown that some fraud or imposition was practiced upon the court in the procurement of the decree, and this must be something more than false or fraudulent acts or testimony the truth of which was, or might have been, an issue in the proceeding before the court which resulted in the decree assailed. Id. Accord Arkansas State Highway Comm’n v. Clemmons, 244 Ark. 1124, 428 S.W.2d 280 (1968); Williams v. Purdy, 223 Ark. 275, 265 S.W.2d 534 (1954); McGuire v. Smith, 58 Ark. App. 68, 946 S.W.2d 717 (1997); Smart v. Biggs, 26 Ark. App. 141, 760 S.W.2d 882 (1988). The party seeking to set aside the judgment has the burden of showing that the judgment was obtained by fraud, and the charge of fraud must be sustained by clear, strong, and satisfactory proof. First Nat’l Bank v. Higginbotham Funeral Serv., Inc., supra. Whether the procurement of a judgment amounted to fraud upon the court is a conclusion of law. Hardin v. Hardin, 237 Ark. 237, 372 S.W.2d 260 (1963).
The distinction between extrinsic and intrinsic fraud applies to actions seeking to set aside divorce decrees. In Alexander v. Alexander, 217 Ark. 230, 229 S.W.2d 234 (1950), the supreme court reversed a chancellor’s decision vacating an order of child support in a divorce decree and held that it was error to vacate the decree on the ground that the plaintiff had led the defendant to believe that the child had been adopted although, in fact, the adoption had not been completed. In doing so, the court quoted the United States Supreme Court’s explanation of extrinsic fraud:
In the leading case of United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93, examples of acts which constitute extrinsic or collateral fraud are mentioned as follows: “Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interest to the other side, — these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing .... On the other hand, the doctrine is equally well settled that the court will not set aside a judgment because it was founded on a fraudulent instrument, or peijured evidence, or for any matter which was actually presented and considered in the judgment assailed.”
217 Ark. at 235, 229 S.W.2d at 236. The court further noted that the appellant had obviously believed in good faith that the adoption proceedings had been completed but added:
However, if she knowingly and falsely testified at the original hearing such action would have amounted to intrinsic fraud and does not involve such extrinsic or collateral fraud as is required to modify or vacate the original decree. The burden was upon appellee in the original hearing to meet the issue of his liability for the child’s support and he had ample time and opportunity to do so. There would be no end to litigation if he is permitted to retry the same issue in a subsequent proceeding when there is an absence of fraud practiced upon the court in the procurement of the original decree.
217 Ark. at 236, 229 S.W.2d at 237. See also Makin v. Makin, 244 Ark. 310, 424 S.W.2d 875 (1968).
Based upon the foregoing authority, we hold that appellant’s actions, even if they did amount to fraud, were intrinsic and not extrinsic. The extent of the parties’ marital property clearly was an issue before the chancery court when the divorce decree was entered in 1986. Although an injustice may very well have been done to appellee in 1986, we hold that this case must be reversed and dismissed because the chancery court lacked jurisdiction to set aside the divorce decree.
Reversed and dismissed.
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JOSEPHINE Linker Hart, Judge.
A jury found Terrence D. J Box guilty of aggravated robbery and battery in the first degree and sentenced him to a total of 420 months in the Arkansas Department of Correction (“ADC”). For reversal, appellant argues that (1) there was insufficient evidence to sustain his conviction and, accordingly, the trial court erred by denying his directed-verdict motion; (2) his right under the United States Constitution to a fair trial was violated because the trial court forced him to appear at trial and before the jury in his prison uniform; (3) the trial court violated the Arkansas Constitution by commenting on a critical piece of the State’s evidence; and (4) the trial court erred by admitting into evidence a letter and envelope in violation of Ark. R. Evid. 901-902. We agree with appellant on his second and last points, and, therefore, we reverse and remand.
The State filed a criminal information on May 25, 1999, alleging that on April 14, 1999, appellant, while armed with a .22 caliber rifle, robbed Geisla Cantrell and shot Tommy Cantrell. The matter proceeded to trial on November 16-17, 1999, when appellant, who was incarcerated at ADC, appeared before the court and jury in his prison uniform. Despite the fact that the matter had been raised, the trial court ordered appellant to stand for the jury trial while wearing his prison uniform, reasoning that it was appellant’s responsibility to dress himself in civilian clothing. At trial, included among the witnesses that testified were Eli Hudson, who had been a suspect in the robbery, and Tommy Cantrell, who was one of the two victims.
Hudson gave incriminating testimony against appellant. According to Hudson, he was told “everything” concerning the robbery by Travell Lawson, his cousin and participant in the robbery, in appellant’s presence; however, appellant did not deny his involvement. Following cross-examination by appellant’s attorney, the trial judge inquired into the specifics of Lawson’s conversation with Hudson. At that time, Hudson stated that in appellant’s presence he was told by Lawson that while he was grabbing and trying to take Geisla Cantrell’s purse, Tommy Cantrell appeared and was shot by appellant.
Tommy Cantrell, one of the two victims, testified regarding the events of the evening of April 14, and a letter dated November 3, 1999, that he purportedly received from appellant. Although the letter was unsigned, the envelope in which it was located had “correctional” stamped across it. Over appellant’s authentication objection, the letter was admitted into evidence and read into the record by Cantrell. In the letter, appellant admitted to having a camera that was located in Geisla Cantrell’s purse, but denied having anything to do with the robbery.
I. Sufficiency of the evidence
In an effort to avoid potential double-jeopardy concerns on remand, we do not consider errors by the trial court until we first consider a challenge to the sufficiency of the evidence. See Harris v. State, 284 Ark. 247, 249-250, 681 S.W.2d 334, 335 (1984). On this point, appellant argues for reversal that the trial court erred by denying his directed-verdict motion because there was insufficient evidence to sustain the conviction of aggravated robbery. Our review is governed by the standard expressed in Flowers v. State, 342 Ark. 45, 48, 25 S.W.3d 422, 425 (2000) (citations omitted), which stated:
A motion for a directed verdict is a challenge to the sufficiency of the evidence. The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict.
The trial court denied appellant’s directed-verdict motion, reasoning that Hudson’s testimony presented a valid jury question of whether appellant had admitted to committing the crime. We agree with the trial court.
Rule 801 (d)(2)(h) of the Arkansas Rules of Evidence provides that “a statement of which [a party] has manifested his adoption or belief in its truth ...” constitutes nonhearsay. “[T]he admissibility is tested by whether a reasonable person, under the circumstances, would have been expected to deny the statements if they were in fact untrue.” Morris v. State, 302 Ark. 532, 537, 792 S.W.2d 288, 291 (1990). Here, Hudson testified that he was told by Lawson that appellant was involved in the robbery and shot Tommy Cantrell. Despite the fact that this story was told in appellant’s presence, he did not deny the truthfulness of the story.
Pursuant to Ark. Code Ann. § 5-12-103 (Repl. 1997):
(a) A person commits aggravated robbery if he commits robbery as defined in § 5-12-102, and he:
(1) Is armed with a deadly weapon or represented by word or conduct that he is so armed; or
(2) Inflicts or attempts to inflict death or serious physical injury upon another person.
Furthermore, a person commits robbery as defined in Ark. Code Ann. § 5-12-102 (Repl. 1997), “if, with the purpose of committing a felony or misdemeanor theft ... he employs or threatens to immediately employ physical force upon another.”
In light of these matters, we conclude that Hudson’s testimony presented a valid jury question as to whether appellant had committed aggravated robbery. Viewing the evidence in a fight most favorable to appellee, the proof suggests that appellant used a deadly weapon and attempted to cause either death or serious physical harm while also trying to commit a theft. Accordingly, we affirm the trial court’s denial of appellant’s directed-verdict motion.
II. Fair trial
For his next argument, appellant contends that his Fourteenth Amendment right to a fair trial was violated because the trial court ordered that he stand trial while wearing his ADC uniform. As we review this matter, we are mindful that:
The responsibility of striving for an atmosphere of impartiality during the course of a trial rests upon the trial judge. . . . Even though the trial judge runs the court, the right of an accused to a fair trial, although not perfect, is paramount. If the exercise of discretion results in the denial of a fair trial to a defendant, the discretion is certainly abused.
75 Am. JUR. 2d Trial § 193 (1991). Furthermore, as the United States Supreme Court stated in Estelle v. Williams, 425 U.S. 501, 503 (1976), “The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment.” Despite the fact that this critical term is left undefined by our United States Constitution, we consider the term “fair trial” to consist of the following:
A fair trial is a legal trial; one conducted according to the rules of common law except in so far as it has been changed by statute; one where the accused’s legal rights are safeguarded and respected. A fair trial is a proceeding which hears before it condemns, which proceeds on inquiry, and renders judgment only after trial. A fair trial is that which is such in contemplation of law, namely, that which the law secures to the party, and a fair trial before an impartial jury means one where the jurors are entirely indifferent between the parties. The necessary factors in a fair trial are an adequate hearing and an impartial tribunal, free from any interest, bias, or prejudice. A fair trial is only likely to accomplish full justice within human limitations.
88 C.J.S. Trial § 1 (1955). Accordingly, on review we must determine whether the trial court’s order requiring appellant to stand trial in his prison uniform constituted an abuse of discretion inasmuch as it denied appellant a fair trial. For the reasons expressed below, we conclude that the lower court’s actions constituted such an abuse.
It is well settled that under the Fourteenth Amendment, a State cannot “compel an accused to stand trial before a jury while dressed in identifiable prison clothing . . . .” Estelle, 425 U.S. at 512. Such a prohibition is necessary because, although not stated in the Constitution, a defendant is presumed innocent, and “an accused should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption so basic to the adversary system.” Estelle, 425 U.S. at 503-504. However, “ ‘[a] defendant may not remain silent and willingly go to trial in prison garb and thereafter claim error.’ ” Estelle, 425 U.S. at 508 (quoting Hernandez v. Beto, 443 F.2d 634, 637 (5th Cir. 1971)). Accordingly, to determine whether appellant was denied a fair trial in this matter, we must conclude whether there is anything in the record on appeal that “warrants a conclusion that [appellant] was compelled to stand trial in jail garb or that there was sufficient reason to excuse the failure to raise the issue before trial.” Estelle, 425 U.S. at 512.
We conclude that the abstract plainly reveals that the issue was sufficiently brought to the trial court’s attention and that appellant was made to stand trial in his ADC uniform. Prior to the beginning of the trial, the State alerted the trial judge to the fact that appellant was wearing his ADC uniform, and appellant, thereafter, also raised the issue to the trial judge. Nonetheless, the trial judge ordered appellant to stand trial while wearing his prison uniform.
The relevant colloquy was as follows:
Prosecutor: The defendant has been brought in his prison whites.
COURT: I instructed the sheriff to bring him in that way.
Prosecutor: Oh, okay.
Court: And the reason I did this — I’ll rale for the record later on when [appellant’s attorney] makes his record, but he was instructed and had a chance to dress unless otherwise, and I think that’s his responsibility, and he had the opportunity. We’ll make a record later.
Defense: I do have two motions to present to the court when you are ready.
COURT: We will proceed with jury selection. You will get the opportunity to make those later. . . .
[following jury selection]
Defense: My second motion is that [appellant] is present in his jail garb. . . . Anybody seeing [appellant] here today in ADC garb should understand that he has a prior conviction. That, alone, is prejudicial ....
COURT: Do you want me to ask the jury about?
DEFENSE: I think that would almost be an inference of guilt right here, your honor.
COURT: Do you want me to ask the jury about it, yes or no?
DEFENSE: No, I think that would be even more highly prejudicial.
COURT: Here’s the situation the court is in. Before [appellant] was brought up the stairs, I asked his attorney if he had discussed this matter with [appellant] about wearing civilian clothes, if they were available. He said he had. [Appellant] showed up from the regional jail without any. None had been supplied over at the sheriffs office for him to change into. He’s been given that opportunity. It’s [appellant’s] obligation, in my opinion, to have those available, unless it’s impossible. It has not been shown to have been impossible. I could have delayed this matter, but I do not think I’m required to delay this matter to search down and hunt for [appellant] some clothes that he wants to wear. That is not the Court’s obligation, and the motion is denied. . . .
Defense: He was not arrested in the garb he’s wearing today. Somewhere there is civilian clothing available that he has been locked up and arrested in ... .
COURT: It has not been shown that those are unavailable. . . . I have an obligation to move his case along, and that’s what I’m trying to do.
We hold that this action constituted reversible error inasmuch as it ordered appellant to stand trial in his prison uniform after all the parties had raised the issue and appellant specifically made it known to the trial court that he did not want to proceed while wearing prison clothes. Such an order, in our view, denied appellant a fair trial because it deprived him of the opportunity to defend the case against him in an environment that was reasonably free of any interest, bias, or prejudice. To hold otherwise would require that we also conclude that a reasonable jury would, after seeing appellant in his prison uniform, be indifferent to his case, which, for the reasons expressed in Estelle, we will not do. More importantly, however, we conclude that such an order violated the Fourteenth Amendment because it compelled appellant to stand trial while wearing prison garb, and, therefore, denied appellant a fair trial.
We specifically disagree with appellee’s argument that appellant is entitled to no relief on appeal because he faded to ask the trial court for a mistrial. Such an argument fails to recognize that it is the trial judge who ordered appellant to stand trial in his prison garb. However, assuming, arguendo, that appellee’s argument has merit, we conclude that, commensurate with Estelle, there was sufficient reason to excuse such an omission in light of the trial judge’s pre-motion comments that he was going to require appellant to stand trial in his prison garb and his plainly stating that appellant’s motion was “denied” after appellant expressed his desire to the trial court that he did not want to be tried in prison garb. Furthermore, the denied motion established the trial court’s view that no misconduct had occurred, and it is unnecessary to request further relief in order to preserve the issue for appellate review. See Leaks v. State, 339 Ark. 348, 355-356, 5 S.W.3d 448, 453 (1999). In any event, whether viewed as either an appeal of the trial court’s order or an omission for which there is sufficient excuse, we conclude on review that the trial court’s actions constituted an abuse of discretion and reverse on this issue.
III. Trial judge’s comments
We, however, affirm on appellant’s next point on appeal concerning the trial judge’s questioning of Hudson. Appellant argues that the trial court’s actions constituted a violation of Ark. Const, art. 7, § 23, which provides that “[j]udges shall not charge juries with regard to matters of fact, but shall declare the law, and in jury trial shall reduce their charge or instructions to writing on the request of either party.” While we have cautioned trial judges not to assume the role of an advocate when they question witnesses, in this case we are simply unable to engage in any meaningful appellate review because there was no objection to the trial judge’s actions in this regard. Eg., Jones v. State, 340 Ark. 390, 397, 10 S.W.3d 449, 453 (2000) (“We have frequently held that a contemporaneous objection must be made to the trial court before we will review an alleged error on appeal.”).
IV Admission of letter
For his final point on appeal, appellant argues that the trial court erred by admitting into evidence the letter that was purportedly from appellant to Mr. Cantrell. Specifically, appellant argues that appellee failed to properly authenticate the letter because the foundation that was laid was not “sufficient to support a finding that the matter in question [was] what its proponent claim[ed].” Ark. R. Evid. 901(a). To prevail, however, appellant must demonstrate that the trial court abused its discretion by determining that the proffered evidence satisfied the Rule 901 requirements. Eg., Monk v. State, 320 Ark. 189, 198, 895 S.W.2d 904, 909 (1995). We find that appellant has met that burden.
The authentication of a letter is subject to Ark. R. Evid. 901(a), and as such:
[A] letter alleged to have been received from a particular source ordinarily is not admissible until its authenticity and genuineness have been sufficiendy shown. There must be sufficient proof that the letter was written by the person by whom it purports and is claimed to have been written, or under the authority of the person claimed to have authorized it.
32A C.J.S. Evidence § 982(a) (1996). In the case at bar, we conclude that the documentary evidence offered lacked a reasonable certainty of genuineness and authenticity.
At issue is an envelope on which purportedly appeared appellant’s return address and the word “correctional” and which contained an unsigned letter that stated it was from appellant. The letter lacked appellant’s signature, the State failed to offer any evidence to prove that the letter was in appellant’s handwriting, and there was no evidence that it was improbable that the letter was authored and sent by anyone other than appellant. We are unable to conclude that appellee provided sufficient proof that the document was a letter from appellant to Mr. Cantrell, and, therefore, we hold that the trial court abused its discretion.
Furthermore, while it is true, as stated in the dissenting opinion, that in appellant’s case-in-chief a witness testified to many of the factual elements that were admitted into evidence via the letter, we are unpersuaded that this has the effect of waiving his objection to the admission of the letter for purposes of appellate review. Under the dissenting opinion, for appellant to preserve his objection on appeal he would have to forego the presentation of a trial defense designed to respond to the evidence offered by the State over appellant’s objection.
It is true that the general rule is that “[i]f a party who has objected to evidence of a certain fact himself produces evidence from his own witness of the same fact, he has waived his objection.” 1 John W Strong, McCormick on Evidence § 55, at 246 (5th ed. 1999). Here, however, it is plain that appellant did not attempt to produce the letter from his own witness. While it may be tempting to simply conclude that there was no material difference between the contents of the letter and the testimony of appellant’s witness, to do so would simply be untrue. The letter contained information that was different from the material that was offered into evidence via appellant’s witness, and this witness testified to matters that were different from the material that was offered into evidence via the letter. We cannot assume that the jury found these differences immaterial. Accordingly, it would be incorrect to hold that the letter and the testimony constituted, as a matter of law, the same evidence.
If appellant’s witness had testified prior to the admission of the letter, then he could be in a different position inasmuch as he would not be compeEed to reintroduce the evidence in a light more favorable to his theory of the case. The conclusion reached by the dissenting opinion would, in our view, unduly place defendants in an unjust dilemma — one can present either a zealous trial defense or a zealous appellate defense, but not both. We respectfully disagree with the view that the law places litigants in such an untenable position.
Reversed and remanded.
Griffen, Vaught, and Baker, JJ., agree.
PITTMAN and CRABTREE, JJ., concur in part and dissent in part.
According to the abstract, the direct-verdict motions pertained only to the aggravated robbery charge and, therefore, we only consider whether there was sufficient evidence to sustain that charge. E.g., Hutts v. State, 342 Ark. 278, 278-280, 28 S.W.3d 265, 267 (2000).
We stated in Oliver v. State, 268 Ark. 579, 590, 594 S.W.2d 261, 266 (Ark. App. 1980), that:
While a trial judge is not a mere umpire and may interrogate witnesses in an action before him, he may not act in a dual capacity as judge and advocate. The two roles are not concentric. The presentation of a litigant’s case in an adversary proceeding should be left to the initiative of counsel who has the responsibility to represent the interest of his client.
We agree with the dissent’s position that the admission of incompetent evidence constitutes harmless error when said evidence is cumulative; however, we disagree that the evidence here was cumulative. Evidence is cumulative if and only if it is “[additional evidence of the same character as existing evidence and that supports a fact established by the existing evidence . . . Black's Law Dictionary 577 (7th ed. 1999). The dissent focuses on the testimony of appellant’s witness to reach the conclusion that the letter, which was offered during appellee’s case-in-chief, was cumulative. In our view, that approaches the question from the wrong direction. The issue is whether the letter was cumulative evidence, and it is plain that the letter was not additional evidence that was of the same character as it existed at that stage of the trial.
The authorities relied upon by the dissent to conclude otherwise comprise either obiter dictum or are plainly distinguishable from the case at bar. See Stephens v. State, 328 Ark. 81, 941 S.W.2d 411 (1997) (affirming admission of testimonial evidence because appellant failed to properly object, not simply because evidence might have been cumulative); Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996) (affirming admission of defendant’s pre-trial confession; accordingly, the confession could not be considered cumulative inasmuch as it was not evidence in addition to the existing evidence at trial); Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995) (affirming denial of motion for mistrial because appellant failed to see that trial judge gave cautionary instruction, not simply because evidence might have been cumulative); Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995) (affirming admission of testimonial evidence when others testified during State’s case-in-chief without objection to materially same evidence, not merely because defendant admitted to same); Cage v. State, 73 Ark. 484, 84 S.W. 631 (1905) (affirming admission of testimonial evidence that was given after testimony given during defendant’s case-in-chief on direct examination); McDonald v. State, 37 Ark. App. 61, 824 S.W.2d 396 (1992) (affirming admission of testimonial evidence because court held permissible to do so under Ark. R. Evid. 404(b), not simply because evidence might have been cumulative); Brown v. State, 5 Ark. App. 181, 636 S.W.2d 286 (1982) (affirming admission of testimonial evidence because said evidence concerned a matter that was not at issue, not simply because evidence might have been cumulative).
This stands in stark contrast to Aaron v. State, 300 Ark. 13, 775 S.W.2d 894 (1989), which is relied upon by the dissent, wherein the difference was between an I.D. card and a driver’s license. In our view, there would in all likelihood be no difference between an I.D. card and a driver’s license. However, the jury may have found material differences between a letter that was allegedly written by an inmate in a correctional facility and testimony that a person sold a camera to the defendant. To reach a contrary conclusion would require that we speculate on what the jury found valuable in the admitted evidence, which we cannot do. | [
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Karen R. BAKER, Judge.
This is an appeal from a jury verdict of manslaughter resulting in a sentence of ten years in the Arkansas Department of Correction and a ten thousand dollar fine. Appellant was tried for second-degree murder and convicted of manslaughter upon the jury’s finding that he had pushed the victim from a moving vehicle causing her death. Appellant asserts two errors: (1) that the trial court erred in the removal of a juror after the jury had been selected, impaneled and sworn; and (2) the trial court erred in allowing the testimony of a tainted witness. We find no error and affirm.
Appellant first argues that the trial court erred in removing a juror, Mr. Black, after the jury had been selected, impaneled, and sworn. At voir dire, the trial judge asked the State to announce the identity of its witnesses. The State called a list of nineteen names, including the name of Detective Mark Hallum from the Fort Smith Police Department. None of the witnesses were present when the names were called. When the court asked the potential jurors if any of them knew the State’s witnesses or had dealings with any of the police officers, no one responded. The attorneys for both the State and the defense questioned Mr. Black prior to his being seated.
After the prosecution had presented most of its case, the deputy prosecutor approached the court and informed it that one of the prosecution’s witnesses, Detective Hallum from the Fort Smith Police Department, had informed him that he knew one of the jurors, Mr. Black. The court deferred acting on the issue until other witnesses for the prosecution testified.
At the close of the prosecution’s case, which included Detective Hallum’s testimony, Detective Hallum testified outside the presence of the jury concerning his knowledge of Mr. Black. He stated that, about a year or a year and a half before, he arrested Mr. Black’s son, Joshua, a couple of times. One of those times was at Mr. Black’s house. When the Detective attempted to arrest Joshua, Mr. Black stated, “You are not going to arrest my son.” The Detective replied, “Yes, sir; I am. I am going to take him to jail.” The detective testified that it was not a friendly conversation and that it lasted several moments. Although Joshua was ultimately prosecuted on two separate felony charges and Detective Hallum appeared in court with respect to those charges, he did not have any more contact with Mr. Black until he saw him in the jury box in this case.
In light of Detective Hallum’s testimony about his confrontation with Mr. Black, the court excused Mr. Black from the jury and replaced him with an alternate juror, Ms. Brown, before the jury began deliberation. The court stated that Mr. Black had an obligation to speak up during voir dire, if he knew Detective Hallum and concluded that the defense was not prejudiced by the replacement of Mr. Black.
Appellant maintains that because Ark. Code Ann. § 16-33-303(b) (Repl. 1999) provides that a trial court may permit a challenge for good cause to be made at any time before a jury is completed that there is an implication that the statute forbids a challenge for cause once a jury is impaneled and sworn. He further contends that Ark. Code Ann. § 16-31-102 sets out the circumstances that allow an alternate to replace a juror and that there was no showing that Mr. Black was disqualified under that statute.
We first note that Ark. Code Ann. § 16-31-102(c) provides that “[njothing in this section shall limit a court’s discretion and obligation to strike jurors for cause for any reason . . . .”
Secondly, appellant’s position that the statute forbids a challenge for cause once a jury is impaneled and sworn directly contradicts our case law and would impermissibly limit a judge’s obligation to ensure that a defendant receives a trial with an impartial jury. In Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995), the trial court replaced a seated juror with an alternate juror. On the third day of trial and after the State had rested, the trial court received a report that the juror was riding to court each day with a spectator and that the spectator’s son dated the defendant’s mother. The juror had not mentioned this during voir dire. The trial court conducted a hearing and, in order to avoid any appearance of impropriety, seated an alternate juror. The Arkansas Supreme Court held that the trial court did not err in excusing the juror and seating the alternate juror in order to avoid an appearance of impropriety. Id. (citing Ruiz v. State, 273 Ark. 94, 617 S.W.2d 6, cert. denied, 454 U.S. 1093, 102 S.Ct.659, 70 L.Ed.2d 631 (1981)).
The Arkansas Supreme Court similarly found no abuse of discretion where a judge removed a seated juror and replaced him with an alternate after accepting the word of a jail trusty over the word of the removed juror. Lee v. State, 340 Ark. 504, 11 S.W.3d 553 (2000). The court explained that it “is true that this matter was decided largely as one of credibility, but this court has consistently held that the trial court is in the best position to judge the credibility of the witnesses and to resolve any conflicts in that testimony.” Id. At 515, 11 S.W.3d at 559-60.
Appellant fails to demonstrate that the trial judge’s removal of Mr. Black was an abuse of discretion. The trial judge was faced with a conflict between Mr. Black’s silence during voir dire concerning his knowledge of and dealings with a prosecution witness, and the detective’s testimony that he had arrested Mr. Black’s son in Mr. Black’s presence and that there was a confrontation that was unpleasant.
The impartiality of a juror is a question of fact for the trial court to determine in its sound discretion. See Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982). The trial court has much latitude and discretion in passing on the qualifications of jurors, and unless abused, its action will not be reversed on appeal. Franklin v. Griffith Estate, 11 Ark. App. 124, 666 S.W.2d 723 (1984). The trial court had no duty to determine that Mr. Black had been untruthful in voir dire before removing him. See Arkansas Power & Light Co. v. Bolls, 48 Ark. App. 23, 888 S.W.2d 319 (1994) (holding that a trial court did not abuse its discretion in granting a new trial although juror’s apparently unintentional failure to disclose disqualifying information was not done knowingly); cf. Ark. Code Ann. § 16-31-107 (Repl. 1999) (effect of unqualified juror upon verdict or indictment); see also Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995) (finding no abuse of discretion to remove juror and replace with alternate to avoid appearance of impropriety).
Therefore, we conclude that the trial court did not abuse its discretion in removing Mr. Black from the jury. Furthermore, it has been held that an appellant must show prejudice when the trial court removes a juror and seats an alternate in a juror’s place because we will not reverse for harmless error. Heinze v. State, 309 Ark. 162, 827 S.W.2d 658 (1992). A litigant is not entitled to the service of a particular juror and the erroneous rejection of a competent juror is not prejudicial, unless it is shown that a biased or incompetent juror replaced the rejected juror. E.g. Strode v. State, 259 Ark. 859, 537 S.W.2d 162 (1976). Appellant’s failure to demonstrate prejudice would therefore preclude reversal even had the trial court’s action in replacing Mr. Black been error.
Appellant’s second argument is that he is entitled to reversal because his right to due process was violated when the prosecution allegedly committed misconduct in an attempt to taint witnesses. On January 13, 1999, Carl Strickland, appefiant’s brother, stated under oath that appellant told him he had pushed the victim from his truck while driving thirty miles per hour. On that same date, appellant’s mother made a similar statement. Later, when speaking with appellant’s counsel, the Stricklands recanted the statements that they had given.
When the prosecution learned from defense counsel that the Stricklands had changed their stories from what they had previously stated under oath, he subpoenaed them and questioned them again under oath. This time, they said that appellant had not told them that he pushed the victim from his truck. The prosecutor had them arrested for perjury but did not file charges against them.
Before testifying at trial, the Stricklands testified outside the presence of the jury that they were willing to testify truthfully at trial. At trial, both testified that appellant said the victim jumped from his truck. The prosecution impeached them with their prior inconsistent statements, where they said appellant had told them that he pushed the victim from the truck. The trial judge instructed the jury that they were to consider those statements only for impeachment purposes. Appellant insists that “the situation was fraught with coercion” and that it “is hard to imagine a more oppressive atmosphere under which to call a witness.” He urges that this circumstance on its own is enough to shock the conscience and warrant a retrial of the matter. We disagree.
The record does not support appellant’s claim that the witnesses felt coerced to testify in a manner sought by the prosecution. Both witnesses testified in favor of appellant and in contrast to sworn statements they made soon after the incident. We find no prejudice to the appellant and no abuse of discretion on behalf of the trial judge.
Accordingly, we affirm.
Jennings, Robbins, Bird, Vaught, and Crabtree, JJ., agree.
Hart, Griffen and Neal, JJ., dissent. | [
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Andre LAYTON ROAF, Judge.
In this case, we are asked to review the chancellor’s division of property pursuant to a divorce. Two particular matters are at issue: 1) whether appellant Marilyn Dial is entided to an interest in appellee Jesse Dial’s deferred retirement option plan, and 2) whether Marilyn Dial is entitled to an interest in a home owned by Jesse Dial prior to the marriage. We affirm the chancellor’s ruling with regard to the home, but reverse his ruling on the deferred retirement option plan.
Marilyn and Jesse Dial were divorced on April 5, 2000, after fourteen years of marriage. In the divorce decree, the chancellor divided the couple’s marital and nonmarital property in a relatively equal manner. Among the items designated as nonmarital property were a home owned by Mrs. Dial prior to marriage and a home owned by Mr. Dial prior to marriage. Each party was awarded his or her home, free and clear of the other’s interest. Most of the other property that had been owned by Mr. and Mrs. Dial was divided as marital property, including a checking account, certain funds in a credit union account, a certificate of deposit, a prepaid burial account, and each party’s retirement benefits. Mr. Dial was awarded a 50 percent interest in Mrs. Dial’s monthly retirement benefits, and Mrs. Dial was awarded a 22.5 percent interest in Mr. Dial’s monthly retirement benefits, which represented her one-half interest in those benefits that accrued during the marriage. However, Mrs. Dial was awarded no interest in Mr. Dial’s deferred retirement option plan (DROP) account. On appeal, she contends that the chancellor erred in failing to award her a share of the DROP account and that he erred in failing to award her any interest in the home Mr. Dial owned prior to marriage.
Before reaching the, merits of the case, we address the issues presented by appellee Jesse Dial’s motion to dismiss the appeal. According to Mr. Dial, Mrs. Dial has accepted certain benefits under the divorce decree, thereby rendering moot the issues she now raises on appeal. In particular, he refers to her receipt of $13,019.83, representing her share of the above-mentioned cash accounts, and her procurement of a qualified domestic relations order (QDRO) entitling her to 22.5 percent of his monthly retirement benefits.
In support of his motion, Mr. Dial cites the cases of Hendrix v. Winter, 70 Ark. App. 229, 16 S.W.3d 272 (2000), DeHaven v. T & D Dev., Inc., 50 Ark. App. 193, 901 S.W.2d 30 (1995), and Lyle v. Citizen’s Bank of Batesville, 4 Ark. App. 294, 630 S.W.2d 546 (1982), all of which stand for the proposition that if an appellant voluntarily pays a judgment, then an appeal from that judgment is moot. These cases are not applicable, however, because Mrs. Dial is not appealing from a judgment she has paid. More on point are those cases that recognize that an appellant waives her right to appeal once she accepts a benefit that is inconsistent with the relief she seeks on appeal. See Wilson v. Fullerton, 332 Ark. 111, 964 S.W.2d 208 (1998); Shepherd v. State Auto Prop. & Cas. Ins. Co., 312 Ark. 502, 850 S.W.2d 324 (1993); Thomas v. Thomas, 68 Ark. App. 196, 4 S.W.3d 517 (1999). The general purpose behind the rule set forth in Wilson, Shepherd, and Thomas is that a party should not be able to enjoy tbe fruits of a judgment and at the same time appeal that judgment. See Reynolds v. Reynolds, 861 S.W.2d 825 (Mo. App. 1993). However, courts have applied this rule less strictly in divorce cases. See id.; see also 5 Am. Jur. 2d Appellate Review § 636 (2d ed. 1995).
In Thomas v. Thomas, supra, we held that a person may accept part of the benefits of a divorce decree and appeal the remainder, if the part accepted and the part appealed from are independent. Here, the issues appealed from are undoubtedly independent of the cash benefits that Mrs. Dial has accepted as her share of certain marital accounts. The question is closer as to the retirement benefits awarded to her by the QDRO. Nevertheless, we do not find Mrs. Dial’s action in seeking the QDRO to be inconsistent with her arguments on appeal. There is no question that she is entitled to receive 22.5 percent of Mr. Dial’s general retirement benefits, no matter what the outcome of this appeal. Therefore, she was within her rights to ensure her ability to begin receiving those benefits upon Mr. Dial’s retirement.
Mr. Dial argues further that, by accepting benefits under the judgment, Mrs. Dial has restricted our ability and the chancellor’s ability to exercise flexibility in property division, should we determine that error occurred below. In reviewing this case, we have not found that to be a concern. The chancellor divided all marital property equally, returned to each party the property he or she owned prior to marriage, and awarded no alimony or child support that might be affected by a change in property division. Under the facts of this particular case, Mrs. Dial’s acceptance of benefits pending appeal has not impeded our ability, nor should it impede the chancellor’s ability, to effect an equitable division of property upon reversal. The motion to dismiss is denied.
Turning now to the merits of the case, the first issue concerns Mrs. Dial’s claim to a share of Mr. Dial’s DROP account. During the parties’ marriage, Mr. Dial was an employee of the Arkansas State Highway and Transportation Department. On October 21, 1998, after thirty years of service, Mr. Dial became eligible for retirement. However, instead of retiring, he continued to work for the Highway Department and began participating in the Arkansas State Highway Employees’ Deferred Retirement Option Plan. This plan allows an employee to continue working for up to five years while receiving retirement benefits as though he were retired. See Ark. Code Ann. §§ 24-5-201 to 204 (Repl. 2000). Those benefits are placed into an account and, when the employee actually retires, he may withdraw the accumulated benefits either as a lump sum or in annuity payments. Beginning in October 1998, monthly payments of $1,768.97 were placed into Mr. Dial’s DROP account. As of December 31, 1999, the balance in the account was $25,609.10.
With respect to the division of property in a divorce case, we review the chancellor’s findings of fact and affirm unless those findings are clearly erroneous. Jablonski v. Jablonski, 71 Ark. App. 33, 25 S.W.3d 433 (2000). A finding is clearly erroneous when, although there is evidence to support it, we are left, on the entire evidence, with a firm conviction that a mistake has been committed. Hooper v. Hoover, 70 Ark. App. 215, 16 S.W.3d 560 (2000).
In his initial letter ruling, the chancellor did not refer to the funds in Mr. Dial’s DROP account. Instead, he simply divided Mr. Dial’s retirement benefits by splitting them proportionally according to the number of years of marriage (fourteen) that coincided with the number of years of Mr. Dial’s service (thirty), resulting in a figure of 45 percent. Mrs. Dial’s one-half share was then determined to be 22.5 percent. This is the method approved by our supreme court in Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986), and Marshall v. Marshall, 285 Ark. 426, 688 S.W.2d 279 (1985). Following entry of judgment, Mrs. Dial apparently asked for clarification regarding the funds in the DROP account. The chancellor then addressed the issue and declined to award her a separate interest in the account.
Mrs. Dial argues on appeal that she should have been awarded 50 percent of the funds held by Mr. Dial in his DROP account at the time of the divorce. We agree. Had the funds in the DROP account been paid directly to Mr. Dial during the marriage and placed by him into an ordinary savings account, they would unquestionably be considered marital property subject to division. The fact that Mr. Dial has chosen to postpone enjoyment of those funds does not destroy Mrs. Dial’s interest in them. See Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984). We therefore hold that any money accumulated in the DROP account during the marriage, that is, prior to entry of the April 5, 2000 divorce decree, constitutes marital property of which Mrs. Dial is entitled to a 50 percent interest. Marital property means all property acquired subsequent to marriage, with certain exceptions not applicable here. See Ark. Code Ann. § 9-12-315(b) (Repl. 1998). Further, it is proper to ascertain the extent of marital property and evaluate it as of the time of divorce. See Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987).
In light of our holding, we reverse and remand with directions to the chancellor to award Mrs. Dial her 50 percent interest in the money accumulated in the DROP account as of April 5, 2000, and to amend any orders or decrees, including QDROs, to the extent necessary to comply with this opinion.
The remaining issue on appeal concerns the chancellor’s decision not to award Mrs. Dial any interest in Mr. Dial’s home that he owned prior to the marriage. Mr. Dial and his former wife (now deceased) purchased their home in 1977, with the aid of a twenty-year, $25,000 mortgage. Mrs. Dial and her former husband purchased their home in 1980.. Mrs. Dial obtained the home in a divorce in 1984 and refinanced it with a $23,000 mortgage in 1985. Upon the marriage of Mr. and Mrs. Dial, they decided to live in Mr. Dial’s home. Mrs. Dial rented her home for $300 to $400 per month throughout the marriage. The monthly rent payments were enough to cover the mortgage payments and the house’s insurance and taxes.
Several improvements were made to Mrs. Dial’s house during the marriage, including the installation of a concrete slab and awning in the backyard, installation of central heat and air, new carpet and linoleum, repainting four times, and installation of a new roof (for which insurance paid one-half). Improvements were also made to Mr. Dial’s house during the marriage, including the construction of a shop building, installation of central heat and air, new carpet, refinishing of walls and cabinets, enclosing the carport, and new windows and doors. In addition, there was considerable debt reduction on both houses. Mr. Dial’s mortgage was paid off in 1997; Mrs. Dial’s was nearly paid off at the time of the divorce.
The chancellor found that both parties’ homes were of nearly equal value with about equal debt reduction and that approximately the same amount of marital funds had been expended on each house. He therefore ordered that each party have the house that he or she owned prior to marriage free from the other’s interest. Mrs. Dial contends that the chancellor erred because, while the debt reduction and improvements on her house were paid for by rentals generated by the house, the debt reduction and improvements on Mr. Dial’s house were paid for with marital funds.
A chancellor is given broad powers to distribute both marital and nonmarital property to achieve an equitable division. Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993). At the time of the divorce, all nonmarital property shall be returned to the party who owned it prior to marriage unless the court shall make some other division it deems equitable. See Ark. Code Ann. § 9-12-315(a)(1)(B)(2) (Repl. 1998). However, a chancellor may find that a non-owning spouse is entided to some benefit by reason of marital funds having been used to pay off debts on the owning spouse’s property, Box v. Box, supra, or by reason of marital funds having been used to improve the owning spouse’s property. See Camp v. Camp, 18 Ark. App. 87, 710 S.W.2d 842 (1986). Our property division statute does not require mathematical precision in property distribution but only that property be distributed equitably. See Hoover v. Hoover, supra. The statute applies to the distribution of both marital and nonmarital property.
We cannot say that the chancellor’s division of nonmarital property in this case was clearly erroneous. There was testimony from Mr. Dial that, at times, the rentals generated by Mrs. Dial’s house were not enough to pay for the improvements and repairs to the house. Further, the parties maintained separate checking accounts beginning five or six years into the marriage and, according to Mr. Dial, the debt reduction and improvements on his home were paid for strictly by him from that time forward. The chancellor’s balancing of equities on this matter will not be disturbed.
Affirmed in part; reversed and remanded in part.
Griffen and Vaught, JJ., agree.
It is noted that Mrs. Dial also had the benefit of living in the house. | [
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Terry Crabtree, Judge.
The appellant, Nathanael Wagner, appeals from an order of the Craighead County Chancery Court granting the appellee, Angelique Wagner, permission to move from Jonesboro, Arkansas, to Naples, Florida, with the parties’ minor child. On appeal, appellant alleges that the chancellor erred in granting appellee’s motion to relocate with their minor child to Naples, Florida. We affirm.
On July 18, 1996, the parties were divorced by decree of the Craighead County Chancery Court. Appellee was granted custody of the parties’ minor child, Sierra Danielle Wagner, born on September 23, 1991, during the parties’ marriage. Appellant was awarded visitation and ordered to pay child support. On July 31, 1998, appellant filed for a modification of child custody. On July 12, 1999, an agreed order was entered which granted appellant additional visitation by allowing him one weeknight of overnight visitation. Custody remained with appellee.
On October 12, 1999, appellee filed a motion requesting permission to relocate with the minor child to Naples, Florida. Appel-lee stated in her petition that she had a job opportunity in Florida, and as such it was in the best interest of the child to allow the relocation. Appellant answered the motion and objected to appel-lee’s proposed relocation. Appellant stated that appellee’s desire to relocate was motivated by her desire to limit ids visitation. On October 28, 1999, appellant filed a petition to change custody. On November 9, 1999, appellee filed an answer to appellant’s petition to change custody, and on November 19, 1999, appellee filed an amended answer, which affirmatively requested an increase in child support.
On August 15, 2000, an order was entered in which the chancellor ruled as follows: 1) he granted appellee’s motion to relocate with the parties’ minor child to Naples, Florida, and awarded appellant visitation with the child each school spring break, one-half of the Christmas break, and extended summer visitation, including having the child every summer from one week after school is out until one week before school commences with the exception that appellee is entitled to one week during this time for vacation, and all other reasonable visitation; 2) he denied appellant’s petition to change custody; 3) he granted appellee’s motion to increase child support; and 4) he granted appellee attorney’s fees in the amount of $750 in defending the change-of-custody petition. It is from this order that appellant brings this appeal.
In chancery cases we review the case de novo, but we do not reverse the findings of the chancellor unless it is shown that they are clearly erroneous or clearly against the preponderance of the evidence. Presley v. Presley, 66 Ark. App. 316, 989 S.W.2d 938 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite conviction that a mistake was committed. Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997). In child-custody cases we give special deference to the chancellor’s position to evaluate what is in the best interests of the child. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). The best interests of the child remains the ultimate objective in resolving child custody and related matters. Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994).
In Staab v. Hurst, supra, this court set forth five factors that should be considered in determining whether to allow a custodial parent to move from the state of the noncustodial parent. These factors are:
(1) the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children; (2) the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the non-custodial parent; (3) whether the custodial parent is likely to comply with substitute visitation orders; (4)the integrity of the non-custodial parent’s motives in resisting the removal; and (5) whether, if removal is allowed, there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parent relationship with the non-custodial parent.
Id. Before a chancellor is to consider the Staab factors, the custodial parent bears the threshold burden to prove some real advantage to the children and himself or herself in the move. Wilson v. Wilson, 67 Ark. App. 48, 991 S.W.2d 48 (1999).
On the threshold question, appellant argues that appellee failed to prove any real advantage to their minor child for appellee to move to Florida. Appellee testified that she wants to move to Naples, Florida, because she has been offered a job as manager of a dry-cleaning business owned by her mother. This job would pay her ten dollars per hour, almost doubling her current income. Appellee also testified that she intends to enroll at Edison Community College in Naples, Florida, where she would take courses to become a dental hygienist. We hold that the fact that appellee would have a job making almost twice as much income as she is currently making taken together with the educational opportunity is enough to show that the chancellor was not clearly erroneous in finding that the move would have a real advantage for appellee and the child.
As for the first Staab factor, appellee, testified that along with almost doubling her income, the job in Florida would allow her more time to spend with her child. Appellee, or appellee’s mother, would care for the child during after-school hours, thus the child will no longer have to go to day-care. Appellee’s mother testified that appellee would be given bonuses based on performance, and would be given the opportunity to own the dry-cleaning business. Appellee’s mother has further offered to arrange appellee’s work schedule around appellee’s school, and the child’s school, allowing appellee the opportunity to attend college, and to spend more time with her child. There was ample evidence supporting the chancellor’s conclusion that the relocation would be a resulting advantage, and that both appellee’s fife, and that of the child, would be improved with the move.
As for the second factor, appellant argues that the chancellor erred in his finding that the motives of the appellee were not inspired by the desire to defeat or frustrate appellant’s visitation. Appellant points to the fact that appellee filed her motion to relocate three months after an order was entered expanding his visitation to include one weeknight of overnight visitation. Appellant also points out that appellee testified that she wants to move to Florida to get away from appellant. We cannot say that the parties’ past problems with visitation are alone dispositive of the questions of the integrity of appellee’s motives for seeking the move. See Friedrich v. Bevis, 69 Ark. App. 56, 9 S.W.3d 556 (2000). As such we must defer to the superior position of the chancellor to evaluate the witnesses and their testimony. See id. Thus, we find no error.
As for the third factor, the chancellor found that appellee will likely comply with the substitute visitation order. There was no evidence that appellee has ever interfered with any court orders, including visitation orders.
As for the fourth factor, the chancellor found that appellant’s motives in resisting the move were reasonable and not inspired by any desire to prevent appellee from progressing or enjoying an improvement in her quality of life. Appellant stated that he opposes the child moving to Florida, because the child has always lived in Jonesboro, the child has always lived close to him and his family, and because the move would separate the child from him. As such, we find no error with respect to this factor.
With respect to the fifth factor, the chancellor properly awarded appellant extended summer visitation, one-half Christmas visitation, spring break visitation, and all other reasonable visitation. He further ordered that the costs of transportation be shared equally between the parties for the specific visitation periods noted, with appellant being responsible for all costs incurred in exercising other visitation, and appellee being responsible for transportation should she exercise the one week vacation period during the summer. Giving due regard to the factors presented in Staab, we find that the chancellor’s decision to allow appellee to move with the parties’ child to Florida was not clearly against the preponderance of the evidence.
Affirmed.
Stroud, C.J., and Hart, J., agree. | [
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JOSEPHINE Linker Hart, Judge.
Appellant, Derrick Lamont Witherspoon, who was charged by an information filed in circuit court with the crimes of capital murder and first-degree battery, brings this interlocutory appeal from the circuit court’s denial of his motion to transfer the case to juvenile court. Appellant argues on appeal that the circuit court clearly erred in denying his motion to transfer because the decision was not supported by clear and convincing evidence and because the circuit court considered improper evidence in making the decision. We affirm.
The felony information charged appellant, appellant’s two brothers, Lonnie Beulah and Eric Beulah, and Erik Bullock with capital murder, asserting that, with premeditated and deliberated purpose, they caused the death of Heaven Pace. The information further charged that they committed the crime of first-degree battery by causing physical injury to a pregnant woman, Shiwona Pace, causing her to suffer a miscarriage or stillbirth as a result of the injury. At the juvenile-transfer hearing, Charles Weaver, a homicide detective with the Little Rock Police Department, testified that he investigated the death of the unborn child. He stated that, on August 26, 1999, at 11:59 p.m., police responded to a report of a home-intrusion robbery. Shiwona Pace, who was expected to deliver her child the next day, was taken to a hospital for her injuries, where it was determined that her child was dead.
After learning of the child’s death, Weaver went to the crime scene and spoke to Erik Bullock. Appellant objected to Weaver’s testimony regarding what he was told by Bullock, arguing that such testimony was hearsay and its admission violated his right to confront witnesses against him. The State noted that Bullock was a codefendant, and the court overruled appellant’s objections. According to Weaver, Bullock told him that when he and Shiwona Pace entered the residence, three or four black males who were in the residence removed him to the bedroom and left Pace in the living room, and they were both beaten.
Weaver testified that his investigation led him to appellant, appellant’s older brother, Eric Beulah, and appellant’s younger brother, Lonnie Beulah. Weaver told the court that during an interview with appellant at the Pine Bluff Police Department, appellant gave a statement to police regarding the homicide. When appellant objected to Weaver’s testimony, arguing that his statement to police should not be admitted into evidence because it was not voluntarily, knowingly, and intelligently given, the circuit court overruled the objection.
According to Weaver, appellant explained that he was approached by Eric Beulah, who told him that Bullock wanted them to beat up a woman because the woman was attempting to obtain money from Bullock by claiming that Bullock was the father of her child. Appellant was to go to Little Rock and wait for Bullock and Pace at Bullock’s residence. Once there, they were to beat Pace. Appellant admitted that he pulled Bullock and Pace into the house, forced them to the ground, and “slapped on” Pace. Appellant stated that they possessed a BB gun and he wore a mask that resembled pantyhose and was black in color. Further, he thought he would be compensated by Bullock and he participated because he believed he would be paid.
On cross-examination, Weaver testified that Detective Eric Knowles was also present during the taking of appellant’s statement. Appellant then argued that the court should not consider appellant’s statement because the statement was involuntarily obtained, and the State had the burden of producing Detective Knowles at the hearing. The court overruled the objection, noting that a motion to suppress had not been filed.
The State established appellant’s date of birth as December 15, 1981; thus, appellant was seventeen years of age at the time of the crime and eighteen at the time of the hearing. Through various exhibits, the State established that appellant was adjudicated a delinquent on three separate occasions. His first adjudication occurred on May 2, 1997, for theft of property, and he was placed on probation. On October 14, 1997, he was adjudicated a delinquent for aggravated robbery, and, on the same day, he was adjudicated a delinquent for theft of property. Appellant was placed on probation for two years for the two adjudications. On November 18, 1998, appellant’s probation was revoked for failure to comply with the conditions of his probation, and, on December 1, 1998, appellant was committed to the Division of Youth Services for an indeterminate period of time, with a recommendation that he be placed in the serious-offender program. The commitment order noted that appellant “has been on intensive probation, refuses to obey probation rules, refuses to report for drug screens, [and] is missing school.” The order further noted that appellant had been to drug treatment but had not gone to Alcoholic or Narcotics Anonymous meetings.
At the conclusion of the hearing, the circuit court denied appellant’s motion to transfer. In a written order denying the motion to transfer, the court stated that because of “the seriousness of the offense and the degree of violence employed in the commission of the offense, combined with [appellant’s] juvenile record which indicates that he has previously been adjudicated delinquent, this Court finds by clear and convincing evidence that [appellant] should be tried as an adult ... and hereby denies the Motion to Transfer to Juvenile Court.”
On appeal from the circuit court’s denial of his motion to transfer, appellant argues that he was denied a meaningful hearing because there was no evidence to substantiate the serious and violent nature of the charges, noting that the victim did not testify at the hearing “and all other testimony was improperly admitted and considered by the trial court over objection.” He argues that the circuit court should not have considered Weaver’s testimony regarding what he was told by Bullock because such testimony was hearsay and denied appellant his right to confront witnesses against him. He contends that such testimony went not only to the seriousness of the offense but also to the degree of violence employed, both of which were reasons cited by the circuit court for retaining jurisdiction. He also argues that Weaver’s testimony regarding appellant’s statement to the detectives should not have been considered because Detective Knowles was present during the taking of the statement and the State failed to produce Knowles at the hearing on the motion to transfer. Finally, he argues that the court did not consider other factors which he contends were favorable to him.
In determining whether to retain jurisdiction or to transfer the case, the circuit court considers all of the following factors:
(1) The seriousness of the alleged offense and whether the protection of society requires prosecution as an extended juvenile jurisdiction offender or in circuit court;
(2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
(3) Whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted;
(4) The culpability of the juvenile, including the level of planning and participation in the alleged offense;
(5) The previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence;
(6) The sophistication or maturity of the juvenile as determined by-consideration of the juvenile’s home, environment, emotional attitude, pattern of living, or desire to be treated as an adult;
(7) Whether there are facilities or programs available to the court which are likely to rehabilitate the juvenile prior to the expiration of the court’s jurisdiction;
(8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense;
(9) Written reports and other materials relating to the juvenile’s mental, physical, educational, and social history; and
(10) Any other factors deemed relevant by the court.
Ark. Code Ann. § 9-27-318(g) (Supp. 1999). The circuit court is not required to enumerate ail ten factors in its written findings. See Beulah v. State, 344 Ark. 528, 535, 42 S.W.3d 461, 466 (2001). “The circuit court’s failure to specifically mention certain evidence presented by the appellant in its order does not mean that the court ignored the evidence or failed to consider it.” Id. “Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shah enter an order to that effect.” Ark. Code Ann. § 9-27-318(h) (Supp. 1999); see also Ark. Code Ann. § 9-27-325(h)(2)(C) (Supp. 1999). The circuit court’s decision on whether to transfer the case to juvenile court will not be reversed unless the decision is clearly erroneous. See Beulah, 344 Ark. at 533, 42 SW.3d at 464. And, generally, the Arkansas Rules of Evidence apply to juvenile proceedings. See Ark. Code Ann. § 9-27-325(e) (Supp. 1999).
Even assuming, arguendo, that Weaver’s testimony regarding what he was told by Bullock and his testimony regarding appellant’s statement should not have been considered by the circuit court, we would still consider whether prejudice resulted from the admission of such evidence. See Ring v. State, 320 Ark. 128, 132, 894 S.W.2d 944, 946 (1995) (determining that there was no prejudice resulting from the circuit court’s admission of a confession at the transfer hearing). Even though the victim did not testify, and despite appellant’s contention that all other testimony was improperly admitted and considered by the circuit court over objection, Detective Weaver did present testimony regarding the seriousness of the offense and the degree of violence employed. Specifically, Weaver testified, without appellant’s objection, that the case involved a home intrusion that resulted in injuries to one victim and the death of the victim’s unborn child. That testimony alone sufficed to establish the serious and violent nature of the crimes. See Brown v. State, 330 Ark. 603, 607, 954 S.W.2d 273, 275 (1997)(find-ing there was a “meaningful hearing” when the evidence was presented through the testimony of police officers). Moreover, we also note that Weaver’s testimony regarding what he was told by Bullock did not, as appellant contends, pertain to either the seriousness of the offense or the degree of violence employed. Bullock told Weaver that three or four black males entered the residence and beat Pace, and he did not describe in any detail the degree of violence employed or the seriousness of the offense. Again, even if we consider this testimony, we fail to see how appellant was prejudiced by it. Thus, the circuit court did not clearly err in denying appellant’s motion to transfer. ■
Furthermore, the State presented, without objection from appellant, evidence regarding appellant’s prior juvenile adjudications. We note that appellant’s age, his three adjudications as a delinquent, his failure to comply with the conditions of his probation, and his commitment to the Division of Youth Services, amply shows the unlikelihood of rehabilitation through treatment of appellant as a juvenile. See Jongewaard v. State, 71 Ark. App. 269, 277-78, 29 S.W.3d 758, 762-63 (2000)(discussing the juvenile’s previous history, his likelihood of rehabilitation, and his age). While appellant argues that the circuit court did not consider factors favorable to him, as we previously noted, the Arkansas Supreme Court has stated that the circuit court’s failure to mention evidence does not mean that the court failed to consider it. For this reason also, we conclude that the circuit court’s decision to deny appellant’s motion to transfer the case to juvenile court was not clearly erroneous.
Finally, we also conclude that it was not error for the circuit court to consider the allegedly involuntary confession at the hearing, and that, in any event, we would not have had jurisdiction to consider whether a motion to suppress was improperly granted. Juvenile transfer hearings are held for the purpose of “determining] whether to retain jurisdiction or to transfer the case to another court having jurisdiction.” Ark. Code Ann. § 9-27-318(e) (Supp. 1999). The statute does not suggest that the court should also consider at that time motions to suppress. As the Arkansas Supreme Court has previously noted, not even matters such as a determination of probable cause are to be determined at juvenile-transfer hearings. See Brown, 330 Ark. at 607, 954 S.W.2d at 275. Clearly, the record in this case is not adequately developed for a determination of whether the confession was given involuntarily, and no motion to suppress was presented to the court prior to the hearing. We note that objections to the use of any evidence, including evidence of involuntary confessions or admissions of a defendant, on the grounds that the evidence was illegally obtained, are to be made by a motion to suppress filed not later than ten days before the date set for the trial. See Ark. R. Crim. P. 16.2(a)(3), (b) (2000).
Moreover, on appeal from the denial of a motion for transfer, this court may not consider a denial of an oral motion to suppress made at the hearing. The statute providing for appeals describes only appeals “from an order granting or denying the transfer of a case from one court to another court having jurisdiction over the matter.” Ark. Code Ann. § 9-27-318(1) (Supp. 1999).
Affirmed.
Neal and Vaught, JJ., agree.
Lonnie Beulah was also charged in circuit court with these crimes and sought transfer of his case to juvenile court. The Arkansas Supreme Court recently affirmed the circuit court’s denial of Beulah’s motion to transfer. See Beulah v. State, 344 Ark. 528, 42 S.W.3d 461 (2001). | [
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Olly NEAL, Judge.
Richard Wayne McCormick entered a conditional plea of guilty to conspiracy to manufacture methamphetamine and simultaneous possession of drugs and firearms after a Washington County Circuit Court denied his motion to suppress. He attempted to reserve his right to appeal pursuant to Ark. R. Crim. P. 24.3, and argues on appeal that 1) this court should adopt a de novo standard of review for search and seizure cases; 2) the totality of circumstances in this case fail to adequately show the informant’s basis of knowledge or reliability; and 3) the affidavit failed to demonstrate reasonable cause for a nighttime search. In an unpublished opinion, handed down on February 14, 2001, we held that McCormick failed to strictly comply with the requirements of Rule 24.3(b) of the Arkansas Rules of Criminal Procedure and dismissed his appeal for lack of jurisdiction. On rehearing, McCormick argues that the court of appeals erred in dismissing his appeal. We now grant rehearing, and affirm on the merits in a substituted opinion.
Rehearing Facts
On October 16, 1999, McCormick entered a conditional plea that was set aside because of a disagreement in the recommendation. On January 12, 2000, he entered a second conditional plea to the charges. The plea was accepted by the trial court and appellant received a sentence of 300 months in the Arkansas Department of Correction for the conspiracy charge with sixty months suspended, and 360 months of suspended sentence on the simultaneous possession charge.
At the time of the second entry, the trial court asked McCormick, “Do you understand the effect of a guilty plea if I accept it? One, there’s no appeal. Second, you cannot withdraw your plea at a later date and be given a trial.” McCormick responded, “Yes, sir.” The trial court also told appellant, “in addition you waive any objection to errors in this proceeding, with the exception of the suppression issue which you’re preserving under Rule 24.3, [emphasis added] I believe.” Following appellant’s counsel’s affirmative answer, the trial court asked the prosecutor:
Now it’s my understanding that the defendant will appeal my decision on the suppression issue. What is the state recommending in terms of an appeal bond?
The prosecutor made a recommendation.
The prosecutor’s only involvement in the proceeding appears to have been her recommendation of a sentence and her opinion on whether to allow an appeal bond. McCormick then filed a notice of appeal that reflected that he was appealing pursuant to Rule 24.3.
We reasoned, in our February 14, 2001 opinion, that although the trial court observed that it understood appellant would appeal its ruling on the motion to suppress, the record does not reveal that the prosecutor made any comments that demonstrated her consent to the conditional plea, and consequently, because we could not find that McCormick “strictly complied” with the requirements of Rule 24.3(b), we dismissed the appeal for lack of jurisdiction.
Rehearing Argument
McCormick argues that the prosecutor’s silence must be taken as assent to the statement. Citing Holifield v. Arkansas Alcoholic Beverage Control Bd., 273 Ark. 305, 619 S.W.2d 621 (1981), he analogizes the prosecutor’s silence to Arkansas’s invited-error doctrine where it is settled law that a party cannot acquiesce in silence and then raise an issue on appeal, and asserts that it is error for this court to raise this argument sua sponte on appeal where the State would be barred from raising it. McCormick contends that the court of appeals decision amounts to the imposition of new conditions for making a conditional guilty plea. He argues that the creation of this new procedural default is a “classic violation of due process of law,” a violation of equal protection, and a deprivation of his Sixth Amendment right to be heard and assisted by counsel. We agree that to require more of the prosecutor to demonstrate consent amounts to imposing new conditions for making a “conditional guilty plea.”
Rule 24.3(b) of the Arkansas Rules of Criminal Procedure reads as follows:
With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendré [contendere], reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.
When Rule 24.3(b) is not strictly complied with, this court lacks jurisdiction to hear an appeal, even when the record reveals that the trial court attempted to enter a conditional plea. See Ray v. State, 328 Ark. 176, 178, 941 S.W.2d 427, 428 (1997). It has previously been held that Rule 24.3(b) requires a contemporaneous writing by the defendant, as well as proof that the conditional plea was approved by the trial court with the consent of the prosecuting attorney. See Barnett v. State, 336 Ark. 165, 984 S.W.2d 444 (1999).
Rule 24.3 does not specify the manner in which the State is to manifest its consent to the conditional guilty plea, so being present, contesting the objectionable aspects of the disposition of the case, and allowing the plea to be entered as a “negotiated plea of guilty” should be sufficient to preserve the suppression issue for appeal. Obviously, for a “negotiated” plea to exist it requires negotiation, and the only other interested party is the State. In contract law, manifestation of assent may be made by spoken words or by conduct. See Childs v. Adams, 322 Ark. 424, 909 S.W.2d 641 (1995); see also ERC Mortgage Group, Inc. v. Luper, 32 Ark. App. 19, 795 S.W.2d 362 (1990) (citing Restatement (Second) of Contracts § 19 (1981)). Here assent was manifested by the prosecutor showing up in court and acquiescing to the entry of the negotiated plea agreement. To hold otherwise would be to give the State the benefit of the bargain while simultaneously relieving it of its obligation to consent. In dismissing this appeal we engaged in improper interpretation of Rule 24.3, liberally construing it against the appellant, rather than strictly construing it in favor of him. Accordingly, we grant rehearing and decide this case on the merits.
Suppression Facts
On October 14, 1999, McCormick moved to suppress evidence seized pursuant to a nighttime search warrant that was executed on April 30, 1999. He alleged that the warrant was obtained without probable cause.
At the suppression hearing, Detective Danny Halfacre, a nineteen-year veteran of the Washington County Sheriffs Department who was currendy assigned as a DEA Drug Task Force officer, testified that on April 26, 1999, he received information from Lyle Johnson, an employee of the Spectrum Chemical Company ofFort Lauderdale, Florida. According to Det. Halfacre, Johnson had been indicted for drug offenses and was working with the DEA to obtain a lighter sentence. Johnson informed the DEA that Richard Osburn of Fayetteville had purchased 500 grams of red phosphorus. Det. Halfacre stated that the amount ordered was unusual; typical orders are either for smaller or much larger amounts. He also found that the order was being sent to a residential address in the name of a business that did not exist at that location. Det. Halfacre testified that while red phosphorus had some legitimate uses in the manufacture of flares, fireworks, or explosive devices, it was also commonly used as a catalyst in the manufacture of methamphetamine. Det. Halfacre learned from Osburn that he had ordered the chemical for McCormick, who was Osburn’s methamphetamine supplier. Osburn told him that he had regularly purchased methamphetamine from McCormick over the previous six months, that McCormick had numerous firearms in his residence, and that he had installed surveillance cameras on three sides of McCormick’s residence. Based on the information that they obtained from Osburn, Det. Halfacre stated that they sought to find methamphetamine, a lab or lab components, firearms, records, and formulas, all items commonly associated with manufacturing and delivery of methamphetamine. According to Det. Halfacre, he presented the warrant to Judge Reynolds at approximately 9:30 p.m., the judge signed it after putting him under oath, and the DEA office executed the warrant approximately two hours later. The affidavit was entered into evidence as an exhibit, as was the return with inventory. Among the items seized was a meth lab, various drug recipes, a night-vision device, guns, and ammunition, including so-called “cop-killer” bullets.
On cross-examination, Det. Halfacre stated that when he made contact with Osburn, Osburn was “panic stricken.” The detective admitted that Osburn initially insisted that he had ordered the red phosphorus to clean out drains in the apartment complex where he worked as a maintenance man, but “gradually,” over the course of the hour that Det. Halfacre spent with him, abandoned that story and admitted that he was procuring the chemicals for McCormick. Det. Halfacre also admitted that he threatened Osburn with jail, but told him that if he cooperated, he would not be arrested and he would ask the prosecutor not to prosecute him. According to Det. Halfacre, Osburn was not an informant, but rather, an unindicted co-conspirator. Det. Halfacre specifically testified that he put in the affidavit the fact that Osburn told him that he had purchased methamphetamine from McCormick the day before.
Judge Ray A. Reynolds testified that he was not concerned about the reliability of Osburn’s statements in the affidavit because he admitted to criminal activity, which was a statement against penal interest. He also stated that Det. Halfacre had confirmed the delivery of red phosphorus. Judge Reynolds stated that the affiant, Det. Halfacre, was well known by him, so his credibility was not an issue. He stated, however, that it would be important to him to know whether or not Osburn had made false statements to police, and it would be “nice” to know if Osburn was under the influence of drugs.
. Suppression Argument
Argument I: The Arkansas Appellate Courts apply the WRONG STANDARD OF REVIEW TO SEARCH AND SEIZURE ISSUES. The Court must review search and seizure questions de NOVO ON THE HISTORICAL FACTS UNDER THE FOURTH ■ Amendment
McCormick argues that the current standard of review is confusing and incorrectly applied. He contends that the required standard of review is de novo with independent review without virtual deference to the trial court’s determination. He asserts that instituting de novo review in Arkansas search and seizure cases will clarify the law. This argument is without merit.
First, it would necessarily require overruling Arkansas Supreme Court precedent, which the court of appeals is powerless to do. See Brewer v. State, 68 Ark. App. 216, 6 S.W.3d 124 (1999). Second, a virtually identical argument was placed before the supreme court last year when this court certified Stephens v. State, 342 Ark. 151, 28 S.W.3d 260 (2000), to the supreme court to consider this issue. Although the supreme court found the issue not to be squarely before it because it was raised for the first time in a reply brief, in dicta, it nonetheless stated that it did not believe that the current standard of review failed to comport with the U.S. Supreme Court’s holding in Ornelas v. United States, 517 U.S. 690 (1996). The supreme court declined a similar invitation to change the standard of review in State v. Howard, 341 Ark. 640, 19 S.W.3d 4 (2000), which they inexplicably did not reference in Stephens. We affirm on point I.
Argument IL The trial court erred in failing to grant
THE MOTION TO SUPPRESS BASED UPON THE FACT THAT THE TOTALITY OF CIRCUMSTANCES REFLECTED IN THE AFFIDAVIT FOR THE SEARCH WARRANT IN THIS CASE DID NOT ADEQUATELY SHOW THE INFORMANT’S BASIS OF KNOWLEDGE OR RELIABILITY
(VERACITY) OR THAT WHAT WAS DESIRED WOULD BE FOUND
McCormick argues that under Illinois v. Gates, 462 U.S. 213 (1983), search warrants based on informant hearsay must demonstrate facts under the totality of the circumstances test showing both the informant’s basis for knowing what he claims and why the information is believable. McCormick criticizes the affidavit as containing “self-serving, and therefore, essentially meaningless, comments about what the affiant knows about drug dealers, their habits, banking practices, and possession of records, money, firearms, etc., based on his experience which was regurgitated off a computer hard drive where the officer uses it again and again.” Citing Ark. R. Crim. P. 13.1(b), McCormick argues that the affidavit fails to satisfy the requirements of the Fourth Amendment because it does nothing to “set forth particular facts bearing on the informant’s reliability and...[to] disclose, as far as practicable, the means by which the information was obtained” or show when he acquired some of the information. McCormick asserts that the mere fact that Osburn was identified did not make him credible. He also contends that Osburn should not be deemed to be believable because he had a motive to falsify to save him from prison, had made false statements to police, and never “actually” made a true statement against penal interest. McCormick also claims that there was no stated “basis of knowledge” for most of the information except for the fact that Osburn claimed he delivered the red phosphorus and bought methamphetamine from McCormick for the last six months. Finally, McCormick asserts that Judge Reynolds was merely a “rubber stamp for the police.” These arguments are without merit.
In reviewing a case involving the suppression of evidence, we make an independent determination based upon the totality of the circumstances and reverse only if the ruling is clearly erroneous or against the preponderance of the evidence. Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999). In making this determination, we view the evidence in the light most favorable to the State and determine under our totality-of-the-circumstances analysis whether the issuing magistrate had a substantial basis for concluding that probable cause existed. Id. Under Ark. R. Crim. P. 13.1(d), “If the judicial officer finds . . . there is reasonable cause to believe that the search will discover persons or things specified in the application and subject to seizure, he shall issue a search warrant.” “Reasonable cause to believe” as defined in Rule 10.1(h) “means a basis for belief in the existence of facts which, in view of the circumstances under and purposes for which the standard is applied, is substantial, objective and sufficient to satisfy applicable constitutional requirements.”
We do not find the affidavit to be deficient. It is settled law that the issuing judge was entitled to consider Det. Halfacre’s experience when deciding to issue a warrant. See Flaherty v. State, 255 Ark. 187, 196, 500 S.W.2d 87, 93 (1973), cert. denied, 415 U.S. 995 (1974); see also Hale v. State, 61 Ark. App. 105, 111, 968 S.W.2d 627, 630 (1998). In the affidavit, Det. Halfacre stated that, on April 26, 1999, an employee of a chemical company in Florida told him that 500 grams of red phosphorus had been shipped to Osburn’s residence and Det. Halfacre knew from his years of experience that red phosphorus was a catalyst in the methamphetamine manufacturing process. When Det. Halfacre contacted Osburn, Osburn told him that he brought the red phosphorus to McCormick’s residence on April 28, 1999, and he admitted that he had purchased methamphetamine from McCormick “on a regular basis for six months or more.”
Contrary to McCormick’s bald assertions, the affidavit established that Mr. Osburn had provided accurate information. The self-incriminating nature of the information was alone sufficient to establish its accuracy. See, e.g., Maxwell v. State, 259 Ark. 86, 531 S.W.2d 468 (1976) (“[w]e unhesitatingly find that the mere fact that Hanis’ statement was self-incriminating was an adequate basis for according reliability and credibility to the informant”); Mock v. State, 20 Ark. App. 72, 78, 723 S.W.2d 844, 848 (1987) (“[t]he incriminating nature of a statement is itself a sufficient basis for finding it to be reliable”). Osburn admitted that he had purchased methamphetamine from McCormick, had purchased the red phosphorus for him, and had installed surveillance cameras at McCormick’s residence because McCormick feared a police raid. These admissions could have led to Osburn being prosecuted for possession of methamphetamine. Similarly unpersuasive is McCormick’s bald assertion that Osburn had a motive to falsify. He does not explain how false or unreliable information would help Osburn; if anything, it would motivate the police to try to make a case against Osburn. Finally, McCormick’s claim that Judge Reynolds was merely a “rubber stamp for the police” is completely baseless. The record indicates that the judge followed all procedures for the issuance of the warrant, and the judge’s and Det. Halfacre’s testimony that the judge rejected warrants when the affidavit did not articulate sufficient probable cause was uncontraverted. Accordingly, we affirm on point II.
Argument III: The affidavit for search fails to show REASONABLE CAUSE FOR A NIGHTTIME SEARCH, AND THE SEARCH SHOULD HAVE BEEN SUPPRESSED
Arkansas law allows for search warrants to be executed at night in three circumstances: 1) the place to be searched is difficult of speedy access; 2) the objects to be seized are in danger of imminent removal; or 3) the warrant can only be safely or successfully executed at night or under circumstances the occurrence of which is difficult to predict with accuracy. Ark. R. Crim. P. 13.2(c).
Except as hereafter provided, the search warrant shall provide that it be executed between the hours of six a.m. and eight p.m., and within a reasonable time, not to exceed sixty (60) days. Upon a finding by the issuing judicial officer of reasonable cause to believe that:
(i) the place to be searched is difficult of speedy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy; the issuing judicial officer may, by appropriate provision in the warrant, authorize its execution at any time, day or night, and within a reasonable time not to exceed sixty (60) days from the date of issuance.
In Townsend v. State, 68 Ark. App. 269, 6 S.W.3d 133 (1999), this court stated that an affidavit must set out facts showing reasonable cause to believe that circumstances exist which justify a nighttime search and conclusory language that is unsupported by facts is not sufficient.
In this case the warrant allowed for a nighttime search because the objects to be seized are in danger of imminent removal and because the warrant could not be safely executed during the day. There appears little in the record to support a claim that the objects to be seized were in danger of removal. The affidavit merely states, “It is further believed that the above described illegal items are in danger of being removed from said premises or destroyed.” The affidavit gives no reason for this belief. However, support is given for the claim that the warrant could safely be executed only at night. The affidavit stated that Osborn admitted to installing surveillance cameras around appellant’s home because he feared a police raid. Osborn’s statement that appellant had ordered motion detectors also indicates that appellant was aware that the cameras did not provide sufficient nighttime protection and that he was willing to correct their shortcomings. Moreover, Osborn told the officer that appellant had scattered weapons all over the house.
The question is whether the statement regarding security cameras and guns was sufficient to justify a nighttime search. Two cases are instructive on this point, Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998) and Townsend, supra. In Langford the court found sufficient basis where among other claims the defendant was believed armed and dangerous after threatening an informant with a semi-automatic weapon within the past week and the residence to be searched was located on a hill overlooking the only road that provided access to the property. In Townsend the court noted that there was legitimate concern for officer safety where the magistrate knew that the house to be searched was located on a cul-de-sac with only one way for the police officers to approach the house and that there were firearms and a vicious dog present at the house.
In light of Townsend and Langford there was a sufficient factual basis to support the execution of a nighttime search based on concern for officer safety.
Affirmed.
Hart, Crabtree, Baker, and Roar JJ., agree.
Jennings, J., concurs.
Pittman, Robbins, and Griffen, JJ., would deny. | [
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Olly Neal, Judge.
Leanna Napier appeals her jury conviction for third-degree battery for which she was ordered to serve thirty days in the Benton County Jail and fined $1,000 with $500 suspended for twelve months. Appellant’s sole point on appeal is that the trial court improperly instructed the jury in violation of the United States and Arkansas Constitutions’s prohibitions against ex post facto laws. We agree and reverse.
The State charged appellant with committing battery in the third degree on September 24, 1998. The Rogers Municipal Court found appellant guilty of the offense and appellant appealed the judgment of the Rogers Municipal Court to the Benton County Circuit Court on February 24, 1999. At the jury trial in the circuit court, Laura Kozial testified that appellant hit her with her fist, pulled out some of her hair and manipulated her previously injured shoulder causing her a “lot of pain.” Detective Michael Patton of the Rogers Police Department testified that on September 24, 1998, he was called to St. Mary’s Hospital to investigate a disturbance. Detective Patton stated that when he arrived he noticed that Ms. Kozial had a bald spot on her head that was visibly red. Detective Patton further testified that he found hair in another room of the hospital.
A person commits battery in the third degree if with the purpose of causing physical injury to another person, he causes physical injury to any person. Before the trial court charged the jury, appellant objected to the use of AMCI 2d 1307 which defines physical injury as “the impairment of physical condition or the infliction of substantial pain, or infliction of bruising, swelling, or visible marks associated with physical trauma.” This definition of physical injury is consistent with the definition of physical injury provided in the Arkansas Code. See Ark. Code Ann. § 5-1-102(14) (Supp. 1999). Appellant argued that because appellant was accused of committing the battery in 1998, the court should have defined physical injury as the Code defined it in 1998. In 1998 the Code defined “physical injury” as “the impairment of physical condition or the infliction of substantial pain” The trial court denied appellant’s objection to the instruction concluding that the instruction was procedural rather than substantive. From that ruling comes the present appeal.
The State responds that appellant has not preserved her argument for appeal. The State notes that appellant objected only on the basis that the court was giving the wrong definition of physical injury and did not explicitly state that giving the new instruction would violate the Arkansas and United States constitutions prohibitions against ex post facto laws.
Under our well-settled rule, this court does not consider issues raised for the first time on appeal. Skiver v. State, 37 Ark. App. 146, 826 S.W.2d 309 (1992). Even constitutional issues may'not be raised for the first time on appeal. Foster v. State, 66 Ark. App. 183, 991 S.W.2d 135 (1999).
We disagree with the State’s contention that appellant has failed to preserve her ex post facto argument for appeal. The record reveals that following colloquy between appellant’s attorney and the trial judge:
COURT: Make your record.
Mr. NORWOOD: Okay. The Court has told me in chambers that it is going to allow a- in the battery in the third degree, which AMCI 2d 1307, that you’re going to allow the definition of physical injury to read as follows:
Physical injury means the impairment of physical condition or the infliction of substantial pain, or infliction of bruising, swelling or visible marks associated with physical trauma.
That wording of this statute came into effect as a result of the legislation in 1999. The — since the incident offense happened in 1998, the proper definition should be: Physical injury means the impairment of physical condition or the infliction of substantial pain.
I believe the Court is giving the wrong definition of what physical injury is and I want the Court to note my objection to the Court doing that.
COURT: Your objection is noted. The Court finds that the definition is procedural, not substantive, and merely a statement of what the law was.
Although appellant never explicitly stated the phrase “ex post facto,” the record is clear that appellant was basing her objection on ex post facto grounds and that the court understood the objection as such.
Article 1, § 10, of the United States Constitution provides that “(n)o state shall. . . pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. ...” Article 2, § 17, of the Arkansas Constitution similarly provides, “No ... ex post facto law . . . shall ever be passed. . . .” A law is in violation of the ex post facto clause if it is retroactive and it disadvantages the accused by altering the definition of criminal conduct or by increasing the punishment for the crime. Lynce v. Mathis, 519 U.S. 433 (1997); Collins v. Youngblood, 497 U.S. 37 (1990); Beazell v. Ohio, 269 U.S. 167 (1925). See also Calder v. Bull, 3 Dall. 386 (1798).
The focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of‘disadvantage,’ ... but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable. Snyder v. State, 332 Ark. 279, 965 S.W.2d 121 (1998) (citing California Dept. of Corrections v. Morales, 514 U.S. 499 (1995)). In this case, the addition of the language “infliction of bruising, swelling, or visible marks associated with physical trauma,” altered the definition of criminal conduct to such a degree as to make it easier for the State to show that appellant committed battery in the third degree.
The State argues that appellant cannot demonstrate prejudice because the evidence presented at trial proved that Kozial suffered a physical injury under both the old and new definitions of the term. The State contends Kozial’s testimony concerning the pain she felt in her shoulder and the pain that she obviously felt upon having her hair ripped from her scalp establishes that Kozial suffered substantial pain as required under the old statute. Our supreme court has said prejudice is presumed on the giving of erroneous instruction unless some additional factor makes it clear that the erroneous instruction was harmless. See Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999).
In cases involving a trial court’s giving of an erroneous instruction involving the trial mechanism to be used in deciding either a civil or criminal case, we will not require the appellant to demonstrate prejudice. Skinner v. R.J. Griffen & Co., 313 Ark. 430, 855 S.W.2d 913 (1993). Such a requirement is often an impossible burden, and the requirement of an impossible burden, in effect, renders the requirement of correct instructions on the law meaningless. Hall v. State, 326 Ark. 318, 933 S.W.2d 363 (1996). Said another way, prejudice will be presumed from the giving of an erroneous instruction unless some additional factor makes it clear that the erroneous instruction was harmless. If this were an attempt to make a finding as to whether appellant was prejudiced by the improper instruction, we would only engage in speculation, applying our view of what a reasonable jury would have done. Skinner, supra.
An appellee, however, may still demonstrate that the giving of an erroneous instruction was harmless, where the jury demonstrably was not misled because the jury rejected the theory of the erroneous instruction, and where the erroneous instruction was obviously cured by other instructions. See e.g. Cates v. Brown, 278 Ark. 242, 645 S.W.2d 658 (1983); Moore v. State, 252 Ark. 526, 479 S.W.2d 857 (1972). In this case, the State cannot demonstrate that the jury found appellant guilty because she caused substantial pain rather than because Detective Patton testified that he observed the red area (visible mark) on appellant’s scalp.
Reversed and remanded.
Hart and Vaught, JJ., agree. | [
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Larry D. Vaught, Judge.
Appellant Cartrell Lewan McCoy brings this appeal from Pulaski County Circuit Court where he was found guilty of attempted first-degree murder and burglary. In addition, based upon the convictions, the court revoked appellant’s 1999 probation that was ordered after he pled guilty to possession of a controlled substance with intent to debver. Appellant challenges his attempted first-degree murder conviction on the basis that the trial court erred in refusing to instruct the jury on the lesser included offense of attempted second-degree murder. His attorney also contends that there are no meritorious grounds that would support an appeal of the revocation of his probation. We reverse the attempted first-degree murder conviction and remand for a new trial, and we remand for supplementation of the record on the revocation of appellant’s probation.
Appellant was charged with attempted first-degree murder and residential burglary. It was alleged that on August 11, 1999, appellant unlawfully entered the home of Rodney Wilson and, acting with the purpose of causing the death of another person, took a substantial step in a course of conduct intended to culminate in the first-degree murder of Sarah Battung. Based on these charges, the State also filed a petition to revoke his probation in another case where he pled guilty to possession of a controlled substance (cocaine) with intent to deliver.
A jury trial was held on April 12, 2000. The jury found appellant guilty on both charges, and appellant was sentenced to thirty years’ imprisonment for attempted first-degree murder and five years’ imprisonment and a $5,000 fine for residential burglary. The trial court ordered the sentences to be served consecutively. The trial court heard the revocation case while the jury deliberated during the sentencing phase in the principal case. The parties stipulated that the evidence presented in the principal case could be considered in the revocation proceedings. In addition to that evidence, the State presented the testimony of appellant’s probation officer, indicating that the conditions of appellant’s probation required him to obey all state laws. Based upon the evidence introduced, the trial court found that appellant violated the conditions of his probation. The trial court sentenced him to fifteen years’ imprisonment and ordered that it run concurrently with the other sentences.
Attempted First-degree Murder Conviction
Appellant brings this appeal contending the trial court committed reversible error in refusing to give his proffered jury instruction on the lesser included offense of criminal attempt to commit second-degree murder. It is reversible error to refuse to give an instruction on a lesser included offense when the instruction is supported by even the slightest evidence. Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001). We will affirm a trial court’s decision to exclude an instruction on a lesser included offense only if there is no rational basis for giving the instruction. Id. Thus, we must determine whether attempted second-degree murder under Ark. Code Ann. § 5-10-103(a)(l) (Repl. 1997) is a lesser-included offense of attempted first-degree murder under Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1997), and, if so, whether there was sufficient evidence to warrant the instruction on attempted second-degree murder.
Arkansas Code Annotated section 5-1-110(b) (Repl. 1997) declares what constitutes a lesser included offense:
(b) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(1) It is established by proof of the same or less than all the elements required to establish the commission of the offense charged; or
(2) It consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.
In addition, our caselaw has set out these same three basic requirements as essential to a determination of lesser-included-offense status. Hill v. State, 344 Ark. 216, 40 S.W.3d 751 (2001) (citing Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999); Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996); Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989)). While it seems clear that second-degree murder under Ark. Code. Ann. § 5-10-103(a)(l) is a lesser included offense of Ark. Code Ann. § 5-10-102 (a) (2), see Britt v. State, supra, the issue of whether attempted second-degree murder is a lesser included offense of attempted first-degree murder under these subsections appears to be an issue of first impression.
Under Ark. Code Ann. § 5-10-102(a)(2), a person commits first-degree murder if “with the purpose of causing the death of another person, he causes the death of another person.” Second-degree murder under Ark. Code Ann. § 5-10-103(a)(l) is committed by a person if “[h]e knowingly thacauses the death of another person under circumstances manifesting extreme indifference to the value of human life.” A person attempts to commit an offense if he “[pjurposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as he believes them to be.” Ark. Code Ann. § 5-3-201 (a) (2) (Repl. 1997). Section 5-3-201 (b) provides:
When causing a particular result is an element of the offense, a person commits the offense of criminal attempt if, acting with the kind of culpability otherwise required for the commission of the offense, he purposely engages in conduct that constitutes a substantial step in a course of conduct intended or known to cause such a result.
At trial, the State argued that appellant was not entitled to an instruction on attempted second-degree murder because an attempt crime requires a purposeful mental state and second-degree murder requires a knowing mental state. Based on these facts, the State reasoned that one cannot purposely do something that would require a less-than-purposeful mental state. However, the Original Commentary to Ark. Code Ann. § 5-3-201 (b) suggests otherwise, providing:
Subsection 5-3-201 (b) makes it clear that, with respect to result oriented offenses, purposeful conduct constituting a substantial step in a chain of events intended or known to be capable of producing a result gives rise to liability if accompanied by the culpable mental state, respecting attendant circumstances, required by the definition of the object offense. This section is necessary to cover situations such as the following: A blows up an occupied building, not intending to cause the death of another person, but knowing or beheving in the virtual inevitability of this result. If fortuitously no one is killed, A may nonetheless be prosecuted for attempted second degree murder under § 5-10-103 (a) (2) despite the absence of any purpose on his part to cause a death. A’s conduct would not be reached under subsection 5-3-201 (a)(1) or (2) because of this absence of purpose. Accordingly, to reach this sort of conduct, subsection (b) relaxes somewhat the purposeful conduct requirement common to the Code’s inchoate offenses: under § 5-3-201(b) knowledge regarding a result will generate liability when coupled with purposeful conduct.
Thus, under Ark. Code Ann. § 5-3-201 (b), attempted second-degree murder requiring a knowing mental state can be a lesser included offense of attempted first-degree murder requiring a purposeful mental state. Here, the evidence at trial supported an instruction for attempted first-degree murder requiring a purposeful mental state. Arkansas Code Annotated section 5-2-203 (c) (Repl. 1997) provides that “When acting knowingly suffices to establish an element, the element is also established if a person acts purposely.” Thus, appellant, acting with the kind of culpability otherwise required for the commission of second-degree murder, purposely engaged in conduct constituting a substantial step (i.e., getting the gun and firing it into a room full of people) in a course of conduct intended or known to cause such a result (i.e., death).
The State also contends in its brief that attempted second-degree murder is not a lesser included offense of first-degree murder because the proffered instruction required proof of an additional element — circumstances of extreme indifference — that is not required by attempted first-degree murder. The State cites Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999), in support of its argument. There, the supreme court stated that “Second-degree murder pursuant to Ark. Code Ann. § 5-10-103(a)(l) cannot be a lesser included offense of first-degree murder under Ark. Code Ann. § 5-10-102 (a) (3) because that second-degree murder charge requires a showing that one knowingly caused the death of another person under circumstances manifesting extreme indifference to the value of human life, an element in addition to the requirements of the statute under which appellant was charged.” Byrd v. State, supra at 427, 992 S.W.2d at 767. The court concluded:
In the instant case, the information charged appellant with knowingly causing the death of Austin Davis, a person aged fourteen years or younger. The additional language of knowingly causing the death under circumstances manifesting extreme indifference to human life was not charged in the information, and was not required to be proven in order to sustain a conviction for first-degree murder. Because appellant was not so charged, there is no rational basis to justify charging the jury with the lesser offense of second-degree murder.
Id. at 428, 992 S.W.2d 767.
Byrd is clearly distinguishable. Here, appellant was charged with attempted first-degree murder under Ark. Code Ann. § 5-10-102(a)(2), requiring a purposeful mental state, not first-degree murder under Ark. Code Ann. § 5-10-102 (a)(3), requiring that the actor knowingly cause the death of a person fourteen years of age or younger. The additional language of “circumstances manifesting extreme indifference to the value of human life” found in Ark. Code Ann. § 5-10-103(a)(l) requires that the circumstances must be more dire and formidable in terms of affecting human life. See Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000), and Tigue v. State, 319 Ark. 147, 889 S.W.2d 760 (1994). Those circumstances', which indicate conduct beyond mere knowledge, are included in the purposeful mental state found in Ark. Code Ann. § 5-10-102(a)(2), but not Ark. Code Ann. § 5-10-102(a)(3), which only requires that the actor knowingly cause the death of another person fourteen years old or younger. We therefore hold that under the facts of this case, attempted second-degree murder under Ark. Code Ann. § 5-10-103(a)(l) is a lesser included offense of attempted first-degree murder under Ark. Code Ann. § 5-10-102(a)(2).
We must now address whether there was sufficient evidence to warrant the instruction on attempted second-degree murder. To be entitled to the instruction, appellant must be able to point to evidence in the record that supports a finding that appellant acted knowingly under circumstances manifesting extreme indifference to the value of human life rather than purposely. While we need not discuss all the evidence presented at appellant’s trial, we will identify that relevant proof necessary to decide this issue.
The evidence introduced at trial revealed that appellant and the victim, Sarah Battung, dated for over two years before she broke off the relationship on June 30, 1999. After the break-up, appellant tried to get back together with Battung and continued to call her. She resisted his efforts. On the evening of August 11, 1999, Battung was staying at Rodney Wilson’s apartment, when the appellant called repeatedly trying to apologize. Battung hung up on him several times. During one phone call, Battung cursed at appellant and then kissed another man. Appellant became aware of the kiss as a result of the reaction of the others in the apartment, and he threatened to kill Battung. After appellant’s telephone calls, appellant’s sister, Trineka McCoy, went out on the balcony of the apartment and found appellant sitting in a chair on the balcony. Trineka testified that appellant was “pretty upset” that night. She told him not to come inside, knowing Battung had a no-contact order against him. Appellant entered the apartment and began fighting with two men. Trineka told police after the incident that when appellant entered the apartment he was accusing Battung of sleeping with another man. Battung was walking from the kitchen to the couch when she saw appellant enter the apartment and begin fighting. Battung sat down on the couch and began to dial 911. Appellant asked her whether she was calling the police. When she responded affirmatively, appellant held the gun out in front of him and began shooting.
When there is the slightest evidence to warrant an instruction on a lesser included offense, it is error to refuse to give it. Hill, supra. Based on the testimony presented at trial, there was some evidence to support a finding that appellant entered the apartment with the purpose to confront Battung or to confront the men he thought she was with, and not necessarily with the purpose to kill Battung. This would support a conclusion that he acted knowingly under circumstances manifesting extreme indifference to the value of human life. The jury had a right to consider that evidence. Therefore, the trial court erred by refusing to instruct the jury on the lesser included offense of attempted second-degree murder.
The State argues that if the attempted second-degree murder is a lesser included offense of attempted first-degree murder and if there was evidence to support an instruction, this court should affirm because appellant’s proffered jury instruction did not accurately state the law. Appellant’s proffered instruction followed the language of AMI Crim. 2d 501. When a trial court determines that the jury be instructed on an issue, the model criminal instructions shall be used unless the trial court determines that they do not accurately state the law. Webb v. State, 326 Ark. 878, 935 S.W.2d 250 (1996). We find the State’s argument unpersuasive because, in the present case, the trial court concluded that the jury should not be instructed on attempted second-degree murder, and thus never addressed the issue of whether AMI Crim. 2d 501 accurately stated the law.
Revocation of Probation
On February 3, 1999, appellant pled guilty to possession of a controlled substance (cocaine) with the intent to deliver, a class Y felony. He was sentenced to forty-eight months of probation and fined $300. His driver’s license was also suspended for six months. His probationary sentence was conditioned upon his compliance with written rules of conduct, which included a requirement that appellant obey all state and federal laws. The State filed a petition for revocation on October 21, 1999, alleging that he committed the offenses of criminal attempt to commit murder in the first degree and residential burglary during his probation.
The April 12, 2000, trial on the charges of attempted first-degree murder and burglary served as a basis for the revocation. The parties stipulated that the evidence introduced at the trial would also serve as the evidence in support of the revocation. In addition to this evidence, the State presented testimony of appellant’s probation officer while the jury deliberated during the sentencing phase of trial.
Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3 (j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant’s counsel argues that appellant’s appeal of his probation revocation lacks merit; however, appellant’s counsel did not file a motion to withdraw. Although our supreme court has held that a petitioner’s counsel must file a motion for permission to withdraw as counsel in order to file a no-merit brief, Blue v. State, 287 Ark. 345, 698 S.W.2d 302 (1985), this court has held that
[I]t is not inconsistent with Blue to require that when, as in the case at bar, two cases are considered simultaneously by the trial court, one of which results in an appeal that defense counsel considers to be meritorious, and one of which results in an appeal that defense counsel considers to be without merit, the purpose and spirit of Rule 4-3(j) is best served by requiring that appellant be notified of her right to file points on appeal with respect to the ‘no-merit’ case, notwithstanding that defense counsel has not moved to withdraw from representation of the appellant in both cases.
Harris v. State, 72 Ark. App. 227, 234-35, 35 S.W.3d 819, 824 (2000). The no-merit portion of the brief purportedly refers to everything in the record that might arguably support an appeal and contains a statement of the reasons why counsel considers there to be no point that might arguably support an appeal. The State concurs that the appellant’s counsel has complied with Rule 4-3 (j) and that the appeal has no merit. The clerk of this court furnished the appellant with a copy of his counsel’s brief and notified him of his right to file a list of points of appeal. The appellant has not filed such a list of pro se points.
We are not able to reach the merits of this issue, because the notice of appeal only designated specific portions of the record. Specifically, the notice designates “the entire trial record and revocation hearing, including any audio and visual recordings, but excluding voir dire and opening and closing arguments, except for objections during same, as his record of appeal in his case. Also requested is the omnibus hearing held on March 15, 2000.” Our review in no-merit cases, pursuant to Anders v. California, supra, and Rule 4-3 (j) of the Rules of the Arkansas Supreme Court and Court of Appeals, requires that we review the entire record for potential error in order to determine whether the appeal is wholly without merit. Campbell v. State, 74 Ark. App. 277, 47 S.W.3d 915 (2001). Therefore, in the absence of the entire record, we must return the case to appellant’s counsel to supplement the record to include those parts originally omitted, and, if necessary, to file a substituted brief that addresses any objections contained in those parts of the record.
Reversed and remanded in part; and remanded in part for supplementation of the record.
HART and NEAL, JJ., agree.
William R. Simpson, Jr., Public Defender, by: Brett Qualls and Steve Abed, Deputy Public Defenders, for appellant.
Mark Pryor, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
SUPPLEMENTAL OPINION ON GRANT OF REHEARING
CA CR 00-905
S.W3d
Court of Appeals of Arkansas Divisions I and II
Opinion delivered August 29, 2001
Larry D. Vaught, Judge.
Appellant petitions this court for rehearing of our decision of July 5, 2001, remanding the appeal of his probation revocation for supplementation of the record. Appellant argues that remand for supplementation of the record pursuant to Campbell v. State, 74 Ark. App. 277, 47 S.W.3d 915 (2001), was unnecessary. We agree.
After reviewing appellant’s petition, we find that Campbell does not apply to this case. Here, unlike Campbell, there are two cases consolidated for appeal. One case is a jury trial on charges of attempted first-degree murder and residential burglary, and the other is a petition for revocation of probation, which was based on the attempted first-degree murder and residential burglary charges. The parties stipulated that the evidence introduced at the jury trial would also serve as the evidence in support of the revocation. In our July 5, 2001, opinion, we remanded the revocation case for supplementation of the record, based on Campbell, because the record failed to include all of the proceedings, including opening statements, closing arguments, and jury voir dire. Campbell did not involve a revocation, but rather a jury trial on a rape charge that resulted in a conviction. The instant revocation proceeding was a bench trial, which was held simultaneously with the jury trial on the charges of attempted first-degree murder and residential burglary. The opening statements, closing arguments, and jury voir dire related only to the jury trial. Because the portions of the proceedings omitted from the record were not relevant to the revocation of probation, they are unnecessary for our review of the no-merit brief filed with respect to the revocation.
The facts pertaining to the revocation and the law with respect to a no-merit brief were addressed in our original opinion, and thus do not need to be restated. From our review of the record and the briefs presented, we conclude that there has been full compliance with Rule 4-3 (j) of the Rules of the Arkansas Supreme Court and Court of Appeals and that this appeal is without merit. Accordingly, we affirm the revocation of appellant’s probation.
Hart, Bird, Neal, Baker, and Roaf, JJ., agree. | [
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Sam Bird, Judge.
Appellant brings this appeal from the Pulaski County Circuit Court contending that the court erred in ordering him to make restitution for property that he was not charged with having stolen and which he was not proven to have possessed. We reverse and remand. We originally decided this case on November 19, 1998, and affirmed the trial court. Appellant filed a timely petition for a rehearing, which we granted, and we issue this substituted opinion.
The appellant, Steven Ron Fortson, was charged with violating Ark. Code Ann. § 5-36-106 (Repl. 1995), theft by receiving, after the State alleged that the appellant either received, retained or disposed of property that was valued at more than $200 and belonged to Judy Fiamess. Property, including antique furniture, was stolen from Harness’s home in a series of burglaries occurring May 15, 1996, August 12, 1996, and August 17, 1996. The items had a value of approximately $9,685. On September 9, 1996, Harness contacted the police and informed them that she had found several of the stolen items at different antique stores in North Litde Rock. An investigator met with the owner of one of the stores, Sherry Ballard, who informed the investigator that she had purchased the items from the appellant and his co-defendant, Rebecca Rolling, who is not a party in this appeal. Ballard stated that she paid $60 to appellant and his co-defendant for items that Harness had identified as being stolen from her home. Donna Kinder, a manager of the store, stated that she paid appellant and his co-defendant $1,170 for some of the items.
A hearing was held on August 11, 1997, at which time the appellant entered a no-contest plea to theft by receiving, and the court accepted the plea. The following exchange took place at the hearing on appellant’s plea:
The Court: Would the State state the facts?
Mr. Petty [for the State] : In the case of CR-97-620, the State’s proof at trial would show that on or about May 11 through May 15, 1996, and on or about August 17, 1996, Ms. Judy Harness had reported some burglaries that occurred at her residence at 4206 Burlingham Road. ... In those burglaries there were several antiques that were stolen for a total value of $9685.00. On September 9, 1996, Ms. Harness contacted Investigator Winchester and told him that she had found several of those items at three different antique stores in the North Litde Rock area. She then went and met with the owners of those antique stores and identified fifteen items among those three stores which were hers, which she had reported stolen. Those fifteen items had been purchased by the antique shops from Mr. Steven Fortson and Ms. Becky Rolling. Ms. Harness recovered approximately half of her property. There was over $5000.00 worth of property which was outstanding. There were also checks written by the antique stores to Ms. Rolling in the amounts of $2100.00 total for the antiques which were purchased.
Mr. Fortson, Defendant: I have heard the Prosecutor’s statement about the facts in these cases. Those are the facts which I do not contest. I do not know of any reason, legal or otherwise, why you should not accept my no contest pleas. I am pleading no contest voluntarily.
The Court: In 97-0620, theft by receiving how do you plead?
Mr. Fortson, Defendant: No contest.
Under the terms of the plea agreement, the trial court sentenced appellant to seventy-two months in the Arkansas Department of Correction and ordered him to pay restitution to the victims.
Because the appellant contested the amount of restitution, a hearing was held on October 6 and 13, 1997. The court determined that appellant was obligated to make restitution in the amount of $6,705, which included $1,170 to Kinder and $60 to Ballard, and $5,475 to Harness for property that was not recovered. Appellant did not dispute that he owed restitution in the amount of $1,230 to the antique vendors, Kinder and Ballard. However, he objected to the requirement that he should have to pay Harness because he argued that he had neither been charged with nor pleaded no contest to burglary of Harness’s home. He argued that the State had produced no evidence that he ever possessed any of the non-recovered property. Therefore, he argued that the court should not order him to make restitution for a crime with which he had never been charged.
The State admitted the charge against appellant for theft by receiving was based upon the items sold to the antique stores and that the appellant was never charged with or pleaded no contest to committing the burglaries. Even so, the trial court found that appellant had pleaded to the facts as stated by the prosecutor, including the burglaries. Consequently, the trial court ordered appellant to make full restitution, including making payment to Harness in the amount of $5,475, the value of the property taken in the burglaries that had never been recovered.
On appeal and on petition for rehearing, the appellant’s sole argument is that he should not have to make restitution for the remaining property because he had not been charged with the burglaries and had not pleaded no contest to committing them. He argues that the State did not produce any evidence that appellant was ever in possession of any of the other non-recovered property. He also contends that the State produced no proof that he stole the property or burglarized Harness’s home. He does not challenge the restitution that he was ordered to pay to Kinder and Ballard. The State concedes appellant’s argument on appeal, emphasizing that appellant was not charged with burglary and did not plead to burglary; and the State joins in appellant’s request that the trial court’s judgment be reversed and the case remanded.
Arkansas Code Annotated section 5-4-205(a)(l)-(3) (Repl. 1997) states:
(a)(1) A defendant who is found guilty or who enters a plea of guilty or nolo contendere may be ordered to pay restitution.
(2) The sentencing authority, whether the trial court or a jury, shall make a determination of actual economic loss caused to a victim by the crime. (Emphasis added.)
(3) (A) The determination of the amount of loss is a factual question to be decided by the preponderance of the evidence presented to the sentencing authority during the sentencing phase of a trial.
In the case at bar, the appellant was charged with and pleaded no contest to theft by receiving. He was neither charged with nor did he plead no contest to burglary. These two crimes have dif ferent elements. Theft by receiving, as codified at Ark. Code Ann. § 5-36-106(a) (Repl. 1997), is defined as follows:
A person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen.
Burglary, as codified at Ark. Code Ann. § 5-39-201 (a)(1) (Repl. 1997), is defined as follows:
A person commits residential burglary if he enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.
A person may be found guilty of theft by receiving if he is knowingly in possession of stolen property, even without proof that he took the property himself or acquired it from the actual thief. King v. State, 262 Ark. 342, 557 S.W.2d 386 (1977). A person need not have committed burglary, or even received all of the property taken in a burglary, to be guilty of theft by receiving. Id. Defendants cannot be convicted of crimes with which they were never charged. Whitehead v. State, 316 Ark. 563, 873 S.W.2d 800 (1994); Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993); Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1985). Consequently, defendants cannot plead guilty to crimes with which they have never been charged. Switzer v. Golden, 224 Ark. 543, 274 S.W.2d 769 (1955).
Even if the trial court found that the statement of the charge was broad enough to include facts sufficient to find the appellant guilty of burglary as well as theft by receiving, the court erred by ordering restitution for an economic loss that was caused by a crime with which the appellant was never charged, Whitehead v. State, supra, and for which the appellant never entered a plea, Switzer v. Golden, supra. Therefore, appellant should have been ordered to make restitution for the economic loss that was caused by the crime for which he was charged and for which he pleaded no contest, which was theft by receiving and not burglary. Ark. Code Ann. § 5-4-205.
The dissenting opinion contends that a person should pay restitution for a crime with which he was never charged. We agree that when restitution is due, the determination of the amount of loss is a factual question to be decided by the preponderance of the evidence. See Ark. Code Ann. § 5-4-205. However, in this instance, restitution is simply not due for an economic loss that was the result of a crime with which the appellant was not charged.
Accordingly, we reverse and remand this case for entry of judgment in the amount of $1,230. We also note that this opinion addresses only the issue of restitution; the appellant did not appeal his sentence of seventy-two months, and we do not address that issue.
Reversed and remanded.
Pittman, Jennings, and Griffen, JJ., agree.
Neal and Roaf, JJ., dissent. | [
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John F. Stroud, Jr., Judge.
Appellant, Verlon McKay, and appellee, Debra McKay, were divorced by the Saline County Chancery Court on March 12, 1998. Appellant contends on appeal that the chancellor erred in finding that appellee has an equal interest in a houseboat purchased during the marriage. Appellee argues in her cross-appeal that the chancellor erred in finding that all of the money in the parties’ joint checking account and that most of the property purchased with the funds from this account are the separate property of appellant. Appellee also argues that the chancellor erred in modifying the divorce decree by setting aside her award of rehabilitative alimony and in failing to award her attorney’s fees.
When the parties married in 1991, appellee had custody of two sons from a previous marriage and was employed as a courier by Federal Express. Appellant receives veterans’ and social security disability income. When the parties married, his monthly income was increased over $100 because he had a wife and minor stepchildren. Appellant receives approximately $76,000 of tax-free income each year. Appellant deposited all of his disability income into a joint checking account to which appellee made no contribution. Appellant paid for the utilities and groceries out of this account. At trial, appellant testified that he wrote 90% of the checks on this account; he said that appellee wrote approximately 10% of the checks and that she only did so after first discussing it with him. At the time of the parties’ marriage, appellant owned a house in Little Rock and land in Saline County. After their marriage, the parties built a house on the land in Saline County. In order to finance the construction, appellant used over $60,000 of his nonmarital savings and borrowed $30,000; the parties mortgaged the house in Little Rock as security for the loan. During the marriage, this debt was repaid in full from funds in the joint checking account. When the parties separated, appellant closed out the joint checking account and kept the balance of $12,800.
During the parties’ marriage, appellant inherited approximately $35,800 from his mother. He deposited the proceeds of his inheritance into the joint checking account and used this money in the purchase of a $39,500 houseboat. Although the seller prepared the bill of sale in both parties’ names, appellant registered the boat with the State of Arkansas only in his name. He testified that he had not intended to give appellee an interest in the houseboat and that he had not objected to appellee’s name appearing on the bill of sale because she was his wife.
Appellee testified that, at appellant’s request, she changed jobs with Federal Express. For awhile, she worked part-time and later went back to full-time employment as a customer-service representative. At the time of trial, she was making $27,200 per year. Appellee stated that she assisted appellant with two multilevel marketing businesses during the marriage. Appellee testified that she did write checks on the joint account for such things as groceries and gas credit cards and that she did so without first dis cussing it with appellant. She also said that, during the marriage, she kept her own checking account, on which appellant did not write checks, and that she paid for a new refrigerator, stove, dishwasher, washer, and dryer. Appellant, however, testified that he paid for the washer and dryer. At trial, he produced the checks written for these items.
In the divorce decree, the chancellor found that all of the money that was in the joint checking account was the separate property of appellant because it was derived from his disability benefits and was under his control. The chancellor also found that, with the exception of the houseboat, everything purchased with the proceeds of the joint checking account was appellant’s separate property because it was purchased with his disability income. The chancellor found that, although appellant’s inheritance was used to purchase the houseboat, it was marital property because the bill of sale placed title in both parties’ names and that appellant made a gift of an interest in the boat to appellee. The chancellor found that appellee had purchased the stove, refrigerator, and dishwasher and found them to be her separate property. He also directed appellant to pay appellee $100 a week in rehabilitative alimony through the end of 1998. Upon motion by appellant, however, the chancellor set aside the award of alimony; he found that, because appellee’s pleadings did not request alimony, he was without authority to make this award.
On appeal, appellant argues that the chancellor erred in finding that appellee has an interest in the houseboat because he used the proceeds of his inheritance to purchase it and because he did not intend to make a gift of an interest in it to appellee.
Under Arkansas law, property acquired by inheritance or in exchange for such property is not marital property subject to equal division upon divorce. Ark. Code Ann. § 9-12-315(b)(1) and (2) (Repl. 1998). However, a party can destroy the nonmarital status of such property by placing it in an account held jointly with a spouse. See Jackson v. Jackson, 298 Ark. 60, 765 S.W.2d 561 (1989). Once property, whether real or personal, is placed in the names of persons who are husband and wife without specifying the manner in which they take, there is a presumption that they own the property as tenants by the entirety, and clear and convincing evidence is required to overcome that presumption. Cole v. Cole, 53 Ark. App. 140, 920 S.W.2d 32 (1996).
A presumption also arises that the spouse placing the money in a joint account intended to make a gift of an interest in this money to the other spouse. Creson v. Creson, 53 Ark. App. 41, 917 S.W.2d 553 (1996). To support a finding that such property is separate property for purposes of property distribution upon divorce, the party seeking to rebut either presumption must present clear and convincing evidence that the property was separately owned. Id. In either event, the requirement of clear and convincing evidence means that the proponent seeking to rebut the presumption must do so by proof so clear, direct, weighty, and convincing that the fact-finder is able to come to a clear conviction, without hesitation, of the matter asserted. Id. Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction respecting the allegation sought to be established. Id.; see also Cole v. Cole, supra. This court’s test on review is not whether it is convinced that there was clear and convincing evidence to support the trial judge’s finding but whether it can say that the finding is clearly erroneous. Bishop v. Bishop, 60 Ark. App. 164, 961 S.W.2d 770 (1998). A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Adkinson v. Kilgore, 62 Ark. App. 247, 970 S.W.2d 327 (1998). A requirement that the evidence be clear and convincing does not mean that the evidence must be uncontradicted. O’Flarity v. O’Flarity, 42 Ark. App. 5, 852 S.W.2d. 150 (1993). Even when the burden of proof is by clear and convincing evidence, this court defers to the superior position of the chancellor to evaluate the evidence. Id.
Appellant testified that, after he had talked with the seller of the houseboat, the seller had prepared the bill of sale in both parties’ names. He said he did not object because “she was my wife.” Applying the proper standard of review, therefore, we cannot say that the chancellor’s finding that appellant gave appellee an interest in the houseboat is clearly erroneous.
For her cross-appeal, appellee argues first that the chancellor erred in fading to award her an interest in all of the property that was purchased with money from the joint checking account, even though appellant’s disability income funded this account. Appel-lee does not dispute that appellant’s disability income itself is excepted from the definition of marital property. See Ark. Code Ann. § 9-12-315 (b)(6) (Repl. 1998). She also does not argue that his disability income lost its status as nonmarital property simply because it was used to acquire property. Instead, she contends that appellant’s disability income lost its status as nonmarital property when he deposited it in the joint checking account and that she therefore has a one-half interest in everything purchased with the funds in that account. Appellee also argues that, contrary to the chancellor’s finding, the joint checking account was not solely under appellant’s control. She also stresses that appellant’s monthly disability income was increased by approximately $100 a month because of his marriage to appellee and that he also drew a monthly allotment for her boys while they were under the age of eighteen. Appellant argues that, therefore, she did make an actual monetary contribution to the joint checking account.
Appellee also contends that, because she participated in giving a mortgage on appellant’s house in Little Rock to secure the debt on the new house in Saline County, she should be awarded an interest in the new house. She states: “When nonmarital property is converted into security for a marital debt, as here, the protected status of that property which the owner might have had under the division of property statute is relinquished. Hale v. Hale, 307 Ark. 546, 822 S.W.2d 836 (1992).” In Hale, the supreme court held that it was permissible for nonmarital property to be subjected to payment of the parties’ marital debts only because that property was specifically mortgaged to secure those debts. The supreme court limited the application of its holding therein to situations wherein the mortgaged nonmarital property is used to satisfy the debt to which it is actually pledged. The supreme court emphasized that the chancellor could not utilize this property to satisfy any other marital debts. In any event, in the case before us, the parties did not give a mortgage on the new house, but did so only on appellant’s nonmarital house in Little Rock, on which appellee has made no claim. The Hale case is therefore not applicable to this situation.
Appellant testified that appellee only wrote checks on the joint checking account after first discussing it with him, that the parties understood the separate nature of their checking accounts, and that he had not intended to give appellee an interest in the funds in the joint checking account. The chancellor believed appellant’s testimony and was satisfied that he had met his burden of rebutting the presumptions by clear and convincing evidence. We cannot say that his findings in this regard are clearly erroneous.
Appellee also argues that the chancellor erred in holding that he did not have authority to award alimony because appellee had failed to raise this issue in her pleadings. At the temporary hearing, appellee was awarded temporary monthly support in the amount of $100. At trial, she testified that her financial circumstances were basically the same as during the temporary hearing and stated that she needed continued assistance until her truck was paid for (approximately two years). She specifically requested that the chancellor award her alimony. In fact, counsel for appellant acknowledged at trial that appellee had requested alimony.
Rule 15(b) of the Arkansas Rules of Civil Procedure allows for the amendment of the pleadings to conform to the evidence introduced at trial:
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 rule is liberal in its allowance of amendments to conform pleadings to proof and even contemplates an amendment after judgment. Hope v. Hope, 333 Ark. 324, 969 S.W.2d 633 (1998). Even if no amendment is made, it does not affect the trial of issues not raised in the pleadings; permitting the introduction of proof on an issue not raised in the pleadings constitutes an implied consent to trial on that issue. Id.; see also Interstate Oil & Supply Co. v. Troutman Oil Co., 334 Ark. 1, 972 S.W.2d 941 (1998).
Clearly, the issue of alimony was tried, and the chancellor did have authority to make this award. Accordingly, we hold that the chancellor erred in setting aside the award of alimony. On de novo review of a chancery record, when we can plainly see where the equities lie, we may enter the order that the chancellor should have entered, or we may decline to do so if justice will be better served by a remand. Reaves v. Reaves, 63 Ark. App. 187, 975 S.W.2d 878 (1998). In our view, justice will be better served by a remand so that the chancellor can compute the amount of alimony due appellee and enter a judgment in her behalf for that amount.
Appellee also argues in her cross-appeal that the chancellor erred in failing to award her attorney’s fees. However, appellee failed to obtain a ruling on her request for attorney’s fees, and it is well settled that an issue must be raised and ruled on before this court will consider it on appeal. Vanderpool v. Fidelity & Casualty Ins. Co., 327 Ark. 407, 939 S.W.2d (1997); Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987). We therefore need not address this issue.
Affirmed on direct appeal; affirmed in part, and reversed and remanded in part on the cross-appeal.
Robbins, C.J., Pittman and Crabtree, JJ., agree.
Hart and Rogers, JJ., dissent. | [
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Margaret Meads, Judge.
Karriem Muhammad entered a conditional plea of guilty to manufacture, delivery or possession of a controlled substance (cocaine) pursuant to Rule 24.3 of the Arkansas Rules of Criminal Procedure and was sentenced to forty years in the Arkansas Department of Correction. Appellant’s sole issue on appeal is that the trial court erred in denying his motion to suppress the cocaine found on his body because there was no reasonable articulable suspicion of criminal activity justifying a pat-down search of his person by the officer who stopped him for a traffic violation. We disagree and affirm.
When reviewing the trial court’s denial of a motion to suppress, the appellate courts make an independent determination based on the totality of the circumstances and reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997); Rankin v. State, 57 Ark. App. 125, 942 S.W.2d 867 (1997). In making this determination, the evidence is viewed in the fight most favorable to the State. Thompson v. State, 333 Ark. 92, 966 S.W.2d 901 (1998).
Arkansas State Trooper Jeffery Thomas testified for the State that on March 21, 1996, he stopped appellant for following too closely behind an eighteen-wheeler tractor-trailer rig. Thomas said that appellant was extremely nervous, his lips were trembling, and he stood very still and erect. Although he said that he was going to Little Rock to visit his father for his birthday, appellant was unable to state his father’s age when asked.
In conjunction with the traffic stop, Trooper Thomas ran National Crime Information Computer (NCIC) and Interstate Identification Index (Triple I) checks on appellant, from which he learned that appellant had a criminal history of sale or possession of a dangerous drug and at least one arrest for aggravated robbery. Thomas then requested and received appellant’s written consent to search the vehicle. At some point, appellant was issued a warning citation for following too closely. Contrary to the dissent’s assertion that Thomas detained appellant after issuing the warning citation, the record is unclear as to when the citation was actually issued, as evidenced by the following colloquy:
Q Did you give him a warning citation?
A Yes, I did. I issued him a written warning ticket for a violation.
Q Did he seem to become more calm or anything at that point in time?
A No, he didn’t. Actually, I didn’t see any noticeable change in the demeanor after making the statement to him that I was going to issue a warning.
While waiting for back-up to arrive, Thomas performed a pat-down search of appellant. When he got to appellant’s belt line, Thomas felt a rigid object that he believed to be the corner of a firearm sticking out of appellant’s waistband. Although appellant attempted to remove Thomas’s hand from the object, Thomas discovered a brick of compressed material wrapped in brown duct tape protruding from appellant’s groin area inside what appeared to be a lady’s girdle.
On appeal, appellant does not contend that Thomas lacked authority to make the initial stop for following too closely; instead, he argues that Thomas had no authority to conduct a pat-down search of his person because there was no reasonable, articulable suspicion of criminal activity. We disagree. Thomas had the requisite reasonable suspicion necessary to detain appellant further and frisk him pursuant to Ark. R. Crim. P. 3.1 and 3.4.
Rule 3.1 of the Arkansas Rules of Criminal Procedure provides:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.
“Reasonable suspicion” is defined in Rule 2.1 of the Arkansas Rules of Criminal Procedure as “a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.” The existence of a reasonable suspicion must be determined by an objective standard, and due weight must be given to the “specific reasonable inferences” an officer is entitled to derive from the situation in light of his experience as a police officer. Coffman v. State, 26 Ark. App. 45, 759 S.W.2d 573 (1988) (citing Terry v. Ohio, 392 U.S. 1 (1968)). In making this determination, the trial court may consider the factors listed in Ark. Code Ann. § 16-81-203 (1987). Those factors most relevant to this case include:
(1) The demeanor of the suspect;
(2) The gait and manner of the suspect;
(3) Any knowledge the officer may have of the suspect’s background or character;
(5) The manner in which the suspect is dressed, including bulges in clothing, when considered in fight of all the other factors;
(13) The suspect’s apparent effort to conceal an article ....
Although Trooper Thomas acknowledged that he did not have reasonable suspicion to search appellant’s vehicle, appellant gave written consent for the search when asked to do so and does not contend on appeal that his consent was anything but voluntary. While the dissent believes otherwise, it is not necessary for an officer to have reasonable suspicion to request consent to search, see Johnson v. State, 27 Ark. App. 54, 766 S.W.2d 25 (1989); therefore, the request for consent was clearly within Thomas’s purview. Thomas was alone with appellant while awaiting back-up officers to assist in the consensual search of appellant’s automobile, and he testified that he did not feel 100% out of danger, because “there were some signals there.” Thomas, a ten-year veteran of the Arkansas State Police, testified that based on his experience he suspected that appellant was armed, due to appellant’s extreme nervousness, his rigid posture, his trembling Hps, his manner of dress, and appellant’s criminal background. With appellant’s previous felony conviction for aggravated robbery, his possession of a firearm would violate Ark. Code Ann. § 5-73-103(a)(1) (Repl. 1997) (felon in possession of a firearm), and such a violation would constitute a felony. Viewing the totality of the circumstances, Trooper Thomas could certainly reasonably suspect that appellant was armed with a weapon, thereby committing a felony. Therefore, appellant’s detention was proper under Rule 3.1.
Rule 3.4 of the Arkansas Rules of Criminal Procedure, which is used in conjunction with Rule 3.1, provides:
If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous to the officer or others, the officer or someone designated by him may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others. In no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer or others.
We find that Trooper Thomas could reasonably believe that appellant was armed; thus, he was justified in searching appellant’s person pursuant to Rule 3.4 to ensure his safety. Thomas testified that when he searched appellant’s belt line, he felt a “rigid” object, which he believed to be a weapon. It was only when he had removed the object that he discovered it was a brick of what later proved to be cocaine.
The dissent cites Knowles v. Iowa, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998), and Leopold v. State, 15 Ark. App. 292, 692 S.W.2d 780 (1985), in support of its position that the search of appellant’s person violated his Fourth Amendment rights. Both of these cases are distinguishable from the case at bar not only because they involve vehicle searches rather than searches of a person, but also because in neither case had consent been granted. Here, Trooper Thomas asked appellant for consent to search his car; appellant agreed and signed a consent form. The pat-down search of appellant’s person to ensure the officer’s safety occurred after consent had been given to search the vehicle, as stated above.
The dissent also states that “the record does not show that the NCIC and Triple I information identified appellant as likely to be armed and dangerous,” and surmises that “one would think that the information supplied to field officers would include a notice to that effect.” It then broadly concludes “[t]he fact that Thomas mentioned no such notice dictates the conclusion that none was given because none was deemed warranted.” These statements are purely speculative and have no basis from the record before us. To reach the conclusion which the dissent has reached is unfounded and imprudent.
Moreover, the dissent misleads the reader concerning appellant’s “profile” when he relates the trooper’s testimony about the totality of the circumstances which justified the pat-down search. The actual exchange between appellant’s counsel and Trooper Thomas is as follows:
Q That is a profile situation, is that right? We have got a guy that is nervous. We have a person who is a convicted felon of narcotics. That is creating a profile of somebody who is conducting criminal activity, in this case trafficking in narcotics, and that is the reason that you wanted to search, isn’t that true?
A My search was based on the information that was available to me by his demeanor and the pat down was conducted solely for officer’s safety at the point I began to pat down.
Q My question is, Officer, but those circumstances created a profile situation where you believed there were drugs in that car and that is why you wanted to search?
A If you want to refer to it as a profile that’s fine. I don’t refer to that as a profile.
Trooper Thomas articulated the reasons on which he based his search and made it clear that the basis was not a “profile.”
Having made an independent determination based on the totality of the circumstances, we find that the trial court properly denied appellant’s motion to suppress; therefore, we affirm.
Affirmed.
Arty, Jennings, and Bird, JJ., agree.
Griffen and Roaf, JJ., dissent. | [
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Margaret Meads, Judge.
This is the second appeal of this workers’ compensation case. The initial claim was brought by appellant, R.H. Bussell, who fell on September 7, 1986, when a stair broke in appellee’s power plant causing him to fall a distance of approximately four feet and to land flat on his back on the floor. As a result of his injuries, appellant was assessed an anatomical rating of forty percent to the body as a whole. Appellee accepted responsibility for only twenty percent, and appellant filed a claim alleging that appellee controverted his claim and also that he had been injured as a result of a safety violation, entitling him to a twenty-five percent increase in compensation.
In an opinion entered March 19, 1993, an administrative law judge (ALJ) ordered appellee to pay appellant an amount representing a twenty-five percent anatomical impairment plus a twenty-five percent increase in “compensation provided for by Ark. Code Ann. § 11-9-501 (a)-(d) pursuant to Ark. Code Ann. § 11-9-503” for the safety-violation claim. Appellee was further ordered to pay all reasonable related medical, hospital, nursing, and other apparatus expenses arising from appellant’s compensable injury. In an opinion entered October 18, 1993, the Commission found that appellant failed to prove by clear and convincing evidence that his injury was substantially occasioned by a safety violation and reversed the ALJ in this regard.
Appellant appealed to this court, and in Bussell v. Georgia-Pacific Corp., 48 Ark. App. 131, 891 S.W.2d 75 (1995), we held that Ark. Code Ann. § 11-9-503 (1987) provides for a twenty-five percent increase in compensation where it is established by clear and convincing evidence that an injury is caused in substantial part by the failure of an employer to comply with any Arkansas statute or official regulation pertaining to the health or safety of employees, and that appellant had established a safety violation. We reversed and remanded to the Commission for an award of benefits “consistent with our holding.” On remand, the Commission entered an order on May 10, 1995, stating that because this court found appellant proved the safety violation “we find that the compensation which is provided for in Ark. Code Ann. § 11-9-501 (a)-(d) and awarded to the claimant in the prior awards of this Commission shall be increased by twenty-five percent (25%).”
Appellee submitted to appellant certain checks dated June 26, 1995, which it claimed satisfied the award. Appellant did not agree and contended that he was entitled to a twenty-five percent increase on all compensation as a result of the safety violation and for attorney fees based upon the same amount. Appellee maintained that the checks represented timely and appropriate payment and that any attempt to alter the formula used to calculate the payments was barred by res judicata. In an opinion entered March 21, 1997, the ALJ held that appellant was entitled to a twenty-five percent increase in the payment of all indemnity benefits incurred as a result of his September 7, 1986, injury and an award of attorney fees based upon the twenty-five percent increase to the temporary total, permanent partial, and permanent total disability benefits due appellant.
In an opinion entered February 18, 1998, the Commission found that appellant was entitled to a twenty-five percent increase in the compensation rate for appellant’s permanent disability compensation in excess of the twenty percent anatomical impairment which had been accepted and paid by appellee. The Commission found, however, that the doctrine of res judicata barred application of the twenty-five percent penalty to appellant’s temporary total disability compensation or to the twenty percent anatomical impairment accepted and paid by appellee prior to the first hearing on appellant’s claim. According to the Commission, the plain language of its May 10, 1995, order held appellee Hable for the twenty-five percent increase on indemnity benefits “awarded to the claimant.” The Commission held that the twenty percent anatomical impairment accepted by appellee was never “awarded to the claimant in the prior awards of the Commission” because it had been accepted by appellee, and if appellant had felt aggrieved by the Commission’s May 1995 order, the proper remedy would have been an appeal. Because appellant failed to appeal from that order, the Commission held him to be bound by it.
Appellant appeals from the order entered February 18, 1998, contending that he is entitled to have all benefits payable under Ark. Code Ann. § 11-9-501 (a)-(d) (1987), including temporary total and permanent total disabifity, increased by the twenty-five percent penalty for the safety violation and that attorney fees should be assessed on the entire award for the safety violation. Appellee has filed a cross-appeal contending that the safety violation penalty does not apply to the wage-loss portion of appellant’s permanent total disabifity.
Appellant argues that he has been denied benefits to which this court held him entitled, and asks that we reverse the Commission’s February 18, 1998, opinion and direct an order for payment of benefits. Appellee responds that the Commission’s May 10, 1995, order determined the method of calculating benefits due appellant; that appellant faded to appeal from that order; and that appellant is now barred from reopening or refitigating this issue. Appellee says that the Commission correctly found appellant’s challenge to its May 10 order barred by res judicata.
It is true that the doctrine of res judicata, which is applicable to the decisions of the Commission, forbids the reopening of matters once judicially determined by competent authority. Tuberville v. International Paper Co., 18 Ark. App. 210, 711 S.W.2d 840 (1986). However, in the first appeal of this case, we issued a mandate reversing the Commission’s finding that appellant failed to show that his injury was caused in substantial part by a safety violation. We cited Ark. Code Ann. § 11-9-503 (1987) and stated that it provides for a twenty-five percent increase in compensation where it is established by clear and convincing evidence that an injury is caused in substantial part by the failure of an employer to comply with any Arkansas statute or official regulation pertaining to the health or safety of employees, and we remanded for an award of benefits consistent with our holding.
Whatever is before the supreme court and disposed of in the exercise of its appellate jurisdiction must be considered settled, and the lower court must carry that judgment into execution according to its mandate. Fulkerson v. Thompson, 334 Ark. 317, 974 S.W.2d 451 (1998). The trial court, and by analogy the Commission, has no power to change or extend the mandate of the appellate court. Carroll Elec. Coop. Corp. v. Benson, 319 Ark. 68, 889 S.W.2d 756 (1994); Morrison v. Tyson Foods, Ind., 11 Ark. App. 161, 164, 668 S.W.2d 47, 48 (1984).
In Fortenberry v. Frazier, 5 Ark. 200, 202 (1843), the supreme court held:
Whatever was before the Court, and is disposed of, is considered as finally settled. The inferior court is bound by the judgment or decree as the law of the case, and must carry it into execution according to the mandate. The inferior court cannot vary it, or judicially examine it for any other purpose than execution. It can give no other or further relief as to any matter decided by the Supreme Court even where there is error apparent; or in any manner intermeddle with it further than to execute the mandate and setde such matters as have been remanded, not adjudicated by the Supreme Court .... The principles above stated are, we think, conclusively established by the authority of adjudged cases. And any further departure from them would inevitably mar the harmony of the whole judiciary system, bring its parts into conflict, and produce therein disorganization, disorder, and incalculable mischief and confusion. Besides, any rule allowing the inferior courts to disregard the adjudications of the Supreme Court, or to refuse or omit to carry them into execution would be repugnant to the principles established by the constitution, and therefore void.
5 Ark. at 202 (citations omitted). Fortenberry applies to the court of appeals as well as the supreme court. National Cashflow Sys., Inc. v. Race, 307 Ark. 131, 817 S.W.2d 876 (1991).
In the first appeal of this case, we reversed the Commission’s finding regarding appellee’s safety violation. Our mandate cited Ark. Code Ann. § 11-9-503 (1987) and stated that it provides for a twenty-five percent increase in compensation, and we remanded for an award of benefits consistent with our holding. Neither the statute nor our mandate contain any words of limitation which would restrict the penalty to amounts “awarded to the claimant in the prior awards of the Commission.” The Commission had no authority to vary our mandate or to add any conditions. The mandate is imperative and leaves nothing to the discretion of the trial court. See Watkins v. Acker, 195 Ark. 203, 111 S.W.2d 458 (1937).
Because the Commission was without authority to vary our mandate, it acted outside its authority by doing so; thus, its May 10, 1995, order was void. As such, the decision is not res judicata, and appellant did not have to appeal from that order. See Childress v. McManus, 282 Ark. 255, 668 S.W.2d 9 (1984) (it is not necessary to appeal from a void order because it never became effective); Taylor v. O’Kane, 185 Ark. 782, 49 S.W.2d 400 (1932) (where court had no authority to render judgment, it is void). Therefore, we reverse and remand this case to the Commission to enter an order awarding appellant a twenty-five percent increase in all compensation payable to appellant under the provisions of Ark. Code Ann. § 11-9-501.
With regard to appellant’s argument concerning attorney fees, attorney fees are to be computed only on the amount of compensation controverted and awarded, increased by the safety-violation penalty. Frier Brass v. Weller, 23 Ark. App. 193, 745 S.W.2d 647 (1988). Here, appellee controverted appellant’s impairment in excess of twenty percent to the body as a whole and controverted the entire safety violation. Therefore, attorney fees are to be calculated on the additional five percent anatomical impairment awarded by the law judge and on the entire twenty-five percent increase in compensation payable under Ark. Code Ann. § 11-9-501.
Appellee’s argument on cross-appeal, as we understand it, is that the Commission erred in finding that the safety-violation penalty applies to the wage-loss portion of appellant’s permanent total disability because it was never controverted by appellee. However, appellee controverted the safety violation, and as we have already said, the safety-violation penalty applies to all compensation payable under the statute.
Reversed on direct appeal; affirmed on cross-appeal.
Griffen and Arey, JJ., agree.
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Margaret Meads, Judge.
Cleo and Jerome Raynor’s complaint for medical negligence against Dr. James Kyser was dismissed on a motion for summary judgment based upon the trial court’s findings that such a cause of action was barred by the statute of limitations and that the “continuous course of treatment” theory was not applicable to toll the running of the statute of limitations. On appeal, appellants contend that summary judgment was improper because the trial court erroneously determined that the continuing treatment theory, which would have tolled the statute of limitations, was not applicable to their case. We affirm.
Arkansas Rule of Civil Procedure 56(c) provides for summary judgment when “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.” Summary judgment is reserved for cases that have no genuine factual disputes. Rogar v. Brown, 332 Ark. 214, 964 S.W.2d 372 (1998). The moving party bears the burden of sustaining a motion for summary judgment, and once that burden is met, the opposing party must meet proof with proof to demonstrate that a material issue of fact still exists. Id. On appeal, the evidence is viewed in the light most favorable to the opposing party. Id. Summary judgment is proper when the statute of limitations bars the action. Alexander v. Twin City Bank, 322 Ark. 478, 910 S.W.2d 196 (1995).
The parties agree that the facts are not in dispute; therefore, the only issue remaining is whether appellee was entitled to judgment as a matter of law. The medical malpractice statute of limitations, codified at Ark. Code Ann. § 16-114-203 (Supp. 1997), provides in pertinent part:
(a) Except as otherwise provided in this section, all actions for medical injury shall be commenced within two (2) years after the cause of action accrues.
(b) The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time.
Cleo Raynor (hereafter “appellant”) became appellee’s patient in January 1985, and was diagnosed with nasal polyps. Appellee surgically removed these polyps on January 15, 1985, and appellant followed up this procedure with an office visit on January 28, 1985. In August 1986, appellant returned to see appellee, he surgically removed benign papillomas, and she returned for an office visit in September 1986. In 1987, there was an August office visit and an August surgical procedure to remove nasal polyps, followed by office visits in August and November. On August 2, 1988, appellant underwent a surgical procedure to remove nasal polyps, and there was a pathological diagnosis of inverted papilloma. This procedure was followed up with office visits on August 24 and November 30. In 1989, appellant had two office visits with appellee, both indicating that her nose was clear of polyps. In 1990, appellant had an office visit with appellee on July 11; on July 18, appellee performed surgery to remove polyps and papillomas. This procedure was followed up with office visits on July 19 and August 14, 1990. On March 26, 1991, appellant returned to see appellee, who noted that her nose was clear and there were no polyps. At this time, appellant was advised to return in six months; however, she did not return until October 1994.
When appellant returned to see Dr. Kyser on October 18, 1994, she was required to complete a new patient information sheet because of her extended absence from appellee’s care. Appellant underwent surgery for nasal polyps on October 25, and she was seen for a post-operative check-up on November 28, 1994. At that time, appellant’s nose was free of polyps, and appel-lee recommended that she schedule another appointment in six months. She next saw Dr. Kyser on March 28, 1995, at the suggestion of her family physician, Dr. Tommy Love, with new complaints of diplopia and third nerve palsy. At that time, appellee referred appellant to Dr. James Suen, who eventually removed an inverted papilloma that had invaded her maxillary sinus in the orbital area.
Appellant filed suit against appellee on February 6, 1997. She asserts that the continuing treatment theory is applicable to her case and tolls the statute of limitations until March 28, 1995, the last day of treatment provided by Dr. Kyser.
The Arkansas Supreme Court first recognized the “continuing treatment” exception to the two-year statute of limitations in Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988). In that case, a physician began treating his future wife’s migraine headaches with narcotic injections in 1966 and continued this treatment for the next eighteen years. In May 1985, after the parties were divorced, Mrs. Lane sued Dr. Lane for medical malpractice. Dr. Lane moved for summary judgment on the basis that the statute of limitations had run, and the trial court denied the motion. On appeal, the supreme court affirmed the allowance of the claim based on the continuing treatment theory, which is defined as follows:
If the treatment by the doctor is a continuing course and the patient’s illness, injury or condition is of such a nature as to impose on the doctor a duty of continuing treatment and care, the statute does not commence running until treatment by the doctor for the particular disease or condition involved has terminated — unless during treatment the patient learns or should learn of negligence, in which case the statute runs from the time of discovery, actual or constructive.
Lane, supra, 295 Ark. at 673-74, 752 S.W.2d at 26-27 (citing 1 D. Louisell and H. Williams, Medical Malpractice 13.08 (1982) (footnotes omitted)).
The supreme court also applied this theory in Taylor v. Phillips, 304 Ark. 285, 801 S.W.2d 303 (1990). However, in his concurring opinion in Taylor, Justice Newbern cautioned, “It should not be assumed by those reading the court’s opinion that as long as a doctor-patient relationship continues, or there is a continuous course of non-treatment or omission, the statute does not begin to run.” 304 Ark. at 290.
Lane and Taylor are the only two cases in which our supreme court has applied the continuing treatment theory to toll the statute of limitations in medical malpractice cases. The theory has been rejected by the court in Tullock v. Eck, 311 Ark. 564, 845 S.W.2d 517 (1993); Pastchol v. St. Paul Fire & Marine Ins., 326 Ark. 140, 929 S.W.2d 713 (1996); and most recently in Wright v. Sharma, 330 Ark. 704, 956 S.W.2d 191 (1997). Additionally, the Eighth Circuit, applying Arkansas law, declined to apply the continuing treatment theory in Roberts v. Francis, 128 F.3d 647 (8th Cir. 1997) and Hobbs v. Naples, 993 F.2d 173 (8th Cir. 1993).
In the present case, appellant contends that appellee was negligent in treating her from January 1985 through November 1994 because he failed either to make the diagnosis of inverted papil-loma, or, if he did make the diagnosis, to properly treat and/or monitor the condition. Reviewing the evidence in the light most favorable to appellant, as we must do in summary-judgment cases, we note that appellant stated in her affidavit in support of the denial of summary judgment that appellee told her she would need to remain under his care indefinitely because of the frequent recurrence of nasal polyps. She admitted that she did not see appellee from March 1991 until October 1994, but understood that if she had any problems she was to return to his office. Appellant stated that she was a regular patient of appellee from 1985 until March 1995, and she especially considered herself under his care from November 1994 until March 1995 because she had been instructed during her November 1994 follow-up examination to return in six months.
We find that the period between January 1985 and October 1994 is clearly barred by the two-year statute of limitations. It is undisputed that appellant did not seek any treatment for her nasal polyps from March 1991 until October 1994, a period of three years and seven months, although she had been instructed to schedule a follow-up appointment six months after her March 1991 visit. The decision in Tullock v. Eck, supra, supports this determination. In Tullock, the supreme court held that refilling a prescription, with no other contact between patient and doctor, was insufficient to toll the statute of limitations under the continuous-treatment theory. If the act of repeatedly refilling a prescription is not sufficient to apply the continuous-treatment theory, then a three-and-one-half year period in which there is no action or contact whatsoever between patient and doctor does not constitute continuous treatment and does not toll the statute of limitations for the period from January 1985 until October 1994.
As to the period from October 1994 to March 1995, the dispositive issue is whether the March 28, 1995, visit was part of a continuous course of treatment to toll the statute of limitations. Appellant contends that she was still in continuous treatment in March 1995 because she had been instructed in November 1994 to come back in six months. However, appellant saw appellee in March 1995 at the behest of her family physician for diplopia and third nerve palsy, both of which were new complaints for which she had never before sought treatment. Appellant did not mention nasal polyps at any time during the March 1995 visit. Moreover, the parties agree that there was no negligence with regard to the March 1995 office visit. Therefore, we find that the statute of limitations began to run from the time of appellant’s last post-operative follow-up examination on November 28, 1994, which revealed no nasal polyps. It was at that point that treatment with regard to appellant’s October 1994 surgery was complete.
Appellant contends that no case has held that negligence must be claimed with respect to the date of the last treatment, or that negligence must be claimed with respect to each treatment. She cites Lane, supra, in support of this proposition:
Generally, the cause of action would accrue at the end of a continuous course of medical treatment for the same or related condition even if the negligent act or omission has long since ended.
295 Ark. at 675, 752 S.W.2d at 27.
However, in the two cases in which the supreme court applied the continuous-treatment theory, Lane, supra, and Taylor, supra, the last portion of negligent treatment fell within the two-year statute of limitations, even though the initial act of negligence was outside of that period. In the present case, there is no allegedly negligent treatment within the two-year limitation period. Because appellant concedes that no negligent treatment occurred on March 28, 1995, the last date appellee could have been negligent in any treatment was November 28, 1994.
Thus, we agree with the trial court’s conclusion that appellant’s lawsuit filed on February 6, 1997, is time-barred because it was not filed within two years of November 28, 1994.
Affirmed.
Arey and Griffen, JJ., agree. | [
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Andree Layton Roaf, Judge.
This is a negligence case. Paul Craig Jordan appeals a directed verdict in favor of Jerry D. Sweetser, Inc. (hereinafter Sweetser), the road contractor in charge of the construction site where Jordan was injured. Jordan argues that the trial court erred in granting the directed-verdict motion because, viewing the evidence in the record with all reasonable inferences in the light most favorable to him, there is substantial evidence of the construction company’s negligence and material breach of the construction contract. We disagree, and affirm.
On January 26, 1994, at approximately 5:30 p.m., Jordan left his Fayettville home in his pickup truck and headed to a church supper and Bible study at the First Baptist Church in Springdale. His route took him through a section of North Street in Fayette-ville that was being widened from two lanes to four lanes by Sweetser, pursuant to a contract with and under supervision of the Arkansas State Highway Commission. At the site, traffic was detoured onto a twenty-foot wide section of road with two-way traffic. The respective lanes were denoted by double four-inch yellow stripes. High-visibility orange plastic barrels marked the side of the detour where excavation was underway. On this particular evening, the street was wet from a recent rain.
Jordan had proceeded approximately a mile past the construction when he discovered that he had forgotten his Bible and lesson plan. He admitted that he was “a little aggravated” over forgetting his materials and that it caused him to be running late. He turned around and eventually reentered the detour through the construction site. Jordan encountered the headlights of an automobile passing through the site in the opposite direction. According to Jordan, he thought that the other vehicle was about to hit him and he tried to avoid it by jerking his truck to the right. He remembered hitting something that he assumed was a warning barrel and then crashing into a deep excavation, some two to three feet off the edge of the roadway. Jordan hit his head and lost consciousness. Eventually he awoke and tried to radio for help on his C.B. before again passing out. Some time later, he was rescued by police and taken to the hospital. Jordan apparently suffered permanent injuries.
On May 19, 1995, Jordan filed suit against Sweetser, alleging that it negfigendy constructed and failed to properly mark the excavation. Sweetser denied liability and invoked sovereign immunity in its answer. A two-day jury trial followed.
Jordan attempted to prove negligence on the part of Sweetser in two ways. First, he attempted to prove that the excavation was deeper than the plans specified. Toward this end he called as his first witness private investigator Gary Swearington, who testified that he measured the excavation at the point where Jordan left the roadway and that it was slightly more than six-feet deep. He also introduced a photograph of a private investigator, standing in the excavation, to show that the excavation was “as deep as that man is tall.” Jordan also attempted to prove noncompliance with the plans through the testimony of Sweetser president Bill Sweetser and general superintendent Gary Tyree. Bill Sweetser testified that he thought the excavation was three or four feet deep, but was not sure. Tyree testified that although he did not clearly remember this part of the job, or actually know exacdy where Jordan drove into the excavation, he thought the excavation should have only been three or four feet deep. Jordan asked Tyree in open court to find the depth specified in the plans and to determine if a six-foot hole was out of compliance. Tyree, however, expressed his inability to interpret the plans. With the court’s permission, Jordan gave Tyree leave to study the plans when the trial concluded for the day, with the understanding that he would reserve the question for when the trial resumed in the morning. According to the record, Jordan did not pursue this question when the trial resumed.
Jordan also attempted to prove negligence by introducing into evidence general provisions of a publication produced by the Federal Highway Administration entitled “Manual on Uniform Traffic Control Devices” and the Arkansas State Highway and Transportation Department publication “Standard Specifications for Highway Construction,” and by questioning Bill Sweetser about their applicability to the North Street improvements. He also questioned Tyree about the absence of white striping, or “fog lines” on the edge of the pavement, where it was apparently required by the standard drawings for the job. Tyree, however, testified that the specific plans directed that high-visibility traffic-control barrels be placed along the roadway instead and that the specific drawings took precedence over the standard drawings. Jordan also elicited testimony concerning the placement and maintenance of the barrels.
At the close of Jordan’s case, Sweetser moved for a directed verdict, relying on Muskogee Bridge Co. v. Stansell, 311 Ark. 113, 842 S.W.2d 15 (1992), to argue that there was no evidence of negligence independent of the plans or in following the plans and therefore it was entitled to share in the State’s sovereign immunity. Jordan resisted the motion by arguing two theories: 1) that there was testimony that, viewed in the light most favorable to the plaintiff, showed that there were required markings that were not there; and 2) that in addition to the plans and specifications, the contractor has an obligation to provide for the safety of the traveling public, which is dictated by his judgment, prudence, and reasonable care. Regarding the latter point, Jordan asserted that what constituted the required protective measures was a fact question for the jury. The trial judge expressed skepticism about Jordan’s argument, but ruled at that time that he found a question of fact in whether the standard rules regarding the placement of white fog lines on the edge of the pavement was overridden by the more specific rules that specified that barrels mark the edge of the pavement as Tyree testified.
In Sweetser’s case-in-chief, Arkansas Highway and Transportation Department resident engineer Leon Brewer, who oversaw the North Street project, testified. Brewer brought with him a copy of the daily diary of inspections made by him and his inspec tors on the project. Brewer testified that the daily inspections of the site revealed no deficiencies in the placement of warning devices and that the devices were properly placed according to the plans. He also testified that his department’s specifications did not require white striping at the edge of the pavement. According to Brewer, the specific plan represented a site-specific adaptation from the standard drawings. Finally, he testified that he found no deficiency with respect to the excavation.
At the close of the evidence, Sweetser renewed its directed-verdict motion. Jordan again resisted the motion by asserting that: 1) the fines were missing, 2) the “ditch” was “too deep,” and 3) the contract imposed “obligations separate and apart from the specifications under the books introduced in evidence.” The trial judge granted the motion after noting that his previous ruling was essentially based on his assessment that the contract could somehow be interpreted to require the white striping. The trial judge, however, indicated that he had reconsidered and now concluded that the barrels provided better warning of the conditions than the striping. Furthermore, he found no other evidence of contractor negligence.
Jordan argues that the trial court erred in granting Sweetser’s directed-verdict motion because there was substantial evidence in the record of Sweetser’s negligence and material breach of the construction contract. He contends that Sweetser failed to comply with the contract, plans, and federal and state manuals regarding the placement of warning devices. Further, Jordan argues that Muskogee Bridge Co. v. Stansell, supra, which he contends has very similar facts to the instant case, does not allow Sweetser the benefit of sovereign immunity. We find Jordan’s argument unpersuasive.
A directed verdict for a defendant is proper only when there is no substantial evidence from which the jurors as reasonable individuals could find for the plaintiff. Avery v. Ward, 326 Ark. 829, 934 S.W.2d 516 (1996). Substantial evidence is that which is of sufficient force and character that it will compel a conclusion one way or the other, without resort to speculation or conjecture. Id. Evidence introduced by the plaintiff, together with all reasonable inferences therefrom, is examined in the fight most favorable to the plaintiff when a motion for directed verdict is made by the defendant. Id. With this standard in mind, we conclude that the directed verdict was proper.
Jordan’s negligence argument is rooted in his contention that Sweetser owed a duty of care that was more extensive than its obligation under the contract it had with the Arkansas Highway Commission. In support of this theory, Jordan points to a general provision in the Manual on Uniform Traffic Control Devices, which states, “In particular situations not adequately covered by the provisions of the Manual, the protection of the traveling public, pedestrians, officers, fire persons, and of the workers on the scene will dictate the measures to be taken, consistent with the general principles set forth herein.” He also points to Bill Sweetser’s testimony that he was not familiar with the manual as proof of his company’s noncompliance. We find these argument unpersuasive and not well supported by the facts.
Contrary to Jordan’s assertion, the warning-device placement plan was more extensive than the standard drawings called for, and significantly, that decision was made by the highway commission. The State’s contract specified that high-visibility traffic-control barrels were to mark the edge of the pavement. Contained within Muskogee Bridge Co. v. Stansell is a jury instruction that sets out the black-letter law regarding the liability of construction companies under contract with the state. It states:
A contractor who performs in accordance with the terms of [a] contract with a governmental agency is not hable for damages resulting from that performance. However, a contractor is hable for damages resulting from negligence in the performance of the contract.
Id.
Moreover, the question of whether a duty is owed is always a question of law and never one for the jury. Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994). Accordingly, we find that this alleged higher duty is simply not the law.
In addition, Jordan’s assertion that Bill Sweetser’s apparent unfamiliarity with the manual could support an inference of noncompliance is likewise unpersuasive. Sweetser testified that the individual superintendents and foreman were responsible with keeping up with the various regulations concerning the maintenance of traffic-control devices.
Regarding Sweetser’s alleged deviation from the plans and contract, Jordan asserts that Sweetser dug the excavation to a depth of six feet when the plans called for four to five feet; failed to install white striping along the edge of the roadway; failed to “adequately supplement or modify” the traffic-control devices when they were placed on notice that they were inadequate; and violated federal law by willfully falsifying, distorting, or misrepresenting information concerning the placement of traffic-control devices under the terms of the construction contract. This argument also fails to persuade.
There simply is no proof that the depth of the excavation exceeded that which was specified in the plans. Although the excavation may have been deeper than either Bill Sweetser or Gary Tyree thought it was, neither man claimed to have a specific recollection as to how deep it actually was or should have been. Moreover, the plans, which were admitted into evidence, do not clearly show how deep the excavation was required to be at the point in question. Although Jordan questioned Tyree on this issue, he ultimately abandoned this line of inquiry. Only Leon Brewer of the highway department actually answered this question, and he testified that the excavation was within specifications.
Furthermore, even if the excavation was deeper than the plans specified, unlike the situation in Muskogee Bridge, that variation did not cause the accident. In Muskogee Bridge, the supreme court affirmed a jury verdict in favor of persons injured when a driver lost control of her vehicle as she passed over an unmarked dip on a bridge that was being renovated by a contractor pursuant to a contract with the Arkansas State Highway Commission. The supreme court held that there was substantial evidence that the dip was between four and eight inches and that the contract specified that it be no more than an inch to an inch and a half, and the creation of the drop-off and failure to properly warn of its location constituted both negligence and proximate cause of the accident. In the instant case, Jordan’s own testimony establishes that the cause of the accident was an oncoming vehicle that he perceived to be in his lane and his actions in swerving or jerking his truck off the roadway. While it is true that proximate cause is usually a question for the jury, see, e.g., Craig v. Taylor, 323 Ark. 363, 915 S.W.2d 257 (1996), it is not error not to submit the question to the jury if, based on the evidence adduced during the trial, the jury would be required to resort to speculation or conjecture to find for the plaintiff. See Ambrus v. Russell Chevrolet Co., 327 Ark. 367, 937 S.W.2d 183 (1997).
Jordan also urges this court to find dispositive the fact that Sweetser did not place white stripes along the edge of the pavement even though they were required by the standard drawings. However, the specific drawings required traffic-control barrels and not the white fines required by the standard drawings, and both Tyree and Brewer testified that the specific drawings took precedence. There was no evidence to the contrary regarding this interpretation. Moreover, as was the case with his excavation argument, there is absolutely no evidence that the accident was caused by Jordan’s inability to discern the edge of the pavement. Indeed, Jordan testified that he intentionally left the roadway and that he even hit one of the traffic-control barrels. We also cannot fault the trial judge’s reasoning that barrels which stood three feet high marked the edge of the roadway better than flat white striping. Again, in contrast to the situation in Muskogee Bridge, Jordan did not present any evidence that the use of barrels in lieu of white striping caused the accident.
As to Jordan’s contention that Sweetser failed to supplement the devices when it was placed on notice that the existing arrangement was inadequate, the record is devoid of any evidence that Sweetser had such notice. While it is true that Jordan elicited testimony from Bill Sweetser that he perhaps could have placed more warning devices, the record is devoid of evidence that, except for Jordan’s accident, there was any incident that would have put Sweetser on notice of the inadequacy of the warning devices.
Regarding Jordan’s argument that Sweetser falsified the inspection reports concerning the placement of the barrels, and that this wrongful act provided the necessary inference that the barrels were improperly placed, we note that Jordan did not make this argument in response to either of Sweetser’s directed-verdict motions. It is well settled that arguments raised for the first time on appeal will not be considered. See, e.g., Ambrus v. Russell Chevrolet Co., supra.
In sum, this accident resulted from Jordan’s reaction to the presence of an oncoming vehicle that he perceived to be in his lane. He did not testify that he was unable to follow the detour because of Sweetser’s failure to properly mark the pavement. There is also no evidence that Sweetser failed to properly perform its contract. Accordingly, we cannot say that the trial court erred in granting Sweetser’s motion for directed verdict, and affirm.
Affirmed.
Arey and Neal, JJ., agree. | [
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Wendell L. Griffen, Judge.
Curtis Ashlock appeals from his convictions of kidnapping and rape in Crawford County Circuit Court on July 11, 1997. He argues on appeal that: 1) the trial court erred by failing to declare a mistrial when a witness volunteered evidence of other bad acts; 2) the trial court erred by faffing to declare a mistrial when a juror, less than one hour into deliberations, reported an inability to be impartial; 3) the court erred by faffing to declare a mistrial after a juror became ill and was unable to continue deliberations; and, 4) the trial court erred by usurping the role of the jury in determining sentence. We disagree and affirm.
After her work shift ended on the morning of August 28, 1996, and she missed her ride home, RKP began walking along Interstate 40 in Shawnee, Oklahoma, toward her home. Ashlock offered RKP a ride. She accepted. When he stopped at the McLoud exit, Ashlock asked RKP to help him remove a vacuum cleaner from the back of the truck’s cab. When she attempted to remove the item, Ashlock struck her repeatedly, threatened her with a knife, bound her with duct tape and rope, covered her mouth and eyes, and left her on a mattress in the back of the cab. Ashlock then drove from Oklahoma to Utah, Idaho, and Wyoming. During this trek, Ashlock forced RKP to perform various sex acts and tied her up between each incident. On various occasions the two were around other parties, including a brief encoun ter with a police officer after Ashlock was stopped for a traffic violation. RKP was also left alone at times but did not attempt to escape or cry for help. She testified that she did not attempt escape because of threats that Ashlock made against her and her family. Ashlock eventually returned to Arkansas where they switched from his truck to a car and he forced her to have sex with him again while blindfolded and bound. He then took her to the Arkansas River, forced her underwater, threw rocks at her, and left her in the river.
RKP managed to make her way to the bank of the river and work her hands free. She hid in soybean fields until she found a dwelling where other persons took her to the nearest hospital. There, PKP discovered that she was in Van Burén, Arkansas, and told police what had transpired. Based on these facts, Ashlock was charged with attempted capital murder, kidnapping, and rape.
The jury found Ashlock guilty of kidnapping and rape on July 11, 1997. Before the jury could reach a verdict on the charge of attempted capital murder one juror became ill, so a mistrial was declared on that charge on July 14, 1997. Over appellant’s objection, the court dismissed the jury and sentenced Ashlock to fifty years’ imprisonment on the kidnapping charge and sixty years’ imprisonment on the rape charge, with the sentences to be served consecutively.
Testimony of Appellant’s Prior Time in Prison
After Ashlock returned to Arkansas with RKP, Officer Ron Brown of the Alma Police Department stopped him on September 1, 1996, for a traffic violation. During direct examination by Ash-lock’s counsel, Officer Ron Brown testified that Ashlock talked about time he spent in prison during the traffic stop. The questioning proceeded as follows:
Q: Obviously, there was nothing in this meeting or confrontation, there was nothing in this time or during your conversation with Mr. Ashlock, out of the ordinary, as far as you said in your report, or made any notion about [ — ]
A: The only unordinary thing, was when I asked him about his papers on his vehicle, he told me and we talked about the form at a traffic stop is for a warning — it was kind of a lengthy traffic stop and we just engaged in conversation. He told me he had spent ten years of his life in prison, and that he was —
Counsel objected, and requested that the court instruct the jury to ignore and disregard the comment about Ashlock’s prison record, stating that he was “not going to suggest that this witness had [made] that comment on purpose.” The trial court agreed and instructed the jury to disregard the comment. After Officer Brown completed his testimony, Ashlock moved for a mistrial. Now Ashlock argues that the trial court committed reversible error by denying his motion.
Rule 404(b) of the Arkansas Rules of Evidence provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” The trial court is given discretion in admitting or rejecting these matters, to be reversed on appeal where there is a manifest abuse of discretion. Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996); Jarrett v. State, 310 Ark. 358, 833 S.W.2d 779 (1992). A mistrial is a drastic remedy, which should only be used when the error is so prejudicial that justice cannot be served by an admonition. Id. Motions and objections must be made at the time the objectionable matter is brought to the jury’s attention, or they are otherwise waived. Johnson v. State, 325 Ark. 197, 926 S.W.2d 837 (1996).
Here, Ashlock argues that Officer Brown’s testimony was prohibited by Rule 404 and that an admonition was insufficient. However, the motion was not made until after the witness completed his testimony having been cross-examined and even questioned further on redirect. Thus, Ashlock’s motion for mistrial was untimely. We also hold that the motion was waived when appellant asked for an admonition and nothing more at the time of the objection.
The Impartial Juror
Less than an hour into deliberations, the jury foreman sent the judge a note that read: “We have one jurror [sic] that after seeing people in the court room, feels like they cannot be impartial.” The trial judge expressed to counsel a desire to conduct an inquiry of the jury, but counsel for Ashlock stated that he was opposed to an inquiry until after deliberations ended, rather than before further deliberations occurred. Accordingly, the trial judge did not investigate but admonished the jury as follows:
Well, ladies and gentlemen, of course you’ve gone through the voir dire process. You have been accepted as jurors. You have taken an oath to follow the law and the evidence. It’s a little bit late at this hour to begin talking about being impartial. You have agreed to be impartial by being accepted on the voir dire process. You will need to go and deliberate.
The jury then retired for deliberations.
It is clear that when a juror admits inability to remain impartial the integrity of the trial process is called into question. “Nothing can destroy the integrity of juries more effectively than to allow prejudiced jurors to sit in a case.” Rhoden v. Stephens, 239 Ark. 998, 1000, 395 S.W.2d 754, 755 (1965) (quoting Anderson v. State, 200 Ark. 516, 139 S.W.2d 396 (1940)). The Arkansas Supreme Court has stated:
Courts and Judges must always see that every person receives a fair and impartial trial before a fair and impartial jury. The Courts are the last bulwark of freedom and justice.
Smith v. State, 227 Ark. 332, 340, 299 S.W.2d 52, 56 (1957). The appellant is entided to a trial by twelve impartial and unprejudiced jurors who base their decision on the evidence as presented at trial. Borden v. St. Louis Southwestern Ry. Co., 287 Ark. 316, 698 S.W.2d 795 (1985). When actual bias, as opposed to implied bias, is called into question, the qualification of the juror is within the discretion of the court, because the trial judge is “in a better position to weigh the demeanor of the prospective juror’s response to the questions on voir dire.” Boyd v. State, 318 Ark. 799, 803, 889 S.W.2d 20, 22 (1994); see Barker v. State, 21 Ark. App. 56, 728 S.W.2d 204 (1987). The test is whether “the prospective juror can lay aside his impression or opinion and render a verdict based upon the evidence in court.” Breedlove v. State, 62 Ark. App. 219, 223, 970 S.W.2d 313, 315 (1998). The trial court’s decision will not be reversed absent an abuse of discretion. Id.
Here, the juror was not polled or questioned by the judge to determine whether the report of bias or prejudice was unfounded or, if founded, could be set aside. However, this failure to investigate the source of the reported juror bias resulted from the appellant’s refusal to accept the trial court’s offer to investigate, and not from the court’s failure to protect appellant’s right to a fair trial. Ashlock now claims that the trial court’s acquiescence in his position was reversible error, and that the trial court erred by not declaring a mistrial after the jury returned adverse verdicts. Having received all the relief requested, Ashlock cannot complain on appeal that he did not receive a fair trial. See Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998). Appellant cannot seriously argue that the court was under a duty to investigate the jury bias regardless of his request, as there is no plain-error rule in Arkansas. Duncan v. State, 38 Ark. App. 47, 828 S.W.2d 847 (1992). We certainly do not hold that the court abused its discretion by denying the motion for mistrial where appellant objected to an investigation of reported juror bias during the trial.
Juror Sickness
During jury deliberations one juror began suffering cardiac distress. After medical personnel were sent into the jury room to attend that juror, the following exchange took place:
The Court: It has been reported to this court that this [juror] is in need of medical attention . . . For now I am going to continue this until Monday at 9:00 a.m. and then we will make an inquiry at that time as to her health. . .
Mr. Marquette Your Honor, we would request at this (Counsel for Ashlock): time with the juror having an indication of cardiac arrest or cardiac problems and being removed to the hospital, that the Court grant a mistrial in this matter and declare a hung jury.
The Court: Well, I am going to make an inquiry and see what her health is on Monday and we may well do that.
The foreman indicated that a verdict had been reached on the kidnapping and rape counts before the excused juror became ill. When the foreman indicated that a verdict was reached on the kidnapping count, the court asked counsel if there were any questions about the verdict. Appellant’s counsel asked if the verdict was agreed to by all twelve jurors, to which the foreman responded, “Yes, it was.” Appellant’s counsel did not ask any questions about the verdict of guilty on the count of rape. Appellant’s counsel made no objection when the trial court accepted the State’s suggestion that the verdicts be accepted on the first two counts and the case continued on the third. Now Ashlock argues that the trial court committed reversible error by refusing to declare a mistrial and by accepting the guilty verdicts.
Arkansas Code Annotated § 16-89-126(a) (1987) states:
When the jury has agreed upon their verdict, they must be conducted into court by the officer having them in charge, their names called by the clerk, and, if they appear, their foreman must declare their verdict.
Although the statute appears to mandate that the verdict be delivered by the foreman if all members of the jury appear in court, appellant did not raise the statutory noncompliance issue below and his counsel did not request that the jurors be polled. Appellant’s motion for mistrial was based solely upon the juror’s sickness and was made before the verdicts were read and accepted. The appellant may not voice a general objection, but must make a specific objection in order to preserve an issue for appeal. Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998). This is so that the trial court may be apprised of the nature of the error of which the appellant complains. Christian v. State, 54 Ark. App. 191, 925 S.W.2d 428 (1996). Appellant’s mistrial motion was not based upon the failure to follow statutory procedures. His argument was not raised below and will not be considered for the first time on appeal. See Beyer v. State, 331 Ark. 197, 962 S.W.2d 751 (1998).
Trial Court’s Imposition of Sentence
After the guilty verdicts on the rape and kidnapping counts were read and accepted, the court recessed until the following Monday to determine whether the excused juror would be able to resume deliberations. When court resumed, the trial judge announced that the stricken juror would not be able to continue in deliberations. The trial judge then discharged the jury and proceeded to the sentencing phase. Appellant objected by renewing his motion for mistrial based on the sick juror, arguing that the jury had not deliberated on the sentence and become deadlocked or unable to impose sentence. The court did not rule on the objection, and simply stated, “All right, let’s proceed.” The State argued that, under both statutory and case law, Arkansas allows for the court to impose sentence. Again, the court stated, “All right, let’s proceed.”
Initially, it should be noted that there is no constitutional right to be sentenced by a jury; furthermore, sentencing is strictly controlled by statute. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988); see Tharp v. State, 294 Ark. 615, 745 S.W.2d 612 (1988). The statute in Arkansas allows for the court to impose punishment when
a jury finds a verdict of guilty and fails to agree on the punishment to be inflicted, or does not declare the punishment in its verdict, or if it assesses a punishment not authorized by law, and in all cases of a judgment on confession[.]
Ark. Code Ann. § 16-90-107(a) (1987); see Ark. Code Ann. § 5-4-103 (1987). In Johnson v. State, 328 Ark. 526, 944 S.W.2d 115 (1997), our supreme court held that where a jury found the defendant guilty but was unable to agree on punishment, the trial court correctly exercised its statutory authority under Ark. Code Ann. § 5-4-103(b), to fix punishment. Furthermore, the court stated in Johnson that it would consider a jury “deadlocked” (thus allowing the court to impose sentence) when one juror was tainted by prejudicial information or was unable to be impartial. The court based its decision on Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997), when only eleven jurors agreed on a forty-year sentence and one wanted a life sentence.
In this case, appellant objected to the trial court’s imposing sentence. Even so, the statute clearly authorized the court to fix punishment. There would have been no difference whether the excused juror had been present for sentencing and disagreed with the others, or if the jury, as here, agreed on the guilty verdicts but did not set punishment.
Affirmed.
Pittman and Bird, JJ., agree. | [
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Wendel L. Griffen, Judge.
David Beliew brings this appeal from the Arkansas Workers’ Compensation Commission and challenges whether the Commission correctly (1) determined the proper compensation rate, (2) found that the Death and Permanent Total Disability Trust Fund’s liability for payments did not begin until December 1997, and (3) found that additional payments made by Stuttgart Rice Mill, without modification of the award, are not gratuitous payments. We affirm the Commission on all points.
Beliew worked at Stuttgart Rice Mill on January 2, 1987, when he suffered a compensable injury arising out of and in the course of his employment. Because of that injury, he was temporarily totally disabled from January 3, 1987, through April 21, 1987. On January 19, 1988, he suffered a recurrence of his January 2, 1987 injury that caused him to again be temporarily totally disabled from January 19, 1988, through September 21, 1989. In his findings of fact, the Administrative Law Judge (whose opinion and findings of fact the Commission adopted) stated the healing period ended on September 26, 1989, with Beliew having sustained a permanent physical impairment of 25 percent of the body as a whole and that Beliew was permanently and totally disabled. The Death and Permanent Total Disability Trust Fund was ordered to begin paying benefits to the claimant on December 14, 1997, on the date when Stuttgart Rice Mill’s payment of the proscribed $175 per week would reach the total cap of $75,000, notwithstanding the fact that Stuttgart Rice Mill had paid $189 rather than the ordered $175 per week because of an increase in the compensation rate after Beliew was injured.
Several months after the Administrative Law Judge first found the claimant to be permanently and totally disabled, Beliew’s attorney brought to the attention of the attorney for the employer’s workers’ compensation carrier a new issue under the holding of Montgomery v. Delta Airlines, 31 Ark. App. 203, 791 S.W.2d 716 (1990). Beliew’s attorney argued, and the employer’s attorney apparently agreed, that the holding in Montgomery should apply to his case. In Montgomery, we held that a worker who was injured while one total disability rate was in effect and then returned to work and became permanendy and totally disabled after a higher rate had gone into effect was entided to the higher rate of compensation. Based on that decision, the employer’s insurance carrier in the instant case began making weekly payments to the claimant in the amount of $189 rather than $175. Consequently, the employer reached its $75,000 ceiling in May 1997, rather than in December 1997. The Death and Permanent Total Disability Trust Fund refused to begin making payments until December 1997. Thus, Beliew was without disability payments from May to December 1997.
Beliew sought a hearing to protect the continuation of his weekly disability benefits. The parties stipulated the facts and the case was submitted to the Administrative Law Judge on briefs. Beliew argued that Montgomery applied and that the carrier had been correctly making $189 weekly payments. Because the payments were correct, Beliew maintained that the Trust Fund’s obligation arose when the carrier reached its ceding in May 1997. Alternatively, Beliew argued that if the Trust Fund correctly refused to make payments until December 1997, then the extra fourteen dollars a week should be characterized as a gratuitous overpayment and not counted toward the $75,000 cap. Beliew argued that because the carrier voluntarily changed the rate of payment without first obtaining a modification of the ALJ’s order, it assumed the risk of contravening that order.
Based on the briefs, the Administrative Law Judge held that res judicata prevents the application oí Montgomery, since “the compensation benefit rate is a matter that has been judicially determined by a competent authority.” The Administrative Law Judge further opined that under Hill v. CGR Medical Corp., 282 Ark. 35, 665 S.W.2d 274 (1984), the Trust Fund was permitted to withhold payments until its obligation would have arisen had the carrier paid $175 per week. The Commission affirmed and adopted that decision on October 7, 1991.
On appellate review of workers’ compensation cases we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission. Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989). We should affirm the Commission’s ruling if there is any substantial evidence to support the findings made. Id.
While the facts of Hill were different from the facts in this case, the reasoning underlying the holding of Hill is applicable. In Hill, a widow setded a third-party claim on terms that discharged the workers’ compensation liability earlier than it would have been ordinarily fulfilled without the setdement. The court held that the Bank Fund “will become liable on the date the carrier’s $50,000 limitation would have been discharged had there been no setdement.” The basis of the holding was that the insurance carrier gave up its right to the subrogation funds (in a third-party suit against a tortfeasor who caused the injury) as a credit against future payments of compensation. While the facts are different in the case at bar there being no third-party suit or subrogation right, the reasoning regarding the position of the Trust Fund and the employer’s insurance carrier is the same.
Res judicata applies where there has been a final adjudication on the merits of the issue by a court of competent jurisdiction on all matters litigated and those matters necessarily within the issue which might have been litigated. Perry v. Leisure Lodge, 19 Ark. App. 143, 718 S.W.2d 114 (1986).
In his first point on appeal, Beliew argues that Montgomery dictates that he should have been paid $189 instead of $175 and that because the Commission did not decide his compensation rate based on that holding, it is not res judicata. While the reasoning underlying Montgomery would likely be applicable to the case at bar, Montgomery was never raised, either to the Administrative Law Judge or the Commission. Beliew’s argument is now barred based on res judicata. The Commission made complete findings that should be given their full weight.
On his second point on appeal, Beliew argues that Hill does not apply and attempts to distinguish Hill from this case on the basis of intentional versus unintentional prepayment of benefits. Although Beliew is correct that there never was any waiver made or quid pro quo as there was in Hill, that fact is not determinative. Beliew requested an increase in the amount that was paid him weekly. The insurance carrier granted that request without having the original amount modified. Beliew attempts to place all of the burden of modification on the appellee, when, in fact, he could have sought a modification himself to support his position that the Trust Fund was obligated to begin payments in May 1997. Thus, appellant’s second point on appeal is without merit.
Beliew’s third point on appeal — whether the extra fourteen dollars per week paid by the carrier was gratuitous — is closely interwoven with his second point. Merely because the insurance carrier agreed to appellant’s oral and written request that his weekly disability payments be increased fourteen dollars does not render the payments gratuitous. Beliew cites Arkansas Vinegar Co. v. Ashby, 294 Ark. 412, 743 S.W.2d 798 (1988), where we held that a carrier was not entitled to credit a lump-sum payment to a widow against the periodic payments due to remaining dependents. Beliew argues that the policy underlying Arkansas Vinegar should apply, saying that it is bad policy to let a party take credit for its willful deviation from an order. There was no issue of gratuitous payment in Arkansas Vinegar. Moreover, Beliew was benefitting by fourteen dollars per week due to the carrier’s acquiescence to his demand for increased benefits.
As there was a substantial basis for the Workers’ Compensation Commission’s decision denying Beliew’s claim we will not overturn it.
Affirmed.
Pittman and Bird, JJ., agree. | [
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Terry Crabtree, Judge.
Wayne Riffle and Charles Mitchell, a/k/a M.R. Properties, a partnership formed for the purpose of obtaining real property for recreational use, entered into negotiations with Helen Kilgallon and Marie Stagmer (“Sellers”) for the purchase of property located along the Arkansas River near Scott, Arkansas. M.R. Properties agreed to purchase the property upon securing an easement for ingress and egress. To satisfy this condition, M.R. Properties, pursuant to an agreement between the parties, began by acting as an agent for the sellers and attempted to purchase an easement across neighboring landowners’ property, but were unable to do so. M.R. Properties next proceeded as attorney-in-fact for the sellers and instituted suit in Pulaski County Court to have a public road declared across the land of adjoining landowners. During that action, an adjoining landowner produced a quitclaim deed, file-marked July 13, 1971, which granted an easement to and from the sellers’ land. Because the quitclaim deed appeared to frustrate M.R. Properties’ ability to prove “necessity” for a private road as required by Ark. Code Ann. § 27-66-401(3) (Repl. 1994), M.R. Properties abandoned that action and began working with Everett L. Martin, an attorney for the sellers, in order to obtain title insurance so that they could go forward with the purchase of the property. After being assured that the title insurance would be issued, M.R. Properties closed on the property on October 12, 1994.
The title insurance was obtained through Wilson & Associates and underwritten by United General Tide Insurance Company (“United”), the beneficiary of the policy being M.R. Properties. After the purchase, the adjoining landowner, across whose property the quitclaim deed’s easement was described as running, refused to allow M.R. Properties access. M.R. Properties contacted Wilson & Associates to request assistance in obtaining access to the newly purchased property, but Wilson & Associates denied that coverage existed for that particular problem. M.R. Properties then instituted an action against the adjoining landowner seeking a declaratory judgment to enforce the easement found in the quitclaim deed. After a hearing, the Pulaski County Chancery Court determined that the quitclaim deed did not create an appurtenant easement nor an easement by necessity since there had been no common ownership of the property prior to its division, though the court did find that M.R. Properties had proven a need for access to the property. On appeal, the Arkansas Supreme Court affirmed the chancellor. See Riffle v. Worthen, 327 Ark. 470, 939 S.W.2d 294 (1997).
Demand was then made to United for the face amount of the policy, $20,000, on the theory that the property was a total loss since no access existed. The insurance company denied coverage, asserting, among other defenses, that the policy excluded coverage; and that M.R. Properties had failed to inform the insurance company about the ingress/egress problem. Appellants then brought suit against the insurance companies, resulting in this appeal.
By order of September 10, 1997, the trial court found, among other findings, that: three policy exclusions prohibited M.R. Properties’ recovery; M.R. Properties had known about the defect in the right of access, yet went ahead with the closing on the property; the purchase price was reduced due to the lack of access; and, M.R. Properties suffered no damages. A subsequent order was entered March 9, 1998, awarding United $10,000 in attorney fees.
M.R. Properties appeals from these orders, asserting four points for reversal: (1) that the trial court erred by holding that the appellants created, suffered, assumed or agreed to the defect of lack of access to the property and that by so doing were excluded from coverage under the policy; (2) that the trial court erred in holding that the defect in the lack of access to the property was not known to the company, but known to the plaintiffs, and not disclosed in writing to the company prior to the date the claimant became an insured under the policy; (3) that the trial court erred in holding that no loss or damage resulted to the insured claimant; and, (4) that the trial court abused its discretion by awarding attorney fees to United General Title Insurance. We reverse in part and affirm in part.
Since this was a bench trial, in order for this Court to reverse, we would have to either determine that the trial court erred as a matter of law or decide that its findings were clearly against the preponderance of the evidence. See Taylor v. Richardson, d/b/a Richardson Construction Co., 266 Ark. 447, 585 S.W.2d 934 (1979); Ark. R. Civ. P. 52.
Addressing appellants’ last argument first, that the trial court abused its discretion by awarding attorney fees to United pursuant to Ark. Code Ann. § 23-79-208(a) and (b) (Repl. 1992), we note that United’s brief concedes this argument to appellants in fight of the recent Arkansas Supreme Court decision, Village Market, Inc. v. State Farm Gen. Ins. Co., 334 Ark. 227, 975 S.W.2d 86 (1998), a holding making it clear that attorney fees cannot be awarded to an insurer under section 23-79-208. While acknowledging that Village Market, Inc. was handed down subsequent to the trial court’s grant of attorney fees in United’s favor, we are nonetheless bound to reverse the trial court on this point.
In regard to appellants’ remaining points, because we find that appellants suffered no loss or damage by the failure to attain ingress to and egress from the property they purchased, we need only address one as the others are rendered moot.
The parties agree that there are no Arkansas cases that provide a measure of damages for litigants whose suits are founded upon disputes over title insurance claims and have arisen as a result of the litigant’s inability to secure access to and from their recently purchased property. In this case, appellants presented evidence at trial showing that their cost for purchasing and acquiring the real estate amounted to $22,650. In addition, appellants testified that, at the time of the purchase and in order to protect their interests, they caused a title insurance policy, in the amount of $20,000, to be issued with themselves the named beneficiaries. After presenting this testimony, appellant Riffle then explained from the stand that, without access, the property was useless. Riffle placed the value of the property at zero dollars.
The trial court found that appellants purchased property that did not have a right of access to begin with, that the access problem was taken into account when negotiating the purchase price, and that appellants nonetheless went forward with the purchase, knowing that the problem of access had not been resolved. As a result, the trial court failed to find that appellants suffered any loss or damage.
Appellees argue that appellant Riffle admitted at trial that the property retains value by the fact that it could be reached by boat via the Arkansas river and that the property was purchased for recreational purposes and not for commercial development. Furthermore, appellees argue that the policy itself required the parties to calculate damages and that the $20,000 policy limit could not be recovered unless appellants proved that some defect reduced the value of the land. Stated simply, appellees contend that appellants failed to prove that they suffered damages. We agree.
While an owner of property may, in appropriate circumstances, testify as to the value of his/her property, Minerva Enter., Inc. v. Howlett, 308 Ark. 291, 824 S.W.2d 377 (1992), and while the right of access, in itself, may carry value, see, e.g. Arkansas State Highway Commission v. Marshall, 253 Ark. 212, 485 S.W.2d 740 (1972), the evidence of damages must be such as to allow findings from established facts and not by conjecture. Christmas v. Raley, 260 Ark. 150, 539 S.W.2d 405 (1976).
Appellants were well aware of the access problem when they decided to move ahead and purchase the property at issue. In fact, as the trial judge found below, the purchase amount tends to reflect due regard for the problem of access. Appellants received what they bargained for and cannot now claim that they have suffered damages. Furthermore, appellants acknowledged that they do have access, though only by boat. Thus, in terms of calculating value based on access, this property does retain some value. Appellants have failed to present this Court with convincing proof, or argument, to support their contention that the chancellor’s finding was erroneous as a matter of law or clearly against the preponderance of the evidence.
Finally, we note that the Pulaski County Chancery Court found appellants to have a need for a private road, thereby evidencing their satisfaction of an important element of Ark. Code Ann. § 27-66-401, authorizing the establishment of legal access. Thus, while appellants knew what they were getting into, they may still avail themselves of alternative statutory remedies and be relieved of the burden of not having access.
Reversed in part; affirmed in part.
Neal and Roaf, JJ. agree.
Arey, Jennings, and Rogers, JJ. dissent. | [
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Andree Layton Roaf, Judge.
On October 21, 1996, appellant Ted Wade pleaded guilty to a charge of first-degree assault and was sentenced to twelve months’ probation. In addition to the requirement that he obey all federal, state, and local laws, Wade was also required to perform 100 hours of community service, and to complete an alcohol-rehabilitation program within six months of sentencing. On May 23, 1997, the prosecuting attorney filed a petition for revocation alleging that Wade violated the terms of his probation by failing to complete his court-ordered community service, and because he tested positive for methamphetamine on May 8, 1997. An amended petition for revocation was filed August 26, 1997, that alleged that Wade violated the terms his probation by committing domestic battery on August 2, 1997, and for failure to complete his court ordered community service. After a hearing, the trial court found that Wade failed to complete his court ordered community service, revoked his probation, and imposed a sentence of twelve months in the Pulaski County detention center. The State presented no evidence as to the alleged use of methamphetamine, and the trial court explicitly declined to find that Wade committed domestic battery after the victim, Wade’s wife, testified that he did not beat her. Wade’s sole argument on appeal is that the trial court erred by revoking his probation due to his failure to complete his community service by the deadline imposed by the probation office. Because the requirement that he complete his community service by the date imposed by the probation office, rather than by the end of his probation period, was not in writing, we reverse.
To revoke probation, the burden is on the State to prove the violation of a condition of probation by a preponderance of the evidence. Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992). On appellate review, the trial court’s findings will be upheld unless they are clearly against a preponderance of the evidence. Id. Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for a probation revocation. Thus, the burden on the State is not as great in a revocation hearing. Since determination of a preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the trial judge’s superior position. Id.
Wade contends that the trial court erred by revoking his probation due to his failure to complete 100 hours of community service by the deadline imposed by the probation office. Wade argues that the court, rather than the probation office, is required to specify the terms and conditions of his probation. Arkansas Code Annotated section 5-4-303 (Repl. 1997) provides:
(a) If the court suspends imposition of sentence on a defendant or places him on probation, it shall attach such conditions as are reasonably necessary to assist the defendant in leading a law-abiding life.
(e) If the court suspends the imposition of sentence on a defendant or places him on probation, the defendant shall be given a written statement explicitly setting forth the conditions under which he is being released.
In addition to the requirement that he obey all federal, state, and local laws, the terms of Wade’s probation required, among other things, that he complete an alcohol-rehabilitation program within six months of sentencing, and that he perform 100 hours of community service. Although the order did not explicitly restrict the time in which Wade was to complete his service, his work-program adviser for the Department of Community Punishment required that he complete the service by working weekends between January 18, 1997, and April 30, 1997. During testimony, the adviser acknowledged that the probation order did not explic-idy provide that Wade complete the service by April and that the length of his probation was through October 1997. However, the adviser stated that she interviewed Wade at the start of his probation to determine his hours of availability to perform community service; Wade indicated that he was available to work eight hours a day on Saturdays and Sundays. Accordingly, she assigned a deadline that allowed him ample time to complete his obligation by the end of April 1997. However, Wade completed only 28 hours of his community service and was not allowed to perform any further services after the petition to revoke was filed on May 25, 1997.
The requirement that the court specify the terms of probation is well settled. In Ross v. State, 268 Ark. 189, 594 S.W.2d 852 (1980), the defendant appealed the trial court’s decision to revoke his probation for violating the terms of his probation by committing aggravated battery and assault. He argued that the order did not explicitly include the requirement that the defendant refrain from criminal conduct. On appeal, the supreme court reversed, holding that:
[A]ll conditions for a suspended sentence, including any requirement of good behavior, must be in writing if the suspended sentence is to be revocable. Therefore, courts have no power to imply and subsequendy revoke conditions which were not expressly communicated in writing to a defendant as a condition of his suspended sentence. This result not only comports with any due process requirements owed to a defendant upon the imposition of a suspended sentence but may serve to deter criminal conduct which a defendant might otherwise commit but for a full appreciation of the extent of his jeopardy.
Id. In Neely v. State, 1 Ark. App. 239, 647 S.W.2d 473 (1983), the trial court granted the State’s petition for revocation upon the introduction of evidence that the probationer had committed burglary and theft of property. Because the State failed to provide the defendant with written terms indicating that his probation could be revoked for inappropriate behavior, the court of appeals reversed the revocation of appellant’s probation. This was done despite the court having “great difficulty in reaching the conclusion that a probationer could misunderstand that a suspended sentence on good behavior requires that he not commit a felony.”
We find these cases to be dispositive to the facts in the present case. We note that as a rule, criminal statutes are strictly construed with any doubts resolved in favor of the accused. Manning v. State, 330 Ark. 699, 956 S.W.2d 184 (1997). The statute clearly states that “the defendant shall be given a written statement explicidy setting forth the conditions under which he is being released.” Ark. Code Ann. § 5-4-303(e). Precedent has established that even implied terms, such as good behavior, must be explicitly included in the written terms of probation in order to revoke for a violation of those terms. Although the written notice of the terms of probation provided to Wade did indicate that he was to perform 100 hours of community service, it did not explicitly impose a deadline of April 30, 1997, rather than completion prior to the end of his period of probation. Because his revocation was based on a failure to comply with a term not included in the written notice, we reverse the decision of the trial court.
Reversed.
Arey and Neal, JJ., agree. | [
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John Mauzy Pittman, Judge.
The appellant, Angela Brown, was charged by amended information with first-degree murder in connection with the death of her child. After a jury trial, she was found guilty of second-degree murder and was sentenced to fifteen years’ imprisonment and fined $5,000. On appeal, she contends that the trial court erred in admitting expert opinion that the death was the result of homicide. We affirm.
Appellant’s two-year-old son died between 8:00 p.m. and 9:30 p.m. on September 9, 1997. It was undisputed that the cause of death was thermal burning, with the child having suffered third-degree burns to over twenty-five percent of his body. It was the State’s theory of the case that appellant had intentionally dipped the child into extremely hot water and waited some six to twelve hours before seeking any medical attention. The State presented evidence that the child was burned no later than early afternoon, that appellant called her adult daughter to come home, and that the baby lay on the bed until that evening. Appellant’s boyfriend testified that he went to appellant’s apartment after work and found no one home. He went to a friend’s home a block and a half away. At least thirty minutes later, appellant arrived pushing the baby in a stroller. She stated that the baby was not breathing and asked that someone call an ambulance. Others who were present attempted to resuscitate the child and called 911.
Paramedics arrived within five minutes and continued to work on the child, who was immediately transported to the hospital. Within minutes of arriving at the hospital, it was determined that the child had been dead for perhaps an hour or more. The emergency-room physician, Dr. David Cauley, testified that, while the burns had probably occurred within twelve hours, they “had not just happened]. . . . [T]here had been plenty of time for the body to react to the burning.” The doctor stated on cross-examination that, based on the location and pattern of the burns, it looked “like the child had been dipped. . . . The burns I saw are typical dunking in hot water type burns.” Before he told appellant that her son was dead, the doctor asked her when the burning had occurred. Appellant said, “I don’t know. I wasn’t there.” Dr. Cauley described appellant’s demeanor as “unconcerned.”
West Memphis Detective Ken Mitchell testified that he interviewed appellant later that evening. He stated that she maintained that, while she was in the kitchen, the child climbed from the toilet to the bathroom sink, turned on the hot water, and burned himself. She went to get him when she heard his cries. She changed her story several times as it related to the length of time that passed between the injury and when she sought medical help, with the period ranging from just minutes to about eight hours. Detective Mitchell stated that appellant was very calm and relaxed throughout this initial interview. However, after he set up a video camera to record appellant’s statement, she became emotional. The detective stated that she appeared to cry and moan, but he never saw any tears.
The State also presented the testimony of Assistant State Medical Examiner Daniel Konzelmann, who performed the autopsy. Dr. Konzelmann testified that the child had suffered third-degree burns to twenty-seven percent of his body. The child was burned on his feet, legs, buttocks, groin, lower back, and right hand. Conspicuously not burned were the areas behind the child’s knees. Dr. Konzelmann also noted a sharp line of demarcation between the burned skin and unburned skin. He stated that he had researched several respected medical journals on the subject of thermal burning and described the various factors that have been determined relevant in deciding whether burns were accidentally inflicted. He stated that, based on his comparison of the leading research to his physical findings and the police reports, it was his opinion that the victim’s injuries were inconsistent with the child having accidentally burned himself. Dr. Konzelmann pointed specifically to such factors as the pattern of the burns, with the distinct line of demarcation being suggestive of dipping and inconsistent with appellant’s explanation; the location of the burns, with the unburned areas behind the knees being consistent with the child having reflexively drawn his legs up when dipped; the length of time between the injury and when medical attention was sought; and the apparent lack of concern shown by appellant. Over appellant’s objection pursuant to Ark. R. Evid. 704, the doctor was then allowed to state his opinion that the manner of the child’s death was “homicide.”
On appeal, appellant contends that the trial court erred in allowing Dr. Konzelmann to state his opinion that the manner of death was homicide. She concedes that the doctor could list and explain the factors that experts in the field look toward to determine the manner of death. However, she argues, the doctor’s opinion that the death resulted from a homicide did more than merely embrace the ultimate issue under Rule 704; it told the jury what to do and thereby impermissibly mandated a legal conclusion. We find no reversible error.
The admission of relevant evidence, whether opinion testimony or otherwise, is a matter within the sound discretion of the trial court, whose decision will not be reversed absent an abuse of discretion. Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998). Rule 704 of the Arkansas Rules of Evidence provides that “[testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Our supreme court has drawn a distinction between “an admissible opinion that ‘touches upon the ultimate issue’ and an opinion, not admissible, that ‘tells the jury what to do.’” Marts v. State, 332 Ark. at 642, 968 S.W.2d at 48 (citing Salley v. State, 303 Ark. 278, 283, 796 S.W.2d 335, 338 (1990)). The clear trend of authority is not to exclude opinion testimony because it amounts to an opinion on the ultimate issue. Marts v. State, supra; Davlin v. State, 320 Ark. 624, 899 S.W.2d 451 (1995); Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984). Such opinion testimony is permissible provided that it does not mandate a legal conclusion. Marts v. State, supra; Davlin v. State, supra. Consistent with these rules, our supreme court has refused to reverse convictions where opinion testimony as to one element of an offense has been admitted. See Salley v. State, supra (in an attempted capital murder prosecution, police officer allowed to testify that defendant appeared to be shooting to kill; opinion testimony dealt with single element, leaving jury to decide ultimate issue of whether all necessary elements were proven beyond a reasonable doubt); Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987) (in a rape case, an expert can offer an opinion that a child has been sexually abused); Jennings v. State, 289 Ark. 39, 709 S.W.2d 69 (1986) (in a child-rape case where the adult defendant’s defense was that another juvenile in the home had committed the offense, a physician was allowed to opine that the victim had been penetrated by an adult penis; “[t]he opinion given was not the ultimate issue to be decided, that being whether [appellant] was guilty”); Long v. State, supra (in a prosecution for driving while intoxicated, police officer allowed to opine that defendant was intoxicated).
From our review of this record, we cannot conclude that the trial court abused its discretion in allowing Dr. Konzelmann to state his opinion that the manner of death was homicide. By so testifying, the doctor did no more than offer an opinion that the child’s life was ended by the act of another person. “Homicide” is defined in Black’s Law Dictionary 734 (6th ed. 1990) in pertinent part as follows:
The killing of one human being by the act, procurement, or omission of another.
Homicide is not necessarily a crime. It is a necessary ingredient of the crimes of murder and manslaughter, but there are cases in which homicide may be committed without criminal intent and without criminal consequences. . . . The term “homicide” is neutral; while it describes the act, it pronounces no judgment on its moral or legal quality.
Thus, the opinion testimony to which appellant objected was different from a conclusory statement that appellant was “guilty of murder.” See Salley v. State, supra; Jennings v. State, supra. As the State argues, in determining appellant’s guilt in this case, the jury was still left to decide whether appellant caused the child’s death and, if so, her culpable mental state, if any.
In any event, we could find no prejudice as a result of the opinion in question in this case. Appellant’s only objection was to Dr. Konzelmann’s opinion that the manner of death was homicide. She did not object to Dr. Cauley’s testimony that it appeared to him as though the child had been dipped in hot water or to Dr. Konzelmann’s conclusion that “the mother intentionally dipped her child” in hot water. Indeed, both statements were elicited by appellant’s counsel on cross-examination. Neither doctor went anywhere near so far in his testimony on direct examination. Evidence that is merely cumulative of other evidence admitted without objection is not prejudicial. Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995).
Affirmed.
Robbins, C.J., and Crabtree, J., agree. | [
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Robert J. Gladwin, Judge.
Barbara Bogard was charged with first-degree forgery and possession of drug paraphernalia in Faulkner County Circuit Court. Pursuant to Ark. R. Crim. P. 24.3, appellant entered a guilty plea conditioned on the outcome of her appeal of the trial court’s denial of her motion to suppress. Appellant raises several points on appeal: (1) the probation officers’ conduct was an unlawful intrusion without probable cause or a search warrant and was not the result ofvalid consent; (2) she was not advised of her Miranda rights and the search exceeded the reasonable scope of a search under the totality of the circumstances; (3) the probation officers were without authority and jurisdiction to conduct a warrant-less search of her home. Because there was simply no evidence as to good faith, which was the basis of the trial court’s finding, we reverse and remand.
At a hearing on appellant’s motion to suppress, Probation Officer Terri Rowlett testified that appellant’s husband, Scott Crow, began his three years’ probation on May 29, 1997, for a felony conviction of fraudulent use of a credit card. As a result of the State’s petition to revoke, Crow’s probation period was extended two years on July 16, 2001. Rowlett stated that on January 25, 2002, she made a routine visit to Crow’s residence. Rowlett testified that appellant, Crow’s wife, opened the door and said she had something on the stove. Rowlett went inside the home, and appellant explained that Crow was at work. The other two probation officers with Rowlett did a “walk through” of the residence. One of the officers informed Rowlett that she had found a plastic corner baggie with residue on a bed. Rowlett called her supervisor and told the supervisor they were going to conduct a full search. Rowlett stated that in the bedroom they found pipes, a baggie with white powder residue, pills in bottles, cigarette cellophanes, a tin box containing pills and four $100 bills, a red bag containing four more $100 bills and one $10 bill, and a baggie of seeds and residue. In the trash they found pieces of burnt tin foil, corner baggies with white powder residue, and a pipe with burnt residue. In the medicine cabinet, they found various pills in cellophane. A pill bottle found in the kitchen cabinet contained empty capsules and loose powder. In a bag in the music room, they found a pipe, straws, and glass. Because the money appeared to be counterfeit, Rowlett called the sheriffs office, and an investigator eventually arrived on the scene.
On cross-examination, Rowlett testified that appellant invited them into the home. Further, Rowlett stated that she did not file a petition to revoke Crow’s probation based on the items found at his residence because he was not present during the search and because his probationary period had expired. She admitted that she and the other probation officers opened drawers and containers and that they questioned appellant about the contraband.
Michelle Ross, a probation officer, testified that appellant let them come inside the house. Ross stated that she asked appellant about the money that looked counterfeit and that appellant told her how she made it on the computer and said she was just fooling around. Ross stated that she did not advise appellant of her Miranda rights before questioning her. At that point, the State conceded that appellant’s statement was not admissible.
Kelli Brock, another probation officer, testified that Rowlett told appellant they were there to do a home visit on Crow and that appellant said that Crow was not there. She stated that they then entered and appellant did not tell them to leave. Brock explained that she was not sure about the exact conversation at the door because she was standing in the yard.
Jim Wooley, an investigator with the Faulkner County Sheriffs Office, testified that the probation officers turned all of the evidence over to him. Based on the evidence and statements from the probation officers, he arrested appellant.
In denying appellant’s motion to suppress, the trial court found that Crow was, or appeared to be, on probation and that the probation officers had the authority to be on the site. The court further found that the probation officers had a good-faith belief that they had authority to search.
Appellant then testified at the hearing. She stated that she was cooking breakfast when the probation officers knocked on her door. She stated that she told them that Crow was not at home. She testified that she told them to wait but that they came inside anyway. Appellant stated that they began to search and started asking questions about what they found. She said that they told her to sit down and would not let her get up from where she sat.
In reviewing the trial court’s denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical fact for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court and proper deference to the trial court’s findings. See Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). The trial court’s ruling will not be reversed unless it is clearly against the preponderance of the evidence. See Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002). We will defer to the trial court in assessing the credibility of witnesses. Id.
A warrantless entry into a private home is presumptively unreasonable, and the burden is on the State to prove the warrantless activity was reasonable. See Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999). A warrantless entry made with consent does not violate the Fourth Amendment; however, consent to a warrantless search of one’s home must be given freely and voluntarily. See id. The State has a heavy burden to prove by clear and positive testimony that consent was freely and voluntarily given. Id. Consent cannot be presumed from proof that a person merely acquiesced to police authority nor from an absence of proof that a person resisted police authority. See id.
Although it was not in the record, the State contends that Crow had executed a consent to search form pursuant to being placed on probation. In all three of her arguments on appeal, appellant points out that Crow’s probation was illegally extended and that any consent to search on Crow’s part ceased when his probationary period expired. The State essentially concedes that the revocation and subsequent extension of Crow’s probation was invalid but contends that the search of Crow’s residence, pursuant to what Rowlett believed to be a valid order of probation and consent to search, falls under the good-faith exception to the exclusionary rule set out in United States v. Leon, 468 U.S. 897 (1984). The State relies on a case involving a similar situation where a probationer’s search waiver had expired. See People v. Downing, 33 Cal. App. 4th 1641 (1995), cert. denied, Downing v. California, 516 U.S. 1120 (1996). Citing Leon, supra, the court in Downing noted:
Where . . . the search is later found to be invalid, as in this case where it was conducted pursuant to a probation condition or “consent” that had expired, i.e., was nonexistent, at the time of the search, a Fourth Amendment violation is shown and the question thus becomes whether such constitutional violation is appropriately remedied by the application of the judicially created exclusionary rule which prohibits the admission at trial of the evidence obtained during the unlawful search.
Id. at 1650-51.
That case is distinguishable. There, a police officer received information that Downing was engaged in drug activity. The officer then ran Downing’s name on the police department’s “criminal history” computer log, which indicated that Downing was subject to a search waiver that was still in effect. The officer double-checked that information with a “Fourth Amendment Log” to verify that the waiver expired on the same date as listed in the police computer log. This procedure was in compliance with the police department’s policy regarding verification of search waivers before conducting warrantless searches. When the officer found that the dates were the same, he believed the search waiver was valid. Although Downing told him prior to the search that he was no longer on probation, the officer conducted a search anyway. It was later determined that Downing’s search waiver was, indeed, no longer valid and that there had been a computer error. At the suppression hearing, the court clerk who made the entry error testified as to how the error occurred. Downing presented the testimony of his probation officer and a person from the Probation Department records section. They testified that if the officer had called them, as many police officers do, they could have easily given him information about Downing’s probation status. The appellate court held that the trial court had erred in granting Downing’s motion to suppress because the officer acted in objectively reasonable good faith. The court further held that the officer was presented with facially valid computer information produced by the superior court and that the officer was not required to exhaust all avenues of investigation when he had no reason to question the computer information in front of him. Finally, the court held that to apply the exclusionary rule would not serve to promote its purpose of deterring unlawful police conduct.
In the case at bar, the search of appellant’s residence was carried out by probation officers and not the police. As probation officers, they should have been in a better position to know the status of Crow’s probation. The revocation and extension of Crow’s probation was clearly an illegal sentence because Crow’s probationary period had already expired. Here, there was no evidence as to what information the probation officers relied on in conducting a walk-through of the residence or, for that matter, whether they even consulted their records. While the State suggests that the probation officers relied on a consent to search form that Crow signed, that form is not in the record for our review to determine the nature of the consent. Moreover, there was no evidence as to what the probation officers believed regarding their authority. Even assuming that the good-faith exception applies under these circumstances, we cannot agree with the trial court’s finding that the probation officers believed they had the authority to search and were acting in good faith with regard to the initial entry. There is simply no evidence to support that conclusion without speculating.
The State also contends that appellant had a diminished expectation of privacy in cohabiting with a probationer. Instead of pressing the issue as to whether appellant consented to the search, the State argues that, irrespective of appellant’s consent or lack thereof, the probation officers were entitled to rely on the order of probation allowing them to do a walk-through search of the residence. Crow, however, was not a probationer at the time of the search. Because his consent was no longer a valid basis for the search, the probation officers had to have had appellant’s consent to search. It is doubtful that the State could have met its burden of proving that any consent by appellant was freely and voluntarily given when she was faced with three probation officers who alleged that they had the authority to search the residence because Crow was a probationer. Even assuming that appellant specifically invited the probation officers inside her home instead of merely acquiescing to their entry, there was no testimony that appellant consented to the subsequent search.
Because of the lack of evidence as to the probation officers’ good faith in their initial entry of residence, we cannot say that the probation officers were entitled to rely on Crow’s consent given in conjunction with a probation order that had expired. Accordingly, we hold that the trial court erred in denying appellant’s motion to suppress.
Reversed and remanded.
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John E. Jennings, Chief Judge.
Michael Hawkins was convicted of driving while intoxicated in Prairie Grove Municipal Court on January 18, 1991. Appellant filed a timely notice of appeal with the clerk of the Washington County Circuit Court and filed an affidavit of appeal with the clerk of the Prairie Grove Municipal Court on February 6, 1991.
The municipal court clerk never lodged the record on appeal in circuit court and on June 18, 1992, the court dismissed the appeal. The sole argument here is thát the judge erred in his interpretation of Arkansas Code Annotated section 16-17-213 (Supp. 1991). We find no error and affirm.
The cited statute provides:
If a party appeals from a justice of the peace judgment or a municipal court judgment, the clerk of the court or the justice of the peace of the court from which the appeal is taken must file the transcript of the judgment in the office of the circuit court within thirty (30) days after the rendition of the judgment.
Appellant notes that the earlier version of this act provided, “the clerk of the municipal court shall. . . lodge the transcript with the circuit clerk...” and argues that the change in the wording from “shall” to “must” shows that the general assembly intended that the appellant have no responsibility for lodging the record on appeal. We see no reason to agree. Under both versions of the statute the municipal court clerk clearly is charged with the responsibility for filing the record of the proceedings with the circuit court. Compliance with this section has been said to be mandatory and jurisdictional. Wheeler v. City of Arkadelphia, 254 Ark. 533, 495 S.W.2d 862 (1973). But when it is clear that the court [or the clerk] will not file the transcript, “the party appealing must assume the burden of taking prudent and diligent measures to protect his right of appeal, eliminating burdens of a character completely beyond his control.” Wheeler, supra; Brown v. Curtis, 254 Ark. 162, 492 S.W.2d 235 (1973).
Appellant contends that he was left without a remedy, but the court in Brown noted that a party in such circumstances may file a motion for a rule on the clerk or a petition for a writ of mandamus. We also see no reason why appellant could not have filed a partial record in the circuit court and petitioned for a writ of certiorari directing the municipal court clerk to lodge the record on appeal. See e.g., Forrest City Machine Works v. Mosbacher, 312 Ark. 578, 851 S.W.2d 443 (1993).
Our conclusion is that the circuit court was correct in determining that it lacked jurisdiction to hear the appeal.
Affirmed.
Cooper and Rogers, JJ., agree. | [
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Per Curiam.
This is the second motion to dismiss this appeal filed by the appellee in this case. In her first motion to dismiss, the appellee urged us to dismiss the appeal on the grounds that the appellant designated the entire record as the record on appeal, but failed to order the entire record as designated. In our per curiam of January 6,1993, we denied that motion to dismiss but granted the appellee ten days to designate additional portions of the record. In her present motion, the appellee asserts that, although she designated additional testimony pursuant to our per curiam and to Ark. R. App. P. 6(b), the appellant did not order the additional testimony from the court reporter. The appellant concedes that he did not order the additional testimony, but argues that his failure to do so is excused because he raised only one issue on appeal, and the additional material designated by the appellee could not be relevant to that issue.
The rule applicable to this case was enunciated by the Arkansas Supreme Court in Arkansas Farmers Association v. Townes, 232 Ark. 997, 342 S.W.2d 83 (1961):
In short, we hold that, in the absence of a court order to the contrary, the appellant must file in this Court the record designated by both parties or suffer the appeal to be dismissed for failure to file a designated record and appellant cannot, on his own determination, cast on appel-lee the burden of paying for the additional record designated.
Rule 6 of the Arkansas Rules of Appellate Procedure mandates that the appellant shall direct the court reporter to include in the transcript all testimony designated by the appellee. This rule was promulgated by the Supreme Court and, even should we wish to change it, we would lack the authority to do so. Therefore, because the appellant admits that he failed to order the additional record as designated by the appellee, and in the absence of any application for an adjustment of costs or other protective order by the appellant, we are constrained to dismiss his appeal.
Appeal dismissed.
Mayfield, J., dissents. | [
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Judith Rogers, Judge.
This is an appeal from a judgment setting forth appellee’s entitlement to the proceeds of an insurance policy. As the only issue on appeal, appellant contends that the trial court erred in denying its motion to dismiss. We sustain appellant’s argument and reverse.
Appellee, Lucy Jackson, brought this lawsuit in the Craig-head County Circuit Court against the John Hancock Life Insurance Company. In her complaint of February 4, 1991, appellee alleged that she was entitled to the proceeds of an insurance policy the company had issued on the life of Billy G. Henson because she was the named beneficiary at the time of Henson’s death. The appellant, Mary Reyes, in her capacity as the Administratrix of the Estate of Billy G. Henson, filed a motion to intervene in this lawsuit. In the motion, the estate alleged that it had an interest in the proceeds by virtue of a default judgment which was granted the estate against appellee on November 19, 1990, by the Chancery Court of Randolph County. The trial court allowed the intervention. The life insurance company thereafter interpled the proceeds of the policy and appellee’s claim against it was dismissed with prejudice.
The subject of this appeal is the denial of appellant’s motion to dismiss. In this motion, appellant contended that principles of res judicata and collateral estoppel barred appellee from re-litigating her claim to the proceeds because of the default judgment rendered against her in the Randolph County Chancery Court. In the chancery court action, the estate had sued appellee over the proceeds of the policy. In the default judgment, which was attached as an exhibit to the motion, it was specifically found by the chancery court that appellee had procured the change of beneficiary of the life insurance policy by fraud, and the court declared the proceeds to be property of the estate . The trial court, however, denied appellant’s motion to dismiss reasoning that the actual dispute over the proceeds was among appellee, the insurance company and Mary Reyes, who was the beneficiary of the policy just prior to the change to appellee. The trial court then concluded that, since neither Ms. Reyes nor the insurance company were parties to the former lawsuit, neither res judicata nor collateral estoppel barred appellee’s present suit. The court further stated that the estate had no interest in the matter since insurance proceeds typically vest outside of an estate. On appeal, appellant contends that the trial court’s ruling was in error. We agree.
Collateral estoppel, or issue preclusion, bars the relitigation of issues of law or fact actually litigated by the parties in the former suit. Cater v. Cater, 311 Ark. 627, 846 S.W.2d 173 (1993). Issue preclusion, or the collateral estoppel aspect of res judicata, is limited to those matters previously at issue which were directly and necessarily adjudicated. Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 916 (1985). In the former lawsuit between appellant and appellee, it was decided that appellee fraudulently induced the deceased to name her as the beneficiary of the policy. It was also settled that the estate was to receive the proceeds of the life insurance policy. In the present case, appellee asserted that she was entitled to the proceeds as the named beneficiary. Because the issue of ownership was decided in the previous lawsuit, appellee is collaterally estopped from again litigating the matter. It follows that the trial court erred in denying appellant’s motion to dismiss.
We also disagree with the trial court’s conclusion that the estate had no interest in the matter since life insurance proceeds pass outside an estate. Such reasoning is tantamount to a collateral attack on the default judgment. A judgment by default is just as binding and enforceable as a judgment entered after a trial on the merits. Murry v. Mason, 42 Ark. App. 48, 852 S.W.2d 830 (1993). Where a court has jurisdiction of the subject matter, its judgment, even if erroneous, is conclusive so long as not reversed and cannot be attacked collaterally. Rowland v. Farm Credit Bank, 41 Ark. App. 79, 848 S.W.2d 433 (1993).
In this review we have not overlooked appellee’s assertion that collateral estoppel does not apply because Mary Reyes, as an individual, was not a party to the previous lawsuit. In support of the trial court’s decision, appellee contends that the default judgment does not inure to Ms. Reyes’ benefit because the default was in favor of Ms. Reyes as the administratrix of the estate. We do not consider the question of whether Ms. Reyes, individually, can assert collateral estoppel for the simple reason that Ms. Reyes does not appear to be a party to this litigation. The party who intervened in this lawsuit was Mary Reyes, but only in her capacity as the administratrix of the estate. Similarly, the motion to dismiss was asserted on behalf of the estate, and the party who has appealed from the judgment is Mary Reyes, as the administratrix of the estate. Although it appears that Ms. Reyes was given leave to intervene, she did not do so as the record reveals no pleadings or appearances entered on her behalf. Moreover, neither the style nor the language of the judgment mentions Ms. Reyes individually. We also note that she was not otherwise joined as a party to this action. In short, the issue of whether Ms. Reyes can assert that the former judgment as a bar to appellee’s suit is not properly before us because Ms. Reyes is not a party to this litigation. Any comment on this issue would transgress the settled practice of not discussing questions of theoretical interest only. Russell v. Miller, 253 Ark. 583, 487 S.W.2d 617 (1972).
Reversed.
Jennings, C.J., and Pittman, J., agree.
During the pendency of the instant litigation, appellee was pursuing an appeal from the default judgment. We affirmed the chancery court’s denial of her motion to set aside the default judgment in an unpublished opinion, Jackson v. Reyes, as Adminstratrix of the Estate of Henson, CA 91-139 (February 26, 1992). | [
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Melvin Mayfield, Judge.
This is an appeal from the chancellor’s order denying appellant’s petition for a change in custody.
Appellant Richard Franklin Anderson and appellee Robin Annette Anderson (Prault) were divorced on March 14, 1991. Custody of the parties’ minor child Tamara Anderson, born February 3, 1989, was awarded to the appellee. On May 27, 1992, the appellant filed a motion for change of custody alleging Tamara had been in the custody of Brenda Calva, her maternal grandmother, since May 1991 and that appellee is mentally and financially unstable. On September 30, 1992, the chancellor entered a decree which, among other things, continued custody with the appellee and ordered appellee and her present husband, Mr. Prault, to attend counseling.
Appellant first argues that the chancellor’s decision is against the preponderance of the evidence and is clearly erroneous. He says the choice was between awarding custody to a man who was an excellent father, and awarding custody to a woman who had lived a life that was unsuitable for the raising of children, and who would not be a suitable person to have custody if she continued to live as she had in the past.
At the hearing on appellant’s motion for change of custody there was evidence that the parties’ two sons, who were not mentioned in the divorce but who live with the appellant, are happy and well adjusted; that the appellant’s house is nice and clean; that he has a stable job; that Tamara loves him; and that he has no current drug or alcohol problems.
There was also evidence that the appellee had three children in addition to Tamara, that she maintained very little contact with her other children, had given up guardianship of Tamara, had twice attempted to commit suicide, could not hold a job, was promiscuous, had a somewhat violent nature, was emotionally unstable, and was married to a man who had assaulted his former wife and who had been awarded only supervised visitation with his own child.
But, Barbara Bunton, a licensed clinical social worker, testified she had done a home study of appellee and found the physical environment adequate and that she had no concerns about placing Tamara with the appellee and Mr. Prault. On cross-examination Ms. Bunton testified she was not aware that Mr. Prault was convicted of third degree battery in 1991, that he had attempted to commit suicide in the near past, or that appellee had also attempted to commit suicide. After reviewing some confidential court records, Ms. Bunton testified that both suicide gestures appeared to be “just that, gestures, reactive depression,” — his following a divorce with his wife and frustration over visitation problems and hers after a “big blowout” with her mother — and that if the court were to order family counseling she would have no qualms about placing Tamara with them.
Moreover, the evidence showed that Brenda Calva, appel-lee’s mother, obtained guardianship over Tamara because Mrs. Calva was concerned about obtaining medical care for Tamara. Appellee agreed to the guardianship, but it was part of their agreement that when appellee became able to take care of Tamara, Mrs. Calva would return her. Shortly before filing the motion for change in custody, the appellee filed a petition to set aside the guardianship, but the guardianship continued until the hearing on the motion to change custody.
Finally, we note that during the testimony the chancellor stated:
[S]he was granted custody of this child in March of 1991. Nobody in her family, her husband at the time, her mother or her sister or anybody else came forward to tell this Court that this was a bad deal and that this child was in danger or at risk.
Now, the law says for me to — I’ve listened to so much today that my mind is beginning to kind of get boggled with it. I want to know how the circumstances have changed, and if so, how significant it is since March 14, 1991.
I have really been patient of listening to stuff back twelve and fourteen years ago and even seven and eight years ago. I want to know how things have changed since March 14,1991, and I’m going to restrict everybody from that day forward to that.
A change in custody cannot be made without showing a change in circumstances from those existing at the time the original order was made as the original decree constitutes a final adjudication of the issue. Carter v. Carter, 19 Ark. App. 242, 719 S.W.2d 704 (1986). The primary consideration in awarding the custody of children is the welfare and best interests of the children involved; other considerations are secondary. Scherm v. Scherm, 12 Ark. App. 207, 671 S.W.2d 224 (1984). Moreover, in a child custody case, the chancellor’s findings will not be reversed unless they are clearly against the preponderance of the evidence. Ketron v. Ketron, 15 Ark. App. 325, 692 S.W.2d 261 (1985). In Calhoun v. Calhoun, 3 Ark. App. 270, 625 S.W.2d 545 (1981), we said:
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.
3 Ark. App. at 273.
After careful consideration of the record in this case, we cannot say that the decision of the chancellor was clearly against a preponderance of the evidence or clearly erroneous.
Appellant also argues the chancellor erred in not basing his decision on the best interest of the child. He contends the court did not base its decision on the best interest of the child, but rather sought to give the appellee one last chance to be a mother. We do not agree.
At the conclusion of the hearing the trial judge stated “the hardest thing any judge can do, is to decide who is — what would be in the best interest of a child when more than one party wants custody of a child.” He said he has “to do what’s in the best interest of the child within the best of my ability.” The chancellor stated that Tamara deserves to know her mother and he is going to give the appellee the chance to give Tamara the nurture and the love and upbringing Tamara deserves, needs, and is entitled to. The judge also noted that the appellant and appellee both have had “a bad, stormy past.” He said the appellant had admitted to drug habits in the past, although he appears to be an excellent father now. The judge also said he was requiring the appellee and her present husband to seek counseling and he wanted a report from the counseling center every three months.
We cannot say the trial judge did not consider the child’s best interest or that his decision in that regard was clearly erroneous.
Affirmed.
Jennings, C.J., Pittman and Robbins, JJ., dissent. | [
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John F. Stroud, Chief Judge.
This is from the trial court’s denial of the City of North Little Rock’s motion to dismiss and the trial court’s grant of summary judgment to Travelers Indemnity Company. We reverse and remand for further proceedings consistent with this opinion.
On November 29, 1999, appellant, who was driving a vehicle owned by his employer, was struck by a vehicle driven by Louis Storke and owned by the City of North Little Rock (“the City”). At the time of the accident, the City vehicle was insured under a motor-vehicle policy issued by Reliance Insurance Company, and appellant’s vehicle was insured under a policy issued by appellee Travelers Indemnity Company. The Travelers policy provided uninsured and underinsured motorist benefits (UM/UIM) in the amount of $300,000.
On August 2, 2000, appellant sued Storke and the City for negligence. A little more than one year after suit was filed, the City’s insurance carrier, Reliance, was declared insolvent. Thereafter, the City asked to be dismissed from the lawsuit on the grounds that it was immune from liability, under the statutory grant of immunity found in Ark. Code Ann. § 21-9-301 (a) (Repl. 2004). Appellant responded that the City was not immune because it had failed to comply with the dictates of Ark. Code Ann. § 21-9-303(a) (Repl. 2004), which provides that municipalities must carry liability insurance on their motor vehicles or become self-insurers for the minimum amounts prescribed in the Motor Vehicle Safety Responsibility Act. According to appellant, because Reliance had become insolvent, the City no longer had motor-vehicle insurance and was therefore a self-insurer. The trial court entered an order denying the City’s motion to dismiss and finding that the City had become a self-insurer.
In reliance on that ruling, Travelers Indemnity Company, which appellant had brought into the lawsuit for the purpose of seeking UM/UIM benefits, moved for summary judgment based on the following policy language that excluded self-insured vehicles from UM and UIM coverage:
“Uninsured motor vehicle” does not include any vehicle:
(1) Owned or operated by a self-insurer under any applicable motor vehicle law . . .
“Underinsured motor vehicle” does not include any vehicle:
a. Owned or operated by a self-insurer under any applicable motor vehicle law.
Based on its previous order that the City was a self-insurer, the trial court ruled that Travelers was entitled to summary judgment in light of the above-quoted policy language.
Appellant now appeals from the trial court’s grant of summary judgment to Travelers, and the City cross-appeals from the trial court’s finding that it was a self-insurer. We address the cross-appeal first, as our appellate courts have done in several cases in which the issue on cross-appeal contained the central issue to be decided. See Leonards v. E.A. Martin Mach. Co., 321 Ark. 239, 900 S.W.2d 546 (1995); McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991). In this case, the issue on cross-appeal is dispositive of the entire appeal.
The City argues in its cross-appeal that the trial court erred in declaring the City to be a self-insurer under Ark. Code Ann. § 21-9-303(a) because, at the time of the accident, the City had in full force and effect a motor-vehicle liability insurance policy, as required by that statute. We agree.
Arkansas Code Annotated section 21-9-303 requires that all municipalities “shall carry liability insurance on their vehicles or shall become self-insurers.” The statute does not require a municipality to guarantee the solvency of its insurer. In this case, the City did what was required of it by law, i.e., procured motor-vehicle liability coverage in the statutorily-required amounts. The coverage was in effect when the accident occurred, and there is no evidence that the City could have anticipated that its carrier would become insolvent. Further, it is so clear as to be axiomatic that, once the City’s insurer became insolvent, the City could not acquire insurance that would cover an accident that had already happened. Thus, the City should not be relegated to the status of a self-insurer, as our supreme court has indicated should be done with political subdivisions who simply fail to procure the required insurance coverage. See King v. Little Rock Sch. Dist., 301 Ark. 148, 782 S.W.2d 574 (1990); Thompson v. Sanford, 281 Ark. 365, 663 S.W.2d 932 (1984); Sturdivant v. City of Farmington, 255 Ark. 415, 500 S.W.2d 769 (1973).
In light of the foregoing, we reverse and remand this case to the trial court for further proceedings consistent with this opinion. As for the grant of summary judgment to Travelers, the trial court granted Travelers’ motion based on the faulty premise that the City was a self-insurer. Thus, the summary judgment, which was based on language in the Travelers policy that excluded self-insured vehicles from UM/UIM coverage, had its genesis in the trial court’s incorrect conclusion that the City was a self-insurer. Therefore, the summary judgment is likewise reversed.2
Reversed and remanded.
Hart and Vaught, JJ., agree.
The minimum amount required for personal injury liability coverage is $25,000 per individual and $50,000 per accident. Ark. Code Ann. § 27-19-713(b)(2) (Repl. 2004). | [
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Sam Bird, Judge.
A.G. Edwards & Sons, Inc. (Edwards), and Stanley Zunick, Jr. (Zunick), appeal from an order of the Garland County Circuit Court denying their motion to arbitrate appellee Richard Myrick’s claims against them. The primary issue on appeal is whether appellee’s agreement to arbitrate “any controversy” with Edwards, which was contained within a 1986 customer’s agreement signed by appellee and his former wife, Kathryn Myrick, in reference to a joint account, applied to a dispute involving three custodial accounts that appellee opened for his daughters in 1995. We hold that it did apply and that the trial court erred in denying appellants’ motion for arbitration.
In 1986, in conjunction with the opening of a joint account with Edwards, the Myricks signed a customer agreement that began with the following statement:
In consideration of A.G. Edwards & Sons, Inc., or any successor thereof (hereinafter referred to as “Edwards”) accepting one or more accounts of the undersigned (whether designated by name, number or otherwise) for the purchase, sale or carrying of securities, commodities and options, or contracts relating thereto, and other property (hereinafter collectively referred to as property), the undersigned agrees as follows:
In Paragraph 14, the agreement stated that it would cover “individually and collectively all accounts which the undersigned may at any time maintain with Edwards” and that it would “continue in effect until written notice of revocation is received by the Director of Operations of Edwards from the undersigned.”
The agreement also contained the following arbitration provision, which provided in relevant part:
The following agreement to arbitrate may not apply to any controversy or claim or issue in any controversy with a public customer for which a remedy may exist pursuant to a right of action under the federal securities laws, or to any controversy with a public customer involving transactions in commodity futures contracts or options thereon unless agreed to by the undersigned in a separate endorsement:
ANY CONTROVERSY BETWEEN THE UNDERSIGNED AND EDVARDS OR ANY OF EDWARDS’ OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES ARISING OUT OF THIS AGREEMENT OR THE PERFORMANCE OR BREACH OF THIS AGREEMENT, OR ANY ACCOUNT WITH EDWARDS, OR ANY TRANSACTION BY THE UNDERSIGNED WITH OR THROUGH EDWARDS, OR ANY OTHER CAUSE WHATSOEVER, SHALL BE SETTLED BY ARBITRATION IN ACCORDANCE WITH THE APPLICABLE STATE OR FEDERAL ARBITRATION STATUTES and in accordance with the rules of The American Arbitration Association, the National Association of Securities Dealers, Inc., or such securities exchange as the undersigned may elect. . . . The award of any arbitrators appointed pursuant hereto shall be final, and judgment upon the award rendered may be entered in any court having jurisdiction.
In 1995, appellee opened custodial accounts for the parties’ three children, using funds from the Myricks’ joint account. Zunick was the investment broker who opened these accounts. Appellee did not sign a new customer’s agreement. The Myricks were subsequently involved in a contentious divorce, and Kathryn was awarded custody of their children. Although the litigation continued, the couple was divorced in late 1997. In 1998, appellee asked Edwards to transfer the three custodial accounts from its Hot Springs, Arkansas branch to its Gulfport, Mississippi branch. After Edwards did so, appellee withdrew the balances from the three custodial accounts and allegedly deposited those funds into one of his mother’s accounts. In February 2001, in the divorce case, Kathryn served a subpoena on Edwards’s home office in St. Louis, Missouri, requesting all documents relating to the custodial accounts in its possession. Edwards produced the requested documents. In April 2001, Kathryn sued appellee and his mother for restitution and an accounting. Zunick also provided an affidavit concerning the custodial accounts.
In April 2003, appellee filed a counterclaim naming Kathryn, Edwards, and Zunick as defendants. Requesting damages in the amount of $10,000,000, he alleged invasion of privacy, violation of federal privacy law, breach of fiduciary duty, abuse of process, and violation of the Arkansas Civil Rights Act in Edwards’s and Zunick’s release of information to Kathryn. Edwards and Zunick moved to compel arbitration. They relied upon the 1986 arbitration provision quoted above and alleged that, because interstate commerce was involved, the Federal Arbitration Act applied. After a hearing, the circuit court entered an order denying the motion to compel arbitration. This appeal followed.
Our review of a trial court’s denial of a motion to compel arbitration, which is available as a permissible interlocutory appeal, is de novo. IGF Ins. Co. v. Hat Creek P’ship, 349 Ark. 133, 76 S.W.3d 859 (2002); Walton v. Lewis, 337 Ark. 45, 987 S.W.2d 262 (1999).
On appeal, appellants assert, and it is undisputed by appellee, that the Federal Arbitration Act (FAA) applies to this case. The FAA provides that a written provision in a contract evidencing a transaction involving commerce to arbitrate a controversy arising out of that contract is valid and enforceable, “save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2 (2000). The FAA, instead of the Arkansas Uniform Arbitration Act, applies when the underlying dispute involves interstate commerce. Walton v. Lewis, supra. Section 1 of the FAA defines “commerce” as “commerce among the several States. ...” 9 U.S.C. § 1 (2000). State and federal courts have concurrent jurisdiction to enforce an arbitration agreement pursuant to the terms of the FAA. Walton v. Lewis, supra.
Appellants contend that the arbitration provision in the 1986 agreement was so broad that it covered any controversy and all claims relating to all of appellee’s accounts with Edwards, regardless of when they were opened. They point out that the customer’s agreement was not limited to a particular account or to accounts opened by appellee in any particular capacity. In response, appellee notes that the account cards created by Edwards in 1995 for the custodial accounts did not reflect that those accounts were subject to arbitration and did not refer to the 1986 agreement; that the “customer agreement” boxes were not checked on the 1995 account cards; and that he signed the 1986 agreement as an individual and opened the 1995 accounts as a custodian. Appellee, however, did not sign the account cards maintained by Edwards for the custodial accounts; in this case, there is only one contract to construe — the 1986 customer’s agreement.
Because the duty to arbitrate is a contractual obligation, we must first determine from the language of the arbitration agreement whether the parties intended to arbitrate the particular dispute in question. Walton v. Lewis, supra. In addressing whether a party has entered into an agreement to arbitrate under the FAA, courts are to apply general state law principles, giving due regard to the federal policy favoring arbitration. Volt Information Sciences, Inc. v. Board of Trustees of the Leland Stanford Junior Univ., 489 U.S. 468 (1989). The same rules of construction and interpretation apply to arbitration agreements as apply to agreements generally. Neosho Constr. Co. v. Weaver-Bailey Contractors, 69 Ark. App. 137, 10 S.W.3d 463 (2000). A contract is unambiguous and its construction and legal effect are questions of law when its terms are not susceptible to more than one equally reasonable construction. Fryer v. Boyett, 64 Ark. App. 7, 978 S.W.2d 304 (1998). When contracting parties express their intention in a written instrument in clear and unambiguous language, it is the court’s duty to construe the writing in accordance with the plain meaning of the language employed. Id.
We believe that the arbitration agreement is unambiguous and that it required the arbitration of any controversy between appellants and appellee arising from any account with Edwards. The agreement expressly stated that it was made in consideration of Edwards’s accepting “one or more accounts” of appellee, and its scope was broad and expansive, covering “any controversy” between the parties “arising out of this agreement or the performance or breach of this agreement, or any account with Edwards, or any transaction” by appellee with Edwards, “or any other cause whatsoever. . . .” The agreement did not limit its application to accounts that appellee opened in any particular capacity or to accounts then in existence. Also, the parties did not later create any document that expressly or by implication excepted the custodial accounts from the terms of the arbitration agreement, nor did they revoke the 1986 agreement. We therefore conclude that the parties had a valid arbitration agreement that included appellee’s claims against appellants and that the circuit court erred in refusing to compel arbitration.
Reversed and Remanded.
Hart and Baker, JJ., agree. | [
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Wendell L. Griffen, Judge.
The sole issue in this case is whether $14,200 that appellant Alex Franks found in the dresser drawer of his hotel room was mislaid. The White County Circuit Court found that the money was mislaid and ordered that the money be returned to appellees J.K. and Seddika Kazi, the hotel owners. We affirm.
Appellant was staying at a Comfort Inn in Searcy, Arkansas, while working on a highway project. He checked into the hotel on Monday, September 10, 2001, and found the money at issue on Wednesday, September 12, 2001, after he had checked out and had returned to his room to retrieve his laundry. His room had been cleaned but was not yet occupied by another guest. Appellant found the money in plain view in the left part of the left drawer of his dresser. It was wrapped tightly with masking tape, like a brick, with some of the bills showing.
Appellant notified Perri Pritchett, the hotel manager, who notified the police. The police determined that there were two bundles of money separated by denominations and then bundled together. The bundle contained forty-six one-hundred-dollar bills and four-hundred eighty twenty-dollar bills, for a total of $14,200. The officer who took custody of the money testified that the money appeared to be intentionally and meticulously wrapped because all the bills faced the same direction. The City of Searcy held the money in trust, pending the outcome of this case.
Appellant filed an action against the City of Searcy, claiming ownership of the money. The City of Searcy counterclaimed, asserting an interest in the money and asserting that the Kazis and Pritchett should be joined as parties to the suit. The Kazis answered the third-party complaint, but Pritchett did not. The City of Searcy subsequently withdrew its claim.
At the hearing, the circuit court found Pritchett to be in default for any claim to the property. The court observed that the hotel had a history as being a site for drug trafficking, but rejected the possibility that the money was drug-related and should be considered abandoned. The court also commented that not much effort was put into concealing the money; however, the court was convinced that someone knowingly put the money into the drawer. The court ruled that the property was mislaid, as opposed to lost or abandoned, and that the money should be surrendered to the Kazis, to be held in trust until it was retrieved by the owner. In its written order, the court expressly relied upon Terry v. Lock, 343 Ark. 452, 27 S.W.3d 202 (2001), and found that the property was neither abandoned nor a treasure trove, and therefore, found that the money was either lost or mislaid. Because the money had been placed in a drawer, as opposed to being found on the floor, the court concluded that the money had been mislaid and forgotten. It further dismissed any claims of appellant, the City of Searcy, and Pritchett. This appeal followed.
The rights of a finder of property depend on how the found property is classified, and the character of the property should be determined by evaluating all the facts and circumstances present in the particular case. Id. The Arkansas Supreme Court uses the classifications of found property that were used at common law: abandoned, lost, mislaid, and treasure trove. Id.
Property is abandoned when it is thrown away or when its possession is voluntarily forsaken by the owner, in which case it will become the property of the finder. Property is also abandoned when it is involuntarily lost or left without the hope and expectation of again acquiring it. Abandoned property becomes the property of the finder, subject to the superior claim of the owner. Id.
Lost property is property that the owner has involuntarily parted with through neglect, carelessness, or inadvertence and of whose whereabouts the owner has no knowledge. Id. Only if the owner parted with the possession of the property involuntarily and does not know thereafter where to find it, may the property be deemed to be lost property. Id. Property will not be considered to have been lost unless the circumstances are such that, considering the place where, and the conditions under which, it is found, there is an inference that it was left there unintentionally. Id. The finder of lost property does not acquire absolute ownership, but acquires only such property interest or right as will enable him to keep it against all the world but the rightful owner. Id.
Mislaid property is property that is intentionally put into a certain place and later forgotten. Id. Mislaid property is presumed to have been left in the custody of the owner or occupier of the premises upon which it is found. A finder of mislaid property acquires no ownership rights in it, and, where such property is found upon another’s premises, the finder is required to turn it over to the owner of the premises. Id. The owner of such premises becomes a gratuitous bailee by operation of law, with a duty to use ordinary care to return it to the owner and is absolutely Hable for a misdelivery. The place where money or property is found is an important factor in the determination of the question of whether it was lost or mislaid. Id.
A treasure trove is money, whose owner is unknown, found concealed in the earth or in a house or other private place, but not lying on the ground. Id. To be classified as treasure trove, the money must have been hidden or concealed so long as to indicate that the owner is probably dead or unknown. Title to treasure trove belongs to the finder, against all the world except the true owner. Id.
In Terry v. Lock, supra, money was also found in a motel. In that case, the finder, an independent contractor working to remove material in preparation for hotel renovations, found a dust-covered cardboard box near the heating and air supply while removing ceiling tiles. The box contained old currency in varying denominations valued at $38,310. In determining that the property was mislaid, the Lock court specifically affirmed the trial court’s finding that the money was intentionally placed where it was found for security purposes and to shield it from unwelcome eyes.
Appellant argues that the circuit court erred in reasoning that, simply because the money was placed in a drawer, it was mislaid. He asserts that this reasoning also supports a finding that the property was lost, abandoned, or treasure trove property. Appellant argues that, in contrast to the facts in Terry v. Lock, supra, here, there is no reason to believe that the true owner left the money in the drawer of a public motel room for security purposes with the expectation of returning to claim it. Appellees argue that the circuit court properly inferred that the money was placed into the drawer intentionally. They point to the fact that the money was intentionally and meticulously wrapped. They also argue that common sense and logic defy that the owner intended to part with such a large amount of money.
A trial court’s determination as to the status of found property will not be reversed unless it is clearly erroneous. Terry v. Lock, supra. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite conviction that a mistake was committed. Hedger Bros. Cement & Materials v. Stump, 69 Ark. App. 219, 10 S.W.3d 926 (2000). We affirm on these facts because the fact that the money was found in a drawer supports a finding that it was intentionally placed there rather than being carelessly or inadvertently dropped by an otherwise unsuspecting owner.
From the bench and in its written order, the court noted that if the money had been found on the floor instead of in a drawer, it could have been said to have been lost. The court also stated:
It appears to me that the only way I can see this is that somebody put the money in the drawer. Again, it did not fall in the drawer. If they put the money in the drawer, they knew they put the money in the drawer. There is insufficient evidence to find that it’s abandoned property. The only conclusion then that I can reach is that it was mislaid property and the court is going to find that it is mislaid property.
Thus, the trial court concluded that, because the money was intentionally placed in the drawer, it had not been abandoned (voluntarily forsaken by the owner) or lost (through neglect, carelessness, or inadvertence).
The trial court’s reasoning is consistent with the principle that the place where money or property is found is an important factor in determining whether it was lost or mislaid. To reason by analogy, if one leaves a wallet in a drawer, there is no greater reason to believe it was lost rather than intentionally placed there and forgotten. Similarly, here, as the trial court found, the fact that the money was placed in the drawer supports a finding that the property was not abandoned or lost, but was mislaid.
Affirmed.
Stroud, C.J., Robbins and Vaught, JJ., agree.
Hart and Baker, JJ., dissent. | [
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Andree Layton Roaf, Judge.
Appellant Kimberly Powell appeals from the trial court’s decision granting appellee Charles Marshall’s petition for change of custody. Powell raises three arguments on appeal: (1) the “unclean hands” doctrine barred Marshall from seeking equitable relief; (2) the evidence presented was insufficient to find that a change in custody was in the child’s best interest; (3) as the custodial parent, she should have had a presumption in her favor on her request for relocation.
The parties to this appeal were married in July 1995 and had one child, Payton, born in 1996. They separated in June 1997, and a decree of divorce was entered on November 18, 1997. Pursuant to the decree, Powell was awarded primary custody, with Marshall having standard visitation rights. Both the decree and the visitation schedule attached to the decree provided that neither party was to have overnight guests of the opposite sex while the child was present. The visitation schedule also stated that neither party was to use or be under the influence of drugs or alcohol when the child was in their care.
On May 15, 2003, Marshall filed a petition for change of custody, alleging that Powell had violated court orders by cohabi-tating with a man to whom she was not married while the minor child was in her care. In addition to Powell’s cohabitation, Marshall alleged that there had been a material change in circumstances due to Powell’s planned out-of-state move, which he argued would interfere with his visitation and his relationship with the child. Marshall further alleged that he had remarried and that he and his new wife had another child, in addition to his wife’s child from a previous marriage who was close in age to Payton. He argued that Payton had bonded with the other children and that it was not in Payton’s best interest to move out of state. Marshall requested that he be granted permanent custody of Payton. Powell filed a response to the petition, raising the defense of unclean hands, and also filed a petition for contempt, alleging that Marshall had failed to pay for medical expenses and that he had consumed alcohol in the presence of the child during his visitation periods.
A hearing was held on February 3, 2004. At the hearing, Powell testified that Payton was currently eight years old and that she had primary custody. Powell admitted that she had cohabitated with two individuals in the presence of Payton in violation of court orders. She stated that she lived with one male in 2000 and that she had been living with Randy Trumbley since March 2003. Powell testified that she had lived with both men because she thought she wanted to marry them, and that she had in fact married Trumbley since the filing of the petition to change custody. She stated that she and Trumbley had been waiting for his divorce to become final before getting married. According to Powell, she believes it is proper to cohabitate “if the man is willing to take on another man’s child and raise and be the male figure in his life.”
Powell testified that she and Trumbley were planning on moving to Lone Wolf, Oklahoma, where she and her husband had already obtained employment. She stated that she would be working as a secretary and bookkeeper and would be earning $9.00 per hour, in addition to receiving insurance for herself and her son. Powell stated that she would be able to take Payton to and from school and be involved with his activities. She testified that she had checked out the school he would be attending and had spoken with the principal. She further stated that they would be moving from a two-bedroom trailer into a three-bedroom, two-bath house, which would be free for the first six months. She stated that she has no relatives in the area but that Trumbley has relatives in Mustang and Gary, Oklahoma. Powell also testified that she has friends in the area who show cattle and that Payton was excited about getting into that activity. She stated that there were also bigger cities near where they would be living where Payton would be able to participate in other activities, such as wrestling.
Powell further testified that Marshall was not the best person to have custody of Payton because he had a drinking problem. She stated that she had observed him under the influence several weeks earlier on January 18, when he was bringing Payton home from his visitation. Powell testified that Marshall was not driving but that he was drinking in the vehicle with Payton. She stated that Marshall was slurring his words and asked her to step out in the road, and she guessed that he asked this so that he could run over her. She stated that he was angry with her because she had confronted him about his drinking, and that he had made threats toTrumbley and his son. She also stated that she had filed a harassment charge against Marshall in 1996 or 1997. According to Powell, Marshall had no objection to her cohabitation until she told him that she planned to move, and she stated that the reason he filed the petition to change custody was only because of the move. She further testified that she had never denied visitation to Marshall and had never allowed any problems between them to interfere with visitation.
Marshall testified that he currently lived in Little Rock, Arkansas, and that he had been married for four or five years. He stated that he worked at the Farmer’s Co-op and lived in a three-bedroom, two-bath trailer. Marshall testified that his son, Ty, who is three years old, as well as his stepdaughter, Lindsay, who is eleven, lived with them. He stated that he also has another child, Cameron, for whom he paid child support and visits every other weekend. Marshall testified that he wants to see Payton and Ty raised together because Ty thinks highly of Payton. Although his scheduled visitation with Payton was only every other weekend, Marshall stated that he was able to visit with him every weekend and “nearly all summer long.” He stated that he took Payton to rodeos and that they went fishing and rode horses. He further stated that he has family that lived nearby and that he takes Payton to visit them.
Marshall testified that he had objected to Powell’s cohabitation with males in the presence of Payton in the past and that this was the reason he filed the petition to change custody, not her planned out-of-state move. Marshall admitted that he had been drinking the afternoon of January 18 and that he drank in the car while returning Payton to Powell, although his sister was driving. He testified that he drank one or two beers a day and three or four on the weekend and that he bought a case or two of beer a week. Although Marshall stated that he drinks in front of Payton, he testified that he had never been intoxicated. Marshall admitted that he had been arrested for his second DWI in August and that he did not have a valid driver’s license. He further admitted that he was married to Powell at the time his son Cameron was born and that his current wife, Jeanette Marshall, was pregnant with Ty at the time they got married. According to Marshall, he had no problem with Powell’s current husband, and he admitted that the cohabitation problem had been resolved by Powell’s marriage to Trum-bley. However, he stated that he filed the petition because Powell was violating court orders by her living situation. Marshall testified that he does not have a problem with the court ordering him not to drink in front of Payton and that he did not think it was a good thing to do. He stated that he continued drinking in Payton’s presence “because the [divorce] papers said that if she could live with a guy over there, then why couldn’t I have a beer because we both broke the rules.”
Jeanette Marshall testified that she and Charles Marshall had been married for more than three years. She stated that he and Payton had a very good relationship and that they rode horses and went hiking together. She further stated that Ty and Payton had a close relationship and that Payton spent time with Charles’s family. Jeanette testified that Charles would drink one or two beers a day or three or four on the weekend. She stated that she had seen him tipsy but never “slobbering drunk.” She testified that she had overheard her husband complain about Powell having overnight guests of the opposite sex prior to the time Powell announced her intention to move. Jeanette stated that she had no problems with Powell’s new husband, Trumbley, and did not know of any problems that Charles had with him. She further stated that since Powell was now married to Trumbley, the issue of her living with a member of the opposite sex to who she was not married had resolved itself. She testified that she did not live with Charles prior to their marriage due to the presence of her daughter.
At the conclusion of this testimony, Powell moved for a directed verdict, which was denied. She then asked the court to orally amend the pleadings to request that she be allowed to move to Oklahoma. Marshall stated that he had no objection, and the court allowed the amendment. Powell then offered further testimony related to her request to relocate. She stated that Payton had been attending school in Berryville for the past three years and that he was on the honor roll. She stated that Marshall called Payton every evening and asked him about school. Powell testified that she and Trumbley had the opportunity to buy their new house in Oklahoma for $30,000 and that she could not purchase a home for that price in the area in which she currently lived. She testified that she had allowed Marshall additional visitation beyond what was ordered in the past and that she was willing to work with him to ensure that he continued to have visitation after the move. She stated that she was willing to travel to Arkansas at least once a month and that she would allow six weeks of visitation in the summer. She further testified that “anything else the court would require me to do, I would be willing to do it” and that she would be willing for the court to have continuing jurisdiction over the case.
In its ruling, the trial court noted that it had been the order of the court that neither party use or be under the influence of drugs or alcohol in the child’s presence or have overnight guests of the opposite sex in the presence of the child unless married to them. The court then continued as follows:
The polestar for the court is to determine the best interest of the child providing there is a significant change of circumstance which warrant a change in custody. In this case, the court must have a custodial parent who will obey the orders of the court. There is evidence that Mr. Marshall has consumed alcohol during visitation with the child. There is evidence that Mrs. Trumbley has lived for an extended period of time with a person who was not her husband. She continued to cohabit with Mr. Trumbley after the filing of the Petition for Change of Custody. It is apparent to the court that the court cannot rely on Mrs. Marshall to obey the orders of the court. The court is aware of Mr. Marshall’s use of alcohol and knows the proof of his remarriage and birth of another half-sibling of Payton. The court cannot determine if there is any benefit one way or the other as to which parent would have custody. The court does determine that the law of the State of Arkansas grants a presumption in favor of the custodial parent which must be overcome by evidence presented by the non-custodial parent. The court cannot find that the child would be better off by the move. The court is convinced that the best interest of the child, even without regard to the move, or even acknowledging the presumption in favor of the custodial parent, it appears that the other factors in the case and specifically the factor of the court having faith that the custodial parent will obey orders of the court, this court is convinced that Mrs. Trumbley will not follow the orders of this court. Taking this into consideration, and Mr. Marshall’s long remarriage and birth of a half-sibling will allow the child the opportunity to grow up with a brother. The court finds that the evidence shows that the custody should be changed to Charles M. Marshall.
(Emphasis added.)
We first consider Powell’s argument that the evidence presented was not sufficient to find a change in custody in the child’s best interest. A party seeking to modify custody must prove that a material change of circumstances has occurred since the last order of custody or that material facts existed at the time of the decree that were unknown to the court. Carver v. May, 81 Ark. App. 292, 101 S.W.3d 256 (2003). Custody will not be modified unless it is shown that there are changed conditions demonstrating that a modification is in the best interest of the child. Vo v. Vo, 78 Ark. App. 134, 79 S.W.3d 388 (2002). The trial court’s findings in this regard will not be reversed unless they are clearly erroneous. Id. While custody is always modifiable, appellate courts require a more rigid standard for custody modification than for initial custody determinations in order to promote stability and continuity for the children and to discourage repeated litigation of the same issues. Id. There are no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carries a greater weight than those involving the custody of minor children, and our deference to the trial judge in matters of credibility is correspondingly greater in such cases. Id.
Powell contends that the evidence was insufficient to meet Marshall’s burden of showing a change in circumstances warranting a change of custody. She asserts that the trial court based its ruling on its lack of faith in her ability to follow court orders and on Marshall’s remarriage and the birth of a half-brother to Payton. She argues that the court may not modify custody in order to punish the custodial parent for failure to comply with court orders and that a change in circumstances of the non-custodial parent is not alone sufficient to modify custody.
As Powell argues, the primary consideration in a petition to modify custody is the best interest and welfare of the child, and all other considerations are secondary. Carver v. May, supra. “Custody awards are not made or changed to punish or reward or gratify the desires of either parent.” Id. at 296, 101 S.W.3d at 259. A violation of the trial court’s previous orders does not compel a change in custody. Id. at 297, 101 S.W.3d at 261. The violation is a factor to be taken into consideration, but it is not so conclusive as to require the court to act contrary to the best interest of the child. Id. “To hold otherwise would permit the desire to punish a parent to override the paramount consideration in all custody cases, i.e., the welfare of the child involved.” Id. Instead, to ensure compliance with its orders, a trial court has at its disposal the power of contempt, which should be used prior to the more drastic measure of changing custody. Id.
The trial court in this case found that Powell had violated court orders by her cohabitation with two different men to whom she was not married. The court stated that it was convinced that Powell would not follow the orders of the court and that this fact, in addition to the changes in Marshall’s life, warranted the change in custody. The court noted that it was not relying on Powell’s planned relocation in deciding to change custody.
It is true that the appellate courts of this state have never condoned extramarital cohabitation in the presence of a child and that it has been held that this may of itself constitute a material change in circumstances warranting a change in custody. See, e.g., Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999); Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001); Thigpen v. Carpenter, 21 Ark. App. 194, 730 S.W.2d 510 (1987). In fact, in Hamilton, the supreme court affirmed the trial court’s modification of custody where the mother had violated the court’s non-cohabitation order, in addition to the fact that she had remarried and that the father had remarried and had a new child. However, our courts have also recognized a distinction between human weakness leading to isolated acts of indiscretion that do not necessarily adversely affect the welfare of the child, and that moral breakdown leading to promiscuity and depravity, which render one unfit to have custody. Hepp v. Hepp, 61 Ark. App. 240, 968 S.W.2d 62 (1998); Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 777 (1986).
In this case, as Powell argues, the trial court did not find that her cohabitation had adversely affected the welfare of the child and did not state that her cohabitation necessitated a change in custody. In fact, the court stated that it could not determine whether there was “any benefit one way or the other as to which parent” should have custody. Rather, the trial court found that her noncompliance with court orders, in combination with Marshall’s change in circumstances, warranted a change in custody. However, Powell had married Trumbley by the time of the hearing, and she was no longer out of compliance with the court orders. In addition, as the trial court recognized, Marshall had also violated court orders by drinking alcohol in the presence of the child. The trial court’s finding that Powell’s lack of compliance warranted a change in custody in this case allowed the court’s desire to punish her to override the primary consideration in the case, which was the welfare of the child, and this is not proper. Hepp v. Hepp; Ketron v. Ketron, 15 Ark. App. 325, 692 S.W.2d 261 (1985). As Powell contends, the change in Marshall’s circumstances, by his remarriage and the birth of Payton’s half-brother, are not alone sufficient to modify custody. See Mason v. Mason, 82 Ark. App. 133, 111 S.W.3d 855 (2003). Moreover, Marshall testified that he had intentionally violated the trial court’s order by drinking alcohol in the child’s presence because Powell was in violation of the court’s order by her living arrangements, and that he lacked a driver’s license because of his second DWI offense. Because the trial court’s modification of custody is clearly against the preponderance of the evidence, we reverse on this point.
Powell also argues that although she requested that she be allowed to move with her son to Oklahoma, she was not given the presumption allowed to the custodial parent in relocation situations. In Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003), the supreme court held that a presumption now exists in favor of relocation for custodial parents with primary custody, with the burden being on the non-custodial parent to rebut the relocation presumption. The court stated that the custodial parent is no longer required to prove a real advantage to herself and the children in relocating. Id. The trial court should use the best interest of the child as the polestar in making a relocation decision and should consider the following factors: (1) the reason for the relocation; (2) the educational, health, and leisure opportunities available in the location in which the custodial parent and the children will relocate; (3) visitation and communication schedule for the non-custodial parent; (4) the effect of the move on the extended family relationships in the location in which the custodial parent and children will relocate, as well as Arkansas; (5) preference of the child, including the age, maturity, and the reasons given by the child as to his or her preference. Id.
Although evidence was presented by both parties on the issue of relocation, the trial court did not make findings on this issue. While the trial court stated that it was aware of the presumption in favor of relocation, the court went on to state that it “cannot find that the child would be better offby the move.” This statement is contrary to the holding in Hollandsworth, that the custodial parent need not prove a real advantage to herself and the children in relocating and that the burden is on the non-custodial parent to rebut the relocation presumption. On de novo review we conclude that the presumption was not rebutted in this instance. Moreover, it was clear from the trial court’s ruling that it found a change in custody was warranted without regard to Powell’s relocation. Accordingly, we reverse the decision changing custody to Marshall, and direct that Powell’s relocation request be granted.
Because we are reversing the trial court’s award of custody and failure to allow the request for relocation based upon Powell’s second and third points on appeal, we need not consider her argument regarding the unclean-hands doctrine.
Reversed and remanded for entry of an order consistent with this opinion.
Griffen and Neal, JJ., agree. | [
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John B. Robbins, Judge.
In this personal injury suit filed by appellant Carol Marx, the jury found in favor of the defendant, appehee Huron Little Rock, LLC. Appellant argues on appeal that the trial court erred when it denied her motion for a directed verdict and instructed the jury on comparative fault, and when it refused to give her proffered instruction on res ipsa loquitur. We agree with appellant on both points and therefore reverse and remand for a new trial.
Appellant was injured in a rather bizarre accident that occurred at the Little Rock Hilton, which is owned and operated by appellee. In September 2000, appellant and her husband, who are from Louisiana, stayed overnight at the Hilton for the purpose of attending a funeral in Little Rock. On the morning of September 22, while getting ready for the funeral, appellant, who was in her late seventies, was sitting on the closed lid of the toilet in the bathroom of the hotel room. While she was in the process of putting on her pantyhose, the lid detached from the toilet-seat assembly, and appellant fell to the floor between the bathtub and the toilet. Appellant was taken to the hospital, where she was diagnosed with a compression fracture of the spine.
On November 27, 2001, appellant sued appellee for negligence in connection with the incident, and she specifically pled that the doctrine of res ipsa loquitur applied. Appellee answered that appellant’s injuries were proximately caused by her own fault and that res ipsa loquitur did not apply. A jury trial was held, and the following testimony, as gleaned from appellant’s abstract, was adduced. Appellant’s husband, Sach Marx, testified that he was in the bedroom area of the hotel room on the morning of the incident when he heard his wife scream. He went into the bathroom and found her on the floor between the bathtub and the toilet, lying on top of the toilet lid. He called the front desk to ask for an ambulance, and upon its arrival, he accompanied his wife to the hospital.
Appellant, who was eighty-one years old at the time of trial, testified that she was a small woman, standing four feet ten or eleven inches tall and weighing 102 pounds. On the morning of the incident, she went into the bathroom and sat on the closed toilet lid in order to put some medicine on her toes, which she did by facing straight ahead while sitting on the seat. After that task was complete, she put the medicine down and began to put on her pantyhose. While still sitting on the lid, she put the pantyhose on both feet and partly up her legs. At that point, she said, the lid slid off the toilet with her on it, and she fell to the floor, hitting the bathtub in the process. On cross-examination, appellant said that she had probably used the toilet the night before and the morning of the incident, but she had not noticed any looseness in the seat. Further, she said that she did not notice any problem with the seat while she was initially putting on her pantyhose. However, at some point, she said, she simply “felt the lid go.”
Michael Durbin, the chief engineer at the Hilton, testified that it was the duty of the housekeeping and maintenance staff to be on the lookout for hazards in the rooms. After the incident, Durbin put the lid back on the toilet and had to force it onto the seat, then had to pull and twist it to get it back off. Finally, Durbin took the seat assembly off the toilet and put it in a box, which he then placed in the general manager’s office. The box stayed there for over a year, at which time Durbin moved it to his office, where it remained until he showed it to appellee’s attorney in September 2002. When the attorney and Durbin opened the box, they noticed that one bumper was missing from the toilet seat ring. Bumpers are the small items attached to the underside of the seat upon which the seat rests against the toilet rim. According to Durbin, bumpers provide stability to the seat. Durbin could not explain the missing bumper, and he said that he did not remember it being missing when he placed the toilet seat in the box. However, Durbin stated that a missing bumper would justify replacing the entire toilet-seat assembly.
At the close of the evidence, appellant asked the trial court to direct a verdict on the issue of comparative fault and to reject appellee’s jury instruction on comparative fault. The trial court denied the directed-verdict motion and instructed the jury on comparative fault using both AMI Civil 206 and 2101 (2004). Appellant also asked the court to instruct the jury on res ipsa loquitur using AMI Civil 610 (2004). The trial court declined to do so. The jury was then instructed on negligence, proximate cause, premises liability, comparative fault, and damages. Following deliberations, the jury rendered a general verdict in favor of appellee. The verdict was reduced to judgment, and appellant filed a timely notice of appeal.
Appellant argues first that the trial court erred in denying her motion for a directed verdict and in instructing the jury on comparative fault because there was no evidence that she was negligent. We agree that reversal is warranted on this point.
The directed-verdict issue and the jury-instruction issue can be discussed simultaneously because they involve the same point, i.e., whether the question of appellant’s negligence should have been submitted to the jury. When reviewing a denial of a motion for directed verdict, we determine whether the jury verdict is supported by substantial evidence. J.E. Merit Constr., Inc. v. Cooper, 345 Ark. 136, 44 S.W.3d 336 (2001). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without having to resort to speculation or conjecture. Superior Fed. Bank v. Mackey, 84 Ark. App. 1, 129 S.W.3d 324 (2003). We review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered, and when the evidence and inferences create a jury question, we will determine that the trial court properly denied the defendant’s motion for directed verdict. J.E. Merit Constr., Inc. v. Cooper, supra. As for the trial court’s giving of the jury instruction, we employ the abuse-of-discretion standard. See Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001).
Under our comparative-fault statute, Ark. Code Ann. § 16-64-122 (Supp. 2003), the fault of a plaintiff in a personal-injury case is compared to the defendant’s fault. If the plaintiff s fault is less than the defendant’s, the plaintiff may recover damages from the defendant after the damages have been diminished in proportion to the plaintiffs own fault. If the plaintiffs fault is greater than or equal to the defendant’s, then the plaintiff is not entitled to recover damages. The “fault” to be compared under the statute must be a proximate cause of the plaintiff s damages. See generally Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997); Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993); Kubik v. Igleheart, 280 Ark. 310, 657 S.W.2d 545 (1983).
Because comparative fault is an affirmative defense, the burden is on the defendant to prove that the plaintiff was at fault. See Rodgers v. CWR Constr., Inc., 343 Ark. 126, 33 S.W.3d 506 (2000); Young v. Johnson, 311 Ark. 551, 845 S.W.2d 510 (1993). If the defendant fails to satisfy this burden, a directed verdict on comparative fault in favor of the plaintiff is appropriate. See Young v. Johnson, supra.
Appellant contends that there was no evidence of any negligence on her part beyond speculation and conjecture, and she cites Young v. Johnson, supra, in support of her argument. In Young, the plaintiff was traveling south on a one-lane road when she saw the defendant’s headlights coming toward her. She slowed down and pulled over to the right side of the road as far as she could but was nevertheless struck by the defendant, who testified that he was looking for a dropped cigarette at the time of the collision. The plaintiff asked the trial court for a directed verdict on comparative fault, which was denied. On appeal, the supreme court held that a directed verdict should have been granted because any conclusion that the plaintiff was negligent would have been “highly speculative and conjectural and, thus, is not substantial.” Young v. Johnson, supra at 557, 845 S.W.2d at 513.
Appellee contends that there was evidence of appellant’s negligence, in that appellant was an elderly person who was using the toilet seat to put on pantyhose while resting her feet on a slick tile floor. Appellee cites Turner v. Stewart, 330 Ark. 134, 952 S.W.2d 156 (1997), in support of its argument. In Turner, the plaintiff visited the defendant’s home, which had a “beware of dog” sign in the front yard. The plaintiff went onto the front porch but got no answer when she rang the doorbell. While on the porch, she saw the defendant’s Rottweiler looking at her from the side of the house. She then went to the side of the house and saw the defendant with the dog. She spoke with the defendant briefly, after which the defendant called his dog. When the dog started toward them, the plaintiff ran. The dogjumped on the plaintiff and bit her. At trial, the plaintiff objected to the trial court’s instructing the jury on comparative fault. On appeal, that instruction was upheld by the supreme court because the jury could have concluded that the plaintiff had not used good judgment in entering the yard despite the “beware of dog” sign or in walking around the side of the house where she had seen an unfamiliar dog and further that her injuries could have been caused by her running from the dog.
Upon reading the cases cited by the parties and several other cases on the subject of whether a jury should have considered a plaintiffs comparative fault, see Garrett v. Brown, 319 Ark. 662, 893 S.W.2d 784 (1995); Skinner v. R.J. Griffin & Co., supra; Wingate Taylor-Maid Transp. v. Baker, 310 Ark. 731, 840 S.W.2d 179 (1992), we have determined that the facts in the case at bar are most like those in Young v. Johnson, supra, the case relied upon by appellant. As in Young, there is no substantial evidence that appellant failed to do something that a reasonably careful person would do or did something that a reasonably careful person would not do under the circumstances, which is the definition of negligence. See Ethyl Corp. v. Johnson, 345 Ark. 476, 49 S.W.3d 644 (2001). Also, as in Young, any insinuation that appellant was negligent and contributed to her own injuries is conjecture. It is not uncommon for people to sit on toilet lids to perform various tasks, and there is no evidence that appellant slipped on the floor or fell onto the seat, as appellee speculates. Further, this case differs from the case that appellee cites, Turner v. Stewart, because in Turner, there was substantial evidence that the plaintiff engaged in behavior that contributed to her own injuries. We therefore conclude that the trial court should have granted appellant’s motion for a directed verdict on comparative fault and should not have instructed the jury on that issue.
Appellant argues next that the trial court erred in refusing her proffer of a jury instruction on res ipsa loquitur. A party is entitled to a jury instruction when it is a correct statement of the law and there is some basis in the evidence to support the giving of the instruction. Barker v. Clark, 343 Ark. 8, 33 S.W.3d 476 (2000). The appellate courts will not, however, reverse a trial court’s refusal to give a proffered instruction unless there was an abuse of discretion. Id.
In order for the doctrine of res ipsa loquitur to apply, four essential elements must be established: (1) the defendant owes a duty to the plaintiff to use due care; (2) the accident is caused by the thing or instrumentality under the control of the defendant; (3) the accident that caused the injury is one that, in the ordinary course of things, would not occur if those having control and management of the instrumentality used proper care; (4) there is absence of evidence to the contrary. Barker v. Clark, supra. In describing the doctrine of res ipsa loquitur, our supreme court has stated:
The doctrine of res ipsa loquitur was developed to assist in the proof of negligence where the cause of an unusual happening connected with some instrumentality in the exclusive possession and control of the defendant could not be readily established by the plaintiff. The theory was that since the instrumentality was in the possession of the defendant, justice required that the defendant be compelled to offer an explanation of the event or be burdened with a presumption of negligence.
Id. at 14, 33 S.W.3d at 480 (quoting Reece v. Webster, 221 Ark. 826, 829, 256 S.W.2d 345, 347 (1953)). The supreme court has also observed that:
In the words of Mr. Justice Holmes, res ipsa loquitur is “merely a short way of saying that, so far as the court can see, the jury, from their experience as men of the world, may be warranted in thinking that an accident of this particular kind commonly does not happen except in consequence of negligence, and that therefore there is a presumption of fact, in the absence of explanation or other evidence which the jury believe, that it happened in consequence of negligence in this case.” Graham v. Badger, 164 Mass. 42, 41 N.E. 61. This is the kind of inference that jurors commonly are allowed to make from circumstantial evidence, the only difference being that, when res ipsa loquitur applies, the circumstantial evidence from which the inference is drawn is the fact of the injury itself, plus the few obvious facts which surround the injury but do not clearly explain how it happened.
Coca-Cola Bottling Co. v. Hicks, 215 Ark. 803, 807, 223 S.W.2d 762, 764-65 (1949).
In the case at bar, the trial judge refused the instruction based on his determination that there was evidence of appellant’s comparative fault. Indeed, several Arkansas cases have strongly suggested that evidence of a plaintiffs negligence precludes the application of res ipsa loquitur. See, e.g., Barker v. Clark, supra at 14, 33 S.W.3d at 481; Phillips v. Elwood Freemen Co., Inc., 294 Ark. 548, 550, 745 S.W.2d 127, 129 (1988); Coca-Cola Bottling Co. v. Hicks, supra at 807, 223 S.W.2d at 765. However, because we have determined that there was no substantial evidence of appellant’s negligence in this case and that the issue of comparative fault should not have been presented to the jury, we see no impediment to the court instructing the jury on res ipsa loquitur. The instruction offered by appellant was a correct statement of the law, being based on AMI Civil 610 (2004), which informs the jury that, if the elements of res ipsa loquitur are met, they are permitted but not required to infer that the defendant was negligent. Additionally, given the circumstances surrounding the incident in this case, there was “some basis in the evidence” from which the jury could have inferred appellee’s negligence from the fact of the injury itself, i.e., that the toilet lid, in the ordinary course of things, would not have detached from the toilet assembly if appellee had used proper care.
In light of the foregoing, we reverse and remand this case for a new trial.
Bird and Roaf, JJ., agree.
The jury rendered a general verdict in this case,so we do not know if the jury actually assigned some fault to appellant or merely concluded that appellee was not negligent. Thus, appellant cannot demonstrate that she was prejudiced by the jury’s consideration of the comparative-fault issue. However, our supreme court has recognized that proving prejudice under these circumstances is an impossible burden, and prejudice will instead be presumed. See Skinner v. R.J. Griffen & Co., supra; Little Rock Elec. Contr. v. Okonite Co., 294 Ark. 399, 744 S.W.2d 381 (1988). | [
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Wendell L. Griffen, Judge.
Dedra Thompson, Jeff My-natt, Shana Mynatt, and Paul Albert appeal a decision from the Board of Review which denied them unemployment benefits after they accepted a voluntary severance package from their employer rather than risk being laid off in a reduction-in-force. The Board, affirming the decision from the Arkansas Employment Security Department (ESD), relied on Billings v. Director, Employment Security Dep’t, 84 Ark. App. 79, 133 S.W.3d 399 (2003), and found that appellants left their jobs voluntarily and without good cause. We reverse and remand for an award of benefits.
The facts are not disputed. Appellants were employees at Arkansas Eastman, and each had been so employed for more than ten years. Each was informed that Eastman intended to layoff approximately fifty employees. The layoffs were to be determined by a combination of salary grade and length of service, but no individual knew definitely whether or not he or she would be terminated. To reduce the number of involuntary layoffs, Eastman offered many of the employees a “voluntary-severance package.” Gary McDonald, manager of administration for Arkansas Eastman, described the severance package in his testimony as involving two weeks’ pay for every four years’ service, four months’ continuation of health, life, and dental insurance coverage, a retraining allow- anee of up to $5,000, and assistance in getting into a job-displacement program. He also testified that Arkansas Eastman was notified in November 2002 by the local division office of the ESD that the division had changed its interpretation of the eligibility requirements concerning applicants for unemployment compensation by voluntary-severance-package recipients.
Cassondra Sherrell, manager with the ESD, testified that the division changed its policy regarding eligibility of voluntary-layoff claimants in October 2002. By that time, appellants had already accepted the severance packages offered them by Arkansas Eastman based on the previous division position whereby voluntary-layoff workers were deemed eligible to receive unemployment benefits. Employees had to apply for the packages, and Eastman would accept or reject the application depending on the needs of the employee. Appellants opted to take the package. They testified that they were aware of past layoffs where Eastman offered similar packages and that those employees had later received unemployment benefits. Eastman, relying on the stated policy of the ESD, told each employee that they would also be eligible for unemployment benefits.
Sherrell also testified that had appellants filed their claim prior to October 11, 2002, they could have drawn unemployment benefits. However, because they worked at Eastman for such a long time, they had more severance pay to draw, which meant that they did not seek unemployment benefits until they had exhausted the severance pay. By that time, the division had changed the policy that existed when appellants were offered the voluntary-severance package.
Appellant Jeff Mynatt testified that he did not feel that he would have lost his job had he not taken the severance package; however, his job requirements and duties would have changed. He further stated that he did not feel secure in his job, as this was the third layoff in three years. Appellant Shana Mynatt testified that her department head told her that her department would be among the first to be targeted by the reduction-in-force. Appellant Dedra Thompson testified that she took the severance package based on past layoffs as well as the assurances from Eastman that she would be able to draw unemployment benefits.
The Board of Review relied on Jackson v. Daniels, 267 Ark. 685, 590 S.W.2d 63 (Ark. App. 1979) and Billings v. Director, Employment Security Dep’t, 84 Ark. App. 79, 133 S.W.3d 399 (2003), in reaching its decision that appellants left their jobs voluntarily and without good cause so as to be disqualified from receiving benefits. Ark. Code Ann. § ll-10-513(a)(l) (Repl. 2002). This appeal followed.
We review the evidence in the light most favorable to the Board’s findings and will affirm its decision if it is supported by substantial evidence. Billings, supra. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The review is limited to whether the Board could reasonably reach its decision upon the evidence before it. Id.
Appellants frame the issue as a possible inconsistency between Jackson, supra, and Billings, supra. In Jackson, the employer announced that he had to lay off one of his employees. The claimant in that case told the employer that, if someone had to be laid off, she preferred that it were her and not one of the two recently hired employees. The claimant was eventually laid off and made a claim for unemployment benefits. In reversing the Board’s decision to deny her benefits, we said, “We see an appreciable difference in an employee communicating directly to an employer that he wishes to be laid off and what occurred in this case.” Jackson, 267 Ark. at 687, 590 S.W.2d at 64. We made it clear that the appellant in that case lost her job because of a reduction-in-force and not for personal reasons.
In the present case, the Board relied on Billings, supra, in its decision to deny benefits. That case also involved employees who accepted severance packages pending a reduction-in-force layoff. In an effort to reduce the number of people involuntarily laid off, the employer offered packages to its more senior employees and continued offering packages until enough people left their jobs. There was further testimony in that case that had not enough people taken the packages, the least senior employees would have been laid off. Many of the employees who took the packages were not in danger of losing their jobs. This court affirmed the denial of benefits, finding the layoffs truly voluntary.
In resolving these cases we need not overrule our decision in Billings or embrace appellants’ argument that our decisions in Billings and Jackson are inconsistent. The cases before us today present facts that plainly are different from both Billings and Jackson. Appellants left their jobs in May and June 2002 after deciding to accept the voluntary-severance package offered by their employer. At that time, ESD policy allowed former employees to receive unemployment benefits when they voluntarily left their jobs after taking a severance package in light of a reduction-in-force. When appellants decided to accept the severance package, they acted in reliance on that policy and the understandable belief that their lives would be more secure by leaving voluntarily with the severance package rather than waiting to see if the proverbial axe would fall. We hold, on these facts, that it would be unfair and inequitable for appellants to be denied unemployment benefits after they acted in reliance on explicit ESD policy.
For these reasons, we reverse the decision of the Board and remand this case for an award of benefits.
Reversed and Remanded.
Stroud, C.J., and Hart, J., agree.
Barer, J., concurs.
Robbins and Vaught, JJ., dissent.
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John E. Jennings, Judge.
On April 24, 1984, appellee Samuel Wilson sustained an admittedly compensable injury while employed with International Paper Company. His leg was crushed in a paper machine manufactured by Beloit Corporation. The leg had to be amputated.
Wilson filed a workers’ compensation claim and International Paper has paid more than $100,000.00 in benefits, including more than $60,000.00 for medical expenses. Wilson sued Beloit Corporation in federal court, alleging liability in tort. He joined International Paper as a defendant on the theory that it was negligent in misplacing some of the machine parts. Appellee and Beloit Corporation reached an agreement to settle their lawsuit for $50,000.00, and Wilson petitioned the Commission for approval of the settlement pursuant to Ark. Code Ann. §11-9-410(c) (1987). International Paper opposed the settlement as inadequate.
The issue was submitted to the administrative law judge on a stipulation of facts along with affidavits from Wilson and Wilson’s attorney. The parties also stipulated what the testimony of attorney Robert C. Compton would be were he to be called as a witness by International Paper. The ALJ approved the settlement and the full Commission affirmed and adopted his decision.
On appeal to this court International Paper contends that the Commission erred in considering the affidavit of Wilson’s attorney and erred in approving the proposed settlement. We affirm the Commission’s decision.
The stipulation of facts submitted to the administrative law judge stated the circumstances of the accident, the nature of the injury, and the amount of compensation benefits paid. It recited procedural facts relating to the action in federal court and stated that “ [c] ertain machine parts. . . which resulted in this accident ... are no longer available.” The stipulation also noted that settlement would not effect the subrogation claim of International Paper against Beloit Corporation. The petition for approval of the settlement, signed by appellee’s counsel, stated that approval of the petition would be in the best interest of the claimant, that Beloit Corporation was vigorously denying liability, and that there was a high probability that Wilson’s claim against Beloit Corporation would not be successful, particularly in view of the missing physical evidence.
Samuel Wilson filed an affidavit in support of his petition. The affidavit stated in part:
4. I also filed a claim against my employer, the respondent International Paper Company, in the same federal court lawsuit, alleging that respondent destroyed, lost or misplaced parts of the machine that injured me.
5. My attorneys have informed me that the absence of the machine parts has damaged my case against Beloit Corporation.
6. My attorneys have investigated this case for several years and have employed the firm of Sene, Kelsey & Associates, St. Louis, Missouri, to examine the machine and offer expert opinion as to the feasibility or lack thereof of my case against Beloit Corporation.
8. Due to the absence of the machine parts because of International Paper Company’s destruction, loss or misplacement of them, I concur that my case against Beloit Corporation has been irreparably damaged.
9. My attorneys have not exerted any influence over me to settle this case, but have advised me fully of the likelihood of not prevailing in my lawsuit against Beloit Corporation and have left any settlement decision com pletely to me. I have, of my own accord, decided that this settlement of $50,000.00 is what I want. I believe it is in my best interest, and I have instructed my attorneys to accept it for me.
10. I ask this Commission to approve my proposed settlement with Beloit Corporation, because I do believe that it is in my best interests.
The appellee’s attorney, Art Anderson, also filed an affidavit which stated in pertinent part:
2. I have conducted extensive investigation and discovery concerning the feasibility of claimant’s lawsuit against Beloit Corporation for the accident of April 24, 1984, which injured claimant. I have personally examined the machine in question on two occasions. I retained the services of the engineering firm of Sene, Kelsey & Associates, St. Louis, Missouri, to examine the machine and to offer expert opinion as to the feasibility or lack thereof of claimant’s case against Beloit Corporation.
3. Based on the investigation and discovery I have conducted, I am now of the opinion, and have been for some time, that the federal court case against Beloit Corporation will most likely not be won if taken to trial.
4. I am of the opinion that the loss or destruction of the bolts by International Paper Company is a factor which weighs heavily against a successful outcome in this case in that the bolts in question constitute the component of the machine which experienced fatigue sufficient to cause their being fractured or sheared, which, in turn, resulted in claimant’s injury.
5. I am of the opinion that a better case exists on behalf of claimant against International Paper Company for the loss of destruction of those bolts which constituted essential evidence in his case against Beloit Corporation.
6. I have fully discussed on numerous occasions with claimant and his wife the intricacies of the problems relating to the case against Beloit Corporation; and, after discussing all options and alternatives with claimant and his wife in this regard, I have left the final decision in the matter up to them. They have decided to take the settlement; and I believe that to be a wise decision.
7. The settlement offer with Beloit Corporation that claimant has instructed me to accept is one arrived at after months of intermittent negotiation, and I believe this settlement is in the best interest of the claimant.
The parties stipulated that if Mr. Compton were called as a witness by International Paper, his testimony would be that in his opinion the loss of machine parts was immaterial, that a “good and valid cause of action” exists against Beloit Corporation, and that from his review of the medical data the proposed settlement would be inadequate.
Rule 3.7 of the Model Rules of Professional Conduct reads as follows:
A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
In this regard, the administrative law judge stated, in an opinion subsequently adopted by the full Commission:
Both parties have adequately argued their respective positions regarding the affidavit of claimant’s attorney being considered as a part of this record. After a thorough consideration of the arguments of the parties, I am persuaded that the admonition regarding attorney testimony is inapplicable in the instant cause. Specifically, it is noted that this is an administrative proceeding and not a matter involving a jury trial on the merits of tort cause. Additionally, with the exception of the claimant, claimant’s attorney having investigated and worked up the case regarding the lawsuit, and who would be charged with presenting the suit is in the unique posture of knowing the weakness and strength of the claimant’s lawsuit, and correspondingly in a posture to provide advice on which an informed decision can be made by the claimant regarding the proposed settlement. Further, Model Rule of Professional Conduct 3.2 [sic] provides that a lawyer may act as an advocate at a trial in which he is likely to be called as a witness where the disqualification of the lawyer would work a substantial hardship on the client.
In St. Paul Fire & Marine Ins. Co. v. Wood, 242 Ark. 879, 416 S.W.2d 322 (1967), the Arkansas Supreme Court quoted the Minnesota Court in Lang v. William Bros. Boiler & Mfg. Co., 250 Min. 521, 85 N.W.2d 412 (1957) in discussing the policy of the law to encourage compromise settlements:
While both employer and employee face the risk that the result of the trial will not equal the amounts offered in settlement or the amount which must be paid in compensation, the employee’s burden probably is greater than that of the employer in that ordinarily the employee has no great resources upon which to rely if the gamble of a trial fails, whereas the insurer not only has greater resources but the case as to it is only one of many.
It is therefore my opinion, after a thorough consideration of all of the evidence in this matter, that even if the affidavit of claimant’s attorney, Mr. Art Anderson, is excluded, that the petition for approval of third-party settlement as amended to include release to all claim which preserves the rights of respondent to proceed against Beloit Corporation, is in the best interest of the claimant and should be approved.
Initially, we must agree with appellant that Rule 3.7 is generally applicable in workers’ compensation proceedings. Rule 3.9 establishes certain minimal standard for lawyers representing clients before legislative or administrative tribunals in non-adjudicative proceedings. It does not appear that the rule prohibiting the lawyer from testifying applies in such proceedings. The negative implication of the rule is that the Model Rules are applicable in their entirety in an adjudicative hearing before an administrative agency. Of course, administrative agencies perform functions associated with all three branches of state government, but in the case at bar the Commission was clearly performed an adjudicative or quasi-judicial function: it was deciding an issue in a case properly before it. The same policy reasons which forbid an attorney to testify in a courtroom trial are present when a lawyer testifies in a hearing before the Commission when the Commission is discharging its quasi-judicial responsibilities. See generally Ford v. State, 4 Ark. App. 135, 628 S.W.2d 340 (1982). The problem is not cured simply because the attorney testifies in affidavit form. Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983).
Nevertheless, we affirm the Commission’s decision. As the comment to Rule 3.7 states, it may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof. In Liberty Mutual Ins. Co. v. Billingsley, 256 Ark. 947, 511 S.W.2d 476 (1974), a workers’ compensation claimant sought approval of a proposed settlement against a third-party tortfeasor. The supreme court noted that at the hearing the claimant’s attorney explained the seriousness of his client’s injuries, the possibility that his client might recover nothing if the case went to trial, and their desire to accept the settlement. This is essentially what counsel did in the case at bar: he was functioning more as an advocate than as a witness. To the extent that the affidavit touches on matters of fact, those facts do not seem to be contested. The affidavit expresses the lawyer’s sense of the lawsuit’s possible success. The administrative law judge also noted the exception in the Rule where disqualification would work a substantial hardship on the client. Balancing the claimant’s interest against the potential prejudice to the opposing party, the ALJ’s conclusion that disqualification was not warranted is supportable.
Appellant’s second argument is that the Commission erred in approving the settlement. Clearly, the statute does not afford the carrier the right to veto any compromise not to its liking. Liberty Mutual Ins. Co. v. Billingsley, 256 Ark. 947, 511 S.W.2d 476 (1974). The issue here is whether the Commission’s approval of the settlement constituted an abuse of its discretion. New Hampshire Ins. v. Keller, 3 Ark. App. 81, 622 S.W.2d 198 (1981). It is the policy of the law to encourage compromise settlements.
The vice of preventing settlement at all without the consent of the employer or his insurer is that the employee may then be put in a position where, against his will, he must face the uncertainties of a trial.
St. Paul Fire & Marine Ins. Co. v. Wood, 242 Ark. 879, 888, 416 S.W.2d 322, 328 (1967) (quoting Lang v. Williams Bros. Boiler & Mfg. Co., 250 Minn. 521, 85 N.W.2d 412 (1957)). Each case must be decided on its own facts. Billingsley, supra. On the facts of the case at bar we cannot say the Commission abused its discretion in approving a settlement.
Affirmed.
Cracraft, C.J., and Cooper, J., agree. | [
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James R. Cooper, Judge.
The appellant in this civil case was married to the appellee, Jeanene Cottrill, in September 1977. On June 29, 1979, the appellee gave birth to Nathan Benac. The appellant was divorced from the appellee by a North Carolina divorce judgment dated July 30, 1982. On August 2, 1989, the State of Arkansas, through its child support enforcement unit, filed a complaint in the Chancery Court of Crawford County, Arkansas, seeking an order requiring the appellant to pay child support on behalf of Nathan Benac. (Ms. Cottrill had assigned her rights to support to the State of Arkansas pursuant to Ark. Code Ann. § 20-76-410 (1987)). In his answer, the appellant denied being the father of the child. Subsequently, he obtained counsel and filed a third-party complaint against Ms. Cottrill and he requested blood testing to determine paternity pursuant to Ark. Code Ann. § 9-10-108 (Repl. 1991). After a hearing, the chancellor found that Nathan’s paternity had been determined by the North Carolina court and that the issue was res judicata, ordered the appellant to pay child support, and denied his motion for blood testing. From that decision, comes this appeal.
For reversal, the appellant contends that the chancellor erred in denying his motion for paternity blood testing. We do not agree, because we conclude that the chancellor properly determined that the issue of paternity had been decided in the North Carolina divorce action and was barred by the doctrine of res judicata.
The North Carolina judgment incorporated a finding that “ [t] here was one child born of the marriage, namely, Nathan Aaron Benac, born the 29th day of June, 1979. . . .” It has been generally held that, in the event of subsequent proceedings between a husband and wife, they are concluded by a finding or implication of paternity in a prior divorce or annulment decree. Annotation, Paternity Findings as Res Judicata, 78 A.L.R. 3d 846, 851 (1977).
The facts of Withrow v. Webb, 53 N.C. App. 67, 280 S.E.2d 22 (1981), are similar to those presented in the case at bar. After entry of a divorce judgment incorporating a finding of paternity couched in language practically identical to that employed in the case at bar, the husband filed a motion seeking to require his ex-wife and child to submit to blood-group testing. The motion was denied, and the husband appealed. The North Carolina Court of Appeals affirmed the trial court’s ruling, holding that the issue of paternity was barred by res judicata by virtue of the finding in the divorce judgment, and that, because the issue of paternity was therefore not before the trial court, the statutorily-imposed obligation to order the parties to submit to blood-grouping tests never arose. Withrow, supra, 280 S.W.2d at 24.
We think it clear that the North Carolina courts would give res judicata effect to the finding of paternity in the divorce judgment in the case at bar, and we are required to do likewise under the constitutional command of full faith and credit. Pickle v. Zunamon, 19 Ark. App. 40, 716 S.W.2d 770 (1986). We hold that the issue of paternity was barred by res judicata, and that the chancellor did not err in denying the appellant’s motion for blood testing.
Affirmed.
Mayfield, J., dissents. | [
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Melvin Mayfield, Judge.
L & S Concrete appeals from a judgment rendered it as garnishee in the amount of $19,047.13 plus interest and costs.
On June 29, 1989, appellee Bibler Brothers obtained a default judgment against Arkoma Industries, Inc. in the amount of $19,047.13 plus interest for the balance owed on some lumber Arkoma had purchased from the appellee. The judgment was unpaid and on July 28,1989, appellee filed a writ of garnishment, accompanied by allegations and interrogatories, alleging L & S Concrete was indebted to Arkoma or “has in its hands and possession, goods, chattels, monies, credits and effects” belonging to Arkoma. Interrogatory No. 2 propounded by the appellee is as follows:
2. Had you, in your hands and possession, on or after the date of service of the Writ of Garnishment herein, any goods, chattels, monies, credits and effects belonging to the defendant, Arkoma Industries, Inc.? If so, what was the nature and value thereof?
Appellant denied it was obligated to Arkoma, and in answer to Interrogatory No. 2 stated “No. However, some property of the bank lender of Arkoma is on L & S Concrete Company’s property.”
On September 1, 1989, appellee filed a reply to the appellant’s answers to the allegations and interrogatories served upon the appellant as garnishee. The reply included the following:
3. At the time the writ of garnishment was served on the garnishee, it had in its possession certain lumber belonging to Arkoma Industries, Inc. The plaintiff denies that the lumber belonged to the bank lender of Arkoma as stated in the garnishee’s answer. The garnishee has not answered the interrogatories truthfully or accurately.
4. • The lumber that was in the possession of the garnishee has been removed since the date on which the writ of garnishment was served upon it.
Appellee asked for judgment against appellant in the amount of $19,047.13 plus interest and costs.
A hearing was held November 1,1989, and at the close of the appellee’s evidence, appellant made a motion for a directed verdict on the basis that there was no showing that the property was in any way within the meaning of the garnishment statute “in the possession or control or custody of the garnishee.” The trial court denied appellant’s motion and appellant proceeded to present its evidence.
On November 14, 1989, the trial court sent a letter to the parties which stated:
After a review of the evidence presented and the letter briefs of counsel, it is the finding of the Court that the plaintiff should have and recover from L & S Concrete Company, Inc., garnishee, the amount of the original indebtedness owed by Arkoma Industries, Inc., in the amount of $19,047.13 plus interest and costs.
The Court finds that the value of the property held by the garnishee was $22,000.00 to $23,000.00. The Court feels that L & S Concrete Company, Inc., had in its hands or possession the property of Arkoma Industries, Inc. Even though Mr. Charlie Weaver indicated that he was not aware of the property being on the L & S property, the Court feels that the facts would indicate that he did. Mr. Fred Weaver, who is owner of Arkoma Industries, Inc., and brother of Charlie Weaver, indicated that he had open use of the L & S property whenever he needed. It is difficult for the Court to believe that L & S Concrete Company, Inc., was not aware of three large truckloads of timber products on its property.
L & S Concrete Company, Inc., apparently had knowledge of the physical presence of the lumber on its property when it answered the allegations and interrogatories of plaintiff stating that property of the bank lender of Arkoma Industries, Inc., was situated on its property.
On November 20, 1989, the trial court entered an order granting appellee judgment in the amount of $20,060.74 plus post-judgment interest at the rate of ten percent per year until paid.
Appellant argues on appeal that the trial court committed reversible error by denying its motion for a directed verdict because garnishment was improper in this case. Appellant contends it cannot be liable as garnishee because (1) it owed no debt to Arkoma; (2) that the property did not belong to Arkoma because it was specially manufactured pursuant to a purchase order and subject to a perfected security interest held by Arkoma’s lender; and (3) that property was not in its hands or possession.
Arkansas Code Annotated § 16-110-102 (1987) states:
(a)(1) Whenever, in a civil action, the plaintiff shall have reason to believe that any other person is indebted to the defendant or has in his hands or possession goods and chattels, moneys, credits, and effects belonging to the defendant, the plaintiff may sue out a writ of garnishment.
Appellant’s argument that it cannot be liable as garnishee because it owed no debt to Arkoma ignores the alternative provision “or has in his hands or possession goods and chattels . . . belonging to the defendant” set out in the above statute. Appellee cited Harris v. Harris, 201 Ark. 684, 146 S.W.2d 539 (1941), which stated “it is the settled rule that the effect of the service of the writ of garnishment is to impound all property in the hands of the garnishee belonging to the judgment debtor,” but appellant says the garnishee in that case “actually owed a debt to the judgment debtor.” However, in Patterson v. Harland, 12 Ark. 158 (1851), the garnishee had about 140 bushels of corn in his possession, one-half of which belonged to the judgment debtor, and judgment was rendered against the garnishee for the value of the corn. Clearly, the garnishee was not indebted to the judgment debtor in that case. Moreover, appellant’s argument that the lumber did not belong to Arkoma because it was specifically manufactured for a customer in Iowa and that a bank in Arkansas held a lien on it is not supported by the evidence. This issue is really not seriously argued on appeal. Appellant’s real contention is that it did not have “possession” of the lumber placed on its property because it exercised no control over the lumber.
In support of this argument, appellant cites Foos Gas Engine Co. v. Fairview Land & Cattle Co., 185 S.W. 382 (Tex. App. 1916), and Milwaukee Stove & Furnace v. Apex Heating, 418 N.W.2d 4 (Wis. App. 1987), but we find those cases are not controlling here. Milwaukee Stove was decided on the basis of the Wisconsin garnishment statute which states a creditor may proceed against any person who is indebted to or has “any property in his or her possession or under his or her control.” The property involved was the “complete inventory of shop equipment and materials” of a heating and cooling business which was to be sold at auction by one George Woodrich. The court held that the property was not in the possession of Woodrich because the garnishment statute was designed to impose liability on persons who “maintain actual possession or control of property” not on persons who “perform some act in relation to the property.” However, the Arkansas statute is not as restrictive as the Wisconsin statute, and requires only that a person have property of the defendant “in his hands or possession.” In Harris v. Harris, supra, our supreme court stated the general law regarding garnishment.
It is the settled rule that the effect of the service of the writ of garnishment is to impound all property in the hands of the garnishee belonging to the judgment debtor (in the instant case, Dora Fraser) at the time of service, or that may thereafter come into his hands, up until the filing by him of a true and correct answer. Magnolia Petroleum Co. v. Wasson, 192 Ark. 554, 92 S.W.2d 860. In the Magnolia Petroleum case we held that “Recovery in garnishment proceedings can be had only up to date of filing answer.”
In Hockaday v. Warmack, 121 Ark. 518, 182 S.W. 263, this court said: “It is a well settled rule that a garnishee, after service of the writ upon him must retain possession of all property and effects of the principal debtor in his hands, and if he fails to do so he is liable for the value of the same to the plaintiff in the principal action. Such was the holding of this court in Adams v. Penzell, 40 Ark. 531.
201 Ark. at 687.
In Foos, the Texas Court of Civil Appeals held that a land company garnisheed in an action against an engineering company which had been digging wells on its land could not be held liable for the value of the machinery the engineering company left on the land as the land company was not in possession of the machinery. There is, however, authority to the contrary. In Hamilton-Collinson Hardware Co. v. Arkansas City Oil & Gas Co., 169 P. 190 (Kan. 1917), an oil and gas company left a rig, tools, and appliances on the land of its lessor. In actions brought by laborers who had obtained judgments against the oil and gas company, the court held, for the purpose of garnishment, that the lessor was in possession and control of the property left on his farm by the oil and gas company. The court stated:
The statute under which the proceeding was had provides, among other things, in effect, that if a plaintiff makes oath in writing that he has good reason to believe that any person or corporation has property of the defendant in his possession or under his control, he is subject to be garnished. . . . The property belonged to the defendant. A person had it in his possession. It was liable for the debts of the laborers who obtained the judgments, and no good reason is seen why the property was not reached by the garnishment process.
169 P. at 191 (citations omitted).
The appellant in the instant case argues that to hold it liable as garnishee merely because of “bare presence” is comparable to holding a landowner as garnishee simply because someone placed goods or chattels on his land. At oral argument, appellant likened the issue in the present case to that of one just parking an automobile on another’s land. However, in such situations, the proper response to interrogatories submitted with a writ of garnishment would be that the property was left without consent on the garnishee’s property; that the garnishee has no power to prevent the removal of the property subject to garnishment; and should the property be removed, there is nothing the garnishee can do about it. Or, one could simply follow the provisions of Ark. Code Ann. § 16-110-409 (1987) and answer that the property is surrendered to the plaintiff, and then obtain from the court, as provided in subsection (b) of § 16-110-409, “an order releasing and discharging the garnishee from all responsibility to the defendant, in relation to the goods and chattels ... so surrendered.” Here, instead of following either of the paths suggested, the appellant stated only that some “property of the bank lender of Arkoma” was on its property, and as we have pointed out, the evidence will not support that answer.
At trial in this case, there was evidence that Fred Weaver, owner of Arkoma, is the brother of Charlie Weaver, sole stockholder and CEO of appellant L & S Concrete, and that Charlie Weaver also owns 100 percent of the stock in Weaver-Bailey Construction Company. There was also evidence that Weaver-Bailey and L & S share a common yard. In his testimony, Fred Weaver admitted that approximately three truck loads of the lumber products (which he said consisted of four by six sign posts, twelve to twenty feet long) were transported and stored on the property of L & S Concrete and that there is a fence around the yard to keep intruders out. Fred Weaver also testified that he put the material there without his brother’s permission. However, when asked whether he would have to ask permission of a brother, Fred Weaver responded: “Well, I didn’t.” And when asked whether this was any kind of practice that was carried on between the two, if “you needed space, to put things over on each other’s property,” Fred responded that he had owned part of the company for several years and “I just felt like if I needed something I did it.” He said if he needed something, even if he needed to borrow a piece of equipment or something, he would get it without asking his brother.
Appellee James Bibler testified that Arkoma’s debt began to get old and that he was in contact with Fred Weaver trying to get payment. When no satisfaction of the debt came across, Bibler tried to find some of Arkoma’s lumber products. He testified that he located some material on the back lot of what he thought was Weaver-Bailey Construction Company, and he filed a garnishment. After he found out it wasn’t on the Weaver-Bailey lot, he filed garnishment against L & S. Bibler testified the material was still there on August 9, but it was gone on September 10.
After the above evidence was presented, the appellant made a motion for directed verdict which was denied. The appellant then called Charlie Weaver, sole stockholder and CEO of appellant company, who testified that he was not aware Arkoma had placed some lumber products on L & S’s property, and the first he learned about this lumber on his property was the day of trial. He testified further that three truck loads of lumber would cover “a pretty good area.”
Both parties then rested, and appellant again moved for a directed verdict. In reviewing the denial of a motion for directed verdict, we give the proof its strongest probative force. Such proof, with all reasonable inferences, is examined in the light most favorable to the party against whom the motion is sought and if there is any substantial evidence to support the verdict we affirm the trial court. Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987).
Apparently the trial court did not believe appellant’s story and in view of all the testimony and circumstances of this case, we
S.W.2d 830 (1987).
Apparently the trial court did not believe appellant’s story and in view of all the testimony and circumstances of this case, we think there is substantial evidence to support the court’s finding that the appellant had in “its hands or possession” property belonging to Arkoma.
Appellant also argues appellee failed to plead with particularity its post-hearing allegations of fraud. Because the issue of fraud was not raised in the trial court and was not the basis of the trial court’s decision, we do not reach this issue.
The judgment of the trial court is affirmed.
Rogers and Danielson, JJ., agree. | [
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James R. Cooper, Judge.
The employer in this workers’ compensation case, Hampton and Crain, and its insurance carrier, CNA Insurance Companies, appeal from the Arkansas Workers’ Compensation Commission finding that the appellee is entitled to a vocational rehabilitation evaluation. The appellants contend on appeal that the appellee is not entitled to the evaluation because he “has not shown that he is entitled to permanent disability benefits.”
When reviewing a decision of the Workers’ Compensation Commission, we must view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Bearden Lumber Company v. bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983).
At a hearing held on May 24, 1989, the parties stipulated that a compensable injury occurred on June 25, 1987, and that maximum wage benefits applied. The appellee contended his injury triggered his entitlement to an evaluation as to the propriety of vocational rehabilitation; the appellants contended that the appellee had returned to work; that he did not have a permanent disability; and that he was not entitled to the rehabilitation evaluation.
Arkansas Code Annotated § ll-9-505(a) (1987) provides:
In addition to benefits otherwise provided for by this chapter, an employee who is entitled to receive compensation benefits for permanent disability shall be paid reasonable expenses of travel and maintenance and other necessary costs of a program of vocational rehabilitation if the commission finds that the program is reasonable in relation to the disability sustained by the employee.
The appellee testified that he was a carpenter who primarily did finish work and cabinet building. He said he was cutting tie wires when a piece of steel hit him in the left eye, and he is no longer able to do finish carpentry work although he can still do rough carpentry. He testified that he is left-handed and because of the injury to his left eye he “couldn’t hit a nail or nothing else.” He said he has blurred vision and the sun irritates his eyes; because of his poor eyesight, he leaves cracks in window casings “you could stick a match through”; he “miscuts” lumber and other materials: and he built one house three inches “out of plumb.” The appellee said he was afraid Hampton and Crain would lay him off so he got a release from his doctor and went back to work; however, he “couldn’t drive a nail, couldn’t do nothing.” So, he said he would have to wait until his eye got better. He insisted he was an expert carpenter before his injury but now “people don’t come to me no more, you know, wanting me to do the work.”
On cross-examination the appellee testified that prior to his injury he had made $11.00 or $12.00 an hour. Since the injury, he had worked in Shreveport and made $6.00 an hour building screened porches on each end of an old house; had made $ 10.00 an hour helping to build two houses; and had also worked at a chemical plant in El Dorado as a journeyman carpenter making union scale of $12.35 an hour.
In a letter dated August 10, 1987, Dr. John Williamson, an opthalmologist, reported:
Mr. Black was seen on 6-26-87 with a history of sustaining an injury to his left eye.
. . . .He had a large metallic foreign body located in the central portion of his left cornea which appeared to have been present for a number of days. The foreign body was removed without difficulty, however, there was a considerable amount of rust staining of the cornea stroma, the majority of which was removed. . . .
He was last seen on 7-24-87, visual acuity was 20/25 and 20/30. He does have some scar related to the injury in his central cornea, however, no surgery is anticipated.
In another letter dated June 3, 1988, Dr. Williamson wrote:
[Appellee] has some residual scarring and some continued complaints of photophobia, however, functionally his vi sion is quite good.
No other treatment is anticipated and since his vision is almost to normal he has not been carried as sustaining any permanent disability.
On July 6, 1988, Dr. Williamson wrote:
Mr. Black was back in the office on July 6, 1988, at your request.
His vision in the right eye is 20/15, vision in the left eye is 20/30. He continues to have a scar on his left cornea from his previous injury.
His disability is still quite small. I would not recommend a corneal transplant on the basis of the size of the scar and with 20/30 vision I think it would be ill advised to pursue any additional treatment at the present time.
If his vision should deteriorate in the left eye, then we can always hold in reserve the fact that he could have a corneal transplant but his vision should be substantially worse than 20/30 before that is indicated.
Subsequently, appellee was examined by another ophthalmologist, Dr. Cliff Clifton, who reported on December 8, 1988, as follows:
I saw Rex Black on December 5, 1988 with a history of having a foreign body removed form his left eye approximately one year ago.
On my examination his visual acuity was 20/15 in the right eye and 20/30 in the left eye. His examination revealed a corneal scar just in the inferior portion of the pupillary axis of the left eye.
I agree with Dr. John Williamson that this represents a very small decrease in his vision. However, it did occur to his left eye which is his dominant eye and makes it a more difficult adjustment. I do not feel that this defect will increase with time and I do not recommend corneal transplantation which would be the only treatment. It would be very difficult to attach a percentage of disability to this defect. However, I would estimate it at least less than 5% of one eye.
We do not agree with the appellants’ argument that the appellee is not entitled to a vocational rehabilitation evaluation because he is not entitled to permanent disability benefits. We first note that Ark. Code Ann. § 11-9-505(a), supra, does not require that permanent disability benefits be awarded a claimant before he can have vocational rehabilitation but only that he be “entitled to receive compensation benefits for a permanent disability.” The opinion of the administrative law judge found:
That the claimant has sustained vision loss in his left eye, as a result of the compensable injury, as well as some degree of permanent impairment.
That the claimant is a finish carpenter by profession, left-handed and sustained vision loss in his dominant eye; and, as a consequence of his compensable injury and resulting vision loss as well as permanent partial impairment, claimant’s job performance and employability has been adversely affected. [Emphasis added.]
The law judge’s findings were adopted by the full Commission and we think there is substantial evidence to support the Commission’s action. We also note that in Smelser v. S.H. & J. Drilling Corp., 267 Ark. 996, 593 S.W.2d 61 (Ark. App. 1980), we said:
Whether or not an injured employee can be retrained is a pertinent factor for the Commission to consider in determining the amount, if any, of wage earning loss. If no rehabilitative evaluation is made the Commission has no way of knowing whether the employee could have been retrained.
267 Ark. At 998. Also, in Coosenberry v. McCroskey Sheet Metal, 6 Ark. App. 177, 639 S.W.2d 518 (1982), we said that while Ark. Stat. Ann. § 81-1310 (now Ark. Code Ann. § 11-9-506) does not specifically mention evaluation reports, it does provide for the Commission to determine if a proposed program of vocational rehabilitation is reasonable in relation to the disability sustained by the employee, but “the Commission must first decide if the claimant is a candidate for rehabilitation.”
In the present case, the appellee’s loss of vision is a scheduled injury, and under Ark. Code Ann. § 11-9-521 (f) (1987), he would be entitled to compensation for the proportionate loss of use of his injured eye. However, the benefits for scheduled injuries are not limited to the schedule if the injury renders the employee permanently and totally disabled. Johnson Construction Co. v. Noble, 257 Ark. 957, 521 S.W.2d 63 (1975). Therefore, we do not think the Commission erred in ordering the vocational rehabilitation examination. Even if the appellee is not totally disabled, he may be entitled to enter a program of vocational rehabilitation under the provisions of Ark. Code Ann. § 11-9-505 (1987), which allows rehabilitation where a claimant is entitled to benefits for permanent disability and the program is reasonable in relation to the disability sustained. Here, there is evidence that the appellee has not had steady work since his injury. As we said in Smelser, supra, without an evaluation the Commission has no way of knowing whether the appellee can be retrained.
Although the parties have not questioned whether the order here is appealable, this is a matter which arose in our conference. We may raise the issue on our own motion. See Gina Marie Farms v. Jones, 28 Ark. App. 90, 770 S.W.2d 680(1989). We will dismiss an appeal on our own motion in cases where we realize that there is no final, appealable order. Gina Marie Farms v. Jones, supra. For an order to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy, putting the court’s directive into execution and ending the litigation or a separable branch of it. Id. We think it significant that the Commission’s order did not merely establish the appellee’s right to a vocational rehabilitation examination: In addition, the appellee was awarded benefits under Ark. Code Ann. § 11-9-505(d) (1987), which provides that:
In addition to the benefits previously enumerated in this section, an employee, if not working or receiving other weekly benefits under this chapter, shall be entitled to payment of his regular weekly benefit rate commencing on the date a request for a rehabilitation program is received by the commission, carrier, or employer and continuing during the period the parties are exploring rehabilitation potential, the period not to exceed six (6) weeks.
While we express no opinion concerning the appealability of an order granting a vocational rehabilitation examination where benefits under § ll-9-505(d) are not awarded, we hold that an order granting both a rehabilitation examination and benefits under § 1 l-9-505(d) ends a separable branch of the litigation and is therefore appealable.
Affirmed.
Mayfield, J., concurs.
Jennings, J., dissents.
Danielson, J., not participating. | [
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George K. Cracraft, Chief Judge.
Phillips Construction Company attempts to bring this appeal from the denial of its motion for a new trial. It argues that the amount of damages awarded to it was too low and that the trial court should have ordered a new trial pursuant to Ark. R. Civ. P. 59(a)(5). Appellees, Hugh and Joan Cook, attempt to cross-appeal from the denial of their Ark. R. Civ. P. 60(b) motion to set aside the award of attorney’s fees to appellant. We are unable to consider either of these issues because neither appellant nor appellees properly perfected their appeals under Ark. R. App. P. 4.
Rule 4 of the Arkansas Rules of Appellate Procedure provides in pertinent part as follows:
(b) Time for Filing Notice of Appeal Extended by Timely Motion. Upon the filing in the trial court within the time allowed by these rules 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 Rule 52(b), or of a motion for a new trial under Rule 59(b), the time for filing of notice of appeal shall be extended as provided in this rule.
(c) Disposition of Posttrial Motion. If a timely motion listed in section (b) of this rule is filed in the trial court by any party, the time for appeal for all parties shall run from the entry of the order granting or denying a new trial or granting or denying any other such motion. Provided, that if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion will be deemed denied as of the 30th day. A notice filed before the disposition of any such motion or, if no order is entered, prior to the expiration of the 30-day period shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion or from the expiration of the 30-day period. . . .
(d) Time for Appeal from Disposition of Motion. Upon disposition of a motion listed in section (b) of this rule, any party desiring to appeal from the judgment, decree or order originally entered shall have thirty (30) days from the entry of the order disposing of the motion or the expiration of the 30-day period provided in section (c) of this rule within which to give notice of appeal.
( Emphasis added.)
The sequence of relevant filings in this case is as follows:
April 2, 1990 Entry of judgment for appellant, including award of attorney’s fees.
April 10, 1990 Appellant’s motion for new trial.
April 25, 1990 Appellees’ motion to set aside award of attorney’s fees.
April 30, 1990 Appellant’s notice of appeal.
May 15, 1990 Order denying both motions above.
June 13, 1990 Appellant’s second notice of appeal.
June 22, 1990 Appellees’ notice of cross-appeal.
Appellant’s April 10 motion for a new trial was timely filed under Ark. R. Civ. P. 59(b) and, therefore, served to extend the deadline for filing its notice of appeal. Ark. R. App. P. 4(b). According to Rule 4(c), appellant’s time for appeal would run either from entry of an order on the motion or from the thirtieth day after filing the motion, whichever came first. Ferguson v. Sunbay Lodge, Ltd., 301 Ark. 87, 781 S.W.2d 491 (1989). Here, since the trial court did not act on appellant’s motion within thirty days, it was deemed denied as of the thirtieth day, or May 10,1990. Consequently, both the April 30 and June 13 notices of appeal filed by appellant were ineffectual, as a notice of appeal filed before May 10 or after June 11 would be untimely under Rule 4(c). Jasper v. Johnny’s Pizza, 305 Ark. 318, 807 S.W.2d 664 (1991). Nor did appellees’ April 25 motion to set aside the award of attorney’s fees serve to extend the time for appellant to appeal, as appellees’ motion was not timely for that purpose under any of the rules listed in Ark. R. App. P. 4(b).
Appellees’ notice of cross-appeal is likewise ineffectual. While a notice of cross-appeal ordinarily is timely if filed within ten days of a notice of appeal, Ark. R. App. P. 4(a), no timely notice of appeal was filed in this case. Although we otherwise could treat appellees’ “notice of cross-appeal” as a notice of appeal in its own right, we cannot in this case since appellees’ notice was not filed until June 22, or thirty-eight days after the May 15 denial of appellees’ post-trial motion.
While these issues were not raised by the parties, they are jurisdictional ones that we are required to address even when the parties do not. Eddings v. Lippe, 304 Ark. 309, 802 S.W.2d 139 (1991). Because this court is without jurisdiction, we dismiss the appeal and cross-appeal.
Dismissed.
Mayfield and Rogers, JJ., agree.
The next business day after Saturday, June 9, 1990. See Ark. R. Civ. P. 6(a). | [
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Judith Rogers, Judge.
Tim Wargo and Sons, Inc., appellant, appeals from a decision denying its motion to set aside an order confirming a sale in foreclosure. On appeal, appellant advances two issues in which it contends that the confirmation of the sale was void, arguing that the chancery court was divested of jurisdiction upon the filing of its petition in bankruptcy and that the action of the court was in violation of the automatic stay provisions of the bankruptcy code. We affirm.
The history of this case needs to be set out for a full understanding of the questions presented on appeal. On April 11, 1986, appellee, The Equitable Life Assurance Society of the United States, filed a complaint in foreclosure in the Chancery Court of Desha County pursuant to a deed of trust it held on farmland owned by appellant. The following September, the chancellor entered a decree of foreclosure and on November 24, 1986, a sale of the property was held wherein Mankin Farms, Inc. was the purchaser as the highest bidder. Thereafter, on Decern- ber 22, 1986, appellant filed a petition in bankruptcy under Chapter 12 of the bankruptcy code. No further action was taken in the chancery court. Appellant’s bankruptcy petition was dismissed in June of 1987; however, appellant appealed the dismissal and a stay pending appeal was placed in effect. This stay was later dissolved on August 30, 1988, and on that date the appellee filed in the chancery court a report of sale relating to the November 24,1986, foreclosure sale. On the afternoon of August 31,1988, the chancellor entered an order confirming the sale and a commissioner’s deed to Mankin Farms was issued.
It is undisputed that, unbeknownst to the chancellor, appel-lee and Mankin Farms, appellant had earlier that morning filed yet another petition in bankruptcy, this time under Chapter 11. It was not until September 9,1988, that appellant filed notice in the chancery court of the latest bankruptcy proceeding. Appellant’s bankruptcy action was dismissed with prejudice by order of the bankruptcy court on October 16, 1989, in which the court expressed the reason for the dismissal as being appellant’s “continuing pattern of delay, abuse of the bankruptcy system, inattention and negligence.” In re Tim Wargo & Sons, Inc., 107 B.R. 622, 625 (Bkrtcy. E.D. Ark. 1989). On December 1, 1989, appellee filed a motion to distribute the purchase money funds of the foreclosure sale which had been held in escrow since the time of the sale. Two weeks later, appellant responded with a motion objecting to the distribution of the funds and seeking to set aside the order confirming the sale of August 31, 1988. After a hearing, the chancellor refused to grant appellant’s motion as reflected by his order on March 9, 1990. It is from this order that appellant brings this appeal.
As it did below, on appeal appellant maintains that the chancellor’s act of confirming the foreclosure sale was void because the court was without jurisdiction due to the filing of bankruptcy proceedings, and furthermore that the confirmation of the sale violated the automatic stay. Appellant bases its argument on the principle that a sale in foreclosure is not complete until confirmation, citing Fleming v. Southland Life Insurance Co., 263 Ark. 272, 564 S.W.2d 216 (1978). Although it is not expressly stated, based on this principle appellant assumes, or is implying, that it retained an interest in the property after the sale in foreclosure subject to protection in bankruptcy. As the foundation for appellant’s argument on appeal, we regard the question of whether or not appellant had an interest in the property as being a threshold issue. For if appellant retained no interest in the property after the sale, then the bankruptcy action would have had no effect on the chancellor’s confirmation of the sale.
The identifiable interests appellant may have had in the property are the statutory and equitable rights of redemption. The statutory right of redemption is found at Ark. Code Ann. § 18-49-106 (1987), which allows for redemption within one year from the date of the sale and is exercised by the payment of the purchase price for which the property was sold together with interest. The statute also provides that this right of redemption may be waived in the mortgage instrument or deed of trust. The equity of redemption is generally extinguished by the decree and sale; however, a court in its decree may, and usually does, allow a reasonable time for the mortgagor to pay the amount adjudged against him and redeem the property. See Martin v. Ward, 60 Ark. 510, 30 S.W.1041 (1895). Thus, it has been held that the time for exercising the equitable right of redemption is left to the sound discretion of the chancellor, Bentley v. Parker, 257 Ark. 749, 525 S.W.2d 460 (1975), and the limitation contained in the decree of foreclosure is determinative when assessing the time allowed for redemption. See Fleming v. Southland Insurance Co., supra. In Fleming, the supreme court, recognizing that a sale is not final until confirmation, noted that a chancellor may in his discretion permit redemption beyond the time stated in the decree, such as when confirmation is refused on grounds of fraud or some defect in the sale. The court expressed, however, that there is no absolute right to redeem at any time prior to confirmation.
We have had difficulty in evaluating this aspect of the case because the actual record on appeal includes neither the deed of trust nor the foreclosure decree. Thus, we do not know whether appellant waived the statutory right of redemption in the deed of trust, and there is no evidence in the record that a tender was made of the purchase price for the preservation of this right. And, without the decree, we have no way of determining whether appellant retained the equitable right of redemption. While it is the appellant’s duty to bring up a record demonstrating error, Smith v. Smith, 32 Ark. App. 175, 798 S.W.2d 443 (1990), we are unwilling to affirm on this basis alone. This precise issue has neither been raised nor argued, and it appears that the parties have proceeded on the assumption that an interest was retained without specifically addressing the issue; therefore, an affirmance for the lack of a complete record would be unduly harsh under the circumstances.
Even assuming that appellant retained an interest in the property, we find no merit in its argument that the trial court erred in failing to set aside the order confirming the sale. As stated earlier, it is the appellant’s contention that the confirmation was void ab initio based on the theory that the filing of its petition in the bankruptcy court deprived the chancery court of jurisdiction over property included in the bankrupt estate. In support of its position, appellant places reliance on the Supreme Court’s decision in Kalb v. Feuerstein, 308 U.S. 433 (1940). There it was held that under § 75 of the then existing Frazier-Lemke Bankruptcy Act, 11 U.S.C. 203, the bankruptcy court is vested with exclusive jurisdiction over the debtor and his property upon the filing of a petition, and thus declared that foreclosure proceedings taken in a state court afterwards were “beyond its power, void, and thus subject to collateral attack.” Id. at 438.
Under current law, however, authorities appear to be split as to whether an action taken in violation of the automatic stay is void or voidable. In re Bresler, 119 B.R. 400 (Bkrtcy. E.D.N.Y. 1990). The courts finding violations of the stay to be void rely on the decision in Kalb. In re Lampkin, 116 B.R. 450 (Bkrtcy. D. Md. 1990). On the other hand, many courts that have specifically addressed the void/voidable distinction have determined that post-petition transfers in violation of the automatic stay are not void, but are merely voidable. In re Schwartz, 119 B.R. 207 (Bkrtcy. 9th Cir. 1990). This distinction is significant in that voidable acts, albeit invalid, are capable of being cured, while void acts have no force and effect and cannot be cured or ratified. Id. at 209.
Courts adhering to the view that acts in violation of the stay are voidable, base this holding primarily upon statutory construction. 11 U.S.C. § 549(a)(1) provides in part that the trustee in bankruptcy “may avoid a transfer of property of the estate that occurs after the commencement of the case.” (Emphasis supplied). In the Ninth Circuit decision of In re Brooks, 79 B.R. 479 (Bkrtcy. 9th Cir. 1987), the court, emphasizing the permissive language used, held that the discretionary nature of the trustee’s avoidance powers under this section suggests that post-petition transfers in violation of the stay are not absolutely void, but rather voidable. In reaching this conclusion, the court also observed that the bankruptcy court’s powers under 11 U.S.C. § 362(d) to grant relief from the stay by “terminating, annulling, modifying or conditioning such stay,” were also inconsistent with the notion that violations of the stay are void, and showed a Congressional intention to the contrary. Stated another way, a bankruptcy court’s authority under § 362(d) to retroactively validate transfers in violation of the stay is incompatible with the concept that such acts are void. See e.g. In re Bresler, 119 B.R. 400 (Bkrtcy. E.D. N.Y. 1990) (relying on Sikes v. Global Marine, Inc., 881 F.2d 176 (5th Cir. 1989).
In the case of In re Germer, 107 B.R. 217 (Bkrtcy. D. Neb. 1989), the court reached the same conclusion based on its interpretation of sections 542(c) and 549(c) of the bankruptcy code. Under 11 U.S.C. § 542(c), a transfer of property of the estate after the commencement of the bankruptcy case by a transferor who does not have knowledge of the pending bankruptcy has the same effect as if the bankruptcy had not been filed. Id. Pursuant to 11 U.S.C. § 549(c) , a good faith purchaser who purchases real property after the commencement of the bankruptcy case without notice of the bankruptcy filing acquires good title. The court found that, since this statutory scheme permits transfers in violation of the stay to vest valid title in certain transferees, it followed that such acts taken in violation of the stay were voidable rather than void. The court further reasoned that had Congress intended an act in violation of the stay to be void, it could have expressly provided for such a result as it had done in 11 U.S.C. § 524(a), which voids judgments on discharged debts.
Even those courts which ascribe to the rule that acts in violation of the stay are void recognize that the rule is not without exception. It has been said that those courts following the rule that an act in violation of the stay is void expressly state that the rule is a “general rule,” and many of these courts treat an act as voidable for numerous reasons. In re Germer, supra. For example, in the decision of In re Wingo, 89 B.R. 54 (Bkrtcy. 9th Cir. 1988), the court determined that § 549(c) was a limitation on the general rule, given that under this section the trustee in bankruptcy cannot avoid transfers of real property to bona fide purchasers for value who were without notice of the filing of bankruptcy.
In denying appellant’s motion, the chancellor here based his ruling on § 549(c), finding that Mankin Farms was a good faith purchaser for value without knowledge of the bankruptcy proceeding. The application of this section hinges on whether the transferee had knowledge, either constructive or actual, of the filing of a petition. See In re Wingo, supra. In the instant case, the foreclosure sale took place before the filing of a petition, and it is not disputed that Mankin Farms, as well as the chancellor and appellee, was unaware of the filing of the second bankruptcy petition when the sale was confirmed. Moreover, notice of the filing was not lodged in the chancery court until after confirmation. Based on the record before us, we cannot say that this finding by the chancellor is clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a). Assuming that appellant retained an interest in the property, we agree with appellant that the confirmation of the sale was a violation of the automatic stay;, however, we reject the contention raised in its first issue and hold that the chancellor’s act of confirming the sale was voidable. Therefore, we affirm the decision of the chancellor denying appellant’s motion to set aside the order confirming the foreclosure sale.
Since we have concluded that the transfer at issue was voidable, we point out an additional reason for affirmance. Under 11 U.S.C. § 349(b)(1), the dismissal of a case reinstates those transfers avoided during the bankruptcy action. The court in In re Linton, 35 B.R. 695 (Bkrtcy. D. Idaho 1983), found that improper transfers not affirmatively avoided during bankruptcy should be treated in the same manner as those actually avoided. According to this view, the dismissal of the appellant’s bankruptcy action would have the effect of reinstating this transfer, which we must assume was not avoided during the bankruptcy proceeding.
On cross-appeal, appellee has presented a question with regard to its claim of entitlement to the interest earned on the purchase money funds held in escrow. Since appellee filed no notice of cross-appeal, we do not address this issue. Broadhead v. McEntire, 19 Ark. App. 259, 720 S.W.2d 313 (1986).
Affirmed.
Cooper and Mayfield, JJ., agree.
With certain exceptions not applicable here, the bankruptcy estate is comprised of “all legal or equitable interests of the debtor in property as of the commencement of the case.” In re Wingo, 89 B.R. 54 (Bkrtcy. 9th Cir. 1988); 11 U.S.C. § 541(a)(1).
Interpreting Arkansas law, the bankruptcy court in Booth v. First Federal Savings & Loan Association, 18 B.R. 816 (Bkrtcy. E.D. Ark. 1982), determined that the debtor had no interest in foreclosed property to be included in the bankruptcy estate under the statutory right of redemption when there had been no offer to pay the purchase price. See also In re Mueller, 18 B.R. 851 (Bkrtcy. W.D. Ark. 1982).
While at least one court has specifically noted that the reasoning in Kalb retains vigor, In re Lampkin, 116 B.R. 450 (Bkrtcy. D. Md. 1990), another has pointed out that its precedential effect is eroded by the fact that it was decided at a time when bankruptcy referees did not have the power to annul the automatic stay. In re Schwartz, 119 B.R. 207 (Bkrtcy. 9th Cir. 1990).
11 U.S.C. § 549(c) provides in pertinent part that “The trustee may not avoid. . .a transfer of real property to a good faith purchaser without knowledge of the commencement of the case and for present fair equivalent value unless a copy or notice of the petition was filed, where a transfer of such property may be recorded.”
We are not unmindful that principles of res judicata and collateral estoppel might have been asserted as a bar to the litigation of this issue in the chancery court. See In re Germer, supra. This point has not been argued. | [
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George K. Cracraft, Chief Judge.
Billy Baker, administrator of the estate of Willie Odell Baker, deceased, appeals from an order of the Hot Springs County Probate Court, contending that it erred in denying his petition that appellee State Farm Fire and Casualty Company, as subrogee, be assessed its proportionate share of the cost of collection of a wrongful death claim. We agree and reverse and remand for further proceedings.
Willie Odell Baker was killed when his automobile collided with a vehicle operated by Gary Murgberger. It is undisputed that, at the time of the collision, the deceased’s vehicle was covered by a policy of insurance issued by appellee, which contained no-fault coverage. Under the terms of the policy, appellee paid the sum of $3,836.50 to the decedent’s estate.
Appellant was appointed personal representative of the estate and employed attorneys of his choice to pursue a claim for wrongful death against the tortfeasor. Appellant entered into a contract with said attorneys in which he agreed to pay a contingent fee of thirty-three and one-third percent of any recovery on the claim. The probate court thereafter authorized the personal representative to pursue the claim and approved the contract for legal services. Appellee notified the personal representative of its subrogation claim to the proceeds of any recovery in the tort action. We find nothing in the record showing that appellee or its attorney did anything further in pursuit of its claim.
Appellant’s attorney negotiated a settlement with the tortfeasor for a total sum of $25,000.00. Appellant then filed a petition for court approval of the settlement and prayed that his attorneys be allowed their contingent fee and other expenses incurred in the negotiation of the settlement. Appellee intervened, demanding that it recover the full amount of its subrogation claim and arguing that appellant was not entitled to deduct from that amount a proportionate share of the cost of collection, including any portion of the attorney’s fee allowed. The probate court found that the settlement was in the best interest of the estate and authorized appellant to enter into it. The court allowed appellant’s attorneys one-third of the total proceeds as a reasonable fee for their services, along with reimbursement of other costs incurred by them in pursuing the claim. The probate court ordered that appellant pay appellee the total amount of its subrogation claim, and denied appellant’s claim that appellee be required to reimburse him for its pro rata of the fees and costs incurred in procuring the settlement.
Appellant contends that the probate court erred in refusing to allow him to deduct costs of collection from the amount of subrogation due appellee. We agree.
Arkansas Code Annotated § 23-89-202 (Supp. 1989) requires that every automobile liability insurance policy covering any private passenger vehicle include medical and hospital, income disability, and accidental death benefits in amounts specified in the statute. The policy issued in this case included coverage for medical and hospital benefits as provided in § 23-89-202(1). Section 23-89-207 provides as follows:
(a) Whenever a recipient of [Ark. Code Ann.] § 23-89-202(1) and (2) benefits recovers in tort for injury, either by settlement or judgment, the insurer paying the benefits has a right of reimbursement and credit out of the tort recovery or settlement, less the cost of collection, as defined.
(b) All cost of collection thereof shall be assessed against insurer and insured in the proportion each benefits from the recovery.
(c) The insurer shall have a lien upon the recovery to the extent of its benefit payments.
The “cost of collection” includes reasonable attorney’s fees. Northwestern National Insurance Co. v. American States Insurance Co., 266 Ark. 432, 585 S.W.2d 925 (1979).
Arkansas Code Annotated § 16-62-102(b) (1987) provides that every wrongful death action shall be brought by and in the name of the personal representative of the deceased persons. It does not provide or create an individual right in any other beneficiary to bring an action, as the personal representative acts as trustee for all beneficiaries. When it appears to be in the best interest of the estate or the widow and next of kin, the personal representative may be authorized by the court to effect a compromise settlement of any tort claim. Ark. Code Ann. § 28-49-104 (1987). That section provides no other method for the approval of negotiated settlements in wrongful death actions. Accordingly, in Brewery. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990), the supreme court held that a beneficiary’s attorney is not entitled to receive fees on the portion of the wrongful death proceeds due the beneficiary and that, even though a beneficiary may prefer to have independent counsel to protect his interest, he must bear the expense of his own counsel.
In Daves v. Hartford Accident and Indemnity Co., 302 Ark. 242, 788 S.W.2d 733 (1990), the supreme court recognized an insurer’s statutory lien on proceeds of its insured’s tort settlement, but assessed costs of collection in proportion to the amount it benefited. There, the appellant was injured in an automobile collision while insured by the appellee, who paid medical and wage-loss benefits to the appellant. The appellee’s demand for reimbursement was refused by the tortfeasor’s insurer. The appellant subsequently filed a personal injury action against the tortfeasor and negotiated a settlement. Prior to the settlement, the appellee had notified the tortfeasor’s insurer of its subrogation claim for reimbursement. However, the appellee was not aware of the lawsuit until after the settlement had been effected. The appellee then filed suit and recovered from the appellant the full amount of its subrogation claim, without any deduction for the appellant’s cost of collection. While the supreme court affirmed the judgment, it reduced the appellee’s award by its proportionate share of the appellant’s cost of collection:
In this case, Daves did not notify Hartford of his suit against the tortfeasor so that Hartford could intervene to protect its interest and then refused to reimburse Hartford out of the settlement recovery, contrary to the dictates of § 23-89-207(a). As a result, Hartford was forced to bring a different action to enforce its claim, thereby incurring separate expenses and attorney’s fees.
Accordingly, Hartford contends that it has paid its share of the “costs” and thus the trial court did not err in refusing to reduce the amount of its judgment. However, Hartford’s costs were not “costs of collection” of the tort settlement. Although the end result may be unjust, we must follow the code provision, which dictates that Hartford be assessed costs of collection in the proportion it benefited from the recovery by Daves.
302 Ark. at 251, 788 S.W.2d at 738.
Here, appellant, was the personal representative of the estate and authorized by the court to contract for legal services and pursue a wrongful death action against the tortfeasor. Appellee benefited from the tort settlement to the full extent of its subrogation claim. There is nothing in the record indicating that appellee assisted appellant in the procurement of the settlement. From our review of the record and the applicable law, we conclude that the trial court erred in not assessing against the amount of recovery payable to appellee its proportionate share of the cost incurred by appellant in its pursuit of the tort settlement.
Reversed and remanded.
Jennings and Danielson, JJ., agree. | [
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David M. Glover,Judge.
Appellant,John O. Brandt, and appellee, Krista Ann Brandt, were divorced in April 1999. They have one child. In a post-divorce action, the trial court was called upon to interpret paragraph 5 of the parties’ divorce decree concerning child support. An order entered on August 9, 2007, incorporated in part the parties’ agreement and in part the court’s decision on the child-support issue. As appellant’s sole point of appeal, he contends that the trial court erred in finding that paragraph 5 of the decree requires him to increase child-support payments automatically every year after 2000. We agree and, therefore, reverse and remand for proceedings consistent with this opinion.
As a general rule, judgments are construed like any other instrument; the determinative factor is the intention of the court as gathered from the judgment itself and from the record. Kennedy Funding v. Shelton, 100 Ark. App. 84, 264 S.W.3d 555 (2007). We will not reverse the circuit court’s interpretation of its own decree unless its findings of fact are clearly erroneous. Id.
Paragraph 5 of the parties’ divorce decree provides:
5. Defendant shall pay the sum of $400.00 per month to Plaintiff as support and maintenance for the minor child, Alec Christopher Brandt beginning with the entry of this Decree and up to and through July 31,1999 at which time, beginning on August 1, 1999, Defendant’s child support obligation shall be set pursuant to the Arkansas Family Support Chart. Said support shall be based on Defendant’s annual income of $275,000.00 for the first year and Defendant shall pay PlaintifF15% of his net income or $2,017.25 per month. Said 15% is based upon the following calculations, however, if the net amount of income as outlined below is less, the Defendant shall be entitled to a decrease in his monthly child support obligation and likewise, if the amount is more, the Plaintiff shall be entitled to an increase:
Annual income $275,000.00
Federal income tax 86,708.50
State income tax 18,422.88
Social security 4,501.20
Medicare 3,987.50
ANNUAL NET INCOME $161,379.92
MONTHLY NET INCOME $ 13,448.33
WEEKLY NET INCOME $ 3,103.46
In addition, Defendant shall pay to Plaintiff 15% of any and all net bonuses within ten (10) days of receipt of said bonus. Defendant is scheduled to receive an increase in his annual income in July of 2000 to $325,000.00. Upon receiving said increase, Defendant’s child support obligation shall increase according to the Arkansas Family Support chart or 15% of his net income and bonuses.
These provisions are not ambiguous. According to the terms of the decree, appellant was to pay $400 per month in child support through July 31, 1999. Beginning on August 1, 1999, appellant’s child-support obligation was supposed to escalate to $2017.25 per month. This figure recognized the anticipated rise in appellant’s annual income to $275,000 for the first year. The $2017.25 monthly child-support amount was based upon fifteen percent of the net amount of appellant’s income after appropriate deductions, as shown above, were taken. The amount was to be increased or decreased if appellant’s income was more or less than anticipated. In addition, the decree recognized that appellant’s annual income was expected to increase again in July 2000 to $325,000. Appellant’s child-support obligation was supposed to increase accordingly, i.e., fifteen percent of the higher net income. For both 1999 and 2000, appellant was also supposed to pay fifteen percent of his net bonuses as additional child support.
While appellant increased his child-support payments based upon his 1999 salary increase, it is not clear whether he included his bonuses for that year in his calculations. He did not, however, increase his child-support payments following his July 2000 income increase.
In the August 9,2007 order, the trial court determined that appellant’s child-support obligations under paragraph 5 of the decree were to increase automatically with any increases in appellant’s annual income, even beyond the year 2000. However, we find no language in paragraph 5 of the decree that supports such an interpretation for automatic increases beyond the year 2000. Appellee has cited several out-of-state cases, which she contends contain language similar to paragraph 5 of the parties’ divorce decree. See Bunnell v. Rogers, 263 Ga. 811, 440 S.E.2d 12 (1994); Heinze v. Heinze, 122 N.H. 358, 444 A.2d 559 (1982); In re Marriage of Mahalingam, 21 Wash. App. 228, 584 P.2d 971 (1978); Golden v. Golden, 230 Ga. 867, 199 S.E.2d 796 (1973); Vollenhover v. Vollenhover, 4 Ill. App. 2d 44,123 N.E.2d 114 (1954). We find those cases to be distinguishable because, unlike here, the language relied upon in them is clearly designed to accomplish an automatic escalation.
For example, the automatic-increase provision in Bunnel provided in pertinent part: “Husband shall pay to Wife, on Thursday of each week hereafter beginning July 16, 1981, the sum of $153.80 per week; which [weekly] payment shall, beginning with the first week in June of each year hereafter, be increased in direct proportion to the increase in Husband’s gross wages . . . (Emphasis added.) In Mahalingam, the child-support provisions provided in pertinent part: “That for every increase in petitioner’s net monthly earned income . . . twenty (20) percent of petitioner’s increase in net monthly earned income be added to the $200 child support payment. That, in addition, petitioner shall every six months starting on October 1, 1976, and continuing thereafter for the duration of the child support obligation, file with the registry of this court an affidavit. . . stating the amount of net annual earned increase thereto .... ” (Emphasis added.) In Vollenhover, the decree provided for automatic increases in child-support payments based upon designated increases in the father’s earnings, to be determined on the basis of his W-2s or other similar verification. In summary, paragraph 5 of the parties’ divorce decree contains no language providing for automatic increases in child support beyond 2000 and no mechanism for gathering income information beyond that year in order to calculate an increase in support.
From our review of the record, the arrearages calculations that were presented to the trial court in the hearing on this matter were agreed upon by the parties only if paragraph 5 were construed to provide for automatic increases beyond the year 2000. Because we have concluded that paragraph 5 does not provide for such automatic increases, we hold that the trial court’s construction of paragraph 5 was clearly erroneous and, accordingly, that it was error for the trial court to adopt the “stipulated” arrearages. Additionally, although it is clear from the parties’ divorce decree that appellant’s 1999 and 2000 bonuses were to be included in the child-support calculations, it is not clear from the parties’ calculations if that was done.
Upon remand, the child-support arrearages, based upon salary and bonuses, will need to be recalculated. Paschal v. Paschal, 82 Ark. App. 455, 117 S.W.3d 650 (2003). The increased child-support obligations for the years 1999 and 2000 were correctly determined to be self-executing under the divorce decree. The recalculations should be limited to the difference between the amount of child support that appellee actually received (based upon appellant’s 1999 income) and the amount that she should have received (based upon appellant’s actual salary increase for 2000 and his bonuses for the year 2000 and his bonuses for 1999, if the 1999 payments that were made did not include appropriate bonus amounts). Appropriate interest amounts should then be based upon these recalculations. See Ark. Code Ann. § 9-14-233(a) (Repl. 2008). In short, while the evidence showed that appellant’s income in subsequent years increased considerably beyond the amounts that he received in 2000, and while it may well have been appellee’s desire to have child support automatically increase with appellant’s increased income, we have concluded that the language in the decree did not provide for such automatic increases beyond the year 2000.
Reversed and remanded.
Bird and Marshall, JJ., agree.
The record reflects that appellant paid the $2017.25 monthly sum from August 1, 1999, until the hearing resulting in the August 9,2007 order. | [
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Sam Bird, Judge.
This case concerns a finding of contempt against appellant Joel Mark Rownak for failing to follow his express agreement with appellee Lisa Monette Rownak, his ex-wife, about the religious upbringing of their two sons. The parties’ agreement was approved by the circuit court and set forth in its 2005 divorce decree, which awarded custody of the children to appellant and awarded visitation rights to appellee. The following paragraph of the divorce decree reflects the agreement and the court’s approval of it:
Based upon the express agreement of the parties that the minor children be raised in the Protestant faith, the Court orders that each party hereto is enjoined from promoting another religious belief system/faith to the minor children unless both parties should consent.
In November 2006 appellee filed a petition for change of custody or, alternatively, for modification of visitation, and in March 2007 she filed a petition for contempt, alleging that appellant had violated the paragraph of the decree at issue. Both parties presented testimony and evidence in a hearing on the petitions. The court found appellant to be in contempt and, in its written order entered on May 18, 2007, addressed the issue as follows:
[T]he matter is one of contract interpretation if the objective is valid and not void as to public policy or a crime in the state of Arkansas. It is the finding of this Court that parents can agree how to raise their children as to their religious beliefs and training, in this instance, and that such a provision is not void as against public policy in the state of Arkansas and that is does not cause a crime.
Given that finding, the defendant candidly acknowledged that he has promoted the LDS faith to his sons. The plaintiff has not consented to the promotion of that faith to her sons and has objected to its promotion by the defendant.
The court found that appellant had violated the 2005 order “by promoting another religious belief system/faith” to his sons without appellee’s consent, and appellant was ordered to “cease all such contemptuous conduct immediately.”
Appellant did not file a notice of appeal from the May 18, 2007 order. Instead, on August 2, 2007, he filed a motion for clarification of the term “contemptuous conduct” as used in the May 18 order, or in the alternative, a motion pursuant to Ark. R. Civ. P. 60(a), for modification of the May 18 order to prevent a miscarriage of justice. The alleged miscarriage of justice was the portion of the order enjoining appellant from promoting his religious faith to his children. The court denied both motions in an order of August 6, 2007. Appellant raises two points on appeal from the order denying his motions. We affirm the trial court’s order.
Miscarriage of Justice
Appellant’s first point on appeal involves Rule 60(a) of the Arkansas Rules of Civil Procedure, which allows a circuit court to prevent the miscarriage of justice by modifying or vacating an order within ninety days after the date it is filed. Appellant contends that the portion of the contempt order that enjoined him from promoting his faith to the parties’ children without appellee’s consent permitted the miscarriage of justice because it interfered with his First Amendment rights, violated the Establishment Clause of the First Amendment, and violated correlating provisions of the Arkansas Constitution.
Appellee asserts that appellant used Rule 60 to circumvent the thirty-day deadline of Rule 4 of the Arkansas Rules of Appellate Procedure — Civil for appealing the circuit court’s order of contempt, entered on May 18, 2007. We find nothing in Rule 60 that would prevent appellant’s filing his motion for modification on August 2, 2007, and we do not view this situation as one in which a litigant employed Rule 60 as a ruse to avoid the time constraints of Rule 4. Cf. United S. Assurance Co. v. Beard, 320 Ark. 115, 894 S.W.2d 948 (1995) (recognizing that Rule 60 may not be used to breathe life into an otherwise defunct Rule 59 motion for new trial).
We agree, however, with appellee’s argument that the injunction about which appellant complains has for its basis a valid contract between the parties and does not violate appellant’s constitutional rights. The circuit court’s order merely effectuated the parties’ agreement, which was made a part of the divorce decree with the court’s approval, regarding the religious upbringing of their children. In its order of contempt, the court found it to be undisputed that appellant had requested that this provision be included in the divorce decree and that appellee had acquiesced in his request. Based upon testimony by appellant’s wife, a statement by the president of LDS that was publicized on the church’s website, and testimony by appellant, the court found the LDS church not to be a Protestant faith and found that appellant had promoted the LDS faith to his sons. The court noted that appellee had not consented to appellant’s promotion of the faith to them and, indeed, had objected to his promoting it.
A miscarriage of justice is a “grossly unfair outcome in a judicial proceeding.” Black’s Law Dictionary 1019 (8th ed. 2004). The circuit court correctly found that parents can agree as a contractual matter about children’s religious upbringing and that the parties’ agreement enjoining each from promoting a non-Protestant religion to their children unless the other party consented was neither criminal nor void as against public policy. See Am. Ins. Co. v. Austin, 178 Ark. 566, 11 S.W.2d 475 (1928) (recognizing the long-held right allowing parties to make their own contract and to fix its terms and conditions, which will be upheld unless illegal or in violation of public policy). In light of the parties’ agreement, instigated by appellant, he has failed to demonstrate that the court’s order enjoining him from promoting the LDS faith to these children without appellee’s consent resulted in an outcome that was grossly unfair. The circuit court did not err in denying appellant’s motion to modify its judgment in order to prevent a miscarriage of justice.
Clarification of Contempt Order
As his second point on appeal, appellant contends that the circuit court’s refusal to clarify “contemptuous conduct” relating to the promotion of his religious faith violated his constitutional right to due process of law. His motion to clarify the court’s May 18 order of contempt asked the court to state the specific activities it would consider contemptuous by ordering that he “cease all such contemptuous conduct immediately.” A memorandum attached to appellant’s motion asked whether he would be allowed to do specific things such as display church-related items in his home, read to his sons scriptures from the Book of Mormon, or speak to others about his faith in his children’s presence.
On appeal appellant asserts that the record contains no examples of his own specific admissions of promoting the LDS faith to his children. He complains that he had not anticipated that his conduct would be considered contemptuous, and he asserts that he was left to interpret the vagueness of the court’s order. He concludes that the court’s refusal to clarify conduct that it would consider contemptuous in the future was an abuse of discretion.
The circuit court found appellant in contempt of the parties’ agreed order after hearing testimony that, without appellee’s consent and despite her objections, appellant and his wife promoted the LDS faith to appellant and appellee’s sons through scripture reading and daily prayer, appellant involved one of the boys in Boy Scout activities at the LDS church, and one of them had been baptized in the church. Again, it was at appellant’s instigation that the decree of divorce included a provision enjoining him from promoting a different faith to his sons without appellee’s consent. The circuit court did not abuse its discretion by refusing to clarify specific and future acts that this provision of the parties’ contract sought to prevent.
Affirmed.
Gladwin and Robbins, JJ., agree.
Custody was changed to appellee based upon the court’s finding of a material change in circumstances, including the factor of appellant’s changing his church membership from Southern Baptist to LDS. Appellant does not challenge this finding on appeal.
The motion to clarify, filed on August 2, 2007, was permitted under the circuit court’s inherent power to correct its decree. See Abbott v. Abbott, 79 Ark. App. 413,90 S.W.3d 10 (2002) (reciting that a trial court has inherent power to correct a decree to accurately reflect the court’s original ruling or to interpret its prior decision and that, when its decree is ambiguous, the court has jurisdiction to make changes clarifying what the court originally intended). | [
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Sam Bird, Judge.
Appellant Discover Bank appeals from an order of the Poinsett County Circuit Court granting appel-lee’s motion for directed verdict and dismissing appellant’s complaint with prejudice. The issue on appeal is whether the circuit court abused its discretion in failing to allow appellant to introduce certain evidence under a statutory exception to hearsay. We hold that the circuit court did abuse its discretion, and we reverse the court’s order dismissing appellant’s complaint.
This case began when appellant sued appellee Patricia Pom-mell for credit-card debt allegedly owed by appellee to appellant. At trial, appellant moved to introduce into evidence an affidavit of its account manager and attached business records pursuant to Arkansas Code Annotated section 16-46-108, which allows the introduction into evidence of “[a]ny record or set of records or photographically reproduced copies of such records which would be admissible under Rule 803(6) or (7) of the Arkansas Rules of Evidence . . . upon the affidavit of the person who would otherwise provide the prerequisites of Rule 803(6) or (7) that such records attached to such affidavit were in fact so kept as required” by the rules. Ark. Code Ann. § 16-46-108(a)(l) (Repl. 1999). Appellee objected to introduction of the affidavit and records, claiming the documents were hearsay. The circuit court sustained the objection, stating that “it might be different if you had someone here” to testify as to the account statements. When no testimony or additional evidence was offered by appellant, appellee moved for a directed verdict, which the circuit court granted. In its order dismissing appellant’s complaint, the circuit court found there was no testimony introduced in the matter and that it had sustained appellee’s objection to the only documents offered into evidence by appellant. Appellant brings this appeal from the circuit court’s order.
Appellant contends that the affidavit of its account manager and attached documents were admissible under Ark. Code Ann. § 16-46-108 and that the circuit court erred in finding otherwise. The admission of evidence is left to the sound discretion of the trial court, and we will not reverse the trial court’s ruling absent a manifest abuse of that discretion. Metzgar v. Rodgers, 83 Ark. App. 354, 374, 128 S.W.3d 5, 18 (2003).
While appellee filed no brief with this court, at trial appellee argued that the Arkansas Supreme Court promulgates the rules of evidence and that the legislature has no authority to change those rules. Appellee argued that evidence must come in under a specific rule of evidence, not a statute. While this is generally true, the supreme court has made exceptions. See, e.g., Lovell v. Beavers, 336 Ark. 551, 987 S.W.2d 660 (1999) (holding that the Hospital Records Act, Ark. Code Ann. § 16-46-306, is such an exception). Moreover, although the supreme court has not specifically stated that Ark. Code Ann. § 16-46-108 was an authorized hearsay exception, in deciding a case regarding whether the trial court had properly calculated the fourteen-day period in Ark. Code Ann. § 16-46-108(a)(l) for filing the affidavit with the clerk, the court impliedly held that the statute was a valid hearsay exception. Phelan v. Discover Bank, 361 Ark. 138, 205 S.W.3d 145 (2005).
We now turn to the requirements of Ark. Code Ann. § 16-46-108. The statute first requires the party attempting to introduce the affidavit to file the affidavit and attached records with the clerk of the court “at least fourteen (14) days prior to the day upon which the trial” commences. Ark. Code Ann. § 16-46-108(a)(1). In this case, the file stamp on the affidavit was dated April 2, 2007, and the trial was held on September 5, 2007. Thus, it appears appellant met this requirement. The statute also requires the party filing the affidavit to provide “prompt notice” to the other parties. Id. Appellee made no argument that she did not receive prompt notice of the affidavit. Rather, appellee’s objection and the court’s ruling on the objection were based on the fact that the keeper of the accounts was not available to testify and therefore that the affidavit and attached documents were hearsay.
We hold that Ark. Code Ann. § 16-46-108 is a valid hearsay exception, that appellant met the requirements for this exception, and, thus, that the circuit court abused its discretion in sustaining appellee’s objection and excluding the evidence. We reverse the circuit court’s order dismissing the case and remand for further proceedings consistent with this opinion.
Reversed and remanded.
Glover and Baker, JJ., agree. | [
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Per Curiam.
We hereby grant the motion of the appellants to proceed in forma pauperis and write simply to say that by granting the motion, we are not granting attorney fees. In Webber v. Arkansas Dept. of Human Services, 334 Ark. 527, 975 S.W. 2d 829 (1998), the supreme court refused to allow attorney fees because the appellant in that case failed to cite any authority in support of the petition for attorney fees in an appeal from juvenile court. We would, of course, follow its mandate. However, the decision in Post v. State, 311 Ark. 510, 845 S.W. 2d 487 (1993), a case involving attorney fees for indigent criminal defendants, mandated payment of reasonable attorney fees for appointed attorneys in criminal cases. Though the nature of the proceedings is different, i.e., one is criminal and one civil, the juvenile code requires an appointment of counsel in termination cases. The cases appear in conflict and only the Supreme Court can give guidance to attorneys as to whether or not they will be paid for their appellate representation of indigent parents who lose their parental rights. | [
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Olly Neal, Judge.
A jury convicted Steven Earl Hill of second-degree murder in connection with the starvation death of his four-year-old daughter Krystal Hill. Appellant was sentenced to eighteen years’ imprisonment in the Arkansas Department of Correction. For reversal of his conviction, appellant raises four points on appeal. Based upon our review of the record of the trial proceedings, we conclude that no errors were committed and affirm his conviction.
We address appellant’s arguments in the order they are presented in his brief. At trial, the prosecutor cried while making his closing argument. The appellant objected and moved for a mistrial, arguing that the prosecutor’s actions were an improper appeal to the jurors’ passions. The trial court denied the motion for a mistrial, and admonished the jury to disregard the prosecutor’s display of emotion, and to consider only the evidence in determining appellant’s guilt or innocence. Appellant now contends that the trial court should have granted his motion for a mistrial.
A mistrial is an exceptional remedy to be used only when possible prejudice cannot be removed by an admonition to the jury. Gray v. State, 327 Ark. 113, 937 S.W. 2d 639 (1997). A mistrial should only be declared when an admonition to the jury would be ineffective. Puckett v. State, 324 Ark. 81, 918 S.W. 2d 707 (1996). The trial court is given broad discretion to control counsel in closing arguments, and the appellate courts will not disturb the trial court’s decision absent an abuse of discretion. Lee v. State, 326 Ark. 529, 932 S.W. 2d 756 (1996). Remarks that require a reversal are rare and require an appeal to the jurors’ passions. Id. Moreover, not every instance of prosecutorial misconduct mandates a mistrial. Muldrew v. State, 331 Ark. 519, 963 S.W. 2d 580 (1998).
Although the propriety of a prosecutor crying during a closing argument has yet to be addressed by our courts, other jurisdictions have addressed this precise issue. In Coburn v. State, 461 N.E.2d 1154 (Ind. App. 2 Dist. 1984), the Indiana Court of Appeals held that the trial court had not abused its discretion in refusing to grant a mistrial where the prosecutor cried during defense counsel’s closing argument. The court reasoned that where the effect of or impact of the unrecorded conduct is not and cannot realistically be reported in a written record, deference should be given to the discretion of the trial judge who was on the scene and in the best position to evaluate the conduct, its propriety, its inadvertence, and its impact, if any, on the jury. Similarly, in Gibbons v. State, 495 S.E. 2d 46 (Ga. App. 1997), the court did not find error in the trial judge’s refusal to grant a mistrial where the prosecutor, the victim and her mother, and other witnesses cried during closing arguments. The decision was based upon the fact that the record did not show that their actions disrupted the court or otherwise affected the jury.
Here, the fact that the prosecutor cried does not, in itself, amount to an improper appeal to the passions of the jurors. In fact, appellant has not included in his abstract proof that any of the jurors were visibly affected by the prosecutor’s emotional display. Further, though shedding tears, the prosecutor urged the jury to look at the evidence and not to allow their emotions to factor into their decision regarding appellant’s fate. Moreover, the trial court admonished the jury to disregard the prosecutor’s emotional display. Based upon the facts presented in the record on appeal, we conclude that although the prosecutor’s emotional display may have been improper, it was not an appeal to the jurors’ passions that would require the granting of the motion for a mistrial.
Although appellant does not challenge the sufficiency of the evidence to convict, a brief recitation of the facts is necessary. On April 17, 1996, the Blytheville Police received a 911 call and were dispatched to appellant’s residence. Police officers arrived at the residence to find Krystal Hill dead on the floor of one of the residence’s bedrooms. An autopsy was performed and the medical examiner determined that the cause of Krystal’s death was kidney failure due to malnutrition and neglect, exacerbated by physical abuse.
On October 31, 1996, appellant and his wife, Ida Hill, who was Krystal’s stepmother, were charged by information with first-degree murder. Prior to trial, appellant moved to sever his trial from his co-defendant’s. The trial court denied the motion. During the course of the trial, appellant moved for severance on several different occasions. The trial court denied all but one of the motions. Severance was finally granted when appellant gave testimony that implied that his wife caused Krystal’s death.
Appellant raises as a point of error the trial court’s refusal to grant his motion for severance prior to trial. It is well settled that trial courts have discretion to grant or deny a severance, and on appeal we will not disturb the ruling in the absence of an abuse of that discretion. Cox v. State, 305 Ark. 244, 808 S.W. 2d 306 (1991). In determining whether to grant a severance, a trial court should weigh the following factors: (1) whether the defenses of the defendants are antagonistic; (2) whether it is difficult to segregate the evidence; (3) whether there is a lack of substantial evidence implicating one defendant except for the accusation of the other defendant; (4) whether one defendant could have deprived the other of all peremptory challenges; (5) whether one defendant will be compelled to testify if the other does so; (6) whether one defendant has no prior criminal record and the other has; and (7) whether circumstantial evidence against one defendant appears stronger than against the other. Echols v. State, 326 Ark. 917, 936 S.W. 2d 509 (1996). The presence of any one of the factors does not necessarily require severance, as there are multiple factors to consider. Rockett v. State, 319 Ark. 335, 891 S.W. 2d 366 (1995).
Appellant argues that the trial court erred in refusing to grant his pretrial motion for severance, because the nature of the charges indicated that they would present antagonistic defenses. We disagree. At the time the trial court denied the motion, there simply was no evidence that the defendants would present antagonistic defenses. In statements given to the authorities during the course of the investigation of Krystal’s death, each of the defendants gave testimony that tended to absolve the other of wrongdoing. For instance, appellant’s wife gave a statement that appellant was a good father who loved his children, and that he did not harm his children. Appellant’s statement to authorities indicated that he believed his wife did a good job of caring for the children, and that she would not harm the children. There clearly was no evidence that the defendants would present antagonistic defenses until appellant testified and implicated his co-defendant in Krystal’s death.
The State points out that antagonistic defenses arise when each defendant asserts his innocence and accuses the other of the crime, and the evidence cannot be successfully segregated. Cooper v. State, 324 Ark. 135, 919 S.W. 2d 205 (1996). However, our courts have held that when there is no reason the jury could not have believed both defenses, the defenses are not antagonistic. Echols, supra. In the present case, prior to trial, both defendants maintained their innocence in causing Krystal’s death. Both defendants stated that neither had caused the child harm, and that she had been fed. The only evidence tending to implicate one defendant and not the other was introduced in the testimony of the appellant, after the State had rested its case.
Appellant argues that there was difficulty in segregating the evidence. He argues that his co-defendant’s taped statement that she did not cause Krystal’s death, although admitted as a statement against her own interest, accused him by implication of causing Krystal’s death. However, because both maintained their innocence at the time the motion was denied and neither accused the other, we cannot find that there was difficulty in segregating the evidence. Although there are other factors that are to be weighed in making the decision to sever, appellant does not argue that any of those factors were present. We accordingly decline to address those factors.
Appellant also contends that the trial court erred in admitting the taped statement made by Ida Hill. According to appellant, the introduction of the taped confession of his co-defendant who did not testify at a joint trial violated his rights under the Sixth Amendment’s Confrontation Clause. It is well settled that where two or more defendants are tried jointly, the pretrial confession of one that implicates the other is not admissible against the other unless the confessing defendant waives his Fifth Amendment rights so as to permit cross examination. Moore v. State, 297 Ark. 296, 761 S.W. 2d 894 (1988). Ida Hill’s statement did not contain a confession. In fact, Ms. Hill’s statement tended to clear appellant of any wrongdoing. In her statement, Ms. Hill stated that appellant never abused Krystal, that he fed her, and that he was a loving father. In the absence of a confession by his co-defendant, we cannot conclude that a violation of appellant’s rights granted under the Sixth Amendment’s Confrontation Clause occurred.
Appellant also argues that Ida Hill’s statement was hearsay as to him, and should not have been admitted. Hearsay is any statement made by an out-of-court declarant that is repeated in court and is offered into evidence for the truth of the matter asserted. See Bragg v. State, 328 Ark. 613, 946 S.W. 2d 654 (1997). Hearsay evidence is generally inadmissible, except as provided by law or the rules of evidence. Id. Even if we were to decide that Ms. Hill’s statement is hearsay, the statement tended to exculpate, rather than inculpate, appellant. Moreover, appellant has failed to demonstrate that he was prejudiced by the trial court’s ruling. Our appellate courts do not reverse a trial court’s ruling regarding such evidentiary matters, absent a demonstration of prejudice. See Misskelley v. State, 323 Ark. 449, 915 S.W. 2d 702 (1996).
Appellant’s final argument is that the trial court erred in denying his motion to suppress items seized pursuant to a search warrant that he characterizes as defective due to an excessively broad affidavit. Specifically, appellant argues that the warrant was defective because it did not describe with particularity the things to be seized.
In reviewing a trial judge’s ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances, and we reverse only if the ruling is clearly against the preponderance of the evidence. State v. Blevins, 304 Ark. 388, 802 S.W. 2d 465 (1991).
The requirements for the contents of search warrants are found in Rule 13.2(b) of the Arkansas Rules of Criminal Procedure, which provides in part that, “[t]he warrant shall state, or describe with particularity . . . the location and designation of the places to be searched[.]” Rule 16.2(e) provides that “[a] motion to suppress evidence shall be granted only if the court finds that the violation upon which it is based was substantial, or if otherwise required by the Constitution of the United States or of this state.”
Blytheville Police Captain James Sanders testified that after being informed by the medical examiner that Krystal’s death was ruled a homicide that resulted from starvation and dehydration, he prepared an affidavit for a warrant to search appellant’s home. The medical examiner also noted that there were approximately one hundred scars found on Krystal’s body. In the affidavit for the search warrant, Captain Sanders wrote that a four-year-old child had died in appellant’s home, that the medical examiner had ruled the death a homicide, and that the cause of the death was starvation and dehydration. Captain Sanders wrote in the affidavit that he believed that there was currently being concealed in the home certain property, namely evidence of child abuse and neglect, abusive punishment, starvation, and visual observations of adverse child living conditions.
Captain Sanders presented the application for the search warrant to Blytheville Municipal Judge Max Harrison. After reading the affidavit, Judge Harrison asked Captain Sanders to inform him of the items the police were specifically looking for. Judge Harrison placed Captain Sanders under oath, and Captain Sanders informed the judge that the police were looking for extension cords, bent coat hangers, and metal fly swatters, based upon the medical examiner’s opinion that the injuries found on Krystal’s body could have been inflicted by those items. Judge Harrison then had an addendum typed on the bottom of the affidavit that included among the items to be seized bent coat hangers, metal fly swatters, extension cords, and drug paraphernalia.
Appellant contends that because the warrant did not state that the items added to the affidavit were to be seized, those items along with photographs taken of his home should not have been allowed into evidence. The supreme court has previously held that highly technical attacks on search warrants are not favored, as such attacks would only serve to discourage police officers from obtaining them. Norman v. State, 326 Ark. 210, 931 S.W. 2d 96 (1996). In Vanderpool v. State, 276 Ark. 220, 633 S.W. 2d 374 (1982), the supreme court reasoned that if a magistrate determines that an affidavit is insufficient the defect can be cured, if the affiant has the required good cause, by putting the affiant under oath and allowing him to testify or by allowing him to execute a supplemental affidavit under oath. The supreme court has also upheld the validity of a search warrant where, although the language in the warrant was vague, the affidavit attached to the warrant described the location to be searched with particularity. See Baxter v. State, 262 Ark. 303, 556 S.W. 2d 428 (1977).
Here, where the magistrate administered an oath to the officer and attached an addendum that stated with particularity the items to be seized, we cannot say that the trial court’s decision to deny the motion to suppress was against the preponderance of the evidence.
Affirmed.
Arey and Roaf, JJ., agree. | [
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Sam Bird, Judge.
This is an appeal from a Workers’ Compensation Commission order that awarded appellee, Alice Pickett, interest that was incurred on medical bills paid by her health-insurance carriers after she suffered a compensable injury while working for Burlington Industries. The appellants, Burlington Industries and Liberty Mutual Insurance Company, do not contest the medical bills that they have been ordered to pay, but they contend that they should not have to pay interest on these bills because the bills were not itemized or provided to them in a timely manner and because the bills were not submitted in accordance with Rule 30 of the Workers’ Compensation Commission; therefore, they have not been able to evaluate them to determine which bills are reasonable and necessary.
Appellee was employed by Burlington Industries when she sustained a gradual-onset injury to her lower back. The appellants controverted compensability, and, after a hearing on the issue, the administrative law judge entered an opinion on February 9, 1994, finding that appellee had sustained a compensable injury and awarding temporary total disability benefits beginning May 25, 1990, continuing reasonable medical expenses, and awarding attorney’s fees. Between the time that the injury manifested itself in May 1990, and the time that the injury was found to be com-pensable in 1994, the appellee underwent two back surgeries and incurred substantial medical bills.
On March 1, 1996, a second hearing was held to determine claimant’s entitlement to additional benefits because she contended that she was permanently and totally disabled, and she sought reimbursement for medical payments that had been made by Provident Insurance Company, John Hancock Insurance Company, Medicare, and herself. The law judge found that as of the March 1, 1996, hearing, the appellants had paid a total of $35,589.74 in indemnity benefits, temporary total disability benefits from May 25, 1990, through February 22, 1994, and attorney’s fees. However, the appellants had paid neither indemnity benefits nor medical benefits for the period subsequent to February 22, 1994. The law judge also found that Provident Life Insurance Company, the group health-care provider for the employees of Burlington Industries, had paid $43,612; that John Hancock Insurance Company, the health-care provider for appellee’s husband, had paid $47,552.18, and that Medicare had paid $408. Further, the law judge found that appellee had incurred $1,066.17 in out-of-pocket expenses and at least $500 in annual deductibles.
On October 31, 1996, the administrative law judge entered an order in which he made the following findings :
9.The respondent shall pay all reasonable hospital and medical expenses arising out of the injury of May 24, 1990.
10. Respondents #1 have failed to pay temporary total disability benefits to the claimant subsequent to February 22, 1994, and a 20% penalty is assessed on said benefits pursuant to Ark. Code Ann. § ll-9-802(c).
11. Respondents #1 have failed to pay indemnity benefits to the claimant to correspond to the claimant’s permanent physical impairment as a result of her May 24, 1990, compensable injury, accordingly, a 18% penalty attached to said benefits pursuant to Ark. Code Ann. § ll-9-802(b).
12. Respondents #1 is Hable for interest, pursuant to Ark. Code Ann. § 11-9-809, on incurred medical paid on behalf of claimant’s compensable injury by Providence [sic] Life Insurance; John Hancock Insurance and Medicare • — • Blue Cross/Blue Shield.
The Full Commission affirmed and adopted the findings of the law judge, and the appellants bring this appeal.
When reviewing a decision of the Workers’ Compensation Commission, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirms that decision if it is supported by substantial evidence. Jeter v. B.R. McGinty Mechanical, 62 Ark. App. 53, 968 S.W.2d 645 (1998); Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Carroll Gen. Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996); Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993); College Club Dairy v. Carr, 25 Ark. App. 215, 756 S.W.2d 128 (1988). We do not reverse a decision of the Commission unless we are convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission. Milligan v. West Tree Serv., 57 Ark. App. 14, 941 S.W.2d 434 (1997); Willmon v. Allen Canning Co., 38 Ark. App. 105, 828 S.W.2d 868 (1992). The issue on appeal is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commis sion’s conclusion, we must affirm its decision. High Capacity Prods, v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998); St. Vincent Infirmary Med. Ctr. v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996); Bearden Lumber Co. v. Bond, 1 Ark. App. 65, 644 S.W.2d 321 (1983). In our review, this court recognizes that we must defer to the Commission in determining the weight of the evidence and the credibility of the witnesses. High Capacity Prods, v. Moore, supra; Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). We have applied this standard of review to the case at bar and find there to be substantial evidence to support the Commission’s decision, and we affirm.
Appellants argue that the Commission erred in awarding interest because the appellee did not produce any medical bills in conformance with Rule 30 of the Workers’ Compensation Commission; therefore, the bills cannot be considered “properly submitted bills.” They argue that appellee failed to present any medical bills until the second hearing, on March 1, 1996, and those bills contained only total amounts; not a breakdown as required by Commission Rule 30. The appellants argue that because the bills were not itemized and submitted in a timely fashion, they have not been afforded the opportunity to determine the reasonableness, necessity, or relatedness of the medical treatment or the amounts claimed. Moreover, appellants argue that a blanket statement from a health-insurance provider with only the total amount paid is insufficient for a determination of the reasonableness of the service as required by the Commission under Rule 30. Appellants also assert that the burden falls on the appellee to produce bills for medical services and to prove that those services were reasonable, necessary, and related to her compensable injury, and that appellee has failed to meet that burden.
Arkansas Code Annotated section 11-9-809 (Repl. 1996) provides for the assessment of interest on awards of workers’ compensation benefits. This section states that “Compensation shall bear interest at the legal rate from the day an award is made by either an administrative law judge or the full Workers’ Compensation Commission on all accrued and unpaid compensation.” This court has stated that interest on an award of compensation begins to run upon accrued and unpaid installments of compensa tion to be computed from the dates when they should have been paid, beginning, however, no earlier than the date on which a referee or full Commission first enters an award allowing or denying a claim. Eureka Log Homes v. Mantonya, 28 Ark. App. 180, 772 S.W.2d 365 (1989). This rule was explained in Clemons v. Bearden Lumber Co., 240 Ark. 571, 401 S.W.2d 16 (1966), in which the court wrote,
This rule has the merit of simplicity, fixing the rights of all concerned with certainty. It has the far more important merit of fairness, providing the claimant with some measure of redress for the fact that the payment of his just claim has been delayed, through no fault of his, for months or even, as in the case at bar, for years. Morever [sic] this construction of the statute treats delinquent payments with the same justice that applies to advance payments, which must be discounted to their present value.
240 Ark. at 576, 401 S.W.2d at 19. This court has found that since very few seriously injured employees have the resources to pay for expensive medical care, the award of interest is part and parcel of the benefits due an injured employee. Eureka Log Homes v. Mantonya, supra.
Arkansas Workers’ Compensation Rule 30 was promulgated pursuant to Ark. Code Ann. § 11-9-517 (Repl. 1996) for the purpose of implementing a medical cost-containment program with respect to injuries adjudged to be compensable under our workers’ compensation laws. While it is true that a workers’ compensation claimant has the burden of proving the necessity, reasonableness, and the relatedness of his bills for medical services, we do not read Rule 30 as either enhancing or diminishing that burden. Nor do we see anything in Rule 30 that relieves a workers’ compensation insurance carrier from the obligation to pay interest pursuant to Ark. Code Ann. § 11-9-809. Rather, Rule 30 is aimed at providing a procedure for the submission, review, and payment of workers’ compensation related medical expenses, with the goal of reducing those expenses. The rule establishes a procedure by which a carrier that disputes a medical-service provider’s bill can seek an adjustment and can even request an administrative hearing if no agreement can be reached with a medical-services provider to adjust a bill. This procedure was available to the appellants had they elected to utilize it. Instead, appellants elected to contest the compensability of appellee’s claim, and, with full knowledge that appellee had undergone substantial medical treatment, including two surgeries, and incurred substantial bills, stood aside while the medical bills were being paid by someone else.
It is also true, as appellants assert, that Rule 30(1) (2) states that a carrier shall not make payment for a service unless all required review activities pertaining to that service are complete. Again, appellants’ difficulty in relying upon this provision is that they chose to contest the compensability of appellee’s claim and to not pay the bills. We do not believe that Rule 30 can be construed to permit a workers’ compensation carrier to controvert the compensability of a claim, decline to pay any of the claimant’s medical bills, and then, upon the Commission’s determination that the claim is compensable, complain that it did not have the opportunity to utilize the procedures set out in Rule 30 for objecting to the appropriateness of those bills. By the time the claim was determined to be compensable, the medical bills had been long since paid by appellee’s medical insurers, and it was too late for appellants to avail themselves of the provisions of Rule 30. In declining to pay the bills and standing by while the appellee or some other insurance source paid them, appellants waived their right to rely on Rule 30.
The law judge addressed appellants’ argument that they should not have to pay interest, when he wrote,
The evidence clearly reflects that Respondents #1 had the capabilities and means to ascertain the extent of its obligation relative to the claimant. Further, Respondents #1 were under directive to satisfy its statutory obligation pursuant to the February 22, 1994, Order and Opinion. The claimant in the instant claim has undergone a hearing on the issue of compensability relative to her May 25, 1990, injury and has been awarded workers’ compensation benefits in a February 22, 1994, Opinion. Thereafter, an appeal was had and respondents directed to comply with the previous order and ruling. As a consequence of the orders of the Commission filed in this claim respondent was not in a position to idly sit by and wait to see if the bills would be submitted for the claimant’s medical treatment. Respondent was fully aware that it had not paid bills relative to the claimant’s surgeries and medical travel. . . . Respondents #1 failure to even put forth a possible good faith effort is evidenced by the fact that it has not paid even minimally on the impairment rating. Respondents #1 adherence to its statutory obligation under the Arkansas Workers’ Compensation statute and Awards, Order, and directives of the Workers’ Compensation Commission with respect to the handling of this claim when considered in its entirety is at best flagrant and broach the boundary of misconduct.
Appellants presented no evidence of any efforts they had made to obtain copies of the medical bills or of any attempts on their part to pay them. The law judge found that appellants were fully aware that they had not paid the bills relative to the claimant’s surgeries and medical travel, and he concluded “that respondent’s [sic] explanation for its failure to pay medical benefits on behalf of the claimant in accordance with the February 22, 1994, Award and Order is not persuasive and wholly lacking in credibility.” This court has stated that we defer to the Commission in determining the weight of the evidence and the credibility of the witnesses. High Capacity Prods, v. Moore and Mikel v. Engineered Specialty Plastics, supra. We cannot say that the decision of the Commission is not supported by substantial evidence.
Affirmed.
Jennings and Rogers, JJ., agree.
Pittman and Arey, JJ., dissent.
John B. Robbins, Chief Judge,
dissenting. The prevailing opinion of our court affirms an award of interest made by the Workers’ Compensation Commission to an injured employee. The interest award pertains to over $91,000 in medical expenses incurred by the claimant. This does not include a bill for $150, which was submitted to appellant’s carrier and timely paid. The bills representing the outstanding $91,000 of medical expenses were never submitted to appellant’s insurance carrier, as required by Workers’ Compensation Rule 30, yet the Commission, and now our court, requires appellants to bear the additional burden of paying interest on those medical expenses. While mindful of the standard of review when reviewing decisions of the Commission, I am also mindful that an agency’s interpretation of promulgated rules is not binding on this court if the interpretation is plainly erroneous or inconsistent. Harness v. Arkansas Public Serv. Comm’n, 60 Ark. App. 265, 962 S.W.2d 374 (1998).
The appellants were merely following the stated purposes of Rule 30 of the Commission promulgated pursuant to Ark. Code Ann. § 11-9-517 (1987). The Rule became effective September 15, 1992, and the revisions on September 1, 1994. The earliest order that found appellants hable for medical expenses was entered in February 1994. The Rule “establishes a system for the evaluation by a carrier of the appropriateness in terms of both the level of and the quality of health care and health services provided to injured employees, based upon medically accepted standards.” Rule 30, Part I(A)(e). It defines a “bill” as a request by a provider submitted to a carrier for payment for health-care services provided in connection with a covered injury or illness. Rule 30, Part 1(F)(4). It further defines a “properly submitted bill” as a request by a provider for payment of health-care services submitted to a carrier on appropriate forms that are completed pursuant to, and that must contain appropriate documentation as required by Rule 30. According to the Rule, a carrier shall not make a payment for a service unless all required review activities pertaining to that service are completed. Rule 30, Part 1(1)(2). Furthermore, billings that are not submitted on the proper form may be returned to the medical provider for correction and resubmission, and the days between the return to the medical provider and their return when corrected to the carrier shall not apply toward the thirty days within which the carrier is required to make payment. Rule 30, Part 1(1) (6). The tenor of this rule, promulgated according to statute and approved by the Commission for use by those under the Workers’ Compensation Act, is clearly that the medical provider, or the claimant who should be well aware of who his specific providers are and who are billing him or her for the excess, must bear the burden of presenting known bills. The rules do not place this responsibility on the employer or its carrier. Otherwise, as in the instant case, a carrier would be subject to punishment by the Commission as a consequence of abiding by the Commission’s own rules. In my mind, the Commission’s interpretation, which the prevailing opinion affirms today, creates an inconsistency within Rule 30.
The prevailing opinion cites Clemons v. Bearden Lumber Co., 240 Ark. 571, 401 S.W.2d 16 (1966), in which the supreme court said with regard to the statute on interest that:
It has the far more important merit of fairness, providing the claimant with some measure of redress for the fact that payment of his just claim has been delayed, through no fault of his, for months or even, as in the case at bar, for years.
Thus, the statute contemplates, as it has been interpreted by our highest court, that the claimant must bear no fault in the processing of his “just claim.” I cannot in good conscience condone an interest award when, as the prevailing opinion agrees, the claimant bears the burden of proving the necessity, reasonableness, and relatedness of his bills for medical services. A carrier should indeed pay those reasonably related medical bills as ordered by the Commission. It should not, however, be penalized for contesting a claim it deemed noncompensable — a right it has at law — until the claimant could prove that the employer was indeed hable for those costs. At the very earliest, it was February 1994 when appellants were ordered to reimburse three health-insurance companies that had paid for claimant’s medical expenses while the claim was controverted. At such time as appellants were found to be Hable for the medical expenses related to claimant’s injury, they stood ready and willing to pay upon proper submission and processing of her bills. Until the appellants were found hable for these expenses, how could they be expected to utilize the process set up in Rule 30? I cannot agree that there has been a waiver during the period of litigation.
We have before us, as did the Commission, the testimony of the claimant herself. She acknowledged that she did not provide appellants any of the bills until the March 1, 1996, hearing, and then she only furnished summary totals from each health-insur- anee provider. The claimant further acknowledged that “most of the times I was going to the doctor, it was for my back” but some of the visits were for B-12 injections, hormone shots, chest pain evaluations, bladder infections, annual checkups, and mammograms. She admitted some submissions to her health-insurance company were for medical expenses incurred by her son. By her own admission, there were costs not associated with any compen-sable conditions that were being lumped into the health-insurance summaries.
While Frank J. Rooney, Inc. v. Pitts, 268 Ark. 911, 597 S.W.2d 120 (Ark. App. 1980), is a case involving a penalty, rather than interest, it contains instructive dicta. We stated that the insurance company was being asked to pay medical expenses in excess of $40,000 and was entitled to a hearing and determination on the issue of reasonableness and necessity without being assessed a penalty, inasmuch as the Commission’s order that found the employer liable did not deal with the exact amount of medical expenses to be paid. We considered $40,000 of expenses to be “astronomical” in 1980. The same can be said of the $91,000 plus of medical expenses in today’s case and, similarly, appellants were entided to the same right of exploring the reasonableness of the bills.
I cannot reason that appellants should be penalized with interest in this case for complying with the Commission’s Rules, and I therefore respectfully dissent.
Pittman and Arjey, JJ., join in this dissent.
In his October 31, 1996, order, the law judge repeatedly referred to his “February 22, 1994, Opinion.” However, it is obvious to us from the record that the law judge’s first order was actually dated February 9, 1994, and that his repeated reference to an opinion or order dated February 22, 1994, is a mistake.
The law judge referred to the appellants as “Respondents #1” because, at the time of the hearing, the Second Injury Fund was a party in the case, and the law judge referred to it as “Respondent #2.” | [
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John E. Jennings, Judge.
This litigation arose from a car accident involving Robin Peppers and appellant David Casteel. Appellant recovered the maximum limit of Ms. Peppers’s automobile insurance policy in the amount of $50,000.00, and this case concerns appellant’s underinsurance claim against his own insurer, appellee State Farm. Appellee defended the suit on alternative grounds, arguing that appellant’s own negligence con tributed to the cause of the accident or that appellant’s damages did not exceed $50,000.00. A Craighead County jury returned a general verdict for the defense.
Two issues are raised in this appeal. Appellant contends that the trial court erred in allowing testimony and evidence concerning his prior medical conditions and treatment that were unrelated to the injuries sustained in the collision and that the court erred in giving the jury instruction AMI 601. We affirm.
Appellant raises several evidentiary matters in his first point on appeal. By way of background, appellant filed a written motion in limine before trial seeking to exclude certain references to prior medical conditions, as contained in the office notes and deposition of his primary physician, Dr. Darrell Ragland. The trial court denied the motion in part, allowing mention of conditions that were deemed related to appellant’s complaints since the accident, but the court also granted the motion in part, specifically precluding testimony concerning pain in the appellant’s right-hand index finger related to arthralgia, and mild tension headaches. At trial, Dr. Ragland’s deposition was read to the jury by the parties’ two attorneys.
Appellant’s first contention is that error occurred because appellee violated the court’s ruling in limine because those two conditions were mentioned when Dr. Ragland’s deposition was read. Appellant, however, failed to voice any objection to the violation of the court’s order prohibiting reference to those subjects. In his brief, appellant concedes that he did not object, but he argues that no objection was necessary, citing the rule that pertains when a trial court overrules a specific motion in limine. See Ward v. State, 272 Ark. 99, 612 S.W.2d 118 (1981); Taylor v. State, 9 Ark. App. 286, 658 S.W.2d 432 (1983). We are not persuaded that this rule applies in this instance. Here, the error complained of does not concern the trial court’s ruling, which was favorable to appellant, but rather it is the violation of the trial court’s ruling. It is one thing for it to be unnecessary to complain further about an adverse ruling, but quite another to say that an objection is not necessary when there is a violation of a favorable ruling. Few tenets are more firmly established than the rule requiring a contemporaneous objection in order to preserve a point for review. Nazarenko v. CTI Trucking Co., Inc., 313 Ark. 570, 856 S.W.2d 869 (1993). The reason is that the trial judge must be given an opportunity to correct the mistake. Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992). Furthermore, there is no affirmative duty on a trial court to subsequently make eviden-tiary rulings on its own motion. Mills v. State, 321 Ark. 621, 906 S.W.2d 674 (1995). Because appellant failed to object, we conclude that this issue has not been preserved for appeal.
Also under this point, appellant argues that the trial court erred in allowing testimony given during Dr. Ragland’s deposition that appellant had previously complained of left flank pain. Appellant sought the exclusion of this testimony in both the written motion in limine and one made orally at the outset of trial. In response to appellant’s oral motion in limine, appellee’s counsel agreed not to refer to this matter. Nevertheless, it was mentioned during the reading of the deposition. Again, however, appellant failed to make any objection, which results in a waiver of this issue.
Appellant further contends that the trial court erred in permitting testimony that he had high blood pressure, as well as evidence related to his family history of colon cancer and appellant’s refusal of diagnostic testing for that condition for financial reasons. Appellant raised these and a number of other matters in his oral motion in limine. Our review of the record, however, reveals that appellant failed to obtain a ruling. In addressing appellant’s motion, the trial court ruled only that it would allow evidence of appellant’s preexisting condition of fibromyalgia and related symptoms, since appellant’s current complaints were similar to that condition. The court’s ruling did not specifically address any of the other points raised in the motion. It is well established that the burden of obtaining a ruling is on the movant, and any objections and questions left unresolved are waived and may not be relied upon on appeal. Fisher v. Valco Farms, 328 Ark. 741, 945 S.W.2d 369 (1997). Also, when a trial court declines to rule on a motion in limine to exclude specific evidence, it is necessary for counsel to make a specific objection during the trial in order to preserve the issue on appeal. Slocum v. State, 325 Ark. 38, 924 S.W.2d 237 (1996). Because appellant failed to obtain a ruling and did not object when the evidence was introduced, these issues were not preserved. Even so we do not regard the admission of the evidence complained of as being prejudicial. Unless the appellant demonstrates prejudice, we do not reverse. Lucas v. Grant, 61 Ark. App. 29, 962 S.W.2d 388 (1998).
The accident in this case occurred on a four-lane street as Ms. Peppers, in a west-bound left lane, was making a left-hand turn into a parking lot, while appellant was heading east after entering the street from an adjacent parking lot. Ms. Peppers’s vehicle struck appellant’s vehicle broad-side, near the driver’s door. As his second argument, appellant contends that the trial court erred in instructing the jury that a driver about to enter a highway must give the right of way to approaching vehicles. We find no error.
The parking lot that appellant had left and the lot that Ms. Peppers was turning into are only a foot or so apart. Ms. Peppers testified that the road was clear when she initiated her turn. Although appellant did testify that he had traveled some distance before the accident occurred, he also testified that “I pulled onto the road, and all of a sudden she was there. It was that quick.” We believe that there was evidence from which the jury could find that Ms. Peppers made her turn first and was thus approaching when appellant pulled out of the parking lot. A party is entitled to a jury instruction when it is a correct statement of the law and there is some basis in the evidence to support it. Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998).
Affirmed.
Rogers and Griffen, JJ., agree. | [
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Olly Neal, Judge.
Appellant Joseph Wray was found guilty of DWI, second offense, and was sentenced to one year in jail, with a nine-month suspension, and fined $2,000 plus court costs. On appeal, appellant contends that the trial court erred in finding that there was sufficient evidence to sustain his conviction when there was no evidence of his arrest date for a prior DWI offense within three years of his present offense.
Appellant was arrested and charged with DWI, second offense, on April 5, 1997. From his conviction in the Fort Smith Municipal Court, he appealed to the Sebastian County Circuit Court. At a jury trial held on October 21, 1997, appellant was found guilty of driving while intoxicated. During the penalty phase of the proceedings, the State introduced a certified document from the Van Burén Municipal Court and the Crawford County Circuit Court. Defense counsel, however, made an objection to the admission of the municipal court document on the basis that it failed to identify the date of appellant’s arrest. The trial court allowed the usage of that document to reflect a date of “10/30/94” as the arrest date, but stated that it would note appellant’s objection. Thereafter, the court instructed the jury that appellant had a previous DWI conviction for an offense that occurred on October 30, 1994.
Appellant now argues that the trial court erred in allowing the jury to be instructed that he had a prior offense date on October 30, 1994, for DWI.
When the State utilizes a prior conviction to convict a defendant of a second or subsequent DWI offense, the State must show that the offense that resulted in the prior conviction occurred within three years of the date of the second offense. Wilson v. State, 46 Ark. App. 1, 875 S.W.2d 510 (1994). The date of the offense occurs when the criminal act is committed. Rogers v. State, 293 Ark. 414, 738 S.W.2d 412 (1987). Arkansas Code Annotated § 5-65-111 (1997) provides that:
(b) any person who pleads guilty, nolo contendere, or is found guilty of violating § 5-65-103 or any other equivalent penal law of another state or foreign jurisdiction shall be imprisoned:
(1) for no less than seven (7) days and no more than one (1) year for the second offense occurring within three (3) years of the first offense.
(Emphasis added.) As such, the State must prove each and every element of the crime of DWI, second offense, beyond a reasonable doubt. Warren v. State, 314 Ark. 192, 862 S.W.2d 222 (1993).
In this case, appellant was arrested and charged on April 5, 1997. Therefore, to meet the requirements of DWI, second offense, the State had to prove that appellant committed his first DWI offense after April 5, 1994. In the copy of a master inquiry of the Van Burén Municipal Court, which was admitted into evidence, a date of “10/30/94” is shown without reference to an offense or arrest date. The same document shows a first court date of “n/9/94” an(j a scheduled court date of “1/27/95.” Along with this information, the State argues that there was substantial evidence to support a second DWI offense because the document also contains the appellant’s identity, the ticket number, the charge, the date and time, and vehicle information. A judgment from the Crawford County Circuit Court was the second certified document admitted into evidence by the trial court. The judgment, rendered on January 27, 1995, reflects that its decision was taken from an appeal from the Van Burén Municipal Court.
While appellant contends that the master inquiry is too vague and unclear for the trial court to announce his arrest date as October 30, 1994, we note that circumstantial evidence may constitute substantial evidence to support a jury’s verdict of guilt if the circumstantial evidence rules out every other reasonable hypothesis but the guilt of the accused. Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994). In resolving the question of the sufficiency of the evidence in a criminal case, we view the evidence in the light most favorable to the appellee and affirm if there is substantial evidence to support the decision of the trier of fact. Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id.
In the present case, we find that there are other reasonable inferences that may be drawn from the “master inquiry” data sheet, and, consequently, there is insufficient evidence of the date of appellant’s first offense. First, it is conceivable that if appellant’s first appearance before the circuit court was in November of 1994 with a continuance to January 27, 1995, then his first appearance in municipal court could have been on October 30, 1994. Second, we could also assume that the master inquiry was first established on October 30, 1994. Here, where there is room left for speculation, the date of appellant’s first offense, which is an element of DWI, second offense, cannot be established beyond a reasonable doubt.
Because the double jeopardy clause precludes a second trial once we have found the evidence to be legally insufficient to support a verdict of DWI, second offense, see Rogers, supra, we are required to modify appellant’s conviction of DWI, second offense, to DWI, first offense, and remand this case to the trial court for resentencing.
Affirmed as modified and remanded.
Robbins, C.J., and Crabtree, J., agree. | [
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Olly Neal, Judge.
Appellant Emanuel Hart was convicted by a jury of first-degree murder and two counts of committing a terroristic act. He was thereafter sentenced to thirty-five years in the Arkansas Department of Correction. On appeal, appellant contends that the trial court erred in allowing the State to present testimony that he allegedly shot at a vehicle other than the one involved in this case. We affirm.
The evidence presented at trial showed that on February 18, 1996, the appellant, Johnny Stephenson, Derrick Stewart, and Kenneth McArthur were out together at a local nightclub in North Little Rock. While at the club, Stephenson purportedly got into an argument with James Nichols, who was accompanied by Donian Jarrett and Shedric Sabb. Shortly thereafter, both of these groups departed in their vehicles and entered onto Interstate 30. Stephenson testified that when appellant noticed the red Hyundai driven by Nichols, appellant hollered, “There they go [sic]” and fired three shots. This testimony was corroborated by Derrick Stewart, who testified that as the red Hyundai began to exit the interstate, the appellant rolled down his window and fired four or five shots at the car. James Nichols testified that as he and his friends exited the interstate, no other vehicles were behind them except a gold Mitsubishi Gallant. Nichols further testified that although he did not hear gun shots at the time of the shooting, he did realize that Shedric Sabb had been shot while sitting in the back seat. Sabb was later pronounced dead from a gunshot wound.
In a police statement given on February 20, 1996, appellant admitted that he was riding in a gold Mitsubishi Gallant on the morning of February 18, 1996, and that he had fired two shots at a red car that was exiting the interstate because “they [the occupants of the red car] had pissed me off by circling around us, playing with us.” Appellant testified that he used a black automatic .380 caliber pistol in self-defense. Ronald Andrejack, a firearm and toolmark examiner with the Arkansas State Crime Laboratory, testified that the three casings found near the scene of the accident were consistent with having been fired from a ,9mm Glock semiautomatic handgun, which included bullet components of the .380 caliber class.
Appellant’s sole point on appeal is that the trial court erred in allowing Derrick Stewart to testify that he had shot at a Cadillac in the parking lot of the nightclub shortly before the shooting involved in this case. The State offered this testimony as admissible evidence under Ark. R. Evid. 404(b), which the trial court accepted and which appellant now seeks as reversible error.
The admission or rejection of evidence under Ark. R. Evid. 404(b) is left to the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Brown v. State, 63 Ark. App. 38, 972 S.W.2d 956 (1998). Arkansas Rule of Evidence 404(b) provides that “evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” If the introduction of testimony of other crimes, wrongs, or acts is independently relevant to the main issue, i.e., relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal, then evidence of that conduct may be admissible with a cautionary instruction by the court. Regalado v. State, 331 Ark. 326, 961 S.W.2d 739 (1998). Thus, if the evidence of another crime, wrong, or act is relevant to show that the offense of which the appellant is accused actually occurred and is not introduced merely to prove bad character, it will not be excluded. Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994). However, such relevant evidence may be excluded under Ark. R. Evid. 403 if its probative value is substantially outweighed by the danger of unfair prejudice. Id.
Here, we first note that appellant failed to ask for a cautionary instruction that the purpose of Derrick Stewart’s testimony was not to show that he had a criminal propensity for shooting weapons at moving cars. Regardless of the fact the appellant did not ask for a limiting instruction, we conclude that Stewart’s testimony was relevant in showing that appellant fired shots at the victims with an absence of mistake or accident. Appellant acknowledged in his police statement that he had ready access to his weapon and that he had shot at the victims’ car because he was angry at the victims shortly before the incident. There was also testimony that the casings found near the crime scene were consistent with the gun that appellant was found to have possessed and that after the shooting, appellant wanted to disassemble the gold Mitsubishi. Further, Stewart’s testimony was part of the res gestae of the case by providing corroborating evidence that appellant had possession of a gun before the present shooting, even though appellant had testified that Kenneth McArthur was the actual person in possession of the weapon. We have previously stated that all of the circumstances of a particular crime are part of the res gestae of the crime, and all of the circumstances connected with a particular crime may be shown to put the jury in possession of the entire transaction. Hunter v. State, 62 Ark. App. 275, 970 S.W.2d 323 (1998).
The underlying facts in this case show that appellant admitted to shooting at the victims out of anger, in spite of testimony that the victims did nothing to provoke him. Stephenson testified that when appellant observed the victims’ car, he shot at the car a multiple number of times. Stewart testified that he first noticed that appellant had a weapon when appellant shot at and ran behind a Cadillac in the parking lot of the Cameo club, and that shortly after leaving the club and exiting onto the interstate, appellant began shooting after a red Hyundai stating, “I’m tired of them [sic] young punks.” There was also evidence from one of the victims that the gold Gallant, in which appellant was a passenger, was at the nightclub earlier that evening and was the only car on the interstate at the time Shedric Sabb was fatally shot. In appellant’s own testimony, he stated that “on page 10 of my [police] statement, I said that what really made me shoot is that it pissed me off by their circling around and playing with us. I was referring then to the white Bronco and the Cadillac.” Coincidentally, appellant was referring to the victims’ car when he stated to police, “well what really made me shoot is when they was blocking, you know. They should have went on — ’cause I didn’t know what they was gone do. They had pissed me off by kept [sic] circling around us, playing with us.” Further, there was evidence that appellant suggested stripping down the gold Gallant after he learned that one of the victims had died. When the evidence of guilt is overwhelming and the error is slight, the appellate court can declare the error harmless and affirm. Brown, supra.
Although the dissent feels that Rowdean v. State, 280 Ark. 146, 655 S.W.2d 413 (1983), and Lincoln v. State, 12 Ark. App. 46, 670 S.W.2d 819 (1984), are controlling, we note that this case is distinguishable. In both Rowdean and Lincoln, evidence was presented that the appellant had either pulled a gun or waved a gun around another person shortly before the shootings that occurred in their present convictions. However, in this case, there was evidence that appellant had actually shot at a Cadillac in the parking lot of the Cameo club and within a short period of time, shot at the victims involved in the present case. In addition, appellant admitted that he was angry at the occupants of the Cadillac when he shot at them. Although appellant shot at two different vehicles, his conduct in the first incident was relevant in showing an absence of mistake or accident for the same type of conduct in the present incident. Therefore, under these circumstances, we cannot say that appellant was unfairly prejudiced by the testimony of Derrick Stewart.
Affirmed.
Robbins, C.J., Bird and Meads, JJ., agree.
Pittman and Hart, JJ., dissent. | [
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Karen R. Baker, Judge.
Appellant Charles West appeals the entry of an order setting aside an unequal division of property in a divorce case entered against appellee Karla West. Specifically, he argues that the trial court abused its discretion when it vacated the default judgment based upon its finding that fraud occurred, which caused Karla not to appear at the hearing; a motion for default was timely made by Charles; and a meritorious defense was not applicable. We find no error and affirm.
The timeline of events regarding this case was considered by the trial judge in evaluating whether setting aside the default judgment for fraud was appropriate. On September 9, 2003, Charles filed for a divorce, and a summons was issued giving appellee twenty days’ notice to file an answer. Attached to the summons was a restraining order, containing a notice of a temporary hearing set for October 14, 2003. Karla was properly served with the complaint, summons, and notice of hearing. Shortly before the hearing, a telephone call was held between Karla and Charles in which counsel for Charles participated to some extent. That same day, Charles appeared at Court and moved to obtain a divorce and divide the property by default. The trial court awarded an unequal division of property, awarding everything to Charles, finding that Charles had contributed to the checking account and the house which made it possible for the parties to have them. The decree was entered on November 6, 2003.
On November 13, 2003, a power of attorney authorizing Charles’s step-father to secure the property was filed of record. On December 8, 2003, the sheriff assisted the step-father in removing Karla from the residence. Karla moved to have the order set aside on December 23, 2003. She did not contest the award of the divorce. She did, however challenge the division of the property alleging that the division of property should be set aside based upon fraud, stating that she did not participate in the proceedings because she relied upon Charles’s words and actions that a compromise had been reached.
At the hearing to set aside, Karla asserted that the parties had reached an agreement as to the property division and that the agreement included her receiving sole ownership of the house, which is located in the general area where her family resides. She explained that shortly before the hearing preceding the default judgment, she spoke with Charles and his attorney on the phone; however, the attorney dismissed herself from the conversation after confirming with Karla that she and Charles had an agreement. The purpose of the call was to reconfirm that the two were in agreement. She said that Charles, after the hearing, told her that nothing happened at court and even sent her money two weeks after the hearing date. She testified that she knew nothing about the decree until the sheriff came to remove her from the house, separating her from all she owned. It was undisputed that a conference call took place between Karla, Charles, and counsel for Charles shortly before the hearing and that counsel removed herself from the conversation when it was stated that a settlement was reached. At the hearing on that motion, when questioned by the court as to why possession of the house was delayed until December 8, the response from Charles’s step-father was that “Miss Ginger” told them to wait for thirty days.
Our standard of review depends on the grounds upon which the appellant is claiming that the default judgment should be aside. Born v. Hodges, 101 Ark. App. 139, 271 S.W.3d 526 (2008). In cases where the appellant claims that the default judgment is void, the matter is a question of law, which we review de novo and give no deference to the circuit court’s ruling. Id. In all other cases where we review the motion to set aside a default judgment, we do not reverse absent an abuse of discretion. Id. In the case before us, appellant argues that the trial court erred in finding that fraud occurred to justify setting aside the decree. Accordingly, our review of this matter is for an abuse of discretion.
When a party against whom a judgment for affirmative relief is sought fails to plead or otherwise defend as provided by the Rules of Civil Procedure, a default judgment may be entered against him. See Ark. R. Civ. P. 55(a). Default judgments are not favorites of the law and should be avoided when possible. Born, supra. One reason courts are admonished to avoid default judg ments when possible is that a default judgment may be a harsh and drastic result affecting the substantial rights of the parties. See id. Pursuant to Rule 55(c) of the Arkansas Rules of Civil Procedure, a default judgment may be set aside for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) the judgment is void;
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) any other reason justifying relief from the operation of the judgment.
While it is true that defendants wishing to set aside default judgments must demonstrate a meritorious defense to the action, the defense in and of itself is not sufficient without first establishing one of the grounds laid out in Ark. R. Civ. P. 55(c). McGraw v. Jones, 367 Ark. 138, 238 S.W.3d 15 (2006) (citing S. Transit Co. v. Collums, 333 Ark. 170, 966 S.W.2d 906 (1998); Tharp v. Smith, 326 Ark. 260, 930 S.W.2d 350 (1996)).
The trial court in this case found that fraud justified the setting aside of thejudgment in accordance with Rule 55(c)(3). To establish fraud a plaintiff must show the following: (1) a false representation of material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in reliance upon the representation; (4) justifiable reliance upon the representation; (5) damage suffered as a result of the reliance. McAdams v. Ellington, 333 Ark. 362, 970 S.W.2d 203 (1998) (citing Scollard v. Scollard, 329 Ark. 83, 947 S.W.2d 345 (1997)); see also Cincinnati Life Ins. Co. v. Mickles, 85 Ark. App. 188, 148 S.W.3d 768 (2004) (stating that deceit or fraud requires scienter, an intent to misrepresent).
Charles argues “that there is a fine line between fraud and negligence.” While he admits that if he actively committed fraud and deception to entice Karla into not defending herself the trial court could set aside the decree, he maintains that his actions did not rise to a level of fraud in the procurement of the decree. Appellant’s argument appears to be relying upon an abolished distinction between extrinsic and intrinsic fraud. While he does not cite to the case of Graves v. Stevison, 81 Ark. App. 137, 98 S.W.3d 848 (2003), he does rely upon cases cited by the Graves opinion. He argues that Karla was required to prove extrinsic fraud before the trial court could set aside the default judgment. The commentary regarding the 2003 amendment to Rule 55 discusses the reason for the amendment’s specific inclusion of both extrinsic and intrinsic fraud:
Subdivision (c)(3) of the rule has been amended by inserting a parenthetical phrase, “whether heretofore denominated intrinsic or extrinsic,” after the word “fraud.” Although the prior version of the rule was not by its terms limited to extrinsic fraud, the Court of Appeals has construed it in that fashion. Graves v. Stevison, 98 S.W.3d 848 (Ark. App. 2003). The amendment has the effect of overturning Graves and makes subdivision (c)(3) consistent with Rule 60(c)(4).
While no distinction between extrinsic and intrinsic fraud was necessary for the trial court to set aside the default decree, the trial court in this case found that Charles actively enticed Karla not to attend the hearing on the assurances that a settlement representing their agreement would be entered. The testimony also established that Karla spoke with Charles and his counsel by phone prior to the hearing and that Charles waited until thirty days after the decree before enforcing the provisions of the decree, which supported the conclusion that the fraud was planned and the delay in execution was to prevent an appeal after the discovery of the decree’s existence. The testimony on this issue was disputed; however, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Osborne v. Arkansas Dep’t of Human Servs., 98 Ark. App. 129, 133, 252 S.W.3d 138, 141 (2007). Even if the distinction between extrinsic and intrinsic fraud had not been abolished, the proof sits squarely within the parameters of the extrinsic fraud that Charles asserts was necessary. See United States v. Throckmorton, 98 U.S. 61 (1878) (holding that acts constituting extrinsic fraud for reasons to set aside judgment include “where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise”).
Based upon the evidence before the trial court, we find no error in the court’s determination that Charles procured Karla’s nonattendance at the hearing and failure to answer the complaint by deceiving her into thinking that a compromise had been reached and that this deception practiced upon Karla kept her away from court. Accordingly, we find no error in the trial court’s determination that Charles’s actions were sufficient to justify the setting aside of the court’s decree regarding the property division.
Charles also mentions that the trial court erred in finding that Karla had a meritorious defense, although the argument focuses upon her failure to first meet the requirements of Rule 55. In her affidavit attached to her motion to set aside, Karla stated that the challenged order awarded all of the marital property to Charles and that the execution of the order resulted in not only her eviction from the home she believed to be hers from the parties’ compromise, but also dispossessed her from her vehicle and other personal property. The brief in support of her motion specifically identified approximately $54,000 in retirement accounts and $26,000 in savings and checking accounts that the challenged order did not address. She further asserted that she had been denied access to her property for a significant amount of time because of Charles’s invoking protection pursuant to the Soldiers’ and Sailors’ Civil Relief Act, 50 U.S.C. after he had obtained the decree by fraud.
Charles asserts that the only argument Karla gave for setting aside the decree was that she did not receive anything. The fact that she did not receive any property in the distribution of marital assets in the divorce was sufficient to assert a meritorious defense to the default judgment dividing marital property. Three factors demonstrate that sufficiency. First, there is a statutory presumption that all property acquired during a marriage is marital property. Fan v. Fan, 89 Ark. App. 196, 201 S.W.3d 417 (2005); Ark. Code Ann. § 9-12-315(b). Second, there is the presumption that all property is to be divided equally. Ark. Code Ann. § 9-12-315 (a)(1)(A). Third, given these presumptions, in the absence of an adequate explanation as to why an equal division of the marital property is inequitable, a trial court commits error that requires reversal and remand for entry of an order that demonstrates proper consideration of the statutory factors. See Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988).
The default judgment stated that “an even division of the property would be inequitable” because Charles was “the one who has contributed to both the checking account and to the house, which made it possible for the parties to have them.” As this court has explained, simply reciting the source of the funds cannot equate to a proper consideration of the contribution of each party in the acquisition, preservation, or appreciation of marital property. Baxley v. Baxley, 86 Ark. App. 200, 206, 167 S.W.3d 158, 162 (2004) (noting insufficient findings for unequal distribution even though wife’s earnings were identified as the source of the funds in the investment account because the trial court’s order made no findings as to the contribution of each party as contemplated by Ark. Code Ann. § 9-12-315(a)(1)(A) (vii)). The trial court’s mere recitation of Charles’s contribution was an inadequate explanation for the unequal distribution of marital property. Under these facts, Karla’s statement that she received nothing in the distribution of property was sufficient to raise a meritorious defense.
Affirmed.
Glover and Vaught, JJ., agree.
For discussions concerning the role that Throckmorton played in the development of the distinction between intrinsic and extrinsic fraud in proceedings to set aside a judgment for fraud and that distinction’s abrogation by amendment to the federal rules of procedure, see generally Patel v. OMH Medical Center; Inc, 987 P.2d 1185, 1196 (Okla. 1999) and Browning v. Navarro, 826 F.2d 335 (Tex. 1987).
We note that Karla’s argument to the trial court included an allegation of a want of due process. She asserted that the notice of the temporary hearing could not suffice as notice of an entry of a final decree. Our supreme court has held that it was unnecessary for an appellant to show a meritorious defense as a prerequisite for setting aside a judgment when the trial court ruled on the merits of the case at a hearing noticed for discovery issues, without notice that it would rule on the merits, because the entry of the judgment was contrary to statute and denied appellant his federal constitutional right to due process of law. Davis v, Univ. of Ark. Med. Ctr. and Collection Serv., Inc., 262 Ark. 587, 590, 559 S.W.2d 159, 161 (1977). However, Karla did not file a brief in this appeal, and the issue was not developed. | [
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James R. Cooper, Judge.
The appellant in this workers’ compensation case sustained a work-related injury while employed as a housekeeper for Holiday Inn on September 11,1987. She received temporary total disability benefits and was released to return to work in March 1988. At that time, her treating physician assessed a five percent permanent impairment rating. She then returned to work for Holiday Inn until July 1989, when she was terminated for reasons unrelated to her injury. She then obtained employment with the Brownwood Life Care Center where she worked for approximately eight months. After obtaining additional treatment for her back injury, she filed a claim for benefits contending that she was entitled to payment for the additional medical treatment, that she suffered permanent physical impairment equal to eight percent to the body as a whole, and that she was entitled to benefits for a loss in wage earning capacity. The Commission found that the appellant was entitled to payment for the additional medical treatment and that she sustained a permanent physical impairment equal to eight percent to the body as a whole, but concluded that the appellant was barred from receiving benefits for a loss in wage earning capacity pursuant to Ark. Code Ann. § 11-9-522(b) (1987). From that decision, comes this appeal.
For reversal, the appellant contends that the Commission erred in holding that Ark. Code Ann. § 11-9-522(b) bars her from receiving benefits for loss of wage earning capacity. We agree, and we reverse and remand.
Arkansas Code Annotated § 11-9-522(b) provides that:
In considering claims for permanent partial disability benefits in excess of the employee’s percentage of permanent physical impairment, the commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee’s age, education, work experience, and other matters reasonably expected to affect his future earning capacity. However, so long as an employee, subsequent to his injury, has returned to work, has obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than his average weekly wage at the time of the accident, he shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by a preponderance of the medical testimony and evidence.
[Emphasis added]. The essence of the Commission’s decision with respect to this subsection is that a claimant who has once returned to work at equal or greater wages is permanently barred from receiving benefits for a loss in wage earning capacity, even should her subsequent employment cease, unless the claimant is terminated for reasons relating to her compensable injury. We find that this interpretation of the statutory language was erroneous.
Ambiguities and conflicting interpretations of workers’ compensation statutes must be resolved in favor of the claimant. Noggle v. Arkansas Valley Electric Co-op., 31 Ark. App. 104, 788 S.W.2d 497 (1990). This is in keeping with the remedial purposes of the Workers’ Compensation Act. Reeder v. Rheem Mfg. Co., 38 Ark. App. 248, 832 S.W.2d 505 (1992).
In the case at bar, the statute prohibits a claimant from receiving wage-loss disability “so long as” the claimant has returned to work, obtained other employment, or had a bona fide and reasonable offer of employment. The principal definition of the term “so long as” is “during and up to the end of the time that.” Webster’s New Collegiate Dictionary 1098 (1979). We indicated that our interpretation of the statute was in keeping with the concept of limitation expressed by this definition in Cook v. Aluminum Co. of America, 35 Ark. App. 16, 811 S.W.2d 329 (1991), when we analyzed the sufficiency of a similar claim on the basis of whether there was evidence to show that the claimant was employed and making equal or greater wages at the time of the hearing. Cook, 811 S.W.2d at 333. Furthermore, as the appellant notes, the intent of the legislature to impose a bar on wage-loss benefits conditioned on continued employment or offer of employment, rather than a permanent bar, is implied by the provision for reconsideration based on changed circumstances found in Ark. Code Ann. § 11-9-522(d).
Interpreting the statute in light of the remedial and beneficent purposes of the Act, we conclude that § 1 l-9-522(b) precludes a claim for wage loss benefits as a matter of law only during such time as the claimant has returned to work, obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than her average weekly wage at the time of the accident. Because the Commission’s interpretation of the statute was in error, we reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
Robbins and Mayfield, JJ., agree.
The appellant does not argue, and we do not address, the application of § 11-9-522(c) to this case. | [
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Per Curiam.
On February 24, 1993, we affirmed appellant’s conviction of delivery of controlled substance. Houston v. State, 41 Ark. App. 67, 848 S.W.2d 430 (1993). On September 23, 1993, appellant’s attorney filed this motion for attorney’s fees. We deny the motion.
A two-month delay between rendition of our decision and the motion for attorney’s fees prompted us in 1982 to advise the bar that motions for attorney’s fee should be filed in this court in time for them to be considered at the time the case is considered on its merits. Cristee v. State, 8 Ark. App. 33, 627 S.W.2d 38 (1982). We explained in Cristee that when motions for fees are delayed we are required to obtain and reconsider the briefs in order to determine the fees. Id.
A three-month delay prompted a similar explanation in Stefanovich v. State, 10 Ark. App. 233, 662 S.W.2d 476 (1984). Our request that motions for attorney’s fees be filed so that we can consider them at the time the case was decided was, in Stefa-novich, coupled with a warning that failure to do so could prevent an allowance or attorney’s fee. Id.
Although we granted attorney’s fees in both Cristee and Stefanovich, in Fiveash v. State, 12 Ark. App. 391, 676 S.W.2d 769 (1984), we denied a motion for attorney’s fees filed eight months after our decision was rendered.
In Scott v. State, 28 Ark. App. 329, 775 S.W.2d 513 (1989), we granted a motion for attorney’s fees filed four months after our decision was rendered, and repeated the warnings in Fiveash, Stefanovich, and Cristee, supra.
In Terrell v. State, 32 Ark. App. 58, 796 S.W.2d 348 (1990), we denied a motion for attorney’s fees filed over eight months after our decision was rendered. In that per curiam opinion, we reviewed our prior warnings about filing motions for attorney’s fees promptly and repeated the explanation for this requirement.
In Williams v. State, 42 Ark. App. 184, 854 S.W.2d 370 (1993), we denied a motion for attorney’s fees filed approximately seven months following issuance of our mandate.
This opinion is being published as notice to the bar that hereafter, if no good cause for delay in filing the motion is presented, we will deny motions for attorney’s fees filed more than sixty (60) days after our mandate issues.
The motion for attorney’s fees is denied. | [
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John B. Robbins, Judge.
This case involves the chancellor’s refusal to restore three mortgages, which were released by appellant in error, to their priority status above appellee’s judgment lien. The chancellor found that appellant’s error in releasing its mortgages was the result of its own culpable negligence and refused to reinstate the priority position of the mortgages above appellee’s judgment lien. Because we cannot say this finding is clearly against the preponderance of the evidence, we must affirm.
The facts in this appeal are undisputed. In 1990, appellant, Home Federal Savings and Loan Association, held a first, second, and third mortgage on property owned by Stanley and Barbara Broadaway, known as the “packing plant,” in Jonesboro, Arkansas. These mortgages secured three separate promissory notes for various amounts with differing maturity dates. By the summer of 1990, all three of these notes had matured and the Broadaways began negotiations with appellant for additional time to attempt to sell the mortgaged property in order to repay these notes. Appellant agreed to consolidate the three notes into a single note with a future maturity date. The new note, in the amount of $ 152,448.37, not only included the $ 140,242.69 amount owing on the three prior notes, but also included an additional indebtedness of $12,205.68 and had a different interest rate from the earlier notes. The additional indebtedness represented $10,414.68 interest, which was owed by the Broadaways to appellant on a residential mortgage loan and secured by a separate mortgage on the Broadaways’ home, and $ 1,791.00 loaned by appellant to the Broadaways to cover the expenses of a new appraisal, title report, and recording fees. The new note and mortgage were executed on August 1,1990, and the proceeds from this note were used to pay off the three earlier notes. The first, second, and third mortgages securing these earlier notes were released after these notes were paid, and the mortgage on the new note was recorded.
In releasing its mortgages, appellant had failed to discover that appellee, Citizens Bank of Jonesboro, had obtained a judgment against the Broadaways for $307,510.00, which had been entered of record after the three original mortgages but prior to the new August 1990 mortgage. By operation of law, the appellee’s judgment constituted a lien on the packing plant; therefore, appellee’s judgment lien ascended to priority above appellant’s new mortgage when the three old mortgages were released. Appellant failed to discover this judgment lien despite the fact that it was reflected in the title report ordered by appellant.
It was not until a second title report of the packing plant property was ordered, in preparation for instituting foreclosure proceedings against the Broadaways, that appellant discovered appellee’s intervening judgment lien and the loss of appellant’s priority status. Appellant then contacted appellee in an attempt to regain its priority status. Appellee refused appellant’s request although it had been unaware that appellant’s three earlier mortgages had been released.
Appellee instituted foreclosure proceedings against the Broadaways and the packing plant property and named appellant as a party defendant. Appellant counterclaimed, asking that its three original mortgages on the property, which it had released in error, be reinstated to their first priority position. The chancellor denied appellant’s petition for reinstatement after a hearing on the merits, finding that the new note was intended to be a new loan rather than a continuation or renewal of the three existing notes and that appellant was guilty of culpable negligence in not discovering appellee’s intervening judgment lien. It is from this ruling that appellant appeals.
It has long been the rule in Arkansas that, where a senior mortgagee in good faith and without culpable negligence satisfied the lien of his mortgage on the record in ignorance of the existence of an intervening mortgage on the same premises and took a second mortgage as a substitute, equity will restore the lien of the first mortgage, provided it can be done without working hardship or injustice on innocent parties. Wooster v. Cavender, 54 Ark. 153, 155, 15 S.W. 192 (1891). See also Stephenson v. Grant, 168 Ark. 927, 931, 271 S.W. 974, 976 (1925). Such relief, however, cannot be obtained to the injury of the intervening rights of an innocent third party who relied upon the release unless the party is chargeable with notice of the mistake or will not be prejudiced by the reinstatement. Security Trust Co. of Freeport v. Martin, 178 Ark. 518, 520, 12 S.W.2d 870, 871 (1928).
Appellant contends that reinstatement of its prior mortgages is proper because appellee did not rely on the release of its mortgages and has not suffered any prejudice because of appellant’s mistake. Although appellant acknowledges that its new note includes approximately $12,000.00 of additional indebtedness which was not included in the original three notes, it argues that it disclaimed any right to these additional funds prior to trial and requested that its reinstated mortgages be limited to the amount of debt secured by the prior three mortgages.
As a general rule, where a mortgage has been released or satisfied through mistake or accident, it may be restored to its original priority as a lien unless the rights of innocent third persons are affected.
Ignorance of existence of other liens or rights. Generally, where a new mortgage is substituted for an old one in ignorance of and under the mistaken belief that there was no other encumbrance on the premises, and the original mortgage is released of record, it may be restored and given its original priority as a lien, where the rights of innocent third persons will not be affected. . . . Thus, when the release is intended to be effectual only by force of, and for the purpose of giving effect to, a new mortgage, as where a new mortgage is substituted for an old one for purposes of convenience, or with the object of extending the time of payment or in pursuance of an agreement to assign the debt, and, in ignorance of an intervening lien, the first mortgage is discharged of record, it may be restored and given its original priority. . . .
The result under the general rule will not be affected by the fact that the overlooked intermediate lien was on record at the time of the controverted release, provided the mortgagee was not, in so acting, guilty of culpable negligence; but if the mortgagee is chargeable with such negligence relief will be denied, as where the mortgagee had actual knowledge of the intervening lien.
59 C.J.S. Mortgages § 282 (1949) (emphasis added). While a court of equity has the power to grant relief from the consequences of a mistake, the application of this power must be largely controlled by the circumstances of each case. Spencer W. Symons, Pomeroy’s A Treatise On Equity Jurisprudence § 856b, at 340 (5d ed. 1941).
We agree with appellant that appellee has not shown any reliance or that it will suffer any prejudice if appellant’s mortgages are reinstated. Nevertheless, Arkansas law also requires a mortgagee to be free of culpable negligence in order to have its mortgage reinstated. See Wooster v. Cavender, 54 Ark. at 153, 15 S.W. at 192. The chancellor recognized this premise in his letter opinion:
Let me begin with the statement that the court recognizes the basic premise that a mortgage released by mistake may be reinstated, provided that such reinstatement is not detrimental to intervening rights of innocent third parties. As stated in the case of Wooster v. Cavender, such reinstatement is conditional, i.e. the mortgager must have acted in good faith and without culpable negligence, and provided the reinstatement does not work a hardship or injustice to innocent parties. That Home Federal was guilty of culpable negligence is, in my opinion, without question.
Appellant admits that it made a mistake in not discovering appellee’s lien but maintains that this mistake was a mere error and not the result of culpable negligence. Whether this mistake was caused by appellant’s own culpable negligence was a question of fact for the chancellor. Culpable negligence is the omission of something which a reasonable, prudent, and honest man would do, or the doing of something which such a man would not do, under all the circumstances surrounding each particular case. St. Louis Iron Mountain & Southern Railway Co., 66 Ark. 248, 250, 50 S.W. 273, 274 (1899); Hot Springs Railroad Co. v. Newman, 36 Ark. 607, 611 (1880).
In the case at bar, there was no evidence that appellant inquired of the Broadaways as to whether there were other mortgages on the property or judgments against them when it negotiated the new loan. The title report ordered by appellant clearly showed the judgment of appellee at the bottom of the report.
Connie Stevenson, assistant loan officer with appellant, testified that part of her responsibilities was to review title reports and to prepare the necessary documents to secure appellant’s first liens on property. She stated that she began working in the Consumer Lending Department of appellant in January 1990 and her only formal training for this position was working for three weeks with the lady who was leaving that area. She stated that she was a consumer loan processor until January 1992 when she became an assistant loan officer. She testified that she obtained the title work on the property from the abstractor but could not remember examining the report. She stated that she was sure she did review it but did not recall seeing the judgment lien of appellee reflected on that report. She admitted that, at that time, she did not understand the legal significance of a judgment on a title report. She stated that appellant had a first, second, and third mortgage on the property and she ordered the title report to see if someone else had a fourth mortgage on the property.
Dan Trevathan, president of appellant, testified that he is responsible for the overall operations of appellant and that he instructed Connie Stevenson to order a title search on the property. He testified that he did not review the title report and that he normally does not do so unless the loan secretary brings a problem to his attention. He testified that he was concerned about an additional mortgage on the property of which he might not have been aware but went ahead with the closing of the loan when the title report did not reveal another mortgage. He denied that he had any actual knowledge of appellee’s judgment lien but stated he knew that Mr. Broadaway had purchased property after a foreclosure from appellee and he did not check to see if that foreclosure decree had been satisfied before releasing appellant’s mortgages. He also stated that he would have handled the transaction differently if he had been aware of appellee’s judgment lien. He admitted that anyone closing loans and reviewing title reports ought to know the significance of a judgment lien.
Based on the undisputed evidence before the chancellor, we cannot say his finding that appellant was guilty of culpable negligence in releasing its mortgages is clearly against the preponderance of the evidence. Chancery cases are tried de novo on the record on appeal; however, we will not reverse the findings of the chancellor unless clearly erroneous or clearly against the preponderance of the evidence. RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 552, 713 S.W.2d 462, 464 (1986); Ark. R. Civ. P. 52.
Because we are affirming the chancellor’s finding of culpable negligence on the part of appellant, we need not address appellant’s second point on appeal, that the chancellor erred in finding the consolidation loan was a new transaction. Suffice it to say we have reviewed the evidence and the testimony presented, and we cannot say his decision in this regard is clearly against the preponderance of the evidence.
Affirmed.
Cooper and Mayfield, JJ., agree. | [
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James R. Cooper, Judge.
The appellant in this child support case is the mother and the custodial parent of the parties’ three children. She and the appellee were divorced on January 16, 1989, pursuant to a divorce decree which granted the divorce to the appellant, gave her custody of the three minor children, provided visitation privileges for the appellee, and required that the appellee pay child support in the amount of $440.00 per week. On February 2,1990, the appellee filed a petition for modification of the decree, requesting, among other things, modification of child support. The appellant filed a counterclaim, petitioning for modification of the decree and seeking to collect past due child support. On March 26, 1990, a hearing was held and the chancellor entered an order finding that neither of the parties had complied with the divorce decree and that both parties were estopped from raising the issue of back support. Additionally, he modified the child support required to be paid by the appellee from $440.00 per week to $62.00 per week. From that decision, comes this appeal.
The appellant advances two arguments on appeal: first, that the trial court erred in finding that she was estopped to raise the issue of the appellee’s failure to pay child support and that there was no child support due on the ground of estoppel and; second, that the trial court erred in modifying the amount of child support in the absence of a showing of changed circumstances. We disagree with the appellant’s arguments and affirm.
Although we review chancery cases de novo, we do not disturb the chancellor’s findings unless they are clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a). Because the question of the preponderance of the evidence turns largely on the credibility of the witnesses, we defer to the chancellor’s superior opportunity to assess credibility. Callaway v. Callaway, 8 Ark. App. 129, 648 S.W.2d 520 (1983).
The appellant argues that the trial court erred in finding that she was estopped to raise the issue of the appellee’s failure to pay child support. Once a child support payment falls due, it becomes vested and a debt due the payee. Holley v. Holley, 264 Ark. 35, 568 S.W.2d 487 (1987). Arkansas has enacted statutes in order to comply with federal regulations and to insure that the State will be eligible for federal funding. Sullivan v. Eden, 304 Ark. 133, 801 S.W.2d 32 (1990); see Ark. Code Ann. §§ 9-12-314 and 9-14-234 (Repl. 1991). These statutes provide that any decree, judgment, or order which contains a provision for payment of child support shall be a final judgment as to any installment or payment of money which has accrued. Ark. Code Ann. § 9-14-234(a) (Repl. 1991); Ark. Code Ann. § 9-12-314(b) (Repl. 1991); see Sullivan v. Eden, supra. Furthermore the court may not set aside, alter, or modify any decree, judgment or order which has accrued unpaid support prior to the filing of the motion. Ark. Code Ann. § 9-14-234(b) (Repl. 1991); Ark. Code Ann. § 9-12-314(c) (Repl. 1991); See Sullivan, supra. While it appears that there is no exception to the prohibition against the remittance of unpaid child support, the commentary to the federal regulations which mandated our resulting State statutes, makes it clear that there are circumstances under which a court might decline to permit the enforcement of the child support judgment. The commentary states:
[enforcement of child support judgments should be treated the same as enforcement of other judgments in the State, and a child support judgment would also be subject to the equitable defenses that apply to all other judgments. Thus, if the obligor presents to the court or administrative authority a basis for laches or an equitable estoppel defense, there may be circumstances under which the court or administrative authority will decline to permit enforcement of the child support judgment.
54 Fed. Reg. 15,761 (April 19, 1989).
In the case before us the chancellor declined to permit the enforcement of the child support judgment claimed by the appellant on the ground that the appellant was estopped because she had disregarded the divorce decree and had interfered with the appellee’s visitation rights. The chancellor determined that both parties ignored the initial divorce decree and were thereby estopped from raising the other’s non-compliance in order to receive any relief. The chancellor based his ruling on the principle that both parties, by their own conduct, had barred themselves from the aid of equity. See Pence v. Pence, 223 Ark. 782, 268 S.W.2d 609 (1954). We think that the chancellor’s action was grounded in the maxim that he who comes into equity must come with clean hands.
This maxim is not applied to favor a defendant, and has nothing to do with the rights or liabilities of the parties, but is invoked in the interest of the public on grounds of public policy and for the protection of the integrity of the court. 30 C.J.S. Equity § 93 (1965); see gen. Estate of Houston v. Houston, 31 Ark. App. 218, 792 S.W.2d 342 (1990). Whether the parties are within the application of the maxim is primarily a question of fact and there must be some evidence to justify the application of the doctrine by the court. 30 C.J.S. Equity § 93 (1965).
The chancellor, in determining from the evidence that the court should refuse to recognize the past due child support, based his decision on the appellant’s testimony referring to the children as “my babies,” her silence when asked to concede the fact that they were also the appellee’s children, and her response that she felt that the children are hers and that the appellee is the reason the children see a counselor. The chancellor also considered letters from the appellant to the appellee telling him to leave the children alone, that she did not want him calling the children or coming to see them, that the police would be waiting for him when he returned and would put him in jail, and that she had sold property he left behind and kept the money.
Although there was testimony from the appellant that she did not deny visitation, that she offered to take the children to see him, and that the appellant broke several promises to visit, we cannot say that the chancellor’s determination that the appellant was estopped from asserting and collecting past due child support in a court of equity was clearly against the preponderance of the evidence. On these facts, the chancellor could find unclean hands and properly decline to enforce the judgment. See Marshall v. Marshall, 227 Ark. 582, 300 S.W.2d 933 (1957).
We disagree with the appellant’s argument that the trial court erred in modifying the amount of child support in the absence of a showing of changed circumstance because the record is replete with evidence showing changed circumstances. The party seeking a modification of child support has the burden of showing changed circumstances, and chancery courts have broad powers to modify child support when modification is in the best interest of the child. Guffin v. Guffin, 5 Ark. App. 83, 632 S.W.2d 446 (1982). No hard and fast rule can be established regarding specific changed circumstances or a necessary degree of change. Id. Accordingly, whether a modification in child support is justified by changed circumstances is within the sound discretion of the chancellor, id, and his finding will not be disturbed on appeal in the absence of a showing of an abuse of discretion. Mitchell v. Mitchell, 2 Ark. App. 75, 616 S.W.2d 753 (1981). The record before us shows that subsequent to the divorce the appellee began a different job and he informed the chancellor of his anticipated net income from the new job. The chancellor considered this evidence and applied the Family Support Chart and modified the child support payments accordingly. Furthermore, pursuant to the original divorce decree, the appellee was ordered to pay child support for three children, one of whom was approaching majority and was engaged to be married or was married at the time of the modification hearing. Moreover, the appellant admitted that the appellee was unable to make the $440.00 per week child support installments awarded under the original decree when she stated that “[t]here aren’t very many people who can afford $440.00 a week child support, not even him.” She had also sent, in September, 1989, a letter to the appellee agreeing to accept $100.00 per week for child support. Under these circumstances, we hold that the chancellor did not abuse his discretion by applying the Family Support Chart to the appellee’s present net income in order to modify child support from $440.00 per week to $62.00 per week.
Affirmed.
Jennings and Rogers, JJ., dissent. | [
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Judith Rogers, Judge.
This case involves a dispute between two health insurance carriers. The insured, appellee Larry Lawrence, underwent a heart transplant on March 3, 1986. In 1978, Lawrence began working as a truck driver for Caldwell Milling Company in Rosebud, an egg production, grading and distribution operation. As a full-time employee, Lawrence was eligible for coverage, and was covered, under a group health insurance plan with appellant Arkansas Poultry Federation Insurance Trust (hereinafter “Trust”). In June of 1979, Lawrence stopped working for Caldwell Milling on a full-time basis, and resumed being an independent producer for the company as he had been before his employment. As a producer, Lawrence remained eligible for health insurance coverage with the Trust under a different plan, but his coverage was never formally converted. Nevertheless, Lawrence continued to pay premiums, and claims were submitted and accepted by the Trust on his behalf. Since his employment with Atlas Carriers in 1984, Lawrence was covered under a group insurance plan for employees with appellee Arkansas Blue Cross and Blue Shield (hereinafter “Blue Cross”).
Prior to surgery, Lawrence first contacted the Trust about benefits, but was informed by its acknowledged third-party administrator, Fewell & Associates, Inc., that a heart transplant was considered an experimental procedure, and was thus excluded from coverage under the plan. Blue Cross paid benefits in the amount of $103,727.41, and thereafter filed this lawsuit, joined by Lawrence, seeking contribution from the Trust, based on a coordination of benefits clause contained in the Trust’s policy. The case was tried before the trial court sitting as the trier of fact. The trial court ruled in appellees’ favor, finding that Lawrence remained covered under the Trust’s plan as an employee, that each insurer extended primary coverage for the loss, and that the Trust would share equally in the loss up to the maximum limits of its liability of $50,000. The trial court also assessed a penalty and attorney’s fees against the Trust.
The Trust appeals from this decision and raises four issues for reversal. We find merit in one of the issues raised, and affirm in part and reverse in part.
First, the Trust argues that the trial court erred in awarding judgment when Lawrence was not an eligible, covered employee pursuant to its written eligibility and termination provisions. Under the Trust’s plan for employees, only full-time employees, those who work thirty hours a week, are eligible for coverage, and by its terms coverage terminates when this eligibility requirement is no longer met. Thus, the Trust argues that its coverage effectively terminated when Lawrence ceased full-time employment with Caldwell Milling in June of 1979. Appellees do not question this eligibility requirement, but argue that the Trust is estopped from asserting this position based on certain events which followed the cessation of Lawrence’s employment.
At trial, Lawrence testified that when he quit working for Caldwell Milling, he had discussions with Reta Caldwell, the company bookkeeper, about continuing his coverage with the Trust. He said that it was his understanding that his coverage would remain in effect. He testified that the premiums for the insurance were deducted from the payments made to him by Caldwell Milling as a producer, and that he continued to submit claims to the Trust. There is documentation in the record reflecting the submission and payment of numerous claims on behalf of Lawrence and his family from 1981 through 1985.
Reta Caldwell testified that in her conversations with Lawrence, he indicated that he wanted to maintain the insurance by switching over to the producer plan without a gap in coverage. She called this a “unique” situation, as she had never done a change-over before. She said that normally, a producer requesting coverage would fill out a form proving insurability, but that she felt that this form would not apply since Lawrence was already insured. She stated that because she was unsure as to how to proceed, she called Fewell & Associates for instruction. She said that in this conversation she advised that Lawrence was no longer an employee, but that he wanted to continue coverage as a producer. Ms. Caldwell testified that the woman she spoke to on the phone told her to “leave it as it is for the time being.” She said that she did what she was told, and had Lawrence fill out a form authorizing the company to withhold premiums from his earnings. She further testified that she never heard anything more from Fewell & Associates about the matter.
Robert Alexander, staff counsel with Fewell & Associates, testified that there was no documentation in its files regarding a request to change Lawrence to the producer plan. He acknowledged, however, that Lawrence remained covered as an employee throughout this period of time. He stated that the difference in coverage between employees and producers was slight, the differences being in maternity coverage, life insurance benefits and premiums.
Laura Lawrence, the administrator and underwriter at Fewell & Associates, testified that she was responsible for handling the Caldwell Milling account in 1979. She said that she recalled no conversations with Ms. Caldwell about changing plans for Lawrence, and that she never would have advised her to leave his coverage as that of an employee. She described a changeover as a “very simple process,” involving the filling out of a request form.
The trial court made the following written findings on this issue:
The only real dispute as to any essential facts is whether or not Ms. Caldwell advised Arkansas Poultry Federation Insurance Trust of Mr. Lawrence’s leaving Caldwell’s employment and his request to continue his insurance coverage. The Court is of the conviction that the evidence preponderates the accuracy of her testimony on that fact. That testimony is supported by these facts: (1) Mr. Lawrence paid the entire premiums required for the following several years; (2) The claims paid subsequent to that notice are consistent with his family’s continuing need for medical insurance coverage; (3) a conversion form was signed by Lawrence at the direction of Ms. Caldwell; (4) Ms. Caldwell had never before experienced those requirements to change coverages from an employee to a producer. All of these factors support the concept that a notice and inquiry was made by Ms. Caldwell of the Federation through Fewell. If inquiry was made, logic dictates that directions were received and some efforts required to conform by these directions. Equally important was the lack of a motive for either Ms. Caldwell or Mr. Lawrence to fail to complete the conversion on the event of his employment termination. The Court has no way to determine whether Ms. Caldwell failed through misunderstanding to complete the instruction she received from Fewell, or Fewell neglected after receiving notice to follow through to completely inform Ms. Caldwell of those additional stages required to complete the transfer of plans; however, in review of the procedures employed between Caldwell and Fewell, the billing originating with Fewell, the Court would conclude that Fewell neglected to remove Lawrence from one form of coverage and transfer him to the second.
Estoppel in pais is the doctrine by which a person may be precluded by his acts or conduct, or by failure to act or speak under circumstances where he should do so, from asserting a right which he otherwise would have had. Daves v. Hartford Accident & Indemnity Co., 302 Ark. 242, 788 S.W.2d 733 (1990). The doctrine of estoppel can be applied to bar the defense of noncoverage in insurance cases. See Time Insurance Co. v. Graves, 21 Ark. App. 273, 734 S.W.2d 213 (1987) (substituted opinion on rehearing). Any agreement, declaration, or course of action on the part of an insurance company which leads a party insured honestly to believe that, by conformity thereto, a forfeiture of his policy will not be incurred, followed by due conformity on his part, will estop, and ought to estop, the company from insisting on a forfeiture, although it might be claimed under the express terms of the contract. Home Mutual Fire Insurance Co. v. Riley, 252 Ark. 750, 480 S.W.2d 957 (1972).
Our standard of review is well-settled. The findings of fact of a trial judge sitting as the finder of fact will not be disturbed on appeal unless, considering the evidence in the light most favorable to the appellee, the findings are clearly erroneous or clearly against the preponderance of the evidence, giving due regard to the opportunity of the trial court to assess the credibility of the witnesses. Special Insurance Services, Inc. v. Adamson, 20 Ark. App. 8, 722 S.W.2d 875 (1987).
Here, the trial court found credible Ms. Caldwell’s testimony that she informed Fewell & Associates that Lawrence was no longer an employee, and that a request was made for the conversion of coverage. For seven years, there was reliance on the representation that Lawrence’s coverage was continued. Premiums were paid and accepted, and claims were submitted and paid by the Trust. There is further evidence in the record that in connection with this claim in 1986, Fewell & Associates was again informed that Lawrence was not an employee and that he had not been since 1979. Fewell & Associates advised that coverage would need to be changed to the producer plan, and there were assurances that no medical benefits would be lost. We are also mindful that Lawrence’s claim was not initially denied on the ground asserted here, but was denied on the basis of an exclusion in the plan regarding experimental procedures. Under the circumstances of this case, we believe that the Trust is estopped from asserting the defense of noncoverage. Thus, we cannot say that the trial court’s finding that Lawrence remained covered as an employee is clearly erroneous.
Next, the Trust argues that Fewell & Associates, the third-party administrator, had no authority to bind it or to extend or modify the terms of the plan. In this respect the Trust contends that there was no direct communication between it and Lawrence, as principals, and that it cannot be bound by the actions and representations of Fewell & Associates. We disagree.
A general agent is one who has authority to transact all business of the company of a particular kind and whose powers are coextensive to the business entrusted to its care. Security Insurance Corp. v. Henley, 19 Ark. App. 299, 720 S.W.2d 328 (1986). Apparent authority in an agent is such authority as the principal knowingly permits the agent to assume or which he holds the agent out as possessing. It is such authority as he appears to have by reason of the actual authority which he has and such authority as a reasonably prudent man, using diligence and discretion, in view of the principal’s conduct, would naturally suppose the agent to possess. See Hunt v. Pyramid Life Insurance Co., 21 Ark. App. 261, 732 S.W.2d 167 (1987). As stated in Applemen, Insurance Law and Practice § 7230 (1981):
Where an agent is furnished with indicia of authority by the insurer, it may be bound by his acts. Certainly such authority would seem to be present where the agent issues and delivers policies of the company. Where the evidence shows a holding out or apparent authority, the company is bound, if, in fact, he is an agent of the company.
Our law is well-settled that an agent acting within the apparent scope of his authority, even though in violation of actual authority, may bind his principal if the one with whom he deals does not have notice of these restrictions. Chadwell v. Pannell, 27 Ark. App. 59, 766 S.W.2d 38 (1989).
The record reflects that Fewell & Associates is entirely responsible for administering the Trust’s plan. It drafts policies, accepts premiums, and furnishes claims forms, among other things, and the brochure directs all inquiries to it regarding claims and coverage. Although there is a procedure for appeal to the Trust, Fewell & Associates makes decisions concerning the denial and payment of claims. Furthermore, Ms. Caldwell testified that whenever she had questions about claims and procedures, she contacted Fewell & Associates for advice. It has been held that the employer is the employee’s agent in connection with a group insurance policy. Standard of America Life Insurance Co. v. Humphreys, 257 Ark. 618, 519 S.W.2d 64 (1975).
The record as a whole suggests that Fewell & Associates is the general agent of the Trust, and has been clothed with either actual or apparent authority in dealing with matters of the kind involved here. And, the knowledge of an agent of the insurer, obtained while performing the duties of his agency, is imputed to the insurer. Kansas City Fire & Marine Insurance Co. v. Kellum, 221 Ark. 487, 254 S.W.2d 50 (1953). It follows that the Trust is bound by the actions, or inactions of Fewell & Associates in this case.
As its third point, the Trust argues that the trial court erred in requiring it to coordinate benefits, and in holding that both it and Blue Cross were primary insurers, sharing equally in the loss. In support of this contention, the Trust has referred us to Guideline 7 of Rule and Regulation 21 as adopted by the Arkansas Insurance Department. This guideline provides:
GUIDELINE 7: EXCESS COVERAGES (I.E. SELF-INSURANCE AND OTHER NON-REGULATED GROUP CONTRACTS). Carriers shall use the following claims administration procedures when one health contract is “excess” to all other coverage and the other contract (group health) contains the COB provision:
A group contract should pay first if it would be primary under the COB order of benefit determination. In those cases in which it would normally be considered secondary, the carrier should make an effort to coordinate in the secondary position with benefits available through such “excess” plans. The carrier should try to secure the necessary information from the “excess” plan, but if such plan is unwilling to provide the carrier with the necessary information, the carrier should assume the primary position because it has no legal authority to do otherwise.
(Emphasis the Trust’s.) In our view, Blue Cross essentially complied with the guideline by the payment of benefits. We are not persuaded, however, that this guideline relieves the Trust of its obligation to provide coverage, which we have held it is estopped to deny, under its own contract of insurance.
The policies of both insurers in the instant case contain coordination of benefits clauses. Neither party has provided authority in point, and we can find no Arkansas law touching upon this particular matter. Our research reveals that the resolution of this issue depends upon an interpretation of the coordination of benefits clauses as stated in the respective contracts.
Coordination of benefits is a valid method to contain health care costs within reasonable limits by the prevention of duplication of payments in excess of actual medical charges. Blue Cross & Blue Shield of Mississippi, Inc. v. Larson, 485 So. 2d 1071 (Miss. 1986). As observed by one court:
In modern American society, husbands and wives frequently both work outside the home with each being covered by his or her own employee health care group plan.. Family coverage, in such circumstances, sets up the potential for duplication of benefits where one or both has family coverage under a plan. Duplication of benefits accomplishes none of the goals of such plans, serving only to run up the cost of the plans. Hassles, such as the one before us, increase the costs of administration of the plans and can delay payment of the medical bills (or reimbursement to the employees who have previously paid the bills).
Blue Cross & Blue Shield of Kansas, Inc. v. Riverside Hospital, 237 Kan. 829, 703 P.2d 1384, 1388-89 (1985). In order to avoid duplicate recovery by beneficiaries who are covered for the same benefits by multiple plans, the health insurance industry has developed a double-recovery prevention technique called the coordination of benefits provision. Starks v. Hospital Service Plan of N.J.,Inc., 182 N.J.Super. 342, 440 A.2d 1353 (1981). As noted by the court in American Family Life Assurance Co. v. Blue Cross & Blue Shield of Florida, 346 F. Supp. 267, 268-269, (S.D. Fla. 1972), aff'd 486 F.2d 225 (5th Cir. 1973), cert. den. 416 U.S. 905 (1974):
COB has as its primary characteristic a structure of priority of claim payments which enables broad risk accident and health insurance carriers to reduce the amount of premiums paid out by limiting the claimants to a single payment of benefits for a single medical risk. If two or more policies would result in payment of more than 100% of the expenses then, coordination of benefits is applied.
Id. COB is hot, of course, the only industry approach to the duplicate coverage problem. Contracts covering all types of risks customarily contain some provision specifying or modifying the carrier’s responsibility to its insured in the event that the risk insured against is covered by other insurance as well. Starks v. Hospital Service Plan of N.J., Inc., supra. These “other insurance” clauses generally fall into three categories: (1) pro rata clauses; (2) excess clauses; and (3) escape clauses. William C. Brown Co. v. General American Life Insurance Co., 450 N.W.2d 867 (Iowa 1990). COB provisions are a fourth category. Id.
Typically, COB provisions prescribe rules to determine when the carrier’s obligation to pay is primary or secondary. Primary means the carrier pays all medical expenses that qualify for payment under the policy or plan. Secondary means the carrier’s obligation is excess to all other insurance covering the insured. Id.; see also Starks v. Hospital Service Plan of N.J., Inc., supra. The common approach in reconciling such clauses and determining the order of priority is stated as follows:
In dealing with such problems, the judicial task is first to determine from the contracts themselves what obligations the respective obligors intended to assume and then to determine whether these intentions are compatible not only with the other but also with the insured’s rights and expectations and with the controlling demands of public policy.
Starks v. Hospital Service Plan of N.J., Inc., 182 N.J. Super. at 351, 440 A.2d at 1358. See also Northeast Department ILGWU Health and Welfare Fund v. Teamsters Local Union No.229 Welfare Fund, 764 F.2d 147 (3rd Cir. 1985); Blue Cross & Blue Shield of Mississippi, Inc. v. Larson, supra; Blue Cross & Blue Shield of Kansas, Inc. v. Riverside Hospital, supra.
Applying this principle to the case at bar, Blue Cross clearly has undertaken a primary obligation with respect to this claim by stating in its COB clause that “[t]he subscriber’s contract or policy will be considered primary.” The clause in the Trust’s policy provides:
The benefits payable under the Plan for covered charges incurred will be coordinated with any group insurance and automobile insurance medical benefits from all of the following plans: 1) This plan, 2) any other group, blanket, or francise insurance coverage excluding any student school accident insurance coverage, 3) group practice and other group repayment coverage, 4) group service plans, 5) any coverage under labor management trustee plans, union welfare plans or employer organization plans, and 6) any coverage provided under governmental programs, and any coverage required or provided by statute, including any medical benefits required under automobile insurance policies. This coverage will not otherwise coordinate against your individual medical policies.
The Trust may obtain or release any information necessary to carry out these provisions. You must declare your coverage under other plans. To expedite payment of claims that involve Coordination of Benefits, the Trust will make a appropriate full or partial payment within a reasonable period of time. This period of time will not exceed 90 days after receipt of complete claim forms that contain the information necessary to make a determination of the benefits that would be payable in the absence of this Coordination of Benefits provision. The Trust can recover from the insured amounts which are overpaid to him.
Noticeably absent from this provision is any overt expression of the circumstances which will render its obligation primary and those which will render it secondary, as is characteristic of a COB clause. In its silence on this matter, which is the essence of these types of clauses, we detect an ambiguity in the order of benefits payable under its terms. As stated by the court in Time Insurance Co. v. Sams, 692 F. Supp. 663 (N.D. Miss. 1988):
Because a coordination of benefits provision inures to the benefit of the insurer, the insurer usually drafts this clause of the contract. To assure that it obtains the desired result, however, the insurer must be careful in drafting its coordination of benefits provision because ambiguities in any clause of the insurance contract will be construed against the drafter.
Id. at 667. Keeping in mind that the insured here is the direct beneficiary of the Trust’s policy, in which it agreed to cover the insured’s loss within the limits of its liability, and absent any indication to the contrary, we hold that the Trust is also obligated as a primary insurer under its COB clause.
Having so determined that each insurer is primarily obligated, the question becomes what is the extent of their respective liabilities. In this regard, courts have found applicable and have resorted to the use of the general principles arising from “other insurance” litigation. See Starks v. Hospital Service Plan of N.J., Inc., supra.
In Carriers Insurance Co. v. American Policyholders’ Insurance Co., 404 A.2d 216 (Me. 1979), the court was confronted with competing “excess” clauses in the insurance contracts. The court found that both policies were to be considered primary. In apportioning liability, the court adopted what it called the minority approach, but which it said was finding acceptance in a growing number of courts. This method requires each company to contribute equally until the limits of the smaller policy are exhausted, with any remaining portion of the loss being paid from the larger policy up to its limits. In so holding, the court remarked “this Solomon-like approach comports with a most basic sense of justice.”
We, too, are persuaded that this is a sensible approach, and note that there is some support for this view under Arkansas law. See Calvert Fire Insurance Co. v. Francis, 259 Ark. 291, 532 S.W.2d 429 (1976); Allstate Insurance Co., v. Equity Mutual Insurance Co., 257 Ark. 341, 516 S.W.2d 389 (1974). This was essentially the holding of the court below; therefore we affirm the trial court’s findings as to the nature and extent of the liabilities of the insurers in this case.
We do, however, agree with the Trust that the trial court erred in assessing a penalty and attorney’s fees against it. Arkansas Code Annotated § 23-79-208(a) (1987) provides:
In all cases where loss occurs and the cargo, fire, marine, casualty, fidelity, surety, cyclone, tornado, life, health, accident, medical, hospital, or surgical benefit insurance company and fraternal benefit society or farmers’ mutual aid association liable therefor shall fail to pay the losses within the time specified in the policy, after demand made therefor, the person, firm, corporation, or association shall be liable to pay the holder of the policy or his assigns, in addition to the amount of the loss, twelve percent (12%) damages upon the amount of the loss, together with all reasonable attorneys’ fees for the prosecution and collection of the loss.
However, pursuant to Ark. Code Ann. § 23-61-502(3) (1987), the health care plan of the Trust is specifically afforded an exemption from the provisions of the Insurance Code. Based on this exemption, the trial court erred by imposing the statutory penalty and attorney’s fees, and we reverse on this point.
Affirmed in Part, Reversed in Part.
Cracraft, C.J., and Jennings, J., agree. | [
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Judith Rogers, Judge.
This appeal is from a default judgment granted by the Pulaski County Circuit Court. Lee Goston, appellant, contends that the trial court erred in denying his motion for dismissal and granting default judgment, in refusing to set the default judgment aside, and in refusing him a hearing in support of his motion. We find no error and affirm.
In 1988, Freddie Craig, appellee; Lee Goston, appellant; and a third party, Angela Mull, were involved in an automobile accident while driving separate vehicles. As a result of his accident, both Goston and Craig were given citations for traffic violations. In September 1988, Angela Mull filed a civil action, Mull v. Goston, 88-6934, against Goston seeking damages for the injuries she sustained as a result of the accident. There is no evidence to show that Craig was also made a party to Ms. Mull’s suit. On December 26, Goston was served with another complaint in a separate lawsuit filed by Craig in which Craig sought damages for his injuries from the accident. Goston answered Ms. Mull’s complaint and, on January 5,1989, cross-claimed against Craig in Mull’s lawsuit contending Craig was liable for any damages Ms. Mull had sustained. Goston, however, failed to answer the lawsuit filed by Craig, and on January 23,1989, Craig moved for entry of default judgment against Goston. Goston then filed a motion to dismiss Craig’s complaint on January 25,1989, contending Craig’s lawsuit should be dismissed because a cause of action was pending between the same parties in the Mull v. Goston lawsuit which had been filed prior to Craig’s.
A hearing was held on Craig’s default judgment motion, and Goston appeared by his attorney. The court held that Craig was entitled to default judgment because a responsive pleading had not been filed by Goston within the time prescribed by law. The court, however, allowed Goston until March 22, 1989, to file a motion to set aside the judgment and also set a March 22 hearing date for Craig to present evidence of his damages. Because Goston waited until March 22 to file his motion to vacate and set aside the default judgment and Craig had not had time to respond to this motion, the court, at the March 22 hearing, reserved making a decision as to whether the default judgment should be set aside but allowed Craig to present evidence of his damages. Eleven months later, on February 14,1990, the court entered an order refusing to set aside the default judgment, finding that Goston had not shown sufficient grounds for his failure to file a timely response and awarded Craig judgment against Goston in the amount of $ 15,000.00. Goston then filed another motion to set aside the judgment or, in the alternative, new trial or, in the alternative, for an additional hearing and specific findings of fact; however, an order was never entered by the court in response to this motion.
On appeal, Goston raises a number of arguments for reversal; however, we find they can be reduced to two issues: whether the trial court erred in granting default judgment and whether the trial court abused its discretion in failing to set the default judgment aside.
The supreme court has been strict in its interpretation of Ark. R. Civ. P. 55 in holding that a default judgment is required where there has been a failure to make any sort of timely filing or appearance in a trial court within twenty days. Allstate Ins. Co. v. Bourland, 296 Ark. 488, 493, 758 S.W.2d 700, 702 (1988). The failure to file an answer according to the rules requires that the trial court shall enter a default judgment unless there is excusable neglect, unavoidable casualty, or other just cause, and it is an abuse of discretion for the trial court to refuse to grant default judgment after the period for an answer has expired in the absence of those conditions. Lewis v. Crowe, 296 Ark. 175, 178, 752 S.W.2d 280, 282 (1988).
It is undisputed that Goston did not file any type of response to Craig’s complaint until more than thirty days had lapsed after he was served with Craig’s complaint. Goston contends, however, that his cross-complaint against Craig in Mull v. Goston was pending at the time Craig filed his lawsuit against him and, therefore, his motion to dismiss Craig’s complaint should have been granted pursuant to Ark. R. Civ. P. 12(b)(8), which provides that a defense based on the pendency of another action between the same parties based on the same occurrence may be raised by a motion to dismiss. We disagree that this motion was proper, however, because the evidence refutes Goston’s contention that his cross-complaint was pending at the time Craig filed his lawsuit. Craig’s complaint was file-marked December 19,1988; although Goston has not included a copy of his cross-claim against Craig in his appendix, he states in his brief that it was not filed until January 5,1989. Furthermore, Goston’s motion for dismissal was not timely filed. A motion to dismiss arising out of the pendency of another action between the same parties must be filed within twenty days after service of process. See Inmon Truck Sales, Inc. v. Wright, 294 Ark. 397, 398, 743 S.W.2d 793, 794 (1988).
We also find no error in the court’s refusal to set aside the default judgment based upon his assertions of excusable neglect, unavoidable casualty, other just cause, or to avoid a miscarriage of justice. In order to have a judgment set aside under Rule 55,60(b), or 60(c) of the Arkansas Rules of Civil Procedure, a party is required to show in its motion that it has a meritorious defense. Hendrix v. Hendrix, 26 Ark. App. 283, 285, 764 S.W.2d 472, 473 (1989). A meritorious defense is evidence, not allegations, sufficient to justify the refusal to grant a directed verdict against the party required to show a meritorious defense, and the motion itself must assert the defense. Id.; Bunker v. Bunker, 17 Ark. App. 7, 11, 701 S.W.2d 709, 711; Meisch v. Brady, 270 Ark. 652, 658, 606 S.W.2d 112, 115 (Ark. App. 1980). Here, Goston asserts in his motion to set aside the default judgment that he has a meritorious defense but presents no evidence of such a defense. Therefore, he is not entitled to have the judgment set aside.
Goston also contends that, because Craig’s summons did not contain the address of Craig’s attorney as required by Ark. R. Civ. P. 4(b), the judgment should be set aside. In Tucker v. Johnson, 275 Ark. 61, 66, 628 S.W.2d 281, 283 (1982), the supreme court held that a default judgment based on valid service of a defective summons is voidable. Assuming without acknowledging that the judgment here was voidable, there still needed to be a showing of a valid or a meritorious defense by Goston in order to have the judgment set aside, and no such showing was made. See Id.; Bunker, 17 Ark. App. at 10, 701 S.W.2d at 710-11.
Goston finally argues that the trial court erred in denying his motion to vacate the judgment without first allowing him a hearing on his motion. We disagree that he was denied a hearing. The court held a hearing on February 6 prior to granting Craig’s motion for a default judgment, at which time Goston’s counsel was present and had an opportunity to present any defenses Goston had for failing to make a timely appearance. Goston’s motion to set aside the default judgment was not filed until the date of the March 22 hearing, and there is no evidence that Goston made any further attempt to obtain a hearing after this date until after the court rendered its decision in February 1990. Based on these facts, we find no abuse.
Affirmed.
Danielson and Mayfield, JJ., agree. | [
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Larry D. Vaught, Judge.
This is an appeal from a Pulaski County Circuit Court order in which appellant’s application for Medicaid nursing home benefits was denied. On appeal, appellant asserts that appellee’s hearing officer erred, as a matter of law, in refusing to allow her to claim a homestead exemption under 42 U.S.C. § 1382b(a)(l) (2000), and that the decision was not supported by substantial evidence. We disagree and affirm.
On December 4, 1997, appellant Berniece Groce signed a durable power of attorney in favor of her daughter, Pat Monroe. The durable power of attorney was filed on May 25, 2001. Also on May 25, 2001, appellant, through her daughter, purchased a life estate in her daughter’s home at 125 W. Cloverdale in Brinkley, Arkansas, for $43,953.13. The offer and acceptance to purchase the life estate required that appellant pay all of the closing costs, including a $1000 attorney’s fee. The deed, which in no way restricted appellant’s right to sell her life estate, was also filed on May 25, 2001.
Appellant periodically stayed at the residence for short periods of time as a guest, but never occupied it as her principal place of residence. It is undisputed that appellant receives no income from the property. After the purchase of the fife estate, appellant never took possession of the property, but thousands of dollars of her money were spent by her daughter from May 2001 through June 2001 for repairs and improvements to the home. The expenditures included landscaping, upgrading the air conditioning, and adding a patio, carport, and fence.
On July 5, 2001, appellant, through her daughter, applied to the Arkansas Department of Human Services (DHS) for nursing home benefits. At the time, appellant resided in Clay Cliff Nursing Home, where she moved in July 2000, and continued to reside at the time the briefs in this matter were filed. Prior to moving to Clay Cliff, appellant lived alone in an assisted-living complex for disabled and. handicapped residents. Appellant, who suffers from Alzheimer’s disease, was eighty-four or eighty-five at the time of the administrative hearing on December 14, 2001.
Appellee viewed the purchase of the life estate between appellant and her daughter to be a device through which to divest appellant of assets, without receiving value in return, for purposes of establishing Medicaid eligibility. Appellee found that appellant paid for a life estate from which she received no benefit because she neither received possession nor rent from her daughter and grandson, who were in possession of the home and never vacated the property. Accordingly, the transaction was deemed to be an uncompensated transfer, and appellant’s application for nursing home assistance was denied.
At the administrative hearing, appellant’s daughter testified that she had lived at the home in question for approximately twenty-seven years, and did not move out after the sale of the life estate to appellant. Her adult son, Todd Monroe, age thirty-one at the time, testified that he also lived in the home. It is undisputed that neither Pat Monroe nor Todd Monroe is disabled. Additionally, neither is dependent on appellant, as each has his or her own income. Pat Monroe is a retired teacher who receives teacher retirement, social security benefits, and additional income from an unnamed source. Todd Monroe is a nurse and supports himself through a contract with the Arkansas Department of Health. He files his own income taxes and claims himself as a dependent. The hearing officer affirmed the agency’s denial of benefits because the home was never appellant’s principal place of residence, and the life estate therefore could not be excluded for purposes of Medicaid eligibility. The life estate was determined to be a countable resource in the estimated amount that the sale of the life estate would bring. That decision was affirmed on appeal to the Pulaski County Circuit Court, where the trial judge found that the decision of the hearing officer was supported by substantial evidence and was not arbitrary, capricious, or characterized by an abuse of discretion. From that order comes this appeal.
Before reaching the merits of appellant’s arguments, we note that appellant failed to provide an abstract of the material parts of the record from the administrative hearing as required by Rule 4-2(a)(5) (2003) of the Arkansas Supreme Court and Court of Appeals. The abstract does not give an accurate picture of what transpired below or provide the information necessary to understand the questions presented to us. Additionally, the statement of the case is also deficient pursuant to the requirements of Rule 4-2(6) (2003) of the Arkansas Supreme Court and Court of Appeals because appellant failed to include page references to the abstract and addendum.
Failure to abstract an item essential to an understanding of the appeal has traditionally been regarded as a fatal error, which has been held to be an adequate basis to affirm for noncompliance with the abstracting rules. See McNeil v. Lillard, 79 Ark. App. 69, 86 S.W.3d 389 (2002). However, pursuant to Ark. Sup. Ct. R. 4-2(b)(3), which was modified by In Re: Modification of the Abstracting System, 345 Ark. Appx. 626 (2001) (per curiam), the court must now allow rebriefing before summarily affirming. However, in the instant case, appellee filed a supplemental abstract, which is sufficient to allow us to proceed with the merits of the case.
Under the Administrative Procedures Act, our review is limited to ascertaining whether there is substantial evidence to support the agency’s decision. Arkansas Dep’t of Human Servs. v. Thompson, 331 Ark. 181, 959 S.W.2d 46 (1998). Decisions from an administrative appeal will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. McQuay v. Arkansas State Bd. of Architects, 337 Ark. 339, 989 S.W.2d 499 (1999). To set aside an agency decision as arbitrary and capricious, the party challenging the action must prove that it was willful and unreasoned, without consideration and with a disregard of the facts and circumstances of the case. See Partlow v. Arkansas State Police Comm’n, 271 Ark. 351, 609 S.W.2d 23 (1980).
Our scope of review is limited because administrative agencies are better equipped by specialization, insight, experience, and through more flexible procedures that occur to determine and analyze legal issues affecting their agencies. McQuay, supra. Additionally, the appellate courts refuse to substitute their own judgment for that of an agency. See Arkansas Bd. of Reg. for Prof. Geologists v. Ackley, 46 Ark. App. 325, 984 S.W.2d 67 (1998). It is not our role to conduct a de novo review of the circuit court proceeding; rather, our review is directed at the decision of the administrative agency. Id. When conducting our review, we look to the findings of the administrative agency, keeping in mind that courts have held that the hearing officer is in the best position to determine the credibility of witnesses and decide the proper weight to give the evidence. Id.
Appellant contends that pursuant to 42 U.S.C. § 1382b(a)(l) (2000), the life estate in the home in question should be excluded from resources when determining Medicaid eligibility. However, appellee maintains that from the facts of the case it appears that appellant’s daughter sold appellant a life estate in the daughter’s home, then spent thousands of dollars of appellant’s money to improve the home in order to artificially impoverish appellant so that appellant would be eligible for Medicaid benefits.
Appellee points out that appellant has overlooked 20 C.F.R.. § 416.1212(a) (2001), which defines the word “home” as follows:
A home is any property in which an individual .... has an ownership interest and which serves as the individual’s principal place of residence.
(Emphasis added.) Additionally, under DHS Medical Services Policy 3331.5(l)(a.) (Medical Services Manual, November 1, 1995), which lists resources which may qualify for exclusion under specific conditions, “home” is defined as “any shelter in which the individual.... has an ownership interest.... and which is used by the individual . ... as his principal place of residence.” (Emphasis added.) In this case, the hearing officer found that the property in question was never appellant’s principal place of residence.
Her daughter answered in the negative when asked if appellant had actually lived in the house and received mail there. She also testified that appellant had never moved in the residence or taken up residency, or given the nursing home notice that she was not returning from a visit. Occasional visits to the home after appellant purchased the interest did not convert the home into her principal place of residence. There was testimony that a nursing home resident may visit a home for as long as fourteen days, and no evidence was presented that appellant ever visited the property in question for a period of time longer than fourteen days.
The federal and state regulations are consistent in requiring a house to be an individual’s principal place of residence before allowing it to be excluded as a homestead exemption. The fact that appellant signed an “intent to return” form does not negate this requirement — the house was never her principal place of residence to which she could “return.” The evidence supports the hearing officer’s finding that appellant’s life estate in the resi dence remained a countable resource because the house was not her principal place of residence.
Appellant also argues that the hearing officer erred in finding that appellant’s daughter and grandson were not dependent on the residence in question for shelter. Medical Services Policy section 3331.5 (l)(b) allows the alleged dependency of a relative to be verified if there is a question about the status. In verifying whether there was such a dependency, the hearing officer obtained testimony from appellant’s daughter that: (1) she had lived in the residence for twenty-seven years; (2) she is not disabled; (3) she supported herself; (4) she is a retired teacher who receives teacher retirement; (5) she also receives social security benefits and income from other unnamed sources. Appellant’s grandson testified that he was thirty-one years old, not disabled, and worked as a nurse for the Arkansas Department of Health. The hearing officer determined that there was no evidence that either appellant’s daughter or grandson were dependent on the residence in question for shelter, other than the fact that they lived there at the time of the hearing.
It is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to give the evidence. See Arkansas State Police Comm’n v. Smith, 338 Ark. 354, 994 S.W.2d 456 (1999). In order to establish an absence of substantial evidence, appellant is required to demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach the arrived-upon conclusion. The question is not whether the testimony would have supported a contrary finding, but whether it supported the finding that was actually made. See City of Hector v. Arkansas Soil & Water Comm’n, 47 Ark. App. 177, 888 S.W.2d 312 (1994).
Medicaid is a payor of last resort, and is intended to supplement, not supplant other potential sources of payment. Ark. Code Ann. § 20-77-101(a) (Supp. 1999). Our supreme court has cited that statute with approval, declaring that it is only after the individual has exhausted his or her own resources that the taxpayers are to assume the financial burden of an individual’s necessary medical care. See Arkansas Dep’t of Human Servs. v. Walters, 315 Ark. 204, 866 S.W.2d 823 (1993). Based on our review, the evidence shows that appellant, albeit through her relatives, was attempting an end-run around the purpose of the statute. Substantial evidence has been defined as valid, legal and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion, and force the mind to pass beyond conjecture. See Van Curen v. Arkansas Prof. Bail Bondsman Licensing Bd., 79 Ark. App. 43, 84 S.W.3d 47 (2002). There was substantial evidence to support the hearing officer’s decision. Accordingly, we affirm.
Affirmed.
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Larry D. Vaught, Judge.
This is an appeal from a Pulaski County Circuit Court jury verdict awarding actual and punitive damages to appellee, Keith Cook, on claims of replevin, conversion, and interference with business and business expectancy. Appellant Charles R. Hudson, Jr. (Hudson Jr.), raises seven points on appeal. The first three assert that the trial court erred in failing to direct a verdict because appellee failed to prove: (1) ownership of the property alleged to have been converted; (2) market value of the property at the time of the alleged taking; (3) lost profits or loss of business expectancy. The next four points deal with the award of punitive damages, alleging that the trial court erred: (4) in instructing the jury on punitive damages under the facts of this case; (5) in failing to direct a verdict with regard to the punitive-damages award; (6) in failing to direct a verdict with regard to the amount of punitive damages awarded as being excessive; (7) in failing to direct a verdict with regard to punitive damages because the amount awarded violates the Fourteenth Amendment’s Due Process Clause, which imposes on state courts the Eighth Amendment prohibition against excessive fines and cruel and unusual punishment. An eighth point on appeal has been raised by appellant Deborah Tidwell Hudson asserting that the trial court erred in finding that funds in her possession, as a garnishee in the case, obtained by her to pay Hudson Jr.’s attorney’s fees are subject to garnishment by appellee. Finally, appellee cross-appeals the reduction in punitive damages awarded by the trial judge.
While there has been a long-running dispute regarding rights to certain property that has been farmed by Hudson Jr.’s family for many years, the instant case deals with a specific incident that occurred on February 17, 1996. Hudson Jr. owns and operates a marina on the Little Maumelle River in Pulaski County, Arkansas. Part of the marina business is conducted on a segment of a fifty-six-acre tract of real property leased by Hudson Jr. from his stepmother, Glenna Hudson. The balance of the fifty-six-acre tract has for many years been farmed by the Hudson family. In January 1986, Glenna Hudson purchased the property at a commissioner’s sale.
Appellee had a close relationship with Hudson Jr.’s father, Hudson Sr., and began helping him farm the fifty-six-acre tract of land in 1992. Appellee alleges that in 1995, he entered into an oral lease to farm that part of the Glenna Hudson property not under lease to Hudson Jr.’s marina. Appellee also states that he purchased a Case 1570 tractor and an International Harvester disc from Hudson Sr. for $30,000 in June 1995 in order to farm the land. He made a down payment of $5000 and agreed to pay Hudson Sr. the balance of the purchase price out of his portion of the crop sales.
A dispute arose over the location of the boundaries between the lease to the marina and that property subject to appellee’s farm lease. On February 17, 1996, while discing the farm land, appel-lee came upon seven stakes located approximately 100-200 feet out in the area that was included in the area that had been farmed since at least 1986. Appellee did not know who had put the stakes there, but he considered them to be on the property he had leased from Hudson Sr., and started discing up the stakes.
Upon noticing appellee’s actions, Hudson Jr. drove his truck into the field and blocked appellee’s tractor, and a confrontation ensued between the two. Hudson Jr. allegedly jumped on the tractor and verbally and physically attacked appellee, at which point appellee supposedly grabbed a pistol to scare Hudson Jr. off the tractor. Hudson Jr. then reportedly grabbed a rifle, the two exchanged more words, and Hudson Jr. called the sheriff s office. The sheriff responded to the call and eventually arrested appellee. The charges were later dismissed. Hudson Jr. then called Routh Wrecker Service, Inc., and without permission from appellee, had appellee’s tractor and disc removed from the property. Appellee subsequently attempted to recover the tractor and disc, but Routh Wrecker Service, Inc., would not release them without payment of towing and storage fees.
The boundary issues were joined in Pulaski County Chancery Court, Case No. 97-3056, and on June 5, 2000, an order was entered. Paragraph five of that order construed the lease agreement to permit farming up to the base of the levee road. On November 26, 1996, appellee filed the original action in this matter, seeking replevin of the tractor and damages against Routh Wrecker Service, Inc. On April 21, 1997, appellee amended his complaint and named Hudson Jr. as an additional defendant. On January 12, 2001, appellee filed a second amended and substituted complaint seeking replevin, damages for conversion, and for interference with business and business expectancy. The matter was tried before a jury on June 20, 2001. Appellee orally dismissed his claim for replevin during the trial. At the close of appellee’s case, Hudson Jr. moved for a directed verdict on the basis that appellee failed to establish ownership of the tractor and disc, and that appellee had failed to prove damages. The motions were denied. At the close of the evidentiary part of the trial, Hudson Jr. once again moved for directed verdict on the same bases; again, the motions were denied. The jury returned a verdict against Hudson Jr. for $20,000 on the conversion claim, $15,000 on the claim for interference with business and business expectancy, and $250,000 in punitive damages. Judgment was entered on July 25, 2001.
On July 31, 2001, Hudson Jr. filed his motion for judgment notwithstanding the verdict, pursuant to Rule 50(b) of the Arkansas Rules of Civil Procedure. On August 22, 2001, the trial court heard and denied the motion, but granted a remittitur as to the punitive damages, reducing them to $200,000. The trial court’s written order was signed on August 30, 2001, and entered on September 7, 2001. Hudson Jr. filed his notice of appeal on September 24, 2001. Appellee filed his notice of cross-appeal on September 27, 2001.
Appellee subsequently attempted to enforce the judgement. On September 7, 2001, appellant Deborah Tidwell Hudson was served with a writ of garnishment as a result of Hudson Jr.’s deposition, in which he described his sale to her of his one-half interest in a boat and other personal property, indicating that she had not yet paid him and owed him $12,500. In her responses to the writ of garnishment, Mrs. Hudson denied owing Hudson Jr. any money. At a hearing on October 31, 2001, Mrs. Hudson explained that the money was not owed to Hudson Jr., but rather to his attorney. She testified that $6000 had been paid to Hudson Jr.’s attorney after being served with the writ of garnishment. She added that the purpose of her purchase was to obtain a loan to pay Hudson Jr.’s attorney’s fees. The trial court found the funds to be subject to garnishment and entered an order on November 5, 2001, granting app eñe e judgment against Deborah Tidweñ Hudson for $6000. The trial judge also ordered her to produce any checks that she contended were written and deposited related to the remaining balance. She faded to do so, and on November 30, 2001, the trial judge granted appeüee judgment against her for the remaining $6500. Deborah Tidweñ Hudson filed her notice of appeal on December 5, 2001.
Before reaching the merits of the parties’ arguments, we note that appeüants abstracted their appeal under the previous abstracting rules and failed to include a number of important documents, including the respective notices of appeal in the addendum. It includes only the July 5, 2001 order, July 25, 2001 order, and the September 7, 2001 order. Accordingly, appeüants are not in compliance with Rule 4-2 (a) (8) (2002) of the Arkansas Supreme Court and Court of Appeals. We could order rebriefing pursuant to Rule 4-2(b)(3) (2002); however, appeüants did abstract the notices and various other documents in their abstract, and the record reveals that all the notices of appeal are timely for purposes of reviewing the judgments involved in this case.
Direct Appeal
1. Whether the trial court erred in failing to direct a verdict because appellee failed to prove ownership of the property alleged to have been converted
Our standard of review of the denial of a motion for directed verdict is whether the jury’s verdict is supported by substantial evidence. Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002). Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Id. It is not the appellate court’s place to try issues of fact, rather this court simply reviews the record for substantial evidence to support the jury’s verdict. Id. In reviewing the sufficiency of the evidence as being substantial on appellate review, we need only consider the testimony of the appellee and the evidence that is most favorable to appellee. Id. Circumstantial evidence may meet the substantial evidence test. Id.
Hudson Jr. argues that because appellee’s cause of action was one of trover and conversion, based in tort rather than contract, appellee must first prove by a preponderance of the evidence that he has an ownership interest in the property. See Dugal Logging, Inc. v. Arkansas Pulpwood Co., 66 Ark. App. 22, 988 S.W.2d 25 (1999). Hudson Jr. maintains that appellee produced no written record or other documentation of his ownership of the property in question, but only offered testimony of a “gentlemen’s agreement” as to the June 1995 purchase of the tractor and disc from Hudson Sr. However, appellee alleged the existence of a bill of sale and promissory note, but stated that he had left both documents at home.
Hudson Jr.’s stepmother, Glenna Hudson, testified that as far as she knew, the subject property belonged to her husband, Hudson Sr. Additionally, Hudson Jr. asserts that because there was no written proof of appellee’s ownership, merely appellee’s word against Glenna Hudson’s, appellee faded to establish his ownership in the property, which is a critical element of his case. Failure to produce written evidence or documents entirely within the control of the party with the burden of proof gives rise to an adverse inference that the missing evidence will not support the position advanced. See McLendon v. Johnson, 243 Ark. 218, 419 S.W.2d 309 (1967). See also Smith v. United States, 128 F. Supp.2d 1227 (E.D. Ark. 2000).
Hudson Jr. also argues that, at most, appellee was entitled to the amount of equity he had in the equipment, or the value of the tractor and disc less the balance of the purchase price left to pay. See Barham v. Strandridge, 201 Ark. 1143, 148 S.W.2d 648 (1941). He states that appellee failed to establish the balance due, interest rate, or other terms of the agreement, and accordingly did not establish by a preponderance of the evidence that he had an interest in the equipment in question upon which he could obtain relief.
Appellee argues in response that Hudson Jr. is invading the province of the jury and arguing the weight of the evidence. See Union Pac. R.R. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997). He claims that Hudson Jr. even conceded at the hearing that this was an issue of fact that the jury decided against him. Appellee claims that he more than met the substantial evidence test with regard to proving that he is the owner of the equipment. He purchased the same from Hudson Sr. in 1995. It was the equipment that had previously been used to farm the land. He made a $5000 down payment on the $30,000 purchase price. He testified that he saw the bill of sale before purchasing the tractor, and that he actually has the bill of sale for the tractor. Appellee claims that while he was testifying as to the value of the equipment, the trial court and Hudson Jr. made it clear that he was testifying as the owner, although now Hudson Jr. maintains appellee did not provide substantial evidence of ownership.
This is a factual issue, and under our standard of review there was sufficient evidence for the question of ownership, and the extent thereof, to go to the jury. Hudson Jr.’s arguments merely go to the weight of the evidence before the jury on this issue. Accordingly, we affirm on this point.
2. Whether the trial court erred in failing to direct a verdict because appellee failed to prove market value of the property at the time of the alleged taking
Hudson Jr. claims that in addition to ownership, appellee was required to prove damages to succeed in his claim of conversion. The measure of damages for the conversion of property in Arkansas is the market value of the property at the time and place of the taking. JAG Consulting a/k/a Glad Indus., Inc. v. Eubanks, 77 Ark. App. 232, 72 S.W.3d 549 (2002). Fair market value is defined as the price the personalty would bring between a willing seller and a willing buyer in the open market after negotiations. Id. Hudson Jr. asserts that at no time was any evidence given as to the market value of the equipment. Appellee did testify as to the purchase price of the equipment; however, the purchase took place in June 1995, seven to eight months prior to the occurrence in February 1996. Hudson Jr. also claims that because of the “loose, insider-financing” extended to appellee from his friend and mentor, Hudson Sr., the purchase price should not be considered as representative as the true market value. He asserts that while the jury awarded appellee the full purchase price against the two original defendants ($10,000 against Routh Wrecker Service, Inc. and $20,000 against Hudson Jr.), the purchase price was not the proper measure of damages and cites Dawson v. Temp Plus, Inc., 337 Ark. 247, 987 S.W.2d 722 (1999), for the proposition that juries are not allowed to speculate as to market value. Appellee had the burden of proving the fair market value of the equipment in the lower court. Hudson Jr. argues that there was no documentation or other evidence produced as to the value immediately before the alleged taking. He claims that the jury could not have complied with the trial court’s instruction to determine the fair market value immediately before the occurrence without engaging in pure speculation.
Appellee asserts that a loss may be determined in any manner which is reasonable under the circumstances. See Quality Truck Equip. Co. v. Layman, 51 Ark. App. 195, 912 S.W.2d 18 (1995). Appellee testified that he purchased the equipment from Hudson Sr., for $30,000 in June 1995, that it was converted only eight months later, and that the equipment was in substantially the same condition on the day it was converted as it was on the day he purchased it. He further testified that Hudson Sr. bought the equipment in 1978 for $49,000, and that in seventeen years it had only lost $19,000 in value. Accordingly, he maintains that it would not have significantly diminished in value over the eight months between his purchase and the conversion. Hudson Jr. did not offer any contradictory evidence as to the value of the equipment at the time of the conversion.
Appellee claims that the measure of damages was not left to speculation or conjecture, but rather his testimony adequately established the amount of damages in relation to the equipment wrongfully converted by Hudson Jr. That testimony, in the absence of contradictory testimony, was sufficient to establish the value of the equipment at the time and place of the conversion. The jury was instructed as to the determination of the market value of the property. Based on our review, there was sufficient evidence for the jury to have reached a decision on this issue, and accordingly we affirm.
3. Whether the trial court erred in failing to direct a verdict because appellee failed to prove lost profits or loss of business expectancy
When a party seeks to recover anticipated profits under contract, he must present a reasonably complete set of figures to the jury and not leave the jury to speculate as to whether there could have been any profits. See Grand State Mktg. v. Eastern Poultry Dist., Inc., 63 Ark. App. 123, 975 S.W.2d 439 (1998). Hudson Jr. maintains that in this case, appellee offered no proof of lost profits other than his undocumented testimony that he made somewhere between $2500 and $3000 the previous year. Appellee admitted that he kept no records, that the previous year’s crop was sold in Hudson Sr.’s name, and that he did not report the income on his income taxes or even tell his wife about the alleged income. Hudson Jr. asserts that appellee pulled the numbers “from thin air,” and without documentary evidence and a complete set of figures, there was no basis from which he could refute the claim for damages. He claims that appellee did not sustain his burden of proof with respect to lost profits and business expectancy and requests that the award to these elements of damage be set aside on the grounds that it was based on pure speculation.
Appellee testified, without objection, as to the lost profits and business. The disputed land consists of fifty-six acres of farm land. Based upon his experience, appellee maintains that the land in question would ordinarily yield 2000 bushels of soybeans per acre. In February 1996 and thereafter, the price of soybeans was approximately six dollars per bushel. Appellee testified that in farming the land in question, costs would typically run between $4000 and $5000 per year, including fuel, herbicides, oil filters, tires, bearings, grease, maintenance, etc.
The farming agreement between appellee and Hudson Sr. provided that twenty-five percent of the profits from the crop would go to Hudson Sr. Multiplying six dollars by 2000 bushels would result in $12,000 in proceeds from the sale of the crop. Hudson Sr.’s twenty-five percent ($3000) was taken out of the proceeds prior to accounting for the $4000 or $5000 in expenses. After paying Hudson Sr., and paying other expenses, appellee estimated that he made between $2500 to $3000 per year and that he made approximately that amount in 1995. Appellee asserts that he in fact has provided adequate evidence of damages under the holding in Grand State Mktg, supra. Where it is reasonably certain that profits would have resulted, then the complaining party is entitled to recover lost profits. Id. Hudson Jr. faded to present evidence that the land would not have yielded the amount of soybeans estimated by appellee or for a different price. The loss may be determined in any manner which is reasonable under the circumstances. Id. We hold that appellee’s testimony was sufficient evidence to support the jury’s finding and affirm.
4. Whether the trial court erred in instructing the jury on punitive damages under the facts of this case
Hudson Jr. contends that the mere assertion of the conversion of personal property does not automatically permit a punitive-damages instruction. Appellee was required to show an intentional exercise of control or dominion over the converted property for the purpose of violating the owner’s right to the property, or for the purpose of causing damages. See City Nat’l Bank of Ft. Smith v. Goodwin, 301 Ark. 182, 783 S.W.2d 335 (1990).
However Hudson, Jr. failed to object to the punitive-damages instructions being given during the jury-instruction con ference. It is well-settled that no party may assign as error the giving or failing to give an instruction unless he objects thereto before or at the time the instruction is given, stating distinctly the matter to which he objects and the grounds of the objection. Union Pac. R.R. Co. v. Sharp, 330 Ark. 175, 952 S.W.2d 658 (1997). Accordingly, the alleged error was not preserved and will not be considered on appeal.
5. Whether the trial court erred in failing to direct a verdict with regard to the punitive-damages award
Under Arkansas law, an award of compensatory damages must exist before punitive damages can be awarded. See Hale v. Ladd, 308 Ark. 567, 826 S.W.2d 244 (1992). Additionally, it has been held that in the absence of an award for compensatory damages, punitive damages are barred, even where compensatory damages were suffered. Bell v. McManus, 294 Ark. 275, 742 S.W.2d 599, opinion supplemented on denial of reh’g, 294 Ark. 278-A, 745 S.W.2d 140 (1998). Hudson Jr. contends that appellee failed to offer sufficient proof to sustain the award of compensatory damages as discussed under points (2) and (3) herein; and accordingly, if we reverse on those points, an award of punitive damages would be barred, and the jury’s award should be overturned. Conversely, appellee contends that the punitive-damages award is supported by both the damage award for conversion and the damage award for interference with business and business expectancy. He maintains that he did establish a basis for the award of punitive damages. Because we affirm on points (2) and (3), we hold that the punitive-damages award is supported by the award for compensatory damages.
6. Whether the trial court erred in failing to direct a verdict with regard to the amount of punitive damages awarded as being excessive
In applying the test for excessiveness, this court makes a case-by-case determination, and the award of punitive damages may be reduced if the verdict shocks the conscience of the court or demonstrates that the jurors were motivated by passion or prejudice. Harold McLaughlin Reliable Truck Brokers, Inc. v. Cox, 324 Ark. 361, 922 S.W.2d 327 (1996). Hudson Jr. maintains that the award in this case is grossly disproportionate to the gravity of the dispute, as well as to the conduct of the parties at the time of the occurrence. He claims that, at worst, he was mistaken as to the boundary of his leasehold, but any such mistake was made in good faith. Appellee asserts that Hudson Jr. could not have been mistaken about the boundary lines because the same fifty-six acres had been farmed by appellee and Hudson Sr., for years. He claims that Hudson Jr.’s argument that he made a mistake in good faith is clearly contrary to the evidence.
When reviewing an award of punitive damages, the court considers the extént and enormity of the wrong, the intent of the party committing the wrong, all the circumstances, and the financial and social condition and standing of the erring party. United Ins. Co. of America v. Murphy, 331 Ark. 364, 961 S.W.2d 752 (1998). Punitive damages are a proper assessment for conduct that is malicious or done with the deliberate intent to injure another. Appellee claims that Hudson Jr.’s “worst” conduct was not a mistake regarding property lines, but rather the physical and verbal attacks he waged against him, and maliciously converting appellee’s tractor and disc. Hudson Jr. counters that there is no claim for damage for any of the conduct described herein by appellee, except for the conversion of the equipment. He maintains, that assuming arguendo, his actions in having the tractor and disc moved were in bad faith, the punitive-damages award must be limited to those acts, and not any other conduct allegedly directed toward appellee. He claims that appellee sought no damage award for any of the conduct set forth in appellee’s argument supporting the punitive-damages award.
Our supreme court has followed a two-step analysis in determining punitive-damages issues: (1) determine whether the award of punitive damages is excessive under state law; and (2) consider the award in light of the due process analysis in Gore. Routh Wrecker Serv., Inc. v. Washington, 335 Ark. 232, 980 S.W.2d 240 (1998) (discussing BMW of North America v. Gore, 517 U.S.559 (1996)). We have held that when there is an issue of excessiveness, we will review the proof and all reasonable inferences in the light most favorable to the appellee. Id. There is no evidence demonstrating that the punitive-damages award “shocked the conscience” of the court or that the jury was motivated by passion or prejudice; accordingly, we affirm on this point.
7. Whether the trial court erred in failing to direct a verdict with regard to punitive damages because the amount of punitive damages awarded violates the Fourteenth Amendment’s due process clause, which imposes on state courts the Eighth Amendment prohibition against excessive fines and cruel and unusual punishment
Hudson Jr. asserts that this issue is one of first impression in Arkansas, and that it is founded in the recent U.S. Supreme Court decision, Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 524 U.S. 424 (2001). That case held that a jury award of punitive damages is not a finding of fact, but rather an expression of moral condemnation. The Court further stated that requiring a de novo review of the jury award to protect due process concerns is proper.
In Cooper Indus., supra, the Court construed the Eighth Amendment to the U.S. Constitution, and set forth three factors to be considered in determining whether a punitive-damages award violates the prohibition against excessive fines and cruel and unusual punishment. They are:
(1) the degree of the defendant’s reprehensibility or culpability;
(2) the relationship between the penalty and the harm; and
(3) the sanctions imposed in other cases for comparable misconduct.
Cooper Indus., 524 U.S. at 440. Hudson Jr. asserts that the worst that could have been expected to happen by his actions was that appellee would have to pay the wrecker and storage bill, the initial cost of which was approximately $1100. He maintains that appellee’s decision to “stand on principle” and allow those storage fees to accumulate cannot be attributed to any malicious or wrongful intent on his part. Hudson Jr. asserts that appellee chose not to mitigate his damages by claiming the equipment he alleges he owns, but rather to purposely allow his damages to increase, and that these facts cannot justify an award of punitive damages in the amount of $250,000 under the guidelines in Cooper Indus., supra.
Appellee addresses each of the factors set forth in Cooper Indus., supra, the first being the degree of the defendant’s reprehensibility or culpability. He argues that Hudson Jr.’s actions were intentional and premeditated, and that the degree of reprehensibility was great, therefore justifying the amount of punitive damages.
Appellee also asserts that the second factor, the relationship between the penalty and the harm caused to appellee by Hudson Jr.’s actions, also weighs in his favor. He maintains that the $250,000 punitive-damages award compared to the harassment and torment inflicted upon him, his loss of business and business expectancy, and the conversion of the equipment is not excessive. In BMW of North America v. Gore, supra, the U.S. Supreme Court looked at the ratio between the punitive and compensatory damages awards and reversed where that ratio was 500:1, respectively. In the instant case, however, the ratio between the punitive-damages award of $250,000 and the compensatory damages award of $35,000 was approximately 7:1. Appellee cites several Arkansas cases allowing punitive-damages awards to stand where the ratio in question was higher than in the instant case. See Routh Wrecker Serv., Inc. v. Washington, supra (finding a 75:1 ratio not to be excessive); Carter v. Carter, 311 Ark. 627, 846 S.W.2d 173 (1993) (upholding an award of 17.5:1); Wortman v. Shipman, 293 Ark. 253, 737 S.W.2d 438 (1987) (validating a jury award with a ratio of 40:1); First Nat’l Bank of Brinkley v. Frey, 282 Ark. 339, 668 S.W.2d 553 (1984) (affirming an award where the ratio was 70:1); and Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972) (affirming an award where the ratio was 14:1). The approximate 7:1 ratio in this case is well within the acceptable range when reviewing this particular factor under Cooper Indus., supra, and also falls within the range most recently set forth by the United States Supreme Court in State Farm v. Campbell, 538 U.S. 408 (2003) (holding that in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages will satisfy due process).
Appellee maintains that Hudson Jr. failed to offer any authority that this award was excessive as compared to sanctions imposed in other cases for comparable misconduct, the third factor in Cooper Indus., supra. He claims the facts in this case are different from most conversion cases. He cites Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979), where the supreme court held that a punitive-damages award of $17,000, with a ratio of 8.5:1, was not excessive. The court stated that the act of not returning property was a fact question on punitive damages that was properly submitted to the jury. Appellee further contends that the Ford Motor Credit Co. case involved neither the long history of confrontation between the parties nor the severity of conduct on the part of the appellant, as was present in this case. He further supports his argument for the punitive-damages award by reminding the court of Hudson Jr.’s disturbing and culpable actions over the years, which culminated in his actions in this particular case. Under the factors set forth in Cooper Indus., supra, we hold that the punitive-damages award does not violate the prohibition against excessive fines and cruel and unusual punishment.
8. Whether the trial court erred in finding that funds in the hands of a garnishee obtained to pay a judgment debtor’s attorney’s fees are subject to garnishment by the judgment creditor
For the final point on direct appeal, appellant Deborah Tid-well Hudson addresses the finding of the trial court that $12,500 in loan proceeds obtained by her were subject to garnishment. Subsequent to the entry of the judgment in the case, Hudson Jr. transferred certain personal property to his wife, in order that she would be able to obtain a loan to pay his attorney’s fees. The money was to be paid directly to his attorney. Appellee argued that the loan proceeds were subject to garnishment because they were still in the hands of Deborah Tidwell Hudson at the time the writ of garnishment was served upon her. The trial court agreed and directed her to pay the proceeds to appellee.
Deborah Tidwell Hudson asserts that the law on garnishments is well founded in Arkansas. She states that where a tenant of a building sublets a portion of the premises and assigns the rent due from the sub-tenant to retire a debt, the rent in the hands of the sub-tenant is not subject to garnishment by another creditor or the tenant to whom the funds have been assigned. See Samstag v. Orr, 101 Ark. 582, 142 S.W.1127 (1912). Similarly, she states that where there was an agreement by which a defendant sold oil leases to a garnishee under circumstances in which the garnishee was to make payment to the defendant’s creditors, but the proceeds were not to be paid to the defendant, it was held that the garnishment did not capture the proceeds of the sale in the hands of the garnishee. Gibson v. Arkansas So. Prod. Co., 230 Ark. 115, 320 S.W.2d 932 (1959) (holding that a garnishment does not reach a debt a garnishee owes to a defendant when the proceeds have been assigned to another).
Deborah Tidwell Hudson maintains that none of the loan proceeds obtained by her were to be paid to Hudson Jr. Therefore, she argues they were obtained in constructive trust, and it was her obligation to pay the attorney’s fees, either as trustee or by virtue of Hudson Jr.’s assignment of his rights in the property to her, in consideration of her assumption of the debt to his attorney. She claims that the garnishment of the court does not reach such previous assignments, see Saunders v. Adcock, 249 Ark. 856, 462 S.W.2d 219 (1971), and that that portion of the judgment should be set aside.
Appellee argues that appellants have failed to cite any jurisdictional basis through which to include this argument as part of the appeal. He submits that we should not consider this issue at the present time because Deborah Tidwell Hudson, garnishee, is not a party to this action, and because appellants failed to abstract the order and judgment regarding the garnishment as well as the entire garnishment hearing. By virtue of the garnishment proceedings filed in this case under the same case number, along with Deborah Tidwell Hudson’s appearance and participation in those garnishment proceedings, she is in fact a party to this action. Furthermore, all relevant pleadings are contained in the record, and we may go to the record to affirm. Smith v. Aluminum Co. of America, 78 Ark. App. 15, 76 S.W.3d 909 (2002).
In the alternative, appellee states that Hudson Jr.’s argument must fail as a matter of law. Arkansas Code Annotated section 16-110-101 states in pertinent part:
[t]he plaintiff in a civil action .... may have an attachment against the property of the defendant .... as a security for the satisfaction of such judgment as may be recovered .... (1)(A) [i]n an action for the recovery of money, where the action is against a defendant who .... (vii) [h]as sold, conveyed, or otherwise disposed of his property, or suffered or permitted it to be sold, with the fraudulent intent to cheat, hinder, or delay his creditors.
Ark. Code Ann. § 16-110-101 (2002). Additionally, Ark. Code Ann. § 16-110-102(a)(l) (2002) provides in pertinent part that, “whenever, in a civil action, the plaintiff shall have reason to believe that any other person is indebted to the defendant or has in his hands or possession goods or chattels, moneys, credits, and effects belonging to the defendant, the plaintiff may sue out a writ of garnishment.”
An appellate court will not reverse a trial court’s finding of fact unless it is clearly erroneous. Troutman Oil Co. v. Lone, 75 Ark. App. 346, 57 S.W.3d 240 (2001). A finding of fact is clearly erroneous when, although there is evidence to support it, the appellate court is left, on reviewing the entire evidence, with the firm conviction that a mistake has been made. Burmeister v. Richman, 78 Ark. App. 1, 76 S.W.3d 912 (2002).
Appellee maintains that whether the funds were assigned to Hudson Jr.’s counsel before the writ of garnishment was served on Deborah Tidwell Hudson is a question of fact that will only be reversed if the trial court clearly erred. Hudson Jr. testified in his deposition in aid of execution of the judgment that he had not been paid for the transfer of property to his wife and that she owed him $12,500. Appellee’s counsel had a writ of garnishment served on his wife while the deposition was still proceeding. There was no contradictory evidence that any of the funds were paid before the writ of garnishment was served. Deborah Tidwell Hudson testified at tbe hearing that one of the checks to Hudson Jr.’s counsel was “probably after September 7th when I was served with the writ of garnishment .... [t]hat one would be for $6,000.”
Appellee maintains that it is clear that the trial court did not err in directing the garnishee to pay these funds to him. Without adequate proof that the money was assigned to Hudson Jr.’s counsel for payment of his debt prior to the writ of garnishment being served, we must affirm the trial court’s decision. That is where the facts of the instant case differ from those cited by Hudson Jr. In Samstag and Gibson, supra, there were formal assignments to the other creditor before the garnishment of the funds in question. Here, Hudson Jr. offered no proof that the funds were formally assigned to his counsel. We affirm.
Cross-Appeal
Whether the trial court erred in issuing the remittitur on punitive damages
This court has held that generally, when a plaintiff elects to accept a reduction in his verdict after the trial court has found the verdict to be excessive, he is bound by that decision and may not appeal. See Farmers & Merchants Bank v. Deason, 25 Ark. App. 152, 752 S.W.2d 777 (1988). However, a plaintiffs election to accept the trial court’s conditional order by consenting to the remittitur does not bar the plaintiff from cross-appealing when the defendant appeals. Id. A remittitur is within the inherent power of the court if an award is grossly excessive or appears to be a result of passion or prejudice. McNair v. McNair, 316 Ark. 299, 870 S.W.2d 756 (1994). The reviewing court will reverse a remittitur if the punitive-damages award is supported by evidence and does not shock the conscience of the court. Id.
When considering the issue of remittitur of punitive damages, the appellate court reviews the issue de novo. Routh Wrecker Serv., Inc. v. Washington, supra. The reviewing court considers the extent and enormity of the wrong, the intent of the party committing the wrong, all of the circumstances, and the financial and social condition and standing of the erring party. Id. Where, in light of the evidence, the jury could have concluded that an appellant displayed a conscious indifference for appellee and that his acts were done with the deliberate intent to injure, the amount of punitive damages will not shock the conscience of the court. Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999). The reviewing court can restore the jury’s verdict or reduce it. Morrison v. Lowe, 274 Ark. 358, 625 S.W.2d 452 (1981).
Appellee submits that the $250,000 punitive-damages award against Hudson Jr. was not grossly excessive and was not the result of passion or prejudice. In O’Neal Ford, Inc. v. Davie, 299 Ark. 45, 770 S.W.2d 656 (1989), the supreme court reversed a trial court’s order of remittitur because the trial judge had stated that he was only “mildly surprised by the amount.” In the instant case, the trial judge stated that he considered the punitive-damages award “a little excessive.” Appellee maintains that this neither meets the “grossly excessive” standard nor “shocks the conscience of the court.” We hold that this is much more like the “mildly surprised” comment made by the judge in O’Neal Ford, supra, and in light of the applicable standard, it justifies a reversal of the remittitur. We therefore reverse on cross-appeal, and remand for the trial court to reinstate the original punitive-damages award of $250,000.
Additionally, on August 6, 2002, appellee filed a motion for $585 in costs associated with his submission of a supplemental abstract and addendum. We hereby grant the motion in the amount of $100.
Affirmed on direct appeal; reversed and remanded on cross-appeal.
Griffen and Crabtree, JJ., agree.
The original judgment also included an award for damages against Routh Wrecker Service, Inc.; however, no appeal was filed as to that portion of the judgment.
The stakes had actually been placed by Ken Clark, a landscape architectural engineer hired by Hudson Jr. to conduct a survey of the fifty-six acres that was needed to begin an expansion of the marina proposed by Hudson Jr.
The jury also returned a verdict in favor of appellee against Routh Wrecker Service, Inc., on the conversion claim and awarded damages in the amount of $10,000 and punitive damages in the amount of $35,000. Routh Wrecker Service, Inc., received a remittitur of punitive damages to $10,000. The remainder of this judgment was not appealed by Routh Wrecker Service, Inc. | [
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Robert J. Gladwin, Judge.
Appellant James Turner from the trial court’s denial of his motions to intervene and quash a writ of garnishment. We affirm.
On August 1, 2000, appellees John and Sara Farnam sued Turner Motor Company, Inc. (“TMC”) to rescind their purchase of a 1994 Ford Explorer. They alleged that the vehicle, for which they had paid $11,995, had suffered extensive damage and had a salvage title, contrary to TMC’s representations. TMC answered the complaint through its attorney and denied that it had misrepresented the history of the vehicle. The answer was verified by appellant as president of TMC.
On July 20, 2001, TMC’s counsel withdrew from representation. Thereafter, appellant appeared on behalf of TMC and requested a continuance, which the court granted, but TMC was ordered to obtain counsel within ten days. A hearing on the merits of the case was held on October 21, 2001, but TMC did not appear. After testimony from Mrs. Farnam, the trial court rescinded the contract, awarded the Farnams judgment for $11,995, and declared that, should TMC fail to pay that amount within ten days, the Farnams could execute on the judgment.
TMC did not pay the judgment, and on November 19, 2001, the Farnams issued a writ of garnishment to the Johnson County Sheriff. They were attempting to garnish approximately $2300 in cash that appellant had posted to secure a bail bond as the result of being arrested in Johnson County on a hot-check charge in June 2001. On December 11, 2001, the sheriff responded to the writ by saying that he had in his possession $2300 belonging to TMC.
On May 22, 2002, the State dismissed the criminal charge against appellant. However, when appellant attempted to retrieve the bond money from the sheriff s office, the sheriff would not release it because of the writ of garnishment. Thereafter, appellant appeared at a June 20, 2002, hearing in this case and argued that the Farnams should not be allowed to garnish his individual money when they had obtained judgment against a corporation. During this hearing, appellant stated repeatedly that the bond money had been posted by his daughter and that he was appearing in court to get the money back for her. At the close of the hearing, the judge gave the Farnams sixty days to conduct discovery, and he ordered the sheriffs office to hold the money.
Discovery was commenced by the Farnams, but in the meantime, appellant began filing pleadings pro se. On July 5, 2002, he filed a motion to quash the writ of garnishment, a motion to intervene, and a complaint in intervention in which he named the Farnams and their attorney, David McCormick, as defendants. The complaint sought money damages against the Farnams and McCormick for what appeared to be causes of action for fraud, abuse of process, and violation of Ark. R. Civ. P. 11. The gist of all the pleadings was that the Farnams were wrongfully attempting to use garnishment proceedings to obtain appellant’s personal property.
On July 30, 2002, the court entered an order finding that, because appellant had stated at the June 20 hearing that the money in question was his daughter’s, appellant lacked standing to intervene or assert any claim to the garnished funds: Appellant moved to set that order aside. The motion was denied, and this appeal followed.
Appellant begins by making three arguments on appeal that were either not made below or not ruled upon below. First, appellant contends that the Farnams did not follow the procedures mandated by Ark. Code Ann. § 16-66-114 (1987). That statute provides that the first process upon a judgment against a private corporation must be a fieri facias, which the sheriff shall levy on the property of the corporation. If no property of the corporation can be found or, if found, is not sufficient to satisfy the judgment, then writs of garnishment may issue. We do not know whether the Farnams ever attempted to levy on TMC’s property prior to filing a writ of garnishment. This issue was not raised below, was not developed, and was not ruled upon by the trial court. There fore, we need not address it on appeal. See Hercules, Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576 (1995). Appellant also argues that he did not receive notice that a garnishment was being asserted against his interests, citing Ark. Code Ann. § 16-110-402 (Supp. 2001). That statute requires that a notice be sent to the “defendant” when a writ of garnishment is issued. The defendant in this case was TMC, and the Farnams sent the statutory notice to that corporation at appellant’s post office box. In any event, no argument was made below regarding this statute nor did the court rule on whether it applied to appellant, who was not a defendant.
Appellant argues next that the Farnams failed to comply with Ark. Code Ann. § 16-110-114(a) (1987), which reads:
When any sheriff shall levy a writ of attachment upon property claimed by a person not a party to the writ, the person may make oath to the property. The property shall then be delivered to the claimant upon him, or his attorney, giving bond in favor of the plaintiff, with good and sufficient security, to be approved by the sheriff, in a sum double the value of the property attached.
Appellant reads this statute to say that the Farnams were required to give a bond before executing on the property at the sheriffs office. While we question appellant’s interpretation, we do not reach that issue because this argument was not raised or ruled upon below and thus should not be addressed on appeal. Hercules, Inc. v. Pledger, supra.
We turn now to the remaining issues, which we view as two-' fold: 1) whether appellant should have been allowed to file his complaint in intervention seeking damages against appellees; and 2) whether appellant had standing to challenge the writ of garnishment.
Arkansas Rule of Civil Procedure 24 governs intervention in a civil cause of action and provides for both intervention as a matter of right and permissive intervention. Midland Dev., Inc. v. Pine Truss, Inc., 24 Ark. App. 132, 750 S.W.2d 62 (1988). Intervention as a matter of right cannot be denied. Id. Rule 24(a), which governs intervention as a matter of right, reads:
Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an uncondi tional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
We have recognized that, if the person seeking intervention will be left with his fight to pursue his own independent remedy against the parties, regardless of the outcome of the pending case, then he has no interest that needs protecting by intervention of right. Midland Dev., Inc. v. Pine Truss, Inc., supra.
Appellant admits in his brief that he could have brought a separate suit against appellees to pursue the claims in his complaint. We likewise conclude that appellant’s claims against appellees will not be impaired by the disposition of the current litigation. Therefore, appellant was not entitled to intervene as a matter of right; at best, he could have been allowed to permissively intervene at the court’s discretion. However, given the fact that a tort suit would have complicated the issues already before the court and the fact that appellant could have pursued his claim independently, we do not believe that the court abused its discretion in denying the motion to intervene.
Next, we address whether appellant had standing to challenge the writ of garnishment. Arkansas cases have permitted persons who have an interest in attached or garnished property to either intervene or file an independent action to assert their interest. See, e.g., Pine Bluff Nat’l Bank v. Parker, 253 Ark. 966, 490 S.W.2d 457 (1973); Bloom v. McGehee, 38 Ark. 329 (1881). However, a person has no standing to complain about a garnishment when the object of the garnishment belongs to another. See Joey Brown Interest, Inc. v. Merchants Nat’l Bank, 284 Ark. 418, 683 S.W.2d 601 (1985); see also Nash v. Estate of Swaffar, 336 Ark. 235, 983 S.W.2d 942 (1999); McCollum v. McCollum, 328 Ark. 607, 946 S.W.2d 181 (1997) (a party has no standing to raise an issue regarding property in which he has no interest); National Enter., Inc. v. Union Planters Nat’l Bank, 322 Ark. 590, 910 S.W.2d 691 (1995) (generally, intervention as a matter of right requires the applicant to establish a sufficient interest in the property that is the subject of the action).
Appellant challenges the garnishment of the $2300 in bond money. However, by his own statements at the June 20, 2002, hearing, the money belonged to his daughter; he asserted no ownership of the money. Thus, appellant had no interest in the garnished, funds. We therefore conclude that the trial court correctly ruled that appellant had no standing to challenge the garnishment.
Before leaving this issue, however, we take the opportunity to discuss a statute that is not mentioned by either party but is of interest on this point. Arkansas Code Annotated section 16-110-134 (1987) reads as follows:
(a) Before the sale of any attached property, or before the payment to the plaintiff of the proceeds thereof or of any attached debt, any person may present his complaint verified by oath to the court. This complaint shall dispute the validity of the attachment, or state a claim to the property or an interest in, or hen on it under any other attachment, or otherwise, and set forth the facts upon which the claim is founded, and his claim shall be investigated.
(b) A nonresident claimant shall, in such cases, give security for costs.
(c) The court may hear the proof, may order a reference to a commissioner, or may impanel a jury to inquire into the facts.
(d) If it is found that the claimant has a title to, a lien on, or any interest in the property, the court shall make such order as may be necessary to protect his rights.
(e) The costs of this proceeding shall be paid by either party, at the discretion of the court.
(Emphasis added.)
We applied this statute in 1994 in Watkins v. Hadamek, 48 Ark. App. 78, 892 S.W.2d 515 (1994). There, Watkins obtained a judgment against Hadamek. Watkins then served a writ of garnishment on Tyson Foods, who answered that it was obligated to Hadamek for $13,075 as the result of a poultry-service contract. As it turned out, Hadamek had assigned 100% of the proceeds of the contract to the Bank of Waldron. Hadamek moved to quash the writ of garnishment, and the trial court did so. On appeal, Watkins argued that Hadamek lacked standing to challenge the garnishment. We noted that, under the abovementioned statute “any person is permitted to present his complaint to the court” to dispute the validity of a garnishment. Id. at 82, 892 S.W.2d at 517. However, we also said that it was “obvious that Ms. Hadamek had ‘an interest’ in the money to the extent of being heard on whether it should be applied to credit her debt to the bank.” Id.
We believe that the case before us is distinguishable from Watkins v. Hadamek. Appellant, as he repeatedly points out, is not the judgment debtor in this case; further, he has disclaimed all association with the judgment debtor, which he considers to be a nonexistent corporation. He has also stated unequivocally that the money that is the subject of the garnishment belongs to his daughter. Thus, unlike the defendant in Watkins v. Hadamek, he has shown no identifiable interest in the money; therefore, he has no standing to challenge the garnishment.
Affirmed.
Bird and Griffen, JJ., agree.
The denial of a motion to intervene is an appealable order, Northwest Ark. Area Agency on Aging v. Golmon, 70 Ark. App. 136, 15 S.W.3d 363 (2000), as is an order that sustains a garnishment. Ark. R. App. P.—Civil 2(a)(5) (2003). | [
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Larry D. Vaught, Judge.
This is an appeal from a decision of the Arkansas Workers’ Compensation Commission finding that appellee was entitled to a one-time change of physician and at least a one-time visit to that physician at appellants’ expense. Appellants raise two points on appeal: (1) the Commission committed legal error by holding that it is without authority to find that the appellants had fulfilled their obligation of providing adequate medical treatment; (2) there is no substantial evidence to support that appellee’s treatment with the new physician was reasonably necessary and related to her compensable injury. We affirm.
Appellee Kemberly Brown sustained an admittedly compen-sable right-hand injury on December 3, 1997, while lifting boxes at work. Appellee was initially treated by Dr. Charles Cardona, who referred her to an orthopaedic specialist, Dr. Gordon New-bern. In February 1998, Dr. Newbern referred appellee to his partner, Dr. Earl Peeples. Dr. Peeples ordered an MR.I, which did not show any abnormality related to appellee’s hand.
On October 13, 1999, a hearing was held on the issue of additional medical treatment. The administrative law judge (ALJ) found in his November 22, 1999 opinion that appellee was entitled to additional medical treatment with her authorized treating physician, Dr. Peeples. After being awarded additional medical treatment, appellee went to see Dr. Peeples only one additional time. Appellee did not seek further medical treatment for her injury for almost two years after her last visit with Dr. Peeples.
Pursuant to a hearing conducted on January 23, 2002, the ALJ filed an opinion on March 18, 2002, finding that appellee was entitled to a one-time change of physician from Dr. Peeples to her family doctor, Dr. Jim Citty, pursuant to Ark. Code Ann. § 11-9-514(a)(3)(A)(ii) (Repl. 2002). However, the ALJ also determined that appellee was not entitled to additional treatment from Dr. Citty at appellants’ expense because the proposed visit was not reasonably necessary for the treatment of her compensable injury. Appellee appealed to the full Commission, which modified the ALJ’s decision in its October 18, 2002 opinion and found that not only was appellee entitled to a one-time change of physician, but also that at least the initial visit with the new physician would be at appellants’ expense. From that decision comes this appeal.
In reviewing decisions from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. Daniels v. Arkansas Dep’t of Human Servs., 77 Ark. App. 99, 72 S.W.3d 128 (2002). Substantial evidence exists if reasonable minds could reach the same conclusion. Id. The issue on appeal is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm the Commission’s decision. Hayes v. Wal-Mart Stores, 71 Ark. App. 207, 29 S.W.3d 751 (2000). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999).
At the January 23, 2002 hearing before the ALJ, appellee requested to be seen by the doctor of her choice, her family physician, Dr. Citty, or in the alternative, an independent medical evaluation by the Commission’s choice of doctor. Appellee had not seen a doctor of her choice regarding the compensable injury and was continuing to have problems with her hand subsequent to her treatment with Dr. Peeples. Appellee testified that ever since the accident, she has had symptoms of pain, burning, and numbness. She subsequently sought an examination from Dr. Citty on her own, and he suggested additional testing or treatment for pain. She further testified that she needed to see her family doctor because he was also treating her for hypoglycemia, and she wanted someone who would consider her whole range of health issues in determining treatment. This was a concern because Dr. Peeples initially prescribed medications that would alter or adversely affect the condition.
On appeal, the Commission found that based upon the evidence, appellee was entitled to a one-time change of physician and held that appellants were also responsible for the payment of the initial visit to Dr. Citty. Although the Commission did not make specific findings of fact on whether any treatment proposed by Dr. Citty was reasonably necessary to appellee’s compensable injury, it determined that requiring appellants to pay for the initial visit was the only logical way to allow appellee her one-time change of physician and to determine whether or not that physician’s rec ommendations with respect to treatment, if any, could be considered reasonable or necessary.
The Commission’s decision was based on our holding in Collins v. Lennox Ind., Inc., 77 Ark. App. 303, 75 S.W.3d 204 (2002), where we reversed the Commission, which had found that an injured worker failed to establish that he was entitled to any additional medical treatment, and on that basis denied his request for a one-time change of physician. We discussed Ark. Code Ann. § 11-9-514(a)(3)(A)(ii), which no longer vests discretion in the Commission to grant or deny a change of physician. The statute now provides that if the employer has contracted with managed care, the claimant has an absolute right to a change of physician. We held in Collins that the Commission’s finding that the employer had fulfilled the obligation of providing adequate medical treatment without allowing the mandatory change of physician was not supported by substantial evidence.
In the instant case, appellants claim that Collins is limited to that particular change-of-physician issue, and that it did not specifically address the issue of an employer’s financial responsibility for treatment with the physician to whom the individual changes. Appellants maintain that the applicable statute, Ark. Code Ann. § 11-9-514 (a) (3) (A) (ii), addresses only whether the new physician will be an “authorized” treating physician, and not whether the employer must pay for treatment provided by the new doctor. They contend that while the Commission has no discretion in granting a change-of-physician request, nothing in the statute takes away the Commission’s power to determine the question of fact of whether the additional treatment is reasonably necessary.
Appellants also argue that it is not the change-of-physician statute that addresses employer liability for treatment with a new authorized physician, but rather Ark. Code Ann. § 11-9-508 (a) (Repl. 2002), which expressly states that employers are only liable for treatment that is reasonably necessary in connection with the injury received by the employee. Appellants assert that even though appellee may be entitled to a one-time change of physician, she must still pass the threshold issue of proving that the treatment provided by the new physician is reasonably necessary in order to establish their liability for the treatment.
The holding in Collins allows both statutory provisions to be read in harmony. Without an initial visit and report from appellee’s one-time-change-of-physician doctor, there is simply no way to determine whether any additional treatment proposed by that physician would be reasonably necessary. It would be inconsistent for the legislature to make a one-time change of physician mandatory without allowing an individual to see that doctor, at least for the initial visit, at the employer’s expense.
We hold that in this situation, where appellee has exercised her absolute, statutory right to a one-time change of physician pursuant to Ark. Code Ann. § 11-9-514(a) (3) (A) (ii), appellants must pay for the initial visit to the new physician in order to fulfill their obligation to provide adequate medical services under the provisions of Ark. Code Ann. § 11-9-508.
Appellants’ arguments regarding subsequent treatment by Dr. Citty were not addressed by the Commission, and are therefore not before us now.
Affirmed.
Hart, Bird, Griffen, and Roaf, JJ., agree.
Crabtree, J., dissents. | [
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Andree Layton Roaf, Judge.
Gaylon Jean Brown was convicted of fraudulent use of a credit card and robbery in two consecutive bench trials and was sentenced to twenty years’ imprisonment for each conviction. Following the bench trials, the trial court also revoked her probation and sentenced her to six years’ imprisonment. All three sentences were to be served concurrently. Brown now appeals, asserting two points of error. Brown argues that the trial court erred (1) by imposing an illegal sentence in the fraudulent use of a credit card conviction, and (2) in admitting hearsay testimony at her robbery trial. With respect to the probation revocation, Brown’s counsel has filed a motion to withdraw, pursuant to Anders v. California, 386 U.S. 738 (1967), alleging that there is no meritorious argument on appeal. We affirm Brown’s two convictions and revocation of probation, and based upon our review of the record, we grant her counsel’s motion to withdraw.
Because Brown does not challenge the sufficiency of the evidence supporting her conviction for fraudulent use of a credit card, a long recitation of the facts is not necessary. On April 18, 2002, Suzanne Woodard went to the Colony West Conoco where Brown was an employee. Woodard made a purchase using her Pulaski Bank debit card and left the store without getting her card back. The store’s surveillance tape showed Brown slide the debit card toward her as Woodard exited the store, and it showed her holding the debit card and looking at it after Woodard left. The store’s manager testified that during the same time frame the surveillance cameras showed Brown with possession of the card, he recovered sales transactions for two cartons of cigarettes and other small items. There were five unauthorized transactions in all, $3.19, $8.51, $37.84, $44.62, and $73.34, totaling $167.83. The trial court found Brown guilty of fraudulent use of a credit card. Before sentencing, the State submitted evidence of Brown’s previous four felony convictions. After hearing this evidence, the court sentenced Brown to twenty years in the Arkansas Department of Correction.
Brown argues that her sentence is facially illegal because the sentencing guidelines recommend 42 months, which corresponds to three and one-half years; however, the trial court sentenced her to twenty years. This sentence is more than five times the presumed sentence. Brown asserts that in order to depart from the sentencing grid, the trial court must state, in writing, its reasons for doing so. There is no departure report in the record, and Brown did not request one from the lower court. The State contends that Brown’s challenge is procedurally barred because she failed to raise it to the trial court. However, Brown argues that her sentence is illegal on its face and that she may challenge an illegal sentence for the first time on appeal.
The fact that an appellant does not object to an illegal sentence does not bar a challenge on appeal because Arkansas appellate courts treat allegations of void or illegal sentences much like jurisdictional questions, which can be raised for the first time on appeal. Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992). Thus, we must determine whether Brown’s sentence is actually an illegal one.
A sentence is void or illegal when the trial court lacks the authority to impose it. Sentencing in Arkansas is entirely a matter of statute ... We have consistently held that sentencing shall not be other than in accordance with the statute in effect at the time of the commission of a crime. Where the law does not authorize the particular sentence pronounce by the trial court, that sentence is unauthorized and illegal, and the case must be reversed and remanded.
State v. Fountain, 350 Ark. 437, 440, 88 S.W.3d 411, 413 (2002) (citations omitted).
Arkansas Code Annotated section 5-37-207 defines the crime of fraudulent use of a credit card and provides that it is a Class C felony if the value of the goods or services obtained exceeds one hundred dollars. Ark. Code Ann. § 5-37-207(b)(1) (Supp. 2003). Sentencing for a Class C felony shall be not less than three years nor more than ten years. Ark. Code Ann. § 5-4-401 (Repl. 1997). However, pursuant to Ark. Code Ann. § 5-4-501 (Supp. 2003) the sentence for Class C felonies imposed upon a defendant who has been previously convicted of four or more felonies is not less than 3 years nor more than 30 years. Ark. Code Ann. § 5-4-501(b)(2)(D) (Supp. 2003).
Arkansas Code Annotated section 16-90-803 provides, “When a person charged with a felony ... is found guilty in a trial before the judge . . . sentencing shall follow the procedures provided in this chapter.” Ark. Code Ann. § 16-90-803(a)(l)(A) (Supp. 2001). “The presumptive sentence shall be determined, but may be departed from pursuant to the procedures outlined in § 16-90-804.” Ark. Code Ann. § 16-90-803(a)(2)(A) (Supp. 2001). However, “[t]he statutory minimum or maximum ranges for a particular crime shall govern over a presumptive sentence if the presumptive sentence should fall below or above such ranges.” Ark. Code Ann. § 16-90-803(b)(3)(C) (Supp. 2001).
In this case, Brown’s sentence is not illegal on its face. An illegal sentence is one that the trial court is not authorized to impose. Here, although Brown was given a sentence greater than the presumed one, her sentence was authorized pursuant to our statute governing sentencing for habitual offenders. Ark. Code Ann. § 5-4-501 (Rep. 1997). While Ark. Code Ann. § 16-90-803 establishes a presumed sentence, “[t]he statutory minimum or maximum ranges for a particular crime shall govern over a presumptive sentence if the presumptive sentence should fall below or above such ranges.” Ark. Code Ann. § 16-90-803(b)(3)(C) (Supp. 2001). In this case, the statutory range for a habitual offender with four or more felony convictions who is convicted of a Class C felony is between three and thirty years. Brown’s twenty year sentence falls squarely within this range, and therefore, the trial court was authorized to impose it.
Moreover, the mere fact that the trial court failed to provide written justification does not render the sentence illegal on its face. The Arkansas Code mandates that the trial court present a written justification for any sentence imposed that is 5% more than the presumed amount. The statute, however, prescribes the remedy when the trial court has failed to do so. Arkansas Code Annotated section 16 — 90-804(c)(1) (Supp. 2001) provides that when the trial court imposes a sentence that is outside the presumptive range, and is not accompanied by written justification, then the defendant is entitled to “consideration for any discretionary release applicable under the law as if he had received the presumptive sentence, and the transfer or releasing authority may review, grant, or deny transfer or release based on any eligibility established by the presumptive sentence term.” Ark. Code Ann. § 16-90-804(c)(1) (Supp. 2001) (emphasis added). Brown’s remedy lies within the statute, and her sentence is affirmed.
Brown was also convicted of robbing her wheelchair-confined neighbor. Again, Brown does not challenge the sufficiency of the evidence, and an extensive recitation of the facts is not necessary. She challenges only the admissibility of hearsay testimony during her trial. The victim, Ollie Pace, testified that Brown had come over to his trailer to use the phone. While she was there a repairman came to repair the washing machine. When the repair was complete, Brown observed Pace pay the repairman and return his wallet to his front pocket. Brown left shortly after the repairman. A few minutes later, Brown returned wearing a hat and a black coat, put a bag over Pace’s head, and removed the cash from his wallet. Pace testified that although Brown was wearing a hat, he recognized her and the lime-green pants she was still wearing. A “little while” later, Pace said, his granddaughter came over and, he told her about the incident.
Shantarius Pace testified that when she arrived at her grandfather’s home, he was crying and upset. She agreed that he was visibly shaken and “his nerves [were] just bad.” While in this condition, he told Shantarius that Brown robbed him. At this point in the testimony, defense counsel raised a hearsay objection. The trial court overruled the objection, and Shantarius concluded by restating the events as told to her by Pace.
“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ark. R. Evid. 801(c) (2003). Hearsay testimony is generally inadmissible. Ark. R. Evid. 802 (2003). There are some exceptions; the most applicable to the facts of this case being the excited utterance exception. Ark. R. Evid. 803(2) (2003). The rules of evidence provide, “A statement relating to a startling event or condition made while the declarant was under the stress of excitement cause by the event or condition” is not excluded by the hearsay rule. Ark. R. Evid. 803(2) (2003). Admissibility of evidence is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Peterson v. State, 349 Ark. 195, 76 S.W.3d 845 (2002).
Brown argues that while there was testimony that Pace was in a startled condition, there was insufficient foundation laid with respect to the passage of time. She argues the trial court abused its discretion in allowing the hearsay testimony without a proper foundation for doing so, and without pausing the proceedings long enough to take argument on the hearsay point.
A specific objection to the introduction of testimony because of failure to lay a proper foundation must be made before it can be said that admission of the testimony was error. See Smith v. State, 243 Ark. 12, 418 S.W.2d 627 (1967). The rationale behind this rule is that the trial court should be apprised of the deficiency and the adverse party be given an opportunity to correct it. Id. Brown did not make a lack of foundation argument to the trial court.
Notwithstanding her failure to object to lack of foundation, the passage of time is not the dispositive issue in an excited utterance analysis. In Peterson, supra, the supreme court lists several factors to be considered in excited utterance cases.
There are several factors to consider when determining if a statement falls under this exception; (1) the lapse of time, (2) the age of the declarant, (3) the physical and mental condition of the declarant, (4) the characteristics of the event, and (5) the subject matter of the statement. We have noted that the lapse of time between the startling event and the out-of-court statement, although relevant, is not dispositive of the application of the excited utterance exception to the hearsay rule.
Id. at 199, 76 S.W.3d at 847 (citations omitted).
The general rule is that an utterance following an exciting event must be made soon enough thereafter that it can reasonably be considered a product of the stress of the excitement rather than of intervening reflection or deliberation. However, we have noted that the trend is toward expansion of the time interval after an exciting event. We have also noted that continuing emotional or physical shock and loss of consciousness, unabated fright, isolation, and other factors may also prolong the time, making it proper to resort to Rule 803(2), despite long lapses of time.
Id. at 199-200, 76 S.W.3d at 847 (emphasis added) (citations omitted).
It is for the trial court to determine whether the declarant is still excited. Id. at 200, 76 S.W.23 at 847 (holding that although several hours had passed since the startling event, the witnesses testified that the victim was “crying,” “very distraught,” and “very upset” while she was describing the events. Id. at 203, 76 S.W.3d at 849). See also Pennington v. State, 24 Ark. App. 70, 74, 749 S.W.2d 680, 682 (1988) (stating that the admissibility of an excited utterance “is not to be measured by any precise number of minutes, hours, or days, but requires that the declarant is still under the stress and excitement caused by the traumatic occurrence.”); Tackett v. State, 12 Ark. App. 57, 670 S.W.2d 824 (1984) (stating that time is only one factor to be considered).
Here, Pace testified that his granddaughter arrived after a “little while.” Even if this court were to interpret a “little while” to be a significant amount of time, as long as the declarant is still under the stress or excited, then the trial court does not abuse its discretion even when there is a significant passage of time. Peterson, supra. Shantarius testified that Pace was visibly shaken and still crying when he recounted the events of the robbery. Moreover, any error would be harmless because Shantarius’s testimony merely mirrored what Pace had already explained to the court. See Lewis v. State, 74 Ark. App. 61, 48 S.W.3d 535 (2001) (stating that prejudice is not presumed and there is no prejudice when the evidence admitted is merely cumulative). We affirm Brown’s conviction of robbery.
A hearing on the State’s petition to revoke Brown’s probation was held immediately following the two bench trials. Brown’s counsel has filed a motion to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967) and Ark. Sup. Ct. R. 4-3 (j) (1), alleging that any argument advanced by Brown in an appeal of her revocation would be wholly frivolous. Counsel’s motion to withdraw accompanies a single brief with merit appeals from the two convictions and a final, one-paragraph, no-merit argument section regarding the revocation of probation. It is imperative that appellate counsel follow the appropriate procedure when filing motions to withdraw as counsel, see Buckley v. State, 345 Ark. 570, 48 S.W.3d 534 (2001), and this court has reiterated the proper procedure in Eads v. State, 74 Ark. App. 363, 47 S.W.3d 918 (2001). This procedure is required whether o.r not a separate Anders brief is filed. In this case, a separate motion to withdraw as counsel accompanied Brown’s brief. Accordingly, this court had notice of the Anders portion of the appeal, and of the need to provide Brown with her counsel’s motion to withdraw and to inform her of her right to file pro se points on appeal. Brown has not filed points for reversal.
In the brief, counsel states that there were no adverse pretrial rulings and no adverse evidentiary rulings during the hearing. She asserts that there was no directed verdict motion made at the close of the State’s case, and therefore, even if there were adverse rulings, they are not preserved for appellate review. However, this is not a correct statement of the law. The supreme court has held that a defendant in a revocation proceeding is not required to comply with Ark. R. Crim. P. 33.1 regarding motions for directed verdict in order to preserve the issue of the sufficiency of the evidence. Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001); Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). Consequently, appellant was not precluded from raising a sufficiency issue on appeal of the revocation, and the decision to revoke is an adverse ruling that should have been addressed by counsel. Moreover, counsel has also misstated the facts as she asserts that Brown’s parole officer testified that Brown “broke the laws of Arkansas” during the revocation portion of the proceedings, when the officer testified to no such thing. The sole testimony constituting evidence of a new violation as basis for revocation came during the preceding bench trials.
Nevertheless, this court has affirmed without ordering rebriefing under very similar circumstances, where there was a revocation proceeding heard at the same time as a bench trial on new charges, and the trial court pronounced guilt on both. See General v. State, 79 Ark. App. 219, 86 S.W.3d 15 (2002). However, to the extent that General suggests that the trial court’s grant of revocation is not an adverse ruling for purposes of an Anders review, this court has consistently treated it as such in unpublished decisions since as early as 1998. In light of the supreme court’s decision in Barbee, supra, we conclude that the decision to revoke is indeed an adverse ruling that must be addressed by counsel in an Anders brief. Here, the record reflects that the three cases were tried back-to-back, with no objection by appellant. All three case numbers were announced together at the opening of the hearing. The trial court pronounced guilt on the two new charges and announced the decision to revoke at the conclusion of the three proceedings. The supreme court has stated “[w]hen a new criminal charge constitutes the grounds for revocation, it is particularly appropriate to combine the proceedings, as the good of judicial economy can be served.” White v. State, 329 Ark. 487, 951 S.W.2d 556 (1997). As Brown’s simultaneous convictions of two new felonies provided clear and overwhelming grounds for revocation, we conclude that rebriefmg will not be necessary in this instance.
We note that this court has recently reversed and dismissed a revocation case in which we had ordered rebriefing after appellant’s counsel had initially filed a no-merit appeal, however, we did not elect to publish the opinion. Although most of the Anders briefs that are filed with this court are in compliance with Rule 4-3 (j), we have noted that an increasing number involve filings that fall far short of the requirements for a no-merit brief. Consequently, we will require full compliance with Anders in all future appeals to this court, including the troublesome cases in which an appellant has been subjected to simultaneous criminal trial and revocation proceedings, and appellate counsel has elected to combine appeals from both in a single brief with an appended Anders section. Should there be any doubt or confusion about what an Anders brief and review entails, for both appellate counsel and this court, see Campbell v. State, 74 Ark. App. 277, 47 S.W.3d 915 (2001) (Supp. Op. in denial of reh’g); Eads v. State, 74 Ark. App. 363, 47 S.W.3d 918 (2001).
Based upon our review of the record and the brief presented, we conclude that there has been sufficient compliance with Rule 4-3(j) such that an appeal of Brown’s probation revocation would be wholly without merit. Counsel’s motion to be relieved is granted and the judgment is affirmed.
Affirmed.
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John Mauzy Pittman, Judge.
This is a divorce case that involves the division of property, child support, mortgage payments, marital debts, and valuation of the husband’s medical clinic and surgery center. For reversal, appellant contends that the trial court erred in setting child support at the level established by the family support chart and permitting the appellee to remain in the marital home and in requiring appellant to make the mortgage payments on the marital home in addition to child support and alimony. Appellant also contends that the trial court erred by failing to make an equal and equitable division of the marital assets. On cross-appeal, appellee asserts that the trial court erred in the valuation assigned to appellant’s professional practices. We find no error, and we affirm in all respects.
Appellant Alonzo Williams is a gástroenterologist who owns a clinic, Arkansas Diagnostic Center, P.A. (ADC), and a surgery center, Gastroenterology Center of Arkansas, P.A. (Gastro), in Little Rock. He and appellee/cross-appellant Henrietta Williams were married in 1972 and had three children, two of whom were minors at the time of trial. Appellee, who has a Ph.D. in special education, began work in appellant’s practices in 1984. By appellant’s admission, appellee played a significant role in developing his practices, which are phenomenally successful. As hostilities between the parties escalated, appellant fired her; she was not working at the time of trial. The parties separated in 1997. During the marriage, appellant had extramarital affairs with other women and had two children born out of wedlock with two different women. Appellant’s girlfriend is the mother of one of those children. For several years, appellant has provided substantial support to his girlfriend and their daughter. He managed to keep the amount of this support secret from appellee with the assistance of his accountant. Appellant also supports his other daughter born out of wedlock.
At trial, appellee requested child support in the amount set by the family support chart, possession of the marital home (11,200 square feet), an equal division of the property, and alimony. She also asked that appellant be required to make the mortgage payments on the house. Appellant asked the judge to award less than the amount of child support set by the chart; to force appellee and the children to vacate the marital home and move into a less expensive house; and to make an unequal division of the marital property in his favor. The parties disputed the proper valuation of appellant’s clinic and surgery center; appellee argued that both practices had a substantial goodwill value, and appellant asserted that they did not. Both parties presented exhaustive evidence about their valuation.
The judge awarded appellant a divorce on the basis of eighteen months’ separation. He found that appellant’s net income for 1999 was $778,495, or $64,875 monthly, and set appellant’s child-support obligation at $13,624 per month, in keeping with the support guidelines. He also awarded appellee monthly alimony of $4,000. The judge awarded possession of the house to appellee and the children until the youngest child graduates from high school, when it will be sold and the net proceeds divided equally between the parties. He ordered appellant to make all repairs on the house exceeding $500.
The judge awarded appellee a one-half interest in the clinic and surgery center, which he valued at $695,500, which is substantially less than appellee argued they were worth. He found the value of the parties’ other real property as follows: 8907 Kanis Road $4,850,000; 8908 Kanis Road $1,500,000; and 305 Freeway Medical Tower $170,000. He gave appellee a one-half interest in these pieces of property, along with several other parcels for which no value was given, directing the parties to reach an agreement as to their disposition within forty-five days. The judge equally divided their cash, retirement funds, stocks, bonds, investments, life insurance policies, accounts receivables, and interests in several closely held businesses. The judge permitted appellee to keep her jewelry, a mink coat, some paintings, and a 1994 Mercedes.
The judge found that, during the marriage, after the parties’ separation, and after the entry of the temporary order, appellant spent marital funds totaling at least $801,457.59 on his girlfriend and on his sisters, and awarded appellee one-half of that amount. To compensate appellee, the judge awarded her the entire contents of the marital residence, the title to a lot in Hickory Hills (valued at $110,000), and twelve acres in West Helena, Arkansas (valued at $25,000).
The judge held appellant responsible for the following debts: $279,104 for furniture and decorative items purchased for the marital home; $143,530 for repayment of fife insurance policy loans and $105,565 for premium loans incurred after entry of the temporary order; $900,000 in personal loans from Metropolitan Bank; $292,010 for a stockholder loan from ADC; and $47,000 for his girlfriend’s Mercedes.
Standard of Review
We review traditional equity cases de novo on the record and will not reverse a finding of fact by the trial judge •unless it is clearly against the preponderance of the evidence. Hunt v. Hunt, 341 Ark. 173, 15 S.W.3d 334 (2000). In reviewing the trial judge’s findings, we give due deference to the judge’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id.
The Direct Appeal
Appellant makes two arguments in his first point on appeal: first, that the trial judge abused his discretion in not deviating from the child-support chart; and second, that the trial judge abused his discretion in failing to require appellee to move into a less expensive house. Appellant has not challenged the judge’s determination of his income or his finding that appellant attempted to hide his income with the assistance of his accountant. Appellant argues that the “staggering” child-support award, in addition to the requirement that he pay the mortgage on the marital home for the next seven years, amounts to an abuse of discretion and argues that the parties’ historical spending level for the children was substantially lower than the child-support award. According to appellant, the chart amount exceeds the children’s actual needs. He states that, exclusive of housing, the historical monthly spending on the children was $3,671.71. Appellant also contends that the marital home is more luxurious than necessary to give the children a comfortable lifestyle and that appellee and the children should be required to move into a less expensive house. Appellant cites out-of-state cases, including a Kansas case, In re Marriage of Patterson, 22 Kan. App. 522, 528, 920 P.2d 450, 456 (1996), where the court stated: “[N]o child, no matter how wealthy the parents, needs to be provided more than three ponies.” Appellant recognizes that no Arkansas case has considered the “Three Pony Rule” but points out that the family support guidelines provide that the court can grant more or less support if the evidence shows that the needs of the dependents require a level of support different from the amount set by the chart. In oral argument, appellant acknowledged that the support guidelines do not set a “cap” on the level of support to be provided by high-income payors but urged this court to impose such a cap in this case.
It is true that the trial judge may deviate from the chart amount if it exceeds or fails to meet the needs of the child. See Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990); Guest v. San Pedro, 70 Ark. App. 389, 19 S.W.3d 62 (2000). The amount of child support a trial judge awards, however, lies within his sound discretion and will not be disturbed on appeal absent an abuse of that discretion. Office of Child Support Enforcement v. Pittman, 70 Ark. App. 487, 20 S.W.3d 426 (2000). Arkansas Code Annotated section 9-12-312(a) (2) (Repl. 2002) provides that, in determining a reasonable amount of support, the judge shall refer to the most recent revision of the family support chart, and that it shall be a rebuttable presumption that the amount contained in the chart is the correct amount of child support to be awarded. The statute states that only upon a written finding or specific finding on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the family support chart, shall the presumption be rebutted. Because the child-support guidelines are remedial in nature, they must be broadly construed so as to effectuate the purpose sought to be accomplished by their drafters. Pannell v. Pannell, 64 Ark. App. 262, 981 S.W.2d 531 (1998).
The version of the family support chart in effect when the decree was entered was found at In Re: Administrative Order No. 10: Arkansas Child Support Guidelines, 331 Ark. 581 (1998). In Section IIIb, it provides that when the payor’s income exceeds that shown on the chart, support for two children should be set at twenty-one percent. In Section I, it states in part:
It is a rebuttable presumption that the amount of child support calculated pursuant to the most recent revision of the Family Support Chart is the amount of child support to be awarded in any judicial proceeding for divorce, separation, paternity, or child support. The court may grant less or more support if the evidence shows that the needs of the dependents require a different level of support.
It shall be sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to the Family Support Chart is correct, if the court enters in the case a specific written finding within the Order that the amount so calculated, after consideration of all relevant factors, including the best interest of the child, is unjust or inappropriate. Findings that rebut the guidelines shall state the payor’s income, recite the amount of support required under the guidelines, recite whether or not the Court deviated from the Family Support Chart and include a justification of why the order varies from the guidelines as may be permitted under SECTION V. hereinafter.
In Section V, Administrative Order No. 10 sets forth the following factors to be considered when deviating from the amount set by the chart:
1. Food;
2. Shelter and utilities;
3. Clothing;
4. Medical expenses;
5. Educational expenses;
6. Dental expenses;
7. Child care;
8. Accustomed standard of living;
9. Recreation;
10. Insurance;
11. Transportation expenses; and
12. Other income or assets available to support the child from whatever source.
Additional factors include:
1. The procurement and/or maintenance of life insurance, health insurance, dental insurance for the children’s benefit;
2. The provision or payment of necessary medical, dental, optical, psychological or counseling expenses of the children (e.g. orthopedic shoes, glasses, braces, etc.);
3. The creation or maintenance of a trust fund for the children;
4. The provision or payment of special education needs or expenses of the child;
5. The provision or payment of day care for a child;
6. The extraordinary time spent with the noncustodial parent, or shared or joint custody arrangements; and
7. The support required and given by a payor for dependent children, even in the absence of a court order.
In Anderson v. Anderson, 60 Ark. App. 221, 963 S.W.2d 604 (1998), we affirmed the chancellor’s straightforward application of the percentage set by the support chart to the husband’s monthly net income of $9,696.
In this case, the trial judge made the following findings regarding child support:
Ark. Code Annot., Section 9-12-312(a)(2) requires the court to set child support based upon the most recent child support chart. It is a rebuttable presumption that the chart amount is the correct amount of child support, and this court must enter specific findings regarding its reasons for deviating from the chart. The court must first ascertain the net income of Dr. Alonzo Williams on an annual basis. The court heard testimony from Mr. Richard Schwartz and Ms. Cheryl Shuffield as to the income, expenses and ability to pay of Dr. Alonzo Williams. Previous to the filing of this divorce action, Dr. Williams has earned over $2,000,000.00 per year. Dr. Williams’ income has dropped during this divorce proceeding. It was proven at trial that Dr. Williams incorrectly reported monies spent on [his girlfriend] and that other expenses were improperly deducted as business expenses. The tax returns of Arkansas Diagnostic Clinic and Gastroenterology Center of Arkansas were amended to exclude these expenses as allowable business deductions. However, no change was made to Dr. Williams’ personal tax returns. Dr. Williams included personal American Express charges as deductions which should have been reflected as part of his income. The court is of the opinion that Dr. Williams’ salary was, for purposes of trial, made to appear less than what his actual net monthly or yearly income is. The court relies on Plaintiffs Exhibit 40, which is the child support calculations for Dr. Alonzo D. Williams for the year 1999. The court finds that Dr. Williams’ annual income for child support purposes is $778,495.00, with a net monthly income of $64,875.00.
The court finds, by a preponderance of the evidence, that the Defendant has failed to establish a reason for this court to deviate from the current family support chart. The court determines that child support should be set at the rate of $13,624.00 per month for two children. The court determines 21% of the monthly net of $64,875.00 to be $13,624.00. The Court finds that the child support calculations made by Plaintiffs expert, Mr. Richard Schwartz, are correct as they represent Defendant’s disposable income more accurately than the Defendant or Defendant’s expert. Dr. Williams can afford to maintain his children in the style and manner to which they have become accustomed to living during the marriage of the parties.
The amount of “historical expenses” offered by appellant was demonstrated at trial to be inaccurate. The record shows that these figures were based on only a portion of the total amount spent during the parties’ separation; they did not include the substantial amount that appellant directly spent on the children. Also, during the separation, appellant was able to buy his girlfriend an expensive house, a very expensive ring, a Mercedes, and furnishings for her new house. He also bought her older daughter a car. He purchased a Mercedes for one of his sisters and a Lexus for another. He bought and furnished an expensive house for himself. Appellee also presented evidence that, during this proceeding, appellant and his girlfriend traveled extensively. Given the evidence of appellant’s affluence, exceptional generosity, and extravagant lifestyle, we cannot say that the trial judge abused his discretion in setting child support in accordance with the presumptive amount derived from the family support chart.
In his second point, appellant asserts that the judge abused his discretion in ordering him to pay the mortgage on the marital residence until the youngest child graduates from high school. According to appellant, the monthly child-support payments of $13,624, the mortgage payments of $13,977.94, and the payments of $2,000 in insurance and real estate taxes amount to over $29,000 in monthly support for the children. Appellant contends that an order directing a noncustodial parent to make house payments must be deemed a form of child support, especially when the duration of the obligation is tied to a child’s graduation from school or attainment of a certain age. He states that adding the mortgage payment to the child-support payment required by the chart produces a windfall to appellee, because the children’s need for shelter is already covered by the child-support amount set by the chart. In the alternative, appellant argues that the judge should have deviated from the chart amount on the basis that a substantial element of support for the children (housing) was provided through the mortgage payments. Appellant also argues that the judge’s decision regarding the mortgage payments amounts to an improper deviation from the support chart without the required findings from the judge. Appellant further contends that the judge’s decision in this regard is especially inequitable because he did not permit appellant to receive credit for the post-divorce reduction in the principal debt.
Citing Bramlett v. Bramlett, 5 Ark. App. 217, 636 S.W.2d 294 (1982), appellant argues that this sort of obligation should not be imposed unless there are special circumstances showing that support payments are ineffective or inefficient in satisfying a party’s obligations to children or a former spouse. We do not agree with appellant’s reliance on Bramlett v. Bramlett. Although we did affirm the husband’s obligation to make the mortgage payments in that case and noted that the chancellor had considered this obligation in setting child support, the amount of child support was not an issue on appeal.
Additionally, the child-support guidelines do not support appellant’s position. Although a trial judge has the authority to include mortgage payments made for the benefit of the child in an award of child support, especially when the term of the obligation is tied to the child’s reaching the age of majority or finishing high school, see Keesee v. Keesee, 48 Ark. App. 113, 891 S.W.2d 70 (1995), there is no requirement that a mortgage payment must take the place of a portion of the amount of child support set by the chart; such a decision is clearly within the trial judge’s broad discretion. The trial judge 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 judge deems to be equitable and just. Schumacher v. Schumacher, 66 Ark. App. 9, 986 S.W.2d 883 (1999); Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989). Additionally, it is acceptable to permit the parties to equally share the proceeds of sale after only one party has made the mortgage payments for a period of time. Schumacher v. Schumacher, supra. Given this authority, we cannot say that the chancellor abused his discretion in requiring appellant to make the mortgage payments on the family home until his youngest child finishes high school.
Appellant’s third and fourth points involve related facts and will therefore be considered together. Appellant asserts in his third point that the net effect of the judge’s attempt to equally divide the property and to assign over $2 million in debt to appellant was to award appellee $2.4 million more of the marital estate than he awarded appellant. He contends that, even though the judge stated that he was dividing the marital property equally between the parties, he actually made an unequal division, which appellee did not request and for which the judge failed to give an explanation. Appellant argues in his fourth point that the judge erred in failing to equally divide the debts. He asserts that, because the judge failed to reduce the value of the assets by the liabilities specifically tied to them, the net effect was to award appellee an inflated value for her one-half portion of the marital estate. According to appellant, with the exception of the house payments and appellee’s jewelry, virtually all of the $2.4 million disparity between the assets awarded to the parties is a consequence of the marital debt assigned only to appellant. Appellant contends that, even though the judge stated that he would not divide the property unequally, he did so surreptitiously by allocating the debt in this fashion.
Appellant offers the following chart in support of his argument that appellee received sixty-seven percent, and not fifty percent, of the marital estate:
Total Appellant Appellee
Cash 211,129 105,565 105,565
Retirement Funds 383,100 191,550 191,500
Marketable Securities 940,068 470,034 470,034
Closely Held business Interest 695,516 347,758 347,758
Insurance Cash Value 3,013,216 1,506,608 1,506,608
Real Estate 8,363,250 4,181,625 4,181,625
Future Equity in Hickory Hills 200,890 200,890
Receivables 131,706 65,853 65,853
Total Assets 14,374,290 6,940,338 7,433,953
Liabilities 7,092,563 (4,511,741) (2,433,953)
Net Marital Estate 7,281,727 2,428,597 4,853,130
The following items are the debts that appellant contends should have reduced the value of the assets that secured them:
A. The $292,010 shareholder debt due ADC and included as a receivable in the practices’ valuation. Appellant argues that this loan was taken out prior to the parties’ separation and that appellee’s expert witness, Richard Schwartz, recognized this fact and included it as a receivable in his ADC valuations. Appellant’s expert, Cheryl Shuffield, did the same.
B. A $600,000 loan from Metropolitan Bank, secured by an office building at 8901 Kanis Road property, that was utilized to pay taxes and to improve the 8907 Kanis Road property, which were marital debts. He argues that loans taken out to benefit both of the parties are marital debts regardless of which party takes out the loan or whether both parties are aware of the loan. See Hunt v. Hunt, supra.
C. A $300,000 loan from Metropolitan Bank secured by certificates of deposit owned by ADC. Appellant states that this loan, which was incurred to pay the parties’ joint tax obligations, is secured by certificates of deposit owned by ADC that are included in its valuation.
D. $528,199 in loans secured by life insurance policies. Appellant points out that the judge did not give a reason for the allocation of this debt and asserts that he must have done so because appellant failed to pay the premiums after the entry of the temporary order. He argues that it was unfair for the judge to penalize him in this fashion while letting appellee get away with failing to place appellant’s name on the policies as the judge had previously ordered. He further argues that some of these loans were taken out before the temporary hearing and all of them were for the benefit of the parties and the marital estate.
Citing Missouri and Tennessee cases, appellant asserts that when a debt is secured, its value must ordinarily be offset against the value of the underlying asset. In essence, appellant argues that, because Ark. Code Ann. § 9-12-315 (Repl. 2002) mandates that marital property be divided equally unless the court finds that such a division is inequitable, it also requires that the division of debts be treated the same way. We do not agree. Section 9-12-315 does not apply to the division of marital debts; hence, in Arkansas, there is no presumption that an equal division of debts must occur. Ellis v. Ellis, 75 Ark. App. 173, 57 S.W.3d 220 (2001). In Ellis v. Ellis, the trial judge divided the marital property equally and ordered the husband to pay seventy percent of the marital debts. We affirmed the judge’s unequal division of the marital debts due to the disparity between the parties’ incomes and their relative abilities to pay the debts.
Although the division of marital debt is not addressed in Ark. Code Ann. § 9-12-315 (Repl. 2002), the chancellor has authority to consider the allocation of debt in a divorce case. Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993); Anderson v. Anderson, supra. In fact, we have stated that an allocation of the parties’ debt is an essential item to be resolved in a divorce dispute, Ellis v. Ellis, supra, and that it must be considered in the context of the distribution of all of the parties’ property. Boxley v. Boxley, 77 Ark. App. 136, 73 S.W.3d 19 (2002). A judge’s decision to allocate debt to a particular party or in a particular manner is a question of fact and will not be reversed on appeal unless clearly erroneous. Ellis v. Ellis, supra; Anderson v. Anderson, supra. It is not error to determine that debts should be allocated between the parties in a divorce case on the basis of their relative ability to pay. Ellis v. Ellis, supra; Anderson v. Anderson, supra. Furthermore, the effect of an allocation of debt on a spouse’s lifestyle is a valid consideration; the supreme court has affirmed unequal debt allocations where a husband was able to pay the debts from income without materially changing his style of life but the wife could not pay the debts from her income without disposing of assets to pay part of the debt. Richardson v. Richardson, 280 Ark. 498, 503, 659 S.W.2d 510, 513 (1983). When considering the- allocation of debts, it is also appropriate that the judge consider who should equitably be required to pay them. Keathley v. Keathley, 76 Ark. App. 150, 61 S.W.3d 219 (2001).
Appellant argues that this case is controlled by Hoover v. Hoover, 70 Ark. App. 215, 16 S.W.3d 560 (2000), wherein this court held that the chancellor had erred in failing to consider a large debt as part of his mathematical calculations while dividing the marital property. This court subtracted the amount of debt assigned to the husband from the value of the assets awarded to him in determining the total value of the property awarded to him in the divorce, stating:
In his letter ruling, the chancellor set out an item-by-item recitation of the marital assets and debts assigned to each party.
Appellee was awarded, free of debt, the couple’s marital home, two vehicles, and other items with a total value of $917,406. Appellant was awarded the assets of Hoover Oil & Gas, valued at $421,642, an additional $210,821 enhancement to the company’s value, the remainder of the couple’s real property, and various other items with a total value of $1,319,514. Appellant was also assigned over $700,000 in debt, which included the $371,093 remaining mortgage on the marital home. His net award was therefor $618,998, or approximately forty percent of the marital property.
.... However, one significant item that was mentioned in the decree was not mentioned in the letter ruling — the $156,106 debt owed by Hoover Oil & Gas to First National Bank. In the decree, the debt is assigned to appellant. However, it is not included in the mathematical calculations in the letter ruling.
Appellant argues that the chancellor, in his letter ruhng, obviously intended to divide the property 60/40 between the parties, but, due to several errors, the actual division was much more unequal. In particular, he contends that the assets assigned to him are much less valuable than they appear because the chancellor failed to reduce the worth of Hoover Oil & Gas by the $156,106 debt owed to First National Bank and because the chancellor arbitrarily added a 50% enhancement ($210,821) to the value of Hoover Oil & Gas. We agree that the chancellor erred on both counts.
70 Ark. App. at 218-19, 16 S.W.3d at 562.
We do not agree that Hoover is controlling. A close reading of Hoover shows that we based our reversal not on the percentage distributed to each party but instead on the erroneous calculation of the value of an asset assigned to the appellant. Therefore, Hoover does not stand for the proposition that the marital debt must be subtracted from the marital assets to determine the “net” value of the total award made to each party in all divorce cases. Although the chancellor in Hoover used this method, and we followed his methodology, the methodology itself was not in issue. Accordingly, we hold that the assignment of these debts to appellant did not constitute an unequal distribution of the marital property.
The trial judge explained his decision to assign these debts to appellant as follows:
During the course of the marriage, after the separation of the parties, and after entry of the restraining order in this matter, Dr. Williams spent considerable monies on the mother of one of his illegitimate children, . . . and in purchasing new automobiles for his sisters. The evidence reveals that Dr. Williams spent in excess of $801,000.00 on [his girlfriend] and his sisters. The funds expended were marital funds.
Prior to the separation of the parties, certain loans on insurance policies were made by Mrs. Williams to pay for furniture and decorative items for the parties’ home. The total for these loans is $279,104.00. Dr. Williams will be responsible for the repayment of these loans. Further Dr. Williams was required, pursuant to the parties’ Agreed Temporary Order, to pay insurance premiums on the policies. Dr. Williams will be solely responsible for reimbursing the marital estate for all premium loans incurred after the date of the temporary order of February 27, 1998. This amount totals $105,565.00. Dr. Williams will be solely responsible for the insurance policy loan in the amount of $143,530.00 taken on policy No. 10-031-697 after the date of the separation and temporary order. Dr. Williams will also be solely responsible for the loan on [his girlfriend’s] automobile in the amount of $47,000.00, for the personal loans from Metropolitan Bank in the amount of $900,000.00, for the stockholder loan from ADC in the amount of $292,010.00.
The court will award as Mrs. Williams’ separate property, the entire contents of the parties’ marital residence as partial reimbursement and compensation by Dr. Williams for the monies expended for [his girlfriend] and Dr. Williams’ sisters after separation and after the restraining order was entered in this matter. The court finds that the award to Mrs. Williams of these items of personal property, as well as the title to Lot 29, Hickory Hills and the twelve acres in West Helena, Arkansas, as her separate property, will compensate her for the funds expended by Dr. Williams.
All other retirement accounts, cash and cash equivalent accounts, marketable securities, insurance policies and accounts receivable of the parties shall be divided in kind. All real property owned by the parties upon the entry of a decree of divorce shall be converted to ownership as tenants in common.
Dr. Williams has requested that the Court make an unequal division of marital property pursuant to Ark. Code Annot., Sec tion 9~12-315(a)(l)(A)(v) and (vii). The court finds absolutely no merit to Dr. Williams’ contention that the marital estate should be divided unequally in his favor. In fact, had the Plaintiff requested an unequal division of marital assets, the court would have been much more inclined to make an unequal division in favor of Mrs. Williams than Dr. Williams. Dr. Williams expenditures for illegitimate children and paramours, his attempts to hide assets through accounts with Mr. Kramer, and other activities which the court views as an attempt to minimize income and place assets beyond the reach of Mrs. Williams, further justify the court refusing to divide the marital property unequally in Dr. Williams’ favor.
The parties to a divorce often must use marital funds to meet necessary expenses incurred during the pendency of an action, and the chancellor has discretion to determine whether it was necessary to use those funds, whether the amount used was reasonable, whether fraud or overreaching occurred, and whether an offset is appropriate. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993). The trial judge’s findings as to the circumstances warranting a property division will not be reversed unless they are clearly erroneous. Dennis v. Dennis, 70 Ark. App. 13, 13 S.W.3d 909 (2000); Smith v. Smith, 32 Ark. App. 175, 798 S.W.2d 442 (1990).
Arkansas Code Annotated section 9-12-315(a)(l) (Repl. 2002) provides that all marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable; in that event, the court shall make some other division that the court deems equitable, taking into consideration the following factors: (1) length of the marriage; (2) age, health, and station in life of the parties; (3) occupation of the parties; (4) amount and sources of income; (5) vocational skills; (6) employability; (7) estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income; (8) contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and (9) the federal income tax consequences of the court’s division of property. The statute further states that, when property is divided pursuant to these considerations, the court must state in the order its reasons for not dividing the marital property equally.
Arkansas Code Annotated section 9-12-315, however, does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. Creson v. Creson, 53 Ark. App. 41, 917 S.W.2d 553 (1996). The statute vests the chancellor with a measure of flexibility and broad powers in apportioning property, non marital as well as marital, in order to achieve an equitable distribution; the critical inquiry is how the total assets are divided. Id. Accord Box v. Box, supra; Boxley v. Boxley, supra. This court will not substitute its judgment on appeal as to the exact interest each party should have but will only decide whether the order is clearly wrong. Boxley v. Boxley, supra. On our review of the extensive record in this case, we cannot say that the trial court’s order is clearly wrong.
Cross-Appeal
Appellee has filed a cross-appeal from the judge’s valuation of appellant’s clinic and surgery center. She contends that the judge failed to follow Ark. Code Ann. § 9-12-315(4) (Repl. 2002), which provides that, when stocks or other securities issued by a corporation make up part of the marital property, the court shall, if awarding the securities to only one party, determine the fair market value of the stock and then award the other spouse an amount in money or other marital property equal to the fair market value of the securities.
The judge made these findings of fact regarding the valuation of appellant’s practices:
Plaintiff contends that the combined value of the professional practices is $2,388,200.00 based upon the business appraisal of Mr. Richard Schwartz. Defendant contends that the value of the professional practices is $465,500.00 based upon the appraisal of Ms. Cheryl Shuffield. The differences in the value per the appraisal of the two competing expert witnesses is $1,922,700.00.
Mr. Schwartz testified that the fair market value of the two corporations included the fair market value of the intangible assets of the corporation, including the business or practice goodwill as well as fair market value of the tangible assets belonging to the practices. Mr. Schwartz contended that the goodwill to which he was referring was “practice” or “business” goodwill rather than “personal” goodwill and that this practice goodwill was of the type that could be transferred and sold along with the corporate assets. He further testified that this goodwill was not dependent upon Dr. Williams’ continued presence. Mr. Schwartz distinguished this practice goodwill for the personal goodwill that Dr. Williams has by virtue of Dr. Williams’ compensation received in the form of salary.
Part of the differences in the valuation of the practices is attributable to the expert real estate appraisers upon whom Mr. Schwarz and Ms. Shuffield relied in formulating their values for the practices. Mr. Schwartz relied upon a valuation of $1,550.00.00 by Mr. Tom Perstl for the office building located at 8901 Kanis Road, Little Rock. Ms. Shuffield relied upon the appraisal of Mr. R.M.S. Pearce valuing the property at 8901 Kanis Road at $1,320,000.00, a difference of some $230,000.00. The bulk of the difference in value as between Mr. Schwartz and Ms. Shuffield was that which was attributable to the goodwill of the business. Ms. Shuffield testified that any goodwill of the corporations would be “personal” goodwill and thus she rejected the market approach to valuation as well as the income approach. She instead valued the business purely from an adjusted asset approach. Mr. Schwartz’ net asset method and his income method relied heavily on calculations of considerable goodwill. Mr. Schwartz’ valuations failed to distinguish between personal and professional goodwill associated with the two professional corporations.
Under prevailing case law, for goodwill to be marital property, it must be a business asset with value independent of the presence or reputation of a particular individual. Tortorich v. Tortorich, 50 Ark. App.114, 902 S.W.2d 247, 250 (1955) [sic] (citing Wilson v. Wilson, 294 Ark. 194, 205-06, 741 S.W.2d 640, 647 (1987)). To establish goodwill as marital property and thus be divisible, the party must produce evidence establishing the sal-ability or marketability of that goodwill as a business asset of a professional practice. The Tortorich and Wilson cases confirm that the burden is on the party who seeks to establish goodwill as a marital asset to produce convincing proof delineating between professional goodwill on the one hand and personal goodwill on the other. Wilson, 294 Ark. App. 121, 741 S.W.2d. 640. Mr. Schwartz admitted in his testimony that he did not attribute any value to Dr. Alonzo Williams’ personal reputation. He stated that he “. . .didn’t distinguish between the goodwill that developed between any personal and any professional.”
At trial, Defendant testified that he was raised in West Helena and how he gained recognition for his personal, professional and civic achievements. Defendant serves [sic] on the Arkansas State Medical Board for the past twelve years and has held the position of secretary for approximately six years. Dr. Williams also has served on the board of the Boy Scouts in this area counsel for many years.
Dr. Williams attributes his draw of patients to various factors. Specifically, he testified that he has a group of twenty to thirty physicians with whom he maintains regular contact and from whom he receives referrals. Dr. Williams contends that he receives much of his business based upon referrals. He testified that these referrals keep coming because the referring doctors are his personal friends and know that he will treat the patient well regardless of financial circumstances. Dr. Alonzo Williams testified that the racial makeup of his patient base is over 80% African-American. Dr. Williams is one of the only two African-American board certified gastroenterologists in Arkansas. The burden of proof is with the Plaintiff, not the Defendant, to delineate the facets of goodwill. The court finds that the Plaintiff has failed to do so.
The court finds that Mr. Schwartz’ market valuation method was unconvincing due to lack of comparable features in the transaction upon which he relied. For example, in his valuation of Gastro, Mr. Schwartz could reference only two transactions or sales; neither of these two transactions were in Arkansas. One transaction was in Kansas City and one was in Naples, Florida. One transaction or sale was in 1997. Mr. Schwartz did not know the number of physicians involved in the practices which were the subject of the transactions; he did not know whether there were non-compete agreements signed; he did not know whether the motivation for these particular transactions were strategic; he did not know whether the transaction was in stock or for cash; he did not know how the liabilities were handled in the transaction; he did not know whether the acquiring entity bought 100% or only a portion of the Kansas City business; and he acknowledged that the Florida transaction was for only 60% of the business.
The transactions relied upon by Mr. Schwartz regarding ADC were more numerous but lacking in comparable detail, most notably they were quite remote. Almost all of the transactions dated back to 1996. The court notes that there has been considerable volatility and change in the health care industry in the last few years. Acquisitions have diminished and motivations have changed.
The court adopts the valuation placed on Gastro and ADC by Ms. Shuffield, with the exception of her reliance upon the appraisal of Mr. Pearce. The court places the greater credibility and weight on the testimony of Mr. Tom Ferstl, the appraiser upon which Mr. Schwartz relied in valuing the practices. Therefore, the valuation placed upon the practices by Ms. Shuffield totaling $465,500.00 will be increased by the sum of $230,00.00, the difference between the appraisal of Mr. Ferstl and Mr. Pearce, resulting in a valuation of $695,500.00 for ADC and Gastro.
Ms. Shuffield’s values were based upon the adjusted book value, or net asset value method, which is a cost approach. The underlying theory of the cost approach is that a buyer will not pay more for an asset than the cost to reproduce such asset (whether tangible or intangible). The standard of value applied was fair market value, going concern basis. In arriving at value, it was necessary to distinguish the value of any personal goodwill, which pursuant to Arkansas case law, is not a marital asset. An individuals’ probable future earnings capacity is non-marital property. For goodwill to be marital property, it must be a business asset with value independent of the presence or reputation of a particular individual. Ms. Shuffield’s analysis focused on transferable value, absent Dr. Alonzo Williams’ continued physical presence in the business.
Dr. Alonzo Williams’ continued presence is of particular significance in the valuation of Gastro where Dr. Williams personally performed procedures accounting for 84% of the revenues in 1998, and 89% in 1999. The court notes that a buyer of 100% interest in Gastro could not legally protect himself against the eventuality that Dr. Alonzo Williams might choose to perform those procedures elsewhere, or that Dr. Alonzo Williams might retire, or be disabled. The proof reflected that without Dr. Alonzo Williams’ continued use of and presence at Gastro, Gastro would operate at a loss. The only way for Dr. Williams to realize full value of the income generated by Gastro would be for him to remain in place as its owner. For this reason, the market approach was rejected by Ms. Shuffield in the Gastro valuation and Court views this as reasonable. This same reasoning lead Ms. Shuffield to reject the income approach. If a buyer can not protect himself against loss of the income stream, then the income approach is inapplicable.
Ms. Shuffield rejected the market approach in the valuation of ADC for the following reasons:
(a). Market data does not provide sufficient data to distinguish between personal and enterprise, or professional, goodwill.
(b). Market data does not provide sufficient information for comparability of consideration.
(c). Market data does not provide sufficient information for comparability of the subject with reported transactions due to geographical differences, differences in patient population and characteristics, differences in managed care environments, number of physicians, and distribution of patient base among physicians.
(d). Market comparables were unavailable for any transactions occurring after 1997.
Ms. Shuffield properly rejected the income approach in valuing ADC because:
(a). Any income model based on historical results of operations would necessarily include an employment contract with Dr. Alonzo Williams to attain comparable results on a perspective [sic] basis.
(b). An income model constructed without the assumed continued presence of Dr. Alonzo Williams must take into account not only the continued patronage of the patient population absent his presence, but also the cost to reproduce his services.
(c). Absent even these considerations, if one takes into account the expected decreases in revenues from HCPA (for which Ms. Shuffield introduced supporting information) and other third party payors, there are no excess earnings to capitalize; thus the adjusted book value approach utilizing a cost to reproduce the enterprise value yields the higher value than one which utilizes earnings capacity.
Ms. Shuffield testified that the value of Arkansas Diagnostic Center, P.A., prior to application of a marketability discount was comprised of net tangible operating assets of $570,418.00, enterprise goodwill value of $75,000.00, and a deficit value per net non-operating assets of ($202,083.00), for a total asset value, net of liabilities, of $443,335.00. A marketability discount of $36,570.00 was deducted to arrive at a total concluded value of $407,000.00 for the 100% ownership interest in ADC. The marketability discount was calculated at 10% and excluded the values of non-operating assets and also the face amount of stock holder receivables. Had the conclusion of value been reached through a market or income approach, a considerably higher marketability discount percentage would have been applied.
As previously stated $230,000.00 of the difference between Ms. ShufEeld’s and Mr. Schwartz’ concluded value of ADC is attributable to the differing real estate values for the property at 8901 Kanis. The court finds that the value placed on the property at 8901 Kanis by Mr. Tom Ferstl is the more reliable and creditable value and therefore will increase the value of the ADC practice by the $230,000 difference between Mr. Ferstl and Mr. Pearce’s appraisals. . . .
As mentioned above, Ark. Code Ann. § 9-12-315 (Repl. 2002) requires the use of the “fair market value” standard for valuing businesses in a marital property context. See Cole v. Cole, 82 Ark. App. 47, 110 S.W.3d 310 (2003). We will reverse the trial court’s finding of the valuation of a business only if it is clearly erroneous. Miller v. Miller, 70 Ark. App. 64, 14 S.W.3d 903 (2000); Vestal v. Vestal, 28 Ark. App. 206, 771 S.W.2d 800 (1989). Difficulty arises in valuing a professional practice when goodwill is likely to depend on the professional reputation and continuing presence of a particular individual in that practice. For goodwill to be marital property, it must be a business asset with value independent of the presence or reputation of a particular individual — an asset that may be sold, transferred, conveyed or pledged. Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987). Thus, whether goodwill is marital property is a fact question, and a party, to establish goodwill as marital property and divisible as such, must produce evidence establishing the salability or marketability of that goodwill as a business asset of a professional practice. Id.
In Tortorich v. Tortorich, 50 Ark. App. 114, 902 S.W.2d 247 (1995), we held that the husband’s business goodwill in a solo oral surgery practice was not marital property:
While we agree with the chancellor’s finding that Mr. Schwartz’s testimony was persuasive to an extent, we fail to find any evidence that Dr. Tortorich’s professional association had “value independent of the presence or reputation of [this] partic ular individual — an asset which may be sold, transferred, conveyed, or pledged.”
Dr. Tortorich is a sole practitioner whose personal skills developed his reputation with other dentists. Dr. Tortorich’s practice, as the evidence clearly showed, was almost wholly dependent on referrals from other dentists who referred patients to him based on his reputation alone. Without the presence or reputation of this particular individual the oral surgery practice had no value independent of its tangible assets. The chancellor adopted Mr. Schwartz’s opinion of the goodwill value of Anthony L. Tortorich, D.D.S., P.A., and held that this goodwill had a value of approximately $180,000 and was a marital asset. It appears that Mr. Schwartz arrived at his opinion by capitalizing the above average net income Dr: Tortorich has been able to generate in his practice. This does not, however, purport to distinguish the superior personal earnings capacity of Dr. Tortorich from any goodwill of the professional association independent of his continued presence and reputation. Upon our de novo review we conclude that the value of Dr. Tortorich’s P.A. is $61,086 and that it has no goodwill value independent of Dr. Tortorich’s presence and reputation. We do not hold, as suggested in the dissenting opinion, that a solo professional practice can never have business goodwill independent of the personal goodwill of the practitioner. We simply hold that pursuant to Wilson, Mrs. Tortorich had the burden of proving that Dr. Tortorich’s professional association had business goodwill independent of Dr. Tortorich’s personal goodwill if it was to be considered a marital asset. This she failed to do. The chancellor’s finding to the contrary was clearly erroneous and is reversed.
50 Ark. App. at 120-21, 902 S.W.2d at 251.
Appellee’s expert, Richard Schwartz, testified that the fair market value of ADC is $911,200 and that the fair market value of Gastro is $1,477,000. Mr. Schwartz testified that appellant was compensated for his personal goodwill in the form of his salary. Appellant’s expert, Ms. Shuffield, valued ADC at $407,000 and Gastro at $58,000; she assigned “some” enterprise value but stated that any goodwill of the corporations would be personal goodwill.
Appellee argues that Ms. Shuffield’s valuation of the practices was unreliable. She contends that most of the business at ADC and Gastro consists of repeat visits from patients, which comprise a continuing patient base, and not new referrals. She also directs this court’s attention to the testimony of Bill Kremer, appellant’s accountant, who had valued the practices significantly higher in 1994 when the parties contemplated selling them to appellant’s nephew. Appellee also points out that appellant testified that he had hired other doctors to take over his hospital work so that he could concentrate on doing procedures at Gastro; that both practices are not named after appellant; and that, even though appellant owns the practices, two other doctors also work there.
We think that the trial judge’s extensive findings concerning the unreliability of Mr. Schwartz’s valuation are supported by the evidence and that the judge’s adoption of the valuation offered by appellant’s expert, Ms. Shuffield, is not clearly erroneous. The goodwill factor was the major point on which the experts disagreed. The evidence at trial, however, preponderates in favor of a finding that most of the goodwill attributable to appellant’s practices depends on his professional reputation and his continuing presence and that appellee failed to satisfy her burden of proving otherwise. Appellant presented evidence that most of his practice is dependent upon referrals from other physicians and not repeat business; that his efforts to provide attentive service to his patients have been successful; that he works hard and efficiently; that his reputation in the Little Rock area and in eastern Arkansas, where he grew up, is excellent; that he is very involved in community affairs; and that he was, at the time of trial, the secretary of the Arkansas Medical Board. Although two other physicians are employed by appellant’s practices, appellant brought in eighty-four percent of Gastro’s revenues in 1998 and performed three times as many procedures as the other physicians. Appellant saw over fifty percent of ADC’s patients. Furthermore, appellee’s expert failed to adequately account for the reduction in patient revenues that would be associated with appellant’s departure from the practices. For these reasons, and because appellant’s expert, Ms. Shuffield, did in fact include enterprise value in her valuation of the practices, we cannot say that the trial judge erred in crediting her valuation over that of Mr. Schwartz.
Affirmed on appeal; affirmed on cross-appeal.
Stroud, C.J., and Baker, J., agree.
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Wendell L. Griffen, Judge.
This appeal arose from an order modifying visitation after granting relocation to appellant, Susan L. Rebsamen Stockton. The sole issue is whether the trial court was clearly erroneous in structuring the visitation schedule concerning the parties’ eight-year-old son, Dalton, after appellee, Richard L. Rebsamen, consented to, or at least waived any objection regarding appellant’s relocation out of state. We affirm.
The parties obtained a divorce from each other on October 6, 1999. Appellant received custody of Dalton, subject to certain visitation privileges of appellee. Appellee exercised visitation regularly every other weekend, alternate holidays, and six weeks during the summer break. Appellant remarried in the spring of 2002 and relocated, within Arkansas, to Fayetteville. However, appellant’s husband recently obtained new employment in the state of Virginia. Because of the new job, appellant, her husband, and Dalton moved to Winchester, in the very northern tip of Virginia. Due to her husband’s change in employment, appellant’s yearly family income increased from approximately $48,000 to about $82,000 per year. Appellant’s husband does not have any children of his own. In contrast, appellee, residing in Nashville, Arkansas, made $35,000 per year. Appellee also remarried, and his wife has three children of her own. There is no evidence in the record pertaining to appellee’s wife’s income, if any. Appellant’s and appellee’s parents continue to reside in Arkansas as well.
Appellee initially opposed appellant’s motion to relocate, but later withdrew his objection. At the hearing, however, appellee asserted that he would like to see Dalton as often as possible. In return, appellant expressed concerns about the flight schedule, frequent air travel, possible complications due to connecting flights, and other travel-related concerns. Appellant’s new home is located about two hours’ drive-time from the Baltimore airport, from where Dalton could board a nonstop flight to Little Rock on Southwest Airlines. The flight departs at 7:30 a.m. In order to arrive in time, appellant would have to depart from home, in order to bring Dalton to the airport in time, before 4:30 a.m.
Based on these facts, and appellee’s withdrawal of his objection to the relocation, the trial court granted the relocation and issued a new visitation order, emphasizing one particular factor under Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994), namely whether there will be a realistic opportunity for visitation in lieu of the weekly pattern that can provide an adequate basis for preserving and fostering the parent relationship with the noncustodial parent. In relevant parts, the trial court stated specifically:
[Appellee] shall have summer visitation from July 1 until the Friday before the fall school semester reconvenes. This schedule will continue as long as Dalton is playing baseball. If the child does not participate in baseball, then summer visitation will commence three days after the school recesses for the summer break and will continue until the Friday before the fall semester reconvenes. Child support shall abate by fifty-percent during summer visitation;
[Appellee] shall have every Spring Break from the Friday that school lets out for the break until the Sunday before school starts;
Every year [after 2002], [appellee] shall have Dalton from the time school lets out for the Christmas holiday until the evening before school reconvenes for the spring semester. When [appellant] is in Arkansas, she will have Dalton Christmas Eve from 6:00 p.m., December 23 until 7:00 p.m. on December 24.
[Appellee] shall have the minor child from noon on the Tuesday before Thanksgiving until Monday after Thanksgiving. If [appellant] is in the state of Arkansas, she will have Thanksgiving from Wednesday evening until Thanksgiving at 7:00 p.m. in even-numbered years. If [appellant] is in the state, she shall be entitled to one day of the weekend of Thanksgiving break in odd-numbered years;
[Appellee] shall have the child from the Friday before Memorial Day until Memorial Day;
Per the 2002-2003 school calendar, [appellee] will have the minor child as follows:
(i) Friday, October 18, 2002, until Sunday, October 20.
(ii) Friday, November 1, 2002, until Tuesday, November 5.
(iii) Friday, January 17, 2003, until Tuesday, January 21.
(iv) Friday, February 14, 2003, until Monday, February 17.
The visitation referenced hereinabove shall be revised each year in accordance with the child’s school calendar and visitation shall coincide with all extended school breaks, to the extent they exist
In addition to the visitation set out above, [appellant] shall make the minor child available to [appellee] at any times that she has the child in Arkansas. In the event [appellee] travels to the state of Virginia, upon proper notice, he shall be entitled to visit with Dalton during any trip, holiday or vacation travel; and
In the event that [appellee] has a family event, wedding or funeral, which he would like the child to attend, the parties shall work to arrange for the child to be present. The transportation expense and arrangements for any additional visitation of this nature shall be the responsibility of [appellee].
[T]he Court orders [appellant] to be responsible for the transportation expense, other than those areas or times that [appellee] has a special need or event referenced [above].
From this order arises the present appeal.
Visitation After Uncontested Relocation Out of State
On appeal, appellant solely asserts that the trial court acted clearly erroneously when it devised and ordered the above visitation schedule. We review cases such as this de novo and reverse only when the trial court’s findings are clearly erroneous. Hollandsworth v. Knyzewski, 78 Ark. App. 190, 79 S.W.3d 856 (2002). A finding is clearly erroneous when, despite the existence of evidence supporting it, we have the definite and firm conviction, based on the entire evidence, that a mistake was committed. Id.
While there is little case law before us that distinctly applies to the current situation — notably not one involving a disputed relocation, but solely a disputed visitation schedule within the context of an out-of-state relocation — our court in Staab v. Hurst, 44 Ark. App. 128, 133, 868 S.W.2d 517, 519 (1994), made some relevant observations. After a divorce and an initial custody determination, the determination of a child’s best interest cannot be made in a vacuum, but requires that the interests of the custodial parent also be taken into account. Id. Our court quoted, as a decisive case, D’Onofrio v. D’Onofrio, 144 N.J. Super. 200, 365 A.2d 27, aff'd 144 N.J. Super. 352, 365 A.2d 716 (App. Div. 1976):
The children, after the parents’ divorce or separation, belong to a different family unit than they did when the parents lived together. The new family unit consists only of the children and the custodial parent, and what is advantageous to that unit as a whole, to each of its members individually, and to the way they relate to each other and function together is obviously in the best interest of the children. It is in the context of what is best for that family unit that the precise nature and terms of visitation and changes in visitation by the noncustodial parent must be considered.
Id. Consequently, our court arrived at five factors to be considered in order to accommodate the compelling interests of all the family members:
(1) the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children; (2) the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the non-custodial parent; (3) whether the custodial parent is likely to comply with substitute visitation orders; (4) the integrity of the non-custodial parent’s motives in resisting the removal; and (5) whether, if removal is allowed, there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parent relationship with the non-custodial parent.
Id. at 134, 868 S.W.2d at 520; see also Hollandsworth v. Knyzewski, supra (Griffen, J., concurring) (emphasizing the necessity to apply the Staab factors in deciding relocation cases).
Our supreme court found the Staab factors to be irrelevant in a case where visitation between Fayetteville and Russell-ville was neither impossible nor impractical, where neither side objected to the time of travel necessary to implement visitation as being unduly burdensome, and where joint custody was at issue. Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002). The supreme court concluded that the Lewellyn case is “simply not a relocation case where the Staab factors should be applied.” Id. at 357, 93 S.W.3d at 688. Indeed, in the case now before us the question also arises whether the Staab analysis actually applies. Appellee withdrew his objection to appellant’s relocation. Thus, we do not have before us an actual relocation case. As such, we do not have to decide whether relocation ought to be granted. Upon reading the Staab factors, and their subsequent applications throughout Arkansas case law, it appears, however, that they apply to the issue whether relocation should be granted or not — and do not apply to disputes solely focusing on visitation.
Of the five Staab factors, only the fifth factor addresses visitation, and even then, only as one factor to be considered in deciding relocation itself. However, it appears feasible to accept the fifth factor of Staab as a general statement of policy, namely in that visitation in a relocation context should attempt to provide for a “realistic opportunity for visitation” for “an adequate basis for preserving and fostering the parent relationship with the non-custodial parent.” Thus, we recognize that it has been part of Arkansas’s jurisprudence and policy to consider the preservation and maintenance of a parent-child relationship between the child and the noncustodial parent.
In a recent case, we decided that the trial court did not clearly err in scheduling visitation between two parties located in Fayetteville and El Dorado, Arkansas. Haas v. Haas, 80 Ark. App. 408, 97 S.W.3d 424 (2003). In that case, the trial court ordered summer visitation with the noncustodial parent beginning one week after school was dismissed and ending ten days prior to school starting for the fall semester. The custodial parent, however, retained visitation during the first weekend of July. The trial court also allowed the noncustodial parent every spring break and alternate weekends. In conclusion, we stated that “while we might well have restructured visitation differently, particularly to prevent such long periods in the summer when [the minor] is away from his mother, we are not convinced that the trial court erred in this regard.” Id. at 412, 97 S.W.3d at 427.
In the case at bar Dalton presently plays baseball and thus, under the existing visitation order now on appeal, remains at appellant’s home until the beginning of July, whereas the minor in Haas was to spend even more time at the noncustodial parent’s household during the summer. Yet, in Haas we did not find ourselves in a position to disagree with the trial court’s decision. Furthermore, while it is true that the present visitation order provides for Dalton to spend virtually every holiday with appellee, each spring break, and one weekend each month in which there is no holiday or other school vacation, the order also provides that Dalton spends all remaining time at appellant’s household in Virginia. Even though appellee is to receive his son on all holidays and school breaks, except those summer weeks during which Dalton still plays baseball, appellee unarguably gets to spend significandy less time with Dalton than appellant- — whose choice it was to move to Virginia. Thus, there is no clear error.
In so holding, we are not unmindful of our stated policy, adopted from the New Jersey case of D’Onofrio, that the child now belongs to a new family unit and that we must determine visitation and changes of visitation in the context of what is best for the new family unit. Staab v. Hurst, supra. But we also must balance the needs of the noncustodial parent with that of the new family unit, especially if we, by analogy to a proper relocation case, consider the fifth Staab factor, according to which we always must consider the feasibility of maintaining visitation with the noncustodial, nonmoving parent so as to preserve the bond between noncustodial parent and child before relocation can be allowed. Even though the present case does not raise the issue of relocation per se, we find the reasoning behind the fifth Staab factor persuasive in the instant case as well. The need to preserve the relationship between the noncustodial parent and the child is not somehow less because the relocation itself occurred uncontested and is not now on appeal before us.
Furthermore, we also acknowledge that a visitation dispute never should disregard the best interest of the child. Haas v. Haas, supra. Appellant is correct when she worries about a young child frequently flying between Baltimore and Little Rock, but we are not convinced that such concerns outweigh the importance of fostering a good and working relationship between Dalton and appellee, his father.
Finally, we recognize that different versions of visitation could have been created, but the issue before us is whether the trial court clearly erred in establishing the specific visitation schedule now before us, not whether we could have, or would have, arrived at a different visitation schedule. See Haas v. Haas, supra. The issue before us is not whether we like the visitation schedule. We also remind the parties that the trial court’s order provides for an alternative visitation schedule in the event that appellant chooses to celebrate certain holidays, such as Thanksgiving and Christmas, in Arkansas — where Dalton’s grandparents, appellant’s parents, reside as well. According to that alternative visitation schedule, appellant can spend parts of those holidays with Dalton.
In light of the existing economic differences between the parties, we also find no clear error in the trial court’s determination that, on the whole, appellant should be responsible for the transportation cost of visitation, except in such cases where appellee’s specific family needs might require additional visitation not specifically ordered. After all, it was appellant who requested the relocation in the first place, and she does not appear to challenge the financial aspects of the order.
Affirmed.
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John Mauzy Pittman, Judge.
The appellant in this criminal case, age sixty-five, was charged with four counts of violation of a minor in the first degree, committed by engaging in sexual intercourse or deviate sexual activity with his step-granddaughter, T.M. Prior to trial, appellant moved to exclude the testimony of his forty-five-year-old daughter, Marla T., who testified that appellant also sexually violated her while she was a child living in appellant’s home thirty years ago. The trial court denied the motion, finding that the testimony came within the pedophile exception to Ark. R. Evid. 404(b), and that the probative value of the testimony outweighed the potential for unfair prejudice under Ark. R. Evid. 403. After a jury trial, appellant was found guilty and was sentenced to six years’ imprisonment. From that decision, comes this appeal.
For reversal, appellant contends that the trial court erred in admitting the testimony of Marla. We do not agree, and we affirm.
Rule 404(b) provides that, although evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Evidence of other sexual offenses is allowed under the “pedophile exception” to Rule 404(b) to show motive where the other sexual offenses involve a similar act of sexual abuse of children, and where the evidence shows a proclivity toward a specific act with a person or class of persons with whom the accused has had an “intimate relationship,” such as where the victim lives with the criminal defendant in the same home or where the offenses were committed in the criminal defendant’s home. Pickens v. State, 347 Ark. 904, 69 S.W.3d 10 (2002).
We think that the evidence in the case at bar was probative of both plan and motive. Marla testified that appellant began to sexually fondle her when she was in the fourth or fifth grade, while her siblings were asleep in their beds and her mother was working the night shift. By the time she was twelve or thirteen years old, appellant began having intercourse with her several times per week until she was fifteen. The first act of intercourse occurred when appellant suggested it would be good for her to know what it would be like when she was married. This, too, occurred at night after her mother had gone to work. Afterwards, appellant gave Marla special treatment and privileges, such as. staying up late and allowing her to go places with him, in order to create opportunities for him to spend time with her alone. During these times he would have sexual intercourse with her in various places, including their home, the car, at motels, in the laundromat, and outdoors. Appellant took photographs of her naked in many of these locations. Marla refused to continue having intercourse with appellant when she was fifteen years old and told her mother about the abuse, but her mother did not believe her.
Marla also testified that, although she has never again been close to appellant, she did live across the road from him and her mother. She learned that T.M.’s mother and stepfather had made arrangements for her mother and appellant to care for T.M. while they were out of town working, and noticed that appellant was increasingly involved with T.M.’s care to the exclusion of her mother, that appellant always wanted T.M. to accompany him to various places, and that T.M. was getting special privileges that her mother would not have allowed. Based on these observations and her own experiences with appellant, Marla called the Department of Human Services and reported her suspicions of abuse.
The testimony of T.M. described an experience remarkably similar to Marla’s. T.M. testified that she was now seventeen years old, and that appellant had volunteered to care for her and her siblings so they would not have to change schools while their parents worked out of town. Appellant would come to their home before they arrived home from school and stay all night, leaving when they left for school in the morning. Appellant was in charge of where the children went. On arriving home from school, her brother generally went to a friend’s house while T.M. stayed home with appellant. Sometimes appellant would allow her to do things or go places that her mother would not want her to do or go. Appellant first molested T.M. by rubbing her chest with suntan lotion during a camping trip at the river. Appellant then began giving her “back rubs” in her bed after her brother was asleep, first stroking the side of her chest but progressing to removing her bra and rubbing her breasts. Ultimately, appellant progressed to penetrating T.M. digitally and with his penis, telling her that she needed to have at least one sex partner before she got married so she would know what it was like. When appellant allowed T.M. permission to do something special, he told her that it was going to “cost her,” which she took to mean that he was going to do something sexual to her. Appellant also told her that he would enjoy taking pictures of her outdoors. Finally, she stated that the first time she told an adult about appellant’s behavior was after her Aunt Marla called the Department of Human Services and an officer of the State Police came to school to talk to her. At that time, T.M. was barely acquainted with Marla and did not know her last name.
In light of the evidence that appellant volunteered to care for T.M., we think that the similarity of the methods by which appellant gradually broke down the girls’ inhibitions (fondling escalating to intercourse for the stated “educational” purpose of preparing them for marriage), the offering of special privileges as an inducement, and the efforts he made to create situations where he could be alone with them, tend to show both that appellant had. the proclivity to sexually violate young girls entrusted to his care and that, with respect to T.M., he systematically planned to do so. We hold that the testimony of Marla was admissible both to show motive and plan under Rule 404(b).
Nor do we agree that the trial court erred in concluding that the probative value of the evidence outweighed the possibility of unfair prejudice. Appellant argues that the passage of thirty years between Marla’s abuse and that of the victim makes Marla’s testimony too remote to be used as evidence. This argument is similar to that advanced in Hernandez v. State, 331 Ark. 301, 962 S.W.2d 756 (1998), where the appellant urged the supreme court to establish parameters for the admission of evidence pursuant to the pedophile exception. The supreme court rejected this argument, stating that:
Arkansas R. Evid. 403 provides the necessary “parameters.” In response to an objection that evidence is unfairly prejudicial, the probative value of the evidence must be weighed against the danger of unfair prejudice. George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991). The standard of review is whether the trial court abused its discretion. Greene v. State, 317 Ark. 350, 878 S.W.2d 350 (1994).
Hernandez, 331 Ark. at 311, 962 S.W.2d at 761-62.
The Hernandez court held that the trial court did not err in concluding that the probative value of the evidence outweighed the danger of unfair prejudice because the evidence involved a similar crime against a child of an age similar to that of the victim, both of whom were in Hernandez’s care or household at the time that the incidents occurred. Id. Here, the testimony regarding the abuse of the witness was strikingly similar to that describing the abuse of the victim, see Taylor v. State, 334 Ark. 339, 974 S.W.2d 454 (1998), the victim and witness were of similar age at the time of the abuse, and both were in the care of the appellant when the abuse took place. We recognize that the passage of thirty years between the events recounted in the testimony of Marla and those for which appellant was convicted in the present case is a significant factor to be considered in determining whether the probative value of the testimony outweighs the danger of unfair prejudice. Nevertheless, in light of the evidence that her own experience thirty years earlier made it possible for Marla to correctly conclude, based on her observation of otherwise innocent behavior, that appellant was sexually abusing T.M., we cannot say that the trial court erred in holding that the probative value of Marla’s testimony outweighed the danger of unfair prejudice.
Affirmed.
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Olly Neal, Judge.
This inverse condemnation case is before us a second time, having previously been dismissed for lack of a final order. That deficiency has been remedied, and we now have jurisdiction to decide the case. Appellees Entergy, an electric utility, and West Tree Service, its contractor, cut trees on appellants’ land for the purpose of placing a power line. Appellants, who had not given permission for the cutting, filed suit seeking damages. The circuit court awarded them $1,200, plus $400 in costs. Appellants consider that award insufficient and bring this appeal. We affirm.
Appellants purchased Lots 6 and 7 on Northridge Drive in Faulkner County for $8,000 in 1989. The lots, which comprise 2.28 acres, are heavily wooded and run uphill from south to north. Appellants’ home is situated at the top of the hill, primarily on Lot 7.
To appellants’ west is Lot 5, owned by Samuel Miller. In July of 1996, Miller was building a house on Lot 5, and he contacted Entergy to request electrical service. Entergy sent out a crew from West Tree Service in August 1996 to cut trees in preparation for placement of the service line. On the morning of August 13, the appellants heard the sound of chainsaws. Upon investigating, they discovered that West was cutting trees on their Lot 6, which abuts Miller’s Lot 5. Appellants asked West to stop, which West did temporarily. Appellants contacted Entergy and were told to get a survey done to prove that the cut trees were on their property. They procured the survey, but West and Entergy continued their operations, cutting approximately forty-five trees on the southwestern part of Lot 6. The area of the cut measured approximately 16-feet wide by 127-feet long, according to appellant Connie DeBoer’s estimate.
Appellants filed suit against Miller, West, and Entergy, seeking damages for the wrongful cutting of trees and breach of a covenant, and seeking the abatement of a nuisance created by the placement of a utility pole halfway up the hill, which allegedly obstructed appellants’ view of a nearby lake. Miller was eventually dismissed from the case, and the breach of covenant and nuisance counts were resolved against appellants by way of summary judgment. All that remained for trial was the damages portion of the case against Entergy and West regarding the cut trees.
Prior to trial, Entergy filed a motion in limine to prohibit the appellants from introducing evidence of the replacement value of the cut trees and to prohibit them from introducing evidence that would support an award of double damages under Ark. Code Ann. § 15-32-301 (Repl. 2000), which provides that a person who “knowingly” cuts down trees owned by another shall be liable to the owner for double the value thereof. Entergy argued that appellants’ exclusive remedy was contained in the inverse condemnation statute, Ark. Code Ann. § 18-15-102 (1987), and that under that statute, appellants were entitled only to the fair market value of the property taken. The court agreed with Entergy and granted the motion, ruling that trial testimony regarding damages would be limited to the fair-market value of the property used by Entergy.
At trial, appellants proffered an appraisal by arborist Bill Long that assessed the replacement value of the cut trees at $12,655. However, the court relied on the measure of damages used by Entergy’s expert, Wayne Coates. Coates assessed the value of Lot 6 before the cutting as $24,750, and after the cutting as $23,550, a difference of $1,200. He also opined that, because the damaged area was “off to the side,” there was no further damage to the remainder of appellants’ property. Based on this testimony, the trial court awarded appellants $1,200, plus $400 in costs. Appellants now appeal that ruling.
Appellants argue that although Entergy was authorized, pursuant to the power of eminent domain, to appropriate private property for its use, its appropriation in this case was excessive and not necessary for delivering electrical power to Samuel Miller. They contend that, as a result, they should have been permitted to recover the replacement value of their trees. We disagree.
An electric utility may exercise the power of eminent domain by filing a condemnation petition in court, and, in that proceeding, damages for the taking are assessed. See Ark. Code Ann. § 18-15-503(b) and (c), and § 18-15~504(a) (Supp. 2001). However, if the utility takes an owner’s land but does not file an eminent domain proceeding, the owner may initiate his own inverse condemnation action. See Robinson v. City of Ashdown, 301 Ark. 226, 783 S.W.2d 53 (1990) (stating that inverse condemnation is a cause of action to recover the value of the property which has been taken in fact although not through eminent domain procedures.) Inverse condemnation actions against utilities are governed by Ark. Code Ann. § 18-15-102 (1987). Subsection (b) of that statute provides that the landowner’s measure of recovery shall be the same as that governing proceedings by corporations for the condemnation of property. In other words, the same measure of damages is used whether the proceeding is an eminent domain action filed by the utility or an inverse condemnation action filed by the landowner.
The measure of damages in a condemnation case depends on whether the land is taken by the sovereign or by another entity. When the sovereign exercises its right to take a portion of a tract of land, the proper measure of compensation is the difference in fair market value of the entire tract immediately before and after the taking. Property Owners Improvement Dist. v. Williford, 40 Ark. App. 172, 843 S.W.2d 862 (1992). When another entity such as a railroad, telephone company or, in this case, an electric company, exercises the right of eminent domain, just compensation is measured by the value of the portion of the land taken plus any damage to the remaining property. See id; see also Arkansas La. Gas Co. v. Howell, 244 Ark. 86, 423 S.W.2d 867 (1968); Arkansas La. Gas Co. v. James, 15 Ark. App. 184, 692 S.W.2d 761 (1985). Fault has nothing to do with eminent domain or inverse condemnation; it is the taking of property that is actionable. See Thompson v. City of Siloam Springs, 333 Ark. 351, 969 S.W.2d 639 (1998). Further, recovery under the inverse condemnation statute is exclusive. Missouri & N. Ark. RR. Co. v. Chapman, 150 Ark. 334, 234 S.W. 171 (1921). Additionally, the value of trees destroyed by a utility in constructing a right-of-way is not a separately compensable item of damage. See Cramer v. Arkansas Okla. Gas Corp., 316 Ark. 465, 872 S.W.2d 390 (1994); Arkansas La. Gas Co. v. Maxey, 242 Ark. 698, 415 S.W.2d 52 (1967).
In light of the above authorities, we conclude that appellants’ remedy for Entergy’s taking of their property was governed exclusively by the inverse condemnation statute, which permits them to recover only the value of the portion of the land taken plus any damage to remaining property; the statute does not permit them to recover the replacement value of their trees. Therefore, we affirm the trial court’s decision not to consider the replacement value of the trees in assessing appellants’ damages.
Appellants also argue that, even if they cannot recover the replacement value of their trees from Entergy, they should be able to do so from West Tree Service. In support of their argument, they cite City of Fort Smith v. Findlay, 48 Ark. App. 197, 893 S.W.2d 358 (1995). There, we recognized that a condemnor’s contractor might be liable for tort damages under some circumstances, but we also recognized that tort damages by an independent co'ntractor should be “distinguished from damages that inevitably or necessarily flow from the construction of an improvement in keeping with the design of the condemnor.” Id. at 202, 893 S.W.2d at 361. According to Findlay, if damages to land outside the easement inevitably flow from the condemnation, they are merely an additional appropriation of land, and such damages are embraced in the just-compensation concept. It is logical then that damages on the right-of-way itself are also embraced within the just-compensation concept. Thus, even in an action against West, appellants would be entitled only to the measure of damages under the eminent domain/inverse condemnation laws, i.e., the difference in the before and after values of the land taken.
Affirmed.
Gladwin and Robbins, JJ., agree.
We note that the trial judge did not, technically speaking, use the correct measure of damages in this case. He used the before and after value of the entire tract, as if the defendant were a sovereign, rather than the value of the portion of the land taken. However, this is not raised as an issue on appeal, so we do not address it. | [
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Andree Layton Roaf, Judge.
Appellant Detina Eaton was convicted by a jury of rape for performing an act of oral sex upon a nine-year-old boy and was sentenced to ten years’ imprisonment. On appeal, Eaton argues that, because her purpose in performing the act was to obtain drugs, the trial court erred in denying her motions for directed verdict where there was insufficient evidence presented by the State on the element of sexual gratification. We affirm.
At trial, the victim’s mother testified that her son, K.H., was visiting in the home of Audrey Williams on July 29, 2002, when he was nine years old. K.H. testified that a number of people were present at Williams’s house that day, including Maurice Green. At one point, Green told K.H. to go to Green’s bedroom. Green pushed K.H. into the bedroom and onto the bed. Green held K.H.’s hands and pulled down his pants. K.H. testified that Eaton then began to perform oral sex on him, which continued for approximately five minutes, until another male, Todd Monroe, came into the room and told Eaton to stop. According to K.H., Eaton then “started doing the same thing” to Anthony Adams, who was also present in the bedroom. K.H. testified that Green was in the hallway talking to another male while Eaton was performing oral sex on him and that after she finished, Green gave Eaton a plastic bag containing marijuana. K.H. stated that Green had told Eaton that if she did not perform oral sex on K.H., then he was not going to give her the marijuana, and that Green made her do it for the drugs.
On appeal, Eaton challenges the sufficiency of the evidence supporting her conviction for rape and argues that the State failed to prove the element of sexual gratification. When reviewing a challenge to the sufficiency of the evidence, the appellate court will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Rabb v. State, 72 Ark. App. 396, 39 S.W.3d 11 (2001). Substantial evidence, whether direct or circumstantial, is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another without resort to speculation or conjecture. Id.
According to Ark. Code Ann. § 5-14-103(a)(l)(C)(i) (Supp. 2003), a person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. “Deviate sexual activity” is defined “as any act of sexual gratification involving: the penetration, however slight, of the anus or mouth of one person by the penis of another person; or 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) (Supp. 2003). The testimony of a rape victim alone may constitute substantial evidence to support a conviction for rape. Rains v. State, 329 Ark. 607, 953 S.W.2d 48 (1997).
Eaton contends, as she did in her motions for directed verdict, that “sexual gratification” is a required element of rape under the definition of deviate sexual activity and that the State failed to prove this element. She contends that the sexual gratification referred to in the statute is that of the defendant, not the victim or another bystander. She asserts that the evidence in this case showed that she performed oral sex on K.H. for the purpose of obtaining drugs and not for the purpose of sexual gratification. Thus, she argues that the act was one of prostitution and that there was insufficient evidence to support her conviction for rape.
The issue of sexual gratification has been addressed many times by our supreme court. In Williams v. State, 298 Ark. 317, 766 S.W.2d 931 (1989), the court found sufficient evidence of sexual gratification where the defendant inserted his fingers into the victim’s vagina. Although the defendant argued that there was no evidence that he did so for sexual gratification, the court stated that “it may be assumed that the desire for sexual gratification was the plausible reason rather than out of revenge or out of anger as the petitioner suggests.” Id. at 321, 766 S.W.2d at 934. “The plain fact is that when persons, other than physicians or other persons for legitimate medical reasons, insert something in another person’s vagina or anus, it is not necessary that the State provide direct proof that the act was done for sexual gratification.” Id.; see also Original Commentary to Ark. Code Ann. § 5-14-101 (Repl. 1995) (stating that a physician or other person does not commit a deviate act by introducing a finger or other instrument into the specified orifices while examining or treating the person because the act is not motivated by the desire for sexual gratification).
In McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768 (1991), the court held that it may be assumed that the defendant touched the nine-year-old victim between the legs for sexual gratification and that it was not necessary that the State prove that he was so motivated. Using definitions from Webster’s Third International Dictionary, unabridged (1961), the court defined “sexual gratification” as, essentially, something that pleases the sexual organs or gratifies the libido. Id. at 182-83, 813 S.W.2d at 769. The court stated that, when construed in accordance with their reasonable and commonly accepted meaning, and in context with the specific acts described in section 5-14-101, “the words leave no doubt as to what behavior is prohibited under the statute.” Id.
In addition, in Farmer v. State, 341 Ark. 220, 15 S.W.3d 674 (2000), the court, noting that it had previously held that the phrase “sexual gratification” is to be construed in accordance with its reasonable and commonly accepted meaning, reiterated that it is not necessary for the State to provide direct proof in a rape prosecution based on deviate sexual activity that an act was done for sexual gratification if it can be assumed that the desire for sexual gratification is a plausible reason for the act. Thus, despite the victim’s testimony that she did not think the attack was sexual in nature or that the defendant’s intent was to sexually gratify himself, the court found sufficient evidence of sexual gratification where the defendant put his hand inside the victim’s vagina and squeezed her, stating that “he would fix it so that she could not be with anyone else.” Id. at 222-24, 15 S.W.3d at 676-77. The court stated that sexual gratification, like intent, is rarely capable of proof by direct evidence and must usually be inferred from the circumstances. Id.
Other states with similar statutory language have also addressed this issue. For example, in Mitchell v. State, 473 So. 2d 591 (Ct. App. Ala. 1985), where the statute defining sexual intercourse also contains the phrase “any act of sexual gratification,” the court held that the term “sexual gratification” is merely a definitional component of the statute and “is not an essential element which must be proved at trial, and even if such gratification was an essential element of the crime, it may be inferred by the jury from the act itself.” Id. at 595. The court stated that a close reading of their statute reveals that the legislature intended for the act itself to be condemned. Id.
Similarly, under section 5-14-101(1), our definition of deviate sexual activity states “any act of sexual gratification involving. . .” and then goes on to describe the specific acts that are proscribed, including the act at issue in this case, which is Eaton placing the victim’s penis in her mouth. As the State contends, this statute does not specify who, if anyone, must be sexually gratified by the act, and a plain reading of the statute suggests that the gratification could be that of the perpetrator, the victim, or even a bystander who suggested the act or observed it. Thus, even assuming, as Eaton argues, that she did not perform the deviate sexual act for the purpose of her own sexual gratification, the jury could have inferred that her act of oral sex upon K.H. was intended for his gratification. Although Eaton attempts to argue that the act could not have been for K.H.’s sexual gratification because there was no proof that he actually received gratification, there is no such requirement contained in the statute, which only refers to penetration, however slight, of one person’s mouth by the penis of another person. Also, the jury could have inferred that her act gratified her own libido and that of other persons who were present given the fact that she began to perform oral sex on Adams when she finished with K.H. Moreover, in this instance, the act itself is an “act of sexual gratification,” and Eaton’s reason for choosing to perform it is irrelevant.
Eaton also attempts to distinguish other cases, such as Farmer, supra, holding that sexual gratification was assumed to be the plausible reason for the deviate act, on the basis that those cases involved some sort of penetration of the victims by the perpetrator. However, the statute is not limited to penetration of the victim by the perpetrator, but expressly includes the act committed in this case. Also, our supreme court has assumed that sexual gratification was present in other cases that do not involve penetration of the victim. For- instance, in Rains v. State, supra, the court found that sexual gratification could be presumed where the defendant engaged in various sexual acts, including oral sex, upon his minor son, stepdaughter, and niece. See also Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995) (holding that factfinder could properly infer that defendant’s act of fondling stepdaughter was for purpose of sexual gratification); Holloway v. State, 312 Ark. 306, 849 S.W.2d 473 (1993) (finding substantial evidence that defendant touched children’s bottom and breasts for purposes of sexual gratification). Here, the only plausible reason for the act committed by Eaton is sexual gratification. Thus, the jury could have properly inferred that Eaton’s act was an “act of sexual gratification” under section 5-14-101(1), and there is substantial evidence to support her conviction for rape.
Affirmed.
Hart and Crabtree, JJ., agree. | [
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Andree Layton Roaf, Judge.
This case involves a petition to relocate and a counterpetition for change of custody. Susan Durham appeals, arguing that the trial court erred in granting the change of custody to Timothy Durham based on her request to relocate with the parties’ children to Texas, and in denying her motion to relocate. We agree that the trial court erred and reverse and remand.
Susan Durham and Timothy Durham were awarded joint legal custody of their two minor children in their divorce decree entered December 20, 2000. Susan was awarded primary physical custody, subject to Timothy’s liberal visitation rights, which included every other weekend and two evenings a week, and child support. The divorce decree also contained a provision that the minor children not be removed from the jurisdiction on a permanent basis without obtaining the permission of the court.
On January 5, 2001, approximately two weeks after the divorce decree was entered, Susan filed a motion to relocate with the children to Houston, Texas, where she could live with her mother, seek employment, and possibly attend night school to earn a teaching certificate. Timothy filed an answer and a motion for contempt, alleging that he had been denied phone visitations with the children. Susan responded by filing a counter motion for contempt, alleging that Timothy had an overnight guest of the opposite sex with the children present, failed to transport the children to their activities during his visitation, had been late on numerous occasions during visitation, had not allowed Susan to keep the children when a babysitter was necessary during visitation, was in arrears on child-support payments, and finally that both parties were having difficulties with the visitation schedule then set by the court.
After a hearing in May 2001, the trial court entered an order on July 24, 2001, denying the motion to remove the children from the jurisdiction, finding that since the entry of the decree, there had not been a change in circumstances that would justify a modification. The court further determined that Timothy was behind in child support and ordered him to pay the child-support payments in advance.
In January 2002, Susan filed a second motion for permission to relocate with the children to Texas. She also filed a motion for modification of visitation and for an increase in child support. Timothy filed a response and a counterclaim requesting a change of custody. After a hearing on May 30, 2002, the trial court denied Susan’s motion to relocate with the children. The court then determined that Timothy should be awarded custody of the children subject to Susan having the identical visitation that Timothy previously had been granted. The court also ordered Susan to pay Timothy’s counsel $1,250 in attorney’s fees. Susan appeals from this order.
In the case before us, the alleged difficulties with custody arose not from the alternating weekend visitation, holiday visitation, or summer visitation, but from the extra two evenings per week that Timothy was allowed to visit the children. Timothy testified that he had between eleven to eighteen meetings a month because of his employment with the Quapaw Council, Boy Scouts of America. These meetings were always held between Monday and Thursday nights. Susan accommodated Timothy’s work schedule for a time before concluding that she and the children needed more structure in the visitation schedule. Susan testified that she was very often unable to schedule overtime with her work and that her children were severely limited in the after-school activities they could participate in because of Timothy’s erratic work schedule. The trial court stated in its decision that “she lived with him. She knows that he has these meetings with his job. This isn’t anything that has changed.” However, although Timothy’s professional responsibilities may not have changed, Susan’s status as a stay-at-home mother had clearly changed to that of an employed single parent.
Susan first sought approval to relocate to Texas with the children shortly after the entry of the divorce decree. At that time, she was unemployed, and child support was her only means of income. Both Timothy’s and Susan’s family live in Texas, and Susan testified that she and the children would benefit from this extended family support if she relocated. The trial court denied the first request, based in part upon Susan’s not making an effort to find a job in Arkansas.
Since the first relocation hearing, Susan has found a job working for Arkansas Blue Cross and Blue Shield making $8.60 per hour. With the child support she receives, Susan testified that she brought home between $1800-$2000 per month, that her rent was $550 per month and her utilities $400 a month, which left around $425 monthly disposable income to care for the children. During this time, Susan’s mother came from Texas and lived with her to assist with child care. She also allowed Susan the use of her vehicle to travel to and from work. At the time of the second hearing, Susan’s mother needed to return to Texas to care for Susan’s father, who had recently had a heart attack, and to maintain the family business. Without her mother to assist her, Susan testified that she would have to pay for child care and buy a vehicle. Susan testified that daycare for the youngest child and after-school care for the other minor children would total about $580 a month. Neither Timothy nor Susan have family in Arkansas; both families reside within minutes of one another in Texas. Susan testified that when it became evident that her mother needed to return to Texas, she again sought permission to move. Susan testified that her mother had offered to let her and the children five in the family home rent free, and she stated that her mother had offered to take care of the children while Susan pursued a teaching degree at night and worked during the day. Susan’s mother testified that Susan had two jobs available to her in Texas, one with the family business and the other with a company where her sister is employed.
Timothy testified that he opposed the relocation and that Susan’s attempts to relocate had been stressful to him. He also testified that Susan was uncooperative in working out the weekday visitations. However, Timothy also testified that both sets of grandparents resided in the area to which Susan sought to relocate and agreed that extended family was important. He further testified that he could not afford to exercise his weekend visitation if she did relocate because of the distance to Houston and that he would consider looking for a job in the Houston area if Susan were allowed to relocate. Timothy also admitted to using a babysitter periodically, when the divorce decree gave Susan first opportunity to care for the children if the occasion arose.
In its ruling, the court stated:
These parties agreed to their custody arrangement, and in the last 18 months they’ve been in litigation for a year of it. The original motion was filed, what, about two weeks after the divorce was final, but we didn’t come to a hearing until May and the order wasn’t entered until July. So, then, we have another six-month reprieve and she again files. I could have played the tape from the hearing last year and it would have been almost identical to the testimony she gave today. She’s going to go work for her family. Again, second time, her mother didn’t know about the job or what she was going to earn, exactly what happened January a year ago. She’s made no investigation — or I’ll put it this way. She’s made no application for any type of education down in that area. It’s just something that she’s talked to somebody about; it is available. It may be available to her; it may not be available to her. We don’t know because she hasn’t applied.
For six months, maybe longer, she worked at a temp agency, not looking for full time employment. She’s worked at Blue Cross for three months.
I mean, this is going to be just a constant going on, her attempt to go back to Texas, and I don’t want to attribute a lot of motivation to it. But it is clear to me that she is thwarting his relationship with these children. If it’s not by the move, it’s by putting out a calendar — I mean, she lived with him. She knows that he has these meetings with his job. This isn’t anything that has changed. It didn’t change from the time that the decree was entered. He has one night a week that he could have consistent visitation, which is Monday, but she didn’t like that because then she won’t get to see the children three nights in a row twice a month, completely disregarding that if she moves to Houston how many nights a month he won’t get to see his children.
She is not working with this custody agreement that she agreed to. Joint legal is not working. It’s not working because she’s not going to let it work, and I’m going to change custody to the father and he will be the sole custodian and, hopefully, I can get everybody out of litigation for a little bit of time so that some of this can settle down and the parties can — I think they will work together better when apparently there’s not this confusion about what joint legal custody means. If she wants to go — if she wants to move to Texas, obviously, she can move to Texas. If she wants to go back to school here, he said he will work with her. I’ll give her the same visitation that he had. I’m just going to — I mean, the visitation schedule will stay exactly the way it is except that she’ll have the visitation he had, which is two nights a week. They’re going to have to resolve what those two nights a week are. She clearly won’t be able to get the children after school if she’s working until-4:30 or five. If she does go to school at night and they can work out a nighttime visitation, to where when he’s got his meetings and try to arrange his meetings around when she would be going to school, it’s what they should have been doing for the last 18 months. But, you know, it’s been this concerted effort to get to Houston, and it didn’t matter what was going on here.
This is not one of those cases to where she has one of those wonderful education opportunities that started off in the Staab v. Hurst; that is, you know, she’d look for something else, she couldn’t find it, it was a betterment. It’s “this might be available down there. I might be able to do a little bit better if I went down there.”
The trial court did not articulate why it would be in the best interests of the children to reside with Timothy. The court simply switched the custodial arrangement between the parties and instructed them to resolve the dispute over evening visitations on their own, despite testimony that Timothy had a job which requires a substantial amount of time on evenings and weekends.
On appeal, Susan first argues that the trial court erred in changing custody of the minor children to Timothy based upon her request to relocate. Susan also argues that the trial court erred in denying her request to relocate. Susan contends that the trial court did not clearly address the factors set forth in Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994), pertaining to relocation requests, and asks that this Court either reverse or remand for reconsideration of her motion pursuant to Staab. Timothy argues that under the rule stated in Hickmon v. Hickmon, 70 Ark. App. 438, 19 S.W.3d 624 (2000), Susan’s failure at trial to request specific findings under Staab, supra, constitutes a waiver of those issues on appeal. He further contends that as a result of Susan’s waiver, the only review available to her is a de novo review in which this Court will determine if the trial court’s ruling was clearly erroneous.
In child-custody cases, we review the evidence de novo, but we do not reverse the findings of the court unless it is shown that they are clearly contrary to the preponderance of the evidence. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). We also give special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child-custody cases. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). We have often stated that we know of no cases in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as those involving children. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 177 (1986). A finding is clearly against the preponderance of the evidence, when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999). In custody cases, the primary consideration is the welfare and best interests of the child involved, while other considerations are merely secondary. Drewry v. Drewry, 3 Ark. App. 97, 622 S.W.2d 206 (1981). See Ark. Code Ann. § 9-13-101 (a) (Supp. 1999).
Custody awards are not made or changed to gratify the desires of either parent, or to reward or punish either of them. Watts v. Watts, supra. In a similar case, Carter v. Carter, 19 Ark. App. 242, 719 S.W.2d 704 (1986), this court found that there was no evidence to support a finding that the appellant was intentionally trying to prevent the child from seeing his father. Likewise, in this case there was no evidence that Susan attempted to move without permission of the court or that she intentionally denied or frustrated Timothy’s visitation. We agree that the trial court’s decision to change custody under these circumstances was erroneous.
With regard to the trial court’s denial of Susan’s request to relocate, we note that the trial court did not have the benefit of the supreme court’s decision in Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003). In reversing and remanding the trial court’s denial of Ms. Hollandsworth’s request to relocate out of state with the parties’ two children, and grant of custody to Mr. Knysewski, the court overturned the holding of Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994), and announced a presumption in favor of relocation for custodial parents with primary custody, and factors to be considered by the trial court in relocation requests. The court stated:
Historically, this court has recognized the right of the custodial parent to relocate and to relocate with his or her children, and we adhere to that determination in this case. Today, we hold that relocation alone is not a material change in circumstances. We pronounce a presumption in favor of relocation for custodial parents with primary custody. The noncustodial parent should have the burden to rebut the relocation presumption. The custodial parent no longer has the obligation to prove a real advantage to herself or himself and to the children in relocating.
The polestar in making a relocation determination is the best interest of the child and the court should take into consideration the following matters: (1) the reason for the relocation; (2) the educational, health, and leisure opportunities available in the location in which the custodial parent and children will relocate; (3) visitation and communication schedule for the noncustodial parent; (4) the effect of the move on the extended family relationships in the location in which the custodial parent and children will relocate, as well as Arkansas; and, (5) preference of the child, including the age, maturity, and the reasons given by the child as to his or her preference.
In so holding, the supreme court did not indicate that its pronouncement should have only prospective application. However, since we have concluded that this case must be reversed and remanded, we direct the trial court to reconsider Susan’s relocation request in light of the presumption in favor of relocation and the new factors listed in Hollandsworth.
Reversed and remanded.
Pittman and Neal, JJ., agree.
Susan has a child from a previous marriage. | [
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John F. Stroud, Jr., Chief Justice.
The sole issue f in this case is whether the trial court erred in denying appellant’s motion to dismiss the case filed against it by appellee. The basis of the motion to dismiss was a forum-selection clause in the parties’ contract requiring them to litigate disputes in California. This is a question of law; therefore, on appellate review of such a case, we simply determine whether appellant was entitled to judgment as a matter of law. Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996). We hold that the trial judge erred as a matter of law in not dismissing the case based upon the forum-selection clause; therefore, we reverse and dismiss.
In June 2000, appellee, USA Truck, Inc., entered into an agreement (“Agreement”) for the purchase of transportation software licensed by appellant, BAAN, U.S.A., Inc. After using appellant’s software and customer support service for approximately seven months, appellee, who had not paid appellant any license or support fees, repudiated the Agreement and returned one disk of software to appellant. On July 20, 2001, appellee filed a complaint for declaratory judgment in the Circuit Court of Crawford County, Arkansas, alleging that it was unable to use appellant’s software for the purposes intended, and that it had rescinded the Agreement by returning the software to appellant. Appellee also alleged that the statements and inducements made to appellee by appellant to induce it to enter into the Agreement were erroneous and constructively fraudulent, including the choice-of-law and choice-of forum provisions.
Appellant filed a counterclaim for breach of contract , as well as a motion to dismiss appellee’s complaint, alleging that the Crawford County Circuit Court lacked jurisdiction based upon the forum-selection clause in the Agreement that provided for exclusive jurisdiction to be vested in the courts of California. This motion was denied by the trial court. Appellant renewed its jurisdictional objection prior to trial on May 28, 2002, at the close of appellee’s case, and again at the close of all the evidence; all of these motions were denied. The case was submitted to the jury, which found in appellant’s favor on its counterclaim and awarded appellant $45,000. After trial, appellant moved for a judgment notwithstanding the verdict on the basis that the jury found the Agreement to be valid and enforceable and therefore the forum-selection clause should be enforced and the case should be dismissed; the trial court denied the motion. Appellant now brings this appeal.
The Agreement contained the following provision:
13.9 Applicable Law. This Agreement shall be interpreted and construed in accordance with the laws of the State of California and the United States of America, without regard to conflict of law principles. All disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of any federal or state court or courts sitting in San Jose, California, which courts are empowered to try the dispute, and the parties hereby agree to submit to the personal and exclusive jurisdiction and venue of these courts. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this agreement.
In Nelms v. Morgan Portable Bldg. Corp., 305 Ark. 284, 289, 808 S.W.2d 314, 316-17 (1991), the supreme court held:
[CJhoice of forum clauses in contracts have generally been held binding, unless it can be shown that the enforcement of the forum selection clause would be unreasonable and unfair. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972). The modern trend among Courts is to respect the enforceability of contracts containing clauses limiting judicial jurisdiction, if there is nothing unfair or unreasonable about them. . . .
Traditionally, we have adhered to the view that an individual . . . who subjects himself to the personal jurisdiction of a Court by express agreement shall be bound by that contract, if the agreement can be determined to be fair and reasonable. SD Leasing, Inc. v. Al Spain & Assoc., Inc., 277 Ark. 178, 640 S.W.2d 451 (1982).
Any decision whether or not to exercise judicial jurisdiction over a transaction must also address the due process requirements embodied in International Shoe Co. v. Washington, 326 U.S. 310 (1945). Under International Shoe, supra, and its progeny the well recognized test is whether such “minimum contacts” exist between the parties, the contract and the [forum selected] so that maintenance of a suit in [the forum selected] will not offend “traditional notions of fair play and substantial justice.” It has been firmly established that 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. See McGee v. International Life Ins. Co., 355 U.S. 220 (1957).
A forum clause should control absent a strong showing that it should be set aside. Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974) (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972)).
In the present case, both appellant and appellee are Delaware corporations, and this Agreement was a commercial transaction. Prior to signing the Agreement, both appellee’s treasurer and Dwain Key, appellee’s Vice-President of Logistics, reviewed the contract, and appellee negotiated with appellant the provisions of the Agreement regarding the price of the software and when support services were to be provided. There was no objection to the choice of California court jurisdiction prior to the execution of the Agreement, which was signed by Key directly under the forum-selection clause. See National School Reporting Servs., Inc. v. National Schools of CA., L.P., 924 F. Supp. 21 (S.D.N.Y. 1996).
In SD Leasing, Inc. v. Al Spain & Assoc., Inc., supra, our supreme court held a forum-selection clause electing Arkansas jurisdiction to be valid. In that case, the appellee, a Florida corporation, defaulted on a lease agreement between it and the appellant, an Arkansas corporation. The negotiations for the lease took place in Florida, appellee signed the lease in Florida and mailed it to the appellant in Arkansas. The appellant accepted the lease, and the appellee mailed payments and memos to appellant in Arkansas. The lease also specifically provided that the lease was to be governed by and construed under Arkansas law. The supreme court stated that while that fact did not in and of itself confer personal jurisdiction on Arkansas courts, it did “provide another contact with this state which goes to satisfy the ‘minimum contacts’ requirement of International Shoe, supra.” SD Leasing, 277 Ark. at 181, 640 S.W.2d at 452. The supreme court further held that in addition to the above-mentioned substantial contacts with the State of Arkansas, the appellee had subjected himself to the personal jurisdiction of the Arkansas courts by expressly agreeing that in the event of a default he would consent to and be subject to the jurisdiction of the Arkansas courts.
Relevant factors for finding minimum contacts include prior negotiations, contemplated future consequences, and a contract’s choice-of-law provisions. Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). In the present case, the initial contact regarding the software was made in California at a trade show, where Dwain Key first received literature about the transportation software. Negotiations, including the price of the software and the support to be provided, were entered into prior to the execution of the Agreement, and there was no objection on the part of the appellee to the forum-selection clause. After the Agreement was signed, one of appellant’s consultants, Daniel Araujo, who was a resident of California, traveled to Arkansas and consulted with appellee regarding the transportation software. Furthermore, it is clear that appellee believed that appellant’s principal place of business was in California, as evidenced by its Complaint for Declaratory Judgment, until such statement was denied by appellant. Nevertheless, appellant has a registered agent for service in California, which was where appellee served process on appellant in its declaratory judgment action. And most importantly, appellee freely and willingly agreed to submit itself to the jurisdiction of the California courts in the Agreement. Appellee argues that there were no contacts with the State of California. Admittedly, there were more contacts with the State of Georgia, where appellant’s principal place of business was located, but that is not determinative of the issue here. The issue in this case is whether there were sufficient contacts and connections with California to permit enforcement of a freely negotiated forum-selection clause. We find that the above-enumerated contacts and connections are sufficient for such enforcement under Nelms, supra.
Appellee claims that enforcing the forum-selection clause would oust Arkansas courts of jurisdiction. However, this argument was discussed in M/S Bremen, 407 U.S. at 12, and the Supreme Court held that such an argument was
hardly more than a vestigial legal fiction. It appears to rest at core on historical judicial resistance to any attempt to reduce the power and business of a particular court and has little place in an era when all courts are overloaded and when businesses once essentially local now operate in world markets. It reflects something of a provincial attitude regarding the fairness of other tribunals. . . . The threshold question is whether that court should have exercised its jurisdiction to do more than give effect to the legitimate expectations of the parties, manifested in their freely negotiated agreement, by specifically enforcing the forum clause.
Appellee also argues that it had rescinded the contract with appellant as a matter of law, and therefore the declaratory action filed by it in the Crawford County Circuit Court did not violate the forum-selection clause because the action did not arise out of the Agreement. In Douglass v. Nationwide Mutual Insurance Co., 323 Ark. 105, 114, 913 S.W.2d 277, 282 (1996) (citations omitted), our supreme court discussed the theory of rescission:
In Arkansas, rescission of a contract at law is accomplished by the rescinding party’s tendering the benefits received to the contracting party, and the courts have nothing to do with the repudiated transaction. But one who desires to rescind a contract on grounds of fraud or deceit must do so as soon as that person discovers the truth. We stated in Herrick that the rescinding party must announce his purpose at once and act with reasonable diligence so that the parties may be restored to their original position as nearly as possible.
Hence, rescission of a contract at law occasioned by fraud may be accomplished without court action but by a prompt restoration of benefits to the contracting party and by a clear statement that rescission of the agreement is what is intended. The contracting party then had the option of suing for breach of contract.
Appellee asserts that it had rescinded the contract as a matter of law and that the declaratory judgment action did not pertain to the Agreement because the Agreement no longer existed. However, appellee had not rescinded the contract as a matter of law and without court action because it did not return all of the benefits it received under the contract as required by Douglass-, specifically, it did not pay for the appellant’s hours of consulting prior to appellee unilaterally rescinding the contract, and it did not return all of the computer disks, as admitted by Dwain Key in his testimony.
Furthermore, the forum-selection clause provided, “Ail disputes arising out of this Agreement” were to be litigated in California. Although appellee contends that its action for declaratory judgment is not subject to this clause, the clear fact is that if not for the Agreement between the parties, such an action would not have been filed. We cannot say that the declaratory judgment action was not a result of a dispute arising out of the Agreement.
Appellee further contends that appellant was inconsistent in arguing that exclusive jurisdiction was in California while requesting and receiving attorney’s fees after it prevailed on its counterclaim in Arkansas when attorney’s fees would not be allowed in a California court. We find no such inconsistency. The allowance of attorney’s fees is penal in nature, and is a procedural matter governed by the laws of the State of Arkansas. USAA Life Ins. Co. v. Boyce, 294 Ark. 575, 745 S.W.2d 136 (1988). Appellant was forced to litigate in Arkansas and prevailed on its counterclaim for breach of contract against appellee; therefore, it was entitled by Arkansas law to attorney’s fees. Ark. Code Ann. § 16-22-308 (Repl. 1999).
We hold that the trial judge erred as a matter of law in denying appellant’s request to enforce the forum-selection clause.
Reversed and dismissed.
Robbins and Crabtree, JJ., agree.
In Arkansas Game & Fish Com’m v. Lindsey, 292 Ark. 314, 730 S.W.2d 474 (1987), the Arkansas Supreme Court held that the assertion of a compulsory counterclaim does not constitute a waiver of objection to venue because of the non-voluntary character of the compulsory counterclaim. Appellant’s counterclaim here was a compulsory counterclaim.
We are cognizant of the fact that appellant did prevail on its counterclaim after the trial court denied its motion to dismiss for lack of jurisdiction. A party that prevails on a certain issue at trial cannot later raise the issue on appeal. See, e.g., Garrigus v. State, 321 Ark. 222, 901 S.W.2d 12 (1995). However, in this case, the issue appellant raises on appeal, that the trial court erred in not enforcing the forum-selection clause in the parties’ contract, was decided adversely to it by the trial court. | [
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Robert J. Gladwin, Judge.
Appellant Curtis Keith Holt pled nolo contendere to the charge of sexual misconduct and received a suspended imposition of sentence. Eleven months later, he fileda motion in arrest of judgment. It is from the trial court’s order denying his motion that appellant brings this appeal. We affirm.
On October 2, 2001, the State charged appellant with attempted sexual solicitation of a minor. The information alleged that the criminal conduct had occurred from October 1, 2000, through April 27, 2001. On October 3, 2001, the Sebastian County Circuit Court entered a judgment showing that appellant had pled nolo contendere to an amended charge of sexual misconduct. The court suspended imposition of sentence for one year subject to appellant’s paying a $500 fine; registering as a sexual offender with the Sexual Offenders Registration Program; obtain-, ing counseling; and other terms and conditions as set forth by the court.
On April 3, 2002, the State filed a petition to revoke appellant’s suspended sentence based on appellant’s noncompliance with the condition that he obtain counseling. The matter was continued for some time, and on September 30, 2002, appellant filed a motion in arrest of the October 3, 2001 judgment. In support of this motion, appellant argued that because Ark. Code Ann. § 5-14-107 (Repl. 1997), the statute defining sexual misconduct as a criminal offense, had been repealed before he entered his plea of nolo contendere, the judgment on that plea should be set aside.
The State subsequently moved to withdraw the petition to revoke because, during the interim, appellant had completed the court-ordered counseling. On January 8, 2003, the court granted the State’s motion to withdraw and denied appellant’s motion in arrest of judgment. The court denied the motion on the basis that appellant had not timely filed a petition for post-conviction relief under Ark. R. Crim. P. 37 to challenge an illegal sentence. The court further stated that the motion would be denied even if it had been timely filed because the court would simply substitute the new offense of sexual assault in the fourth degree, defined at Ark. Code Ann. § 5-14-127 (Repl. 2003), for the offense of sexual misconduct, finding that the elements of the two were “basically the same.” However, because the court found the motion to be untimely, it never entered a substituted judgment.
A motion in arrest ofjudgment is defined at Ark. Code Ann. § 16-90-101(a) (1987), as an application on the part of the defendant that no judgment be rendered upon a verdict against him, or on a plea of guilty. The only ground upon which a judgment shall be arrested is that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court. Ark. Code Ann. § 16-90-101 (c).
As the basis for his motion in arrest of judgment, appellant argued that the judgment entered against him was for a charge that did not constitute an offense because, the statute defining sexual misconduct as an offense had been repealed at the time of his plea. Appellant cannot prevail on this argument because the statute in effect at the time the offense is committed is the proper statute under which to proceed; it is irrelevant what statute was or was not in effect at the time of a plea or entry of judgment.
The effect of the repeal of a statute is set out at Ark. Code Ann. § 1-2-120 (Repl. 1997):
(a) When a statute is repealed and the repealing statute is afterwards repealed, the first statute shall not thereby be revived unless by express words.
(b) When any criminal or penal statute is repealed, all offenses committed or forfeitures accrued under it while it was in force shall be punished or enforced as if it were in force, notwithstanding the repeal, unless otherwise expressly provided in the repealing statute.
(c) No action, plea, prosecution, or proceeding, civil or criminal, pending at the time of any statutory provision is repealed shall be affected by the repeal but shall proceed in all respects as if the statutory provision had not been repealed.
In addition to the above, Ark. Code Ann. § 5-1-103(e) (Repl. 1996) provides:
When all or part of a statute defining a criminal offense is amended or repealed, the statute or part thereof so amended or repealed shall remain in force for the purpose of authorizing the prosecution, conviction, and punishment of a person committing an offense under the statute or part thereof prior to the effective date of the amending or repealing act.
In section nine of Act 1738 of 2001, the General Assembly revised portions of the statutes defining sexual offenses. Act 1738 did not contain an emergency clause. According to an opinion issued by the Attorney General’s office, acts passed during the 2001 legislative session without emergency clauses became effective on .August 13, 2001. See Op. A.G. 2001-138.
The information filed by the State charged appellant with criminal conduct that occurred from October 1, 2000, through April 27, 2001. The statute defining sexual misconduct, Ark. Code Ann. § 5-14-107, was clearly in effect during this time frame. Under the provisions of Ark. Code Ann. § 1-2-120 and § 5-l-103(e), the sexual misconduct statute remained in effect for the purpose of prosecuting, convicting, and punishing all offenses committed prior to its repeal.
Appellant’s reliance on Cousins v. State, 82 Ark. App. 84, 112 S.W.3d 373 (2003), is misplaced. In Cousins, the defendant was charged with having committed first-degree sexual abuse on September 13, 2001, and was found guilty by a jury. When the parties appeared for sentencing, the defendant moved to vacate the jury verdict on the grounds that the statute he had been convicted of violating was not in force at the time he was alleged to have committed the acts constituting the offense. The statute defining first-degree sexual abuse, Ark. Code Ann. § 5-14-108 (Repl. 1997), was repealed by Act 1738 of 2001, which became effective on August 13, 2001. The trial court denied the defendant’s motion, stating that the newly-enacted offense of second-degree sexual assault criminalized the identical conduct, and entered a judgment stating that the defendant had been convicted of second-degree sexual assault.
Noting that the language of the two statutes clearly differed, in that sexual abuse in the first degree could have been committed by touching the buttocks or sex organs, while a conviction of sexual assault in the second degree required touching of the sex organs, we agreed that the jury verdict should have been vacated. We held that, despite the trial court’s entry of a judgment of conviction for second-degree sexual assault, it was clear that the defendant was tried for and found guilty of having committed first-degree sexual abuse after the statute proscribing that offense was repealed, and that this was error.
In Cousins, the criminal conduct occurred after the statute defining it as an offense had been repealed. In the case at bar, the criminal conduct occurred while the statute defining it as an offense was still in effect.
Two recent supreme court cases, though not directly on point, indicate that the time the offenses are committed determines which law applies to the situation. In Smith v. State, 354 Ark. 226, 118 S.W.3d 542 (2003), the defendant was convicted of twenty counts of violation of a minor in the first degree as defined in Ark. Code Ann. § 5-14-120 (Repl. 1997). The court observed in a footnote that although the General Assembly repealed Ark. Code Ann. § 5-4-120 in the 2001 legislative session, the repealing act became effective August 13, 2001, and did not apply because the defendant committed the offenses at issue before that date.
In Gates v. State, 353 Ark. 333, 107 S.W.3d 868 (2003), the court noted that Act 1569 of 1999, dealing with a trial court’s subject-matter jurisdiction to modify or amend an original sentence once it was put into execution, did not apply retroactively to offenses committed prior to April 15, 1999, the effective date of the act. The court stated that in order for the act to apply to the facts in Gates, the act must have been in effect at the time the original crime was committed.
Based upon our statutory provisions regarding the effect of a repealed statute, the language found in the two supreme court cases cited above, and our decision in Cousins, we hold that, in deciding whether a defendant’s conduct constitutes a criminal offense as defined by our statutes, the determinative date is the time period during which the criminal conduct occurred. Because we hold that appellant’s motion in arrest of judgment was properly denied, we need not reach appellant’s arguments regarding the timeliness of the motion or the propriety of a substituted judgment. We affirm the ruling of a trial court if it reached the right result, even though it may be for a different reason. Medlock v. State, 79 Ark. App. 447, 89 S.W.3d 357 (2002).
Affirmed.
Stroud, C.J., and Hart, J., agree. | [
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John F. Stroud, Jr.,
Chief Judge. This is a substituted opinion upon grant of appellant’s motion for rehearing. In an unpublished opinion, Russell v. State, CACR03-402 (January 28, 2004), this case was dismissed on appeal for failure to strictly adhere to Rule 24.3 of the Arkansas Rules of Criminal Procedure, which sets forth the requirements for filing a conditional plea of guilty. Specifically, this court held that there was no indication that the trial court had approved the conditional plea. Furthermore, we also held that the judgment and commitment order did not indicate that the plea was conditional; it only indicated that appellant had “voluntarily, intelligently, and knowingly entered a negotiated plea of guilty.”
In his petition for rehearing, appellant’s attorney referred to a document entitled “Order of Probation or Suspending Imposition of Sentence, or Judgment and Commitment.” We thereby learned for the first time of the existence of this document, because although it was included in the record, it was not abstracted. The last page of this document, which was attached to the Petition for Rehearing, was entitled, “Special Conditions,” under which was made the following notation: “Defendant’s plea is conditioned on the results of an appeal of the court’s decision denying defendant’s Motion to Suppress Evidence, dated July 8, 2002.” This page is signed by the trial judge. Although this document was not attached to the other judgment and commitment order and was filed as a separate document, the filemark shows that both documents were filed the same day, September 5, 2002, at the same time, 11 a.m.
Upon reconsideration on grant of rehearing, we hold that we are able to go to the record to look at a document that was not abstracted in order to determine if we have jurisdiction to hear the appeal. The record on appeal is limited to that which is abstracted; although the appellate courts will not examine the transcript of a trial to reverse a trial court, they may do so to affirm. Bridges v. State, 327 Ark. 392, 938 S.W.2d 561 (1997). In this case, we hold that reviewing the record to determine if jurisdiction is conferred upon this court to hear this case is affirming the trial court’s preservation of appellant’s right to appeal by entering a conditional plea of guilty. We hold that the issue in this case is analogous to the one we addressed in McCormick v. State, 74 Ark. App. 349, 48 S.W.3d 549 (2001) (substituted opinion on grant of rehearing), in which we held that the prosecutor’s assent to the conditional plea was manifested by his presence in the courtroom and his acquiescence to the entry of the negotiated plea agreement.
Before we can determine that we have jurisdiction to hear this case, we must also address one of the issues presented in Barnett v. State, 336 Ark. 165, 984 S.W.2d 444 (1999), in which our supreme court held that it was “significant” that the judgment and commitment orders made no reference to the appellant’s guilty plea being a conditional plea, that the orders indicated that the appellant had “voluntarily, intelligently, and knowingly entered a negotiated plea of guilty,” and that those orders were inconsistent with an assertion that such a plea was conditional.
In the present case, the judgment and commitment order found in the addendum only indicates that Russell “voluntarily, intelligently, and knowingly entered a negotiated plea of guilty,” which would appear to be contrary to Barnett. However, that judgment and commitment order found in the addendum and the unabstracted document signed by the trial judge entitled “Order of Probation or Suspending Imposition of Sentence, or Judgment and Commitment,” which were filed together on the same date and at the same time, when read together, demonstrate that the trial court did indeed approve of the entry of the conditional plea. Therefore, on rehearing we hold that jurisdiction has been established in this court to hear the merits of this appeal.
In light of the determination that we have jurisdiction to hear this case on its merits, we now turn to the facts of the case. Appellant, Bobby Russell, entered a conditional plea of guilty pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure to the offense of criminal attempt to manufacture a controlled substance, methamphetamine. His sole issue on appeal is that the trial court erred in denying his motion to suppress evidence found in what he contends was an illegal search.
When reviewing a trial court’s denial of a motion to suppress, the appellate court conducts “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.” Saulsberry v. State, 81 Ark. App. 419, 423, 102 S.W.3d 907, 910 (2003) (citing Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003)).
In the present case, Robb Rounsavall of the Mississippi County Sheriffs Department testified at the suppression hearing that he received information on December 19, 2001, that Scott Russell had a tank of anhydrous ammonia hidden in a ditch behind his residence and his brother Bobby’s trailer. When he acquired the information, Rounsavall and Deputy Bobby Ephlin went out to the area to search it with a four-wheeler. Rounsavall said that the residences were at the end of a paved, dead-end county road in a rural area of the county. He said that the road turned to dirt past the residences and that he and Deputy Ephlin drove past the residences to a field road, where Deputy Ephlin left on the four-wheeler to search the field.
Rounsavall said that he saw Bobby and his wife come out of the trailer and that his wife left. He said that he had known Bobby for eight or nine years; that Bobby had been employed by the sheriff s office for a couple of years previously; that Bobby was just standing in the yard; and that he just pulled the truck up in front of the trailer on the road and started talking to him. He told Bobby that they had information about Scott having a tank of anhydrous ammonia hidden in the ditch and that Deputy Ephlin was on the four-wheeler looking in the ditch. Rounsavall testified that he and Bobby were standing outside the truck talking when Scott, who was sweating, came out from behind the trailer, which surprised him. Rounsavall asked Scott what he was doing; Scott told him that he was “working on some things.” When asked what kind of things, Scott did not have an answer. Rounsavall said that he was suspicious and asked Scott if he would show him what he was working on, to which Scott responded, “Please don’t arrest me.”
Rounsavall said that he had walked to the corner of the trailer, about three to five steps, and could see down the side of the trailer. He said that from that vantage point, he could see a red Liquid Fire bottle standing upright in front of the shed with a plastic tube coming out of the top of the bottle. He said that this was observable from the county road. He said that a plastic container could also be seen through the doorway of the shed that contained a clear liquid with a bluish tint, and he also saw a box of salt and another Liquid Fire bottle. At that time Rounsavall said that he thought he was seeing part of a methamphetamine lab, and he asked Scott if he had a meth lab in the shed, to which Scott replied, “Please don’t arrest me, it’s Christmas.” Rounsavall told Bobby that there were meth lab components on his back porch and in the shed, and Bobby told him that he knew nothing about any of it. Prior to receiving written consent to search, Deputy Ephlin returned on the four-wheeler and informed Rounsavall that he observed a large plastic container containing a liquid substance on the bow of a boat behind the residence, but Rounsavall did not know how close Ephlin had come to the house.
Rounsavall testified that he then received written consent from both Bobby and Scott before he walked to the shed, where he found the components of a meth lab, including the tank of anhydrous ammonia. He said that it took maybe ten minutes before the consent-to-search form was signed; he did not remember if Deputy Ephlin had the form or if other officers he contacted brought the consent form to him. He also later testified that they had to wait anywhere from fifteen to thirty minutes for the consent forms to be brought to the residence. He then acknowledged that he might have been at the residence for more than two hours before the consent forms arrived. However, he was adamant that he did not walk to the shed until after the consent forms were signed.
It is unclear exactly when Scott was arrested and informed of his Miranda rights. Rounsavall first said that the consent forms were completed, the shed was searched, and then Scott was arrested. Then he testified that Scott was arrested after he said that it was “ail his stuff’ while they were talking about what Roun-savall had seen from the road, and then the consent forms were signed.
Deputy Ephlin testified that he went with Rounsavall on December 19 to assist in the search for the anhydrous ammonia tank that had supposedly been left in a ditch behind the Russell property. He said that as he was in the field searching, he found numerous Coleman fuel cans, some muriatic acid bottles, and some plastic containers. Ephlin testified that when he returned to where Rounsavall was in front of the trailer, a few feet off the road, Rounsavall told him to “look around the corner of the trailer.” He said that he could see a Liquid Fire bottle with a hose stuck in it and some Tupperware containers, and that there was a box of salt on the porch. Ephlin said that he could see the items on the porch more clearly than the items in the shed. He said that it took between thirty minutes to an hour for officers to arrive with a consent form; he witnessed Bobby’s and Scott’s signatures on the consent form, but he could not remember if the consent form was signed before or after the Miranda rights form. He did say that Rounsavall had accompanied Bobby into the residence at some point in time, but he could not remember whether that was before or after the consent form arrived.
Bobby testified that he had previously been a police officer for about two and one-half years. He denied that any of the items the officers testified about could be seen from the road, stating that ladders and a fence row would have blocked the view. He said that he and Rounsavall walked back to the shed, and he denied that Rounsavall ever asked for consent. Bobby said that all of the officers had gone back to the shed before any consent to search was given. He said that when he signed the consent to search, he knew that he was giving consent to search his residence, and that was his intention; he said that to his understanding, the officers had already searched his residence before he even gave consent. Bobby said that he signed the consent to search because it was his understanding that he was not going to be charged with anything.
Billy Russell, Bobby’s and Scott’s father, testified that Rounsavall told him twice that they were not going to arrest Bobby, but that they had arrested Scott for drugs.
Scott testified that Rounsavall started walking back to the shed on his own, and that he and Rounsavall walked to the porch. When Rounsavall asked if there was a meth lab, Scott said that he told him that it was his. He said that before he signed a consent form, Rounsavall had walked to the shed twice, and Ephlin had also walked to the shed. He said that the officers told him that if he did not sign the consent form they were going to arrest Bobby, and he agreed to take the blame for it. He said that he believed that if he signed the consent form that Bobby would not be arrested, and that he did not sign the consent form until the officers h^d found everything.
On appeal, Bobby argues that the trial court erred in denying his motion to suppress the evidence found at his home because it was the product of an illegal search. He states that the trial judge found as a matter of fact that all of the contraband had been discovered before the consent was signed and that before consent was signed both officers had been to the back of the house. However, our inspection of the trial judge’s order establishes that these statements were in the order as part of the summary of Scott’s testimony. While it is true that Scott testified in this manner, these are not findings of fact by the trial court, as contended by the appellant.
Appellant, citing Holmes v. State, 347 Ark. 530, 65 S.W.3d 860 (2002), argues that a consent signed after the intrusion into a person’s home does not validate a warrantless search. There is no question that consent was freely given, as appellant testified that he understood what he was doing when he signed the consent and that he intended to sign it. However, if the testimony of the officers is believed, the items initially seen by the officers were outside the shed and porch of the mobile home. An expectation of privacy in driveways and walkways, which are commonly used by visitors to approach dwellings, is not generally considered reasonable. Gaylord v. State, 1 Ark. App. 106, 613 S.W.2d 409 (1981). Furthermore, there was conflicting evidence regarding when the search took place. The officers testified that once they saw the Liquid Fire bottles and salt from the road, they called for a consent form and did not go back to the shed until the consent form was signed. Appellant’s and his brother’s testimony was in direct conflict with the officers’ testimony. However, credibility determinations and conflicts in testimony are for the trial court to resolve. Jones v. State, 344 Ark. 682, 42 S.W.3d 536 (2001). In this case, the trial judge clearly believed the officers’ testimony.
We hold that the trial court properly denied the Motion to Suppress, and appellant’s conviction is therefore affirmed.
Affirmed.
Hart, Gladwin, Robbins, Baker, and Roaf, JJ., agree. | [
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Andree Layton Roaf, Judge.
Appellant Justin Dondan-ville entered a conditional plea of nolo contendere to possession of drug paraphernalia and was sentenced to eighteen months in a regional punishment facility. On appeal, Dondanville argues that the trial court erred in denying (1) his motion to suppress his statements given while in police custody and (2) his motion to suppress evidence seized at the time of his arrest that was subsequently destroyed by the police. We affirm on Dondanville’s first point on appeal but do not have jurisdiction to address his second point challenging the trial court’s denial of his motion to suppress evidence because his argument does not fall within the purview of Ark. R. Crim. P. 24.3(b).
At the suppression hearing, Deputy Sheriff Jack Lock with the Arkansas County Sheriff s Department testified that, on June 17,'2002, he responded to information concerning a van that was stuck in a ditch. He located the vehicle, which was registered to Dondanville, and followed dolly tracks leading from the van to a residence owned by Tammy Rich. Lock stated that he approached a screened-in porch attached to the residence, where he noticed a man whom he recognized as Steven Simpson sleeping in a chair next to a large tank, which was giving off the smell of ammonia. Lock asked Simpson whose anhydrous tank it was, but he did not reply. Lock also questioned Simpson as to the whereabouts of Dondanville, and Simpson stated that he was in the house.
Lock testified that he then knocked on the door of the house and that Stacy Dondanville answered the door. He told her that he needed to talk to Justin, and they stepped outside to talk. Lock testified that he advised Dondanville of his Miranda rights and asked him a question about the anhydrous tank. According to Lock, Dondanville told him that he got the tank so that he could make money with it. Lock stated that he then placed Dondanville under arrest and obtained consent to search the house. He found another smaller tank, which was empty, on the porch. Lock stated that the end of the large tank was broken off, which made it hazardous, so he called the Sheriffs Department and had them bring a trailer. Other than the smell, Lock stated that what indicated the tank contained anhydrous ammonia was the bluish tint on the end of the tank valve and that this coloration is unique to anhydrous ammonia. He testified that they took the large tank to an open area and disposed of it because of its hazardous material, and that they also disposed of the smaller tank. Lock stated that he took pictures of both tanks before he disposed of them.
Lock testified that he took a written statement from Don-danville at the Sheriffs Department, after he again advised him of his Miranda rights. According to Lock, Dondanville signed a waiver form indicating that he agreed to give a statement. In his statement, Dondanville stated that he stole the big tank and that he was going to use it to fill the smaller tank and sell it to make money. Lock testified that it is illegal to possess anhydrous ammonia in a container that is not properly labeled and in compliance with state regulations and that the large tank possessed by Dondanville was not in compliance. Although Lock indicated that it was not illegal to possess the small tank since it was empty, he stated that it had evidentiary value because of what Dondanville said in his statement. Dondanville testified at the hearing that there were markings on the large tank and a sticker that had the State of Arkansas on it. He stated that it was his understanding that the tank complied with the law.
Dondanville was charged with violating Ark. Code Ann. § 5-64-1301 (Supp. 2003), which provides that possession of anhydrous ammonia in a container that does not comply with the regulations of the Boiler Inspection Division of the Department of Labor for the containment of anhydrous ammonia is a Class B felony. After the trial court denied his motions to suppress his statements and the evidence of the tanks, Dondanville entered a negotiated plea of nolo contendere to possession of drug paraphernalia and a sentence of eighteen months in a regional punishment facility. His plea was also conditional, reserving his right to appeal the trial court’s denial of his motions to suppress under Ark. R. Crim P. 24.3(b).
In his first point on appeal, Dondanville argues that the trial court erred in not suppressing the verbal and written statements he made to Deputy Lock. Dondanville asserts that the State did not prove that he made a voluntary statement after waiving his Miranda rights in each instance. Dondanville contends that the State failed to introduce evidence that he waived his rights, such as the written waiver form referred to by Lock at the suppression hearing, which Dondanville argues was not introduced into evidence.
We first note that Dondanville does not cite any authority in support of his argument on this point; thus, this court need not address his argument. See Ward v. State, 350 Ark. 69, 84 S.W.3d 863 (2002) (stating that arguments unsupported by authority or convincing argument will not be addressed). However, even if we were to address the merits, the trial court’s denial of Dondanville’s motion to suppress his statements was not clearly erroneous.
Statements arising from custodial interrogation are presumed to be involuntary, and the burden is on the State to prove that a custodial statement was given voluntarily and was knowingly and intelligently made. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). In determining whether a waiver of Miranda rights is voluntary, this court looks to see if the confession was the product of free and deliberate choice rather than intimidation, coercion, or deception. Id. In making this determination, we review the totality of the circumstances surrounding the waiver including the age, education, and intelligence of the accused, the lack of advice as to his constitutional rights, the length of the detention, the repeated and prolonged nature of the questioning, the use of mental or physical punishment, the statements made by the interrogating officers, and the vulnerability of the defendant. Jordan v. State, 356 Ark. 248, 147 S.W.3d 691 (2004). We will reverse a trial court’s ruling on this issue only if it is clearly against the preponderance of the evidence. Id.
Here, Deputy Lock testified that he verbally advised Don-danville of his Miranda rights prior to his arrest and that he then asked him about the anhydrous tank. According to Lock, Don-danville then voluntarily stated that he obtained the tank so that he could make money off of it. Prior to questioning Dondanville subsequent to his arrest, Lock testified that he again advised him of his rights using a standard form, that Dondanville initialed that he understood each of these rights, and that he then signed a written waiver agreeing to give him a statement.
Dondanville argues that there was no proof that he waived his rights prior to making his statements and that the written waiver Lock referred to was not introduced at the hearing. While this written waiver may not have been introduced at the hearing, it is contained in the record and the State has included it in its supplemental addendum. However, a written waiver is not required to effect a valid waiver, Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999); Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999), and the failure to seek admission of the waiver form is not essential where there is no contention that the rights were not explained, or understood. Rushing v. State, 338 Ark. 277, 992 S.W.2d 789 (1999) (citing Cagle v. State, 267 Ark. 1145, 594 S.W.2d 573 (1980)). Furthermore, merely by answering questions, an accused may impliedly waive his right to remain silent. Miles v. State, 348 Ark. 544, 75 S.W.3d 677 (2002); Bangs v. State, supra.
As the State contends, Dondanville does not claim that he did not understand his rights, but rather argues that the State did not meet its burden of proof that he waived his rights. Given Lock’s testimony that he advised Dondanville of his rights, both verbally and in writing, prior to questioning him, and that Dondanville agreed to waive his rights and signed a written waiver agreeing to make a statement, the State met its burden of showing by a preponderance of the evidence that Dondanville’s statements were voluntary. While Dondanville also argued in his motion to suppress that his statements were the product of coercion, he does not raise this argument on appeal, and thus, it is deemed to be abandoned. Jordan v. State, supra. The trial court’s ruling denying Dondanville’s motion to suppress his statements was not clearly erroneous, and we affirm on this point.
Dondanville’s second point on appeal challenges the trial court’s denial of his motion to suppress the physical evidence seized by the police at the time he was arrested. Dondanville argues, as he did in his motion to suppress, that the small tank was empty and did not contain anhydrous ammonia. Because it is not illegal to possess an empty tank, he asserts that evidence of this small tank was therefore irrelevant and had no evidentiary value. With respect to the large tank that allegedly contained anhydrous ammonia, Dondanville contends that there were markings or stickers on the tank containing the words “State of Arkansas,” and that he believed that the tank met the requirements for storing anhydrous ammonia. Because Lock testified that he destroyed the large tank, that the substance inside it was not tested by the crime lab, and that neither tank was available for inspection or testing by the defense, Dondanville argues that the State violated its duty to preserve and turn over to the defense any exculpatory evidence. Had he had access to this evidence, Dondanville contends that he would have been acquitted of the crime with which he was charged.
However, as the State argues, we are unable to address Dondanville’s argument on this point as it is not cognizable in an appeal pursuant to Ark. K. Crim. P. 24.3(b). As was stated in Payne v. State, 327 Ark. 25, 29, 937 S.W.2d 160, 162 (1997), Rule 24.3 controls conditional guilty pleas and subsequent review of the trial court’s failure to suppress evidence, and it pertains “only to evidence illegally obtained —• not to evidence wrongfully admitted.” See, e.g., id. (dismissing appeal for lack of jurisdiction where appellant’s argument challenging trial court’s admission of prior convictions into evidence concerned admissibility of evidence not alleged to have been illegally obtained); Scalco v. State, 42 Ark. App. 134, 856 S.W.2d 23 (1993) (dismissing appeal where appellant sought to “suppress” results of a breath test for failure to follow the statute, which is an issue of. admissibility, not suppression as contemplated by Rule 24.3(b)). In the absence of compliance with the express terms of Rule 24.3(b), we acquire no jurisdiction to hear an appeal from a conditional plea. Berry v. City of Fayetteville, 354 Ark. 470, 125 S.W.3d 171 (2003). Because Dondanville’s argument pertaining to the evidence of the tanks goes to its admissibility, and not to whether the tanks themselves were illegally obtained, this court does not have jurisdiction of this point on appeal. Payne, supra. Thus, we affirm on Dondanville’s first point on appeal and decline to address his second point.
Affirmed.
Neal and Vaught, JJ., agree. | [
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Robert J. Gladwin, Judge.
Christy Tucker Dumas appeals from an order of the Pope County Circuit Court that increased the amount of child support made to her by appellee but denied her request that she be allowed to claim tax exemptions for both children. For reversal, appellant argues that the trial court erred in awarding to a noncustodial parent the right to claim a child for tax-exemption purposes without providing the requisite written or specific findings to support this decision. Appellee did not file an appellate brief. For the reasons that follow, we reverse and remand for proceedings consistent with this opinion.
Appellant and appellee were divorced on August 20, 1997. Appellant was awarded custody of the parties’ two minor children. Appellee was ordered to pay child support and was awarded the right to claim one of the children for tax-exemption purposes. The court made no specific findings of fact to support this decision, and neither party objected to the order entered at that time.
On July 24, 2000, appellant filed a petition seeking an increase in child support and requesting that she be allowed to claim both children for tax-exemption purposes. In an order filed August 6, 2002, the court found a change in circumstances sufficient to warrant an increase in child support, and appellant agrees that the court correctly determined appellee’s income and set the child support in accordance with the chart. However, the court denied appellant’s request that she be allowed to claim both children for tax purposes, leaving the situation as it was in the 1997 order.
Appellant’s argument on appeal is that the August 2002 order allowing appellee, the noncustodial parent, to claim one of the children for tax purposes was tantamount to an award of child support. Appellant further argues that by making such an award, the judge deviated from the child-support chart and failed to make the requisite findings to support this deviation. We agree.
Administrative Order Number 10 provides in section 111(f) that allocation of dependents for tax purposes belongs to the custodial parent pursuant to the Internal Revenue Code. However, the order notes, the court shall have the discretion to grant dependency allocation, or any part of it, to the noncustodial parent if the benefit of the allocation to the noncustodial parent substantially outweighs the benefit to the custodial parent.
Arkansas Code Annotated section 9-12-312 (a) (2) (Repl. 2002) provides for the determination of child support as follows:
In determining a reasonable amount of support, initially or upon review, to be paid by the noncustodial parent, the court shall refer to the most recent revision of the family support chart. It shall be a rebuttable presumption for the award of child support that the amount contained in the family support chart is the correct amount of child support to be awarded, Only upon a writ ten finding or specific finding on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the family support chart, shall the presumption be rebutted.
These statutory requirements are applicable in a modification setting. Freeman v. Freeman, 29 Ark. App. 137, 778 S.W.2d 222 (1989).
In Freeman, the parties had entered into a separation agreement, part of which governed the right to claim tax exemptions for the parties’ children. When the trial court subsequently modified the tax-exemption provision of the decree, appellant argued that the right to claim the children as dependents was bargained for and was more in the nature of a property right. In holding that the trial court had the authority to modify the tax-exemption provision contained in the parties’ agreement and incorporated into the original decree of divorce, we stated that such a provision is “more closely related in nature to an award of child support than it is to a settlement of property rights. . . . “ Freeman, 29 Ark. App. at 140, 778 S.W.2d at 224.
In Fontenot v. Fontenot, 49 Ark. App. 106, 898 S.W.2d 55 (1995), we noted that the right to claim the parties’ children as dependents for tax purposes is accurately characterized as a matter of child support. The parties in Fontenot were divorced, and appellant was awarded custody of the parties’ children and child support. In a subsequent order, the court increased the child support to be paid to appellant and awarded appellee the right to claim as dependents for income-tax purposes the parties’ three minor children. We held that because the trial court awarded the tax exemptions to the noncustodial parent, the court essentially deviated from the' child-support chart without providing the required findings, and the case was remanded.
In setting the amount of child support, reference to the chart is mandatory, and the chart itself establishes a rebuttable presumption of the appropriate amount, which may only be deviated from if supported by written findings or specific findings on the record stating why the chart amount is unjust or inappropriate. See Roland v. Roland, 43 Ark. App. 60, 859 S.W.2d 654 (1993). The trial court is not entirely precluded from adjusting the amount as deemed warranted under the facts of a particular case; the presumption in favor of the chart amount may be overcome if the trial court determines, upon consideration of all relevant factors as set out in Administrative Order Number 10, Section 111(f), that the chart amount is unjust or inappropriate. See Waldon v. Waldon, 34 Ark. App. 118, 806 S.W.2d 387 (1991). Additionally, when considering whether to award to a noncustodial parent the right to claim a child for tax purposes, the trial court is required by Administrative Order Number 10, Section 111(f) to determine whether the benefit of the allocation to the noncustodial parent substantially outweighs the benefit to the custodial parent.
We agree with the holding of the Missouri Court of Appeals in Niederkorn v. Niederkorn, 616 S.W.2d 529, 533 (Mo. Ct. App. 1981), as cited in Freeman, 29 Ark. App. at 141, 778 S.W.2d at 224, that “an award of a tax exemption to one party is nearly identical in nature to an order that the other party pay as child support a sum equal to the value of the exemption.” An award of a tax exemption to a noncustodial parent results in a deviation from the child-support chart. The trial court in the case before us erred in making such an award without providing the findings required by Ark. Code Ann. § 9-12-312(a)(2) and without weighing the benefits to the parties as required by Administrative Order Number 10.
This court has the power to decide cases involving child support de novo on the record before it, but in appropriate cases, the court also has the authority to remand such cases for further action. Fontenot, supra. We think it appropriate to remand this case to the trial court for further consideration of the tax-exemption issue. We leave it to the discretion of the trial judge to decide whether a more detailed and explanatory opinion will suffice to meet the requirements of Administrative Order Number 10 and Ark. Code Ann. § 9-12-312(a) (2) or whether further proof from the parties is necessary regarding the applicable factors and other relevant matters.
Reversed and remanded.
Bird and Vaught, JJ., agree. | [
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karen R. Baker,
Judge. Appellant, Terri Weaver, appeals a decision by the Board of Review denying her unemployment benefits. For reversal, appellant argues that the finding of the Board of Review was unsupported by substantial evidence and that denial of unemployment benefits to a claimant whose employment is terminated by reason of the completion or expiration of an employment contract is arbitrary and contrary to law. We agree and reverse and remand for an award of benefits.
Ms. Weaver was employed by the Monticello School District under a contract for a period of nine months beginning August 20, 2001, as a part-time, temporary adult-education paraprofessional. She worked thirty hours a week, which was the maximum allowed by the budget, at eight dollars an hour. Her job consisted of assisting the program secretary in meeting a December 17, 2001, deadline of entering student demographic data into a computer system. When she signed the contract, Ms. Weaver was told that the contract was temporary and could end the second week in January. Ms. Weaver testified that she told Ms. Branch, director of the Adult Education Program, that this was not a problem because she had plans to move to either Little Rock or Indiana where she would have access to assistance with her autistic child while she worked. After the December 17 deadline was met, she was informed that her position would be extended until the end of the school year. In May, Ms. Weaver’s contract expired. However, she did not move because, as she stated, “I didn’t have the finances because my unemployment was denied.” She testified that she was not offered a contract for the following term and that there was no formal discussion about rehiring her in the fall. She did not request another position with the school because of her understanding that her position was part-time and temporary.
Ms. Branch testified that she did not offer Ms. Weaver her job back because Ms. Weaver did not tell her that she wanted her job back, and she thought Ms. Weaver was moving to Little Rock. Ms. Branch testified that each year she received a copy of a temporary budget in April. The full-time employees signed pending contracts at that time; however, part-time employees did not sign contracts until August. Ms. Branch stated that Ms. Weaver never asked for her job back and that according to the budget for the new year, she would have been able to hire Ms. Weaver.
Ms. Weaver testified that Ms. Branch told her during a telephone conversation that she did not then know what her budget was, so she could not plan to rehire her for the fall. During this conversation they also discussed the fact that unemployment benefits had been denied by the Department.
Ms. Weaver appealed the Department’s decision to the Appeals Tribunal, which reversed the Department and awarded benefits. The Board of Review reversed the Tribunal, finding that appellant voluntarily left her last work without good cause connected with the work and denied benefits until Ms. Weaver had thirty days of subsequent, qualifying employment. The Board based this finding on the ground that appellant would not be in the area to continue working for the employer, even though she ’ knew or should have known that the employer would likely have additional work for her. This appeal followed.
Our scope of appellate review in cases such as this is well-settled and oft-stated:
On appeal, the findings of the Board of Review are conclusive if they are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it.
Thornton v. Director, 80 Ark. App. 99, 101-02, 91 S.W.3d 523, 524 (2002) (quoting Fleming v. Director, 73 Ark. App. 86, 88, 40 S.W.3d 820, 822 (2001)).
Ms. Weaver argues that the finding of the Board of Review upon which it disqualified her from receiving unemployment benefits was unsupported by substantial evidence. We agree. In Dingmann v. Travelers Country Club, 420 N.W.2d 231, 233 (Minn. Ct. App. 1988), the Minnesota Court of Appeals interpreted the term “voluntarily quit,” and held that the test is whether the individual has exercised his own free will or choice in the separation. See Rankin v. Director, 78 Ark. App. 174, 79 S.W.3d 885 (2002) (holding that there was not substantial evidence to support the Board’s finding that appellant voluntarily left his last work where there was undisputed evidence that he had no choice when he was transferred away from his job by the Board of Correction). Arkansas Code Annotated section 11-10-513(a)(1) (Repl. 2002) states that an individual shall be disqualified for benefits if he or she voluntarily and without good cause connected with work left his or her last work.
Here, Ms. Weaver was hired for a part-time, temporary position at the school. She not only completed her deadline in December, but she accepted an extension of her position until the end of the school year. At that time, she did not “voluntarily quit”; rather, her job was completed. Whether there was good cause is irrelevant if the departure was not voluntary. Therefore, the Board’s finding that she voluntarily left work without good cause connected with the work is not supported by substantial evidence. Accordingly, we reverse and remand for an award of benefits.
Vaught and Roaf, JJ., agree.
In Alcorn v. Daniels, 603 S.W.2d 478 (Ark. App. 1980), this court held that where the claimant was hired for a temporary “four to five weeks job” and where she completed such job, her leaving to seek permanent employment was not for a reason other than good cause in connection with work. This case does not appear in the Arkansas Appellate Reports.
See Alcorn, supra (Newbern, J., concurring). | [
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Larry D. Vaught, Judge.
This is an interlocutory appeal brought under Ark. R. Civ. P. 54(b). Appellee Sandra Powell sued her neighbor, appellant Clay King, for trespass, seeking damages for his destruction of trees and removal of dirt along an old trail on her property. Mr. King and his wife, Patty King, filed a counterclaim against Ms. Powell, claiming a prescriptive easement across her property. Both Mr. King and Ms. Powell alleged that they had entered into an agreement whereby Mr. King would make the trail passable in exchange for giving Ms. Powell access to Beaver Lake. The jury returned a verdict awarding damages to Ms. Powell and finding no prescriptive easement across her land. The jury also found that Mr. King had breached his agreement to give Ms. Powell access to the lake. The trial court granted the Kings’ motion for judgment notwithstanding the verdict on their prescriptive easement claim. Mr. King appeals from the award of damages against him, and Ms. Powell argues on her cross-appeal that the trial court erred in granting the Kings’ motion for judgment notwithstanding the verdict on their prescriptive-easement claim. We affirm on the direct appeal and reverse on the cross-appeal.
Procedural and Factual History
Ms. Powell purchased her property in 1990, and lived there from 1991 until 1997. The road in dispute runs along the south half of her property and crosses a ravine. When Ms. Powell purchased her land, the culvert over the ravine was no longer passable, and small trees had grown up on the trail, which appeared as if it had not been used for many years. In 1997, the Kings purchased property adjacent to Ms. Powell. There is no dispute that Mr. King and Ms. Powell entered into an agreement whereby she permitted him to remove “three or four trees” to make the roadway passable in exchange for giving her access to the lake. However, Mr. King’s changes to her property were far in excess of what Ms. Powell claimed she had agreed upon. One hundred twenty-nine dead trees were piled on Ms. Powell’s property, and nine hundred cubic yards of dirt were removed, along with the vegetation. Ms. Powell notified Mr. King that he did not have permission to treat her property in that manner. Even though she demanded that he stop his work on several occasions, he continued to proceed, even after she filed her trespass complaint. The Kings use this roadway for access to their property.
Ms. Powell filed a trespass complaint against Mr. King on April 10, 1998, seeking damages of over $25,000 and treble damages as provided in Ark. Code Ann. § 18-60-102 (Repl. 2003). In an amended complaint, Ms. Powell included a request for punitive damages. In response, Mr. King affirmatively raised waiver, estoppel, and adverse possession and alleged that his actions had been with Ms. Powell’s permission, in accordance with their agreement. Mr. and Mrs. King alleged in a counterclaim that they had acquired a prescriptive easement across the road.
At trial, the verdict was rendered on interrogatories. The jury found that Ms. Powell had proven that Mr. King trespassed on her property, damaging or destroying trees and displacing or removing stone or soil. It also found that Mr. King did not establish his defense of estoppel. The jury awarded Ms. Powell $5,000 for her trees and $4,950 for the soil and stone. The jury also found that Mr. King’s actions were willful or intentional and assessed punitive damages against him in the amount of $25,000. The jury further found that Ms. Powell had proved that Mr. King failed to provide a lake-access easement to which she was entitled by the terms of their agreement. It also found that the Kings had failed to establish their prescriptive-easement claim. The Kings moved for judgment notwithstanding the verdict on their counterclaim. In response, Ms. Powell argued that they had failed to preserve the issue.
The trial court entered judgment of $34,950 ($25,000 in punitive damages and $9,950 in actual damages) on the verdict for Ms. Powell, stating that she had elected to recover actual and punitive damages, rather than treble damages. It also awarded her attorney’s fees and completed a certification pursuant to Ark. R. Civ. P. 54(b) for an interlocutory appeal, stating:
[T]he remedy for the defendant Clay King’s breach of a contract to provide a lake access easement is distinct from and unrelated to the issues resolved at the trial of this cause which are addressed herein, that the fashioning of a remedy for the Defendant Clay King’s breach of a contract to provide a lake access easement will require further proceedings before the court in equity, and the costs to the parties and the cloud over the title of the subject property will ... therefore be minimized if these proceedings on the remedy for Defendant Clay King’s breach of a contract to provide a lake access easement do not unnecessarily delay proceedings on the issues already resolved; and that there is no just reason to delay entry of judgment.
Mr. King then moved for judgment notwithstanding the verdict. The trial court entered an order denying Mr. King’s motion in all respects except for the issues concerning the prescriptive easement and attorney’s fees. It stated:
[Tjhere was no evidence to substantiate the jury’s finding in regard to this [prescriptive easement] issue, and the facts presented did, in fact, establish an easement by prescription across [Ms. Powell’s] land, unless abandoned. That a new trial should [be] granted on the issue of whether or not the easement by prescription was abandoned, because said issue was not decided.... [A]ll other provisions of this court’s original judgment, not modified herein, shall remain in full force, and effect including the Rule 54B findings and certificate, and including the finding that the remedy for Clay D. King’s breach of contract will require further proceedings in this court....
From that order, Mr. King entered his notice of appeal and Ms. Powell filed a notice of cross-appeal.
Direct Appeal
Damages
For his first point on appeal, Mr. King argues that the trial court erred in denying his motion for directed verdict on the issue of damages. He asserts that the replacement value of the trees, on which Ms. Powell based her evidence, was not the proper measure of damages in this case. Instead, he argues, the proper measure was the difference in the value of the land before and after the occurrence, and no evidence of difference in value was introduced. Mr. King argues that these trees were ordinary trees on a steep hillside, on the far south end of Ms. Powell’s property, and not near her home. He also contends that the amount of damages she claimed ($29,050 for the trees and $4,950 for the soil) was grossly disproportionate to the overall value of her property ($39,500).
A directed-verdict motion is a challenge to the sufficiency of the evidence, and when reviewing the denial of a motion for a directed verdict, this court determines whether the jury’s verdict is supported by substantial evidence. Superior Fed. Bank v. Mackey, 84 Ark. App. 1, 129 S.W.3d 324 (2003). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without having to resort to speculation or conjecture. Id. When determining the sufficiency of the evidence, the appellate court reviews the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Id. A motion for a directed verdict should be denied when there is a conflict in the evidence or when the evidence is such that fair-minded people might reach different conclusions. Fayetteville Diagnostic Clinic, Ltd. v. Turner, 344 Ark. 490, 42 S.W.3d 420 (2001). Under those circumstances, a jury question is presented and a directed verdict is inappropriate. Id. It is not this court’s province to try issues of fact; it simply examines the record to determine if there is substantial evidence to support the jury verdict. Id.
The jury instruction given on this issue correctly stated the law as follows:
If the answer to an interrogatory requires you to assess damages against Mr. Clay King in favor of Linda Powell, you will do so in the following manner:
1. If you find that Ms. Powell’s intended use of the damaged or destroyed trees was for ornamental or shade purposes, then you will award damages equal to the value of the damaged or destroyed trees, if any, plus the cost of replacing stone or soil displaced or removed, if any.
2. Otherwise, you will award damages equal to the difference in the fair market value of Ms. Powell’s property before and after the trespass.
In Worthington v. Roberts, 304 Ark. 551, 803 S.W.2d 906 (1991), the supreme court adopted the rule that, when ornamental or shade trees are injured, the use made of the land should be considered and the owner compensated by damages representing the cost of replacement of the trees. The court explained: “In some instances, for example, tortious destruction of trees might increase its market value but decrease the value of the land for the use made of it by its owner.” 304 Ark. at 557, 803 S.W.2d at 910 (emphasis in original). The court held, however, that the evidence in each case will determine whether an instruction on the difference in the value of the land before and after an occurrence or one on the cost of restoration should be given. Accord White River Rural Water Dist. v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992); Revels v. Knighton, 305 Ark. 109, 805 S.W.2d 649 (1991); Fleece v. Kankey, 77 Ark. App. 88, 72 S.W.3d 879 (2002); Bowman v. McFarlin, 1 Ark. App. 235, 615 S.W.2d 383 (1981). See also Linebarger v. Owenby, 79 Ark. App. 61, 83 S.W.3d 435 (2002). In First Electric Cooperative Corp. v. Charette, 306 Ark. 105, 810 S.W.2d 500 (1991), the supreme court affirmed the trial court’s use of the replacement cost as the basis for determining damages for the unauthorized destruction of ornamental trees, even though the cost of replacing the trees was high compared to the value of the land.
From these decisions, the following rules can be taken: the trial court’s decision as to the proper measure of damages in such a case will not be reversed unless it abused its discretion; when ornamental or shade trees are injured, the use of the land should be considered and the owner compensated by damages representing the cost of replacement of the trees; the evidence in each case will determine whether an instruction on the difference in the value of the land before and after the occurrence or one on the cost of restoration should be given.
The trial court denied Mr. King’s motion for directed verdict because Ms. Powell had produced substantial evidence that her use of this property was recreational in nature; and that the trees had aesthetic value. At trial, Ms. Powell testified that, after moving from Memphis, she had bought this property because she wanted to live in a rural setting. She said that she preferred the area around the road, because it was a serene and lovely wooded place to walk her dogs and to be alone. She stated that, when Mr. King destroyed the trees, she had been walking along the path about once a week.
Ms. Powell’s expert witness, Dr. Alfred Einert, a certified arborist and landscape architect, testified that he found 129 cut trees that had been bulldozed into piles on her property, including 53 red oaks, 30 dogwoods, 9 white oaks, 28 hickories, 4 sycamores, 2 service berries, 1 Chinese elm, 1 sawtooth oak, and 1 hophornbean. He said that about 10 trees that were still standing were damaged and in danger. He testified at great length about his methodology and the underlying principles on which it was based. He also stated that he had allowed for the fact that these trees had less value in this rural setting than they would have in “someone’s home in downtown Bentonville.” He set the cut trees’ replacement value at $29,050.50, and the damages to the standing trees at $2,845.47. He also testified that about 900 cubic yards of soil, valued at $4,950, had been removed.
We believe that Ms. Powell presented substantial evidence of her recreational use of this property, which was sufficient to survive a motion for directed verdict. In so holding, we also note that the actual damages awarded ($9,950) were not grossly disproportionate to the evidence that Mr. King presented regarding the property’s value. Accordingly, we affirm on this point.
Treble or Punitive Damages
Mr. King argues in his second point that the jury’s finding of wrongful conduct, on which the award of punitive damages was based, is not supported by substantial evidence. Ms. Powell elected to take the punitive damages awarded by the jury rather than the treble damages authorized by Ark. Code Ann. § 18-60-102. Punitive damages may be awarded when there is evidence that a defendant knew or ought to have known, in light of the surrounding circumstances, that his conduct would naturally or probably result in injury and that he continued such conduct in reckless disregard of the consequences, from which malice could be inferred. D’Arbonne Constr. Co. v. Foster, 354 Ark. 304, 123 S.W.3d 894 (2003); Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998). In law, malice is not necessarily personal hate; it is, rather, an intent and disposition to do a wrongful act greatly injurious to another. Fegans v. Norris, 351 Ark. 200, 89 S.W.3d 919 (2002). Malice is also defined as the intentional doing of a wrongful act without just cause or excuse, with an intent to inflict an injury or under circumstances that the law will imply an evil intent. Id.
We believe that Ms. Powell presented more than enough evidence to support the jury’s award of punitive damages. Mr. King did not deny that Ms. Powell had given him permission to remove only three or four trees. Ms. Powell testified that, after she discovered that he had done much more than that, she revoked her permission and ordered him to stop the work. She stated, however, that Mr. King ignored her entreaties to stop and continued his efforts, even after she filed this lawsuit. She also said that Mr. King visited her at her home in Springdale on two occasions, during one of which he falsely claimed to have had the property surveyed and stated that the work being done was on his own property. She testified that both meetings resulted in heated arguments and that Mr. King was asked to leave. She also said that Mr. King installed a gate on her property and that he ignored her request for a key. She further stated that her no-trespassing signs and flags on her property were repeatedly taken down. In fact, she testified that Mr. King had even placed a no-trespassing sign on her property. Accordingly, we also affirm on this point.
Estoppel
In his third point, Mr. King argues that the trial court abused its discretion in refusing to give his proposed instruction on estoppel. He admits that Instruction No. 10, which the court gave on this issue, was “technically correct” but argues that it was “stilted and confusing particularly when considered in conjunction with Instruction No. 12,” which read as follows:
When I use the expression “willfully” or “intentionally,” I mean a course of action which shows an actual or deliberate intention of wrongdoing, or which, if not intentional, shows an utter indifference to or conscious disregard for the right of others, with evil design and in bad faith.
Mr. King argues that Instruction No. 12 placed a higher burden on him to prove estoppel. Although he cites no case that supports this argument, he lists several decisions dealing with estoppel that did not specifically define the term “willful.”
The elements of equitable estoppel are these: (1) the party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting estoppel has a right to believe the other party so intended; (3) the party asserting estoppel must be ignorant of the facts; (4) the party asserting estoppel must rely on the other’s conduct to his detriment. Brown v. Brown, 83 Ark. App. 217, 125 S.W.3d 840 (2003). A party who by his acts, declarations, or admissions, or by his failure to act or speak under circumstances where he should do so, either with design or willful disregard of others, induces or misleads another to conduct or dealings which he would not have entered upon, but for such misleading influence, will not be allowed, because of estoppel, afterward to assert his right to the detriment of the person so misled. Undem v. First Nat’l Bank, 46 Ark. App. 158, 879 S.W.2d 451(1994).
We do not believe that the trial court abused its discretion in refusing to give Mr. King’s proffered instruction. The instruction given by the trial court correctly stated the law. It provided:
Clay King claims the defense of estoppel and has the burden of proving each of four essential propositions by a preponderance of the evidence:
First, that Sandra Powell engaged in some act, declaration, or admission, or failed to act or speak when she should have done so; and
Second, that her speech, action, or failure to act or speak was with design or willful disregard of others; and
Third, that her speech, action or failure to act or speak induced or misled the defendant Clay King in his conduct or dealings; and
Fourth, that Clay King would not have entered into this conduct or dealings but for this misleading influence.
If you find from the evidence in this case that each of these propositions has been proved, then you should answer “yes” to the appropriate interrogatory; but if, on the other hand, you find from the evidence that any of these propositions has not been proved, then you should answer “no” to the appropriate interrogatory.
Mr. King has cited, and we can find, no authority to support his argument that the definition of willfulness is different in the context of an alleged estoppel from the one given in Instruction No. 12. We therefore hold that the trial court did not abuse its discretion in this regard.
Cross-Appeal
In her cross-appeal, Ms. Powell argues that the trial court erred in granting the Kings’ motion for judgment notwithstanding the verdict as to the prescriptive easement because they did not move for a directed verdict at the close of all of the evidence on this ground. She is correct.
A motion for a directed verdict at the close of all the evidence is a condition precedent to moving for a judgment notwithstanding the verdict. Ark. R. Civ. P. 50(b); Wheeler Motor Co. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993). A motion for judgment notwithstanding the verdict is technically only a renewal of the motion for directed verdict made at the close of the evidence. Conagra, Inc. v. Strother, 340 Ark. 672, 13 S.W.3d 150 (2000). A motion for judgment notwithstanding the verdict can be made only upon grounds that were raised during the trial. Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002). A party’s failure to move for a directed verdict at the conclusion of all of the evidence because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict. Ark. R. Civ. P. 50(e).
The Kings argue that Rule 50 did not apply and that they did not have to move for directed verdict on this issue, because it was asserted in their counterclaim, on which they had the burden of proof. They assert: “To buy appellee’s argument would mean that one would have to move for a directed verdict after putting on his own case....” The rule, however, makes no such distinction. It simply requires that such a motion be made, at the close of all of the evidence, regardless of the identity of the party. In short, even a plaintiff can move for a directed verdict, although such a motion will rarely succeed. See David Newbern & John Watkins, Arkansas Civil Practice and Procedure § 27-3 (3d ed. 2002). In Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994), the supreme court held that the plaintiff/appellant’s claims regarding the sufficiency of the evidence were barred because she had not moved for a directed verdict at the close of all of the evidence, citing Ark. R. Civ. P. 50(e). Accord Southwestern Bell Tel. Co. v. Garner, 83 Ark. App. 226, 125 S.W.3d 844 (2003). We therefore reverse the trial court’s granting of a judgment notwithstanding the verdict on the prescriptive-easement claim because the Kings failed to preserve their right to make this motion.
Even if we were to decide this issue on the merits, the result would be the same, because thé jury’s verdict on the Kings’ counterclaim was supported by substantial evidence. A trial court may enter a judgment notwithstanding the verdict only if there is no substantial evidence to support the jury verdict and the moving party is entitled to judgment as a matter of law. Fayetteville Diagnostic Clinic, Ltd. v. Turner, supra.
The person who asserts an easement has the burden of proving its existence, Riffle v. Worthen, 327 Ark. 470, 939 S.W.2d 294 (1997), and that there has been adverse, not permissive, use of the land in question. Carson v. County of Drew, 354 Ark. 621, 128 S.W.3d 423 (2003). Although Arkansas does not have a statute setting forth the length of time for the ripening of a prescriptive easement, for many years the supreme court has considered the period for acquiring a prescriptive right-of-way as analogous to the statutory seven-year period for the acquiring of title by adverse possession and has held that both require seven years. Neyland v. Hunter, 282 Ark. 323, 668 S.W.2d 530 (1984). Unlike adverse possession, however, prescriptive use need not be exclusive. Id.
One asserting an easement by prescription must show by a preponderance of the evidence that one’s use has been adverse to the true owner and under a claim of right for the statutory period. Manitowoc Remfg., Inc. v. Vocque, 307 Ark. 271, 819 S.W.2d 275 (1991). Overt activity on the part of the user is necessary to make it clear to the owner of the property that an adverse use and claim are being exerted. Id. The determination of whether the use of a roadway is adverse or permissive is a question of fact. Johnson v. Jones, 64 Ark. App. 20, 977 S.W.2d 903 (1998). Once gained, a prescriptive easement may be abandoned by more than seven years of nonuse. Owners Ass’n of Foxcroft Woods, Inc. v. Foxglen Assocs., 346 Ark. 354, 57 S.W.3d 187 (2001).
Ms. Powell presented evidence from which the finder of fact could infer that the minimal use to which others put the roadway thirty to forty years ago was not openly adverse or hostile to the original owner’s rights. Obviously, the Kings did not use the roadway for seven continuous years; therefore, their claim was dependent on proving that their predecessors in title established a prescriptive easement and did not abandon it. Although they presented the testimony of some of their predecessors, their testimony demonstrated only occasional, limited use and no maintenance of the road on their part. Karl Weiss, who has lived in this area since 1972, testified that he has often walked along this road, which he described as a “jungle trail” on which a Jeep could barely travel. He stated that he never saw any vehicles use it or any evidence that they had done so. Ms. Powell also introduced several surveys from 1970, 1971, 1984, and 1986, which do not show any road on the south part of her property. She testified that she had never seen any vehicle on this road and that, with the exception of Mr. Weiss, who walked on it with her permission, she never saw any individuals use it. Additionally, there is no dispute that, when this issue arose, the road was in very bad shape, being overgrown with vegetation and trees with softball-sized circumferences. In fact, Ms. Powell testified that she had to prune the overgrowth in order to use the road as a walking path. The witnesses were also in agreement that the culvert over the ravine had been washed out in the mid-1980s, rendering it impassable since that time.
Giving the jury’s view of the evidence the proper deference, there was more than substantial evidence to support its verdict for Ms. Powell. We therefore reverse the judgment notwithstanding the verdict regarding the prescriptive easement.
Affirmed on direct appeal; reversed on cross-appeal.
Stroud, C.J., agrees.
Bird, J., concurs.
Ms. Powell originally sued Mrs. King but later nonsuited that claim.
Insofar as appellant’s argument may challenge the jury instruction on damages, that argument is not preserved because he did not object to the instruction and affirms in his reply brief that he does not challenge the instruction. | [
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Andree Layton Roaf, Judge.
Joyce Carroll and Mark Murphy appeal from an order terminating parental rights to their two daughters. Their sole argument on appeal is that the trial court erred in finding that termination was in the best interest of the children because there was not clear and convincing evidence that there would be potential harm to the children by continued contact with them. We affirm.
Arkansas Department of Human Services (DHS) filed a Petition for Emergency Custody for appellants’ minor children, A.M. and C.M., alleging that the children were dependent-neglected due to ongoing exposure to drugs, pornography, and lack of a stable home and financial support. Specifically, the petition stated that Joyce and her minor children resided in a motel; that Mark was incarcerated; that the children had been abandoned, abused, neglected, and sexually abused; and that removal was necessary for the protection of the minor children.
The affidavit attached to the petition indicated that on February 14, 2002, Joyce Carroll took a Polaroid photograph to the Rogers Police Department of her two-year-old daughter, A.M., holding a man’s penis. Detective Debbie Crews contacted a DHS worker with information on the child pornography case, and a search warrant was issued for Joyce’s home where another pornographic photo of A.M. was found, along with adult pornography and drug paraphernalia. Darrell Nash was arrested for child pornography, rape, and sexual assault. Joyce and the children lived with Nash for a year while he exposed the children to pornographic magazines, smoked marijuana in their presence, shot crank, and left syringes in places accessible to the children. The affidavit described the house as a typical “crank house,” and alleged that Joyce and Mark would blow marijuana smoke in the children’s faces to help them sleep.
The affidavit also stated that Joyce had a prior history with DHS. According to the affidavit, she was turned over to DHS after her stepfather sexually abused her. This abuse resulted in a preg nancy. On Joyce’s eighteenth birthday, she and her child were released from foster care. Joyce’s child was removed from her in September 1997 due to abandonment, and her parental rights were terminated in October 1998. Another child, Nicholas Murphy, born to Joyce Carroll in 1998, is in the custody of Mark’s relatives.
On February 28, 2002, at the probable cause hearing, Joyce and Mark stipulated to probable cause. Based on their stipulation, the court found that probable cause existed and that the best interest of the children mandated that they remain in DHS’s custody, pending an adjudication hearing. An adjudication hearing was held on March 26, 2002, and Joyce and Mark again stipulated to the allegations set forth in the affidavit. The trial court ordered Joyce and Mark to obtain stable employment; obtain and maintain stable, safe, and appropriate housing; attend and complete twenty hours of parenting .classes; complete drug and alcohol assessments; comply with the homemaker services; attend counseling; attend regular visitation with their children; obtain safe and reliable transportation; obtain and complete an affidavit of financial means; and make child support payments in accordance with state law, with a minimum payment of $35 per week.
Review hearings were held in June and September 2002. DHS presented evidence that, while there was partial compliance with the case plan, the parents were expending over $750 per month to live in motels, having declined to live at the Salvation Army or in areas with Hispanic populations; that both parents had refused to complete drug screening and drug testing in July and September; that they had not paid court ordered child support; and that they had completed only two of the twenty hours of required parenting classes. At the final review hearing, the trial court commented on the parents’ refusal to seek housing in certain areas, and their choice to continue to live in hotels despite their meager income. The court ordered Joyce and Mark to submit to random drug tests twice a month. Joyce and Mark were directed to provide certificates of completion for the parenting classes immediately to DHS, and to make arrangements for counseling.
At the permanency planning hearing, held on November 26, 2002, DHS recommended termination. There was evidence that Mark and Joyce still had not found their own housing, and continued to refuse drug testing. At the conclusion of the permanency hearing, the court stated that the lack of stable housing and suspected drug abuse continued to be a problem. Following DHS’s recommendation, the court ordered a termination hearing for February 20, 2003.
The termination hearing was held on March 3, 2003. The previous hearings were incorporated by reference and a copy of an order terminating Joyce Carroll’s parental rights on October 27, 1998, was introduced into evidence. Additionally, the evidence showed that Joyce and Mark had not completed their counseling sessions, nor had they consistently complied with the random drug test. Both parents had tested positive for marijuana. They had moved from place to place a total of twelve times, and did not have stable housing or reliable transportation of their own. While Mark had held several jobs, Joyce had not been consistently employed, and the parents had not paid the court-ordered child support. The caseworker assigned to A.M. and C.M. testified that the girls were in foster care, were receiving services, and that it is likely that they will be adopted. As a result, the court ordered termination of Joyce and Mark’s parental rights.
On appeal, Joyce and Mark argue only" that the trial court erred in finding by clear and convincing evidence that continued contact with them would result in a likelihood ofpotential harm to their children. They contend that in order to terminate the parental relationship, DHS must prove by clear and convincing evidence both a statutory basis for termination and that termination is in the best interest of the child. They do not contend that there was not sufficient proof of a statutory basis for termination, but challenge only the sufficiency of the proof as to the best interest of the children. They argue specifically that, while evidence presented raised issues that were of concern to DHS as to why the children could not return home, the proof failed to establish by clear and convincing evidence that continued contact with the parents would potentially harm the children. They cite no authority for their argument, and do not say what the “continued contact,” would be in the context of this proceeding, in terms of visitation, supervised or not, or in terms of outright return of custody.
It is well settled that grounds for termination of parental rights must be proven by clear and convincing evidence. M.T. v. Arkansas Dep’t of Human Servs., 58 Ark. App. 302, 305, 952 S.W.2d 177, 179 (1997). 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, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Id. Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. 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. Dinkins v. Arkansas Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). This court reviews termination of parental rights cases de novo. Id.
The goal of Arkansas Code Annotated section 9-27-341 is to provide permanency in a minor child’s life in circumstances in which returning the child to the family home is contrary to the minor’s health, safety, or welfare, and the evidence demonstrates that a return to the home cannot be accomplished in a reasonable period of time as viewed from the minor child’s perspective. Ark. Code Ann. § 9-27-341 (a)(3) (Supp. 2003). Parental rights may be terminated if clear and convincing evidence shows that it is in the child’s best interest. Ark. Code Ann. § 9-27-341 (b)(3) (Supp. 2003). Arkansas Code Annotated section 9-27-341 provides in pertinent part:
An order forever terminating parental rights shall be based upon a finding by clear and convincing evidence:
(A) That it is in the best interest of the juvenile, including consideration of the following factors:
(i) The likelihood that the juvenile will be adopted if the termination petition is granted;
(ii) The potential harm, specifically addressing the effect on the health and safety of the child, caused by continuing contact with the parent, parents, putative parent or parents.
(Emphasis added). Therefore, the plain language of the statute provides that the court must find by clear and convincing evidence that termination is in the child’s best interest, giving consideration to the risk of potential harm. The risk of potential harm is but a factor for the court to consider in its analysis.
We agree that there must be clear and convincing evidence that termination is in the children’s best interest. In Conn v. Arkansas Department of Human Services, 79 Ark. App. 195, 85 S.W.3d 558 (2002), the appellate court reversed a decision to terminate parental rights where there was no clear and convincing evidence that termination was in the child’s best interest. In Conn, DHS submitted evidence that the appellant’s parental rights had been terminated to the child in question’s sibling. Because DHS put on no other evidence whatsoever, this court reversed, holding that DHS must show by clear and convincing evidence the grounds for termination and show by clear and convincing evidence that the termination is in the child’s best interest.
However, in the case before us, there was a great deal of evidence presented by DHS on the issue of whether it would be in the children’s best interest for parental rights be terminated. The evidence demonstrated that potential harm might result if Joyce and Mark continued contact with A.M. and C.M., including the fact that this case arose primarily from appellants’ ongoing and adverse living arrangements that resulted in sexual abuse of their two-year-old daughter, exposure to drug use, pornography, and an unsafe environment, which prompted DHS’s involvement in the first place. Significantly, Joyce and Mark persistently failed to secure stable housing for their family throughout the course of this case, choosing to stay in costly motels or overcrowded apartments. They lived in twelve different locations, refused shelter at the Salvation Army, and refused to seek housing in areas where other ethnic groups reside: Their failure to secure safe and appropriate housing of their own is contrary to their children’s well-being and best interest. See Bearden v. Arkansas Dep’t of Human Servs., 344 Ark. 317, 42 S.W.3d 397 (2001); Dinkins, supra.
Joyce and Mark also failed to secure stable employment. While Mark was employed off and on, he was not able to secure finances that would provide meaningful support for his family, including stable housing. The failure to secure stable employment is contrary to the girls’ health and safety, see Dinkins, supra, and supports the trial court’s decision to terminate their parental rights. Bearden, supra; Dinkins, supra.
Additionally, appellants failed to complete their weekly counseling sessions, and they refused on several occasions to submit to random drug testing. In fact, both Joyce and Mark tested positive for marijuana on February 11, 2003, after their permanency planning hearing. The February drug test results demonstrate an indifference to remedying the problems plaguing their family. Their indifference to remedying these conditions is contrary to their children’s health, safety, and well-being, and the court’s decision to terminate their parental rights was not clearly erroneous. See Ullom v. Arkansas Dep’t of Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000).
The dissent contends that we may not affirm this case based upon the appellants’ stipulation to probable cause, because the facts contained in DHS’s affidavit are not in evidence as admissions by virtue of the stipulation to probable cause. There are several problems with this position. First, the appellants, through their counsel, stipulated to both probable cause and the later adjudication of dependency/neglect based upon the same affidavit. The trial court explicitly stated that the finding of probable cause was based upon the stipulation and the information available in the affidavit. The dissent asserts, without authority, that the trial court could consider the evidence contained in the affidavit only for the purpose of the emergency probable cause hearing, and does not address the appellants’ stipulation to the same facts at the subsequent adjudication hearing.
In Price v. Price, 29 Ark. App. 212, 780 S.W.2d 342 (1989), this court stated that:
Agreed stipulations of what a witness would testify to if present is an accepted method of presenting proof. The stipulation is accepted only as testimony and not as an admission of the facts testified to. The trier-of-fact is free to give it such weight as it deserves and is free to accept it or reject it in whole or in part. [Citations omitted.]
Clearly, the trial court was authorized to consider the evidence contained in the DHS affidavit as testimony, and to accept or reject it in whole or in part.
Moreover, in this appeal, appellants do not challenge the use of the affidavit, or even the sufficiency of the evidence of a statutory basis for termination. Accordingly, the sufficiency of the evidence to support removal of the children and to support the adjudication of dependency/neglect, for which the affidavit was used, are not issues which even need to be addressed in this appeal.
It is also important to note that, while again not an issue raised by appellants, at least three separate bases existed for terminating their parental rights. First, reunification shall not be required if a court of competent jurisdiction, including the juvenile division of circuit court, has determined by clear and convincing evidence that the parent has: subjected the child to aggravating circumstances; or [h]ad their parental rights involuntary terminated as to a sibling of the child. Ark. Code Ann. § 9-27-303(45) (Supp. 2003). Aggravating circumstances include the determination made by a judge that there is little likelihood that services to the family will result in successful reunification. Ark. Code Ann. § 9-27-303(6)(B) (Supp. 2003). In this case, the circuit court’s order found that Joyce and Mark subjected their minor children to aggravating circumstances, and noted that Joyce Carroll’s parental rights were terminated as to another child in October 1998. Further, the children were out of the home for more than twelve months, and the parents failed to remedy the circumstances causing their removal even after being provided with substantial reunification services. See Johnson v. Arkansas Dep’t of Human Servs., 78 Ark. App. 112, 82 S.W.3d 183 (2002). “One set of circumstances that may support the termination of parental rights is that the child ‘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 to rehabilitate the home and correct the conditions which caused the removal, those conditions have not been remedied by the parent’.” Id. (citing Ark. Code Ann. § 9-27-341 (b) (3) (B)(i) (a) (Repl. 2002)). Appellants also failed to provide significant material support by failing to pay the court ordered child support. Ark. Code Ann. § 9-27-341 (b)(1)(B)(ii)(a) (Supp. 2003) (“Material support consists of either financial contributions or food, shelter, clothing, or other necessities whether such contribution has been requested by the juveniles custodian or ordered by a court of competent jurisdiction.”).
Affirmed.
Stroud, C.J., Robbins, Grifpen, and Bird, JJ., agree.
Baker, J., dissents. | [
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Olly Neal, Judge.
Appellant, Howard Larry, appeals from a decision of the Lincoln County Circuit Court that found he was not entitled to reinstatement to his position as principal and not entitled to damages. For reversal, Larry contends that the lower court’s finding that he was terminated for cause was contrary to the evidence before it and that the court’s decision denying his claims for damages and reinstatement was contrary to the law. We affirm.
Larry was employed under a two-year contract as a principal for the appellee, the Grady School District. The duration of the contract was for a two-year period beginning July 1, 1997, and ending on June 30, 1999. Pursuant to the contract, Larry’s salary was $48,075.50 per year. On December 17, 1997, Larry was notified in writing by the superintendent that he was being placed on suspension with pay due to allegations of theft of school funds and that the superintendent was recommending his immediate termination. In a letter dated December 19, 1997, Larry requested a hearing before the school board. He was subsequently notified in writing that a hearing would be held on January 15, 1998; however, on the day of the hearing, Larry was notified that the hearing was canceled. On January 21, 1998, Larry was informed in writing by the superintendent that his suspension had ended and the recommendation of termination was being withdrawn.
However, on January 28, 1998, Larry received written notification from the superintendent that he was being placed on suspension and that the superintendent was going to recommend that Larry’s employment contract be terminated. The superintendent listed the following reasons for the suggested termination: (1) theft of school funds; (2) sexual harassment of an employee under Larry’s supervision; and (3) use of profanity toward that same employee. In response, Larry requested a hearing before the school board. Following a February 23, 1998 hearing, the school board found that the allegations of sexual harassment and use of profanity were untrue but that the allegation of theft of school funds was true. As a result, Larry was terminated.
Larry appealed the school board’s decision to the Lincoln County Circuit Court. He asserted that the school board had failed to comply with the Arkansas Teacher Fair Dismissal Act. He requested reinstatement to his position and back pay. On November 5, 1999, Larry filed a motion for summary judgment, in which he stated that the only triable issue was the amount of damages. The court granted the motion for summary judgment on the issue of the Grady School District’s liability but reserved judgment on the issue of damages. The Grady School District does not appeal the grant of summary judgment.
Following a September 4, 2001, hearing on the issue of damages, the court requested briefs on the issues of reinstatement and back pay. On March 29, 2002, the court entered an order in which it found that Larry was terminated for cause and denied Larry’s request for reinstatement and monetary relief. This appeal followed.
On appeal, Larry argues that the lower court erred when it denied his request for damages. As a general rule, in employment contract cases, the aggrieved party must use reasonable care, effort, and expenditure to mitigate damages. Marshall Sch. Dist. v. Hill, 56 Ark. App. 134, 939 S.W.2d 319 (1997). The measure of damages in such cases is the wages that were to be paid, less any sum earned in mitigation. Western Grove Sch. Dist. v. Strain, 288 Ark. 507, 707 S.W.2d 306 (1986). Thus, a teacher has an obligation to obtain other employment in mitigation of damages following the termination of his contract. See Moore v. Pulaski County Special Sch. Dist., 73 Ark. App. 366, 43 S.W.3d 204 (2001); Western Grove Sch. Dist. v. Strain, supra. Our supreme court has recognized that a teacher is entitled to damages equivalent to the amount of actual loss sustained as measured by the wages that would have been paid if not for the wrongful discharge. See Western Grove Sch. Dist. v. Strain, supra.
At the time of his termination, Larry had one year remaining on his employment contract. During that one-year period, Larry would have earned $48,075.50. It was established that upon his termination with the Grady School District, Larry obtained employment in the Marvell School District, where he earned $49,724.25. This resulted in Larry having surplus income in the sum of $1,648.75. Thus, by mitigating his damages Larry did not suffer any loss.
As part of his damages, Larry requested reinstatement to his former principal position. Before we can determine if Larry was entitled to reinstatement, we must first determine if he was terminated for cause. This necessitates a review of the school board hearing. It is apparent that the lower court had a transcript of the school board hearing before it and used this transcript to determine if there was cause for Larry’s termination. Larry’s counsel neither included a copy of the hearing transcript in the record nor did he abstract the hearing transcript. This document is essential to any determination as to whether Larry was entitled to reinstatement.
In Simmons v. State, 80 Ark. App. 426, 97 S.W.3d 421 (2003), appellant failed to include a video that was essential to our review of his challenge to the sufficiency of the evidence. There, we ordered appellant to rebrief and supplement the record based upon our interpretation of Rule 6(e) of the Arkansas Rules of Appellate Procedure — Civil, which states that:
If any difference arises as to whether the record truly discloses what occurred in the circuit 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 circuit 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.
(Emphasis added.) Rule 6(e) allows this court to order supplementation of the record when it is clear that something is missing as a result of error or accident by the court reporter or circuit clerk. In Simmons, the failure to include the video was not the result of error or accident by the court reporter or circuit clerk, and we now conclude that Simmons should have been summarily affirmed.
We have repeatedly emphasized that the appellant bears the burden of bringing forth an adequate record on appeal. See Cannon Remodeling v. The Marketing Co., 79 Ark. App. 432, 90 S.W.3d 5 (2002); see also Rothbaum v. Arkansas Local Police, 346 Ark. 171, 55 S.W.3d 760 (2001). In the absence of a complete record on appeal, we are compelled to summarily affirm. See Hankins v. Department of Fin. & Admin., 330 Ark. 492, 954 S.W.2d 259 (1997). As in Simmons, the omission of the school board hearing was not the result of error or accident by the court reporter or circuit clerk; therefore, due to the absence of a complete record, we are compelled to affirm.
Affirmed.
Gladwin and Baker, JJ., agree. | [
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Olly Neal, Judge.
This appeal involves a suit to collect unpaid sewer-maintenance fees and a counterclaim seeking to enjoin collection of those fees. The trial court granted appellee judgment for the unpaid fees and directed a verdict for appellee on the counterclaim. This appeal followed. We reverse and remand.
Appellee Cherokee Village Sewer, Inc. (CVSI), is a private corporation that provides sewer services in Cherokee Village. Appellant William L. Berry, M.D., P.A., is a professional corpo ration that owns twenty-four or twenty-five rental units served by CVSI. It is not disputed that some of appellant’s units are vacant and have been since at least 1997. It is also not disputed that appellant did not voluntarily pay the sewer-maintenance fees and that appellee sued appellant for collection of the fees on three prior occasions.
CVSI filed suit seeking to collect $5,477 in unpaid sewer-maintenance fees. Appellant admitted that it had not paid the fees but disputed the amount of fees. Appellant also filed a counterclaim seeking to enjoin collection of the maintenance fees as “illegal exactions” because the units were vacant and no sewer services were being provided. CVSI answered, denying that appellant was entitled to any relief on its counterclaim because CVSI was not a governmental entity. CVSI also moved to dismiss the counterclaim for failure to state facts upon which relief could be granted.
Eben Daggett, president and shareholder of CVSI, testified that CVSI is a private organization that provides sewer services to approximately 250 customers in Cherokee Village. He testified that appellant owns twenty-five units; that CVSI maintains separate records for each unit; and that appellant owes a total of $7,561. He explained that some of appellant’s units had the water turned off and were charged a $10 monthly maintenance fee and a $10 late charge. The maintenance fee was charged to keep the system operational, including the pipes and lagoon. Daggett testified that other units were occupied and charged $18 per month, with most of the tenants paying on time or being charged a late fee. He stated that monthly statements were sent to appellant but that appellant did not voluntarily pay. He also stated that appellant was notified of the CVSI rate structure by a notice sent in June 1999. This rate structure included for the first time a $10 monthly “User Maintenance Fee” for those units that have the sewer and water service shut off.
Daggett admitted that he did not have any agreements with townhouse owners, such as appellant, other than the bill of assurances, to pay the sewer maintenance fee. He admitted that there was no written or verbal agreement specifically with appellant to pay these fees. He took the position that, if a tenant did not pay the fee, the property owner was responsible. He also stated that the only time appellant paid the fees was in response to being sued and having judgment entered against it.
Dr. William Berry, the sole shareholder of appellant, testified that he was aware of appellant’s failure to make payments to appellee and that appellant’s objection was paying for service that was not being provided. He did not object to paying for services being used and admitted that he received the notice of the fee structure in June 1999. He stated that there are twelve townhouses owned by appellant that have not had water since appellant purchased them in 1997. Berry assumed, but was not certain, that the twelve townhouses were connected to the CVSI system.
The trial court issued an order and judgment on February 25, 2003, finding that appellee was entitled to prevail on the collection of accounts claimed in the complaint, and awarded judgment in favor of appellee in the sum of $7,561, interest on the judgment at ten percent per annum from the date ofjudgment, and attorney’s fees and expenses in the sum of $800. This appeal followed.
Appellant argues two points on appeal: that the trial court erred as a matter of law in granting judgment to appellee on a theory of implied contract and in granting a directed verdict on its counterclaim. We agree with the first point and do not reach the second point.
The standard of review of a circuit court’s findings of fact after a bench trial is whether those findings are clearly erroneous. Ark. R. Civ. P. 52; Burke v. Elmore, 341 Ark. 129, 14 S.W.3d 872 (2000). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. McQuillan v. Mercedes-Benz Credit Corp., 331 Ark. 242, 961 S.W.2d 729 (1998). Disputed facts and determination of the credibility of witnesses are within the province of the judge, sitting as the trier of fact. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998).
In appellant’s first point, it argues that the trial court erred as a matter of law in granting judgment to appellee on a theory of implied contract.
There are two classes of implied contracts, i.e., those properly called implied contracts, where the contract is inferred from the acts of the parties and those which are more properly called quasi-contracts or constructive contracts, where the law implies an obligation. The first type of implied contract is sometimes called a contract implied in fact and it derives from the “presumed” intention of the parties as indicated by their conduct. In determining whether a “tacit” but actual contract exists, the prior course of dealing between the parties is to be considered. An implied contract is proven by circumstances showing the parties intended to contract or by circumstances showing the general course of dealing between the parties. A contract implied in fact does not describe a legal relationship different from that created by an express contract.
Steed v. Busby, 268 Ark. 1, 7, 593 S.W.2d 34, 38 (1980) (citations omitted).
In order to recover, it was CVSI’s burden to prove either an express contract or an implied contract. Johnson v. Mitchell, 164 Ark. 1, 260 S.W. 710 (1924). In order for a contract, express or implied, to exist, there must be: (a) competent parties; (b) subject matter; (c) legal consideration; (d) mutual agreement; (e) mutual obligations. Kearney v. Shelter Ins. Co., 71 Ark. App. 302, 29 S.W.3d 747 (2000); Moss v. Allstate Ins. Co., 29 Ark. App. 33, 776 S.W.2d 831 (1989). Consideration is any benefit conferred or agreed to be conferred upon the promisor to which he is not lawfully entitled, or any prejudice suffered or agreed to be suffered by promisor, other than such as he is lawfully bound to suffer. Bass v. Service Supply Co., Inc., 25 Ark. App. 273, 757 S.W.2d 189 (1988). Mutual promises constitute consideration, each for the other. Freeman v. Freeman, 20 Ark. App. 12, 722 S.W.2d 877 (1987). While mutual promises will sustain a contract, there is no valid agreement if there is no promise by one party as a consideration for the other’s promise. Eustice v. Meytrott, 100 Ark. 510, 140 S.W. 590 (1911).
Here, we are concerned with the element of consideration. A contract cannot be implied by virtue of the fact that appellant’s townhouses were connected to CVSI’s line because this was a new charge. No service was being provided at the time of the June 1999 letter, and thus, consideration was required to support the new fees. Appellee’s June 1999 letter contained the new rate structure. However, there is no evidence that appellant agreed to the new rate structure by paying the new fee. The only payments appellant made were as a result of suits being filed by CVSI. Further, there is nothing in the record to indicate what benefit appellant would receive from agreeing to the new rate structure. There were a couple of allusions to the property being covered by a bill of assurance. However, the trial court noted that it was not put in evidence. If the bill of assurance contained provisions requiring payment of sewer fees to CVSI, then that could constitute the contractual basis, running with the land, for appellant’s obligation to pay the fees. See Kell v. Bella Vista Village Prop. Owners Ass’n, 258 Ark. 757, 528 S.W.2d 651 (1975); Moore v. Adams, 200 Ark. 810, 141 S.W.2d 46 (1940). Here, there is an absence of any express contract or a bill of assurance with relevant provisions, and we further conclude that there was no implied contract because there was no evidence of consideration. Accordingly, the trial court erred in granting judgment to CVSI on a theory of an implied contract.
In appellant’s second point, it argues that the trial court erred in granting a directed verdict on its counterclaim. In its counterclaim, appellant sought to enjoin future collection of the user maintenance fees. Because we have determined that there was no implied contract, this issue should not arise in the future. We therefore do not reach this issue.
Reversed and remanded.
Robbins and Griffen, JJ., agree.
Daggett is also referred to in the transcript as Evan Daggett. | [
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Terry Crabtree, Judge.
Richard Trott brings this appeal from an order finding that a trust executed by Kathryn Rhodehamel, deceased, did not include the real estate owned by Ms. Rhodehamel at the time of her death, nor the monies held in her account at Superior Federal Bank. For reversal, appellant argues that the trial court erred in ruling that the trust document was not effective to transfer ownership of these properties into the trust. We find no error and affirm.
The record shows that Ms. Rhodehamel executed a document entitled “General Testamentary Trust” on November 23, 1998. The first paragraph of this document provided:
I give, devise and bequeath all the rest, residue, and remainder of my estate, both real and personal and wherever situated, after the payment therefrom of all estate, death and inheritance taxes due from my estate to the Trustee herein named, to be held in trust for the designated beneficiaries, for the uses and purposes and subject to the terms and conditions hereinafter set forth.
Appellant and Cheryl Lynn Trott were appointed as trustees of the trust. The document further provided:
Beneficiaries and Distribution Upon Termination. During her lifetime, Kathryn Evelyn Rhodehamel, shall be the sole beneficiary of this trust and upon her death, the trust shall continue in favor of Richard Thayer Trott and Cheryl Lynn Trott, in equal parts. Provided that should either or both of them predecease Kathryn Evelyn Rhodehamel, the trust shall be distributed in equal parts to their children, provided that if any child of theirs shall have died prior to the time of distribution, leaving a child or children or other descendants, whether natural or adopted, surviving him, then such child or children or other descendants shall receive, per stirpes, the share of the trust which would have passed to their child if he or she had survived to the time of distribution.
Ms. Rhodehamel died intestate on December 21, 2000, at the age of eighty-four. On January 29, 2002, an order was entered appointing an administrator of her estate. The inventory of her estate identified her assets as being her home in Hot Springs and a bank account at Superior Federal Bank containing an estimated $90,000. On April 18, 2002, appellees, Ruth Ann Jones and Richard W. Boyd, filed an entry of appearance and request for notice claiming that they were heirs of the deceased.
On May 28, 2002, the administrator of the estate filed a “Petition for Determination of Testamentary Instrument.” In this petition, the administrator alleged that the trust document mentioned above created a valid inter vivos trust. The administrator also moved to close the estate on the ground that the estate had no assets because “[e]very asset which Kathryn Rhodehamel once owned, and would otherwise constitute an asset of the Estate, was in fact designated, assigned, and transferred as corpus of the trust, having been delivered (Except for Legal Title only) upon the execution and acceptance of the Trust instrument.” With approval of the court and the consent of appellees, the deceased’s home was sold for $175,000. By order of the court, the proceeds of the sale were held in escrow pending the outcome of the administrator’s petition to determine the validity of the trust.
A hearing was held on this petition which consisted only of argument of counsel. No evidence was offered or testimony taken as the parties were in apparent agreement that such was prohibited under the parol evidence rule. The parties briefed the issues, and the court ruled by letter opinion dated November 20, 2002. The court found that, although the document failed as a will, it effectively created an inter vivos trust. The court ruled, however, that the “document, by itself, did not transfer either the. real estate belonging to the Grantor or the Superior Federal Bank account into the trust. The record is insufficient to determine if any other property was transferred to the Trustees for administration in accordance with the terms of the Trust.” The court then denied the petition to close the estate since there were assets to be administered. An order to that effect was entered on January 28, 2003. This appeal followed.
Trusts arise when property has been conferred upon one person and accepted by him for the benefit of another. Carr v. Harington, 107 Ark. 535, 155 S.W. 1166 (1913). In order to originate a trust, two things are essential: First, that the ownership conferred be connected with a right or interest or duty for the benefit of another; and, second, that the property be accepted on these conditions. Id; see also Vaughan v. Shirey, 212 Ark. 935, 208 S.W.2d 441 (1948). The cardinal rule in construing a trust instrument is that the intention of the settlor must be ascertained. Aycock Pontiac, Inc. v. Aycock, 335 Ark. 456, 983 S.W.2d 915 (1998). The burden of proving the existence of a trust rests on the person asserting it, and he must prove it by clear and satisfactory evidence. Quattlebaum v. Hendrick, 179 Ark. 494, 16 S.W.2d 591 (1929).
Appellant argues on appeal that a trust was established which contained the decedent’s house and bank account even though there was no transfer of legal title of these properties to the trustees. Appellant contends that this is so because it was clearly the decedent’s intent to create a trust. We find no merit to this argument.
Our supreme court has held that a settlor may act as trustee and that a trust will be created in that circumstance without a transfer of legal title to the property. Sutter v. Sutter, 345 Ark. 12, 43 S.W.3d 736 (2001) (citing United Building and Loan Ass’n v. Garrett, 64 F.Supp. 460 (W.D. Ark. 1946)). This position is consistent with the Restatement 3rd Trusts § 10(c) (2003), where the comment to this section provides that a trust is created.if the owner of property declares herself trustee of the property for the benefit of one or more others, or for the declarant and one or more others, even though there is no transfer of the title to the trust property. However, the same does not hold true when the settlor designates a third party to serve as trustee. In that situation, the Restatement provides that, if a property owner undertakes to make a donative inter vivos disposition in trust by transferring property to another as trustee, an express trust is not created if the property owner fails during life to complete the contemplated transfer of the property. Rest. 3rd Trusts § 16(1) (2003). The comment to this section provides that, when an owner of property intends to create an inter vivos trust other than by declaration, the owner must transfer the property to the intended trustee. The treatise Scott on Trusts takes the same view. There it is stated that, even though the owner ofproperty manifests an intention to make a present transfer of it to another as trustee, the transfer may be ineffective for lack of the formalities necessary to vest the title in the transferee. William F. Fratcher, Scott on Trusts § 32.2 (4th ed. 1987). Cited for that proposition was the decision in Whitehead v. Bishop, 155 N.E. 565 (Ohio App. 1925), where the court said:
We think the rule is well settled that a voluntary trust is an equitable gift, and like a legal gift inter vivos must be complete. Since delivery is essential to the consummation of a gift, it follows that, whenever the donor undertakes to divest himself of the entire ownership, either by direct transfer to the donee or conveyance to the trustees to hold for the donee’s benefit, the transaction will not be complete unless there is actual delivery of the thing given or of the instrument by which the donor signifies his intention of parting with the control of it. If the donor selects a third person to act as trustee, the subject of the trust must be transferred to him in such mode as will be effectual to pass the legal title.
Accord Krickerberg v. Hoff, 201 Ark. 63, 143 S.W.2d 560 (1940). The case of Dickerson’s Appeal, 8 A. 64 (Pa. 1887), was also noted, where the court observed that a man:
may constitute either himself or another person trustee. If he makes himself trustee no transfer of the subject matter of the trust is necessary; but, if he selects a third party, the subject of the trust must be transferred to him in such mode as will be effectual to pass the legal tide.
Based on these authorities, we hold that a trust was not established in the decedent’s home or bank account since there was no transfer of title. We thus reject appellant’s contention that the decedent’s bare intent sufficed to create a trust in these properties. As was said on this subject by the court in Lewis v. Jackson & Squire, 86 F. Supp. 354, 359 (W.D. Ark. 1949), “intention, without acts, is of no effect.”
Affirmed.
Stroud, C.J., and Baker, J., agree.
In addition to the appellees, there were others who claimed to be heirs of the deceased. By an order dated January 28,2003, the court determined that appellees were her only heirs.
At the hearing, appellant asserted that the trustees had exercised dominion and control of the deceased’s property after the execution of the trust document. However, there was no evidence introduced in support of these facts. We do not consider matters outside the record on appeal. Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (June 19, 2003). | [
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RHONDA K. WOOD, Associate Justice
|,Appellees filed a motion to disqualify asking that I recuse from hearing this appeal and “any case involving Michael Morton or his nursing homes as well as any other nursing home case the decision of which might affect Michael Morton and/or his nursing home businesses.” Ap-pellees cite Rule 1.2 and 2.11 of the Arkansas Code of Judicial Conduct for support. The court as a whole has referred the motion to me because the prayer for relief is directed to me individually, the response that follows is mine. This is consistent with the | ^principle that the decision to recuse rests in the discretion of the individual judge and with how this court has historically treated similar requests. See Villines v. Harris, 359 Ark. 47, 194 S.W.3d 177 (2004); U.S. Term Limits, Inc. v. Hill, 315 Ark. 685, 870 S.W.2d 383 (1994); Spradlin v. Arkansas Ethics Com’n, 310 Ark. 458, 837 S.W.2d 463 (1992); DePriest v. As traZeneca Pharm., L.P., 2009 Ark. 547, 351 S.W.3d 168. The motion is denied.
Appellees contend that the Judge Rhonda Wood for Supreme Court Campaign Committee’s acceptance of contributions in 2013 from Michael Morton and nursing homes that they allege he owns and controls creates an appearance of bias or impropriety. The exhibits attached to appellee’s motion depict that the campaign received fifteen checks in the amount of $2,000 from a list of nursing homes. Appellees allege that Micháel Morton owns these institutions, though they fail to provide documentation in support. The campaign’s January 13, 2014 report provides that those checks were received by the campaign on November 22, 2013. Appellees’ exhibits show that those checks were deposited on November 26, 2013. Appel-lees’ exhibits also include an April 16, 2014 Campaign Contribution and Expenditure Report that depicts five other checks in the amount of $2,000 to the campaign from Michael Morton and other companies ap-pellees allege he owns. According to appel-lees, these exhibits show that Michael Morton and his companies contributed a total of $40,000, or 30 percent of total contributions, to the campaign.
I.qWhile the appellee’ dollar amounts are accurate, they fail to depict the entire campaign. Judicial recusal must be “made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances.” Microsoft Corp. v. United States, 530 U.S. 1301, 1302, 121 S.Ct. 25, 147 L.Ed.2d 1048 (2000) (Rehnquist, C.J.) (emphasis added). Appellees allege that Michael Morton and his businesses contributed $40,000 of the campaign’s total contributions of $134,700. In actuality, the campaign received $154,900 in total financial contributions. Further, as appellees leave unmentioned, the campaign’s April 16, 2014 financial report they attached as an exhibit reflects that the. campaign returned $20,000 of contributions to Michael Morton and the companies appellees allege, he owns. Therefore, the analysis is whether the $20,000 in contributions the campaign retained in 2014 creates an appearance of impropriety for a case that will be before the court in 2017.
Few cases in Arkansas address whether campaign-related matters require recusal by a judge. See Massongill v. Scott, 337 Ark. 281, 991 S.W.2d 105 (1999) (denying a challenge that the judge should have re-cused when one attorney was former campaign treasurer); Eason v. Erwin, 300 Ark. 384, 781 S.W.2d 1 (1989) (stating a judge did not necessarily havé to recuse off case of prominent local lawyer, campaign contributor, and alleged close friend | ¿but that the judge should rule objectively); Committee for Utility Trimming, Inc. v. Hamilton, 290 Ark. 283, 718 S.W.2d 933 (1986) (holding recusal not required). So the Arkansas Code of Judicial Conduct (2015) is.the best guide, and two of its rules are relevant here. First, Rule 1.2 provides that a judge shall “avoid impropriety and the appearance of impropriety.” Second, Rule 2.11(A) provides.that a.judge shall disqualify herself in any proceeding in which the judge’s impartiality might reasonably be questioned.
Under Arkansas law, judges have a duty to decide a case unless there is a valid reason to disqualify. See Perroni v. State, 358 Ark. 17, 186 S.W.3d 206 (2004). Further, judges are given a presumption of impartiality. See Searcy v. Davenport, 352 Ark. 307, 100 S.W.3d 711 (2003). There is a “presumption of honesty and integrity in those serving as adjudicators.” Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). As the United States Supreme Court has stated, “[a]ll judges take an oath to uphold the Constitution and apply the law impartially, and we trust that they will live up to this promise.” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 891, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009) (citing Republican Party of Minn. v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002)). “Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal.” Id. at 884, 129 S.Ct. 2252. Thus, any analysis of whether to recuse. begins with the presumption that the judge fulfill her duty and sit on the case.
. The Arkansas Code of Judicial Conduct specifically addresses the next step in the analysis when specifically considering campaign contributions in conjunction with re-cusal and states the following: “the fact that a lawyer in a proceeding, or a litigant, contributed to . the judge’s campaign, or publicly supported the judge in his or her election does not of itself disqualify the judge.” Rule 2.11, Comment [4]. The comment provides a list of factors to | ^consider in whether there is an appearance of impropriety under the Rule in regards to campaign contributions :
1. the size of contributions;
2. the degree of involvement in the campaign;
3. the timing of the campaign and the proceeding;
4. the issues involved in the proceeding; and
5. other factors known to the judge.
Rule 2.11 Comment [4A].
In applying these factors to the facts supported by appellees’ exhibits and the campaign’s reports, I conclude that I should remain on the case. See Howard W. Brill, Campaign Contributions, Campaign Involvement, and Judicial Recusal, 64 Ark. L. Rev. 103, 111 (2011) (noting that a judge should “consider all these factors”). Under the first factor, the accepted contributions are insufficient to warrant disqualification in an unopposed race. Cf. Caper-ton, supra (reversing on a 5-4 vote a West Virginia Supreme Court’s justice’s decision to remain on case where a party contributed $3,000,000 to support the justice’s campaign); River Rd. Neighborhood Ass’n v. S. Texas Sports, Inc., 673 S.W.2d 952 (Tex.App.-San Antonio 1984) (upholding decision not to recuse where parties contributed 21.7 % and 17.1% of total contributions, respectively, to two appellate judges’ campaigns); Rocha v. Ahmad, 662 S.W.2d 77 (Tex. App.-San Antonio 1983) (upholding decision not to recuse even though the challenged [(justices had received thou sands of dollars from an attorney in the case and that same attorney had hosted the justices’ victory celebrations); Ivey v. Dist. Ct., 299 P.3d 354 (Nev. 2013) (finding no disqualification where trial judge received $10,000 in campaign contributions— 14% of the total received—from a party and his attorney). Notably, in the C'aperton case where the contributions exceeded 3,000,000, it was a 5-4 decision that resulted in holding the judge must reeuse.
Under factor two, appellees do not allege that Michael Morton and the companies he owns played any other role in the campaign. There is no allegation that Morton or any of his companies hosted fundraisers or coordinated activities with the Committee. And’in fact they did not.
Under factor three, the timing between the campaign and the current proceeding is a sufficient cooling-off period. The Committee received contributions between fall 2013 and early spring, 2014. It unlikely this matter will be submitted to this court before the spring of 2017. Indeed, the complaint in the current case was filed in September 2015, well after I had taken the bench on this court. Contrast this with Caperton, where the contributions came to a supreme-court candidate after a $50 million-dollar jury verdict had been rendered and the case’s next stop was the exact court the candidate would be joining. 556 U.S. at 886, 129 S.Ct. 2252. The Court found that “[i]t was reasonably foreseeable, when the campaign contributions were made, that the pending case would be before the newly elected justice.” The same cannot be said here:
Under factor four, the issue on appeal involves class certification, and the appel-lees do not contend that this is ah issue that should cause me to recuse. Last, under factor five, [ 7which involves other facts known to the judge, I note that I have recused from cases involving significant contributions following each of my campaigns over the past eight years until a sufficient cooling-off period passed. I am treating this case and this contributor no differently. Additionally, while Arkansas is a small state and there are occasions for judges to intersect with potential counsel and litigants, I assure appellees and their counsel that I do not have a social or business relationship with Michael Morton or any of the businesses the appellees list.
In all, considering these factors and the surrounding circumstances as well as my.duty to sit, I find that it would not be proper to recuse from this case. All judges have a duty to recuse when the situation warrants but we also have an equal duty to sit when the facts do not justify doing otherwise. Injustice occurs when one makes the wrong decision either way, which is why I certainly did not make this decision lightly. Injustice also would occur if litigants could manipulate the makeup of the court.
More than three years will have passed from when the contributions were made until this case is likely to be submitted to the court. I am not alone in finding that a significant length of time from when the contributions were made heavily weighs against recusal. For example, another judge facing a recusal motion stated that “it requires one further leap of logic to believe that [a] contribution would, years later, create an objective appearance of impropriety.” Dumas v. Auto Club Ins. Ass’n, 488 Mich. 904, 789 N.W.2d 444, 445 (2010) (Kelly, C.J.). I will make decisions impartially on this case and every case that comes before me.
Individual Motion to Recuse Denied.
. The exception has, .been in cases where the request was for the entire court to recuse. See McArty v. Judicial Discipline and Disability Comm’n, 2000 WL 236339 (Ark. 2000).
. The Code of Judicial Conduct provides that to “reduce potential disqualification and to avoid the appearance of impropriety, judicial candidates should, as much as possible, not be aware of those who have contributed to the campaign.” Rule 4.4 Comment 3(A). This is not a mandatory rule. As Rule 4.4 explains, the point of trying to avoid knowledge is to avoid precisely the situation faced in this motion. But by including campaign contribution specifics in the motion, the appellees have made it impossible for me to attempt to abide by the suggested behavior.
Appellees for some reason used an April 16, 2014 campaign report for the total instead of the campaign’s final report.
. Appellees do list other facts unrelated to the amount of contributions and contend that those alleged facts create an appearance of implied bias. The appearance of implied bias in those circumstances is a separate analysis where our court has held "there must be communication of bias." Rockport v. State, 2010 Ark. 449, 374 S.W.3d 660. Appellees fail to allege any communication of bias. | [
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RITA W. GRUBER, Judge
It On January 28, 2013, Tia Ware was sentenced by the Circuit Court of Craig-head County to sixty months’ probation after pleading guilty to delivery of a controlled substance (amphetamine). The State later filed a petition and an amended petition to revoke, alleging that Ware had violated various conditions of the probation. At a September 28, 2015 revocation hearing, the circuit court revoked Ware’s probation upon finding that she had inex cusably violated conditions. She was sentenced to twenty-four months’ probation with twelve months to be spent in a Community Correction Center and was ordered to pay $50 a month toward previously imposed court costs, fines, and fees until fully paid. She appeals 12the resultant sentencing order, contending that the circuit court erred in revoking her probation because there was insufficient evidence that she inexcusably failed to abide by conditions. We affirm.
In revocation proceedings, the circuit court must find by a preponderance of the evidence that the defendant has inexcusably violated a condition of probation. Ark.Code Ann. § 16 — 93—308(d) (Supp.2015). Evidence that is insufficient for a conviction may be sufficient to revoke probation, which requires a lower burden of proof. Lewis v. State, 2016 Ark. App. 101, at 2, 484 S.W.3d 277. A circuit court’s finding in revocation proceedings will not be reversed on appeal unless it is clearly against the preponderance of the evidence. Id. Because the preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the superior position of the trial court to decide these matters. Id.
The circuit court noted that the conditions of Ware’s probation required that she make payments toward her fines, not use controlled substances, and abide by rules and orders of the probation office. Speaking from the bench, the court announced its findings and pronounced sentence:
I noted that in your testimony, you admitted that you missed a couple of meetings and while I don’t like that, that does not concern me as much as your continued use of THC. I noted that your attorney did the best that she could to defend you and your responses to her were to make light of the drug usage while you were pregnant.
I note that the State has met its burden today by a preponderance of the evidence and that you have violated the terms and conditions of your probation and find you guilty of violation of probation. I have in mind to give you the twelve months in the Community Correctional Center as a condition of probation so that Ryou will have the nine months to go into the program there. This will be a condition of 24 month’s probation.
The following evidence supports a finding that Ware violated conditions regarding use of controlled substances and payment of fees and fines.
Tammy Hubble of the Craighead County Sheriffs Office testified that Ware had made only one $20 payment toward the original fines and costs of $1231, which had increased to $1361 because of a $10 monthly fee added to unpaid balances. Amanda Marsh, Ware’s probation officer, testified that Ware was $220 behind on required monthly supervision fees of $35; she had tested positive for amphetamines, “ben-zos,” and THC in January 2015; in May 2015, she had admitted using THC; she had been positive for opiates in August 2015 and had given birth that month; she had been put on a waiting list for a drug program or counseling, but there were no openings; and she had confessed on the day of the hearing to using THC. Ware testified that no one had talked to her about counseling, she had been pregnant with her sixth child-when she used THC, and her positive opiate test was a result of a postpartum prescription given to her. She did not produce evidence of the prescription at the hearing.
We note that the State need show that the defendant committed only one violation in order to sustain a revocation. Lewis v. State, supra. Ware argues on appeal that her failure to comply with conditions of her probation was not inexcusable, pointing in relevant part to her testimony that she was not offered rehabilitative services and to her probation officer’s testimony that she was awaiting services. Ware cites no authority that the State was required to offer a drug'program or counseling. We cannot say that the circuit court clearly erred in [4finding by a preponderance of the evidence that she inexcusably violated conditions of her probation by using illicit drugs.
Affirmed.
Gladwin, C.J., and Kinard, J., agree.
. If a court suspends the imposition of sentence or places a defendant on probation, the court may require confinement to a facility in the Department of Communily Correction as a condition of its order, with the period actually spent in confinement not to exceed 365 days. Ark.Code Ann. § 5-4-304(a), (c)(1)(B) (Repl.2013). | [
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PER CURIAM
_JjOn April 4, 1991, appellant James C. Cason pleaded guilty to aggravated robbery; burglary; felon in possession of firearm; theft of property; manufacture, delivery, or possession of a controlled substance; and fraud/drug paraphernalia for which he was sentenced to an aggregate term of fifty years’ imprisonment. On November 10, 2015, Cason filed a motion to correct time spent in custody pursuant to Arkansas Code Annotated section 5-4-404 (Repl. 2013), claiming entitlement to credit for ninety days of pretrial detention. On December 1, 2015, the trial court denied the motion, finding that his request for jail-time credit against his sentence was a request for modification of a sentence imposed in an illegal manner; as such, Cason had failed to timely seek postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (1995). Cason now appeals the denial of relief. Cason has also filed a motion to expedite the appeal. We reverse and remand and deny the motion to expedite.
12In his motion to expedite, Cason only claims that every day spent incarcerated exceeds the amount of time he should be required to serve. He has failed to state claims in his motion to expedite, which was filed after the case had been fully briefed, that would sufficiently demonstrate an unreasonable delay in the progress of his appeal or establish good cause for the motion to be heard by this court before other postconviction matters that are pending. See Hill v. State, 2014 Ark. 57, 2014 WL 495127 (per curiam). Cason’s motion to expedite is denied.
On appeal, as he did below, Cason contends that he is entitled to credit for time in custody that resulted in a sentence of imprisonment, citing Arkansas Code Annotated section 5-4-404. He notes that the circuit court found that his petition sought a modification of a sentence imposed in an illegal manner and denied him relief pursuant to Rule 37. Additionally, the circuit court discussed a “true clerical error,” which could be corrected nunc pro tunc to make “the record speak the truth, but not to make it speak what it did not speak but ought to have spoken.” Cason argues that, although the circuit court stated that the circuit court’s docket did not reflect that jail-time credit was to be granted, the docket sheet did reflect a credit of ninety days at the time of the plea. Cason contends the record clearly speaks that he was to be given credit for ninety days in the county jail.
The State counters that Cason’s assertion of ninety days’ credit is incorrect and that the period from January 11, 1991, to April 4, 1991, is only eighty-four days. Nevertheless, Cason’s request for jail-time credit is nothing more than a request for modification of a sentence imposed in an illegal manner—a claim that should have been raised pursuant to Rule 37.1, and Cason’s attempt to raise the claim after twenty-four years was untimely. Although the State admits the docket reflects the ninety days’ credit, it contends there is no |3need to address the issue of correcting the order nunc pro tunc because the “fact is irrelevant in light of the trial court’s lack of jurisdiction.”
We agree with the circuit court that it could not modify the sentence pursuant to Arkansas Code Annotated section 5-4-404 because Cason’s request was untimely. Arkansas Code Annotated section 5-4-404 states that if a defendant is “held in custody for conduct that results in a sentence to imprisonment or confinement the court shall credit the time spent in custody against the sentence.” Cason’s request for jail-time credit—credit that he contends is missing from the face of the judgment-and-commitment order—is a challenge that his sentence is illegal or imposed in an illegal manner. A void or illegal sentence is one that is illegal on its face. Barber v. State, 2016 Ark. 54, at 10, 482 S.W.3d 314, 322 (per curiam). A sentence is illegal on its face when it exceeds the statutory maximum for the offense for which the defendant was convicted. Id. If a sentence is within the limits set by statute, it is legal. Id. Cason does not dispute that his sentence does not exceed the statutory maximum. See Delph v. State, 300 Ark. 492, 780 S.W.2d 527 (1989).
Notwithstanding Cason’s claims regarding his entitlement to ninety days of jail-time credit, this court has previously held that a request for jail-time credit is a request for modification of a sentence imposed in an illegal manner. Cooley v. State, 322 Ark. 348, 350, 909 S.W.2d 312, 313 (1995). A claim that a sentence was imposed in an illegal manner must be raised in a petition filed with the circuit court under Rule 37.1. Id.; see also Perez v. State, 2015 Ark. 120, 2015 WL 1332363 (per curiam). Likewise, this court has made clear that, regardless of its label, a pleading that mounts a collateral attack on a judgment is governed by the Lprovisions of our postconviction rule. Green v. State, 2016 Ark. 216, 492 S.W.3d 75 (per curiam).
Cason pleaded guilty on April 4, 1991, and filed his motion to correct time spent in custody on November 10, 2015.' Under Arkansas Code Annotated section 5-4-404, a petition claiming relief under this rule must be filed in the appropriate court within ninety days of the date of entry of judgment on a plea of guilty, or, if the judgment was not entered of record within ten days of the date sentence was pronounced, a petition must be filed within ninety days of the date sentence was pronounced. See Ark. R. Crim. P. 37.2(c) (1991). Clearly, seeking Rule 37.1 relief more than twenty-four. years after sentence was pronounced is untimely. Cf. Cooley, 322 Ark. 348, 909 S.W.2d 312 (Cooley raised a section 5-4-404 claim on direct appeal, meaning he was not without a remedy because he could seek postconviction relief after his appeal.). Therefore, Cason is not entitled to relief under section 5-4-404.
Nevertheless, we reverse and remand the case for the trial court to determine whether Cason is entitled to relief pursuant to Arkansas Rule of Civil Procedure 60(b), which permits correction of an error -by nunc pro time order. Pursuant to Rule 60(b), a trial court may at any time correct clerical mistakes in judgments, decrees, orders, or other parts of the record and errors therein arising from oversight or omission. A true clerical error is “essentially one that arises not from an exercise of the court’s judicial discretion but | sfrom a mistake on the part of its officers (or perhaps someone else).” Francis v. Protective Life Ins. Co., 371 Ark. 285, 293, 265 S.W.3d 117, 123 (2007) (citing Luckes v. Luckes, 262 Ark. 770, 772, 561 S.W.2d 300, 302 (1978)). Rule 60(b) has been applied in criminal cases “where we recognized a .court’s power to correct a judgment nunc pro tunc to make it speak to the truth.” Bates v. State, 2009 Ark. 226, 2009 WL 1098787 (per curiam).
A circuit court’s power to correct mistakes or errors is to make “the record speak the truth, but not to make it speak what it did not speak but ought to have spoken.” Lord v. Mazzanti, 339 Ark. 25, 29, 2 S.W.3d 76, 79 (1999). A nunc pro tunc order may be entered to correct a misprision of the clerk, but the circuit court cannot change an earlier record to correct something that should have been done but was not. Griggs v. Cook, 315 Ark. 74, 78, 864 S.W.2d 832, 834 (1993) (citing Bradley v. French, 300 Ark. 64, 776 S.W.2d 355 (1989)). A circuit court may correct a mere clerical error in a judgment at any time; however, a motion to correct a judgment that is based on a substantive claim falls within the purview of Rule 37.1, not Rule 60. See Samples v. State, 2012 Ark. 146, at 2, 2012 WL 1130592 (per curiam) (Appellant’s motion did not assert a mere clerical error, but instead asserted that the date reflected in the judgment did not conform with the plea agreement which was a substantive claim.); Grissom v. State, 2009 Ark. 557, at 2-3, 2009 WL 3681389 (per curiam) (An amended judgment entered nunc pro tunc to correct a clerical oversight because the judgment did not reflect that the appellant was sentenced as a habitual offender was a proper use of nunc pro tunc order.); McCuen v. State, 338 Ark. 631, 634-35, 999 S.W.2d 682, 684 (1999) (When the trial judge in open court sentenced McCuen to seventeen years in prison and a $30,000 fíne but the fine was left off the judgment and later added by nunc pro tunc order, |r,it was determined that the omission of the fíne in the judgment is “precisely the kind of. clerical error meant to be corrected by a judgment entered nunc pro tunc.”). Essentially, a “nunc pro tunc device cannot be used to enter an order in a case when the trial court has already lost the authority to act.” Griggs, 315 Ark. at 78, 864 S.W.2d at 834.
The issue becomes complicated when both of the principles of Rule 37.1 of the Arkansas Rules of Criminal Procedure and Rule 60(b) of the Arkansas Rules of Civil Procedure appear to be applicable. The case law is seemingly clear that a request for jail-time credit is a request for a modification of a sentence imposed in an illegal manner. Cooley, 322 Ark. at 350, 909 S.W.2d at 313 (citing Delph v. State, 300 Ark. 492, 780 S.W.2d 527 (1989)); see also Perez, 2015 Ark. 120 (A request for jail-time credit is a claim that a sentence was illegally imposed and must be raised in a petition under Rule 37.1.); Bumgardner v. Hobbs, 2014 Ark. 78, 2014 WL 688972 (per curiam) (A claim that the trial court did not allow jail-time credit for eight days, when the judgment reflected credit for sixteen days, is a request for modification of a sentence imposed in an illegal manner and must be raised in a proceeding pursuant to Rule 37.1.); Richie v. State, 2009 Ark. 602, 357 S.W.3d 909 (The circuit court did not impose an illegal sentence, but rather failed to give jail-time credit under section 5-4-304; however, a request for jail-time credit is a request for modification of a sentence that has been imposed in an illegal manner, and Richie could raise his claim in a Rule 37 petition).
In Delph, 300 Ark. at 492-93, 780 S.W.2d at 528, Delph claimed that, pursuant to Arkansas Code Annotated section 5-4-404, he was entitled to an additional 376 days of jail-time credit for time he spent in the Arkansas State Hospital. The trial court found that |7Pelph had agreed at the time of his plea that he was entitled to only 75 days of jail-time credit, that he had waived any entitlement to further credit, and that the trial court lost jurisdiction after 120 days under Arkansas Code Annotated section 16-90-111 (Supp. 1989) to credit any additional jail-time credit. Id. This court agreed that the trial court properly denied the motion on the basis of section 16-90-111. Id.
Unlike the .circumstances in Delph, Cason did not make a request for “additional” jail-time credit and did not challenge any previously agreed-upon terms in his plea agreement. In fact, the circumstances here are much more akin to Cooley, 322 Ark. at 349-50, 909 S.W.2d at 313, where the judgment did not reflect the jail-time credit for one year and three days due to a clerical mistake. However, in Cooley, the issue could not be addressed on appeal because Cooley had not raised it with the trial court, and issues raised for the first time on appeal are not considered by this court. Id. at 350, 909 S.W.2d at 313. Thus, unlike the circumstances presented by Cason, in Cooley, the question of jail-time credit was not raised or addressed under Rule 60(b) as a scrivener’s or omission error, and the appeal was dismissed because Cooley could not seek his relief pursuant to Rule 37. Id. at 351, 909 S.W.2d at 314.
The facts of Cason’s case are distinguishable from other cases on this matter. Cason does not appear to collaterally or even substantially attack his judgment, i.e., he does seek “additional” jail-time credit, nor does he appear to dispute the terms of his plea or the amount of his jail-time credit. See Perez, 2015 Ark. 120, at 2 (Perez was originally granted credit for forty-five days of jail time and made a request for an entitlement to additional credit, which was denied as a postconviction motion, and no alternative motion was ^^contemplated by the trial court.); Samples, 2012 Ark. 146. Moreover, the trial court considered Cason’s request for jail-time credit not only pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure but also under the alternative ground raised pursuant to Rule 60(b) of the Arkansas Rules of Civil Procedure.
While this court ordinarily would hold that a request for jail-time credit is a request for modification of a sentence, under these unique circumstances and under the specific request made here pursuant to Rule 60(b) of the Arkansas Rules of Civil Procedure, Cason has established that there is evidence of a scrivener’s or omission error on his judgment. More specifically, he is not requesting a modification of his judgment per se, but merely requesting that his judgment reflect the jail-time credit that he evinces was granted to him at the time of his sentencing and had been omitted from his judgment-and-commitment order. Cf. Holloway v. State, 2010 Ark. 42, 2010 WL 322995 (per curiam) (Holloway’s request for jail-time credit seven years after the judgment had been entered was upheld as an untimely request for Rule 37 relief but no Rule 60(b) claim was raised.). The trial court concluded that the “requirements for a nunc pro tunc order are not met by the Defendant” and denied the motion for jail-time credit. It found that a request for a nunc pro tunc order was not appropriate because “there is no proof that jail credit was granted tó the Defendant at the time of his plea. The docket sheet of Judge Purifoy when the plea was entered is silent as to the issue of jail credit,” However, the docket sheet appears to have notations indicating Cason was awarded jail-time credit at the time of his plea. Therefore, we reverse its finding that there was no proof of jail credit. We remand the issue to the trial court to examine whether the jail-time credit noted on Judge Purifoy’s docket sheet when the plea was ^entered was sufficient proof to entitle Cason to relief pursuant to Rule 60(b) of the Arkansas Rules of Civil Procedure. If the failure to include the jail-time credit in the order was an oversight or a mistake, it is precisely the kind of clerical error meant to be corrected by a judgment entered nunc pro tunc.
Reversed and remanded; motion to expedite denied.
. Although the judgment bears no file-mark, the docket sheet in the record indicates that the judgment was filed on April 22, 1991, which was more than ten days after sentence was pronounced on April 4, 1991, meaning the ninety days would have begun April 4, 1991. | [
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PER CURIAM
|, This appeal stems from a dispute between appellants Bobby Blackwell and Blackwell Moving & Delivery and appellee Brown’s Moving and Storage, Inc., d/b/a Blue Truck. The case primarily pertains primarily to the enforceability of, and compliance with, a noncompete covenant. Because this court is without jurisdiction, we dismiss the appeal.
In January 2013, appellee and appellants entered into an asset purchase and sale agreement. The agreement provided that appellee would purchase appellants’ assets, phone numbers, name, and goodwill. The agreement also provided for Bobby Blackwell’s (Blackwell) employment with appel-lee for three years and included a covenant not to compete prohibiting appellants from competing, being employed by, or connected with anyone in the moving business in Arkansas for sixty months.
After the agreement had been executed, difficulties arose, and in October 2013 Blackwell stopped working for appellee. It is alleged that, after his employment had ended, |2BlackwelI contacted his former clients to notify them that he no longer worked for appellee and began to perform work for appellee’s clients.
This litigation began on January 10, 2014, when appellee filed a complaint for injunctive and other relief against appellants. Appellee asserted claims for breach of covenant not to compete, breach of employment contract, and breach of contract. It sought temporary and permanent in-junctive relief, damages, and attorney’s fees. Appellants answered and Blackwell individually counterclaimed for breach of employment contract and breach of contract. Later, appellants amended their counterclaim. In addition to the relief previously asserted, Blackwell sought a declaratory judgment that the noncompete covenant was invalid.
On March 13, 2014, the circuit court entered an order granting a temporary restraining order in appellee’s favor. The temporary restraining order prohibited appellants from engaging in the moving business in the State of Arkansas for five years.
On December 11, 2014, appellee filed a motion for order to show cause alleging that appellants had violated the court’s temporary restraining order. Blackwell filed a pro se response denying appellee’s allegations. The circuit court entered an order to show cause on March 31, 2015.
On June 15, 2015, the circuit court held a hearing to consider the motion to show cause. Following the hearing, the circuit court held Blackwell in contempt of court but reserved sanctions. Additionally, the circuit court converted the temporary restraining order into a permanent injunction. An order memorializing these rulings was entered on June 19, 2015.
l.cjOn July 13, 2015, Blackwell filed a notice of appeal of the court’s June 19 order pursuant to Rule 2(a)(1) (2015) of the Arkansas Rules of Appellate Procedure-Civil. Blackwell filed an amended notice of appeal on July 17, 2015. Again, this notice of appeal was from the court’s June 19 order and filed pursuant to Arkansas Rule of Appellate Procedure-Civil 2(a)(1).
Briefing of the appeal commenced. In appellants’ jurisdictional statement, they provided that this appeal is pursuant to Arkansas Rule of Appellate Procedure-Civil 2(a)(6). Later, appellants moved to correct their jurisdictional statement in a motion filed with this court on February 1, 2016. In this motion, appellants contend that their appeal is pursuant to Rules 2(a)(1), 2(a)(13), and 2(b)(1) of the Arkansas Rules of Appellate Procedure-Civil. Our review reveals that this appeal must be dismissed because this court is without jurisdiction regardless of whether appellants’ motion to correct their jurisdictional statement is granted.
We begin with a discussion of whether the appeal may be properly considered pursuant to Arkansas Rule of Appellate Procedure-Civil 2(a)(6). This rule states that “[a]n appeal may be taken from .,. [a]n interlocutory order by which an injunction is granted, continued, modified, refused, or dissolved, or by which an application to dissolve or modify an injunction is refused.”
Even assuming that the June 19 order was an interlocutory order, we are without jurisdiction to decide the merits of this appeal pursuant to Arkansas Rule of Appellate 14Procedure-Civil 2(a)(6). When an appeal is taken from an interlocutory order, the record must be filed with the clerk of the supreme court within thirty days from the entry of the order. Ark. R. App. P.-Civ. 5(a) (2015). The record was not filed with the clerk of the supreme court until October 9, 2015—well over thirty days from the entry of the June 19 order.
Having made this determination, we turn our attention to appellants’ motion to correct their jurisdictional statement. The appellants offer that their corrected jurisdictional statement provides that the appeal is pursuant to 2(a)(1), 2(a)(13), and 2(b)(1) of the Arkansas Rules of Appellate Procedure-Civil. Rule 2(a)(1) provides that “[a]n appeal may be taken from a circuit court ... from [a] final judgment or decree entered by the circuit court.” Rule 2(a)(13) allows for the appeal of “[a] civil or criminal contempt order, which imposes a sanction and constitutes a final disposition of the contempt matter.” And Rule 2(b)(1) contemplates that “an appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment.”
First, we address whether the June 19 order is a final order such that an appeal pursuant to Rule 2(a)(1) or 2(b)(1) of the Arkansas Rules of Appellate Procedure-Civil is proper. An order is not final when it adjudicates fewer than all of the claims or the rights and liabilities of fewer than all of the parties. Farrell v. Farrell, 359 Ark. 1, 193 S.W.3d 734 (2004). It is abundantly clear that the June 19 order is not final for appellate purposes. The June 19 order does not dispose of appellee’s breach-of-employment or breach-of-contract claims. Nor does it address appellants’ counterclaims for breach of employment or breach of contract. Furthermore, the June 19 order clearly contemplates further action by the | .¡circuit court on the issue of Blackwell’s contempt. The order provides that the punishment for contempt is reserved pending the gathering of information. This appeal may not properly be heard pursuant to either Rule 2(a)(1) or Rule 2(b)(1).
Next, we address whether this appeal may be properly brought pursuant to Arkansas Rule of Appellate Procedure-Civil 2(a)(13). This rule provides that a contempt finding is appealable only when it imposes a sanction and constitutes a final disposition of the contempt matter. Here, the contempt finding clearly reserved sanctions and did not constitute a final disposition of the contempt matter.
For the reasons discussed, we dismiss appellants’ appeal and deny the motion to correct jurisdictional statement as moot.
Dismissed; motion denied.
Virden, J., Not Participating.
. A ruling on this motion was held in abey-anee by this court. | [
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BRANDON J. HARRISON, Judge
hTomeko Sharks appeals the Pulaski County Circuit Court’s decision to terminate his parental rights to his child, one-year-old D.S. He argues that terminating his parental rights was not in D.S.’s best interest and that the Arkansas Department of Human Services (DHS) failed to prove a statutory ground to support the termination. We affirm the circuit court’s decision.
I. Case History
In December 2014, DHS took emergency custody of D.S. after someone had reported that Sharks was swinging four-month-old D.S. in a threatening manner at the Pulaski County Courthouse. Police officers arrested Sharks for public intoxication after observing him behave erratically and telling them he would kill D.S. and D.S.’s mother if he had to. The circuit court adjudicated D.S. dependent-neglected in February 2015.. The court found D.S.’s putative father Tomeko Sharks’s “use of alcohol with his prescription ^medication ... make him an unfit par ent.” The court then ordered Sharks, among other things, to
1. Cooperate with DHS
2. Undergo a psychological evaluation if he hadn’t undergone one within the previous six months
3. Attend and participate in individual counseling and follow all recommendations
4. Take medication as prescribed
5. Refrain from illegal drug and alcohol use
6. Undergo a drug-and-alcohol assessment
7. Submit to random drug screens
8. Complete parenting classes
9. Obtain and maintain stable employment or income
10. Maintain safe, stable housing
The court also appointed Sharks a guardian ad litem after he “displayed behavior that concerned the Court.” Because of this behavior, the court ordered Sharks to undergo a drug screen, which was positive for amphetamines. Sharks refused the alcohol portion of the drug test.
A review order was entered June 2015. There, the court wrote,
Putative father [Sharks] has minimally complied with the ease plan and court orders. Specifically, he cancelled his psychological evaluation. He attended one parenting class and was dropped from those classes for nonattendance. He has not submitted to random drug screens when requested by DHS. He had the drug and alcohol assessment. He was positive for benzodiazepines on one screen, but has a prescription to account for that positive screen. He was positive for alcohol on one drug screen. He was arrested several times since the last hearing—two times for public intoxication. lsHe has visited the juvenile six (6) of the ten (10) scheduled visits. He appeared at one of the visits under the •influence, but he was allowed to visit, as he was not inappropriate. No information has been presented, other than his testimony, that he is attending individual counseling or substance abuse treatment. He is evasive and not truthful. He has not cooperated with DHS as far as signing release for V.A. information. He has made no progress towards alleviating or mitigating the causes of the juvenile(s)’ removal from the home.
In its September 2015 permanency-planning order, the court found Sharks to be D.S.’s legal father based on DNA evidence and appointed an attorney to represent him. The court also noted that Sharks “has been incarcerated in Pulaski County Jail since August 16 and expects to be released October 16.” While the court noted that Sharks’s visits with D.S. were “very appropriate,” it also stated that Sharks “did not attend all of the visits before his incarceration, and has missed more visits than he attended.” Sharks had not submitted to random drug screens as ordered or provided a release for DHS to obtain his medical records from the Veterans Affairs. The order states, “The court believes [Sharks] has been in individual counseling and substance abuse treatment at the V.A.; but, there is no documentation to support that claim nor to demonstrate the progress made in treatment.”
DHS petitioned for termination of parental rights in October 2015. The petition alleged that terminating Sharks’s parental rights was in D.S.’s best interest and that two statutory grounds for termination existed under Arkansas Code Annotated sections 9-27-341(b) (3) (B) (vii) (a.) (Repl. 2015) (other-factors-arising ground) and 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i) (aggravated-circumstances ground). Sharks was not satisfied with his appointed attorney, so the circuit court granted Sharks’s request for a continuance and appointed him a different one.
|JI. The Termination Order
■The court held a termination hearing in January 2016 and entered a final order terminating Sharks’s parental rights in February 2016. The termination order, in part, states,
After the filing of the original dependency-neglect petition, other factors or issues arose which demonstrate that placement of the juvenile in the custody of the father is contrary to the juvenile’s health, safety or welfare. This case has been open for over a year, and Mr. Sharks just started completing services a couple of weeks ago, well after the October 15, 2015 date of the filing of the Petition for Termination of Parental Rights. He failed to complete the parenting classes to which he was referred, and was dropped for missing two (2) classes. He continued not to provide his medical records from the V.A., and only provided a release to obtain his medical records two (2) weeks ago. Three (3) referrals had to be made for father for a psychological evaluation, and two (2) referrals for a drug and alcohol assessment. The Court finds Jessica Warren’s testimony to be very credible. Ms. Warren testified, today, that the parents have made á game of whether they will complete services, and are not interested in participating in the services to remedy the cause of the juvenile’s removal. On December 22, 2015, Mr. Sharks told Ms. Warren that the juvenile’s mother had stabbed him in the leg, and that they have a violent relationship. Subsequently, Ms. Warren and a DHS Supervisor talked to mother about severing her relationship with Mr. Sharks, and the mother did not seem to see the issues that would place the juvenile at risk if she remains in a relationship with
Mr. Sharks. Mr. Sharks did not complete his psychological evaluation until January 18, 2016, and only completed his drug and alcohol assessment on January 25, 2016. He has only attended twenty one (21) of fifty five (55) scheduled visits with this juvenile since the case began on December 12, 2014. This week, he presented Ms. Warren with proof of completion of the Centers for Youth and Families parenting class he attended. He did not submit to all of the requested drug screens, as court ordered. He submitted a certificate of participation for completion of the 28-day intensive outpatient substance abuse program at the V.A. Today, Mr. Sharks testified that he is not an alcoholic, and that he has learned his triggers to think he can drink a beer. Mr. Sharks talks a good game, but he does not follow through in any timely or consistent manner with the things that have been put in place by DHS arid this Court to enable him to be a fit and proper parent with whom this child can be placed, in the event the mother was not able to become a fit and proper parent. The Court finds Mr. Sharks very credible regarding his testimony today that his [ ] disease, his disk problems, his hypertension, and his PTSD did not cause him to not participate in services.
|fiThe Court finds Mr. Sharks has ongoing issues related to his mental health diagnosis of PTSD and his alcohol abuse, and those require consistent long-term treatment. Mr. Sharks is not viewing this case or the juvenile’s needs from a realistic perspective, especially when he testified that, although he currently does not have stable housing for the juvenile, he has a sister and brother in town, and they will open up their house immediately. The Court finds Mr. Sharks not credible in his testimony that he did not know he had to work this hard from the beginning, and he was not aware that he was-supposed to participate in the case plan until he was released from his incarceration on October 16, 2015. The Court finds Mr. Sharks to be manipulative, and untruthful, as the Court has made painstaking efforts, every step of the way, to explain to him and the juvenile’s mother, what was happening in the case at each hearing, what was required to enable the juvenile returned to the legal custody of mother or, in the alternative, for the juvenile to be placed in the permanent legal custody of the father, and the time frame in which those services and steps needed to be completed. At times Mr. Sharks would talk erratically and not be focused, and the Court took great' care to ensure he understood what was required of him. At other times, he would talk clearly and appropriately. That is why, from the day after the disposition-hearings the Court appointed a guardian ad litem for Mr. Sharks.
The juvenile’s foster mother, Jessica (last name withheld), testified today that the juvenile attends ninety (90) minutes of speech therapy, sixty (60) minutes of developmental therapy, and sixty (60) minutes of occupational therapy each week. The juvenile is prescribed a Flo-vent inhaler, two (2) times per day, for reactive airway, a nebulizer (which is an albuterol breathing treatment for shortness of breath and wheezing), as needed, and Ranitadine, for his reflux, two (2) times per day. The Court finds this foster mother to be very capable and very truthful. She testified that parenting this juvenile is a full-time job because of his therapies, many medical appointments, many medical issues, and the time it takes to work with him on his speech development. He is very time intensive, has had many medical .emergencies, has been hospitalized several times for breathing difficulties. He gets frequent upper airway infections, and is not like average children because of his difficulty breathing; frequent updrafts and suctioning help his breathing.
DHS has made reasonable efforts throughout this case to provide appropriate services. Although the Court believes Mr. Sharks today when he says he is a different person, this Gourt finds this different person has arrived too late and has done too little before now to show his commitment to complying with the case plan and court orders to become a fit parent who can safely be around his child and even be the parent who has custody. Despite the offer of such services from DHS, the father has shown the ^incapacity and indifference to remedy the subsequent factors or issues or to rehabilitate the circumstances that prevent placement of the juvenile in the custody of the father.
In making this determination to grant the petition for termination of parental rights, the Court has included its consideration of the following factors: the likelihood that the juvenile will be adopted if the termination of parental rights petition is granted; and the potential harm, specifically addressing the effect on the health and safety of the juvenile, caused by returning the juvenile to the custody of the parents. .,. [Sharks] does not recognize, even today, his problem with alcohol, and [ ] needs long-term support to address his issues. .,.
Placing custody of the juvenile with the father could harm the juvenile’s health and safety, because father’s last minute efforts to remedy the causes of the juvenile’s removal are simply not enough to sidetrack this juvenile’s per manency. In addition, father’s insistence that he is not an alcoholic, and can imbibe alcoholic beverages without any risks or repercussions does not bode well for a child who relies on an appropriate caregiver to meet all of his many needs. Father needs long-term, intensive therapy to address his issues in order to put him on a long path to becoming a fit parent.
DHS has an appropriate plan for permanent placement of the juvenile. That plan is adoption. Danyetta. Pride, the adoption specialist, testified that there is a very good likelihood that juvenile will be adopted if the petition to terminate parental rights is granted. Her testimony indicated there are three hundred and fifty nine (359) potential families who have indicated that they are willing to consider adopting children with [D.S.] ’s age, race and characteristics. The positives for adoption are that he is a young child with no major behavior issues, no mental health problems, and his medical issues are being addressed.
III. The Child’s Best Interest
A circuit court’s order that terminates parental rights must be based- on clear and convincing evidence. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction that the allegation has been established. Pratt v. Ark. Dep’t of Human Servs., 2012 Ark. App. 399, 413 S.W.3d 261. Proof qf only one statutory ground is sufficient to terminate parental rights. Gossett v. Ark. Dep’t of Human Servs., 2010 Ark. App. 240, 374 S.W.3d 205.
We review termination-of-parental-rights cases de novo. Cheney v. Ark. Dep’t of Human Servs., 2012 Ark. App. 209, 396 S.W.3d 272, But we will not reverse the circuit court’s ruling unless its findings are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, we give due deference to the opportunity of the circuit court to assess the witnesses’ credibility. Id.
A. Adoptability
Sharks argues first that DHS produced “bare minimum” evidence of D.S.’s adoptability and that the court’s finding that “there is a very good likelihood” that D.S. will be adopted is clearly erroneous. Sharks further contends that .it was unclear that Pride “even understood just how severe D.S.’s medical issues were” and did not explain what “characteristics” she used in her-database search. In Sharks’s mind, this renders the court’s adoptability determination “absolutely legally infirm.” He asks us to reverse the termination decision because DHS produced insufficient evidence of D.S.’s adoptability.
To terminate parental rights, a circuit court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted and (2) the potential harm, specifically addressing the effect on the health and safety of the child, |Rcaused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i)-(ii). While the likelihood of adoption must be considered by the circuit court, that factor is not required to be established by clear and convincing evidence, Hamman v. Ark. Dep’t of Human Servs., 2014 Ark. App. 295, at 9, 435 S.W.3d 495, 501.
A caseworker’s testimony that a child is adoptable is sufficient to support an adoptability finding. Caldwell v. Ark. Dep’t of Human Servs., 2016 Ark. App. 144, at 5, 484 S.W.3d 719, 722. But adoptability is not an essential element of proof. McDaniel v. Ark. Dep’t of Human Servs., 2013 Ark. App. 263, 2013 WL 1776479. The statute does not require any “magic words” or a specific quantum of evidence regarding a child’s adoptability but simply provides that the circuit court consider the likelihood that the child will be adopted in making its best-interest determination. See Smith v. Ark. Dep’t of Human Servs., 2013 Ark. App. 753, at 7, 431 S.W.3d 364, 368-69; see also Renfro v. Ark Dep’t of Human Servs., 2011 Ark. App. 419, at 10, 385 S.W.3d 285, 290. But see Grant v. Ark. Dep’t of Human Servs., 2010 Ark. App. 636, at 13, 378 S.W.3d 227, 233 (reversing court’s best-interest finding when caseworker testified “all children are adoptable,” the child’s autistic condition was not considered in determining whether that child was adoptable, and where the child was “attached to a loving mother who has never volitionally subjected him to harm”).
We agree with Sharks that one particular finding in the circuit court’s order is factually incorrect. The termination order states, “Danyetta Pride, the adoption specialist, testified that there is a very good likelihood that [the] juvenile will be adopted if the petition to terminate parental rights is granted.” But Pride did not testify about a “very good likelihood” that D.S. would be adopted. She did, however, testify that there were 3591¿potential families willing to care for a child with D.S.’s age, race, and characteristics. When asked if there were “positive facts” that supported adoption, Pride answered, “Yes, a young child with no major behavior issues, no mental health problems. He has some medical issues, but they’re being addressed so, yes.”
The issues surrounding D.S.’s medical needs were developed during the termination hearing. D.S.’s foster mother described D.S. as the most “time-intensive” child she had cared for. She classified the level of involvement with D.S. every day as a “full-time job” between his hours of therapy and medical appointments per week. She said that she had taken D.S. to the doctor 20-25 times, not including therapy he receives in the home multiple times a week. D.S. also had to go to the emergency room because of reactive-airway disease and when he gets respiratory infections “he’s not like the average child” and has difficulty breathing.
DHS caseworker Jessica Warren testified that D.S. has a swallowing dysfunction, acid reflux, physical delays and cognitive delays but that adoption specialist Pride knew about those issues. Warren also agreed that Sharks was aware of D.S.’s medical issues and could appropriately care for D.S. “if he’s not under the influence.” When asked what the potential harm of returning D.S. to his parents would be, Warren replied:
The potential harm to returning [D.S.] to Mr. Sharks at this time would be— the Department doesn’t know if—when and if Mr. Sharks will, you know, drink alcohol or get under the influence to where he’s acting erratic and violent, and puts the child in the same situation when the child was removed. Also, the relationship that Mr. Sharks and Ms. Jordan share together, it—it has been violent throughout the case ... physical. I believe that the child was in their presence and Mr. Sharks—Ms. Jordan is stabbing Mr. Sharks; the baby could—it—put in harm’s way. It’s not fair to—to the child to have to—to go through something like that when the parents have their own problems that need to be worked out.
ImWarren explained that Sharks had demonstrated stability only within the last month and a half of the case and that the Department would need to see more stability and sobriety before D.S. could safely be returned.
We hold that the court’s ultimate conclusion that terminating Sharks’s parental rights was in D.S.’s best interest is not clearly erroneous. The polestar consideration is that, after consideration of all relevant circumstances, a termination of parental rights is in the child’s best interest. See McFarland, v. Ark. Dep’t of Human Servs., 91 Ark. App. 323, 210 S.W.3d 143 (2005). While no witness in this case testified that D.S. “was adoptable” or said that there was a “very good likelihood” of adoption, it is clear enough from the record that the circuit court did what it was statutorily required to do: consider the likelihood that one-year-old D.S. would be adopted. While Sharks may have been able to care for D.S. if he remained sober, the circuit court could find that D.S.’s need for permanency through adoption outweighed Sharks’s need for time to walk the “long path to becoming a fit parent.” We are not firmly and definitely convinced that a mistake was made and affirm on this point.
B. Potential Harm
Sharks also argues that DHS produced insufficient evidence of potential harm in returning the child to him. Potential harm is a factor that the circuit court must consider in assessing the child’s best interest. Ark. Code Ann. § 9-27-341 (b)(3) (A) (ii). The court is not required to find that actual harm would ensue if the child were returned to the parent nor to affirmatively identify a potential harm. Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722. The potential-harm analysis is to be conducted in broad terms. Thomsen v. Ark. Dep’t of Human Servs., 2009 Ark. App. 687, 370 S.W.3d. 842.
Here, the circuit court did not err in its consideration of the potential-harm factor. Although Sharks tried to rehabilitate himself in the eleventh hour, these improvements heed not be necessarily credited by the circuit court and do not necessarily outweigh evidence of prior noncompliance. See Henderson v. Ark. Dep’t of Human Servs., 2010 Ark. App. 191, 377 S.W.3d 362. By the time Sharks had been released from jail and had begun serious rehabilitation efforts, D.S. had been in DHS custody for nearly a year. Over the course of the case, Sharks tested positive for alcohol, was arrested at least twice for public intoxication, and was inconsistent in visiting D.S. While Sharks’s purposeful efforts to complete most of the significant aspects of the case plan in the six weeks before the termination hearing are admirable, they do not warrant reversal. Had Sharks put forth those efforts earlier in the case, a termination may have been prevented, but Sharks’s efforts to get his life together were still a work in progress at the time of the termination hearing. Given Sharks’s history of mixing prescription medications and alcohol, his arrests for public intoxication, and his odd behavior during previous hearings, the court was not clearly wrong to find a likelihood of potential harm if D.S. was to return to his custody. Past actions of a parent over a meaningful period of time are good indicators of what the future may hold. Thompson v. Ark. Dep’t of Human Servs., 2010 Árk. App. 167, 374 S.W.3d 143. Sharks’s behaviors over the course of the entire case do not show enough stability and sobriety to render the court’s finding that Sharks posed a risk of - potential harm' to D.S. clearly erroneous.
|12C. Too Little, Too Late?
Sharks also argues that the circuit court’s statement that a “different person has arrived too late and has done too little before now to. show his commitment to complying with the case plan and court orders to become a fit parent who can safely be around his child and even be the parent who has custody” is clearly prohibited by Prows v. Arkansas Department of Health & Human Services, 102 Ark. App. 205, 283 S.W.3d 637 (2008). In Prows we held that a circuit court erred as a matter of law when it refused to consider or weigh evidence about a parent’s recent improvements in a termination-of-parental rights case. There, the circuit court stated from the bench that it was required to terminate a parent’s rights if a child was not able to go home with the parent immediately after the hearing. We said that the termination statute requires the circuit court to consider a parent’s compliance during the entire dependency-neglect ease and the evidence presented at the termination hearing in deciding whether termination is in the child’s best interest. Ark. Code Ann. § 9-27-341(a)(4)(B). Here, the circuit court clearly considered and weighed Sharks’s compliance throughout the entire case and did not lightly reject his last-minute efforts. Because the court considered and weighed everything and excluded nothing, there is no reversible error under Prows. We affirm on this point.
IV. Statutory Ground For Termination
To terminate parental rights only one statutory ground is needed. Here the circuit court terminated Sharks’s parental rights using the “other factors” ground:
[O]ther factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested Lsthe incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent the placement of the juvenile in the custody of the parent.
Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a).
Sharks argues that the court erred when it terminated his rights because “there is nothing in the record to demonstrate that the issues addressed by the case plan were not remedied, or at least so insufficiently addressed that termination was warranted.”
The circuit court did not err in terminating Sharks’s parental rights on this statutory ground. Subsequent factors bearing on Sharks’s parental fitness arose after the filing of the original dependency-neglect petition in this case. These included a positive alcohol screen, missed drug screens, and Sharks’s arrests and incarceration on public-intoxication charges. Sharks also did not comply with the court’s orders to obtain a psychological evaluation and a drug- and-alcohol assessment until just days before the termination hearing. He did not have a stable living situation for the court to place D.S. with him, not when the termination hearing convened. Sharks’s excuse of not understanding what was required of him is a credibility determination that the circuit court was permitted to make. While there was evidence that Sharks was complying with the case plan, the court did not have to ignore that his compliance did not begin until the “eleventh hour.” See Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 354, 201 S.W.3d 391, 400 (2005). The circuit court did not have to credit Sharks’s statement that he did not know that he had been ordered to cooperate with DHS and participate in counseling and that he “was pretty much dumbfounded” when he finally understood “all the ramifications of this Court proceeding.” Given our deference to the circuit court’s credibility determinations, we find sufficient 114evidence to support a termination of parental rights under Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a).
Affirmed.
ABRAMSON and KINARD, JJ., agree. | [
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PHILLIP T. WHITEAKER, Judge
|, Appellant Mohammed Siddiq appeals from an order of the Saline County Circuit Court revoking his probation and sentencing him to 180 months in the Arkansas Department of Correction. We find no error and affirm.
Appellant entered a plea of nolo conten-dere to one count of aggravated robbery in the Saline County Circuit Court. The circuit court sentenced appellant to 120 months’ probation at that time. As a probationer, appellant was subject to certain terms and conditions, including conditions that he .must not commit a criminal offense punishable by imprisonment and must not associate with persons who had been convicted of a felony or persons who were engaged in criminal activity.
The State subsequently filed a petition for revocation of appellant’s probation, alleging that he had committed the offenses of false imprisonment, robbery, aggravated assault, and | ¡.third-degree battery and that he had associated with persons who were engaged in criminal activity. Follow ing a hearing, the circuit court found that appellant had violated the terms and conditions of probation, revoked his probation, and sentenced him to 180 months in the Arkansas Department of Correction. Appellant filed a timely notice of appeal and now argues that the evidence was insufficient to support the revocation of his probation.
Our standard of review in eases involving the revocation of probation is well settled. The State must prove the violation of a probation condition by a preponderance of the evidence. McClain v. State, 2016 Ark. App. 205, 489 S.W.3d 179; Green v. State, 2015 Ark. App. 291, 461 S.W.3d 731. We will not reverse the circuit court’s findings unless they are clearly against the preponderance of the evidence. Id. Evidence that would not support a criminal conviction in the first instance may be enough to revoke probation or a suspended sentence. Id. Determining whether a preponderance of the evidence exists turns on questions of credibility and the weight to be given to the testimony. Id.
On appeal, appellant argues that the testimony at the revocation hearing was “replete with inconsistencies, contradictions, and outright lies.” He therefore contends that the “State’s reliance and the trial court’s acceptance of the inconsistent and contradictory testimony of the State’s witnesses were clearly against the preponderance of the evidence.” He also asserts that the circuit court’s “apparent determination of credibility (which was provided without explanation! ]) cannot be recon-died- with the testimony and evidence.” UMore specifically, appellant argues that the State failed to present evidence to establish any criminal activity on his part or that he was associated with individuals involved in criminal activity. We disagree.
The testimony and evidence, introduced at trial came from several of appellant’s acquaintances, as well as his brother, Yoosuf Siddiq., Although several of the witnesses’ stories contradicted each other in some respects, the evidence tended to show the following sequence of events. On March 13, 2014, appellant spent the morning with his girlfriend Brittany. Potter, Erica McNeely, and Kalus Austin. Brittany, Erica, and Kalus were taking Xanax and smoking marijuana while appellant was “just, drinking.” Later in the day, Brittany discovered some money missing, and she formed a suspicion that Erica and Kalus had taken it. Several people became involved in an attempt to recover the missing money. Appellant, Brittany, and Jonathon Cox got into, one vehicle; Yoosuf, Ronald Spears, and Xavier Reed got into another car; and all of them, drove to the America’s Best Inn in Bryant, where Erica and Kalus were staying.
Once they arrived at the hotel, the five men went to Erica and Kalus’s room. After Kalus let them in, a “tussle” broke out between appellant and Kalus. Several witnesses, including Jonathon, Erica, and Xavier, said that they- saw appellant hit Kalus first. After the men left the hotel room, Erica noticed that a pair of Air Jordan sneakers and a necklace had pbeen taken. Shortly thereafter, she heard gunshots. After police were called to the scene, Bryant Police Officer Steve Miller observed scratches and a knot on Kalus’s head. The police subsequently found the stolen shoes in Yoosuf s vehicle.
In this case, although there were some inconsistencies in the witnesses’ testimony, the circuit court was presented with enough evidence to conclude, at the very least, that appellant associated with persons who were engaged in criminal activity. Gary Higgins, with the Department of Community Correction, testified about the terms and conditions of appellant’s probation, noting that he had been specifically warned that he was not to associate with people who were engaged in criminal activity, not to be with convicted felons, and not to engage in acts that would constitute a crime. It was undisputed that someone stole a pair of shoes from Erica and Kalus’s hotel room. Regardless of whether appellant took the shoes himself, someone in the group of people who accompanied appellant to the hotel stole the shoes, thus providing evidence that appellant was associating with persons who were engaged in criminal activity. In addition, Erica testified that earlier in the day before the motel incident occurred, appellant had been present when she and Kalus were taking drugs. This also provided evidence that appellant associated with persons who were engaged in criminal Inactivity. The State need only prove that a defendant violated one probationary term or condition before a circuit court may revoke probation. McClain, supra.
Appellant claims that the witnesses were not credible. However, we will defer to the circuit court’s determinations regarding the credibility of witnesses and the weight to be given testimony. Ware v. State, 2016 Ark. App. 284, at 2, 494 S.W.3d 438. Because the circuit court’s decision in this case was not clearly against the preponderance of the evidence, the revocation of appellant’s probation is affirmed.
Affirmed.
GRUBER and HOOFMAN, JJ., agree.
. At the conclusion of the hearing, the court stated that it would "find that the allegations in that petition [for revocation] are true for committing the offenses of robbery, aggravated assault, battery in the third, and associating with persons who are engaged in criminal activity.”
. Xavier later explained that Yoosuf had fired three shots from the car after they left the scene.
. Jonathon, Yoosuf, and Xavier all acknowledged that they were convicted felons, although Jonathon and Xavier testified that they did not know whether appellant knew they were felons. | [
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RAYMOND R. ABRAMSON, Judge
| Nikki Lansdell appeals from the permanency-planning order placing permar nent custody of her daughter, T.M., with the child’s paternal grandparents and awarding Nikki visitation. On appeal, Nikki argues that the evidence is insufficient to support the circuit court’s decision to not apply statutory permanency-planning goal one, two, or three from Arkansas Code Annotated section 9-27-338 (Repl. 2015). We affirm.
On February 8, 2015, the Arkansas Department of Human Services (“DHS”) exercised an emergency hold over T.M. after Nikki had been arrested for possession of drug paraphernalia with the intent to manufacture methamphetamine, use of a communication device to facilitate drug activity, criminal use of property, and unlawful entry of contaminated property. The charges were related to an active meth lab at Nikki’s residence. |aNikki lived in the residence with her husband, Vaughn Lans-dell, and T.M. At the time of her arrest, Nikki tested positive for methamphetamine, amphetamines, benzodiazepines, opiates, oxycodone, and marijuana. T.M.’s father, Matthew McCoy, had supervised visitation with T.M. pursuant to a divorce decree.
On February 13, 2015, the court found probable cause for the emergency custody as a result of Nikki’s drug use, her criminal charges, and the domestic violence in the home. The court noted that Nikki was in jail. Upon her release, the court ordered her to participate in individual counseling; refrain from using drugs and alcohol; submit to a drug-and-alcohol assessment; follow the recommendation from the assessment; submit to weekly random drug screens; obtain and maintain stable housing and employment; resolve all criminal charges; and demonstrate the ability to protect T.M. and keep her safe from harm. As a result of the domestic violence, the court also ordered that Vaughn have no contact with T.M. The court placed T.M. with her paternal grandparents, Theresa and Mike McCoy.
On March 6, 2015, the court adjudicated T.M. dependent-neglected. The court noted that Nikki remained in jail but continued its orders from the probable-cause hearing. The court also set the goal of the case as reunification and ordered that Nikki have supervised visitation with T.M. upon her release from jail.
On July 31,2015, the court held a review hearing. The court found that Nikki was in partial compliance with the case. Specifically, the court found that she had not maintained contact with DHS or obtained stable housing. The court further noted that Nikki’s criminal charges were still pending. The court found that Nikki had completed the drug-and-alcohol | ^assessment, had taken parenting classes, and had attended two counseling sessions. The court authorized Vaughn to participate in counseling with T.M. upon approval by the counselor.
On November 6, 2015, the court held a permanency-planning hearing. At the hearing, Antoinette Johnson, the DHS caseworker, recommended that the court permanently place T.M. with her paternal grandparents, Theresa and-Mike McCoy. Johnson testified that T.M. was doing well in the McCoys’ home, and she questioned Nikki’s stability. She recognized that Nikki had an apartment in Fayetteville with her husband Vaughn but feared the residence was only temporary. She explained that Nikki had moved from residence to residence in the past and that her criminal charges were still pending. She also voiced concerns about T.M.’s emotional state and noted that Vaughn had an extensive criminal history that included violent crimes and pending criminal charges.
Theresa McCoy testified that T.M. had acclimated well to her home and that she wanted T.M. to remain there. She noted that T.M. has glaucoma and that she puts eye drops in every night. She explained that T.M. had an appointment with a pediatric ophthalmologist in Little Rock in February to better diagnose the problem. She testified that she had been supervising T.M.’s visits with Nikki and that the visits had gone well. She discussed one occasion where Nikki and her ex-husband had a verbal altercation, but she noted that Nikki had been appropriate in T.M.’s presence. Matthew McCoy, T.M.’s father, testified that he wanted his daughter to live with his parents.
Nikki testified that she wanted T.M. to return to her home. She denied that Vaughn had a history of violence and further denied that he had pending criminal charges. She stated 14that he was on probation for a drug-paraphernalia charge. She stated that T.M. is not afraid of Vaughn and that T.M. wanted to see him. Nikki testified that she is participating in the drug-court program for the charges that led to T.M.’s removal. She also stated that she had a permanent job at Southeast Poultry in Rogers and had been employed there since June 5.
Vaughn testified that he lives with Nikki and also works at Southeast Poultry. He noted that he has a son, W.L., who had been removed from his custody. He stated that he is involved in W.L.’s custody proceedings. He explained that he had been convicted of drug charges in Madison County in October 2015 and that he had received three years’ probation. He also stated that he had been convicted in 2006 for drug charges. Following Vaughn’s testimony, the court continued the case until January 22, 2016, because T.M.’s counsel- or, Diane Shott, could not attend the hearing.
Prior to the second hearing; on January 20, 2016, DHS filed a report again recommending that T.M. be permanently placed with the McCoys. The report noted that since the November 6, 2015 hearing, Nikki had been arrested twice during altercations with Vaughn. Specifically, on November 13, 2015, Nikki and Vaughn had an altercation at work, and on December 31, 2015, they had an altercation in Fayette-ville, The report noted that after Nikki’s release from the Washington County Detention Center on January 1, 2016, officers transported her to Boone County on charges from Alpena City.
The court proceeded with the second portion of the permanency-planning hearing on January 22, 2016. At the second hearing, Johnson again recommended that the court permanently place T.M. with the McCoys. She explained that since the last hearing, Nikki had maintained her job, housing, and sobriety; however, she recom mended that T.M. not |fibe placed with Nikki because of her relationship with Vaughn. She explained that Nikki and Vaughn had engaged in violent altercations since the case had been opened and she did not believe that Nikki had demonstrated a genuine investment in T.M. She noted that Nikki had filed for protection orders against Vaughn in the past and had threatened to leave him but she had not followed through.
Diane Shott testified that she had counseled T.M. for several months and that T.M. had made substantial progress. Shé testified that initially, T.M. was very afraid and struggled with behavioral and anger issues. Specifically, Shott noted that T.M, was afraid of Vaughn. Shott was not concerned with Nikki’s having custody of T.M.; however, she was concerned with T.M.’s living with Vaughn. She explained that Vaughn had only participated in the counseling sessions only via telephone. Shott did not offer a recommendation on T.M.’s placement but stated that T.M. should “be in the safest place possible with consistency.”
Nikki testified that since the last hearing, she and Vaughn had legally separated and that she planned to file for a divorce in February. She explained that Vaughn had been charged with aggravated assault against her, which led to their separation. She noted that a court had issued a no-contact order as a result of the assault, but she had seen him on one occasion despite the order. She stated that the second altercation occurred between other people, not her and Vaughn; she just happened to be there. She recognized that she had returned to Vaughn in the past but stated she would not return to him on this occasion. She noted that he was no longer named on the lease to her apartment.
Nikki testified that she had been participating in the drug-court program and had tested negative on all drug tests. She stated that if she maintained her success, she would [ r,complete the program in nine months. She explained that she had been arrested on January 1, 2016, for failing to register her vehicle. She admitted knowing about the warrant but mistakenly believed that the charge had been consolidated with her drug charges. She recognized that she had made mistakes in the past, and she thanked the McCoys for taking care of T.M.
Teresa Driver, Nikki’s counselor, testified that Nikki had made great progress in counseling and that she trusted Nikki. She stated that Nikki had completed “everything that [has] been asked of her.” She believed that Nikki had ended her relationship with Vaughn.
Following Driver’s testimony, the court orally ruled that it was in the best interest of T.M. to permanently place her with the McCoys. The court entered a written permanency-planning order on February 22, 2016, reflecting its oral pronouncement. In the written order, the court specifically found that Nikki had “not made measurable, sustainable, and significant progress toward the case plan goal of reunification.” The court noted,
[Nikki] has made some progress toward alleviating or mitigating the causes of removal and completing the Court orders and the case plan. Specifically, [Nikki] has addressed her substance abuse issues. However, [T.M.] was removed from [Nikki]’s custody due to [her] drug use and [Nikki] being arrested. [Nikki] was arrested as recently as January 1, 2016. As such, [Nikki] has not remedied that condition of removal. Additionally, [Nikki] has failed to demonstrate an ability to protect [T.M.] and keep her safe from harm, as evidenced by [Nikki]’s continuing relationship with Vaughn. Though [Nikki] testified today that she plans to divorce [Vaughn,] Nikki remains married to [Vaughn] today.- [Vaughn] is violent and dangerous. [Nikki] has not demonstrated that [Vaughn] is out of her life such that [t]his Court can be confident that [T.M.] would be safe if [T.M.] were returned to [Nikki]’s custody today.
The court awarded Nikki supervised visitation for four hours per week and gave the McCoys discretion to increase the visits as Nikki made further progress.
|7Nikki timely appealed the permanency-planning order to this court. On appeal, she argues that the evidence is insufficient to support the circuit court’s decision to award permanent custody to the McCoys, Specifically, she asserts that the court should have applied statutory permanency-planning goal one, two, or three at the hearing. She points out that she had substantially complied with the case plan, had maintained her sobriety throughout the proceedings, had been compliant with the drug-court requirements, and had separated from Vaughn.
We review findings in dependency-neglect proceedings de novo, but we will not reverse the circuit court’s findings unless they are clearly erroneous. Contreras v. Ark. Dep’t of Human Servs., 2014 Ark. 51, 431 S.W.3d 297 (citing Lamontagne v. Ark. Dep’t of Human Servs., 2010 Ark. 190, 366 S.W.3d 351). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, based on the entire evidence, is left with a definite and firm conviction that a mistake has been committed. Id. Furthermore, this court defers to the circuit court’s evaluation of the credibility of witnesses. Id., 431 S.W.3d at 300.
Arkansas Code Annotated section 9-27-338 lists the permanency goals that a circuit court can consider at the permanency-planning stage of dependency-neglect cases. The goals are listed “in order of preference,’/ and the court must select a goal based on the best interest, health, and safety of the juvenile. Ark. Code Ann. § 9-27-338(e).
The first goal is placement of the juvenile with a fit parent. Ark. Code Ann. § 9-27-338(e)(l). The second goal is to return the juvenile to the guardian or custodian from whom the juvenile was initially removed. Ark. Code Ann. § 9-27-338(c)(2): The third goal allows the court to authorize a plan to place custody of the child with a parent if (1) the parent is | «complying with the case plan and making measurable progress; (2) the parent is making significant progress toward remedying the conditions that caused removal or that prohibited the placement of the juvenile in her home; and (3) the return of the juvenile will occur within three months. Ark. Code Ann. § 9-27-338(c)(3)(A)-(B); Ragsdale v. Ark. Dep’t of Human Servs., 2014 Ark. App. 159, 2014 WL 988979. For the third goal, the burden is “on the parent to demonstrate a genuine, sustainable investment in completing the requirements of the case plan and following the orders of the court in order to authorize a plan to return or be placed in the home as the permanency goal.” Ark. Code Ann. § 9-27-338(c)(3)(iii). The sixth goal is permanent custodial placement with a “fit and willing relative.” Ark. Code Ann. § 9-27-338(c)(6). The burden of proof in a permanency-planning hearing is preponderance of the evidence. Ark. Code Ann. § 9-27-325(h).
In this case, we hold that the circuit court did not clearly err in bypassing the first, second, and third goals and plac ing permanent custody of T.M. with the McCoys. As to the first and second goal, the evidence showed that Nikki’s husband, Vaughn, posed a danger to T.M. and that Nikki’s relationship with him was uncertain. Nikki and Vaughn had two altercations between the November and January hearings. Even though Nikki testified that she had separated from Vaughn and planned to file for a divorce, DHS presented testimony that Nikki had a history of returning to the relationship. Moreover, Nikki was arrested during the second altercation for an unresolved warrant, and she had nine months remaining |9in the drug-court program. Accordingly, we cannot say that the court clearly erred when it refused to return T.M. to Nikki’s custody at the permanency-planning hearing.
For similar reasons, we cannot say that the court clearly erred in finding that Nikki was not making significant and measurable progress as to allow T.M. to be returned within three months pursuant to goal three. T.M. was removed from Nikki’s custody as a result of her drug use and her criminal charges. In the probable-cause order, the court also found that T.M. had been exposed to domestic violence in the home and ordered Nikki to demonstrate the ability to protect the child and keep her safe from harm. As discussed above, the evidence at the permanency-planning hearing showed that Nikki had nine months remaining in the drug-court program, had two recent altercations with Vaughn, and had been arrested for an unresolved warrant. The second altercation and the arrest for the unresolved warrant occurred just weeks before the second hearing. We note that the permanency-planning statute requires the court to select a goal based on the best interest, health, and safety of the juvenile, see Ark. Code Ann. § 9-27-338(c), and T.M.’s counselor had concerns about T.M.’s living with Vaughn and recommended that the court place T.M. “in the safest place possible with consistency.” Accordingly, giving due deference to the circuit court’s superior position to assess credibility, we hold that the circuit court did not clearly err in not applying goal three.
Affirmed.
Harrison and Kinard, JJ., agree.
. Nikki's son from a previous marriage, J.G., was also removed from the home. However, the court later placed J.G. in his father’s custody, and he is not a party to this appeal.
. The altercation occurred with J.G.’s father, Robert Vangundy.
. Nikki does not argue on appeal that the court should have applied the fourth or fifth goal. Accordingly, they are not relevant to this appeal. | [
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PHILLIP F. WHITEAKER, Judge
11 Alison Peck brings this appeal from the order of the Pulaski County Circuit Court dismissing her first amended complaint against appellee Hannah Peck Finley where she alleged that Finley breached her fiduciary duties to Alison under a family trust. We hold that the circuit court did not conduct a proper analysis of the motion to dismiss; therefore, we reverse and remand for further proceedings consistent with this opinion.
|2I. Factual and Procedural History
The current appeal is a part of a series of litigation over the Peck Family Trust and the Peck Marital Trust created by Robert Peck. Robert Peck was the father of Alison and the husband of Finley. He created the Peck Family Trust, a revocable trust, on May 8, 2001. Robert created the trust for the purpose of providing for the support, education, maintenance, and preservation of the health of Finley during her lifetime. Robert was to be the trustee during his lifetime, with Finley named as trustee upon his death. Robert also created trust provisions for his children. Upon the death of Finley, the trust assets were to be divided among beneficiaries, including Alison. Robert Peck passed away in 2006 and was survived by Finley, Alison, and his other three children.
After Robert’s death, issues arose concerning the assets of the trust. In particular, the ownership of a mobile by Alexander Calder known as “Autumn Leaves” (“the Calder”) was questioned. The Calder was purchased by Robert’s parents in the 1950s, and Robert had possession of the Calder after their deaths. Upon Robert’s death, Finley assumed possession of the Calder. Finley maintained that she received the Calder under her husband’s will. Finley eventually sold the Calder for $3.3 million net after commissions. Finley deposited |sthe proceeds into her own personal account and not the account of the trust. Finley also invested the proceeds, which resulted in some major losses.
In May 2008, the first lawsuit in this series of litigation began. Finley filed a declaratory-judgment action (the 2008 action) to determine ownership of the Calder. Finley sued Alison and her three siblings, as well as her own children, as defendants. Alison defended the 2008 action, taking the position that. Finley did not own the Calder but that the Calder was instead owned by one of her siblings, Capi Peterson. Alison also filed a counterclaim asserting that Finley had breached her fiduciary duties to her and her siblings, that Finley was liable as trustee to them, and for an accounting. The 2008 action was dismissed without prejudice in October 2009.
In-October 2010, the- second lawsuit in this series of litigation occurred (the 2010 action). Capi' Peterson filed an action against Finley, as trustee. Peterson alleged that she was the owner of the Calder as the recipient of an inter vivos gift, that Finley wrongfully sold it to a third party, and that Finley was liable to Peterson -for its value. Peterson sought an accounting for the Peck Family Trust and damages for the sale of the Calder. Finley answered the complaint and counterclaimed for a declaratory judgment to determine that ownership of the Calder was in the Peck Family Trust and that Peterson had violated the terms of a share-cancellation provision of the trust. After a bench trial, the circuit court dismissed Peterson’s complaint, finding that the Calder was an asset of the trust, that there was no evidence that Finley acted in bad faith or with reckless indifference with regard to |4her trust, duties, and that Peterson had forfeited her interests in the trust through the share-cancellation provision and thus lacked standing to sue as a beneficiary of the trust.
Peterson appealed, and we affirmed the circuit court. Peterson v. Peck, 2013 Ark. App. 666, 430 S.W.3d 797. In that case, we held that Peterson failed to prove the elements of an inter vivos gift. We also affirmed the court’s determination that Peterson forfeited her interest in the trust because her amended complaint questioned Finley’s actions as trustee without any evidence that Finley had acted in bad faith.
In May 2014, the current lawsuit in this series of litigation began. Alison originally sued Finley seeking a declaratory judgment of Finley’s duties as trustee and her own rights as a beneficiary to be kept promptly informed of all material information regarding administration of the trust. Alison also asserted that Finley was required to produce reports beginning in 2006 but failed to do so despite repeated requests, and that Finley acted in bad faith and with reckless disregard of Alison’s rights and otherwise failed to administer the trust in good faith.
Finley adamantly defended the cause of action. Finley responded initially to Alison’s original complaint with a motion to dismiss seeking dismissal under two theories. First, she took the position that Alison was barred from asserting her claim by the savings statute. Essentially, she argued that Alison filed a counterclaim in the 2008 lawsuit, voluntarily nonsuited this claim, and failed to refile it within one year. As a result, she was precluded from doing so now by the savings statute. Second, she took the position that Alison’s pleadings in the 2008 action asserting that Peterson owned the Calder and that Finley had breached her fiduciary duties triggered the share-cancellation provision of the trust, thus | ¿forfeiting her interest as a beneficiary and depriving Alison of standing. The circuit court denied the motion to dismiss without explanation.
Finley next answered the complaint, denying that Alison was a qualified beneficiary of the trust or had standing to seek a declaratory judgment because of the prior 2008 action. She also filed a motion for summary judgment, asserting that Alison’s interest in the trust had been forfeited because of the prior 2008 litigation. Finley later amended her motion for summary judgment, contending that the interests of Alison and her sister, Peterson, were so intertwined that they stood in privity with each other and therefore res judicata barred relitigation. The circuit court denied Finley’s motion and amended motion for summary judgment by separate orders without explanation.
After the denial of the summary-judgment motions, Alison amended her complaint, seeking a declaratory judgment and adding claims for conversion, breach of fiduciary duty, deceit, and unjust enrichment or the imposition of a constructive trust. She also sought an accounting and punitive damages. Finley responded with a motion to dismiss, arguing that Alison Peck was a contingent, rather than a qualified beneficiary, and, as such,' lacked standing to challenge Finley’s actions as trustee.
The circuit court granted Finley’s motion to dismiss Alison’s first amended complaint. The circuit court found that Alison had forfeited her right as a beneficiary under the share-cancellation clause of the trust and was deprived of standing. The share-cancellation clause of the Peck Family Trust provides as follows:
4.9. Share Cancellation. Should any of Grantor’s children, or their issue, institute any action to challenge the provisions of the trusts established by this document, or to attack the validity of such trusts, or to remove Hannah Kay Peck as Trustee, or question her actions as Trustee, then, and in that event, the share to which such child | fi(or his or her issue) would otherwise be entitled, shall be forfeited and added to the shares of the remaining beneficiaries.
The circuit court recognized that the share-cancellation clause was at issue in the 2010 litigation. That litigation resulted in an appellate decision. The court then relied on what it saw as our interpretation of the share-cancellation provision in the prior Peterson appeal that the mere filing of an action challenging Finley’s actions as trustee triggered - the share-cancellation provision. The court granted the motion to dismiss with prejudice.
Alison filed a motion for reconsideration, reasserting her argument that the share-cancellation provision could not be applied to her because Arkansas Code Annotated section 28-73-1008(a)(l) (Repl. 2013) made such a provision unenforceable. After the motion for reconsideration was' deemed denied, this appeal followed.
II. Analysis
On appeal, Alison contends that the circuit court erred in dismissing her first amended complaint based on the share-cancellation provision. She also argues, as she did below, that the share-cancellation provision could not be applied to her because of Arkansas Code Annotated section 28-73-1008(a)(l). She further argues that her amended complaint stated sufficient facts to show that Finley acted in bad faith or with reckless indifference to come within the ambit of section 28-73-1008. Finley responds by arguing that the circuit court’s decision is supported both by the savings statute and by res judicata.
|7We cannot consider the savings-statute and res-judicata issues raised by Finley. Although Finley made these arguments to the circuit court below, she did so in her motion to dismiss Alison’s original complaint and in her motions for summary judgment also directed to the original complaint. The circuit court denied the motion to dismiss the original complaint and the motions for summary judgment as to the original complaint. By doing so, the circuit court denied the savings-statute and res-judicata arguments presented by Finley;
Alison subsequently filed an amended complaint; however, an amended complaint, unless it adopts and incorporates the original complaint, supersedes the original complaint. McMullen v. McHughes Law Firm, 2015 Ark. 15, at 11, 454 S.W.3d 200, 207; Farmers Union Mut. Ins. Co. v. Robertson, 2010 Ark. 241, at 5, 370 S.W.3d 179, 183. Here, Alison’s amended complaint contained no language incorporating the original complaint. Moreover, Finley’s motion to dismiss the amended complaint was based solely on the assertion that Alison lacked standing under the share-cancellation provision to bring the action because the amended complaint challenged Finley’s actions as trustee. She failed to raise her savings-statute and res-judicata arguments again in opposition to Alison’s amended complaint. Thus, we do not address the issues because they are not properly before us. See Biedenharn v. Thicksten, 361 Ark. 438, 206 S.W.3d 837 (2005).
The amended complaint was dismissed pursuant to a Rule 12(b)(6) motion. Ark. R. Civ. P. 12(b)(6). Our standard of review regarding Rule 12(b)(6) motions requires that we look to the four corners of the complaint. See Biedenharn, supra. When we review a circuit court’s order granting a motion to dismiss, we treat the facts alleged in the complaint as true hand view them in the light most favorable to the plaintiff. Id. “In viewing the facts in the light most favorable to the plaintiff, the facts should be liberally construed in the plaintiffs favor.” Id. at 441, 206 S.W.3d at 840. (internal citations omitted). Our standard of review for the granting of a motion to dismiss is whether the circuit court abused its discretion. Sanford v. Walther, 2015 Ark. 285, 467 S.W.3d 139; Doe v. Weiss, 2010 Ark. 150.
We find that the circuit court abused its discretion when it granted the motion to dismiss. We conclude from the circuit court’s comments from the bench that it did not look at the factual allegations contained in Alison’s amended complaint or consider Alison’s arguments concerning whether the share-cancellation provision was unenforceable under section 28-73-1008. Instead, the court took the view that Peterson held that the mere filing of a lawsuit challenging the trustee’s actions triggered the share-cancellation provision without regard to whether the trustee was acting in bad faith or with reckless indifference.
Our decision in Peterson is not dispositive of this case because Peterson was concerned with ownership of the Calder artwork. This is distinguishable from the present case, which is concerned with whether Finley breached her fiduciary duties to Alison as a beneficiary. Also, there were no allegations in Peterson that the share-cancellation provision was unenforceable under section 28-73-1008. Moreover, Peterson was decided after a full trial on the merits, whereas the present case was dismissed pursuant to Arkansas Rule of Civil Procedure 12(b)(6).
Therefore, based upon the foregoing conclusions, as well as our standard of review regarding Rule 12(b)(6) motions, we hold that the circuit court erred in granting Finley’s motion to dismiss. Accordingly, we reverse and remand for the circuit court to determine lawhether Alison’s amended complaint states sufficient facts showing that Finley acted in bad faith or with reckless disregard of the trust’s purposes or of Alison’s interests as a contingent beneficiary.
Reversed and remanded.
KINARD and HIXSON, JJ., agree.
. On June 15, 2001, Robert Peck created another Peck Family Trust that appears to be identical to the May 8, 2001 trust.
. Alison’s siblings are Capi Peck Peterson, Ashley Peck O’Dell, and Tony Peck.
. In January 2005, Robert Peck amended and restated the May 2001 trust. He also executed a will that left all artwork and most of his other personal property to Finley if she should survive him.
. Finley’s children were also listed as beneficiaries under the Peck Family Trust.
. Alison was not a party to the 2010 action.
. Section 28—73—1008(a)(1) provides that “[a] term of a trust relieving a trustee of liability for breach of trust is unenforceable to the extent that it relieves the trustee of liability for breach of trust committed in bad faith or with .reckless indifference to the purposes of the trust or the interests of the beneficiaries[.]” | [
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Humphreys, J.
Appellant sued appellee in the circuit court of Pulaski County on an insurance policy issued by appellee, to her husband providing payment to her as beneficiary of $3,000 in the event of her husband’s death “from bodily injuries effected solely through accidental means.” It was alleged in the complaint that, during the. life of the policy, her husband, Joel Lee Price, was accidentally killed by being shot to death unexpectedly and by chance.
Appellee filed an answer denying that Joel Lee Price was accidentally killed but, on the contrary,' was killed by officers of the law in a fight which he provoked and in which he was the aggressor at a time when he and a man by the name of Eagle were engaged in robbing Terry Dairy Company plant at Scott and Eighteenth streets in Little Rock, Arkansas.
The cause was submitted upon the pleadings and evidence adduced, at the conclusion of which the court instructed a verdict against appellant and dismissed her complaint, from which is this appeal.
According to the undisputed testimony, Price and Eagle, wearing masks, and Price being armed with a .45 caliber automatic pistol, entered the property of Terry Dairy Company, tied its night watchman in the barn, broke into its iron safe, and were prowling through the building when officers appeared on the scene; that, in going out of a room into the hall, they were discovered and called to by the officers, whereupon they turned and ran into adjoining rooms; that officers Huston and Pate entered the door leading into a dimly lighted room in which Price was hiding and called to him that they were officers, whereupon he shot at them without notice and continued to fire until he was mortally wounded by them and fell to the floor; that they secured his pistol and a statement from him- that Eagle was in an adjoining room; that officers Walker and Huston entered the adjoining room in search of Eagle and, upon being attacked by him, they shot and instantly killed him; that during the time Price was shooting at Huston and Pate, Huston shot Price three times and Pate shot him twice, all five shots taking effect; that he fell to the floor when the last shot was fired by Huston into his head; that Price shot four times, twice at each officer, none of which took effect; that subsequently Price died from one or more of the wounds received by him during the encounter.
The general rule of law is that death resulting from bodily injuries effected solely through accidental means in insurance policies does not include death resulting from wounds received in an-encounter provoked by the insured or in which he was the aggressor and from which he did not attempt to retire in good faith; nor does it include death inflicted during the commission of a voluntary or intentional act on his part, the inevitable result of which, he could have or should have foreseen. Mutual Life Insurance Company v. Distretti, 159 Tenn. 144, 17 S. W. (2d) 11; McGuire v. Metropolitan Life Insurance Company, 164 Tenn. 32, 46 S. W. (2d) 53.
An insured engaged in the commission of a felony who, when discovered in .the act, becomes the aggressor in an effort to shoot his way out, necessarily takes chances on being killed, and, if killed in an effort to escape, his death cannot be regarded as accidental within the terms of such policy. He oug’ht to have anticipated or expected death from his own culpability, and hence, if killed, his death is not accidental.
Appellant contends, however, for a reversal of the judgment because Huston made a statement within 48 hours after the killing to the effect that he accidentally killed Price while he was trying to shoot the .45 caliber automatic pistol out of his hand. H. O. Davis testified that Huston made such a statement to him-. Huston denied making the statement. Appellant argues that, on account of the conflict in the testimony between Huston and Davis, the court should have allowed the jury to determine the issue of whether the killing was intentional or accidental. Even if it be conceded that Huston was impeached so that the jury would have disregarded his testimony, yet the facts detailed above, were supported by other undisputed evidence, especially by the testimony of Pate; or, to state it differently, if the-testimony of Huston were entirely eliminated from this record, the remaining undisputed evidence showed that, while Price was engaged in the commission of a felony; he was discovered, and, in order to escape arrest, he opened fire upon the officers and continued to fire upon them until he was killed by them in necessary self-defense. The court, therefore, correctly told the jury that it was shown by the undisputed evidence that Price deliberately brought on his own death; hence that his death was not accidental within the meaning of the policy.
No error appearing, the judgment is affirmed. | [
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Smith, J.
Appellant brought unlawful detainer to recover possession of a farm from appellee, who was in possession of the land under an unexpired lease at the time appellant bought it. Appellee was evicted, and filed an answer asserting his right to the possession, and, in a cross-complaint, he prayed damages for his alleged wrongful eviction.
The principal issue in the case, except that of the damages, is presented in an instruction requested by appellant, which reads as follows: “No. 2. If you-find from the evidence that the defendant had a rental contract for the rent of the land in question for the year 1932, and that, when plaintiff Heard learned that he claimed to have such a contract, he offered and proposed permitting him to proceed under such contract, and if you further find that defendant Griffin declined to accept such proposition;.and by word and acts led the; plaintiff to believe that he did not desire to retain possession and remain on the land for the year 1932, and that, acting on such impression, plaintiff Heard rented said lands to another, you are instructed that defendant Griffin would be estopped to set up his rental contract for the year 1932, if any, and you will find for the plaintiff.”
There was a conflict in the testimony touching the questions of fact referred to in the instruction, which have been settled by the verdict of the jury in appellee’s favor, the testimony being sufficient to support the verdict.
The verdict of the jury in appellee’s favor is conclusive of the issue of fact that the eviction was unauthorized. Damages were assessed by the jury in appellee’s favor in the sum of $500, and judgment was rendered accordingly.
It is insisted that the instructions on the question of damages were erroneous, and that there was no testimony showing appellee had been damaged by his eviction.
We are of the opinion, however, that there was sufficient competent testimony to support the verdict of the jury. There was testimony that the rental value of the farm was much more than the amount of rent which appellee had agreed to pay. There was testimony also to the effect that appellee had sustained certain special damages, these consisting in the value of work which had been done by appellee to prepare the land for cultivation and the expenses of his removal from the farm. The testimony as to the difference between the rent reserved and the actual rental value, and that as to the special damages, was legally sufficient to support an even larger • judgment. The truth of this testimony was, of course, a question for the jury.
The instruction which submitted these issues reads as follows: “No. 9. You are instructed that, if you find from the evidence that W. H. Griffin was caused to be wrongfully evicted in this case by the plaintiff, you will take into consideration as elements of damage the difference in the rental value of the property and the amount of rent which Griffin was to pay, the value of the work and improvements he had made up to the time of his eviction, the expense of moving for himself which you find from the evidence, if any, he has caused to suffer as a direct and natural consequence of the wrongful act of the plaintiff, if you find there was any wrongful act of plaintiff.”
There is no error in this instruction. McElvaney v. Smith, 76 Ark. 468, 88 S. W. 981.
As there appears to be no prejudicial error in the record, the judgment must be affirmed It is so ordered. | [
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Smith, J.
This appeal is from a judgment sentencing appellant to a term in the penitentiary for unlawfully possessing a still. For the reversal of this judgment it is insisted that the testimony is not legally sufficient to sustain thé conviction; that the court erred in refusing to give certain instructions and in permitting the prosecuting attorney to make an improper and prejudicial argument.
As to the sufficiency of the testimony, it may he said that four officers testified that they were searching for a still, which they found about daylight. ' After finding the still, they watched until about nine a. m., when appellant and another man were seen coming to the still, leading a horse laden with sacks, which were later found to contain chops and sugar. Near the still were tubs, buckets and other equipment used in operating a still, and several barrels of mash ready to run were found. When the men arrived they began to carry water to the still and to fill the still with mash. There was a gasoline burner under the still, which they lighted, and began to cook the whiskey. After watching these operations for about forty-five minutes, they arrested the men, who made a futile attempt to escape. This testimony sufficiently supports the finding that appellant was in possession of the still. Conley v. State, 176 Ark. 654, 3 S. W. (2d) 980; Vincent v. State, 171 Ark. 759, 286 S. W. 944; Miller and Gregson v. State, 171 Ark. 756, 286 S. W. 949; Lacefield v. State, 171 Ark. 655, 286 S. W. 818; Day v. State, 170 Ark. 786, 281 S. W. 11; Davis v. State, 167 Ark. 472, 268 S. W. 853; Goodwin, v. State, 161 Ark. 266, 255 S. W. 1095; McGuffin v. State, 156 Ark. 392, 246 S. W. 478; Wright v. State, 155 Ark. 169, 244 S. W. 12; Ring v. State, 154 Ark. 250, 242 S. W. 561; Francis v. State, 177 Ark. 431, 7 S. W. (2d) 769; Coe v. State, ante, p. 344.
Appellant requested an instruction numbered 3, which the court refused to give, reading’ as follows:
“You are told that the State in this case depends upon circumstantial evidence for the conviction of the defendant, and in such cases you are told that the testimony given- against the defendant must be of such a character as to exclude every reasonable hypothesis save his guilt, and you are further told that, if it is as reasonable that the offense charged could have as well been committed by another as. by the defendant, you should find the reasonable dou'bt in favor of the defendant, and acquit him.”
No error was committed in refusing to give this instruction, as the 'State did not depend upon circumstantial evidence, and the jury was correctly charged as to the necessity of finding appellant guilty beyond a reasonable doubt before convicting him.
When appellant took the stand as a witness in his own behalf he was asked, on his cross-examination, if he had not entered a plea of guilty in the Federal court to an indictment based on his arrest as set out above, and he admitted that he had entered such a plea, and was given a sentence under Avhich he had served a term of five months and five days in prison. The prosecuting attorney, in his argument to the jury, referred to this testimony, and the court, upon . objection being made thereto, admonished the jury that the testimony could be considered only in passing on the credibility of appellant as a witness, and not as evidence of Ms guilt. The record is in some confusion, and counsel for appellant apparently acquiesced in this ruling. But, whether he did or not, no error was committed in the ruling made. Indeed, it was more favorable to appellant than he had a right to ask. The testimony of appellant touching his plea of guilty in the Federal court on the same charge was a circumstance which the jury had the right to consider, not only as affecting his credibility as a witness hut also as a circumstance tending to show his guilt of the offense here charged. His plea of guilty was in the nature of a declaration against interest, and was admissible as such. . Of course, he had the right to offer any explanation of this plea, just as he would to explain any other declaration against his interest tending to show his guilt of the offense charged against him. Any statement made by appellant in entering this plea would have 'been admissible against him, just as any other oral admission made elsewhere would have been.
In the case of McCarty v. Commonwealth, 254 S. W. 887, the Court of Appeals of Kentucky said: “That a plea of guilty in another case involving" the same facts is competent evidence against a defendant in a criminal case, is generally recognized (16 C. J. 630), and this court so held in Ehrlich v. Commonwealth, 125 Ky. 742, 102 S. W. 289, 31 Ky. Law Rep. 401, 10 L. R. A. (N. S.) 995, 128 Am. St. Rep. 69.” See also Addington v. Commonwealth, 254 S. W. 889; Thornsbury v. Commonwealth, 268 S. W. 342; Bibb v. State, 83 Ala. 84, 3 Sou. 711; Commonwealth v. Callahan, 108 Mass. 421.
Certain other assignments of error are argued, but they do not appear to require discussion, and, as no error appears, the judgment must be affirmed, and it is so ordered. | [
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Kirby, J.
Appellant states correctly that there is hut one question involved in this appeal, whether the recording of a mortgage of personal property in, the Osceola District of Mississippi County, where the property was situated, while the mortgagor resided in Blythe-ville, in the Chickas-awba District in said county, created a lien on the abstract books mortgaged.
The abstract books were purchased by appellee at a sale duly made by the trustee in bankruptcy, the mortgagor having been declared a bankrupt more than four' months- after the execution of the mortgage and the record thereof at Osceola, where the books were situated at the time of this suit and in the possession of the appel-lee company.
A mortgage of personal property does not constitute a lien upon the property mortgaged until the same is filed for record in the recorder’s office in the county in which the mortgagor resides, or in the district of his residence where the county is divided into districts. Sections 7380-81, C. & M. Digest; Beaver v. Frick Company, 53 Ark. 18, 13 S. W. 134.
By act 81 of 1901 and act 468 of 1919, amendatory thereof, Mississippi County was divided into two judicial districts, designated as the Osceola District and the Chickasawba District, the acts expressly providing that, for all purposes thereof, these districts should be considered as separate and distinct counties, the amenda-tory act requiring the clerk to keep a record of the sales of lands for taxes, the formation and alteration of school districts, the establishment and location of roads and highways and of ditches and drainage districts, and the alteration thereof, a record for all deeds of trust and mortgages and other instruments required by law to be recorded, “and to record all such instruments pertaining to the property rights of the Chickasawba District, and shall either file or record all chattel mortgages pertaining to personal property in said district in his office in said district, and all such instruments, when so filed or recorded, shall have the same force and effect as if filed or recorded at Osceola, in said county.”
Appellant concedes that the recording of the mortgage at Osceola would have created no lien on the property there situate, the mortgagor at the time residing in the Chickasawba District, under the terms of the original act of 1901 creating the two districts of the county, and that proper construction of the act would be controlled by the decisions above cited. He insists, however, that the amendment to the act providing for the filing or recording of chattel mortgages in the Chicka-sawba District, and that all such instruments, when so filed or recorded, ‘ ‘ should have the same force and effect as if filed or recorded at Osceola in said county,” changes the effect of the law, and that chattel mortgages pertaining to property situate in the Osceola District create a valid lien when filed or recorded there, so long as the mortgagor resided in Mississippi County, without regard to his being a. resident of the Chickasawba District.
The law as amended, only pertains to property in the Chickasawba District, and has no reference to chattel mortgages of property in the Osceola District, leaving the law relative thereto as it was prior to the division of the county into districts by the said act of 1901. It is the duty of the court, in the construction of statutes, to arrive at the legislative will, to be determined primarily from the language of the statute itself, and to sweep aside all obstacles in the way of accomplishing it, and if a statute is susceptible of two constructions, one of which would render it an absurdity and the other would not, the latter will be adopted. McDaniel v. Ashworth, 137 Ark. 280, 209 S. W. 646; Standard Oil Co. v. Brodie, 153 Ark. 124, 239 S. W. 753; Southern Surety Co. v. Dardanelle Road Improvement District, 169 Ark. 764, 276 S. W. 1014, 42 A. L. R. 299.
The fair and reasonable construction of the statute dividing the county into two districts and providing, for all purposes of the act, that they should be considered as distinct counties, and the amendment relating expressly to the filing or recording of chattel mortgages in the Chickasawba District, could mean only that such mortgages, when filed or recorded in such district, would create a lien on the property mortgaged under the same conditions as the filing or recording of a chattel mortgage in a county not so divided, and any other construction would render it an absurdity, or amount to a repeal of such statute.
The decree is correct, and must be affirmed. It is so ordered. | [
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Kirby, J.,
(after stating the facts). The second surety bond was required to be furnished by the depository bank upon a demand therefor by the county judge under the authority of act 163 of 1927, § 14, of which reads in part as follows:
‘ ‘ The county court, or the judge thereof, may at any time, if he deems it desirable, require a new bond, or additional bond to be filed by any depository selected under this act.” The county judge demanded the execution of the new bond because of having heard of the opinion of the Attorney General that the law required it, and since most of the county officials were required to execute such surety bonds. This bond was executed and approved, and was in a sufficient amount to secure all the money paid into the depository under the law.
It was shown that all the moneys due the county and school districts were in the depository at the time the new bond was required to be executed. It appears from the testimony also that it was the intention to require the securing of the entire amount that might come into the depository thereafter by the new bond, which was given in lieu of, and in substitution for, the old bond, and not in addition thereto. Sai’d surety bond was duly executed, approved and delivered to the depository bank, which had the moneys of the county in its possession at the time.
It has been held that a surety cannot be released from a county treasurer’s bond from any liability which had already been incurred. Ex parte Talbot, 32 Ark. 424. It was also said there that the court had the discretion, however, to require the treasurer to give a new bond or security for the performance of official duties, and, upon the execution and approval thereof, the sureties on the old bond would be discharged from future liability, but not from any present liability. '
The statute relative to the discharge of sureties on the former official bond by the execution of a new bond provides that, when a new bond is taken and approved, it shall operate as a discharge of all the sureties in the former bond from all liability arising from any subsequent misconduct or default of the principal therein, and such sureties shall thenceforth be liable only on such bond for such breach thereof as shall have happened prior to the taking and approving of the new bond. Section 8303, Crawford & Moses’ Digest.
It may be urged that a depository bond is not an official bond within the meaning of the statute, but the law requires the execution thereof for the protection and security of public funds collected by public officials and deposited therein, and we see no good reason why there should be a rule for less or more liability for the sureties on the bonds of such depository than is required by law of the sureties of the official who collects the money in the first instance. Such depository bonds have been held to be official bonds. Maryland Casualty Co. v. Pacific Co., 245 Fed. 831.
The new bond was filed January 10, 1930, and approved January 25,1930, and was intended to be in lieu of and supersede the old bond, as already said. On that day the bank had on hand $35,701.85 to the credit of the treasurer, and on January 18, a few days before the new bond was approved, his balance was $34,051.17, and was gradually reduced afterwards. The treasurer continued under the new bond to make deposits and draw out funds, and by November 17, 1930, he had .drawn out $77,073.36, having a balance on hand of $29,118.29. The action of the county treasurer, after he knew of the opinion of the Attorney General and' that the new bond had been made and approved, and after his talk with the county judge about it, was certainly tantamount to acceptance on his part of the new bond instead and in lieu of the old bond, and, since he withdrew from the bank an amount in excess of the balance as of January 10, 1930, the old bond was discharged. State use Randolph County v. Pocahontas State Bank, 184 Ark. 442, 42 S. W. (2d) 546. See also School District v. McCrary, 187 Ark. 800, 62 S. W. (2d) 953, and Jefferies v. Wasson, 187 Ark. 519, 60 S. W. (2d) 903.
It will be remembered that the chancery court, at the first hearing on the approval of the proposed sale by the Bank Commissioner, denied it, and at a later hearing additional testimony was taken, which was included in the findings and decree approving the sale. There was no action taken to prevent the carrying out of the decree authorizing the sale, and the treasurer and the school districts, being fully advised about the matter, will be held to have ratified the decree.
It is manifest that the new surety bond was executed to take the place of and supersede the old bond, and that the conduct of the treasurer and the school districts amounted to a ratification of the proceeding, and the sureties on the old bond were discharged thereby. The chancellor erred in holding otherwise, and, for this error, the decree is reversed, and, the cause having been fully developed, same will be dismissed.. It is so ordered. | [
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McHaney, J.
Appellants, Herndon and Cornelius, have organized a voluntary association for the purpose of furnishing burial benefits to those who may become members of such association, and who conform to the by-laws, rules and regulations thereof. They applied to the Securities Division of the State Bank Department for a permit to sell certificates of membership in the association under the authority of § 5 of act '264, Acts of 1933, p. 820. The application for a permit was refused because the department was of the opinion that appellants proposed to engage in the life insurance business, and that they should first comply with the insurance laws and obtain authority from the Commissioner of Insurance, before the bank department would be authorized by law to issue a permit to sell its membership certificates. Appellants then brought mandamus to compel the Commissioner to proceed according to law in respect of said application, alleging that it was not an insurance association, and that the insurance laws have no application. The circuit court denied the writ, and this appeal followed.
We are of the opinion that the circuit court erred in refusing- to award the writ. Section 5 of said act 264 provides that, an association, such as appellants propose to operate, “is hereby declared to be an investment company, and shall be required to submit an application, pay a similar fee, and obtain a permit from the Securities Division of the Bank Commissioner in the manner as now provided by law of other investment companies, and shall be required,” etc. Act 264 deals wholly with investment companies. No mention is made of insurance companies or associations. While no doubt, the Legislature has the power to classify such associations as appellants’ to be insurance companies, neither act 264 nor any other act, with which we are familiar, has done so. It is contended by appellee that appellants come within the purview of act 139 of 1925, relating to assessment,life, health and accident insurance associations, but we cannot agree that such is the fact. Burial associations are not included by name, and a careful-reading of said act shows they were not contemplated. The business of such associations does not come therefore under the jurisdiction of the Insurance Commissioner, especially in view of § 5 of act 264, Acts of 1933. See State ex rel. Reece v. Gooch, 165 Tenn. 97, 52 S. W. (2d) 143. It was there held that such associations do not come under the juris-, diction of the insurance commissioner of Tennessee under insurance laws quite similar to ours.
We do not pass upon the merits or demerits of the plan of the association, whether the plan is good or bad, as that is a matter for the consideration of the Bank Commissioner. We do hold, however, that the Commissioner should consider the application for a permit without regard to the insurance laws of the State. The judgment will be reversed, and the cause remanded with directions to award the writ as prayed. | [
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Hart, C. J.,
(after stating the facts). This court has uniformly held that the office of the writ of prohibition is to restrain an inferior tribunal from proceeding-in a matter not within its jurisdiction, but it is never granted unless the inferior tribunal has clearly exceeded its authority and the party applying for the writ has no other adequate protection against the wrong that shall be done by such usurpation. Macon v. LeCroy, 174 Ark. 228, 295 S. W. 31.
Again, in Merchants’ & Planters’ Bank v. Hammock, 178 Ark. 746, 12 S. W. (2d), 421, the court held that the writ of prohibition is never granted unless the inferior court has clearly exceeded its jurisdiction and the party applying for it has no other adequate protection against the wrong that shall be done by such usurpation of authority.
In each of these eases the writ was denied because the lack of jurisdiction in the chancery court did not appear upon the face of the record. In each case the jurisdiction of the chancery court depended upon a finding of fact upon proof made relative to certain allega tions made in the complaint on the one hand and a denial thereof in the answer on the other.
We are of the opinion that the material facts in the present proceeding, as they appear from the face of the record, show that the chancery court has no jurisdiction over the person of the petitioner in the alimony case and could acquire none within the principles of law decided in Order of Railway Conductors v. Bandy, 178 Ark. 694, 8 S. W. (2d), 448. In that case we held that the circuit court acquired no jurisdiction of a suit ou a benefit certificate issued, delivered and made payable at the office of the insurer in another State, by the attempted service of summons on the Insurance Commissioner under our statute authorizing such service, where the insurer had no property in this State and had not attempted to do business within the State. The court pointed out that, if the defendant had appealed from the order of the circuit court denying its motion to quash service of summons, this would have made it a party to the case, and, under our settled rules of practice, it would have had to follow the case throughout all subsequent proceedings. The same principle was also recognized and applied in the ease of Ferguson v. Martineau, 115 Ark. 317, 171 S. W. 472, Ann. Cas. 1916E, 421, where it was held that, when the want of jurisdiction on the part of the chancery court to restrain the execution of a criminal judgment of the circuit court appears on the face of the proceedings, a writ of prohibition to quash and to restrain the enforcement of the order of the chancery court will be issued. That principle controls here, and the court, is of opinion that it appears from the face of the record in this proceeding that the chancery court has-no jurisdiction over the person of Guy Stanley Caldwell, Jr., the petitioner herein, in the alimony proceeding in the chancery court, and' could acquire none. It does not concern us here which one of the parties deserted the other, or whether the petitioner' should be required, in. a proper proceeding, to support his wife and, child. The allegations of the wife in her proceeding for alimony in the Pulaski Chancery Court were that the defendant was a nonresident of the State of Arkansas and had no property in this State. She also specifically alleged that he had refused to provide his wife and child the necessaries of life, and declared that he would leave the State and never return in order to prevent the payment of alimony here or the costs of the alimony proceeding. This brings us to the question whether the chancery court obtained jurisdiction of the person of the petitioner by service of summons while he was under arrest in the municipal court of Little Rook, charged with the statutory crime of wife and child abandonment, or whether he entered his appearance to the alimony suit by executing a bail bond in order to escape a jail sentence for not complying with the temporary order for alimony made by the chancery court.
In Stewart v. Ramsey, 242 U. S. 128, 37 S. Ct. 44, it was held that a district court sitting in one State cannot acquire personal jurisdiction over a citizen and resident of another State through civil process served upon him while in attendance upon such court as plaintiff and witness, and while he is returning from the court room after testifying. The court said that the State courts, with few exceptions, have followed the rule, and among the illustrative cases cited is Martin v. Bacon, 76 Ark. 158, 88 S. W. 863, 113 Am. St. Rep. 81, 6 Ann. Cas. 61. In that case the court held that a party cannot be lawfully served with civil process while he is in attendance on a court in a State other than that of his residence, either as a party or a witness, or while going thereto or returning therefrom. It was also held that, where a nonresident was attending court in order to avoid a forfeiture of his bail bond, service on him by process in a civil suit will be quashed.
In the later case of Hogue v. Hogue, 137 Ark. 485, 208 S. W. 579, it was held that, where a suit for divorce was pending in another State, and the husband and wife came into the State of Arkansas for the purpose of tak ing depositions, the hushand was protected from service of summons while in the State in an action by the wife against him.
Again, it is insisted that the writ should not be granted because of a question of fact presented by the proceedings before us as to whether the criminal process of the municipal court was used as a pretense. According to the allegations of the petition, the wife of the petitioner caused him to be arrested in the municipal court of Little Rock in order to detain him here and secure service on him in the alimony suit which she subsequently filed. He alleges that he gave his wife no cause to abandon him, and that she willfully left him in the 'State of Texas and came to Arkansas without his consent. He alleges that he came into the- State of Arkansas for the purpose of seeing his wife and child and talking over their marital differences with a view to getting his wife to return to the State of Texas. On the other hand, the wife< alleges that she was compelled to leave the defendant in the State of Texas because of his cruel and unbearable treatment of her, and that she came to Arkansas to live with her mother because she had no other place to go. She alleges that her husband came into the State of his own accord, and that she had nothing whatever to do with his arrest in the municipal court. We are of the opinion that this conflict as to the facts on this point has no bearing upon the issue before us.
In a case-note to 14 A. L. R. 781, it is said that the authorities are unanimous that, where the attendance is procured by an arrest caused for the sole purpose of securing jurisdiction so that the defendant may be served with civil process, the court will set aside the service. It is said that the conflict in the authorities is only as to 'the right of a nonresident defendant in a criminal case to immunity from service of civil process. As we have already seen, this court has held that a nonresident of the 'State is exempt from service of civil process while Ms presence in the State is in compliance with the conditions of a bail bond. Martin v. Bacon, 76 Ark. 158, 88 S. W. 863. Other cases adopting this view may be found in a case-note to 14 A. L. B-. at 775. The reason is that the exemption from the service of civil process while under arrest or to avoid the forfeiture of a bail bond is not simply a personal privileg’e but is a protection granted to the party or witness by the court as a matter of public policy. Under the decisions of our own court above cited the party is afforded full protection from all forms of civil process during his attendance at court and for a reasonable time in going and returning.
The record shows that service of summons in the alimony case was had upon the petitioner while he was under bond to- appear in the Little Bock Mumcipal Court and answer the statutory charge of wife and cMld abandonment; and, under our decisions, it does not make any difference whether the criminal process was used as a pretense or was instituted by the proper officers of the State in good faith.
This bring*s us to a consideration of the question whether the chancery court acquired jurisdiction of the petitioner here in giving a bail bond in that court for his appearance. Without any valid service upon the petitioner, the court made an order of temporary alimony against him,' and the sheriff of Pulaski County was ordered to take him into custody and to commit him to jail, in default of giving bond with proper security to pay said temporary alimony. This order was made bn the 1st day of December, 1928, while the petitioner was still under arrest under process issued by the Little B’ook Municipal Court. He executed the bond in order to secure his release, and this could in no sense be said to be a voluntary entry of appearance by him in the chancery court proceeding. ' '
It is also alleged that the petitioner represented to the municipal court that he had voluntarily entered into bond to pay the alimony in the chancery court, and thereby secured his release from custody. This does not ¡make any difference. As we have already seen, the service of summons was had upon him while under arrest in the municipal court, and, under our decisions above cited, no service of summons could be had upon him in the chancery court. We assume that the wife acted in entire good faith and that the procedure, in the municipal court was not a device to secure the presence of the defendant within the territorial jurisdiction of-the courts of this State. In the view we take of the case, the motive of the petitioner, who was the defendant in the alimony case, or the motive of the plaintiff in the alimony suit, is of no importance. Neither do we regard the conduct of the petitioner in the municipal court as having any bearing on the issue presented here. The fact remains, as disclosed upon the face' of the record, that service was had upon the petitioner in the alimony suit while he was under arrest on a statutory charge in the Little Rock Municipal Court. He was exempt from the service of process for the commencement of a civil action against him in this State,-and was protected while coming and returning’, provided he acted without unreasonable delay. The record shows that he acted promptly, and that any delay in the matter was not occasioned by him. .,
Petitioner brings himself within the rule approved in Roberts v. Tatum, 171 Ark. 148, 283 S. W. 45, to the effect that objection in the lower court to its exercise of .jurisdiction is not a jurisdictional fact upon which the power to issue a writ of prohibition depends, but is discretionary and unnecessary where it would obviously be futile and would result in unnecessary or hurtful delay.
It follows from what we have said that a writ of prohibition will be awarded restraining the judge of the chancery court of P-ulaski County from further proceeding in said alimony suit or from • exercising any jurisdiction over the person of the petitioner in said suit. Ill awarding this writ we do so without in any way impugning the motives of the judge of the chancery court. We believe that he was perfectly honest and sincere in assuming jurisdiction in the alimony suit, and considered it his duty to do so. Matters of this sort often give rise to questions of grave doubt. The result of our views, however, is that the writ of prohibition should be granted as prayed by the petitioner, and it is so ordered. | [
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Johnson, C. J.
This is a foreclosure action instituted by appellees against appellants in the Benton County Chancery Court. A default decree was entered, and this appeal is prosecuted therefrom. But one question is presented for determination, namely, the construction of the language contained in the notes evidencing the indebtedness secured by the mortgage. One of the notes reads as follows:
“$1,000 Endorsement Balance
Bogers, Ark., July 9,1928 on due on
On or before Aug. 15, 1932 principal principal
—days after date I, we, or 192 $.....,......$...............
either of us, promise to pay 192 • $............$...............■
to the order of 192 $............$...............
B. J. Jeffords. 192 $............$...............
One Thousand — Dollars 192 $.-- — --- $...............
For value received, negotiable and payable at the Farmers ’ State Bank, without defalcation or discount, and with interest from date at the rate of 8 per cent, per annum, payable........................until paid, and if not paid when due with collection charges and attorney’s fees, and, if interest be not paid annually, to become as principal, and bear the same rate of interest. The makers and indorsers severally waive presentment for payment, protest and notice of protest, and nonpayment of this note, and agree to extension of this note from time to time without notice.
“No.................................... (Signed) T. S. McNeil
“ Grace McNeil
“Due on or before Aug. 15, 1932.
“P. O. Bogers, Arkansas.”
The following appears on the back of said note:
“For value received, I hereby assign the within note to T. E. Harris, Vol T. Lindsey and E. W. Vinson,'without recourse.
“B. J. Jeffords.”
The trial court, in its decree, compounded interest annually on the notes in controversy at 8 per cent., and this is the alleged error presented for decision.
We think the decree is correct. The language employed by the parties in the note as follows: ‘ ‘ and if interest be not paid annually, to become as principal, and bear the same rate of interest, ’ ’ when construed with all other provisions of the note, makes it clear that it was the intention of the parties that the interest mature annually, instead of at the maturity of the note as contended by appellants.
The decree is correct, and must be affirmed. | [
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Wood, J.
O. L. Cook was indicted in the Union Circuit Court for the crime of murder in the first degree in the killing" of one Freeman Scott. The indictment was valid. The defendant was put on trial for the offense charged, and the jury, after hearing all of the evidence, the instructions of the court and the argument of counsel, retired to consider their verdict, and afterwards returned into court the following verdict: “We, the jury, find the defendant guilty of murder in the first degree, as charged in the indictment.” The defendant, by the judgment of the court, was sentenced to be put to death by electrocution, from which judgment he duly prosecutes this appeal.
1. Appellant’s counsel contend that the evidence is not sufficient to sustain the verdict of murder in the first degree. It would serve no useful purpose to set out the testimony in detail. 'Suffice it to say the confession of the appellant, made out of court, which was shown to be free and voluntary by the officer who heard it, and which was corroborated by other evidence of the killing, was sufficient to warrant the verdict of the jury. See Johnson v. State, 135 Ark. 377, 205 S. W. 646; Henry v. State, 151 Ark. 620, 237 S. W. 454; Borland v. State, 158 Ark. 37, 249 S. W. 591; Standridge v. State, 169 Ark. 294, 275 S. W. 336.
2. Counsel for appellant also contend that the court erred in not instructing the jury that it had a right, in case it found the appellant guilty of murder in the first degree, either to impose the death penalty or life imprisonment in the penitentiary at hard labor. Upon examination of the bill of exceptions we find that the trial court gave the following instruction:
“You are instructed that, if you find from the evidence in this case, beyond a reasonable doubt, that the defendant, O. L. Cook, in Union County, Arkansas, and before the return of the indictment herein into court, did unlawfully, feloniously, willfully, of his malice aforethought and after premeditation and deliberation, kill Freeman Scott by cutting him -with a knife, as alleged in the indictment, you will find the defendant guilty of murder in the first degree.”
The hill of exceptions does not show that the court instructed the jury that it had the right, in case it found the defendant guilty of murder in the first degree, to. fix his punishment at life imprisonment at hard labor in the State Penitentiary. At the instance of the State, the clerk of this court issued a certiorari to the clerk of the Union Circuit Court, suggesting a diminution of the record in omitting an instruction given by. the trial court advising the .jury that, in the event the defendant was convicted of murder in the first degree, the jury could, under the statute, fix the punishment at life imprisonment. In response to the certiorari the clerk of the circuit court of Union County sent up the following:
"Gentlemen of the jury, if you find the defendant guilty of murder in the first degree, your verdict will be, 'We, the jury, find the defendant guilty of murder in the first degree, as charged in the indictment.’ This verdict carries with it the death penalty; or you may return a verdict in about these words,- 'We, the jury, find the defendant guilty of murder in the first degree, as charged in the indictment, and assess his-punishment at hard labor in the 'State Penitentiary for life.’
"State of Arkansas, county of Union. I, Walter F. Cawthon, official stenographic reporter for the Thirteenth Judicial Circuit Court of the State of Arkansas, do hereby certify that the above instruction was given to. the jury, at the conclusion of argument of counsel, in the case wherein the State of Arkansas was plaintiff; and O. L. Cook was defendant, the same being tried in the Union Circuit Court. In witness whereof I have hereunto set my hand on this the 13th day of March, A. D. 1929. Walter F. Cawthon.”
The clerk of Union Circuit Court certified that the above was a full, true and complete transcript of the diminution suggested. Neither the official stenographer of the Union Circuit Court nor the clerk thereof is authorized to authenticate the hill of exceptions. Only the circuit judge himself, trying the cause, could do that. See Beecher v. State, 80 Ark. 600, 97 S. W. 1036; Abbott v. Kennedy, 133 Ark. 105, 201 S. W. 830; Blackford v. Gibson, 144 Ark. 240, 222 S. W. 367; Mo. Pdc. Ry. Co. v. Brewer, 154 Ark. 96, 241 S. W. 864. There is nothing in the transcript of the record before us, including the certiorari and response thereto, to show that the above instruction which the official stenographer certified was given by the trial court was included in the bill of exceptions signed by the trial judge, and there is nothing in the transcript to show that the circuit clerk of Union County omitted to copy the alleged instruction from the bill of exceptions. There is no call for such instruction in the bill of exceptions. We can only determine whether certain instructions were given or refused by an examination of the bill of exceptions. The judgment roll or record proper does not show the rulings of the trial court on the prayers for instructions. Prayers for instructions granted or refused by the trial court must be shown in the bill of exceptions, and the bill of exceptions must be authenticated by the trial judge. Therefore there is no properly authenticated bill of exceptions brought into this record showing that the trial court instructed the jury that it had the right, in the event it found the appellant guilty of murder in the first degree, to assess his punishment at hard labor for life in the State Penitentiary. The Attorney General has not asked for further time to correct the bill of excep.-tions, if same could be done, therefore we must take the record as we now find it.
Since it does not appear from the bill of exceptions' that the trial court instructed the jury as to its right to render a verdict of life imprisonment at hard labor in the State Penitentiary, the court erred in not so instruct ing the jury. But this error can bé cured by modifying the- judgment of the lower court so as- to reduce the punishment of the appellant to life imprisonment at hard labor in the State Penitentiary. It was so held in the recent case of Crowe v. State, 178 Ark. 1121, 13 S. W. (2d) 606. That procedure will be followed here. Accordingly the judgment of the trial court will be modified as above indicated, and, as so modified, will be affirmed. It is so ordered. | [
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